MODIFY and AFFIRM; and Opinion Filed July 10, 2018.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-17-00554-CV

                       WEKNOW TECHNOLOGIES, INC., Appellant
                                     V.
                              JOE HAYES, Appellee

                       On Appeal from the 68th Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. DC-14-14271

                             MEMORANDUM OPINION
               Before Chief Justice Wright, Justice Fillmore, and Justice Schenck
                                  Opinion by Justice Fillmore
       A jury found WeKnow Technologies, Inc. violated Chapter 162 of the property code, see

TEX. PROP. CODE ANN. §§ 162.001–.033 (West 2014) (the Act), by misapplying construction trust

funds and awarded Joe Hayes actual damages of $5,508.87 and attorney’s fees of $15,000. In two

issues, WeKnow asserts the trial court erred by submitting jury questions relating to the Act

because Hayes does not fall within the class of persons entitled to the Act’s protection and the Act

does not authorize an award of attorney’s fees.

       We conclude the trial court did not err by submitting questions to the jury regarding

WeKnow’s liability under the Act. However, because the Act does not provide for an award of

attorney’s fees, see Dudley Constr., Ltd. v. ACT Pipe & Supply, Inc., 545 S.W.3d 532, 541–42

(Tex. 2018), the trial court erred by asking the jury to determine the amount of reasonable and
necessary attorney’s fees incurred by Hayes. We reverse the trial court’s award to Hayes of

$15,000 for attorney’s fees, modify the judgment to remove the award of attorney’s fees, and

affirm the judgment as modified.

                                                              Background

          In early 2011, Southwest Windpower (SWWP), a manufacturer of wind turbines,

announced it had developed a new model, the Skystream 600, which could generate more

electricity than SWWP’s existing model, the Skystream 3.7. However, although the Skystream

600 was undergoing testing, it was not yet in production. SWWP instructed its dealers, including

WeKnow, that if a customer requested a Skystream 600, the customer should be offered a

Skystream 3.7 with a “bridge” to a Skystream 600 once that turbine became available.

          Hayes read about the Skystream 600 and was interested in purchasing two of the wind

turbines to be used at his residential property in Grayson County, Texas. Hayes contacted

WeKnow about the purchase. On April 1, 2011, J.D. Doskocil, a sales representative for WeKnow,

met with Hayes at his residence to discuss the purchase of two Skystream 600 wind turbines.

Hayes agreed to purchase the wind turbines and gave Doskocil $20,000 in cash. At Hayes’s

request, Doskocil prepared a handwritten receipt that stated:

          In receipt of $20,000 down payment on total of $46,190.43 for two Skystream 600
          wind turbines to include all warranties and installation.

          Hayes and his wife also signed a “Sales Agreement” dated April 1, 2011.1                                                            The

“description” in the Sales Agreement stated Hayes was purchasing two Skystream 3.7 wind

turbines and related equipment and a “Skystream 600 w/ FREE installation Upgrade - Turbine will

be placed on order and installed once it’s available. Could be late this summer!” The total




   1
       There was conflicting evidence on whether the sales agreement was signed on April 1, 2011, or dated April 1, 2011, but signed later.

                                                                     –2–
purchase price on the Sales Agreement was $46,190.43, which included a charge of $2,500 per

turbine for the upgrade to the Skystream 600.

       After WeKnow began the construction of the foundations for the wind turbines, it

encountered “blue rock,” and was required to rent equipment and expend additional labor for rock

removal that was not contemplated by the Sales Agreement. On April 19, 2011, WeKnow sent

Hayes an invoice for $2,175 for the additional “rock work.” WeKnow also sent Hayes interim

invoices on April 12, 2011, and May 13, 2011, each for approximately one-half of the outstanding

balance on the Sales Agreement. Both the April 12th and May 13th invoices contained the same

line item for the upgrade to the Skystream 600 turbine that was contained in the Sales Agreement.

Hayes signed all the invoices, indicating he had “received the product and the services,” and paid

WeKnow the remaining $26,190.43 owed on the purchase price as well as the $2,175 charged for

the additional rock work. WeKnow placed all funds it received from Hayes into its checking

account.

