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`IN THE SUPREME COURT OF TEXAS
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`══════════
`No. 16-0651
`══════════
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`DUDLEY CONSTRUCTION, LTD., RICHARD MARK DUDLEY, AND
`HARTFORD FIRE INSURANCE COMPANY, PETITIONERS
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`v.
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`ACT PIPE AND SUPPLY, INC., RESPONDENT
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`══════════════════════════════════════════
`ON PETITION FOR REVIEW FROM THE
`COURT OF APPEALS FOR THE SIXTH DISTRICT OF TEXAS
`══════════════════════════════════════════
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`Argued December 5, 2017
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`JUSTICE BROWN delivered the opinion of the Court.
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`JUSTICE BLACKLOCK did not participate in the decision.
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`This case presents two questions. The first is procedural: Did ACT Pipe and Supply, Inc.,
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`in defending a favorable judgment notwithstanding the jury’s verdict, successfully raise a “cross-
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`point” in the court of appeals that preserved an alternative argument proscribing the jury’s original
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`verdict? We say yes—ACT did not formally label its argument a “cross-point,” but the substance
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`of that argument, if accepted, would nonetheless vitiate the jury’s original verdict. The second
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`presents an issue of statutory interpretation: Are attorney’s fees recoverable for a claim brought
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`under the Texas Construction Trust Fund Act? Our answer is no—neither the Act nor Civil Practice
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`and Remedies Code section 38.001 specifically provides for attorney’s fees, so they are
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`unavailable. Accordingly, we affirm the court of appeals’ judgment in part, reverse in part, and
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`remand to the trial court for further proceedings.
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`I
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`This appeal stems from a billing dispute between a general contractor and a pipe supplier.
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`Dudley Construction, Ltd., the general contractor, enlisted ACT Pipe and Supply, Inc., as a
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`supplier for two municipal water- and sewer-improvement projects: the Reclaimed Water Project
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`in College Station and the Tabor Project in Bryan. This dispute primarily concerns the Tabor
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`Project.
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`To assist Dudley in bidding for the Tabor Project, ACT’s operations manager, Mark
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`Stroud, quoted prices for the “slip-joint” pipe Dudley anticipated using for the project at $95 per
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`unit of 36-inch and $74.53 per unit of 30-inch pipe. Dudley won the contract, and Stroud ordered
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`the slip-joint pipe from ACT’s manufacturer to lock in the quoted prices and ensure timely
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`delivery.
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`After Stroud placed the order, however, the city rejected the proposed use of slip-joint pipe,
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`insisting the project required “restrained-joint” pipe. Stroud provided Dudley a second proposal,
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`quoting the city’s preferred pipe at a more-expensive price of $109.71 per unit of 36-inch and $82
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`per unit of 30-inch pipe. The city approved Dudley’s revised proposal, but ACT never modified
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`the original slip-joint purchase order with the pipe manufacturer. Consequently, Dudley received
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`slip-joint rather than restrained-joint pipe at the job site.
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`Dudley’s project manager, Michael Ham, informed Stroud that Dudley had received the
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`wrong pipe. Stroud advised Ham that restrained-joint pipe was available at a higher cost, but Ham
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`insisted ACT supply the restrained-joint pipe at the same price ACT quoted for the slip-joint pipe.
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`2
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`Dudley’s owner, Richard Dudley, began working with ACT’s regional manager, Curt Murray, to
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`resolve the dispute. After reviewing the project plans, Murray told Dudley he believed that slip-
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`joint pipe met the project’s specifications and was allowed under the contract, the city’s objections
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`notwithstanding. Dudley subsequently took the position with the city that the Tabor Project
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`contract did not specify which pipe must be used and that slip-joint pipe was adequate. The city
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`relented, agreeing to Dudley’s use of slip-joint pipe so long as it was reinforced by external
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`restraints. Dudley agreed. Accordingly, Dudley installed the errantly ordered slip-joint pipe it had
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`already received along with $17,500 worth of external restraints ACT supplied at no cost.
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`Dudley and ACT could not, however, agree on how much Dudley owed for the pipe.
