There are exceptions to the general rule that a party/litigant must cover its attorney fees in litigation regardless of the outcome. The exceptions are when (1) fees are authorized by statute or contract, (2) very unusual circumstances exist so it may be said equity demands a balance of benefits, (3) the fees result from an individual being involved in collateral litigation or (4) special circumstances exist, which include a party’s frivolous conduct, recklessness or the absence of substantial legal grounds. Arcese v. Daniel Schmitt & Co., 504 S.W.3d 772 (Mo. Ct. App. 2016) (citing Goines v. Mo. Dept. of Soc. Servs., Family Support & Children’s Div., 364 S.W.3d 684, 688 (Mo. Ct. App. 2012).
Based on experience, exception (1) — fees being authorized by statute or contract — is by far the most commonly utilized exception. Nevertheless, it is important to discuss with legal counsel the viability of arguing to the court whether any of the other exceptions apply.