       In October 2011, SWWP announced the production of the Skystream 600 turbine was

delayed indefinitely. Deanne Crumpley, the account manager at WeKnow, prepared and mailed a

check for $5,000 to Hayes, representing the charge on the Sales Agreement for the upgrade to the

Skystream 600. The check was never cashed, and Hayes denied at trial that he received it.

       On March 29, 2013, WeKnow filed for Chapter 7 bankruptcy. In its bankruptcy schedules,

WeKnow did not list Hayes as a person potentially having a claim against the estate. WeKnow’s

bankruptcy schedules stated that, within one year prior to the filing of the bankruptcy petition,

WeKnow had distributed over $40,000 to Charles Crumpley (Charles), WeKnow’s president and

chief executive officer.   Further, in the ninety days immediately preceding the filing of the

bankruptcy petition, WeKnow had transferred over $75,000 to Aztec Renewable Energy. Charles

described Aztec as his “other company” that WeKnow hired to complete several jobs. According

                                                –3–
to the bankruptcy schedules, WeKnow had only $300.34 in its checking and savings accounts as

of April 19, 2013. On November 25, 2013, WeKnow filed a Certification of Termination of a

Domestic Entity with the Texas Secretary of State, stating it had made a voluntary decision to

“wind up” its business operations.

       On December 9, 2014, Hayes sued WeKnow for breach of contract and WeKnow and

Charles for violations of the Act. The jury found WeKnow breached its contract with Hayes, but

the breach was excused due to impossibility of performance. The jury also found WeKnow

violated the Act, but Charles did not. The jury found WeKnow had misapplied trust funds in the

amount of “$5,000 + tax,” and awarded Hayes actual damages of $5,508.87 and attorney’s fees of

$15,000. The trial court rendered judgment against WeKnow in accordance with the jury’s

findings.

                                              Analysis

       In two issues, WeKnow contends the trial court erred by submitting jury questions relating

to the Act because, as a matter of law, Hayes is not entitled to protection under the Act and

attorney’s fees are not recoverable under the Act.

                                        Standard of Review

       Rule of civil procedure 278 requires a trial court to submit to the jury questions “raised by

the written pleadings and the evidence.” TEX. R. CIV. P. 278; see also Grohman v. Kahlig, 318

S.W.3d 882, 888 (Tex. 2010) (per curiam). This is a “substantive, non-discretionary directive to

trial courts requiring them to submit requested questions to the jury if the pleadings and any

evidence support them.” Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992). A jury question is

warranted if there is more than a scintilla of evidence to support a pleaded claim. Id.; Vast Constr.,

LLC v. CTC Contractors, LLC, 526 S.W.3d 709, 727 (Tex. App.—Houston [14th Dist.] 2017, no

pet.). A trial court may refuse to submit an issue only if no evidence exists to warrant its

                                                 –4–
submission. Grohman, 318 S.W.3d at 888 (citing Elbaor, 845 S.W.2d at 243). We review a trial

court’s decision to submit a jury question for an abuse of discretion. Sw. Energy Prod. Co. v.

Berry-Helfand, 491 S.W.3d 699, 727 (Tex. 2016); Ins. All. v. Lake Texoma Highport, LLC, 452

S.W.3d 57, 76 (Tex. App.—Dallas 2014, pet. denied).

         Statutory construction is a question of law that we review de novo. City of Houston v.

Houston Mun. Emps. Pension Sys., No. 17-0242, 2018 WL 2749728, at *9 (Tex. June 8, 2018).

“Our goal in construing statutes is to ‘ascertain and give effect to the Legislature’s intent as

expressed by the language of the statute.’” Id. (quoting McIntyre v. El Paso Indep. Sch. Dist., 499

S.W.3d 820, 834 (Tex. 2016)). “When statutory text is clear, we do not resort to rules of

construction or extrinsic aids to construe the text because the truest measure of what the Legislature

intended is what it enacted.” Melden & Hunt, Inc. v. E. Rio Hondo Water Supply Corp., 520

S.W.3d 887, 893 (Tex. 2017); see also In re Lee, 411 S.W.3d 445, 450–51 (Tex. 2013) (orig.

proceeding) (“[U]nambiguous text equals determinative text,” and “[a]t this point, the judge’s

inquiry is at an end.”).

         In conducting our analysis, we presume “the Legislature chooses a statute’s language with

care, including each word chosen for a purpose, while purposefully omitting words not chosen.”

