HADNOT v. WENCO DISTRIBUTORS (1997)

OPINION

Appellants, Thomas and Gay Hadnot, appeal a judgment rendered in favor of appellees, a group of four subcontractors.   Appellees sued the Hadnots to recover amounts owed to them for materials and labor provided for the Hadnots' new home and to foreclose upon liens that appellees had on the new home.   After a bench trial, the trial court found that the Hadnots owed appellees for the materials and labor and entered a judgment establishing and foreclosing appellees' liens.   On appeal, the Hadnots argue that (1) the trial court erred in not making various findings of fact and conclusions of law;  (2) there was no evidence to support the judgment;  and (3) the trial court erred in awarding attorney's fees to the appellees.   We reform the judgment and, as reformed, affirm.

FACTS

On July 16, 1993, Thomas and Gay Hadnot entered into a mechanic's lien contract with The Magnificent Seven Corporation, a Texas corporation d/b/a Gibraltar Homes (“Gibraltar”) to build a new home (the property) for $189,260.   On March 21, 1994, Gibraltar completed the house.   That afternoon, the Hadnots paid Gibraltar in full, including $20,000 in “extras” for the house and then closed their permanent home loan.   On April 11, 1994, appellee Hall's Carpet Haus, Inc. (“Hall”) sent the Hadnots notice of an unpaid indebtedness for labor and materials it supplied to the property.   On April 22, 1994, appellee M & M Lighting, Inc. (“M & M Lighting”) sent its notice, on April 27, 1994, appellee Wenco Distributors (“Wenco”) sent its notice, and on April 28, 1994, and again on June 3, appellee Dan's Plumbing, Inc. (“Dan”) sent its notice.   The Hadnots received Hall's and Dan's notices “timely,” Wenco's notice on May 3, and M & M Lighting's notice on May 4.   On May 3, Wenco and M & M Lighting filed mechanic's liens on the property.   Hall and Dan filed mechanic's liens on the property May 13 and June 17, respectively.   All appellees later sued the Hadnots to collect the unpaid indebtedness and to establish and foreclose their liens.   After a bench trial, the trial court rendered judgment for the appellees on their money claims and their foreclosures.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In point of error one, the Hadnots contend that the trial court erred in not making a finding of fact that appellees' claims against Gibraltar, the general contractor, had been reduced to a final judgment.   Specifically, the Hadnots argue that appellees were required to pursue a final judgment on their claims against Gibraltar before the Hadnots would be liable to appellees for any unpaid indebtedness against the property under Tex. Prop.Code Ann. § 53.084(b) (Vernon 1995).

The record belies the Hadnots' literal contention.   Included in the trial court's findings of fact were the following:

3.  Gibraltar is not a party to this suit, and none of the Plaintiffs and Cross-Defendants [Appellees] have obtained a final judgment against Gibraltar for their claims against Gibraltar for materials which such Plaintiffs and Cross-Defendants [Appellees] sold to Gibraltar for use in the construction of the Hadnot Residence and which indebtedness forms the basis of each of the Mechanics' Liens Claims which the various Plaintiffs and Cross-Defendants [Appellees] have caused to be filed of record against the property on which the Hadnot Residence is located.

4. None of the Plaintiffs and Cross-Defendants had any suit pending against Gibraltar on the date of the trial of this case, for their claims against Gibraltar for materials which were sold by the Plaintiffs [Appellees] to Gibraltar for use in the construction of the Hadnot Residence.

If we were to agree with the Hadnots' contention that the appellees must have pursued claims against Gibraltar to a final judgment before proceeding against the Hadnots, then the above findings would support that contention.   The essence of the Hadnots' contention in point of error one, then, is not that the trial court erred in not making a finding of fact, but rather that the trial court erred in rendering judgment for appellees because the trial court's findings of fact established that the Hadnots were not liable.

Sources of Funds

Under the mechanic's, contractor's, and materialman's lien statutes,¹ there are two sources of funds to which a derivative claimant may look for recovery from an owner.  First Nat'l Bank v. Sledge, 653 S.W.2d 283, 286 (Tex.1983);  see Tex. Prop.Code Ann. § 53.101 et seq (Vernon 1995);  Tex. Prop.Code Ann. § 53.081 et seq (Vernon 1995).

Ten Percent Retainage

Under section 53.101 (“Statutory Retainage Statute”), an owner, under an original contract for which a mechanic's lien may be claimed, is required to retain 10 percent of the contract price of the work to the owner or 10 percent of the value of the work during the progress of work and for 30 days after the work is completed.  Tex. Prop.Code Ann. § 53.101 (Vernon 1995).   The retained funds secure the payment of artisans and mechanics who perform labor or service and the payment of other persons who furnish material, material and labor, or specially fabricated material for any contractor, subcontractor, agent, or receiver in the performance of the work.  Tex. Prop.Code Ann. § 53.102 (Vernon 1995).   A claimant has a lien on the retained funds if the claimant (1) sends the notices required by this chapter in the time and manner required;  and (2) files an affidavit claiming a lien not later than the 30th day after the work is completed.  Tex. Prop.Code Ann. § 53.103 (Vernon 1995).   If the owner does not comply with this subchapter, the claimants complying with this chapter have a lien, at least to the extent of the amount that should have been retained from the original contract under which they are claiming, against the house, building, structure, fixture, or improvements and all of its properties and against the lot or lots of land necessarily connected.  Tex. Prop.Code Ann. § 53.105(a) (Vernon 1995).

