Attorney fees can be recovered when sued in a court foreclosed by a forum-selection clause: Delaware chancery court
For a readable, scholarly discussion of this point, see Namdar v. Fried, No. 2024-0535 (Del. Ch. Jun. 6, 2025) (Laster, V.C.), which denied a motion to dismiss a claim for damages arising from a breach of a contract’s forum-selection clause:
… The American Rule bars a party from recovering litigation expenses unless an exception applies. The standard remedy for breach of contract is expectation damages. A party protected by a forum selection clause can reasonably expect not to have to litigate a foreclosed forum andnot to incur expensesdoing so. An injunction or dismissal enforcing the forum selection clause fulfills the first expectation. A damages award measured by the expenses incurred in the foreclosed forum fulfills the second expectation.
Id., slip op. at 4.
For more on forum-selection clauses and attorney-fee awards, see the (very-incomplete update of) my course materials.
Specific performance doesn’t always preclude a damages award: Texas supreme court
When a seller tries to back out of a contract to sell real property (or, sometimes, other property), the buyer might sue for specific performance to compel the seller to sell. Ordinarily, a grant of specific performance would preclude an accompanying award of damages for breach of the contract.
BUT: The Texas supreme court announced a limited set of circumstances in which certain damages are recoverable in conjunction with specific performance. In White Knight Development, LLC v. Simmons, No. 23-0868 (Tex. Jun. 13, 2025), the court said:
It is black-letter law that specific performance is an equitable alternative to legal damages. That is, a court may fashion a remedy including one or the other but not both. In this case, one party to a contract for the sale of real property breached, and the other sought specific performance and various categories of damages.
The question we must answer is whether the trial court erred by awarding specific performance and a monetary award it described as “actual damages/consequential damages” related to the delay in performance. It did, in part.
We hold that, while an award of specific performance usually precludes a monetary award, there is a narrow set of circumstances in which a breach of a contract for the sale of real property may be remedied by specific performance and a monetary award of reasonable, foreseeable expenses directly traceable to the delay in performance and, in cases where the purchaser breaches, incurred in connection with the seller’s care and custody of the property during such delay.
This monetary award is an equitable one, the purpose of which is to restore the party seeking specific performance to the position it would have occupied had the other party’s performance been timely by reimbursing it for property-related expenses incurred as a direct result of the delay between the time of the breach and the time of judgment.
The court of appeals erred by deleting the judgment’s monetary award entirely without distinguishing recoverable expenses from those that were unrecoverable because they were insufficiently tethered to the subject property and the delay in performance. Accordingly, we reverse the court of appeals’ judgment in part and remand the case for that court to review the monetary award consistent with the principles we announce today.
Id., slip op. at 1-2 (emphasis edited, extra paragraphing added).
Signing a business contract: