Helping Trial Lawyers Navigate the Appellate System

Attorney Fees for Seeking Attorney Fees?


I’ve been thinking about attorney fees a lot lately, mostly from the perspective of how clients can recover and hold onto appellate-fee awards approximating what defending an appeal would actually cost. Doing so is no small feat, given that trial lawyers tend to ask for too little, fact-finders often decline to award the full amount sought, and appellate courts are starting to closely scrutinize the amounts awarded.

In my research, I came across a recent decision in which part of the fight involved whether the prevailing party could recover attorney fees incurred solely to secure a fee award. The case is KBIDC Investments LLC v Zuru Toys Inc., No. 05-19-00159-CV, 2020 WL 5988014 (Tex. App.—Dallas Oct. 9, 2020, pet. filed) (mem. op).

In KBIDC, the issue arose after the trial court granted summary judgment for the party seeking fees, leaving the amount of fees to be awarded as the only remaining issue. The non-prevailing party contested any award for fees incurred after the summary judgment because those fees related solely to the litigation concerning the fee award and not the underlying claim.

It’s not hard to imagine a similar argument being made in other circumstances. For example, I recently worked on a case in which my clients were entitled to recover fees after reversal and remand. The amount of the fee award was the only issue left for determination.

Consider the Source

Under KBIDC, whether you can get “fees for fees” will depend on any specific limitations in the statute or contract authorizing fee-shifting. Language authorizing recovery to “a party who prevails in a suit under this [provision]” captures reasonable and necessary fees incurred to obtain the fee award. But language limiting fees to those “incurred in the defense or prosecution of the statutory [or contractual] claim” or something similar may not.

Whichever side of the issue you’re on, know what your statute or contract says. Wrongly assuming that fees for recovering fees will (or won’t) be recoverable could be costly.

D. Todd Smith
About the Author

D. Todd Smith is an Austin-based civil appellate specialist who works with trial teams from the earliest stages of litigation. In trial courts, he takes the lead on strategic analysis and briefing, jury charges, and potentially dispositive motions, all with a focus on preserving error and positioning cases for appellate review.

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