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ATTORNEY'S FEES UNDER CPRC CHAPTER 38
Chapter 38 of the Texas Civil Practice and Remedies Code requires. See TEX. CIV. PRAC. & REM. CODE
ANN. § 38.001(8) (West 2008).
As a general rule, each party bears the cost of its own attorney, absent a contractual or statutory provision
allowing for recover of attorney’s fees. Panizo v. Young Men’s Christian Ass’n of the Greater Houston
Area, 938 S.W.2d 163, 168 (Tex. App.—Houston [1st Dist.] 1996, no writ). Section 38.001(8) of the Civil
Practice and Remedies Code provides that a party may recover reasonable attorney’s fees if its claim is
for “an oral or written contract.” TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8). To recover attorney’s
fees under that provision, a claimant must: (1) be represented by an attorney; (2) present the claim to the
opposing party or to a duly authorized agent of the opposing party; and (3) show that payment was not
tendered before the expiration of the 30th day after the claim was presented. Id. § 38.002(1)-(3).
Presentment of a claim under section 38.002(2) is required to allow the debtor to pay the claim before
incurring an obligation to pay attorney’s fees. Panizo, 938 S.W.2d at 168. Filing a lawsuit does not, by
itself, constitute presentment. Id.
No particular form of presentment is required—it may be written or oral. Id. “[A]ll that is necessary is that a
party show that its assertion of a debt or claim and a request for compliance was made to the opposing
party, and the opposing party refused to pay the claim.” Standard Constructors, Inc. v. Chevron Chem.
Co., 101 S.W.3d 619, 627 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (citing Panizo, 938 S.W.2d at
A party who prevails on a breach of contract claim is entitled to recover attorneys'
fees for prosecution of the claim. Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (Vernon 2008). To
recover attorneys' fees, a claimant first must present the claim to the opposing party or his agent. Id. §
38.002(2) (Vernon 2008). The statute is to be generously construed to promote its underlying purpose.
Id. § 38.005 (Vernon 2008); Chudleigh, 2002 WL 576092, at *5.
Cano v. Nino's Paint and Body Shop
(Tex.App.- Houston [14th Dist.] Apr. 16, 2009)(Boyce)
(admission of business records, business records affidavit,
failure to disclose documentary evidence in discovery, attorneys fees on breach of contract, presentment
of claim as condition precedent)
Yeh v. MacOugall (Tex.App.- Houston [1st Dist.] Jan. 17, 2008)(Alcala)
(breach of contract, counterclaim, attorney's fees, prevailing party)
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Bland
01-06-00509-CV Peter J. Yeh v. David J. MacDougall, D.O., P.A. d/b/a Neurosurgical Association of
Appeal from 333rd District Court of Harris County (Hon. Joseph Halbach)
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