Many clients ask if we can sue for attorney's fees as part of their family law case. This is understandable--lawsuits can be very expensive and often times our clients have to hire a lawyer only because the other party violated a court order. This is understandably frustrating to our client. Therefore, most of our clients reason that if they win their lawsuit, and it's the other party's fault they had to pay for a lawyer in the first place, they should get the losing party to pay their attorney's fees. The "loser pays" idea sounds like something that should exist, but it's not the law in Texas. Winning a lawsuit that is the fault of the other party does not mean you can automatically get an award of attorney's fees. I tell clients to focus on if the law allows for, and if the judge will grant attorney's fees.
This was the question posed to the Dallas Court of Appeals in Shilling v. Gough, an enforcement action for a violation of an injunction that was originally ordered in the final decree of divorce. There, the husband argued that the wife had violated an injunction in the divorce decree that prevented her from disclosing certain information regarding the husband's medical history. The trial court reviewed the injunction and a trial was held in which the court ruled against the Appellant (husband) and awarded attorney's fees to the Appellee (wife). The husband was unhappy about the attorney's fees award (not only was it wrong, it was a whopping $96,001.65) and so he appealed. The Dallas Court of Appeals held that the award of attorney's fees was an abuse of discretion and reversed the trial court's award.
The reality is it is not sufficient to make a basic argument of "they do not have a basis for this and so therefore I should get attorney's fees if I win". In fact, the Dallas Court of Appeals, looking to guidance from the Texas Supreme Court in Tony Gullo Motors 1, L.P. v. Chapa, held that the award of attorney's fees is not an inherent authority that a trial court possesses. Meaning, the judge cannot do it just because they think it sounds right or if they feel like it. This is because the Texas Supreme Court also held in Travelers Indem. Co. of Conn. v. Mayfield that the authority of a trial court to award attorney's fees must come from a specific statute. Thus, if a trial court is going to award attorney's fees, it must have statutory authority to do so.
Another key point is that this was an enforcement of a final decree of divorce. So, one would argue that you just look to Chapter 9 of the Texas Family Code for the enforcement of a final decree and derive the authority from that statue to award attorney's fees. However, as the Dallas Court of Appeals adjudicated here, that is not the case. In fact, the trial court tried to say that it awarded attorney's fees to the wife based upon Texas Family Code Section 9.014 because it authorizes courts to award attorney's fees in a suit to enforce a decree. However, The Dallas Court of Appeals held that specifically, this statute deals with enforcement of the final decree with respect to the property division. This case involved an injunction. Therefore, the trial court could not use this section for authority on the attorney's fees award.
The other basis the trial court claimed was that it awarded attorney's fees as a sanction on the husband for filing the suit. The Dallas Court of Appeals struck down this argument in examining Chapter 10 of the Texas Civil Practice & Remedies Code and Rule 13 of Texas Rules of Civil Procedure. There are certain statutory prerequisites that the court and the pleading party must meet before the court can sanction the other party. Here, none of the prerequisites were met. Therefore, an award of attorney's fees based upon the sanction argument, at the Dallas Court of Appeals put it, "can have a significant chilling effect on the litigation process."
The moral of the story is if you want to fight for attorney's fees, you better have a statutory basis for your argument and spell it out for the court. Otherwise, if the other side knows about this Dallas Court of Appeals opinion, you will probably lose.