Most parties are represented by attorneys in litigation. Generally, each side is responsible for paying their own attorney’s fees – no matter who wins. But, there are some exceptions where an award of fees to the prevailing party is authorized by statute, contractual provision, or an equitable principle. In nearly all such cases, an award of fees is available to the prevailing party – meaning that both sides are potentially at risk to pay.
Statutory Awards
A successful litigant may be entitled to attorney fees if the statute governing the case authorizes it. For example, under South Dakota law, attorney’s fees are recoverable in domestic relations cases (divorce, custody, etc.), eviction proceedings, and cases involving an alleged violation of the residential real estate disclosure requirements.
Another example can be found in a recent decision by the South Dakota Supreme Court in City of Sioux Falls v. Johnson Properties, 2025 S.D. 66. In this condemnation proceeding, the landowner was awarded attorney’s fees of $139,724.60. Attorney fees are permitted, and in fact mandated, in condemnation proceedings pursuant to SDCL 21-35-23 if the landowner is ultimately awarded an amount 20% greater than the condemning authority’s final offer.
Attorney fees may also be awarded pursuant to federal statutes, including cases brought under 42 U.S.C. §2000e (Title VII – employment discrimination), 42 U.S.C. §1983 (civil rights violations), and the Unfair Debt Collection Practices Act. In the case of Thurairajah v. City of Fort Smith, 3 F.4th 1017, 1026 (8th Cir. 2021), the 8th Circuit Court of Appeals upheld an attorney fee award of $15,100 in attorney’s fees after the plaintiff was awarded nominal damages of only $1 in his civil rights violation lawsuit asserted against a state highway patrol trooper.
Contractual Awards
If the lawsuit involves a breach of contract, the prevailing party may be entitled to attorney fees if the contract so provides. In some situations, this is found in the “fine print” of the contract, surprising some folks. For example, in Credit Collection Servs., Inc. v. Pesicka, 2006 S.D. 81, the South Dakota Supreme Court reversed the trial court for its failure to award attorney fees in favor of Hospital in a collection action against a patient where the “Consent Form” included an attorney fee provision.
Equitable Exceptions
Some situations warrant an award of attorney fees based upon long-standing equitable considerations. One such circumstance is known as the common fund rule – where the efforts of one party also benefit another. The party who undertook the litigation, incurring attorney fees, has created a “common fund” in which others share and, accordingly each person who benefited should be required to pay his or her proportionate share of attorney fees. Bowen v. American Family Ins. Group, 504 N.W.2d 604, 605 (S.D.1993) (requiring subrogated insurer to pay proportionate share of attorney fees to personal injury attorney who recovered tort fund for client’s benefit, as well as insurer’s benefit).
In sum, most litigants should be prepared to bear their own attorney’s fees, even if they prevail in the litigation. If a case involves the opportunity to shift fees, it creates an additional incentive in informal negotiations and should be considered as a possible source of recovery – but also a source of risk.
Note: In regard to the preparation of this week’s column, the author would like to thank attorney Sarah Baron Houy for her assistance and input.
Anyone desiring to communicate with the Author, may do so by sending an e-mail to the author at
rogermbaron@gmail.com .
Roger Baron is a guest columnist for the Rapid City Post. Opinions expressed may not necessarily represent the views of the Rapid City Post, its affiliates, or advertisers.
