In Brinson Benefits v. Hooper (July 7, 2016), the Dallas Court of Appeals considered whether a plaintiff who wins a Texas Theft Liability Act (“TTLA”) claim nonetheless can be ordered to pay prevailing party attorney’s fees to the losing defendant if that defendant defeats at least one theory asserted by the plaintiff.
Brinson sued Hooper, a former employee, after it discovered that Hooper had taken confidential information and diverted a business opportunity to her new employer. During litigation, Brinson discovered that Hooper had developed and served several clients on the side, keeping the commissions for herself. One of Brinson’s clients also moved with Hooper to her new employer, which Brinson alleged was the result of the theft of confidential information . At the close of evidence, the trial court granted a directed verdict in favor of Hooper on a claim related to a specific former client and then the jury found against Hooper on theft claims for her retaining commissions for her work on the side while still employed by Hooper. The trial court then awarded Brinson its attorney’s fees for the theft claim arising from the stolen commissions but awarded Hooper her attorney’s fees for defending against claims arising from the client she took with her to her new employer.
The Dallas Court of Appeals reversed. It held that no, if you have been found liable for theft under the TTLA, you are not a prevailing party, even if you were not liable for all the damages the plaintiff asserted. A prevailing party is “[t]he party to a suit who successfully prosecutes the action or successfully defends against it, even though not necessarily to the extent of his original contention.” Thus, to recover fees, a defendant must prevail on the merits of the claim, which at least one court has held requires the defendant to “establish [she] did not commit theft.” The Court held that the fact that Brinson prevailed in recovering one set of damages, but not another, does not convert Brinson’s suit for theft into two separate claims.