Attorney's fees

Alabama follows the "American rule," whereby attorney fees may be recovered if they are provided for by statute or by contract or if they are called for by special equity, such as in proceedings where the attorney's efforts create a "common fund" out of which fees may be paid.

Its February 20, 2007, order is affirmed to the extent it denies the plaintiffs' motion for an attorney fee incurred in defending the appeal and is reversed to the extent it denies the plaintiffs' motion for postjudgment rental damages. The case is remanded for proceedings consistent with this opinion. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

A contractor, subcontractor, or sub-subcontractor may file a civil action solely against the party contractually obligated for the payment of the amount claimed to recover the amount due plus the interest accrued in accordance with this chapter. If the court finds in the civil action that the owner, contractor, or subcontractor has not made payment in compliance with this chapter, the court shall award the interest specified in this chapter in addition to the amount due. In any such civil action, the party in whose favor a judgement is rendered shall be entitled to recover payment of reasonable attorneys’ fees, court costs and reasonable expenses from the other party.

This chapter does not apply to the following: (1) Residential homebuilders. (2) Improvements to real property intended for residential purposes which consist of 16 or fewer residential units. (3) Contracts, subcontracts, or sub-subcontracts in the amount of ten thousand dollars ($10,000) or less. (4) Contracts with the state or local governments of the State of Alabama.

A contract for a consumer credit transaction with an original amount financed not exceeding three hundred dollars ($300) may not provide for payment by the debtor of attorney’s fees after default by the debtor. A contract for a consumer credit transaction with an original amount financed exceeding three hundred dollars ($300) may provide for the payment by the debtor of reasonable attorney’s fees not exceeding 15 percent of the unpaid debt after default and referral of the contract to an attorney who is not a salaried employee of the creditor. An open-end credit plan may not provide for attorney’s fees when the unpaid balance does not exceed three hundred dollars ($300), but may provide for reasonable attorney’s fees after default by the debtor when the unpaid balance exceeds three hundred dollars ($300). In a consumer credit transaction contract where the original amount financed exceeds ten thousand dollars ($10,000) or the credit transaction is secured by real property, the creditor may require the payment by the debtor of attorney’s fees prior to default by the debtor in connection with the closing of, amendment to, or modification of the credit transaction, provided that the attorney is not a salaried employee of the creditor.

Under Alaska Civil Rule 82, "Except as otherwise provided by law or agreed to by the parties, the prevailing party in a civil case shall be awarded attorney's fees calculated under this rule."

The court shall adhere to the following schedule in fixing the award of attorney's fees to a party recovering a money judgment in a case: Judgment and, if Awarded, Prejudgment Interest Contested With Trial Contested Without Trial Non-Contested First $ 25,000 20% 18% 10% Next $ 75,000 10% 8% 3% Next $400,000 10% 6% 2% Over $500,000 10% 2% 1%

Alaska Civil Rule 82(b)(3) permits a court to vary from the fee schedule described in subsection (b)(1) or (b)(2) if the court determines that variation is warranted based on a variety of factors.

In cases in which the prevailing party recovers no money judgment, the court shall award the prevailing party in a case which goes to trial 30 percent of the prevailing party’s reasonable actual attorney’s fees which were necessarily incurred, and shall award the prevailing party in a case resolved without trial 20 percent of its actual attorney’s fees which were necessarily incurred.

The factors are: (A) the complexity of the litigation; (B) the length of trial; (C) the reasonableness of the attorneys’ hourly rates and the number of hours expended; (D) the reasonableness of the number of attorneys used; (E) the attorneys’ efforts to minimize fees; (F) the reasonableness of the claims and defenses pursued by each side; (G) vexatious or bad faith conduct; (H) the relationship between the amount of work performed and the significance of the matters at stake; (I) the extent to which a given fee award may be so onerous to the non-prevailing party that it would deter similarly situated litigants from the voluntary use of the courts; (J) the extent to which the fees incurred by the prevailing party suggest that they had been influenced by considerations apart from the case at bar . . . ; and (K) other equitable factors deemed relevant.

Alaska Civil Rule 82(c) states that a motion for an award of attorney’s fees “must be filed within 10 days after the date shown in the clerk’s certificate of distribution on the judgment as defined by [Alaska] Civil Rule 58.1.”

(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.

As set forth above, we conclude that contractual attorney fee provisions are generally enforceable in voluntary pretrial dismissal cases except as barred by section 1717. 9 Applying this rule to the facts presented here, we further conclude that the seller defendants are entitled under the attorney fee provision of the purchase agreement to recover as costs the amount they incurred in attorney fees to defend the tort claims asserted against them in this action, and that section 1717 does not bar recovery of these fees. But we *623 also conclude that section 1717 does bar the recovery of attorney fees incurred in the defense of the breach of contract claim. 10 The judgment of the Court of Appeal is reversed and the cause is remanded to that court for further proceedings consistent with this opinion.

If the voluntarily dismissed action also asserts causes of action that do not sound in contract, those causes of action are not covered by section 1717, and the attorney fee provision, depending upon its wording, may afford the defendant a contractual right, not affected by section 1717, to recover attorney fees incurred in litigating those causes of action.

We foresee that upon remand a question may arise regarding defendants’ right to recover as costs attorney fees they incurred to litigate issues common to the contract and tort claims. (Cf. Reynolds Metals Co. v. Alperson, supra, 25 Cal.3d 124, 129-130 .) Because the Court of Appeal did not address this allocation issue, and because the parties did not brief it in this court, we decline to express any opinion here on its proper resolution.

Under the well established "American rule," attorney's fees are not available to a prevailing party unless provided by contract or statute.

Whenever any contract or lease entered into on or after October 1, 1979, to which a consumer is a party, provides for the attorney's fee of the commercial party to be paid by the consumer, an attorney's fee shall be awarded as a matter of law to the consumer who successfully prosecutes or defends an action or a counterclaim based upon the contract or lease.

Except as hereinafter provided, the size of the attorney's fee awarded to the consumer shall be based as far as practicable upon the terms governing the size of the fee for the commercial party. No attorney's fee shall be awarded to a commercial party who is represented by its salaried employee. In any action in which the consumer is entitled to an attorney's fee under this section and in which the commercial party is represented by its salaried employee, the attorney's fee awarded to the consumer shall be in a reasonable amount regardless of the size of the fee provided in the contract or lease for either party.

For the purposes of this section, “commercial party” means the seller, creditor, lessor or assignee of any of them, and “consumer” means the buyer, debtor, lessee or personal representative of any of them. The provisions of this section shall apply only to contracts or leases in which the money, property or service which is the subject of the transaction is primarily for personal, family or household purposes.

Although we conclude that trial courts have discretion to award a prevailing consumer reasonable attorney’s fees pursuant to § 42-150bb when the court determines that it is not practicable to base the award upon the contractual terms governing the commercial party’s recovery, in the present case, the trial court did not make this threshold determination. Accordingly, we vacate the trial court’s award of attor- ney’s fees and remand the case with direction to con- duct a new hearing on the defendant’s motion for attorney’s fees consistent with this opinion.

The holder of any contract or lease entered into on or after October 1, 1979, the subject of which is money, property or services intended to be used primarily for personal, family or household purposes and which contains a provision for payment of attorney's fees of a creditor, seller or lessor, shall not receive, claim or collect any payment for attorney's fees (1) for an attorney who is a salaried employee of such holder or (2) prior to the commencement of a lawsuit.

If a lawsuit in which money damages are claimed is commenced by an attorney who is not a salaried employee of the holder of a contract or lease subject to the provisions of this section, such holder may receive or collect attorney's fees, if not otherwise prohibited by law, of not more than fifteen per cent of the amount of any judgment which is entered.

Under the American Rule and Delaware law, litigants are normally responsible for paying their own litigation costs. 8 An exception to this rule is found in contract litigation that involves a fee shifting provision. 9 In these cases, a trial judge may award the prevailing party all of the costs it incurred during litigation.

Delaware law dictates that, in fee shifting cases, a judge determine whether the fees requested are reasonable. 11 To assess a *246 fee’s reasonableness, case law 12 directs a judge to consider the factors set forth in the Delaware Lawyers’ Rules of Professional Conduct, which, include: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.

In weighing the factors listed in DLRPC 1.5(a), the Chancellor correctly refused to give primary weight to EDIX’s limited trial success.

Such counsel fees shall not in any such action, suit or proceeding, exceed 20 percent of the amount adjudged for principal and interest. Such counsel fees shall not be entered as a part of such judgment unless the note, bond, mortgage, invoice or other instrument of writing sued upon, by the terms thereof, expressly provides for the payment and allowance thereof, except in the cases of mechanic’s liens in which no express agreement shall be necessary in order to entitle the lien holder to reasonable counsel fees.

In all causes of action, suits, matters or proceedings brought for the enforcement of any note, bond, mechanics lien, mortgage, invoice or other instrument of writing, if the plaintiff or lien holder in the action, suit or proceeding recovers judgment in any sum, the plaintiff or lien holder may also recover reasonable counsel fees, which shall be entered as a part of the judgment in the action, suit or proceeding.

Finally, a court also should consider whether the number of hours devoted to litigation was “excessive, redundant, duplicative or otherwise unnecessary.”

CONCLUSION Because we find that the Chancellor adequately assessed the reasonableness of EDIX’s attorneys’ fees and expenses, and because we find that the fees and expenses themselves were reasonable under the circumstances, we, hereby, AFFIRM the Court of Chancery’s judgment that awarded EDIX the full amount of its attorney’s fees and other expenses.

The statute permits recovery of counsel fees but, we emphasize, only those which are “reasonable.” The five percent authorized by § 3912 is a maximum—not a routine amount and certainly not a minimum. When an agreement is made, obviously the extent and expense of collection efforts are unknown. The statute contemplates that the debtor may be called upon to assume such expenses—as long as they are “reasonable” and do not exceed five percent.

We endorse that principle and the rule of procedure stated perceptively by the Chief Justice: “Prima facie, the counsel fee agreed upon by the parties to an obligation will be regarded as reasonable, but subject, nevertheless, to the control of the court which, upon proper objection and showing, will permit only the payment of a reasonable sum measured by the facts and circumstances.” Compare Great American Indemnity Co. v. State, Del.Supr., 32 Del.Ch. 562 , 88 A.2d 426 (1952). See also In re Ebert, D.Del., 140 F.Supp. 597 (1956). This view of the statute aligns Delaware with those jurisdictions which hold that the reasonableness of a stipulated attorney’s fee is a matter of affirmative defense. See Annot. 18 A.L.R.3d 733 . An agreed-on fee within the statutory limit is thus presumed to be reasonable; a defendant has the burden of rebutting that presumption and is entitled to an evidentiary hearing for that purpose. Since the mortgagors did not have a hearing, it follows that the judgment must be reversed under a mandate for further proceedings not inconsistent herewith.

