Can the prevailing party recover attorney fees in this Louisiana contract dispute if the contract is silent on fees?
No, if the contract is silent. The general rule is jurisprudential rather than codal in Louisiana, and it runs the opposite direction from a court’s inherent-equity power: fees are recoverable ONLY if a specific statute or the contract itself authorizes them. No Civil Code article makes the loser pay fees as a default in an ordinary contract action, but several articles award them in named situations, and one of those sets conditions a drafter has to meet. Article 2000 governs damages for delay where "the object of the performance is a sum of money", and it allows contractual fees only on terms: "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." A fee clause for a money obligation that is not in writing, or that names no fixed or determinable amount, does not meet that article’s own test. Article 1958 gives fees to a party who obtains rescission for fraud, and art. 2545 gives "damages and reasonable attorney fees" against a seller who knew of a defect and omitted to declare it. The Louisiana Supreme Court states the rule as settled doctrine: in Stutts v. Melton the Court held, in a dispute over a seller's liability following a real-estate sale, "Louisiana courts have long held that attorney fees are not allowed except where authorized by statute or contract." Louisiana's intermediate courts repeat the identical formulation across construction, commercial-lease, and general-contract disputes alike: it is treated as settled law, not case-specific dicta.
The trap
Because the rule is jurisprudential rather than codal, there is no Civil Code article to point to as the source, and a reviewer searching Titles III-IV for a loser-pays default article will not find one, though art. 2000 does fix the form a money-obligation fee clause has to take. The general rule itself lives in the case law, which makes it easy to assume (wrongly) that Louisiana has no rule at all rather than a strict no-fees-without-authorization rule. A contractual fee clause must therefore do real work: no Louisiana authority read for this rule converts a one-way contractual fee right into a two-way one, the way some other states do by reciprocity statute, and a one-way Louisiana fee clause should be treated as one-way unless a specific statute (for example, in a construction-lien, insurance, or consumer-protection context) says otherwise. A separately relevant statutory fee-shifting scheme (for example, the Private Works Act's own provisions) must be checked on its own terms rather than assumed to interact with this general rule. Stutts states the no-fees rule and then, on its own facts, awards fees anyway, so the quoted formulation is not an absolute bar. Immediately after stating the rule the Court wrote “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,” and it concluded “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.” It then acted on that: the court of appeal was reversed, the trial court judgment reinstated, and the case remanded “for further proceedings regarding any additional attorney fees incurred since the time of that judgment.” The rule is therefore about AUTHORIZATION, and a Louisiana court may locate that authorization by reading an existing fee-bearing provision to reach a case its text does not literally cover; a party resisting fees should expect that move rather than stopping at the sentence quoted above.
7 authorities
The words that state the rule
Louisiana courts have long held that attorney fees are not allowed except where authorized by statute or contract.
The words that state the rule
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.
The words that state the rule
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.
- statuteLa. Civ. Code art. 2000enactment date not established
The words that state the rule
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.
- statuteLa. Civ. Code art. 1958enactment date not established
The words that state the rule
The party against whom rescission is granted because of fraud is liable for damages and attorney fees.
- statuteLa. Civ. Code art. 2545enactment date not established
The words that state the rule
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.
The words that state the rule
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.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.