Question on filing fee

[WCA3384]

In Texas, can a landlord charge me the eviction filing fee? I was never served, no court date, never knew it was filed. I just paid entire rent plus late fee in full and was told “oh you owe another 204 for the filing fee”. I thought something like that would have to be awarded by the judge.

 

[Taxing Matters]

In Texas, can a landlord charge me the eviction filing fee? I was never served, no court date, never knew it was filed. I just paid entire rent plus late fee in full and was told “oh you owe another 204 for the filing fee”. I thought something like that would have to be awarded by the judge.

What does your lease say about it, if anything? In Texas had the matter gone to court and you lost, under state law you'd owe the landlord for all his/her legal fees without the need for the contract to specifically state that. That's the opposite of the rule used by almost every other state. As you were never served and the court didn't hear the landlord's claim, however, it may matter what the lease says about it.

 

[WCA3384]

What does your lease say about it, if anything? In Texas had the matter gone to court and you lost, under state law you'd owe the landlord for all his/her legal fees without the need for the contract to specifically state that. That's the opposite of the rule used by almost every other state. As you were never served and the court didn't hear the landlord's claim, however, it may matter what the lease says about it.

I don’t see anything at all specific to court or fees. Just a fixed late fee which I paid.

 

[zddoodah]

can a landlord charge me the eviction filing fee?

If you are a defendant in an eviction action, the costs of suit (including the filing fee) should be included as part of the judgment entered against you if you lose.

I was never served, no court date, never knew it was filed. I just paid entire rent plus late fee in full and was told “oh you owe another 204 for the filing fee”.

So...you were late with your rent to the point that your landlord filed a lawsuit. However, before the lawsuit was served on you, you paid the rent and late fee, and the landlord expects you also to pay the filing fee for the lawsuit. Is that all correct?

If so, whether you're liable to pay the filing fee will depend on the terms of your lease, but you likely are.

 

[WCA3384]

Yes that’s correct, but aside from the late fee paid my lease mentions nothing else about any sort of fine or fee or recovery of fees.

 

[Zigner]

Yes that’s correct, but aside from the late fee paid my lease mentions nothing else about any sort of fine or fee or recovery of fees.

Does it mention something along the lines of any costs incurred due to your failure to pay as agreed?

 

[adjusterjack]

If the LL filed the eviction and paid the fee to the court, that his cost of getting you out.

My take - You owe it.

 

[Zigner]

If the LL filed the eviction and paid the fee to the court, that his cost of getting you out.

My take - You owe it.

I agree with you from a moral standpoint. But contractually speaking, he may not owe it. Of course, he may end up in eviction court trying to prove it. A classic case of cutting off one's nose to spite one's face.

 

[zddoodah]

aside from the late fee paid my lease mentions nothing else about any sort of fine or fee or recovery of fees.

Knowing what it doesn't say isn't all that helpful. Can you upload the relevant portion of the lease (with any identifying information removed)?

 

[Gail in Georgia]

The other option is that the landlord simply refuses to accept your late rent and late fee, returns these to you and continues with the eviction process.

 

[Litigator22]

What does your lease say about it, if anything? In Texas had the matter gone to court and you lost, under state law you'd owe the landlord for all his/her legal fees without the need for the contract to specifically state that. ? That's the opposite of the rule used by almost every other state. As you were never served and the court didn't hear the landlord's claim, however, it may matter what the lease says about it.

With all due respect I must take issue with your representation of applicable Texas law. Your response is viewed as mistakenly declaring that a landlord (prevailing in an eviction suit) is entitled to an award of attorney fees from a defaulting tenant - with or without a contractual agreement. In other words, as a matter of course, unconditional and self-acting and that is not so in Texas.

