Failure To Win Costs on Appeal Does Not Preclude Award of Attorney Fees

By statute, attorney fees are an element of cost (even when awarded pursuant to contract).  So, what happens when the remittitur from the appellate court directs that the parties bear their own costs for the appeal? 

In Butler-Rupp v. Lourdeaux,the court ruled that the costs award does not speak to an award of attorney fees — especially where the court had not been asked to award those fees.  Thus, the award based on contract reverts to the normal rule that the party who achieves the greatest net relief is the prevailing party and is entitled to an award of fees.

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