Chapter 11-13 Interest, Costs and Attorney's fees

• Jurisdiction: United States

11-13 Interest, Costs, and Attorney's Fees

11-13:1 Prejudgment and Post-judgment Interest

Prejudgment interest falls into three basic categories, based on its source of authorization:

• Prejudgment interest provided by statute²⁷³
• Prejudgment interest provided by contract²⁷⁴
• Prejudgment interest provided by common law (equitable)²⁷⁵

"As a general rule, a plaintiff is required to plead for prejudgment interest sought at common law as an element of damages, whereas statutory or contractual interest may be predicated on a prayer for general relief."²⁷⁶

The safer course, however, is to always specifically plead for prejudgment interest rather than simply relying on a prayer for general relief, even in cases in which it would appear that prejudgment interest is provided by contract or statute. In many cases, a claim for breach of contract is merely one of the causes of action alleged, and if the judgment ultimately granted is based on a tort cause of action, there is no basis for recovery of prejudgment interest without a specific allegation and prayer for prejudgment interest.²⁷⁷ Even when the judgment enforces a contract, if the contract is silent regarding prejudgment interest, any assessment of prejudgment interest must then find its source in an enabling statute or the common law, and the enabling statute relevant to contractual causes of action does not necessarily apply to all contracts.²⁷⁸

A failure to adequately plead for prejudgment interest can be cured by a post-verdict trial amendment.²⁷⁹ the opportunity to amend expires, however, once judgment is rendered.²⁸⁰

Post-judgment interest is mandated by statute and sets forth no pleading requirement as a predicate to recovery.²⁸¹

11-13:2 Costs of Suit

Although it is customary and appropriate to include a prayer for recovery of costs in a general prayer for relief, a specific pleading of taxable court costs does not appear to be required. In the same way that post-judgment interest is made recoverable by statute without stating any pleading requirement, "costs" of suit are made recoverable by Tex. R. Civ. P. 131 without any stated requirement of a pleading for costs.²⁸²

"Texas statutes and common law delineate which items the court may and may not include as taxable costs . . . 'Costs' usually refers to fees and charges required by law to be paid to the courts or some of their officers, the amount of which is fixed by statute or the court's rules, for example filing and service fees. Costs within the meaning of Rules 125 through 149 are those items in the clerk's bill of costs."²⁸³ In addition to filing and service fees, the certified original cost of taking depositions are included as taxable court costs²⁸⁴ (but deposition copy costs and video costs are not included).²⁸⁵"If the trial court taxes costs other than those customarily taxed, it may do so only for good cause stated on the record."²⁸⁶

Rather than depending upon pleading for recovery of costs, the recoverability of costs is instead dependent upon qualifying as the successful party²⁸⁷ subject to the court's exercise of discretion to assess costs other than in favor of the successful party.²⁸⁸

For some causes of action, however, statutes allow recovery of costs beyond those normally considered as taxable court costs.²⁸⁹ When costs are sought based upon a specific statutory provision, the statutory basis for the claim should be pleaded.²⁹⁰ By pleading violation of the statute...