We cannot accept the view that this preferential treatment for plaintiffs may be constitutionally extended to include contractors, subcontractors, or material suppliers. We do not perceive any satisfactory reason to justify the discrimination in their favor. As applied in the present case, this provision of the statute violates the constitutional right of equal protection of the law.

The judgment below must be modified by deducting from the total award the amount of counsel fees allowed in the Court below.

(7) 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.

Based on our analysis of the text of the statute, we conclude that section 57.105(7) allows the debtors to recover reciprocal attorney’s fees.

Under section 57.105(7)’s rule of reciprocity, if a contract provides for attorney’s fees for a party when that party “is required to take any action to enforce the contract,” then attorney’s fees are authorized for the other party if “that party prevails in any action . . . with respect to the contract.”

(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:(a) Was not supported by the material facts necessary to establish the claim or defense; or (b) Would not be supported by the application of then-existing law to those material facts.

In these consolidated cases, we consider whether a unilateral attorney’s fee provision in a credit card contract is made reciprocal to a debtor under section 57.105(7), Florida Statutes (2015), when the debtor prevails in an account stated action brought to collect unpaid credit card debt.

Here, the fees were authorized for the -2- debtors because both conditions required by the statute were met. We approve the result in Bushnell and quash Ham.

The “enforce the contract” language describes what is required of the contractual provision—not of the claim raised by the plaintiff. That portion of the statute is anchored by the phrase “[i]f a contract contains a provision.” It presents a question that can be answered simply by reviewing the provisions of the contract. The “with respect to the contract” language, however, presents a question that requires considering the claims actually litigated and determining the existence of the required relationship between the contract and the litigation in which the other party prevails.

Although the account stated claims brought by Portfolio perhaps could not fairly be said to be claims brought “based on,” “under,” or “pursuant to” the credit contracts, there is nonetheless a clear and direct relationship between the credit contracts and the account stated claims.

Portfolio opposed the motion for fees, arguing in part that because the complaints were based on account stated rather than breach of contract, the contractual fee provisions were not applicable.

(2) At any time in any civil proceeding or action in which the moving party proves by a preponderance of the evidence that any action taken by the opposing party, including, but not limited to, the filing of any pleading or part thereof, the assertion of or response to any discovery demand, the assertion of any claim or defense, or the response to any request by any other party, was taken primarily for the purpose of unreasonable delay, the court shall award damages to the moving party for its reasonable expenses incurred in obtaining the order, which may include attorney’s fees, and other loss resulting from the improper delay. (3) Notwithstanding subsections (1) and (2), monetary sanctions may not be awarded:(a) Under paragraph (1)(b) if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success. (b) Under paragraph (1)(a) or paragraph (1)(b) against the losing party’s attorney if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. (c) Under paragraph (1)(b) against a represented party. (d) On the court’s initiative under subsections (1) and (2) unless sanctions are awarded before a voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned. (4) A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

In any civil action to recover on an open account, account stated, note, bill, negotiable instrument, guaranty, or contract relating to the purchase or sale of goods, wares, merchandise, or services and in any commercial transaction unless otherwise provided by law, the prevailing party shall be allowed a reasonable attorney’s fee to be set by the court, to be taxed and collected as costs.

The term "commercial transaction" is defined to mean all transactions except transactions for personal or household purposes.

Except as provided in subsections (3) and (4) of this section, in any action where the amount pleaded is thirty-five thousand dollars ($35,000) or less, there shall be taxed and allowed to the prevailing party, as part of the costs of the action, a reasonable amount to be fixed by the court as attorney’s fees. For the plaintiff to be awarded attorney’s fees, for the prosecution of the action, written demand for the payment of such claim must have been made on the defendant not less than ten (10) days before the commencement of the action; provided, that no attorney’s fees shall be allowed to the plaintiff if the court finds that the defendant tendered to the plaintiff, prior to the commencement of the action, an amount at least equal to ninety-five percent (95%) of the amount awarded to the plaintiff.

(2) The provisions of subsection (1) of this section shall also apply to any counterclaims, cross-claims or third party claims which may be filed after the initiation of the original action. Except that a ten (10) day written demand letter shall not be required in the case of a counterclaim.

(5) In all instances where a party is entitled to reasonable attorney’s fees and costs under subsection (1), (2), (3) or (4) of this section, such party shall also be entitled to reasonable postjudgment attorney’s fees and costs incurred in attempting to collect on the judgment.

In any civil action, the judge may award reasonable attorney’s fees to the prevailing party or parties when the judge finds that the case was brought, pursued or defended frivolously, unreasonably or without foundation.

This section shall not alter, repeal or amend any statute that otherwise provides for the award of attorney’s fees.

There are “two stages of analysis to determine whether a prevailing party could avail itself of I.C. § 12-120(3): (1) there must be a commercial transaction that is integral to the claim; and (2) the commercial transaction must be the basis upon which recovery is sought.”

[An] award of attorney’s fees is not warranted every time a commercial transaction is remotely connected with the case. Rather, the test is whether the commercial transaction comprises the gravamen of the lawsuit. Attorney’s fees are not appropriate under I.C. § 12–120(3) unless the commercial transaction is integral to the claim, and constitutes the basis upon which the party is attempting to recover.

Following this authority, analysis of the gravamen of Breckenridge’s claims as well as the gravamen of the lawsuit convinces us that attorney fees were improperly awarded here. Breckenridge’s complaint against Cornerstone and Wally alleged a violation of Idaho Code section 45-1506, negligence/negligence per se, and estoppel.

The district court’s judgment awarding attorney fees to Wally and Cornerstone under Idaho Code section 12-120(3) is vacated for the reasons set forth above. No party is entitled to fees or costs on appeal.

Illinois follows the "American rule," which prohibits prevailing parties from recovering their attorney fees from the losing party, absent express statutory or contractual provisions.

If any person or corporation knowingly contracts for or receives, directly or indirectly, by any device, subterfuge or other means, unlawful interest, discount or charges for or in connection with any loan of money, the obligor may, recover by means of an action or defense an amount equal to twice the total of all interest, discount and charges determined by the loan contract or paid by the obligor, whichever is greater, plus such reasonable attorney's fees and court costs as may be assessed by a court against the lender.

"Covenant not to compete" means an agreement between an employer and an employee that is entered into after the effective date of this amendatory Act of the 102nd General Assembly that restricts the employee from performing: (1) any work for another employer for a specified period of time; (2) any work in a specified geographical area; or (3) work for another employer that is similar to employee's work for the employer included as a party to the agreement. "Covenant not to compete" also means an agreement between an employer and an employee, entered into after the effective date of this amendatory Act of the 102nd General Assembly, that by its terms imposes adverse financial consequences on the former employee if the employee engages in competitive activities after the termination of the employee's employment with the employer.

Any agreement, clause, covenant, or waiver that is a unilateral condition of employment or continued employment and requires the employee or prospective employee to waive, arbitrate, or otherwise diminish any existing or future claim, right, or benefit related to an unlawful employment practice to which the employee or prospective employee would otherwise be entitled under any provision of State or federal law, is against public policy, void to the extent it denies an employee or prospective employee a substantive

Any agreement, clause, covenant, or waiver that is a mutual condition of employment or continued employment may include provisions that would otherwise be against public policy as a unilateral condition of employment or continued employment, but only if the agreement, clause, covenant, or waiver is in writing, demonstrates actual, knowing, and bargained-for consideration from both parties, and acknowledges the right of the employee or prospective employee to:

Failure to comply with the provisions of subsection (c) shall establish a rebuttable presumption that the agreement, clause, covenant, or waiver is a unilateral condition of employment or continued employment that is governed by subsection (a) or (b).

Accordingly, statutes which allow for such fees must be strictly construed as they are in derogation of the common law.

Sec. 25. Remedies. In addition to any remedies available under any agreement between an employer and an employee or under any other statute, in a civil action or arbitration filed by an employer (including, but not limited to, a complaint or counterclaim), if an employee prevails on a claim to enforce a covenant not to compete or a covenant not to solicit, the employee shall recover from the employer all costs and all reasonable attorney's fees regarding such claim to enforce a covenant not to compete or a covenant not to solicit, and the court or arbitrator may award appropriate relief.

(1) report any good faith allegation of unlawful employment practices to any appropriate federal, State, or local government agency enforcing discrimination laws; (2) report any good faith allegation of criminal conduct to any appropriate federal, State, or local official; (3) participate in a proceeding related to unlawful employment practices, including any litigation brought by any federal, State, or local government agency or any other person who alleges that the employer has violated any State, federal, or local law, regulation, or rule; (4) make any truthful statements or disclosures required by law, regulation, or legal process; (5) request or receive confidential legal advice; and (6) engage in concerted activity to address work-related issues.

Although the statute provides that "[t]his Act shall be construed liberally to effectuate its purposes and intent fully" (735 ILCS 110/30(b) (West 2008)), this statement of construction applies to the substantive provisions of the Act and not to the fee-shifting provision in section 25.

In our view, the language in section 25 is unambiguous and supports only one interpretation. Attorney fees "incurred in connection with the motion" include only those fees which can specifically be delineated as incurred in connection with the motion to dismiss filed under the Act.

For the foregoing reasons, the judgments of the appellate court and the circuit court are reversed, and the cause is *437 remanded to the circuit court for further proceedings consistent with this opinion. ¶ 70 Appellate court judgment reversed; ¶ 71 circuit court judgment reversed; ¶ 72 cause remanded.

When judgment is recovered upon a written contract containing an agreement to pay an attorney fee, the court shall allow and tax as a part of the costs a reasonable attorney fee to be determined by the court.

The attorney fee allowed in sections 625.22 and 625.23 shall not be taxed in any case unless it appears by affidavit of the attorney that there is not and has not been an agreement between the attorney and the attorney’s client or any other person, express or implied, for any division or sharing of the fee to be taxed.

This limitation does not apply to a practicing attorney engaged with the attorney as an attorney in the cause.

The affidavit shall be filed prior to any attorney fees being taxed. When fees are taxed, they shall be only in favor of a regular attorney and as compensation for services actually rendered in the action.

Iowa Code section 625.22 declares that when attorney fees are permitted under a contract provision, the court is permitted to tax a reasonable amount of those fees as a part of costs.

If action is commenced and the claim paid off before return day, the amount shall be one-half of the sum above provided, and if it is paid after the return day but before judgment, three-fourths of said sum; but no fee shall be allowed in any case if an action has not been commenced, or expense incurred, nor shall any greater sum be allowed, any agreement in the contract to the contrary notwithstanding.

The right to recover attorney fees as costs does not exist at common law. Thorn v. Kelley, 257 Iowa 719, 726 , 134 N.W.2d 545, 548 (1965). In Iowa, they are not allowed “in the absence of a statute or agreement expressly authorizing it. In order [for fees to be] taxed the case must come clearly within the terms of the statute or agreement.”

Because the filing of the affidavit goes to the authority of the court, it may be waived. Klinge, 725 N.W.2d at 16 . Superior Staffing had the opportunity to object but failed to do so. Had Superior Staffing objected, the failure to file the affidavit could have been easily cured. Having failed to object at the district court, Superior Staffing has waived its objection. The attorney’s fees were properly taxed as costs.