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`Dudley signed a purchase order on September 14, 2011, for the slip-joint pipe that was ultimately
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`used at the originally quoted price of $95 and $74.53 per 36- and 30-inch unit, respectively. But
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`after the project’s completion, ACT billed Dudley for restrained-joint pipe at the second proposal’s
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`higher cost. Murray testified at trial that the parties verbally agreed to use the higher-quoted prices
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`to offset cost reductions for pipe used in the Reclaimed Water Project. Dudley denied any such
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`agreement, but nonetheless submitted ACT’s invoices for both projects to the cities, which paid
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`Dudley for the full amounts ACT sought. Dudley deposited these payments in its account, but
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`citing the ongoing dispute, paid ACT nothing for either project.
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`ACT sued Dudley on a sworn account for $143,714.19, the total it claims Dudley owes it
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`for the Tabor and Reclaimed Water projects. Because Dudley did not pay ACT after the cities paid
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`Dudley the amounts due on ACT’s invoices, ACT also alleged misapplication of trust funds under
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`the Texas Construction Trust Fund Act. As to ACT’s sworn-account claims, the jury found that
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`the prices ACT charged were “in accordance with the agreement” for the Reclaimed Water Project
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`3
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`and awarded ACT $14,214.20. For the Tabor Project, however, the jury answered that the prices
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`ACT charged were not “in accordance with the agreement,” but nonetheless awarded ACT
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`$110,629.70 for “reasonable compensation.” The jury also found ACT perfected a bond-payment
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`claim and awarded the same damages as ACT’s sworn-account claims. Finally, the jury found that
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`Dudley misapplied trust funds under the trust-fund act but awarded no corresponding damages to
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`compensate ACT for either project.
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`ACT moved for judgment notwithstanding the verdict. It urged the trial court to change the
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`jury’s answer to the sworn-account liability question for the Tabor Project. ACT argued the
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`$110,629.70 damages award necessitated a finding that ACT had indeed charged Dudley “in
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`accordance with the agreement.” ACT also encouraged the trial court to disregard the jury’s
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`finding that it was not entitled to damages in light of the jury’s finding that Dudley misapplied
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`trust funds. ACT asked the trial court to instead substitute the $110,629.70 in damages the jury
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`found for its sworn-account and bond-payment claims.
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`The trial court granted ACT’s motion and issued a final judgment. In its judgment, the
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`court set aside the jury’s liability finding on ACT’s sworn-account claim for the Tabor Project,
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`instead concluding it was “conclusively proven” that the prices charged by ACT were in
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`accordance with the parties’ agreement. The trial court further found that ACT’s damages were
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`uncontroverted and conclusively proven, and substituted the jury’s $110,629.50 award for the
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`Tabor Project and $14,214.20 for the Reclaimed Water Project under the sworn-account and bond-
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`payment claims in place of the jury’s zero-damages findings for trust-fund act damages. The
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`judgment awarded ACT $131,823.99 in attorney’s fees.
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`4
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`Dudley appealed on several grounds. Relevant to the case here, Dudley argued the trial
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`court erred in rendering judgment notwithstanding the verdict on ACT’s sworn-account claim
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`because sufficient evidence supports the jury’s finding that the price ACT charged for the Tabor
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`Project was not in accordance with the parties’ agreement. Dudley also argued the evidence
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`supports the jury’s zero-damages finding on ACT’s trust-fund act claim or, alternatively, that the
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`trial court erred in awarding damages based on the amount the jury awarded for ACT’s sworn-
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`account and bond-payment claims. Finally, Dudley argues the trial court improperly awarded
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`attorney’s fees.
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`The court of appeals affirmed in part and reversed in part. 531 S.W.3d 744, 748 (Tex.
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`App.—Texarkana 2016). On the claims relevant to this appeal, it agreed with Dudley that sufficient
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`evidence supported the jury’s finding that the prices ACT charged Dudley for the Tabor Project
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`were not in accord with the parties’ agreement. Id. at 754–55. Accordingly, the court of appeals
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`reversed the trial court’s judgment on that issue and rendered judgment that ACT take nothing on
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`its sworn-account claim for the Tabor Project. Id. at 754. But it rejected Dudley’s argument that
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`the evidence supports the jury’s zero-damages finding for ACT’s trust-fund act claim. Id. at 755
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`(noting Dudley cited no authority to support its argument that “there was no loss of the construction
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`funds” as Dudley held the funds because of “a dispute between the parties due to ACT’s
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`overcharges as found by the jury”).
