Recovering Your Attorney’s Fees

//Recovering Your Attorney’s Fees

Recovering Your Attorney’s Fees

From an adverse party, as permitted by statute, contract, or equity. Smith v. Patrick 296 SW3d 545 (Tex. 2009). To recover attorney’s fees, Plaintiff must establish the following:

  1. Plaintiff pled for attorney’s fees
  2. Plaintiff’s recovery of attorney’s fees is authorized either by statute or by a contract between Plaintiff and Defendant, or under principles of equity
  3. Plaintiff was represented by an attorney
  4. Plaintiff complied with the Today’s blog covers specific subjects with regard to recovery of attorney’s fees by the successful party, conditions precedent to recovery
  5. Plaintiff was entitled to attorney’s fees and incurred or may incur attorney’s fees which were reasonable and necessary

Attorney’s fees are recoverable under the Tex. Civ. Prac. & Rem. Code, Chapter 38; which generally is stated as the basis for recovery for services rendered, labor performed, materials furnished, sworn account or oral or written contract, and the like; that Plaintiff is represented by an attorney, presented the claim to Defendant but Defendant has not tendered payment within 30 days after presentment, and Plaintiff prevails. Palestine Water Well v. Vance 188 SW3d 321 (Tyler 2006). The attorney should state in the Petition that it seeks attorney’s fees under Chapter 38 and the attorney should consider adding a statement that the claim was presented and Defendant did not pay it, and always, that all conditions precedent have been performed or have occurred. There is some discussion regarding the deadline under Chapter 38, for Plaintiff to present its demand to Defendant. There is general agreement that it is not necessary for Plaintiff to present its demand 30 days before filing suit. See Palestine Water, above. The Corpus Christi and Houston Courts of Appeals seem to hold that the deadline for Plaintiff to make its demand is 30 days before rendition of judgment but other courts hold that the 30 day deadline is 30 days before trial, according to the San Antonio, Texarkana, and 14th District Appellate Courts. The word “tender” is used in a statute, and means that to avoid liability for attorney’s fees, the Defendant must make an unconditional offer to pay an amount not less than what it due. The tender deadline is also 30 days after Plaintiff presents its claim. These elements should always be considered in commercial collections litigation as well as Dallas collection litigation. In Medical City Dallas v. Carlisle, the Court that tht attorney’s fees are recoverable under both written and oral contract, or breach of express warranty or implied warranty. 251 SW3d 55 (Tex. 2008).

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*The foregoing is not intended to provide specific legal advice, but instead only as a generalized discussion

Sam Emerick, Collections Attorney

Sam Emerick has over 35 years
experience in Commercial Collections Law,
Factoring Litigation and Wills, Trusts & Probate


By |2017-09-13T14:58:40+00:00September 13th, 2017|Texas law|Comments Off on Recovering Your Attorney’s Fees

About the Author:

Mr. Emerick, a seasoned collection lawyer in Dallas, and owner of the Law Offices of Sam Emerick, P.C. helps creditors obtain payments on loans and debts. Mr. Emerick delivers prompt, efficient and tangible results to creditors. The Law Offices of Sam Emerick help creditors who are frustrated attempting to collect debt. Many times, creditors believe that they will be able to resolve the problem on their own; a letter requesting payment, a phone call asking for an explanation, or a proposed meeting. Unfortunately, these measures rarely produce any tangible results.