Although a party entitled to attorney fees under a contract may be entitled to reasonable attorney fees on appeal, see Beckman v. Kitchen, 599 N.W.2d 699, 702 (Iowa 1999), Agans Brothers has still not filed the affidavit required under Iowa Code section 625.24. Superior Staffing continues to object to the taxing of attorney fees because of this failure. This objection has not been waived and we are, therefore, without authority to tax the attorney’s fees as costs. Agans Brothers’ request for attorney fees on appeal is denied.

Foremost is the rule that a Kansas court may not award attorney fees unless a statute authorizes the award or there is an agreement between the parties allowing attorney fees.

In any action to enforce K.S.A. 16-1803, 16-1804 or 16-1805, and amendments thereto, including arbitration, the court or arbitrator shall award costs and reasonable attorney fees to the prevailing party. Venue of such an action shall be in the county where the real property is located.

The provisions of this act shall not apply to single family residential housing and multifamily residential housing of four units or less. The provisions of this act shall not apply to public works projects. The provisions of this act shall not apply to contracts entered into prior to the effective date of this act.

In Kansas, "in the absence of statutory or contractual authorization, each party to the litigation is responsible for paying his or her own attorney fees." Robinson v. City of Wichita Employees' Retirement Bd. of Trustees, 291 Kan. 266, 279, 241 P.3d 15 (2010).

In reaching its decision to award attorney fees, the district court relied on § 14.4.2 of the A141 design-build agreement, which states: "The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction. The arbitrator or arbitrators shall also be empowered to award reasonable attorney fees, costs and expenses, including expert fees, to the prevailing party." (Emphases added.) However, we cannot disregard the plain language of this section of the agreement that authorizes an award of attorney fees by arbitrators but does not give the same authority to the district court. If Monarch Build had chosen to pursue arbitration to resolve their dispute with the appellants, the "arbitrator or arbitrators" would have been "empowered to award reasonable attorney fees . . . to the prevailing party." But Monarch Build instead chose to file a petition in district court rather than submit the parties' dispute to arbitration. We find nothing in the agreement to authorize a district court to award attorney fees in this case. Although counsel for Monarch Build suggested in oral argument that the district court was also authorized to award attorney fees pursuant to statute, the district court expressly relied upon the "contract" as the basis for its award. Thus, we find that the district court's award of attorney fees should be reversed.

To recover attorney fees under the Kansas Fairness in Private Construction Contract Act, K.S.A. 16-1801 et seq., K.S.A. 16-1806 requires that the party seeking attorney fees show that the action was brought specifically to enforce the provisions of K.S.A. 16-1803, 16-1804, or 16-1805.

Based on the plain and unambiguous language of the Kansas Fairness in Private Construction Contract Act, we find that K.S.A. 16-1806 does not apply in this case because Monarch Build sought to recover damages for breach of contract, unjust enrichment, conversion, and under a lien replacement bond. Monarch Build did not bring an action under K.S.A. 16-1803, 16-1804, or 16-1805.

Louisiana courts have long held that attorney fees are not allowed except where authorized by statute or contract.

Although we have long held that attorney fees are not authorized unless provided by statute, this case is different in that no statute specifically provides damages for fraud in this case. Surely, the legislature did not intend the victim of fraud to go uncompensated for attorney fees, or for that matter, any damages at all, unless he seeks rescission of the entire contract.

Therefore, in order to provide an equitable remedy, it is reasonable and just to assume the legislature intended at least the same type of damages for fraud where rescission of the entire sale is not sought. Accordingly, we find that the Stutts are entitled to attorney fees in this case.

When the object of the performance is a sum of money, damages for delay in performance are measured by the interest on that sum from the time it is due, at the rate agreed by the parties or, in the absence of agreement, at the rate of legal interest as fixed by R.S. 9:3500. The obligee may recover these damages without having to prove any loss, and whatever loss he may have suffered he can recover no more. If the parties, by written contract, have expressly agreed that the obligor shall also be liable for the obligee's attorney fees in a fixed or determinable amount, the obligee is entitled to that amount as well.

The party against whom rescission is granted because of fraud is liable for damages and attorney fees.

A seller who knows that the thing he sells has a defect but omits to declare it, or a seller who declares that the thing has a quality that he knows it does not have, is liable to the buyer for the return of the price with interest from the time it was paid, for the reimbursement of the reasonable expenses occasioned by the sale and those incurred for the preservation of the thing, and also for damages and reasonable attorney fees.

For the reasons stated herein, the judgment of the court of appeal is reversed and the trial court judgment is reinstated. The case is remanded to the trial court for further proceedings regarding any additional attorney fees incurred since the time of that judgment. REVERSED; TRIAL COURT JUDGMENT REINSTATED; REMANDED.

The so-called American Rule provides that parties are responsible for their own attorney fees absent a statutory or contractual provision stating otherwise. Union Mut. Fire Ins. Co. v. Town of Topsham, 441 A.2d 1012, 1017 (Me.1982). However, with respect to insurance contracts, we have declared that an insurer may be liable for an insured's attorney fees in a declaratory judgment action in which the insured or the insurer seeks to establish the insurer's duty to defend and a comparison of the complaint with the policy demonstrates potential liability within the coverage of the policy.

Generally, the prevailing party in a breach of contract action is not entitled to attorney fees absent a provision in the contract requiring payment of such fees.

We are persuaded that we should extend the rule announced in Union Mutual and Gibson to declaratory judgment actions by an insurer seeking a declaration that it has no duty to indemnify. When an insured prevails after incurring legal fees to defend a suit brought by its insurer, policy reasons support the allowance of attorney fees to the insured. Unsuccessful litigation filed by an insurer against its insured subjects the insured to significant costs that may render victory for the insured on the indemnification issue meaningless. In that case, the insured will be in no better position than he would be without having purchased insurance.

Because Levesque incurred attorney fees when he successfully defended against Foremost's declaratory judgment action on the duty to indemnify, the Superior Court properly awarded Levesque attorney fees. The entry is: Judgment affirmed.

Notwithstanding any contrary agreement, the substantially prevailing party in any proceeding to recover any payment within the scope of this chapter must be awarded reasonable attorney's fees in an amount to be determined by the court or arbitrator, together with expenses.

If arbitration or litigation is commenced to recover payment due under the terms of this chapter and it is determined that an owner, contractor or subcontractor has failed to comply with the payment terms of this chapter, the arbitrator or court shall award an amount equal to 1% per month of all sums for which payment has wrongfully been withheld, in addition to all other damages due and as a penalty.

A payment is not deemed to be wrongfully withheld if it bears a reasonable relation to the value of any claim held in good faith by the owner, contractor or subcontractor against which an invoicing contractor, subcontractor or material supplier is seeking to recover payment.

If the court finds, in any action commenced under this section that there has been a violation of section 207 , the petitioner shall, in addition to other relief provided for by this section and irrespective of the amount in controversy, be awarded reasonable attorney's fees and costs incurred in connection with said action.

Any person who purchases or leases goods, services or property, real or personal, primarily for personal, family or household purposes and thereby suffers any loss of money or property, real or personal, as a result of the use or employment by another person of a method, act or practice declared unlawful by section 207 or by any rule or regulation issued under section 207, subsection 2 may bring an action either in the Superior Court or District Court for actual damages, restitution and for such other equitable relief, including an injunction, as the court determines to be necessary and proper. There is a right to trial by jury in any action brought in Superior Court under this section.

At least 30 days prior to the filing of an action for damages, a written demand for relief, identifying the claimant and reasonably describing the unfair and deceptive act or practice relied upon and the injuries suffered, must be mailed or delivered to any prospective respondent at the respondent's last known address. A person receiving a demand for relief, or otherwise a party to any litigation arising from the claim that is the subject of the court action, may make a written tender of settlement or, if a court action has been filed, an offer of judgment.

As discussed below, the court did not err in using the “common core of facts” rule to review F&W’s requested attorney fees and expenses under the prompt payment statute. Furthermore, we affirm the court’s application of the “common core of facts” rule and the resulting award of attorney fees and expenses relating to F&W’s contract claims and GBT’s counterclaims and affirmative defenses, including NHD’s fees and expenses.

We affirm the court’s award of attorney fees and expenses relating to F&W’s contract claims and GBT’s counterclaims and affirmative defenses, including NHD’s fees, as having been generated either directly from or within the “common core of facts” of the prompt payment claims, and we affirm the court’s finding that the requested attorney fees and expenses were reasonable.

as well as the attorney fees and expenses associated with this appeal. The entry is: Judgment affirmed in part and vacated in part. Remanded for further proceedings consistent with this opinion.

The governing statute, section 213(1-A), is clear: Kilroy may not recover attorney fees from Northeast incurred after August 22, 2005, the date of the offer of judgment, because the amount he obtained in court was less than the amount he was offered.

We view the lack of notice as a factor that the court should take into consideration in exercising its discretion regarding the request for attorney fees. The trial court did not abuse its discretion when it found the lack of notice significant and denied fees to Kilroy. The entry is: Judgment affirmed.

The demand requirement of this subsection does not apply if the claim is asserted by way of counterclaim or cross claim.

Nothing in this chapter prevents an owner, contractor or subcontractor from withholding payment in whole or in part under a construction contract in an amount equalling the value of any good faith claims against an invoicing contractor, subcontractor or material supplier, including claims arising from unsatisfactory job progress, defective construction or materials, disputed work or 3rd-party claims.

If the judgment obtained in court by a claimant is not more favorable than any rejected tender of settlement or offer of judgment, the claimant may not recover attorney's fees or costs incurred after the more favorable tender of settlement or offer of judgment.

because to do so would substantially alter a fundamental principle of law deeply ingrained in our common law jurisprudence-that each party bears his own attorney fees in the absence of a statutory or contractual exception. See Church of Nativity, 491 N.W.2d at 10 (Simonett, J., concurring in part and dissenting in part); see also Barr/Nelson, Inc. v. Tonto's, Inc., 336 N.W.2d 46, 53 (Minn. 1983) ("We have long held that attorney fees are not recoverable in litigation unless there is a specific contract permitting or a statute authorizing such recovery.").

Based on these considerations we hold that the Private AG Statute applies only to those claimants who demonstrate that their cause of action benefits the public.

Appellant was defrauded in a single one-on-one transaction in which the fraudulent misrepresentation, while evincing reprehensible conduct, was made only to appellant. A successful prosecution of his fraud claim does not advance state interests and enforcement has no public benefit, and is not a claim that could be considered to be within the duties and responsibilities of the attorney general to investigate and enjoin.

In addition to the remedies otherwise provided by law, any person injured by a violation of any of the laws referred to in subdivision 1 may bring a civil action and recover damages, together with costs and disbursements, including costs of investigation and reasonable attorney's fees, and receive other equitable relief as determined by the court.

In addition to injunctive relief and any other remedies available, a court may award an employee who is enforcing rights under this section reasonable attorney fees.