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`The court of appeals concluded, however, that the trial court did not substitute
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`“conclusively proven” trust-fund act damages in place of the jury’s zero-damages finding when it
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`inserted the jury’s $110,629.70 damages awards for the Tabor Project under ACT’s sworn-account
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`and bond-payment claims. Id. at 756. “From the documentation presented at trial,” the court of
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`5
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`appeals observed, “it is unclear how the jury reached its decision on the other damage questions,
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`although it is clear that the trial court based its actions on the jury’s findings to those questions.”
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`Id. at 756. The court of appeals therefore held that the trial court erred in determining damages for
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`ACT’s trust-fund act claim, reasoning that “it does not appear that the obligations of Dudley under
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`any contract yielded exactly $110,629.70.” Id.
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`But the court of appeals also took issue with the jury’s zero-damages finding: “While the
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`jury found zero damages, we conclude that it was conclusively proven and not really contested
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`that there was some sum of money, more than nothing, that constituted a trust fund under the
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`statute.” Id. For that reason, the court of appeals reversed the trial court’s judgment as to ACT’s
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`trust-fund act damages and remanded to that court “to determine the appropriate amount of
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`recovery.” Id. at 754, 762.
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`A dissenting opinion, however, noted that ACT did not raise a cross-point on appeal
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`asserting that the evidence did not support the jury’s zero-damages finding for ACT’s trust-fund
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`act claim as required by Texas Rule of Civil Procedure 324(c) and Texas Rule of Appellate
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`Procedure 38.2(b)(1). In light of ACT’s omission, the dissenting insisted these rules “require us to
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`render judgment of zero damages on ACT’s trust-fund cause of action.” Id. at 762 (Burgess, J.,
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`dissenting).
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`Finally, the court of appeals concluded that any attorney’s-fees dispute must be decided on
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`remand. Based on its disposition of the issues before it, the court noted that ACT had yet to
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`establish that it was a prevailing party in an action for which attorney’s fees are recoverable. Id. at
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`759. However, noting as well that ACT’s trust-fund act claim has “as of yet, undetermined
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`6
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`damages” to be reconsidered by the trial court, the court of appeals remanded the attorney’s-fees
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`issue for “re-examination.” Id. at 759–60.
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`We granted Dudley’s petition for review.
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`II
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`We first consider whether ACT waived its argument that the court of appeals should not
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`enter judgment on the jury’s original verdict after concluding the trial court erroneously rendered
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`judgment notwithstanding the verdict. Like the dissenting opinion at the court of appeals, Dudley
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`argues that two procedural rules—civil-procedure rule 324(c) and appellate-procedure rule
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`38.2(b)(1)—required the court of appeals to reinstate the jury’s zero-damages finding after it
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`concluded the evidence did not support the trust-fund act damages award the trial court substituted.
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`The rules are similar in some respects and identical in others. Texas Rule of Civil Procedure 324(c)
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`states:
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`Judgment Notwithstanding Findings; Cross-Points
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`When judgment is rendered non obstante verdicto or notwithstanding the
`findings of a jury on one or more questions, the appellee may bring forward by
`cross-point contained in his brief filed in the Court of Appeals any ground which
`would have vitiated the verdict or would have prevented an affirmance of the
`judgment had one been rendered by the trial court in harmony with the verdict,
`including although not limited to the ground that one or more of the jury’s findings
`have insufficient support in the evidence or are against the overwhelming
`preponderance of the evidence as a matter of fact, and the ground that the verdict
`and judgment based thereon should be set aside because of improper argument of
`counsel.
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`The failure to bring forward by cross-points such grounds as would vitiate
`the verdict shall be deemed a waiver thereof; provided, however, that if a cross-
`point is upon a ground which requires the taking of evidence in addition to that
`adduced upon the trial of the cause, it is not necessary that the evidentiary hearing
`be held until after the appellate court determines that the cause be remanded to
`consider such a cross-point.
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`7
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`TEX. R. CIV. P. 324(c).
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`Texas Rule of Appellate Procedure 38.2(b) similarly provides:
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`(b) Cross-Points.
