[BROKERDIRT] Statutes: Reciprocal Attorney Fees; a/ka/ Mutual Attorney Fees or Parallel Attorney Fees
Jack Burton
Does your state have one of these laws? The laws say that if a contract provides that one party recovers its attorney fees if it prevails in a lawsuit on the contract, then the other party or parties may also recover their reasonable attorney fees if they prevail.
I am trying to help to pass such a law and recall that about a dozen states have such provisions, but have misplaced my notes stating which ones.
Can you please respond if your state has one, or if your state has another one that accomplishes the same thing in a different way. Citations are desirable but not required.
The late Pat Randolph gave me the idea for this statute on this list serve back in 2006, when he said that every state ought to have such a law, and I have been working on it ever since. It is such a good idea that we have had no opposition up until now, but opposition has just arisen, and I need this information to support the bill in the legislature.
Many thanks,
Jack Burton
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Michael A. Katz
----- Original Message -----From: Jack BurtonSent: Monday, March 11, 2013 4:07 PMSubject: [BROKERDIRT] Statutes: Reciprocal Attorney Fees; a/ka/ Mutual Attorney Fees or Parallel Attorney FeesDoes your state have one of these laws? The laws say that if a contract provides that one party recovers its attorney fees if it prevails in a lawsuit on the contract, then the other party or parties may also recover their reasonable attorney fees if they prevail.
I am trying to help to pass such a law and recall that about a dozen states have such provisions, but have misplaced my notes stating which ones.
Can you please respond if your state has one, or if your state has another one that accomplishes the same thing in a different way. Citations are desirable but not required.
The late Pat Randolph gave me the idea for this statute on this list serve back in 2006, when he said that every state ought to have such a law, and I have been working on it ever since. It is such a good idea that we have had no opposition up until now, but opposition has just arisen, and I need this information to support the bill in the legislature.
Many thanks,
Jack Burton
John P. Burton 
jbu...@rodey.com
505.954.3906315 Paseo de Peralta
Santa Fe, New Mexico 87501
fax: 505.954.3942Rodey, Dickason, Sloan, Akin & Robb, P.A.
www.rodey.com
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Dati, James
Florida Statutes, Section 57.105 (7) provides:
If a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract. This subsection applies to any contract entered into on or after October 1, 1988.
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A Lawyer's function: To protect his clients from being persuaded by persons whom they do not know to enter into contracts which they do not understand to purchase goods which they do not want with money which they have not got. -- Lord Greene –
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From: BROKERDIRT - Real Estate Brokers Discussion Group [mailto:BROKE...@LISTSERV.UMKC.EDU] On Behalf Of Jack Burton
Sent: Monday, March 11, 2013 4:08 PM
To: BROKE...@LISTSERV.UMKC.EDU
Subject: [BROKERDIRT] Statutes: Reciprocal Attorney Fees; a/ka/ Mutual Attorney Fees or Parallel Attorney Fees
Does your state have one of these laws? The laws say that if a contract provides that one party recovers its attorney fees if it prevails in a lawsuit on the contract, then the other party or parties may also recover their reasonable attorney fees if they prevail.
I am trying to help to pass such a law and recall that about a dozen states have such provisions, but have misplaced my notes stating which ones.
Can you please respond if your state has one, or if your state has another one that accomplishes the same thing in a different way. Citations are desirable but not required.
The late Pat Randolph gave me the idea for this statute on this list serve back in 2006, when he said that every state ought to have such a law, and I have been working on it ever since. It is such a good idea that we have had no opposition up until now, but opposition has just arisen, and I need this information to support the bill in the legislature.
Many thanks,
Jack Burton
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Circular 230 Disclosure: Unless otherwise expressly stated, any federal tax advice contained in this email, including any attachment, is not intended or written to be used, and may not be used, for the purpose of (1) avoiding tax-related penalties under the Internal Revenue Code, or (2) promoting, marketing or recommending to another party any tax-related matter addressed in this email or any attachment.
This message is confidential and may be protected by the attorney-client privilege. If you believe that it has been sent to you in error, please reply to the sender that you received the message in error and then delete it. Thank you.
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Steven A. Sokol
California has such a statute. Civil Code section 1717 provides, in part, as follows:
1717. (a) In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.
Where a contract provides for attorney's fees, as set forth above, that provision shall be construed as applying to the entire contract, unless each party was represented by counsel in the negotiation and execution of the contract, and the fact of that representation is specified in the contract.
Reasonable attorney's fees shall be fixed by the court, and shall be an element of the costs of suit.
