prevailing party inquiry in Texas

2018Agency, Inc. , No. 01-15-01096-CV, 2016 WL 3748780 , at *5 (Tex. App.-Houston [1st Dist.] July 12, 2016, no pet.) ("Thus, excluding actions by or against a governmental entity or a public official, the rule's language suggests that an award of attorney's fees to the prevailing party on a rule 91a motion to dismiss is mandatory, not discretionary.") (citing Bocquet v. Herring , 972 S.W.2d 19 , 20 (Tex. 1998) ("Statutes providing that a party 'may recover,' 'shall be awarded,' and 'is entitled to' attorney's fees are not discretionary.") ); Zheng , 468 S.W.3d at 187 .

2016See Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998) (“Statutes providing that a party ‘may recover,’ ‘shall be awarded,’ and ‘is entitled to’ attorney fees are not discretionary.”).

2009Id. at 113-14 , 113 S.Ct. 566 (noting that "the prevailing party inquiry does not turn on the magnitude of the relief obtained"). .

2009Dist., 856 S.W.2d 417, 423 (Tex.1993). [12] 482 U.S. 755, 757 , 107 S.Ct. 2672 , 96 L.Ed.2d 654 (1987). [13] Id. [14] Id. at 757-58 , 107 S.Ct. 2672 . [15] Id. at 758 , 107 S.Ct. 2672 . [16] Id. at 759 , 107 S.Ct. 2672 . [17] Id. at 760 , 107 S.Ct. 2672 . [18] Id. [19] 506 U.S. 103, 111-12 , 113 S.Ct. 566 , 121 L.Ed.2d 494 (1992) (reviewing attorney's fees awarded pursuant to 42 U.S.C. § 1988 ) (citations omitted). [20] Id. at 113-14 , 113 S.Ct. 566 (noting that "the prevailing party inquiry does not turn on the magnitude of the relief obtained"). [21] (Emphasis added). [22] Cf. State Farm Lif

2018P’ship, 295 S.W.3d at 652 (“We agree with the United States Supreme Court, which holds 41 that to prevail, a claimant must obtain actual and meaningful relief, something that materially alters the parties’ legal relationship.”).

2011In Intercontinental, KB Homes sued Intercontinental for breach of contract, and sought money damages for lost profits. 295 S.W.3d at 652 .

2023See Lenz v. Lenz, 79 S.W.3d 10, 21 (Tex. 2002) (“An attorney’s fees award in a suit affecting the parent-child relationship is discretionary with the trial court.”); In re R.E.S., 482 S.W.3d 584, 586 (Tex. App.— San Antonio 2015, no pet.) (“[T]he current language of Family Code Section 106.002 does not impose a prevailing-party requirement.”); In re A.B.R., No. 04-17-00220-CV, 2018 WL 3998684 , at *9 (Tex. App.—San Antonio Aug. 22, 2018, no pet.) (mem. op.) (same).

2023See Lenz v. Lenz, 79 S.W.3d 10, 21 (Tex. 2002) (“An attorney’s fees award in a suit affecting the parent-child relationship is discretionary with the trial court.”); In re R.E.S., 482 S.W.3d 584, 586 (Tex. App.— San Antonio 2015, no pet.) (“[T]he current language of Family Code Section 106.002 does not impose a prevailing-party requirement.”); In re A.B.R., No. 04-17-00220-CV, 2018 WL 3998684 , at *9 (Tex. App.—San Antonio Aug. 22, 2018, no pet.) (mem. op.) (same).

2022In the trial on remand, Archambault sought to segregate the fees the 18 See Rohrmoos Venture, 578 S.W.3d at 486 (noting that statutes authorizing the recovery of attorney’s fees for the services of the prevailing party on a claim to enforce a contract that includes legal services required to successfully defeat a breach of contract counterclaim authorize the prevailing party to recover “reasonable and necessary attorney’s fees” for the work defeating the counterclaim for breach of contract). 19 Id.; Tex. Prop.

2018Tex. State Teachers Ass’n v. Garland ISD, 489 U.S. 782 , 792–93, 109 S. Ct. 1486, 1494 (1989) (explaining in context of statute providing recovery of attorney’s fees to prevailing party that the “touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties”); Intercontinental Grp.