`(1) Judgment Notwithstanding the Verdict. When the trial court renders
`judgment notwithstanding the verdict on one or more questions, the appellee must
`bring forward by cross-point any issue or point that would have vitiated the verdict
`or that would have prevented an affirmance of the judgment if the trial court had
`rendered judgment on the verdict. Failure to bring forward by cross-point an issue
`or point that would vitiate the verdict or prevent an affirmance of the judgment
`waives that complaint. Included in this requirement is a point that:
`(A) the verdict or one or more jury findings have insufficient evidentiary
`support or are against the overwhelming preponderance of the evidence as a matter
`of fact; or
`(B) the verdict should be set aside because of improper argument of counsel;
`(2) When Evidentiary Hearing Needed. The appellate court must remand a
`case to the trial court to take evidence if:
`(A) the appellate court has sustained a point raised by the appellant; and
`(B) the appellee raised a cross-point that requires the taking of additional
`evidence.
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`TEX. R. APP. P. 38.2(b).
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`This Court has previously articulated the upshot of these rules: “Normally, when a trial
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`court has entered judgment notwithstanding the verdict, and an appellate court concludes that this
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`was error, it must reverse the judgment of the trial court and enter judgment in harmony with the
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`verdict, unless the appellee presents by cross-points grounds sufficient to vitiate the jury’s verdict
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`or to prevent an affirmance of the judgment had one been entered on the verdict.” Jackson v.
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`Ewton, 411 S.W.2d 715, 717 (Tex. 1967). And we have clarified the distinction between counter-
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`points and cross-points. Counter-points “assist the appellate court in finding the answers given to
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`the points of the appellant. From the standpoint of the advocate, their function is to show that the
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`point or points of the opposite party are not valid.” Id. Cross-points, on the other hand, “are really
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`‘points’ which are used to preserve error committed by the trial court. They are the means by which
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`8
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`an appellee may bring forward complaints of some ruling or action of the trial court which the
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`appellee alleges constituted error as to him.” Id.
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`The Jackson court observed that Rule 324(c) serves to “require a final disposition of the
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`case by the appellate court, where a judgment notwithstanding the verdict is erroneously rendered
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`by the trial court, on the basis of the record before it, and to order a remand only as to questions
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`that require the taking of additional evidence, such as jury misconduct.” Id. at 718. This rule, and
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`its appellate counterpart, promote judicial economy by providing for “one appeal in the case
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`instead of two.” See id. at 719. If an appellate court agrees with an appellant that the trial court
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`below erroneously set aside the jury’s findings and entered its own judgment, the rules have
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`preemptively burdened the appellee to argue any alternative ground that would prevent the
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`appellate court from restoring the jury’s answers.
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`“Cross-points” are the rules-prescribed method for fulfilling this requirement and
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`preserving such alternative arguments against the jury’s original verdict. But we have never
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`required rigid technical compliance with these rules. Nor do these rules themselves mandate use
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`of particular labels; a party need not name its arguments “cross-points” to avoid waiver. Whenever
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`possible, we reject form-over-substance requirements that favor procedural machinations over
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`reaching the merits of a case. See Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308,
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`314 (Tex. 2000) (Hecht, J., concurring) (“Appellate procedure should not be tricky. It should be
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`simple, it should be certain, it should make sense, and it should facilitate consideration of the
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`parties’ arguments on the merits.”); see also TEX. R. CIV. P. 1 (“The proper objective of rules of
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`civil procedure is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants
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`under established principles of substantive law.”).
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`9
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`If an appellee makes a substantive argument that would, if accepted, vitiate the jury’s
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`original verdict or prevent an affirmance of the judgment had one been rendered in harmony with
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`the jury’s verdict, it has presented a cross-point sufficient to avoid waiver. The Fourteenth Court
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`of Appeals has modeled the correct approach, considering arguments as cross-points “even when
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`the appellee does not explicitly refer to them as such.” JJJJ Walker, LLC v. Yollick, 447 S.W.3d
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`453, 459 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). If an appellee makes an argument
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`only in response to an appellant’s point of error—technically, perhaps, a “counter-point” under the
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`Jackson dichotomy—appellate courts should nonetheless consider it a cross-point if, regardless of
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`how or where it is presented, the substance of the argument would nonetheless undermine the
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`jury’s original verdict. See Holman Street Baptist Church v. Jefferson, 317 S.W.3d 540, 547 Tex.