Attorney's fees provided for by this section shall not be subject to waiver by the parties to any contract which is entered into after the effective date of this section. Any provision in any such contract which provides for a waiver of attorney's fees is void. [. . .]
Steven A. Sokol
Halling Sokol + Meza LLP
Office (818) 222-4994 / (310) 277-2080
Fax (818) 222-4995 / (310) 277-2084
Notice: This communication and any attachments may contain confidential or privileged information. If you are not a named addressee, or responsible for delivering this communication to a named addressee, you are prohibited from reading, copying, or distributing this communication or any attachments and you are requested to notify the sender by e-mail and to delete all copies immediately.
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Stephen Buehl
Here’s the text of California Civil Code section 1717:
1717. (a) In any action on a contract, where the contract
specifically provides that attorney's fees and costs, which are
incurred to enforce that contract, shall be awarded either to one of
the parties or to the prevailing party, then the party who is
determined to be the party prevailing on the contract, whether he or
she is the party specified in the contract or not, shall be entitled
to reasonable attorney's fees in addition to other costs.
Where a contract provides for attorney's fees, as set forth above,
that provision shall be construed as applying to the entire
contract, unless each party was represented by counsel in the
negotiation and execution of the contract, and the fact of that
representation is specified in the contract.
Reasonable attorney's fees shall be fixed by the court, and shall
be an element of the costs of suit.
Attorney's fees provided for by this section shall not be subject
to waiver by the parties to any contract which is entered into after
the effective date of this section. Any provision in any such
contract which provides for a waiver of attorney's fees is void.
(b) (1) The court, upon notice and motion by a party, shall
determine who is the party prevailing on the contract for purposes of
this section, whether or not the suit proceeds to final judgment.
Except as provided in paragraph (2), the party prevailing on the
contract shall be the party who recovered a greater relief in the
action on the contract. The court may also determine that there is no
party prevailing on the contract for purposes of this section.
(2) Where an action has been voluntarily dismissed or dismissed
pursuant to a settlement of the case, there shall be no prevailing
party for purposes of this section.
Where the defendant alleges in his or her answer that he or she
tendered to the plaintiff the full amount to which he or she was
entitled, and thereupon deposits in court for the plaintiff, the
amount so tendered, and the allegation is found to be true, then the
defendant is deemed to be a party prevailing on the contract within
the meaning of this section.
Where a deposit has been made pursuant to this section, the court
shall, on the application of any party to the action, order the
deposit to be invested in an insured, interest-bearing account.
Interest on the amount shall be allocated to the parties in the same
proportion as the original funds are allocated.
(c) In an action which seeks relief in addition to that based on a
contract, if the party prevailing on the contract has damages
awarded against it on causes of action not on the contract, the
amounts awarded to the party prevailing on the contract under this
section shall be deducted from any damages awarded in favor of the
party who did not prevail on the contract. If the amount awarded
under this section exceeds the amount of damages awarded the party
not prevailing on the contract, the net amount shall be awarded the
party prevailing on the contract and judgment may be entered in favor
of the party prevailing on the contract for that net amount.
Stephen T. Buehl
Gagen McCoy
1030 Main Street, Suite 212
St. Helena, CA 94574
707-963-0909, phone
707-963-5527, fax
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From: BROKERDIRT - Real Estate Brokers Discussion Group [mailto:BROKE...@LISTSERV.UMKC.EDU] On Behalf Of Dati, James
Sent: Monday, March 11, 2013 3:21 PM
To: BROKE...@LISTSERV.UMKC.EDU
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Benny L. Kass
I have also been trying to get our legislative body (the DC city Council) to enact such a law, and also learned about it from Pat years ago. However, with regard to residential real estate sales contracts, the standard form contract that is used in dc, Maryland and parts of Virginia includes paragraph 21 (see attached)
I would also like to see such a law cover landlord-tenant issues; why should only the landlord get attorney fees? If the tenant prevails, the tenant should get fees
So, would appreciate hearing from other Dirters about this issue and specifically, jack what is the opposition now and where is it coming from
Benny Kass
From: BROKERDIRT - Real Estate Brokers Discussion Group [mailto:BROKE...@LISTSERV.UMKC.EDU] On Behalf Of Jack Burton
Sent: Monday, March 11, 2013 4:08 PM
To: BROKE...@LISTSERV.UMKC.EDU
Subject: [BROKERDIRT] Statutes: Reciprocal Attorney Fees; a/ka/ Mutual Attorney Fees or Parallel Attorney Fees
Does your state have one of these laws? The laws say that if a contract provides that one party recovers its attorney fees if it prevails in a lawsuit on the contract, then the other party or parties may also recover their reasonable attorney fees if they prevail.