City of Laredo v. Laredo Merchs. Ass’n, No. 16-0748, 2018 WL 3078112, at *8 (Tex. June 22,

2018) (quoting TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011)).

Accordingly, we “read statutes contextually to give effect to every word, clause, and sentence.”

Melden & Hunt, Inc., 520 S.W.3d at 893. We apply the plain meaning of the text unless a different

meaning is supplied by legislative definition or is apparent from the context, or the plain meaning

leads to absurd results. Gunn v. McCoy, No. 16-0125, 2018 WL 2994534, at *17 (Tex. June 15,

2018).




                                                 –5–
                                        Applicability of the Act

       In its first issue, WeKnow asserts the trial court erred by submitting any jury questions

relating to the Act because Hayes does not fall within the “type or class of persons the legislature

was attempting to protect when it originally enacted the Act in 1967.” WeKnow specifically

argues the Act imposes fiduciary duties on general contractors to ensure that artisans, laborers,

mechanics, contractors, subcontractors, and materialmen are paid and because Hayes does not fall

within this class of persons, his claim under the Act was “improper as a matter of law and should

not have been submitted to the jury.”

       The Act provides protection to certain persons from a contractor’s refusal to pay for labor

and materials provided on a construction project. Choy v. Graziano Roofing of Tex., Inc., 322

S.W.3d 276, 282 (Tex. App.—Houston [1st Dist.] 2009, no pet.). Under the Act, construction

payments are trust funds if they are made to a contractor or subcontractor or to an officer of the

contractor or subcontractor “under a construction contract for the improvement of specific real

property in this state.” TEX. PROP. CODE ANN. § 162.001(a); see also Dealers Elec. Supply Co. v.

Scoggins Constr. Co., Inc., 292 S.W.3d 650, 657 (Tex. 2009). The contractor, subcontractor, or

the officer who receives the trust funds is considered a trustee of the funds. TEX. PROP. CODE ANN.

§ 162.002; Border States Elec. Supply of Tex., Inc. v. Coast to Coast Elec., LLC, No. 13-13-00118-

CV, 2014 WL 3953961, at *4 (Tex. App.—Corpus Christi May 29, 2014, pet. denied) (mem. op.).

As originally enacted, the Act defined the statutory beneficiaries of the trust funds as artisans,

laborers, mechanics, contractors, subcontractors, and materialmen who labor or furnish labor or

materials for the construction or repair of an improvement. See Act of May 15, 1967, 60th Leg.,

R.S., ch. 323, § 1, 1967 Tex. Gen. Laws 770, 770. However, in 2009, the Legislature extended

the Act’s protection to property owners “in connection with a residential construction contract.”

Act of May 19, 2009, 81st Leg., R.S., ch. 1277, § 3, 2009 Tex. Gen. Laws 4029, 4029 (codified at

                                                  –6–
TEX. PROP. CODE ANN. § 162.003(b)); Hartman v. Norman, No. 09-16-00333-CV, 2017 WL

4682173, at *5 (Tex. App.—Beaumont Oct. 19, 2017, pet. denied) (mem. op.) (“A property owner

is a beneficiary of trust funds in connection with a residential construction contract, including

funds deposited into a construction account.”).

           A contractor who enters into a written contract with a property owner to construct

improvements on a residential homestead for an amount exceeding $5,000 is required to deposit

the trust funds into a construction account in a financial institution. Id. § 162.006(a). Trust funds

may only be distributed for purposes unrelated to the construction project after all current or past

due obligations to the beneficiaries have been paid. Id. § 162.031(a); Constructors & Assocs., Inc.

v. First Nat’l Bank of Cameron, No. 03-10-00357-CV, 2011 WL 2770234, at *3 (Tex. App.—

Austin July 14, 2011, no pet.) (mem. op.). A trustee misapplies the trust funds when it intentionally

or knowingly or with intent to defraud, directly or indirectly retains, uses, disburses, or otherwise

diverts trust funds without first fully paying all current or past due obligations incurred by the

trustee to the beneficiaries. TEX. PROP. CODE ANN. § 162.031(a). “A party who misapplies trust

funds under the [Act] is subject to civil liability to trust-fund beneficiaries whom the Act was

designed to protect.” Dealers Elec. Supply Co., 292 S.W.3d at 657; see also C&G, Inc. v. Jones,