We have for as long presumed that statutes are consistent with the common law, and if a statute abrogates the common law, the abrogation must be by express wording or necessary implication. See In re Shetsky, 239 Minn. 463, 469 , 60 N.W.2d 40, 45 (1953). We decline to construe legislative intent to abrogate the common law with regard to the attorney fees provision in the absence of a clear purpose to do so.

We conclude that the unlawful practices here, occurring while engaging in a one-on-one transaction for the purchase of a business for operation and not resale, fall within the trade practices prohibited by section 325F.69, subdivision 1.

The attorney general shall investigate violations of the law of this state respecting unfair, discriminatory, and other unlawful practices in business, commerce, or trade, and specifically, but not exclusively, the Nonprofit Corporation Act (sections 317A.001 to 317A.909), the Act Against Unfair Discrimination and Competition (sections 325D.01 to 325D.07), the Unlawful Trade Practices Act (sections 325D.09 to 325D.16), the Antitrust Act (sections 325D.49 to 325D.66), section 325F.67 and other laws against false or fraudulent advertising, the antidiscrimination acts contained in section 325D.67 , the act against monopolization of food products (section 325D.68), the act regulating telephone advertising services (section 325E.39), the Prevention of Consumer Fraud Act (sections 325F.68 to 325F.70), and chapter 53A regulating currency exchanges and assist in the enforcement of those laws as in this section provided.

Except as provided in subsection (2), whenever, by virtue of the provisions of any contract or obligation in the nature of a contract made and entered into at any time after July 1, 1971, one party to the contract or obligation has an express right to recover attorney fees from any other party to the contract or obligation in the event the party having that right brings an action upon the contract or obligation, then in any action on the contract or obligation all parties to the contract or obligation are considered to have the same right to recover attorney fees and the prevailing party in any action, whether by virtue of the express contractual right or by virtue of this section, is entitled to recover reasonable attorney fees from the losing party or parties.

For a contract or obligation negotiated between a private party and a party with condemnation authority over the private party's property, the party with condemnation authority is not entitled to recover attorney fees from the losing party or parties pursuant to subsection (1) in an action to enforce a contract or obligation involving the property.

Pursuant to § 28-3-704(1), MCA, this contractual right to attorney's fees is reciprocal.

Because there is no authority to award attorney fees under the contract, and, as the contract is governed by Michigan law and therefore Montana’s reciprocal attorney fees statute, § 28-3-704(1), MCA, does not apply, the District Court was without legal authority to award attorney fees.

Pursuant to § 28-3-704(1), MCA, this contractual right to attorney fees is reciprocal. The effect of the statute in this case is to give a reciprocal right to attorney fees to Mark and DF Inc.

The general rule in this jurisdiction is that attorney fees may be recovered only in such cases as are provided by statute, or where the uniform course of procedure has been to allow such recovery.

In addition to the grounds mentioned in the order of the trial court, we believe that the provision for attorney fees is void and unenforceable under any circumstances.

J. The Lessor and Lessee each agree that in the event of any dispute or litigation involving this lease, that the prevailing party shall be entitled to recover all costs of suit, including reasonable attorneys fees.

The exception relating to vexatious, unfounded, and dilatory conduct by counsel, amounting to bad faith, established in Holt County Co-op Assn. v. Corkle’s, Inc., 214 Neb. 762 , 336 N.W.2d 312 (1983), has no application here.

We have additionally held that a contract provision requiring that in the event of litigation the prevailing party will be entitled to attorney fees is contrary to public policy and void.

Although we have applied the American rule to invalidate contracts providing for fees to prevailing parties in judicial proceedings, we have never applied the rule to nonjudicial proceedings.

Thus, in the light of a strong policy allowing parties the freedom to contract, we decline to extend the rule to nonjudicial proceedings. Accordingly, we hold that in a nonjudicial proceeding, a contract provision requiring payment of a reasonable attorney fee is not against public policy.

Bennett asks us to revisit our previously established rule that a contractual provision for attorney fees, where such fees are not provided by statute or uniform course of procedure, is against public policy and will not be judicially enforced.

In Quinn we specifically held that a provision in a contract which provided that in the event of litigation involving the contract, the prevailing party shall be entitled to costs, including attorney fees, was contrary to public policy and void.

On any lawsuit of four thousand dollars or less, regardless of whether the claims are liquidated or assigned, the plaintiff may recover costs, interest, and attorney's fees in connection with each claim as provided in this section. If, at the expiration of ninety days after each claim accrued, the claim or claims have not been paid or satisfied, the plaintiff may file a lawsuit for payment of the claim or claims.

when the judgment is over fifty dollars up to four thousand dollars, the attorney's fee shall be ten dollars plus ten percent of the judgment in excess of fifty dollars.

This section does not apply to a cause of action alleging personal injury, regardless of the legal theory asserted.

In addition to an award of damages, the court may award a plaintiff reasonable attorney's fees and costs as the court determines is appropriate.

If public policy of Nebraska precludes awarding an attorney fee as costs otherwise authorized in a contract for which suit is brought, the corollary prohibits an attorney fee awarded as part of the costs in a suit involving a security agreement which provides that the secured party shall recover from the debtor “any and all costs and expenses incurred in recovering possession of the Collateral and incurred in enforcing” the security agreement.

We decline to overrule the line of cases which clearly hold that the attorney fee provision at issue in this case is invalid.

The doctrines of unclean hands, waiver, and estoppel clearly do not apply to the Stewarts’ claim that the attorney fee provision is invalid.

Consequently, we hold that a provision in a security agreement which seeks to impose an attorney fee on a debtor as a part of the costs of suit to enforce the security agreement and its underlying contract is contrary to the public policy of Nebraska and, therefore, void and unenforceable.

Under the circumstances the district court erroneously awarded an attorney fee to First National.

In Security Co. v. Eyer, 36 Neb. 507, 510 , 54 N.W. 838, 839 (1893), the plaintiff attempted to enforce a provision in a note and mortgage for the mortgagee to recover an attorney fee in the event of foreclosure. In holding the provision invalid this court stated:

This court in repeated decisions has held, and it is now the settled law of this state, that stipulations of this character found in contracts executed since June 1, 1879, the date of the taking effect of the act repealing the attorneys’ fees statutes, are invalid and will not be enforced.

In City of Gering v. Smith Co., 215 Neb. 174, 180-81 , 337 N.W.2d 747, 751-52 (1983), we said: Smith, by way of cross-appeal, urges us to enforce the provisions of the City’s contract which provide that in the event either of the parties institutes a lawsuit against the other and the party instituting the suit does not recover all damages sought, the defendant should be entitled to the cost of defense as determined in accordance with the terms of the contract. While this court has recently reexamined its position with regard to the awarding of attorney fees and has, in limited instances, now made an exception (see Holt County Co-op Assn. v. Corkle’s, Inc., 214 Neb. 762 , 336 N.W.2d 312 (1983)), we nevertheless continue to adhere to our longstanding rule first stated by us in Higgins v. Case Threshing Machine Co., 95 Neb. 3, 7 , 144 *444 N.W. 1037, 1039 (1914), wherein we said: “It is the practice in this state to allow the recovery of attorneys’ fees only in such cases as are provided for by law, or where the uniform course of procedure has been to allow such recovery. As a general rule of practice in this state, attorneys’ fees are allowed to the successful party in litigation only where such allowance is provided by statute.” See, also, Gates v. Howell, 211 Neb. 85 , 317 N.W.2d 772 (1982). Thus, absent a statute or evidence of long-standing custom, we are not prepared to extend our prohibition concerning the allowance of attorney fees beyond that which we have recently provided in the Holt County Co-op Assn. v. Corkle’s, Inc., case, even though the contract provides for such fees. We do so on the basis of our earlier holdings to the effect that such contracts are contrary to public policy and therefore invalid.

Because the fee was not collected in a judicial proceeding, the contract provision was valid.

In general, New Jersey disfavors the shifting of attorneys' fees. N. Bergen Rex Transp., Inc. v. Trailer Leasing Co., 158 N.J. 561, 569 , 730 A. 2d 843 (1999). However, "a prevailing party can recover those fees if they are expressly provided for by statute, court rule, or contract." Packard-Bamberger & Co., Inc. v. Collier, 167 N.J. 427, 440 , 771 A. 2d 1194 (2001). When the fee-shifting is controlled by a *428 contractual provision, the provision should be strictly construed in light of our general policy disfavoring the award of attorneys' fees.

We have applied the same test for reasonable attorneys' fees in contract cases that we use in other attorneys' fee award cases in New Jersey. See N. Bergen, supra, 158 N.J. at 570 , 730 A. 2d 843 . In determining the reasonableness of an attorneys' fee award, the threshold issue "is whether the party seeking the fee prevailed in the litigation."

In the present case, plaintiffs satisfied the tests for the award of fees. They prevailed on one of their breach of contract claims, and the contract required defendants to indemnify plaintiffs for their losses in the event of a breach. The next step in determining the amount of the award is to calculate the "lodestar," which is that number of hours reasonably expended by the successful party's counsel in the litigation, multiplied by a reasonable hourly rate.

Although the words "reasonable attorneys' fees and costs" are located in a parenthetical, that does not detract from the intent in the Agreement that attorneys' fees and costs would be recoverable as part of plaintiffs' losses.

If a residential lease agreement provides that the landlord is or may be entitled to recover either attorney's fees or expenses, or both, incurred as a result of the failure of the tenant to perform any covenant or agreement in the lease, or if the lease provides that such costs may be recovered as additional rent, the court shall read an additional parallel implied covenant into the lease. This implied covenant shall require the landlord to pay the tenant either the reasonable attorney's fees or the reasonable expenses, or both, incurred by that tenant as the result of the tenant's successful defense of any action or summary proceeding commenced by the landlord against the tenant, arising out of an alleged failure of the tenant to perform any covenant or agreement in the lease, or as the result of any successful action or summary proceeding commenced by the tenant against the landlord, arising out of the failure of the landlord to perform any covenant or agreement in the lease.

We reverse in part and remand. We hold that the agreement provided for attorneys' fees and costs and that the amount of the fee award is governed by traditional principles applicable to attorneys' fee awards, within the context of the contract. We also hold that the trial court did not abuse its discretion in the amount awarded for prejudgment interest or commit error in the claimed trial deviations.

Beyond the lodestar amount, in cases in which the fee requested far exceeds the damages recovered, "the trial court should consider the damages sought and the damages actually recovered." Packard-Bamberger & Co., supra, 167 N.J. at 446 , 771 A. 2d 1194 . In addition to that proportionality analysis, the court must evaluate the reasonableness of the total fee requested as compared to the amount of the jury award. That is, when the amount actually recovered is less than the attorney's fee request, the court must consider that fact in determining the overall reasonableness of the attorney's fee award.

That is, although enhancement is not a concern, the relationship between the fee requested and the damages recovered is a factor to be considered by the trial court because the notion of proportionality is integral to contract fee-shifting to meet the reasonable expectation of the parties.