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`App.—Houston [14th Dist.] 2010, pet. denied (“Although [the appellee] did not explicitly term his
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`. . . arguments as ‘cross-points,’ he did make . . . arguments [that would have vitiated the verdict]
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`in response to [the appellant’s] issues. We will therefore consider these arguments as cross-points
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`and assess the merits of [the appellee’s] contentions.”).
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`Without dispute, ACT did not formally label as cross-points any of its arguments to the
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`court of appeals. It did, however, argue in defense of the trial court’s judgment notwithstanding
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`the verdict overriding the jury’s zero-damages finding for its trust-fund act claim. And its basis for
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`doing so was that the trial court acted properly in disregarding a finding that was against the
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`overwhelming weight of the evidence and contrary to the jury’s finding that Dudley had
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`misapplied trust funds. ACT insisted that the “overwhelming evidence presented at trial supported
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`entering [judgment notwithstanding the verdict]” on ACT’s trust-fund act claims. It pointed to
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`“records subpoenaed from each city detail[ing] the amounts [Dudley] submitted in pay
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`10
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`applications, which included the materials supplied by [ACT].” These records “included the city’s
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`approval of the payment applications and the electronic funds transfer records identifying the dates
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`and amounts of the funds transferred to [Dudley].” Furthermore, “Mr. Dudley admitted that
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`[Dudley] submitted and received approval from the city for pay applications that included the
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`materials for which [ACT] is seeking recovery” and that “he received the funds for [ACT’s]
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`materials, as reflected in the city’s records.” And upon cross-examination, Dudley testified that
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`“the funds he received from the city were ‘widely dispersed,’ but none were dispersed to [ACT].”
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`This evidence, ACT insists, “conclusively establishes” its entitlement to damages for its trust-fund
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`act claim. Accordingly, ACT asked the trial court to disregard the jury’s zero-damages finding and
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`enter “the same damage amounts the jury found in response to damages questions” for ACT’s
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`sworn-account and bond-payment claims.
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`Dudley concedes that ACT’s failure to label its argument as a “cross-point” is not fatal but
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`insists ACT ultimately failed to preserve its argument because it substantively presented only a
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`counter-point to Dudley’s argument that the trial court improperly granted judgment
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`notwithstanding the verdict. But ACT defends the trial court’s decision precisely because it
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`repudiates the jury’s zero-damages finding. ACT’s argument that “the evidence conclusively
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`establishes ACT’s entitlement to damages” and what Dudley insists it should have argued—that
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`the overwhelming weight of the evidence is against the jury’s verdict—are two sides of the same
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`coin: to defend the judgment notwithstanding the verdict because the evidence is overwhelmingly
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`against the jury’s verdict is to attack the verdict. Whether Jackson would classify ACT’s argument
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`a “counter-point” or a “cross-point,” its substance is unmistakable: the evidence commands at least
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`some damages.
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`The court of appeals permissibly considered ACT’s argument a “cross-point,” noting that
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`“[w]hile ACT has not explicitly set out or named any of its appellate points as ‘cross-points,’ it
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`has substantively made arguments that, if accepted, vitiate the original jury verdict of zero
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`damages.” 531 S.W.3d at 756 n.16. Accordingly, it remanded the issue to the trial court “to
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`determine the appropriate amount of recovery.” Id. at 754, 762. Dudley argues, however, that under
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`Jackson a remand is improper because “this case does not require the taking of new evidence which
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`the parties had no opportunity to develop in the trial court.” See Jackson, 411 S.W.2d at 718 (“The
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`purpose of [rule 324(c)] was to require a final disposition of the case by the appellate court, where
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`a judgment notwithstanding the verdict is erroneously rendered by the trial court, on the basis of
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`the record before it, and to order a remand only as to questions that require the taking of additional
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`evidence, such as jury misconduct.”). On this point, we believe Jackson—issued more than forty
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`years ago—may have overstated the constraints of rule 324(c) and, by implication, appellate-
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`procedure rule 38.2(b).