I am trying to help to pass such a law and recall that about a dozen states have such provisions, but have misplaced my notes stating which ones.
Can you please respond if your state has one, or if your state has another one that accomplishes the same thing in a different way. Citations are desirable but not required.
The late Pat Randolph gave me the idea for this statute on this list serve back in 2006, when he said that every state ought to have such a law, and I have been working on it ever since. It is such a good idea that we have had no opposition up until now, but opposition has just arisen, and I need this information to support the bill in the legislature.
Many thanks,
Jack Burton
| |||||||
Circular 230 Disclosure: Unless otherwise expressly stated, any federal tax advice contained in this email, including any attachment, is not intended or written to be used, and may not be used, for the purpose of (1) avoiding tax-related penalties under the Internal Revenue Code, or (2) promoting, marketing or recommending to another party any tax-related matter addressed in this email or any attachment.
This message is confidential and may be protected by the attorney-client privilege. If you believe that it has been sent to you in error, please reply to the sender that you received the message in error and then delete it. Thank you.
To add or remove from this mailing list, please go to <http://listserv.umkc.edu/scripts/wa.exe?SUBED1=BROKERDIRT&A=1> or send an email message to the address list...@listserv.umkc.edu, with the text SIGNOFF BROKERDIRT in the body of the message.
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Jack Burton
"A court may award costs and attorney's fees to either party that prevails in a civil action based upon any promissory note, written contract, or other writing executed after April 28, 1986, when the provisions of the promissory note, written contract, or other writing allow at least one party to recover attorney's fees. "
Third, the opposition to our bill comes from parties who say that their contracts give them a theoretical right to recover attorney fees, but that, as a practical matter, the courts never award the attorney fees against consumers because the consumers have no money to pay the attorney fees. The opposition asked that consumers be excluded from the bill, so that the bill would apply only to commercial transactions. The sponsor refused to do so. The opposition has threatened to ask the governor to veto the bill if it passes the legislature.
We told the opposition that if they really could not recover their attorney fees, their remedy is to remove the attorney-fee provision from their contracts, not to seek to have the legislation vetoed. We had already put a one-year delayed effective date on the bill to allow everyone time to get their contracts in order. We will tell the governor the same thing.
Fourth, Benny, I believe that provisions of either the Oregon or the Utah law would apply to the landlord-tenant situation if there is a written lease that gives the landlord the right to recover its attorney fees. So would the provisions of the New Mexico bill.
Jack
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Circular 230 Disclosure: Unless otherwise expressly stated, any federal tax advice contained in this email, including any attachment, is not intended or written to be used, and may not be used, for the purpose of (1) avoiding tax-related penalties under the Internal Revenue Code, or (2) promoting, marketing or recommending to another party any tax-related matter addressed in this email or any attachment.
This message is confidential and may be protected by the attorney-client privilege. If you believe that it has been sent to you in error, please reply to the sender that you received the message in error and then delete it. Thank you.
From: BROKERDIRT - Real Estate Brokers Discussion Group [mailto:BROKE...@LISTSERV.UMKC.EDU] On Behalf Of Benny L. Kass
Sent: Tuesday, March 12, 2013 10:04 AM
To: BROKE...@LISTSERV.UMKC.EDU
Subject: Re: [BROKERDIRT] Statutes: Reciprocal Attorney Fees; a/ka/ Mutual Attorney Fees or Parallel Attorney Fees
You are subscribed to the BROKERDIRT list as
JBu...@RODEY.COM.
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Marlyn Hawkins
Washington State does:
|
RCW 4.84.330 Actions on contract or lease which provides that attorneys' fees and costs incurred to enforce provisions be awarded to one of parties — Prevailing party entitled to attorneys' fees — Waiver prohibited. |
In any action on a contract or lease entered into after September 21, 1977, where such contract or lease specifically provides that attorneys'
fees and costs, which are incurred to enforce the provisions of such contract or lease, shall be awarded to one of the parties, the prevailing party, whether he or she is the party specified in the contract or lease or not, shall be entitled to reasonable
attorneys' fees in addition to costs and necessary disbursements.
Attorneys' fees provided for by this section shall not be subject to waiver by the parties to any contract or lease which is entered into after September 21, 1977. Any provision in any such contract or lease which provides for a waiver of attorneys' fees is
void.
As used in this section "prevailing party" means the party in whose favor final judgment is rendered.
Marlyn K. Hawkins
Barker · Martin, P. S.
