ATTORNEY'S FEES TO (NON) PREVAILING PARTY?
Section 38.001 authorizes recovery of attorney’s fees when a party proves a valid claim
based on a written or oral contract. Tex. Civ. Prac. & Rem. Code § 38.001. However, it
does not authorize an award of attorney’s fees for successfully defending against a
breach of contract claim. E.g., Thottumkal v. McDougal, 251 S.W.3d 715, 718-19 (Tex. App.
—Houston [14th Dist.] 2008, pet. denied) (citing Am. Airlines, Inc. v. Swest, Inc., 707 S.W.2d
545, 547 (Tex. 1986)). SOURCE: Houston Court of Appeals - 14-10-00081-CV - 6/7/11
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)).
Cytogenix v. Waldroff (Tex.App.- Houston [1st Dist.] Dec. 14, 2006, pet. denied 6/15/07)(Bland)
(bizlaw, business litigation, breach of contract, licensing agreement, breach of contract, BoC defenses,
specific performance, attorney’s fees, prevailing defendant not entitled to statutory attorneys fees in
breach of contract case)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Bland
Before Chief Justice Radack, Justices Alcala and Bland
01-05-00492-CV Cytogenix, Inc. v. William B. Waldroff and Applied Veterinary Genomics, Inc.
Appeal from 11th District Court of Harris County
We conclude that CytoGenix is not entitled to its attorney’s fees upon reversal of the judgment against it. We
therefore reverse the judgment of the trial court and render judgment that the parties take nothing on their
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