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`Clearly, the thrust of these rules is to require appellees to present any alternative arguments
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`that would prevent the court of appeals from reinstating the jury’s verdict should it agree with the
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`appellant that the trial court erred in rendering judgment notwithstanding the verdict. One purpose
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`of this requirement might be to better position courts of appeals to finally dispose of cases instead
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`of remanding them to trial courts for further proceedings. But nothing in the text of either rule
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`compels the conclusion that a final disposition in the court of appeals is required or that a remand
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`is always limited to instances in which new evidence must be taken. Under the circumstances here,
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`we cannot say the court of appeals erred in remanding the case to the trial court for reconsideration
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`of ACT’s trust-fund act damages. See, e.g., Texarkana Mem’l. Hosp., Inc. v. Murdock, 946 S.W.2d
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`12
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`836, 837 (Tex. 1997) (“Because there is no evidence to support the entire amount of damages
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`awarded by the jury, but there is legally sufficient evidence that [the defendant’s] negligence
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`caused some of the medical expenses, we reverse the judgment of the court of appeals and remand
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`the cause for a new trial.”).
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`We therefore affirm the court of appeals’ decision on this issue and agree the case should
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`be remanded to the trial court for further proceedings. We acknowledge, however, that the parties
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`disagree as to the scope of the court of appeals’ remand. Indeed, language in the court of appeals’
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`opinion can be read to suggest that a new trial is required. But the opinion also states that the trial
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`court may “determine the appropriate amount of recovery,” suggesting that the trial court could
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`simply alter its judgment in conformance with evidence already in the record. 531 S.W.3d at 754,
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`762. Rather than attempt to interpret the scope of remand the court of appeals intended, we will
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`simply remand the case to the trial court for further proceedings in light of the holdings of the court
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`of appeals and of this Court. The court of appeals properly reversed the trial court’s judgment
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`regarding ACT’s trust-fund act damages—no evidence supports the damages that the trial court
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`substituted. We further agree with the court of appeals that “it was conclusively proven and not
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`really contested that there was some sum of money, more than nothing, that constituted a trust fund
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`under the statute.” Id. at 756. Beyond that, we leave the next step, including whether a new trial is
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`necessary, to the trial court’s sound discretion.
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`III
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`Dudley raised several arguments at the court of appeals against the attorney’s-fees award
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`in ACT’s favor. The court of appeals did not consider Dudley’s arguments, choosing instead to
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`remand the attorney’s-fees issue to the trial court for reconsideration in light of the court of
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`appeals’ disposition of other issues. In doing so, however, the court of appeals suggested that
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`attorney’s fees for a trust-fund-act claim “are available for a claim that construction trust funds
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`were misapplied if the relief requested is compensation for work performed or materials supplied.”
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`Id. at 759 n.20 (quoting Perry & Perry Builders, Inc. v. Galvan, No. 03-02-00091-CV, 2003 WL
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`21705248, at *8 (Tex. App.—Austin July 24, 2003, no pet.) (mem. op.)). Accordingly, because
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`ACT’s trust-fund-act claim has “as of yet, undetermined damages, because damages were not
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`conclusively proven,” the court of appeals remanded the attorney’s-fees issue for “re-examination”
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`by the trial court. 531 S.W.3d at 759–60.
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`Dudley insists, however, that attorney’s fees are unavailable under trust-fund act and that
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`the court of appeals therefore erred in remanding the issue for reconsideration on that ground.
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`Without question, the trust-fund act says nothing about attorney’s fees. See TEX. PROP. CODE §§
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`162.001–.033; see also In re Kirk, 525 B.R. 325, 334 (Bankr. W.D. Tex. 2015) (“Th[e] [trust-fund
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`act] does not, however, mention recovery of attorney’s fees in such actions.”). On this point we
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`have been clear: “For more than a century, Texas law has not allowed recovery of attorney’s fees
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`unless authorized by statute or contract.” Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299,
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`310 (Tex. 2006).
