Roberts

Plaintiffs filed this lawsuit against their former attorneys, alleging causes of action for breach of fiduciary duty, conversion, and declaratory relief. In essence, plaintiffs alleged that their former attorneys had settled several prior suits brought on their behalf and did not allocate a sufficient amount of the settlement funds to the costs of suit, making plaintiffs liable to the former attorneys for costs that were actually recovered as part of the settlements. In this lawsuit, the former attorneys filed a petition to compel arbitration of plaintiffs’ causes of action pursuant to an arbitration provision in the parties’ contingency fee agreement. The trial court granted the petition.

The question on appeal is whether the trial court properly awarded attorney fees to the former attorneys as the prevailing parties on the petition to compel arbitration, which was filed in the pending lawsuit, even though the resolution of the underlying causes of action will be determined through arbitration, and the prevailing party on those claims will not be known until arbitration is completed.

We conclude that because only one side—plaintiffs or their former attorneys—can…