If a residential lease agreement provides that the landlord is or may be entitled to recover attorney's fees or expenses, or both from the tenant for any action or summary proceeding arising out of the lease, as described in section 1 of P.L.2013, c.206 (C.2A:18-61.66), the lease clause shall also contain the following provision in a bold typeface in a font size no less than one point larger than the point size of the rest of the lease clause or 11 points, whichever is larger: IF THE TENANT IS SUCCESSFUL IN ANY ACTION OR SUMMARY PROCEEDING ARISING OUT OF THIS LEASE, THE TENANT SHALL RECOVER ATTORNEY'S FEES OR EXPENSES, OR BOTH FROM THE LANDLORD TO THE SAME EXTENT THE LANDLORD IS ENTITLED TO RECOVER ATTORNEY'S FEES OR EXPENSES, OR BOTH AS PROVIDED IN THIS LEASE.

The court shall order the landlord to pay such attorney's fees or expenses, or both, that are actually and reasonably incurred by a tenant who is the successful party in such actions or proceedings to the same extent the landlord is entitled to recover attorney's fees and expenses, or both, as provided in the lease. The court shall have discretion with respect to awards of attorney's fees or expenses, or both, for tenants to the same degree as it has with respect to awards of attorney's fees or expenses, or both, for landlords as provided under the lease either explicitly or implicitly. An order based on this implied covenant shall require the landlord to pay the tenant such costs either as money damages or a credit against future rent, as determined by the tenant. Any waiver of this section shall be void as against public policy. Notwithstanding the foregoing, in an action or summary proceeding for non-payment of rent a tenant who pays all rent currently due and owing on or after the filing of the complaint but prior to entry of a final judgment, and whom the court finds presented no meritorious defense to the complaint other than said payment, shall not be deemed to have successfully defended against the action or summary proceeding for the purposes of the award of attorney's fees or expenses, or both. As used in this act "expenses" shall include expenses directly related to the litigation including, but not limited to, court costs and expenses for witnesses. "Expenses" shall not include personal expenses for travel, reimbursement for missed work time, or child care.

Further, the court must consider the degree of success in determining the reasonableness of the time expended. Furst, supra, 182 N.J. at 23, 860 A. 2d 435 . Thus, when a party has succeeded on only some of its claims for relief, the trial court should reduce the lodestar to account for the limited success.

"Losses" were defined as "all demands, claims, claims for reimbursement, actions or causes of action, assessments, losses, damages, costs, expenses, liabilities, judgments, awards ... and amounts paid in settlement (including reasonable attorneys' fees and costs incident to any of the foregoing). ..."

Words in a contract are to be construed to achieve the apparent purpose of the parties. Although the words might "seem to admit of a larger sense, yet they should be restrained to the particular occasion and to the particular object which the parties had in view” (Robertson v Ongley Elec. Co., 146 NY 20, 23 ). This is particularly true with indemnity contracts. When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed (Levine v Shell Oil Co., 28 NY2d 205, 211 ; Kurek v Port Chester Horn. Auth., 18 NY2d 450, 456 ). The promise should not be found unless it can be clearly implied *492 from the language and purpose of the entire agreement and the surrounding facts and circumstances (Niagara Frontier Transp. Auth. v Tri-Delta Constr. Corp., 107 AD2d 450, 452 , affd for reasons stated in opn of Justice M. Dolores Denman 65 NY2d 1038 ; Margolin v New York Life Ins. Co., 32 NY2d 149, 153 ; Inman v Binghamton Hous. Auth., 3 NY2d 137, 147 ). Inasmuch as a promise by one party to a contract to indemnify the other for attorney’s fees incurred in litigation between them is contrary to the well-understood rule that parties are responsible for their own attorney’s fees, the court should not infer a party’s intention to waive the benefit of the rule unless the intention to do so is unmistakably clear from the language of the promise (see, Tokyo Tanker Co. v Etra Shipping Corp., 142 AD2d 377, 378 ; Carr v First Fed. Sav. & Loan Assn., 132 AD2d 513, 514 ).

The clause in this agreement does not contain language clearly permitting plaintiff to recover from defendant the attorney’s fees incurred in a suit against defendant. On the contrary, it is typical of those which contemplate reimbursement when the indemnitee is required to pay damages on a third-party claim. It obligates defendant to "indemnify and hold harmless [plaintiff] * * * from any and all claims, damages, liabilities, costs and expenses, including reasonable counsel fees” arising out of breach of warranty claims, the performance of any service to be performed, the installation, operation and maintenance of the computer system, infringement of patents, copyrights or trademarks and the like. All these subjects are susceptible to third-party claims for failures in the installation or operation of the system. None are exclusively or unequivocally referable to claims between the parties themselves or support an inference that defendant promised to indemnify plaintiff for counsel fees in an action on the contract.

Our interpretation also is supported by other provisions in the contract which unmistakably relate to third-party claims. Thus, article 9 (D) requires plaintiff to "promptly notify” defendant of "any claim or litigation to which the indemnity set forth in Sub-Paragraph 9 (A) shall apply” and it further provides that defendant "may assume the defense of any such claim or litigation with counsel satisfactory to [plaintiff].” To extend the indemnification clause to require defendant to reimburse plaintiff for attorney’s fees in the breach of contract action against defendant would render these provisions meaningless because the requirement of notice and assumption of *493 the defense has no logical application to a suit between the parties. Construing the indemnification clause as pertaining only to third-party suits affords a fair meaning to all of the language employed by the parties in the contract and leaves no provision without force and effect (see, Corhill Corp. v S. D. Plants, 9 NY2d 595, 599 ).

Plaintiff successfully sued for breach of the contract and the question submitted to us, by leave of the Appellate Division, is whether the contract’s indemnity clause entitles plaintiff to recover counsel fees incurred in prosecuting the action against defendant also. We hold that it does not.

Under the general rule, attorney’s fees are incidents of litigation and a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule (see, Matter of A. G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5 ; Mighty Midgets v Centennial Ins. Co., 47 NY2d 12, 21-22 ; City of Buffalo v Clement Co., 28 NY2d 241, 262-263 ). 2 It is not uncommon, however, for parties to a contract to include a promise by one party to hold the other harmless for a particular loss or damage and counsel fees are but another form of damage which may be indemnified in this way (see, e.g., Breed, Abbott & Morgan v Hulko, supra; Brooklyn Union Gas Co. v Shields Detective Bur., 121 AD2d 587, 590 , appeal denied 69 NY2d 610 ; Rosano’s Farm Store v International Collection Serv., 115 AD2d 195, 196 ; Lavorato v Bethlehem Steel Corp., 91 AD2d 1184, 1185 ; see also, Zissu v Bear, Stearns & Co., 805 F2d 75, 79-80; Atlantic Richfield Co. v Interstate Oil Transp. Co., 784 F2d 106, 115, cert denied 479 US 817 ). In the contract before us the parties provided that defendant must indemnify plaintiff for "reasonable counsel fees”. They failed to define the scope of defendant’s promise, however, and thus, we must interpret the language and determine whether it is limited to attorney’s fees incurred by plaintiff in actions involving third parties or also includes those incurred in prosecuting a suit against defendant for claims under the contract.

One method of providing for attorney’s fees in actions between the parties is to provide for payment as a form of liquidated damages. Such fees are enforceable if they are not unconscionable (see, Equitable Lbr. Corp. v IPA Land Dev. Corp., 38 NY2d 516 ).

In Breed, Abbott defendant Hulko contracted to purchase a home from another. Plaintiff acted as escrow agent for the parties, holding Hulko’s down payment for delivery to the seller if he defaulted. The contract contained an indemnification agreement which provided that Breed, Abbott would not be liable to either party to the sale " 'for any act or omission except for bad faith or gross negligence’ ” and that it would be indemnified and held " 'harmless from any claims, damages, losses or expenses arising in connection [^herewith.’ ” (Breed, Abbott & Morgan v Hulko, 139 AD2d 71, 72 , supra.) Hulko defaulted on the contract of sale and Breed, Abbott delivered the down payment to the sellers. Hulko then sued Breed, Abbott, claiming that its release to the sellers of the escrow down payment was wrongful. Breed, Abbott prevailed and subsequently commenced an action to recover the legal expenses it incurred in defending against Hulko’s claim. The Appellate Division reversed Supreme Court’s dismissal of the complaint and we affirmed, finding that defendant Hulko had agreed to indemnify plaintiff for the legal expenses it incurred in resisting his claims ( 74 NY2d 686, 687 , supra). Our affirmance in Breed, Abbott did not signal any departure from settled rules. We affirmed the Appellate Division’s decision on the narrow ground that the intent of the parties was manifest: if the promise to indemnify Breed, Abbott did not extend to " 'legal expenses incurred in defending against an action by one of the parties alleging misconduct by the escrowee which resulted in a determination in favor of the escrowee’ ”, it was " 'difficult, if not impossible, to ascertain for what it was that the parties had agreed to indemnify the escrowee.’ ” ( 74 NY2d, at 687 , quoting from 139 AD2d, at 73 .)

In this case, however, the potential existed for third-party actions seeking lost profits, personal injury or property damages from plaintiff due to a malfunction of the computer resulting from defendant’s improper installation or design. The indemnity clause clearly covers those circumstances and permitted plaintiff to seek indemnity from defendant for the counsel fees incurred in defending such claims. Accordingly, the order of the Appellate Division should be reversed, with costs, defendant’s motion for summary judgment granted and the certified question answered in the negative.

Thus the general rule has long obtained that a successful litigant may not recover attorneys’ fees, whether as costs or as an item of damages, unless such a recovery is expressly authorized by statute.

The sole question presented by this appeal is whether a contract for the lease of specific goods may be deemed “evidence of indebtedness” within the meaning of G.S. 6-21.2. We hold that it may and reverse the decision of the Court of Appeals to the contrary.

we hold that the term “evidence of indebtedness” as used in G.S. 6-21.2 has reference to any printed or written instrument, signed or otherwise executed by the obligor(s), which evidences on its face a legally enforceable obligation to pay money.

Obligations to pay attorneys' fees upon any note, conditional sale contract or other evidence of indebtedness, in addition to the legal rate of interest or finance charges specified therein, shall be valid and enforceable, and collectible as part of such debt, if such note, contract or other evidence of indebtedness be collected by or through an attorney at law after maturity, subject to the following provisions:

(1) If such note, conditional sale contract or other evidence of indebtedness provides for attorneys' fees in some specific percentage of the "outstanding balance" as herein defined, such provision and obligation shall be valid and enforceable up to but not in excess of fifteen percent (15%) of said "outstanding balance" owing on said note, contract or other evidence of indebtedness.

If such note, conditional sale contract or other evidence of indebtedness provides for the payment of reasonable attorneys' fees by the debtor, without specifying any specific percentage, such provision shall be construed to mean fifteen percent (15%) of the "outstanding balance" owing on said note, contract or other evidence of indebtedness.

(3) As to notes and other writing(s) evidencing an indebtedness arising out of a loan of money to the debtor, the "outstanding balance" shall mean the principal and interest owing at the time suit is instituted to enforce any security agreement securing payment of the debt and/or to collect said debt. (4) As to conditional sale contracts and other such security agreements which evidence both a monetary obligation and a security interest in or a lease of specific goods, the "outstanding balance" shall mean the "time price balance" owing as of the time suit is instituted by the secured party to enforce the said security agreement and/or to collect said debt.

Reciprocal attorneys' fees provisions in business contracts are valid and enforceable for the recovery of reasonable attorneys' fees and expenses only if all of the parties to the business contract sign the contract by hand or with one of the following:

Business contract. - A contract entered into primarily for business or commercial purposes. The term does not include a consumer contract, an employment contract, or a contract to which a government or a governmental agency of this State is a party.

(2) Consumer contract. - A contract entered into by one or more individuals primarily for personal, family, or household purposes. (3) Employment contract. - A contract between an individual and another party to provide personal services by that individual to the other party, whether the relationship is in the nature of employee-employer or principal-independent contractor.

(4) Reciprocal attorneys' fees provisions. - Provisions in any written business contract by which each party to the contract agrees, in the manner set out in subsection (b) of this section, upon the terms and subject to the conditions set forth in the contract that are made applicable to all parties, to pay or reimburse the other parties for attorneys' fees and expenses incurred by reason of any suit, action, proceeding, or arbitration involving the business contract.

In any suit, action, proceeding, or arbitration primarily for the recovery of monetary damages, the award of reasonable attorneys' fees shall not exceed the amount in controversy.

Even in the face of a carefully drafted contractual provision indemnifying a party for such attorneys’ fees as may be necessitated by a successful action on the contract itself, our courts have consistently refused to sustain such an award absent statutory authority therefor.

There is no contention that plaintiff was not afforded *295 the requisite notice under G.S. 6-21.2(5). Under these circumstances, we see no reason why the obligation by plaintiff to pay attorneys’ fees incurred by defendant upon collection of the debts arising from the contract itself should not be enforced to the extent allowed by G.S. 6-21.2. Accordingly, the decision of the Court of Appeals vacating Judge Thornburg’s award to defendant of attorneys’ fees should be and is hereby Reversed.

(5) The holder of an unsecured note or other writing(s) evidencing an unsecured debt, and/or the holder of a note and chattel mortgage or other security agreement and/or the holder of a conditional sale contract or any other such security agreement which evidences both a monetary obligation and a security interest in or a lease of specific goods, or his attorney at law, shall, after maturity of the obligation by default or otherwise, notify the maker, debtor, account debtor, endorser or party sought to be held on said obligation that the provisions relative to payment of attorneys' fees in addition to the "outstanding balance" shall be enforced and that such maker, debtor, account debtor, endorser or party sought to be held on said obligation has five days from the mailing of such notice to pay the "outstanding balance" without the attorneys' fees. If such party shall pay the "outstanding balance" in full before the expiration of such time, then the obligation to pay the attorneys' fees shall be void, and no court shall enforce such provisions.

Notwithstanding the foregoing, however, if debtor has defaulted or violated the terms of the security agreement and has refused, on demand, to surrender possession of the collateral to the secured party as authorized by G.S. 25-9-609, with the result that said secured party is required to institute an ancillary claim and delivery proceeding to secure possession of said collateral; no such written notice shall be required before enforcement of the provisions relative to payment of attorneys' fees in addition to the outstanding balance.

(1) An electronic signature, as defined in G.S. 66-312, if the party's electronic signature originates from an affirmative action on the part of the party to evidence acceptance and execution such as typing the party's signature or writing the party's signature with a finger or stylus on a touchscreen to indicate acceptance and execution. (2) A manual signature that is delivered by an electronic reproductive image thereof.

If a business contract governed by the laws of this State contains a reciprocal attorneys' fees provision, the court or arbitrator in any suit, action, proceeding, or arbitration involving the business contract may award reasonable attorneys' fees in accordance with the terms of the business contract. In determining reasonable attorneys' fees and expenses under this section, the court or arbitrator may consider all relevant facts and circumstances, including, but not limited to, the following: (1) The amount in controversy and the results obtained. (2) The reasonableness of the time and labor expended, and the billing rates charged, by the attorneys. (3) The novelty and difficulty of the questions raised in the action. (4) The skill required to perform properly the legal services rendered. (5) The relative economic circumstances of the parties. (6) Settlement offers made prior to the institution of the action. (7) Offers of judgment pursuant to G.S. 1A-1, Rule 68, and whether judgment finally obtained was more favorable than these offers. (8) Whether a party unjustly exercised superior economic bargaining power in the conduct of the action. (9) The timing of settlement offers. (10) The amounts of settlement offers as compared to the verdict. (11) The extent to which the party seeking attorneys' fees prevailed in the action. (12) The amount of attorneys' fees awarded in similar cases. (13) The terms of the business contract.

Reasonable attorneys' fees and expenses are not governed by (i) any statutory presumption or provision in the business contract providing for a stated percentage of the amount of the attorneys' fees or (ii) the amount recovered in other cases in which the business contract contains reciprocal attorneys' fees provisions.

(e) Nothing in this section makes valid or invalid attorneys' fees provisions in consumer contracts or in any note, conditional sale contract, or other evidence of indebtedness that is otherwise governed by G.S. 6-21.2. If the business contract is also a note, conditional sale contract, or other evidence of indebtedness that is otherwise governed by G.S. 6-21.2, then the parties that are entitled to recover attorneys' fees and expenses may elect to recover attorneys' fees and expenses either under this section or G.S. 6-21.2 but may recover only once for the same attorneys' fees and expenses.

(g) Nothing in this section makes valid or invalid attorneys' fees provisions in a contract of insurance governed by Chapter 58 of the General Statutes.

Except as provided in subsection 2, the amount of fees of attorneys in civil actions must be left to the agreement, express or implied, of the parties.

In civil actions the court shall, upon a finding that a claim for relief was frivolous, award reasonable actual and statutory costs, including reasonable attorney's fees to the prevailing party.

Such costs must be awarded regardless of the good faith of the attorney or party making the claim for relief if there is such a complete absence of actual facts or law that a reasonable person could not have thought a court would render judgment in that person's favor, providing the prevailing party has in responsive pleading alleged the frivolous nature of the claim. This subsection does not require the award of costs or fees against an attorney or party advancing a claim unwarranted under existing law, if it is supported by a good-faith argument for an extension, modification, or reversal of the existing law.

Any provision contained in any note, bond, mortgage, security agreement, or other evidence of debt for the payment of an attorney's fee in case of default in payment or in proceedings had to collect such note, bond, or evidence of debt, or to foreclose such mortgage or security agreement, is against public policy and void.

Parties are generally free to enter into an agreement for payment of attorney’s fees in a civil action. See N.D.C.C. § 28-26-01(1). However, provisions in debt instruments providing for payment of attorney’s fees are void under § 28-26-04, which states: Any provision contained in any note, bond, mortgage, security agreement, or other evidence of debt for the payment of an attorney’s fee in case of default in payment or in proceedings had to collect such note, bond, or evidence of debt, or to foreclose such mortgage or security agreement, is against public policy and void.

We have previously held that “‘evidence of debt,’ as contemplated by N.D.C.C. § 28-26-04, relates to a written instrument importing on its face the existence of debt, an acknowledgment of that debt, and a promise of payment.” Candee v. Candee, 2019 ND 94, ¶ 11, 925 N.W.2d 423 (quoting T.F. James Co. v. Vakoch, 2001 ND 112, ¶ 16, 628 N.W.2d 298). “The general term, ‘evidence of debt,’ ‘despite its seeming breadth,’ includes only instruments similar to those specifically listed in N.D.C.C. § 28-26-04: a note, bond, mortgage, or security agreement.” Id. (Emphasis in original).

The guaranty here was executed at the same time as the lease. There was no existing debt when the lease or guaranty was executed, and the guaranty was not a promise to pay an existing debt. The provision for attorney’s fees in the personal guaranty agreement is not void under N.D.C.C. § 28-26-04. 7 Appellees’ remaining arguments are without merit and we decline to address them. We reverse and remand for an appropriate award of attorney’s fees.

However, there are exceptions to this x-ule. Attorney fees may be awarded when a statute or an enforceable contract specifically provides for the losing party to pay the prevailing party’s attorney fees, Nottingdale, 33 Ohio St.3d at 34 , 514 N.E.2d 702 , or when the prevailing pax-ty demonstrates bad faith on the part of the unsuccessful litigant, Pegan v. Crawmer (1997), 79 Ohio St.3d 155, 156

The presence of equal bargaining power and the lack of indicia of compulsion or dux-ess are characteristics of agreements that *549 are entered into freely.

Accordingly, we hold that provisions contained within a declaration of condominium ownership and/or condominium by-laws requiring that a defaulting unit owner be responsible for the payment of attorney fees incurred by the unit owners’ association in either a collection action or a foreclosure action against the defaulting unit owner for unpaid common assessments are enforceable and not void as against public policy so long as the fees awarded are fair, just and reasonable as determined by the trial court upon full consideration of all of the circumstances of the case. We, therefore, reverse the judgment of the court of appeals and reinstate the judgment of the trial court. Judgment reversed.

Ohio has long adhered to the “American rule” with respect to recovery of attorney fees: a prevailing party in a civil action xnay not recover attorney fees as a part of the costs of litigation.

When the right to recover attox-ney fees arises from a stipulation in a contract, the rationale permitting recovery is the “fundamental right to contract freely with the expectation that the tex-ms of the contract will be enforced.”

This is a case of first impression requiring us to determine whether two parties, in a noncommercial transaction, may lawfully contract to require, in a suit between them, the payment by the unsuccessful party of the prevailing party’s attorney fees.

In contrast, agreements to pay attorney fees in a “contract of adhesion, where the party with little or no bargaining power has no realistic choice as to terms,” are not enforceable.

Similarly, contracts for the payment of attorney fees upon the default of a debt obligation are void and unenforceable. In the context of foreclosure actions, we stated in Leavans v. Ohio Natl. Bank (1893), 50 Ohio St. 591 , 34 N.E. 1089 , syllabus:

In other words, a provision in a mortgage or promissory note that awards attorney fees upon the enforcement of the lender’s rights when the borrower defaults, such as a foreclosure action that has proceeded to judgment, is unenforceable. The rationale for this rule as articulated in Leavans , and reaffirmed in Miller , is that “the stipulation to pay attorney fees operates as a penalty to the defaulting party and encourages litigation to establish either a breach of the agreement or a default on the obligation.”

Based on the foregoing, we hold that a provision in a residential-mortgage contract requiring a defaulting borrower to pay a lender’s reasonable attorney fees as a condition of terminating pending lender-initiated foreclosure proceedings on a defaulted loan and reinstating the loan is not contrary to Ohio statutory or decisional law or against Ohio public policy. {¶ 46} The judgment of the court of appeals is reversed as to appellant Wilborn and is affirmed in all other aspects.