(206) 381-9806 x125
From: BROKERDIRT - Real Estate Brokers Discussion
Group [mailto:BROKE...@LISTSERV.UMKC.EDU] On Behalf Of Jack Burton
Sent: Monday, March 11, 2013 1:08 PM
To: BROKE...@LISTSERV.UMKC.EDU
Subject: [BROKERDIRT] Statutes: Reciprocal Attorney Fees; a/ka/ Mutual Attorney Fees or Parallel Attorney Fees
Does your state have one of these laws? The laws say that if a contract provides that one party recovers its attorney fees if it prevails in a lawsuit on the contract, then the other party or parties may also recover their reasonable attorney fees if they prevail.
I am trying to help to pass such a law and recall that about a dozen states have such provisions, but have misplaced my notes stating which ones.
Can you please respond if your state has one, or if your state has another one that accomplishes the same thing in a different way. Citations are desirable but not required.
The late Pat Randolph gave me the idea for this statute on this list serve back in 2006, when he said that every state ought to have such a law, and I have been working on it ever since. It is such a good idea that we have had no opposition up until now, but opposition has just arisen, and I need this information to support the bill in the legislature.
Many thanks,
Jack Burton
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Circular 230 Disclosure: Unless otherwise expressly stated, any federal tax advice contained in this email, including any attachment, is not intended or written to be used, and may not be used, for the purpose of (1) avoiding tax-related penalties under the Internal Revenue Code, or (2) promoting, marketing or recommending to another party any tax-related matter addressed in this email or any attachment.
This message is confidential and may be protected by the attorney-client privilege. If you believe that it has been sent to you in error, please reply to the sender that you received the message in error and then delete it. Thank you.
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Bob Magill
One of the purposes of such legislation, I would imagine, is to make sure that when a consumer has a dispute over contracts of adhesion by commercial entities (landlords and others), that those “attorney fee” clauses aren’t used to bludgeon consumers into giving up out of fear of having to pay their own attorneys if they win but having to pay both their and the other side’s attorneys if they lose --- a no win calculus.
The idea of removing consumers from such legislation would defeat that purpose and thus I suspect that those lobbying for the change are being disingenuous in their description of their reasons.
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Benny L. Kass
Sent from my iPhone
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John L Davidson
Perhaps it would make more sense to prohibit attorneys fee provisions in consumer transactions unless they were freely negotiated.
After all, especially in the land lord tenant area, but also consumer finance, do these provisions actually promote the public interest or do they encourage over use of the courts, bad loans, etc.
Best regards,
John
John L. Davidson
John L. Davidson, PC
13975 Manchester Road
Suite 19
Saint Louis, Missouri 63011
636.527.9395 facsimile
jldavidson@ att.net
Pragmaticam Supra Omnia
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Tom McCarthy
Friends:
Here’s a copy of Arizona’s primary contract action loser pays statute (with a second section providing for recover of fees of document preparers as well as lawyers. Who says Arizona isn’t on the cutting edge.
Tom McCarthy
Thomas A. McCarthy, Jr. Thomas A. McCarthy, Jr., P.C.
5540 West Glendale Avenue, Suite B-103
Glendale, Arizona 85301-2550
Telefax: (623) 931-3737
Telephone: (623) 931-3735
Transactional, Business Organization and Estate Planning Law
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From: BROKERDIRT - Real Estate Brokers Discussion Group [mailto:BROKE...@LISTSERV.UMKC.EDU] On Behalf Of Stephen Buehl
Sent: Monday, March 11, 2013 6:03 PM
To: BROKE...@LISTSERV.UMKC.EDU
Subject: Re: [BROKERDIRT] Statutes: Reciprocal Attorney Fees; a/ka/ Mutual Attorney Fees or Parallel Attorney Fees
Here’s the text of California Civil Code section 1717:
Kaufmann, Roy
An update on Benny’s point about landlord-tenant law. The DC Ct App recently reminded the Bar that clauses in residential leases that attempt to shift atty’s fees to tenants will not be enforced.
Roy Kaufmann
From: BROKERDIRT - Real Estate Brokers Discussion Group [mailto:BROKE...@LISTSERV.UMKC.EDU] On Behalf Of Benny L. Kass
Sent: Tuesday, March 12, 2013 12:04 PM
To: BROKE...@LISTSERV.UMKC.EDU
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Jack Burton
From: BROKERDIRT - Real Estate Brokers Discussion Group [mailto:BROKE...@LISTSERV.UMKC.EDU] On Behalf Of Kaufmann, Roy
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