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`Some courts of appeals, however, have held that Civil Practice and Remedies Code section
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`38.001 nonetheless makes attorney’s fees available for a claim brought under the trust-fund act. In
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`Perry & Perry Builders, Inc. v. Galvan, the court of appeals likened Galvan’s trust-fund-act claim
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`to his quantum-meruit claim, reasoning that “[i]n both claims, [Galvan] seeks payment for work
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`performed on the construction project” and “does not seek recovery under any consequential or
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`punitive tort damage theory.” 2013 WL 21705248, at *8. “Like quantum meruit,” the court
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`reasoned, “his request for an award equal to the amount of funds that were intended to compensate
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`him for work provided is within the statute authorizing an award of attorney’s fees.” Id. (citing
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`TEX. CIV. PRAC. & REM. CODE § 38.001); see also Direct Value, L.L.C. v. Stock Bldg. Supply,
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`L.L.C., 388 S.W.3d 386, 394 (Tex. App.—Amarillo 2012, no pet.) (following Galvan as binding
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`precedent in a case originally appealed to the Austin court of appeals but transferred to the
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`Amarillo court of appeals). Similarly, in Ulusal v. Lentz Engineering, L.C., the court of appeals
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`held that section 38.001 permits an attorney’s-fees award for trust-fund-act claims because the act
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`“creates a cause of action for failure to make payments under a construction contract” and
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`attorney’s fees are recoverable under section 38.001 for “rendered services, performed labor,
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`furnished materials, and a contract.” 491 S.W.3d 910, 919 (Tex. App—Houston [1st Dist.]
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`2016, no pet.). One court of appeals has rejected this approach, observing simply that
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`“[m]isapplication of trust funds is not one of the causes of action listed in section 38.001, and
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`therefore the section does not apply to [a trust-fund-act claim].” Larrison v. Catalina Design, No.
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`02-10-00167-CV, 2011 WL 582730, at *5 (Tex. App—Fort Worth Feb. 17, 2011, no pet.) (mem.
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`op.).
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`We conclude that neither the trust-fund act nor Civil Practice and Remedies Code section
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`38.001 allow for attorney’s fees for a successful trust-fund-act claim. Our reasoning is simple:
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`neither statute says so. See Chapa, 212 S.W.3d at 310. True, section 38.001 makes attorney’s fees
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`recoverable for a variety of claims that might factually form the basis of a trust-fund-act claim—a
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`“trustee” under the act, see TEX. PROP. CODE § 162.002, might misapply trust funds at the expense
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`of a beneficiary who has “rendered services,” “performed labor,” “furnished material,” or who was
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`a party to “an oral or written contract.” See TEX. CIV. PRAC. & REM CODE § 38.001(1)–(3),(8).
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`But this does not merge the statutes for attorney’s-fees purposes. Certainly, a pipe supplier might
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`recover attorney’s fees under section 38.001 for work performed, materials provided, or for breach
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`of contract. But this does not open the door to attorney’s fees for violations of separate statutory
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`provisions simply because the claim is based on the same dispute or because the recovery sought
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`is the same.
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`The trust-fund act is a stand-alone, comprehensive statutory scheme defining whether
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`“construction payments” and “loan receipts” constitute trust funds, see TEX. PROP. CODE
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`§ 162.001, determining who are “beneficiaries” of trust funds, see id. § 162.003, providing for
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`when trust funds are “misapplied,” see id. § 162.031, and providing for penalties, see id. § 162.032.
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`The legislature could have provided for attorney’s fees in this scheme. It did not. So neither will
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`we. Nor will we reach to find them implied by a wholly separate statute. See Travelers Indem. Co.
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`of Conn. v. Mayfield, 923 S.W.2d 590, 593 (Tex. 1996) (“The authorization of attorney’s fees in
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`civil cases may not be inferred; rather it ‘must be provided for by the express terms of the statute
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`in question.’” (quoting First City Bank-Farmers Branch v. Guex, 677 S.W.2d 25, 30 (Tex. 1984))).
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`In so far as the court of appeals’ remand to consider attorney’s fees included fees for ACT’s
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`trust-fund-act claim, we reverse its judgment and render judgment that attorney’s fees for a trust-
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`fund-act claim are not recoverable under neither the act itself nor Civil Practice and Remedies
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`Code section 38.001.
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`* * *
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`On the issue of whether ACT preserved its argument that judgment should not be entered
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`on the jury’s verdict, we affirm the court of appeals’ judgment. On the issue of the availability of
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`attorney’s fees for ACT’s trust-fund-act claim, we reverse the court of appeals’ judgment and
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`render judgment that attorney’s fees are unavailable. We remand the case to the trial court for
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`further proceedings consistent with this opinion.
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`OPINION DELIVERED: April 6, 2018
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`________________________________
`Jeffrey V. Brown
`Justice
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