Recovering Attorney’s Fees

We previously wrote here about whether the other side in a lawsuit has to pay your attorney fees if you win.

As the previous post explained, Mississippi courts follow the “American rule.” The American rule states that in most cases a party must pay his own lawyer, even if he wins the lawsuit.

But, the rule contains three general exceptions. The party who wins can recover attorney’s fees if:

In this post, we will examine the second exception – – when a Mississippi law requires the losing party to pay.

• The Mississippi Litigation Accountability Act allows a defendant who has been sued on a frivolous lawsuit to have the lawsuit dismissed.

As a part of that, if the defendant succeeds, the court may award the defendant reasonable attorney’s fees and costs if:

– a claim or defense was asserted without substantial justification,

– a claim or defense was interposed for delay or harassment, or

– improper conduct was used unnecessarily expand the lawsuit.

Importantly, the award can be made against the parties who engages in the wrongful conduct as well as his attorney.

• Attorney’s fees “shall be” awarded to the prevailing party in a lawsuit pursuant to the Unsolicited Residential Telephonic Sales Call Act.

• In a shareholder derivative action, the court “may” award a prevailing plaintiff attorney’s fees if the lawsuit created a substantial benefit to the corporation. Conversely, if the court finds that the plaintiff brought suit without reasonable cause or for an improper purpose, the court may award attorney’s fees to the defendant.

• A court may award attorney’s fees to a plaintiff who prevails in a lawsuit against a health spa for misrepresentation.

• A plaintiff who sues a defendant on an open account and obtains a judgment for the amount demanded prior to lawsuit is also entitled to recover attorney’s fees.

• In a judicial proceeding involving the administration of a trust, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney’s fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.

• When any out-of-state principal fails to timely pay a Mississippi sales representative commissions as provided in Section 75-87-5, the principal shall be liable to the sales representative in a civil action for up to triple the commissions due to the sales representative, plus reasonable attorney’s fees and costs.

• Under the Mississippi Uniform Trade Secrets Acts, if (a) a claim of misappropriation is made in bad faith, (b) a motion to terminate an injunction is made or resisted in bad faith, or (c) willful and malicious misappropriation exists, the court may award reasonable attorney’s fees to the prevailing party.

• If an employer violates the Mississippi Drug and Alcohol Testing of Employees Act, reasonable attorney;s fees may be awarded to the person if the court or arbitrator finds that an employer has knowingly or recklessly violated this chapter.

• Any licensee suffering pecuniary loss because of any willful failure by any other licensee to comply with any provision of the Mississippi Motor Vehicle Commission Law or with any rule or regulation promulgated by the commission under authority vested in it by said law may recover reasonable damages and attorney fees therefor in any court of competent jurisdiction.

• Fees may be awarded in any action against an unauthorized foreign or alien insurer upon a contract of insurance issued or delivered in this state to a resident thereof or to a corporation authorized to do business therein.

Mississippi has many other laws that provide for an award of attorney’s fees to the winning party. If you are considering filing a lawsuit but are concerned about the cost of doing so, contact the Panter Law Firm for a consultation to determine whether the law will allow you to recover legal fees from the other side. 601-607-3156.

www.craigpanterlaw.com

Craig Painter

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