There, where there is no underlying written agreement, a prevailing landlord in an eviction suit is only entitled to an award of attorney fees upon a showing of compliance with the pre-filing notice processes as prescribed and made obligatory pursuant to Subsection (a) of Section 24.006 of the Texas Property Code (Attorney’s Fees and Costs of Suit). [*]
_______________________________________________________________________

[*] (a) Except as provided by Subsection (b), to be eligible to recover attorney’s fees in an eviction suit, a landlord must give a tenant who is unlawfully retaining possession of the landlord’s premises a written demand to vacate the premises. The demand must state that if the tenant does not vacate the premises before the 11th day after the date of receipt of the notice and if the landlord files suit, the landlord may recover attorney’s fees. The demand must be sent by registered mail or by certified mail, return receipt requested, at least 10 days before the date the suit is filed.

(b) If the landlord provides the tenant notice under Subsection (a) or if a written lease entitles the landlord to recover attorney’s fees, a prevailing landlord is entitled to recover reasonable attorney’s fees from the tenant.

(c) If the landlord provides the tenant notice under Subsection (a) or if a written lease entitles the landlord or the tenant to recover attorney’s fees, the prevailing tenant is entitled to recover reasonable attorney’s fees from the landlord. A prevailing tenant is not required to give notice in order to recover attorney’s fees under this subsection.

(d) The prevailing party is entitled to recover all costs of court. (Emphasis added)

 

[Taxing Matters]

The general rule in Texas for awards of attorney's fees is that the prevailing party is entitled to recoup their attorneys fees in a contract claim without the contract specifying that, which as I said before is the reverse of the general rule most every other state uses. I grant you that I did not explain that for residential landlord-tenant cases (and some consumer claims) state often impose more duties on the landlord than would otherwise be required in a typical contract claim. I appreciate you pointing out that with regard to attorney's fees in residential rental leases Texas has done just that. The landlord still doesn't have to have the attorney fee provision written in the lease (which would be the case in every jurisdiction I've been in), but in that case the Texas landlord has to provide the written demand that includes recovery. That at least allows a landlord who neglected to put the provision in the contract an easy way to achieve the goal of recovering attorneys fees by giving the written demand, which ordinarly would not be at all difficult. This is yet another example of why the details of the facts and the applicable law do matter as states often having differing rules on these sorts of things, and I didn't make that clear enough. I'm glad that you made the Texas rule clearer than I did.

 

[Litigator22]

MCG near-final response to FK fee petition (02116831.DOC;1) (texasbarsections.com)

The general rule in Texas for awards of attorney's fees is that the prevailing party is entitled to recoup their attorneys fees in a contract claim without the contract specifying that, (?) . . .

My apologies, but once again you must stand corrected. The general rule in Texas for the award of attorney fees IS NOT AS YOU HAVE ABOVE STATED:

To the contrary and quoting from the Texas Supreme Court in the case of Tony Gullo Motors vs. Chapa; 212 SW3 299:

"For more than a century, Texas law has not allowed recovery of attorney's fees unless authorized by statute or contract. This rule is so venerable and ubiquitous in American courts it is known as "the American Rule." Absent a contract or statute, trial courts do not have inherent authority to require a losing party to pay the prevailing party's fees. . .. ".

To the same is: In re Natl LLoyds Ins. Com 532 SW3rd 794; Also, the Texas landmark case of: Rohrmoos Venture vs. UTSW DVA Health Care LLP, 578 SW 3rd 469.

And the Texas State Bar Litigation Section 2023 extensive treatise on the subject (entitled: "Attorney Fees Updated") http://texasbarsections.com/wp-content/uploads/2023/02/Attorneys-Fees-2023-Soltero-Simmons-.pdf

 

[Taxing Matters]

My apologies, but once again you must stand corrected. The general rule in Texas for the award of attorney fees IS NOT AS YOU HAVE ABOVE STATED:

I disagree. I did correctly state the general rule used in Texas for contract cases. Rather, in this instance, you are the one who has it wrong. I don't disagree with the general points you specifically stated and the links to the sources you provided. It is true that Texas follows the American rule in that attorney's fees are, in general, only available where allowed by statute or by agreement of the parties. The problem is that you evidently didn't take the next step to ask whether the Texas statutes, unlike those in pretty much every other state, might actually have a provision that flips the usual rule in contract cases. Surprising though it may be (and I was surprised when I first encountered it because it is such a contrast from the rule used in other states), Texas does have just such a statute, TX Civil Practice & Rem Code § 38.001, which provides as follows:

(a) In this section, “organization” has the meaning assigned by Section 1.002, Business Organizations Code.​

(b) A person may recover reasonable attorney's fees from an individual or organization other than a quasi-governmental entity authorized to perform a function by state law, a religious organization, a charitable organization, or a charitable trust, in addition to the amount of a valid claim and costs, if the claim is for:​

(1) rendered services;​

(2) performed labor;​

(3) furnished material;​

(4) freight or express overcharges;​

(5) lost or damaged freight or express;​

(6) killed or injured stock;​

(7) a sworn account; or​

(8) an oral or written contract.​

You are correct that the recent TX bar article on the subject of award of attorneys is quite detailed. I'm going to guess you didn't really look at it very closely because it makes the same point I made earlier about contract cases, though with a lot more detail. On page nine of the article in the discussion of attorney's fees in Part B, which covers contract claims, point two discusses that particular statutory provision. It starts out getting right to the heart of what that Code section does:

Chapter 38 as a basis for fees for plaintiffs in a breach of contract case.​

​

Under one of the most widely used fee statutes in business disputes in Texas, “[a] person may recover reasonable attorney’s fees from an individual or corporation, . . . if the claim is for an oral or written contract.” TEX. CIV. PRAC. & REM. CODE § 38.001(8). “To recover attorney’s fees under Section 38.001, a party represented by an attorney must present the claim, and (1) prevail on a cause of action for which attorney’s fees are recoverable, and (2) recover damages.” Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997). Chapter 38 should be “liberally construed to promote its underlying purpose” of encouraging “contracting parties to pay their just debts and discourage...vexatious, time-consuming and unnecessary litigation.” Ventling v. Johnson, 466 S.W.3d 143, 155 (Tex. 2015).​

​

If attorney’s fees are proper under Section 38.001 and supported by evidence, the trial court “has no discretion to deny” attorney’s fees. Ventling, 466 S.W.3d at 154. Furthermore, if “trial attorney’s fees are mandatory under Section 38.001, then appellate attorney’s fees are also mandatory when proof of reasonable fees is presented.” Id. A zero award for attorney’s fees is appropriate only if the evidence (1) failed to prove either that an attorney’s services were provided or the value of the services provided or (2) affirmatively showed that no attorney’s services were needed or that any services provided were of no value. Upshaw v. Lacado, LLC, 02-20-00031-CV, 2021 WL 3085757, at *14-15 (Tex. App.—Fort Worth July 22, 2021, no pet. h.) (trial court properly disregarded zero verdict in that case, but trial court erred in providing amount without submitting it to the jury, so a new trial on the amount of fees was warranted).​

​

The breach of contract claimant must prevail and recover damages to recover attorney’s fees. Rohrmoos Venture, 578 S.W.3d at 484. The Supreme Court noted that in KB Home, the plaintiff was not a prevailing party eligible for fees under Chapter 38 because the “plaintiff recovered no damages, secured no declaratory or injunctive relief, obtained no consent decree or settlement in its favor and received nothing of value of any kind.” Id. at 485.​

 

[Taxing Matters]

By the way, you may have noticed the difference between the language in the current statute and what the version the Texas Bar quoted in the article. The old version allowed recovery from an individual or corporation. The Texas legislature changed corporation to organization and defined organization to include most other types entities (but then excluding most government entities and charities) after a Texas Court held that attorney's fees could not be recovered from a LLC that was the losing party in the dispute because a LLC isn't a corporation.