165 S.W.3d 450, 453 (Tex. App.—Dallas 2005, pet. denied).

           The Act unambiguously includes property owners as persons entitled to protection from a

contractor’s misapplication of trust funds in connection with a residential construction contract.2

In this case, WeKnow agreed to install two wind turbines on Hayes’s residential property,

including the construction of foundations and towers to support the turbines. In return, Hayes paid

WeKnow $46,190.43 under the Sales Agreement plus $2,175 for additional work required in

completing the foundations for the turbines. In is undisputed that WeKnow properly disbursed


   2
       WeKnow did not argue in either the trial court or in this appeal that the Sales Agreement was not a residential construction contract.

                                                                      –7–
$41,190.43 of the funds paid pursuant to the Sales Agreement and the $2,175 for the additional

rock work. However, the Sales Agreement specified the remaining $5,000 of the funds paid by

Hayes to WeKnow was for the upgrade of the wind turbines to the Skystream 600 model.

WeKnow failed to install the Skystream 600 wind turbines on Hayes’s property and admitted it

was required to refund to Hayes the $5,000 that he paid for the upgrade. At the time WeKnow

ceased business operations, Hayes had not received the refund and WeKnow no longer had the

money, indicating it had disbursed the trust funds without fully paying all its obligations to Hayes.

       Because the Act is a remedial statute, we give it a broad construction to effectuate its

protective purposes. C&G, Inc., 165 S.W.3d at 454; see also Dealers Elec. Supply Co., 292

S.W.3d at 658. On this record, we conclude there was more than a scintilla of evidence that the

funds Hayes paid to WeKnow were construction funds, WeKnow was a trustee of the trust funds,

Hayes was a beneficiary of the trust funds, and Hayes suffered the type of injury chapter 162 of

the property code was intended to prohibit. See TEX. PROP. CODE ANN. § 162.031; Hartman, 2017

WL 4682173, at *6 (as beneficiary under the Act, property owner had interest in ensuring

contractor was utilizing trust funds for construction project). Accordingly, the trial court did not

err by submitting questions to the jury relating to WeKnow’s liability under Act. We resolve

WeKnow’s first issue against it.

                                          Attorney’s Fees

       In its second issue, WeKnow asserts the trial court erred by submitting to the jury a question

regarding the amount of attorney’s fees to be awarded to Hayes for any violation of the Act. While

this case was on appeal, the Texas Supreme Court determined the Act does not provide for the

recovery of attorney’s fees. Dudley Constr., Ltd., 545 S.W.3d at 541–42. We therefore resolve

WeKnow’s second issue in its favor and reverse the trial court’s award to Hayes of $15,000 for

attorney’s fees.

                                                –8–
       We modify the judgment to remove the award of attorney’s fees and affirm the judgment

as modified. See TEX. R. APP. P. 43.2(b); Larrison v. Catalina Design, No. 02-10-00167-CV, 2011

WL 582730, at *5–6 (Tex. App.—Fort Worth Feb. 17, 2011, no pet.) (mem. op.).




                                                /Robert M. Fillmore/
                                                ROBERT M. FILLMORE
                                                JUSTICE




170554F.P05




                                             –9–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 WEKNOW TECHNOLOGIES, INC.,                            On Appeal from the 68th Judicial District
 Appellant                                             Court, Dallas County, Texas,
                                                       Trial Court Cause No. DC-14-14271.
 No. 05-17-00554-CV         V.                         Opinion delivered by Justice Fillmore,
                                                       Chief Justice Wright and Justice Schenck
 JOE HAYES, Appellee                                   participating.

    In accordance with this Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:

       The award of $15,000.00 for reasonable and necessary attorney’s fees is removed
       from the judgment.

It is ORDERED that, as modified, the judgment of the trial court is AFFIRMED.

       It is ORDERED that appellee Joe Hayes recover the full amount of the trial court’s
judgment from appellant WeKnow Technologies, Inc. and from the cash bond deposit. After all
amounts due under the judgment have been paid, the District Clerk is directed to release the
balance, if any, of the cash deposit to Charles Reed.

       It is ORDERED that the parties bear their own costs on appeal.


Judgment entered this 10th day of July, 2018.




                                                –10–