2018Tex. State Teachers Ass’n v. Garland ISD, 489 U.S. 782 , 792–93, 109 S. Ct. 1486, 1494 (1989) (explaining in context of statute providing recovery of attorney’s fees to prevailing party that the “touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties”); Intercontinental Grp.

2018"Attorney fees awarded under 91a.7 are limited to those associated with challenged cause of action, including fees for preparing or responding to the motion to dismiss." Zheng , 468 S.W.3d at 188 (quoting comment to Rule 91a and stating that party seeking attorney's fees must segregate reasonable and necessary fees incurred to obtain dismissal of challenged claim or demonstrate why segregation is not required); see also CA Partners v. Spears , 274 S.W.3d 51 , 81-82 (Tex. App.-Houston [14th Dist.] 2008, pet. denied) (recognizing that, if any attorney's fees relate solely to claims for which fee

2018See, e.g., Rapid Settlements, Ltd. v. Green, 294 S.W.3d 701, 706 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (“It goes without saying that a contract cannot bind a nonparty.”) (quoting EEOC v. Waffle House, Inc., 534 U.S. 279, 294 (2002)).

2018See, e.g., Rapid Settlements, Ltd. v. Green, 294 S.W.3d 701, 706 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (“It goes without saying that a contract cannot bind a nonparty.”) (quoting EEOC v. Waffle House, Inc., 534 U.S. 279, 294 (2002)).

2018Palavan v. McCulley, 498 S.W.3d 134, 143 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (holding party entitled to attorneys’ fees under section 38.001 where party obtained specific performance of obligations in agreed judgment).10 10 We note that the recovery of fees is proper because a suit for breach of a provision in an agreed judgment is a suit for breach of contract, not merely because an agreed judgment is construed like a contract.

2015Id. at 839 .

2015The prevailing-party analysis arose from language in the previous versions of Section 106.002 which taxed attorney’s fees as costs and from language in previous versions of Section 106.001 which awarded costs “as in other civil cases.” Id. at 839-40 , 41 n. 30.

2014Exam’rs v. Giggleman, 408 S.W.3d 696, 705-06 (Tex. App.—Austin 2013, no pet.) (observing that, with regard to party’s complaints about denial of attorney’s-fee recovery under the Public Information Act for failure to satisfy the statute’s prevailing-party requirement, “his remedy for these perceived injustices would lie in the Legislature rather than the Judicial Branch.”). 19 CONCLUSION We affirm the district court’s judgment. __________________________________________ Bob Pemberton, Justice Before Justices Puryear, Pemberton, and Rose Affirmed Filed: March 19, 2014 20

2011See Barshop, 925 S.W.2d at 637 ; City of Temple, 268 S.W.3d at 858 .

2009Dist., 856 S.W.2d 417, 423 (Tex.1993). [12] 482 U.S. 755, 757 , 107 S.Ct. 2672 , 96 L.Ed.2d 654 (1987). [13] Id. [14] Id. at 757-58 , 107 S.Ct. 2672 . [15] Id. at 758 , 107 S.Ct. 2672 . [16] Id. at 759 , 107 S.Ct. 2672 . [17] Id. at 760 , 107 S.Ct. 2672 . [18] Id. [19] 506 U.S. 103, 111-12 , 113 S.Ct. 566 , 121 L.Ed.2d 494 (1992) (reviewing attorney's fees awarded pursuant to 42 U.S.C. § 1988 ) (citations omitted). [20] Id. at 113-14 , 113 S.Ct. 566 (noting that "the prevailing party inquiry does not turn on the magnitude of the relief obtained"). [21] (Emphasis added). [22] Cf. State Farm Lif

2009Co. v. Beaston, 907 S.W.2d 430, 437-38 (Tex. 1995) (rendering take-nothing judgment against party who recovered no damages on claim alleging violation of Insurance Code article 21.21, even assuming arguendo the party prevailed on the article 21.21 claim). [23] See Helms, 482 U.S. at 760 , 107 S.Ct. 2672 . [24] Id. [25] See Farrar, 506 U.S. at 111-12 , 113 S.Ct. 566 . [26] See id. at 111 , 113 S.Ct. 566 (to be a prevailing party, "[w]hatever relief the plaintiff secures must directly benefit him. ...").