In any action or suit in which a claim is made based on a contract that specifically provides that attorney fees and costs incurred to enforce the provisions of the contract shall be awarded to one of the parties, the party that prevails on the claim shall be entitled to reasonable attorney fees in addition to costs and disbursements, without regard to whether the prevailing party is the party specified in the contract and without regard to whether the prevailing party is a party to the contract. (2) Attorney fees provided for in a contract described in subsection (1) of this section shall not be subject to waiver by the parties to any such contract that is entered into after September 9, 1971. Any provision in such a contract that provides for a waiver of attorney fees is void.

As used in this section and ORS 20.097, “contract” includes any instrument or document evidencing a debt.

In any action or suit in which one or more claims are asserted for which an award of attorney fees is either authorized or required, the prevailing party on each claim shall be determined as provided in this section. The provisions of this section apply to all proceedings in the action or suit, including arbitration, trial and appeal. (2) For the purposes of making an award of attorney fees on a claim, the prevailing party is the party who receives a favorable judgment or arbitration award on the claim.

Notwithstanding subsection (2) of this section, upon appeal of a judgment in an action or suit in which one or more claims are asserted for which the prevailing party may receive an award of attorney fees, the appellate court in its discretion may designate as the prevailing party a party who obtains a substantial modification of the judgment. (4) This section does not create a claim to an award of attorney fees in any action or suit in which the court or arbitrator is not otherwise authorized or required to make an award of attorney fees by contract or other law.

A prevailing party in a civil action relating to an express or implied contract is entitled to an award of attorney fees that is authorized by the terms of the contract or by statute, even though the party prevails by reason of a claim or defense asserting that the contract is in whole or part void, a claim or defense asserting that the contract is unenforceable or a claim or defense asserting that the prevailing party was not a party to the contract.

In any action or suit on a contract by an assignee of any right under that contract, the maker of that contract and the plaintiff in the action or suit on that contract shall be severally liable for any attorney fees and costs that may be awarded to the defendant in the action.

The court may award a reasonable attorney’s fee to the prevailing party in any civil action arising from a breach of contract in which the court: (1) Finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party; or (2) Renders a default judgment against the losing party.

The costs of the proceedings shall in every instance be within the discretion of the court as between any of the parties. Costs shall include legal interest, costs of advertising, and all other reasonable expenses of proceeding with the enforcement of the action. The court, in its discretion, may also allow for the award of attorneys’ fees to the prevailing party.

If: (a) a claim of misappropriation is made in bad faith; or (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.

In any action brought by a person under this section, the court may award, in addition to the relief provided in this section, reasonable attorney’s fees and costs.

This Court “staunchly adheres to the American rule that requires each litigant to pay its own attorney’s fees absent statutory authority or contractual liability.”

The words “shall be” and “entitled to” mandate an award of attorneys’ fees and costs where a party prevails on a claim (or claims) arising from or relating to the contract.

Consequently, the trial justice was divested of discretion with respect to determining an entitlement to attorneys’ fees; the trial justice was required to resolve the question of which party was the prevailing party.

While most cases containing language similar to that found in Section 10 of the contract before us will result in the determination of one prevailing party, there may be compelling circumstances which justify a finding that both, or neither, of the parties may be considered to have prevailed.

Thus, while we agree with the trial justice that Vinagro’s unjust-enrichment claim does not arise from the contract, it nevertheless is inextricably related to the contract.

For the reasons stated herein, we vacate the judgment of the Superior Court.

The “issue of whether there exists a basis for awarding attorneys’ fees generally is legal in nature, and therefore our review of such a ruling is de novo.”

Although this Court has not clearly articulated the standard for finding whether a justiciable issue of fact exists when considering an award of attorneys’ fees under § 9-1-45

As noted, Section 10 of the contract provides that “[i]f any party to this Contract brings a cause of action against the other party arising from or relating to the Contract, the prevailing party * * * shall be entitled to recover its reasonable attorney fees and court costs.”

The Utah Supreme Court stated that, in determining which party is the prevailing party, appropriate considerations for the trial court include, but are not limited to: “(1) contractual language, (2) the number of claims, counterclaims, cross-claims, etc., brought by the parties, (3) the importance of the claims relative to each other and their significance in the context of the lawsuit considered as a whole, and (4) the dollar amounts attached to and awarded in connection with the various claims.”

Therefore, we hold that the trial justice erred in finding that neither party prevailed in the litigation despite the existence of a mandatory fee-shifting provision without a more comprehensive, fact-intensive, and case-specific analysis.

“If it is determined that there is an adequate legal basis for such an award, then we review a trial justice’s decision awarding or denying attorneys’ fees for an abuse of discretion.”

Accordingly, we vacate the trial justice’s findings in this regard and remand the matter to the Superior Court for a determination of the prevailing party by considering: “(1) [the] contractual language[;] (2) the number of claims, counterclaims, cross-claims, etc., brought by the parties[;] (3) the importance of the claims relative to each other and their significance in the context of the lawsuit considered as a whole[;] and (4) the dollar amounts attached to and awarded in connection with the various claims

Justice Robinson, concurring in part and dissenting in part. I am pleased to concur in Part III.A of the Court’s carefully written opinion (entitled “Judgment as a Matter of Law”). However, I respectfully but unreservedly dissent from Part III.B of that opinion (entitled “Attorneys’ Fees”)

IV Conclusion For the foregoing reasons, we affirm the amended judgment of the Superior Court. The record may be returned to the Superior Court.

The compensation of attorneys and counselors at law for services rendered in civil and criminal actions and special proceedings is left to the agreement, express or implied, of the parties.

However, attorneys' fees may be taxed as disbursements if allowed by specific statute. The court, if appropriate, in the interests of justice, may award payment of attorneys' fees in all cases of divorce, annulment of marriage, determination of paternity, custody, visitation, separate maintenance, support, or alimony. The court may award the fees before or after judgment or order. The court may award attorneys' fees from trusts administered through the court as well as in probate and guardianship proceedings. Attorneys' fees may be taxed as disbursements on mortgage foreclosures either by action or by advertisement.

But an award of attorneys’ fees is allowed when authorized by the parties’ agreement or by statute.

South Dakota follows the American rule of attorneys’ fees, which provides that each party is responsible for their own fees.

Thus, even if no statute authorizes an award of attorneys’ fees, ‘they are recoverable if the parties’ contract so provides.’

(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.

In this section, "organization" has the meaning assigned by Section 1.002 , Business Organizations Code.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by: Acts 2021, 87th Leg., R.S., Ch. 665 (H.B. 1578 ), Sec. 1, eff. September 1, 2021.

To recover attorney's fees under this chapter: (1) the claimant must be represented by an attorney; (2) the claimant must present the claim to the opposing party or to a duly authorized agent of the opposing party; and (3) payment for the just amount owed must not have been tendered before the expiration of the 30th day after the claim is presented.

This chapter does not apply to a contract issued by an insurer that is subject to the provisions of: (1) Title 11, Insurance Code; (2) Chapter 541 , Insurance Code; (3) the Unfair Claim Settlement Practices Act (Subchapter A , Chapter 542 , Insurance Code); or (4) Subchapter B , Chapter 542 , Insurance Code.

The version of section 38.001 in force when SOMMA commenced this action provided that a “person” asserting a claim for breach of contract could recover “reasonable attorney’s fees from an individual or corporation.” The Legislature amended the statute in 2021 to include other forms of business organizations, but the amendment applies only to those actions initiated after the amendment became effective in September 2021.

To recover attorney's fees under this chapter: (1) the claimant must be represented by an attorney; (2) the claimant must present the claim to the opposing party or to a duly authorized agent of the opposing party; and (3) payment for the just amount owed must not have been tendered before the expiration of the 30th day after the claim is presented.

It is presumed that the usual and customary attorney's fees for a claim of the type described in Section 38.001 are reasonable. The presumption may be rebutted.

The court may take judicial notice of the usual and customary attorney's fees and of the contents of the case file without receiving further evidence in: (1) a proceeding before the court; or (2) a jury case in which the amount of attorney's fees is submitted to the court by agreement.

Sec. 38.005. LIBERAL CONSTRUCTION. This chapter shall be liberally construed to promote its underlying purposes.

This chapter does not apply to a contract issued by an insurer that is subject to the provisions of: (1) Title 11, Insurance Code; (2) Chapter 541 , Insurance Code; (3) the Unfair Claim Settlement Practices Act (Subchapter A , Chapter 542 , Insurance Code); or (4) Subchapter B , Chapter 542 , Insurance Code.

A necessary requisite for the recovery of attorney's fees is the presentment of the contract claim to the opposing party and the failure of that party to tender performance.

The purpose of the requirement for presentation of a claim is to allow the person against whom it is asserted an opportunity to pay a claim within 30 days after they have notice of the claim without incurring an obligation for attorney's fees. No particular form of presentment is required.

Various forms of presentment have been held to be sufficient to support an award of attorney's fees under art. 2226. In Huff v. Fidelity Union Life Ins. Co., supra , both oral and written demands were held to be sufficient.

The letter sent by the Veterans Land Board to the Joneses and the transcript of the telephone conversation between Mrs. Kelley and Mr. Jones establish presentment as a matter of law. Mr. Jones admitted he received the letter, and the contents of the letter and the telephone transcript were never controverted. During the telephone conversation Mrs. Kelley made it very clear that the Kelleys were insisting that the sale go through and were in the process of contacting an attorney. [4] *101 The judgment of the court of civil appeals is reformed to provide for attorney's fees in the amount found by the jury, and as reformed is affirmed.

The Kelleys' Third Amended Petition specifically pleads: "plaintiffs Kelley made demand on defendants to convey the property made the subject of this lawsuit more than 30 days preceding the filing of this action, but said land was not conveyed...." Thus, there were pleadings to support the jury's award of attorney's fees.

(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.

In Utah, attorney fees are awardable only if authorized by statute or by contract.” Dixie State Bank v. Bracken, 764 P.2d 985, 988 (Utah 1988).

A court may award costs and attorney 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 fees.

the award of attorney fees is allowed only in accordance with the terms of the contract,” R.T. Nielson Co. v. Cook, 2002 UT 11, ¶ 17, 40 P.3d 1119, and the contract provision must be “broad enough in scope to cover fees incurred in this . . . action

Invoking Utah’s reciprocal fees statute, see UTAH CODE § 78B-5-826, plaintiffs argued that because TNE would have been able to recover fees under paragraph 4 had it prevailed in the litigation, plaintiffs (as the prevailing parties) were entitled to recover their fees from TNE.

Plaintiffs assert here, as they did below, that paragraph 4 of the TNE trust deed allows for an attorney fees award to the prevailing party. That paragraph provides that, to protect the security of the TNE trust deed, the Muir Partnership agrees [t]o appear in and defend any action or proceeding purporting to affect the [apartments], the title to said [apartments], or the rights or powers of [TNE]; and should [TNE] elect to also appear in or defend any such action or proceeding, to pay all costs and expenses, including . . . attorney’s fees in a reasonable sum incurred by [TNE].

