                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         _________________________

              No. 06-12-00027-CV
        ______________________________


          EQUITY BANK, SSB, Appellant

                          V.

ED N. DECKER, INDIVIDUALLY, AND AS TRUSTEE
    OF THE DECKER FAMILY TRUST, Appellee



   On Appeal from the 62nd Judicial District Court
              Franklin County, Texas
               Trial Court No. 10,532




     Before Morriss, C.J., Carter and Moseley, JJ.
       Memorandum Opinion by Justice Carter
                                      MEMORANDUM OPINION

        In March 2006, Equity Bank, SSB, now known as Triumph Savings Bank, SSB, sued Ed

N. Decker, individually, and as trustee of the Decker Family Trust, seeking to recover the

remaining debt on two notes executed in 2004. In March 2007, the trial court granted a partial

summary judgment in favor of Equity Bank on one of the notes. In April 2007, the court severed

the case into two causes of action, one for each note. The partial summary judgment became

final upon the signing of the severance order, leaving only the present case. In his answer,

Decker asserted the affirmative defenses of failure of consideration and statute of frauds and

counterclaimed for breach of contract, breach of fiduciary duty and negligence. After a bench

trial, the trial court held that Equity Bank take nothing against Ed N. Decker, individually, and as

trustee, and that Decker was entitled to attorney‟s fees of $5,000.00.1 The trial court did not

award any damages or other affirmative relief.

        On appeal, Equity Bank argues that the trial court erred in awarding attorney‟s fees to

Decker because he failed to recover on any claim for which he could recover attorney‟s fees.

        We reverse the trial court‟s award of attorney‟s fees to Decker because he failed to

recover damages or other affirmative relief.

        We review de novo a trial court‟s ruling regarding attorneys‟ fees. Berg v. Wilson, 353

S.W.3d 166, 182 (Tex. App.—Texarkana 2011, pet. denied); G.R.A.V.I.T.Y. Enters., Inc. v.

Reece Supply Co., 177 S.W.3d 537 (Tex. App.—Dallas 2005, no pet.).


1
 The trial court also awarded Decker $6,500.00 in attorney‟s fees in the event Equity Bank filed an unsuccessful
appeal, and an additional $3,500.00 in the event of an unsuccessful appeal to the Supreme Court of Texas.


                                                       2
         Attorney‟s fees are recoverable from an opposing party only as authorized by statute or

by contract between the parties. Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809 (Tex.

2006). The judgment does not award Decker any affirmative relief and therefore he is not

entitled to the award of an attorney‟s fee. Even if the judgment could be construed to find that

Equity breached a contract, no recovery for attorney‟s fees would be allowed here. “To recover

under Section 38.001, a party must be a prevailing party and be awarded damages.” Flagship

Hotel, Ltd. v. City of Galveston, 117 S.W.3d 552, 564 (Tex. App.—Texarkana 2003, pet.

denied)2 (citing Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997)). In order to recover

fees, Decker must (1) prevail on his claim for breach of contract3 and (2) recover damages.4

TEX. CIV. PRAC. & REM. CODE ANN. § 38.001 (West 2008); MBM Fin. Corp., 292 S.W.3d at

666; Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 201 (Tex. 2004).

         Accordingly, we reverse the trial court‟s award of attorney‟s fees and render judgment

that no attorney‟s fees are awarded.



                                                                Jack Carter
                                                                Justice

Date Submitted:            August 15, 2012
Date Decided:              August 16, 2012
2
 “[We] hold that „prevailing party‟ means the „party in whose favor a judgment is rendered, regardless of the amount
of damages awarded.‟” Flagship Hotel, Ltd., 117 S.W.3d at 565.
3
A defendant who successfully defends against a plaintiff‟s breach of contract claim is not entitled to attorney‟s fees.
G.R.A.V.I.T.Y. Enters., 177 S.W.3d at 548.
4
 The requirement of damages is implied from the statute‟s language, “in addition to the amount of a valid claim,” so
the claimant must recover some amount on that claim. MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d
660, 666 (Tex. 2009).

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