Hourly, increased b/c contingent If you do this, need to make it clear that the fees are increased b/c of the circumstances “in this case” Hourly, with % Contingent (cannot fee shift) Combination Fees for the Defendant, 17.50(c) Awarded for groundless OR bad faith OR harassment Determined by the court Groundless: no basis in law or fact and not warranted by good faith argument for extension, modification, or reversal of existing law Harassment: brought for the “sole” purpose of harassment Zak v. demand letter was unrealistic and seemed to show an intent to punish Segregation of Attorney’s Fees Originally, Ct gave you all attorney fee’s if the claims and facts were “inextricably intertwined” Tony Gullo Motors, Tx SC, 2006; claims for contract, fraud, and DTPA Any fees related solely to a claim for which attorney fees are not recoverable must be segregated Only when the fees are “so intertwined” do they not need to be segregated In practice, segregate and think about what claims you really should bring What is recoverable? Assume claims for negligence, K, and DTPA all in once case Client interview – probably have to segregate Preparing petition – segregate Legal research – segregate Factual research – segregate Depositions, Motions, – segregate Cumulative Recovery, §17.43 Only one recovery for the “same act or practice” Summary Same act single recovery Separate injuries, separate acts multiple punitives, multiple actuals Separate acts, same injury multiple punitives, but only one actual Bliskey, Ct of App, 1993; premises liability. Woman attacked at apt after apt complex refused a keyless night latch Negligence: $3.013MM actual, $5MM punitive DTPA: $3MM actual, $3MM punitive Ct awarded only one set of actual damages, both sets of punitive, plus attorney’s fees because Bliskey elected to receive the DTPA actual damages Ct held there were 2 different acts so they could have both punitive damages Multiple recovery governed by Chapter 41
No reliance Cannot challenge for fraudulent inducement like SC has said if you draft everything right, you are free and clear Other Defenses Imputed notice is not a defense (Ojeda de Toca) Can’t waive the DPTA, and acceptance of defective performance doesn’t prevent you from making a DTPA claim (waiver/estoppel) (Kennemore) P has a duty to mitigate damages (Gunn Infiniti) Alternate Dispute Resolution Mediation: less involved, don’t generally give an opinion, doesn’t force you to do anything, probably 98% of all cases will have had mediation Arbitration: binding decision, have a K that says someone else will make the binding decision, private justice system, K usually says which company (AAA – American arbitration association) Arbitration Why arbitration? Efficient and lower cost How does it work Federal Arbitration Act recognized arbitration (applies when there is a written K requiring arbitration) Selection: exclude people, you don’t pick people (like striking a jury) Procedures: also part of K or part of organization, usually very informal, not a judge – not bound by rules of law or rules of court or procedure Cost: was less expensive, today it is extremely expensive Consequences No jury, no law, no appeal. Everything is final. Generally everything is secret – no requirement for written opinion. DTPA claims are subject to arbitration. Ct says arbitration doesn’t waive your rights, it is “just another forum” (Anglin, one of the first Tx cases, 1992) Severability Buckeye, payday loan, under FL law the K was void but K contained an arbitration clause As a matter of federal law an arbitration provision is severable from the rest of the K If challenge is to the arbitration clause itself, Ct hears the case If challenge is to the contract’s validity, suit is considered by the arbitrator These rules apply to state as well as federal courts Only way to challenge an arbitration clause is to say the clause is unenforceable (i.e. unconscionable)