This action was not one where the Muir Partnership and TNE both “appear[ed] in and defend[ed]” the security of the TNE trust deed. Indeed, we agree with the district court that the Partnership could not appear in and defend against its own lawsuit seeking to declare the trust deed invalid. Because “any such action” is not “broad enough in scope to cover fees incurred in this . . . action,” see Loosle, 858 P.2d at 1003, paragraph 4 is not a legal hook for a fees award under the reciprocal fees statute. Thus, the district court did not err in denying plaintiffs’ request for an attorney fees award.

Under the so-called “American rule,” a prevailing party generally cannot recover attorneys’ fees from the losing party. Lee v. Mulford, 269 Va. 562, 565, 611 S.E.2d 349, 350 (2005). However, parties are free to draft and 12 adopt contractual provisions shifting the responsibility for attorneys’ fees to the losing party in a contract dispute.

Where, as here, the contracts provided for attorney’s fees, but did not fix the amount thereof, a fact finder is required to determine from the evidence what are reasonable fees under the facts and circumstances of the particular case. See Beale v. King, 204 Va. 443, 446 , 132 S.E.2d 476, 478 (1963). In determining a reasonable fee, the fact finder should consider such circumstances as the time consumed, the effort expended, the nature of the services rendered, and other attending circumstances. See id. Ordinarily, expert testimony will be required to assist the fact finder.

The party claiming the legal fees has the burden of proving prima facie that the fees are reasonable and were necessary.

Upon remand, each party will have the burden of establishing, as an element of its prima facie case, that the attorneys’ fees it seeks are reasonable in relation to the results obtained and were necessary. Neither party shall be entitled to recover fees for duplicative work or for work that was performed on unsuccessful claims.

We hold, therefore, that the trial court erred in placing upon the Chawlas the burden of proving that the attorneys’ fees claimed by BurgerBusters were unreasonable. V For the reasons stated, we will reverse the trial court’s judgment and remand the case for a new trial.

Recently, in Seyfarth, Shaw v. Lake Fairfax Seven Ltd. Prtnrshp., 253 Va. 93, 96, 480 S.E.2d 471, 473 (1997), decided after the trial court’s decision in the present case, we held that “[a]n attorney who seeks to recover legal fees . . . must establish, as an element of the attorney’s prima facie case, that the fees charged . . . are reasonable.” In determining whether a party has established a prima facie case of reasonableness, a fact finder may consider, inter alia, the time and effort expended by the attorney, the nature of the services rendered, the complexity of the services, the value of the services to the client, the results obtained, whether the fees incurred were consistent with those generally charged for 9 similar services, and whether the services were necessary and appropriate.

based upon the following provision in the lease: Tenant shall pay to Landlord and Landlord shall pay to Tenant all costs and expenses, including attorney fees, incurred . . . in exercising any of their rights or remedies hereunder or in enforcing any of the terms, conditions or provisions hereof.

In the present case, we do not read the lease provision to limit recovery of attorneys’ fees solely to the plaintiff; rather, we think both the plaintiff and the defendants may exercise rights and remedies under the lease and enforce its terms, conditions, or provisions. Here, BurgerBusters, in exercising its rights and remedies under the lease, claimed that a bank was not a “retail” establishment, and the Chawlas claimed that it was. On that issue, the trial court was in equipoise and ruled that the bank could remain in the shopping center as a “retail” concern. Therefore, the Chawlas prevailed on that issue. They also prevailed when the trial court denied BurgerBusters’ claim for monetary damages. To the extent, therefore, that the Chawlas were successful in the litigation, they were entitled under the lease to recover their reasonable attorneys’ fees.

Thus, because nothing in the record supports the awarded fee, it is not reasonable.

We are of opinion, however, that QSP’s misappropriation of trade secrets claim does not qualify as “any action relating” to the parties’ contract as contemplated by the contract’s fee-shifting provision.

The amount of the fee award rests within the sound discretion of the trial court, and we give deference to the judgment of the trial court upon appellate review.

However, we have stated that under contractual provisions such as these a party is not entitled to recover fees for work performed on unsuccessful claims.

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.

RCW 4.84.330 is not a fee-shifting statute. A fee-shifting statute is designed to “punish frivolous litigation and encourage meritorious litigation.” Brand v. Dep’t of Labor & Indus., 139 Wn.2d 659, 667 , 989 P.2d 1111 (1999). By its plain language, the purpose of RCW 4.84.330 is to make unilateral contract provisions bilateral. The statute ensures that no party will be deterred from bringing an action on a contract or lease for fear of triggering a one-sided fee provision. It does so by expressly awarding fees to the prevailing party in a contract action. It further protects its bilateral intent by defining a prevailing party as one that receives a final judgment. This language must be read into a contract that awards fees to one party any time an action occurs, regardless of whether that party prevails or whether there is a final judgment.

In ordinary usage, a “final judgment” is “[a] court’s last action that settles the rights of the parties and disposes of all issues in controversy ....” Black’s Law Dictionary 859 (8th ed. 2004). By this well-accepted definition, a “voluntary dismissal” is not a final judgment. A voluntary dismissal leaves the parties as if the action had never been brought. Beckman v. Wilcox, 96 Wn. App. 355, 359 , 979 P.2d 890 (1999); State v. Taylor, 150 Wn.2d 599, 602 , 80 P.3d 605 (2003). No substantive issues are resolved, and the plaintiff may refile the suit. Because a voluntary dismissal is not a final judgment rendered in favor of the defendant, the Court of Appeals correctly concluded that Kraft cannot be considered a prevailing party under RCW 4.84.330.

The mutuality intended by the statute means that where neither party prevails with a final judgment, neither party is entitled to attorney fees.

Marassi attributed this general rule to Walji , but Walji made no such statement. Walji merely held that the statutory definition of “prevailing party” under RCW 4.84.330 could not be imposed where there was already a bilateral contract. Walji, 57 Wn. App. at 287-88 .

After moving unsuccessfully for summary judgment, Wachovia voluntarily dismissed its suit against Kraft without prejudice under CR 41. Kraft asked for attorney fees and costs, which the trial court denied.

RCW 4.84.330 is designed to make a unilateral attorney fees provision bilateral when a contracting party receives a final judgment. We hold that a voluntary dismissal is not a final judgment as contemplated under RCW 4.84.330, and Kraft is therefore not entitled to attorney fees. We further hold that the trial court properly dismissed Wachovia’s suit without prejudice. Finally, we deny Wachovia’s request for attorney fees. We affirm the Court of Appeals.

The defendant, or party resisting relief, shall be deemed the prevailing party within the meaning of RCW 4.84.250, if the plaintiff, or party seeking relief in an action for damages where the amount pleaded, exclusive of costs, is equal to or less than the maximum allowed under RCW 4.84.250, recovers nothing, or if the recovery, exclusive of costs, is the same or less than the amount offered in settlement by the defendant, or the party resisting relief, as set forth in RCW 4.84.280. [ 1980 c 94 s 2; 1973 c 84 s 3.]

Under the American Rule, the parties to a lawsuit bear the cost of their own attorney fees absent legislative authorization to shift costs.

Sizzler may not recover attorney fees from Excel because the exception to the American Rule stated in Weinhagen v. Hayes, 179 Wis. 62 , 190 N.W 1002 (1922), does not apply here.

The Wisconsin legislature has authorized courts to award costs and attorney fees to successful litigants in many contexts. See, e.g., Wis. Stat. § 100.18 (ll)(b) (2001-02) (Wisconsin Deceptive Trade Practices Act (DTPA)); Wis. Stat. § 218.0171 (7) (2001-02) (Wisconsin Lemon Law); 425.308(1-2) (2001-02) (Wisconsin Consumer Act (WCA)).

These aspirations are so important and desirable that we adopt Hensley's lodestar methodology and direct the circuit courts to follow its logic when explaining how a fee award has been determined.

The American Rule provides that parties to litigation typically are responsible for their own attorney fees. See Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717-18 (1967). Limited exceptions do exist, such as where statutes provide for the recovery of attorney fees for prevailing parties, or where the parties contract for the award of attorney fees. See Meas v. Young, 142 Wis. 2d 95, 101 , 417 N.W.2d 55 (Ct. App. 1987). In addition, we have developed a narrow exception to the American Rule, as we explained in Weinhagen .

In Weinhagen, 179 Wis. at 63-66 , we reaffirmed the American Rule, but held that an innocent party, wrongfully drawn into litigation with a third party, may recover those fees reasonably incurred in defending against such action.

Subsequently, Weinhagen has been interpreted to require that: (1) the party from whom fees are sought must have committed a wrongful act against the party seeking attorney fees; and (2) the commission of such wrongful act forced the party seeking fees into litigation with a third party, or required the party seeking attorney fees to incur expenses protecting that party's interests against claims arising from the wrongful act.

Accordingly, the Weinhagen exception's wrongful act requirement demands more than an allegation of mere negligence that has involved a party in litigation; instead, "wrongfulness" requires something similar to fraud or breach of a fiduciary duty to the party seeking attorney fees.

Here, although there were contracts between Excel and Sizzler, the third-party litigation that Sizzler was forced to defend cannot be said to have arisen from the parties' contractual relationship alone. The plaintiffs' claims here were based primarily in tort law. Sizzler's involvement arose because of Sizzler's potential liability for the alleged breach of a claimed duty of due care. Therefore, we conclude that Sizzler has not met the Weinhagen test of what constitutes a wrongful act by the party from whom attorney fees are sought.

Fidelity involved a claim for attorney fees pursuant to Wis. Stat. § 402.715 , in a breach of contract suit where the contract did not address attorney fees. Id. at 504-05 . Fidelity relied on our holding in Murray . *72 In Murray , we declined to allow an award of attorney fees under § 402.715. We noted that other courts that have considered this question under provisions similar to Wis. Stat. § 402.715 have held that no award of attorney fees as consequential damages is proper when the contract at issue does not address attorney fees.

When a circuit court awards attorney fees, the amount of the award is left to the discretion of the court. First Wisconsin Nat'l Bank v. Nicolaou, 113 Wis. 2d 524, 537 , 335 N.W.2d 390 (1983). We uphold the circuit court's determination unless the circuit court erroneously exercised its discretion.

We uphold the circuit court's decision to award $15,000 in attorney fees. The court's explanation mirrored the sparse information it had available to make its decision. If Kolupar had properly submitted the documentation supporting the number of hours reasonably expended, then the court's explanation would likely not withstand scrutiny. However, the circuit court's explanation comported with the type and amount of information it had in the absence of such documentation. As a result, the circuit court's explanation reflected Kolupar's unmet burden to demonstrate the reasonableness of the requested award. By contrast, although the circuit court understood that substantial costs were incurred, it did not explain why it concluded that no costs were appropriate. We therefore remand the issue to the circuit court to address the issue of costs.