Whether a party prevails turns on whether the party prevails upon the court to award it something, either
monetary or equitable. Intercontinental Group Partnership v. KB Home Lone Star, L.P., 295 S.W.3d 650,
655 (Tex. 2009).
PREVAILING PARTY STATUS FOR LEGAL FEE PURPOSES
The prevailing party is the one vindicated by the judgment rendered. See Taylor Elec. Servs.,
Inc. v. Armstrong Elec. Supply Co., 167 S.W.3d 522, 532 (Tex. App.-Fort Worth 2005, no pet.).
In determining the prevailing party, our focus is the successful party on the merits of the case. Id.
A party can be the prevailing party entitled to attorney's fees even where the amount recovered
is offset by an amount awarded to the opposing party. Id. at 533 (citing Blizzard v. Nationwide
Mut. Fire Ins. Co., 756 S.W.2d 801, 806 (Tex. App.-Dallas 1988, no writ)).
Section 38.001 provides, “A person may recover reasonable attorney’s fees from an individual
or corporation, in addition to the amount of a valid claim and costs, if the claim is for . . . an oral
or written contract.” Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (Vernon 2008). “To recover
attorney’s fees under Section 38.001, a party must (1) prevail on a cause of action for which
attorney’s fees are recoverable, and (2) recover damages.” Green Int’l, Inc. v. Solis, 951 S.W.2d
384, 390 (Tex. 1997). The Civil Practice and Remedies Code “does not provide for the recovery
of attorney’s fees by a defendant who only defends against a plaintiff’s claim and presents no
claim of his own.” Thottumkal v. McDougal, 251 S.W.3d 715, 719 (Tex. App.—Houston [14th
Dist.] 2008, pet. denied) (citing Am. Airlines, Inc. v. Swest, Inc., 707 S.W.2d 545, 547 (Tex.
1986) (holding defendant could not recover attorney’s fees under predecessor to Section
38.001 when defendant presents no valid contract claim of its own)). Although the trial court
found in favor of the Loeschers in awarding a take-nothing judgment, the Loeschers did not
counterclaim for a breach of contract, nor did they recover any damages. Therefore, they are not
entitled to recover attorney’s fees under section 38.001. See id.
FEES BASED ON CHAPTER 38 IN CONTRACT CASE
The elements of a breach of contract claim are: (1) the existence of a valid contract; (2) performance or
tender of performance; (3) breach by the defendant; and (4) damages resulting from the breach.
Hussong v. Schwan's Sales Enters., Inc., 896 S.W.2d 320, 326 (Tex. App.-Houston [1st Dist.] 1995, no
writ). Reasonable attorney's fees may be recovered, in addition to the amount of a valid claim and costs,
if the claim is for a written contract. Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (Vernon 2008). See
id. § 38.002 (providing for recovery procedure).
An award of attorney's fees in a breach of contract claim is appropriate only if a party prevails and
recovers damages. See TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8) (West 2008) (allowing
recovery of attorney's fees in valid claims involving oral or written contracts); State Farm Life Ins. Co. v.
Beaston, 907 S.W.2d 430, 437 (Tex. 1995).
TEXAS SUPREME COURT CASES
Epps v. Fowler, No. 10-0283 (Tex. Aug. 26, 2011)(Opinion by Justice Debra Lehrmann)
(who is prevailing party when plaintiff nonsuits?)
Two years ago, we held that a plaintiff who obtained favorable jury findings but no damages was not
entitled to attorney's fees under contractual language entitling a prevailing party to such fees. Intercont'l
Group P'ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 652 (Tex. 2009). Today, we consider whether
a defendant is a prevailing party entitled to attorney's fees when the plaintiff nonsuits a claim without
prejudice. We hold that such a defendant is not a prevailing party unless the court determines, on the
defendant's motion, that the plaintiff took the nonsuit in order to avoid an unfavorable judgment. We also
hold that, because a nonsuit with prejudice immediately alters the legal relationship between the parties
by its res judicata effect, a defendant prevails when the plaintiff nonsuits with prejudice. Because the trial
court has not had the opportunity to determine whether the plaintiff nonsuited in order to avoid an
unfavorable judgment, we reverse the court of appeals' judgment and remand the defendant's claim for
attorney's fees under the contract to the trial court. Finally, we hold that the court of appeals erred by not
remanding the case to allow the trial court to dispose of the Eppses' pending claim for sanctions under
chapter 10 of the Civil Practice and Remedies Code, and accordingly remand for the trial court to
dispose of that alternative claim if it determines that fees are not available under the contract.
CHRISTOPHER N. EPPS AND LAURA L. EPPS v. BRUCE FOWLER, JR. AND STEPHANIE L. FOWLER;
from Williamson County; 3rd district (03-08-00055-CV, ___ SW3d ___, 02-10-10)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Lehrmann delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright,
Justice Green, Justice Willett, and Justice Guzman joined. [pdf]
Justice Hecht delivered a dissenting opinion, in which Justice Medina and Justice Johnson joined. [pdf]
Link to e-briefs: EPPS v. FOWLER
Intercontinental Group Partnership v. KB Home Lone Star LP., No. 07-0815 (Aug. 28, 2009)(Willett)
(prevailing party for attorney fees purposes)
INTERCONTINENTAL GROUP PARTNERSHIP v. KB HOME LONE STAR L.P.; from Hidalgo County;
13th district (13-06-00617-CV, ___ SW3d ___, 08-23-07)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Willett delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
Green, and Justice Johnson joined.
Justice Brister delivered a dissenting opinion, in which Justice O'Neill, Justice Wainwright, and Justice
Texas Causes of Action | 2011 Texas Supreme Court Opinions | 2011 Tex Sup Ct Per Curiams
Texas Caselaw Topics Pages | Texas Opinions homepage |