One of the narrow exceptions to the American Rule — that each side is responsible for his/her own attorney fees win or lose — is the collateral litigation exception. “[W]here the natural and proximate result of a breach of duty is to involve the wronged party in collateral litigation,” attorney fees are available. Johnson v….
Legal Articles
Common Fund Exception
The general rule (i.e., the “American Rule”) is that a party to a lawsuit cannot recover attorney fees. This is true even if the party wins the lawsuit. A narrow exception to this rule is the common fund exception. Under this common fund exception to the American Rule, a litigant may recover attorney fees where…
Exceptions to American Rule on Attorney Fees
The “American Rule” in litigation is that all parties, win or lose, are responsible for their own attorney fees. There are five main exceptions to this rule in Missouri: first, when a statute authorizes recovery; second, when a contract permits an award of fees; third, when a party is forced to defendant collateral litigation; fourth,…
Power of Attorney Litigation, Attorney Fees
Power of attorney litigation often occurs in conjunction with trust litigation. While there are similarities between the fiduciary duties of a trustee and attorney-in-fact, there are different statutory regimes and differing duties. As a general matter, a trustee’s fiduciary duties are more stringent and comprehensive than the duties of an attorney-in-fact. Significantly, the power of…
Ordinance Violations, Civil Suits, Zoning & Planning Laws
In Missouri, an individual may not sue a government or municipality for failure to enforce its ordinances. There are some indirect exceptions to this rule. Specifically, an individual may, in certain circumstances, sue another individual civilly for failure to follow zoning or land use ordinances. Under Section 89.491, RSMo, a person aggrieved by certain zoning…
Lanham Act Attorney Fee Awards, Trademarks, Exceptional Cases
The Lanham Act is the federal statute addressing trademark lawsuits. Under the Lanham Act, a court may “in exceptional cases award reasonable attorney fees to the prevailing party.” The US Supreme Court explained, in the patent infringement context: “[A]n ‘exceptional’ case is simply one that stands out from others with respect to the substantive strength…
Attorney Fees, Trust Litigation, Breach of Trust
Attorney fees are not necessarily awarded to every successful litigant, and they may only be awarded when they are provided for by statute or contract. Berry v. Volkswagen Group of America, Inc., 397 S.W.3d 425, 431 (Mo. 2013). Section 456.10-1004, RSMo generally permits a court to award attorney fees to be paid by any party…
Attorney Fee Factors, Litigation
It is rare that a party is awarded attorney fees in litigation. For one, attorney fees are only recoverable in limited situations. Specifically, absent statutory authorization or contractual agreement, each party must bear his or her own attorney fees. David Ranken, Jr. Tech. Inst. v. Boykins, 816 S.W.2d 189, 193 (Mo. 1991). When there is…
Power of Attorney Litigation, Attorney Fees
An attorney-in-fact for a principal under a power of attorney has a fiduciary obligation to act in the best interests of the principal consistent with the terms of the power of attorney document. When an attorney-in-fact breaches his or her obligations, the principal, a family member of the principal or some other successor in interest…
Special Circumstances Exception to Attorney Fees
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…