If the lien claim arises from a debt incurred by the original contractor, the claimant must give notice to the owner or reputed owner, with a copy to the original contractor.  Tex. Prop.Code Ann. § 53.056(c) (Vernon 1995).   The claimant must give the same notice to the owner or reputed owner and the original contractor not later than the 15th day of the third month following each month in which all or part of the claimant's labor was performed or material or specially fabricated material was delivered.  Tex. Prop.Code Ann. § 53.056(b) (Vernon 1995).

 The person claiming the lien must file an affidavit with the county clerk of the county in which the property is located not later than the 15th day of the fourth calendar month on which indebtedness accrues.  Tex. Prop.Code Ann. § 53.052(a) (Vernon 1995).   The affidavit must be signed by the person claiming the lien or by another person on the claimant's behalf and must contain substantially:

(1) a sworn statement of the claim, including the amount;

(2) the name of the owner or reputed owner;

(3) a general statement of the kind of work done and materials furnished by the claimant;

(4) the name of the person by whom the claimant was employed or to whom the claimant furnished the materials and labor;

(5) the name of the original contractor;

(6) a description, legally sufficient for identification, of the property sought to be charged with the lien;  and

(7) the claimant's business address.

Tex. Prop.Code Ann. § 53.054(a) (Vernon 1995).   When the owner does not retain the 10% fund, the 30-day period for claiming liens is inapplicable.   General Air Conditioning Co. v. Third Ward Church of Christ, 426 S.W.2d 541, 544 (Tex.1968).   The owner becomes personally liable to the claimant if the owner does not retain the 10% fund.  James Mechanical Contractors v. Tate, 647 S.W.2d 347, 350 (Tex.App.-Corpus Christi 1982, no writ);  Donahue v. Rattikin Title Co., 534 S.W.2d 156, 159 (Tex.Civ.App.-Fort Worth 1976, no writ);  W & W Floor Covering Co. v. Project Acceptance Co., 412 S.W.2d 379, 382 (Tex.Civ.App.-Austin 1967, no writ).

Trapped Retainage

 Under section 53.081 et seq (“Trapping Statute”), a claimant can trap, in the owner's hands, funds payable to the general contractor if the owner receives notice from the claimants that they are not being paid.   Sledge, 653 S.W.2d at 286;  see Tex. Prop.Code Ann. § 53.081 et seq (Vernon 1995).   If the owner pays any money to the general contractor after receiving notice from the claimants, the owner's property will be subject to a lien to the extent of the money paid.  Sledge, 653 S.W.2d at 286;  Tex. Prop.Code Ann. § 53.084(b) (Vernon 1995).   The owner is liable for that amount in addition to any amount for which he is liable under the statutory retainage statute.  Tex. Prop.Code Ann. § 53.084(b) (Vernon 1995).   The amount trapped may exceed the 10% required to be retained under the statutory retainage statute.  Sledge, 653 S.W.2d at 286.   The owner becomes liable under the trapping statute if the owner has received the required notice, if the lien has been secured, and if the claim has been reduced to final judgment.  Tex. Prop.Code Ann. § 53.084(b) (Vernon 1995).

“Reduced to Final Judgment”

 The Hadnots contend that the section 53.084(b) language “if the claim has been reduced to final judgment” means that to recover from the owner under any circumstances, the appellees were required first to obtain a judgment against the general contractor.   We disagree.   This language relates to the establishment and foreclosure of the lien.   A mechanic's lien is not created by agreement of the parties, nor is it a self-enforcing lien like a deed of trust or a security agreement.   It may be established only by judicial order.  Section 53.154 provides that “[a] mechanic's lien may be foreclosed only on judgment of a court of competent jurisdiction foreclosing the lien and ordering the sale of the property subject to the lien.”  Tex. Prop.Code Ann. § 53.154 (Vernon 1995).   Therefore, a final judgment is required before a mechanic's lien is established and foreclosed, no matter what the source of funds held by the owner or for which the owner is liable.   We offer no explanation why the “final judgment” language is placed in section 53.084(b) and not in section 53.105.   The only reasonable construction of the chapter requires that we interpret the provisions in accordance with the above analysis.

Basis of Recovery

The Hadnots argue that appellees were required to obtain a final judgment against the Gibraltar under section 53.084(b) before they could establish and foreclose a lien against the Hadnot's property.   We disagree for two reasons.   First, appellees did not recover under section 53.084;  rather, they recovered under section 53.105.   Therefore, the requirements of section 53.084 are not applicable.   Second, the Hadnots misinterpret the meaning of a “claim ․ reduced to a final judgment.”   The judgment referenced is not against the general contractor, but rather it is a judgment establishing and foreclosing a lien against the owner's property under section 53.154.

We overrule point of error one.

The discussion of the remaining points of error does not meet the criteria for publication, Tex.R.App. P. 90, and is thus ordered not published.   We reform the judgment of the trial court to award attorney's fees to appellees in the event of an appeal by the Hadnots to the supreme court only if appellees are ultimately successful in having their judgment affirmed.   As reformed, we affirm the judgment of the trial court.

NO EVIDENCE

In points of error two and three, the Hadnots argue that there was no evidence to support the trial court's judgment.   In point of error two, the Hadnots contend that the trial court erred in not making findings of fact (1) that the Hadnots were indebted to Gibraltar when appellees filed their respective written notices;  or (2) that any appellee gave a written notice to the Hadnots or filed a mechanic's lien against the property before the end of the 30-day period during which the Hadnots were required to hold the statutory retainage under Tex. Prop.Code Ann. § 53.101 (Vernon 1995).   The Hadnots contend, therefore, that there was no evidence to support the trial court's judgment establishing and foreclosing a lien on the Hadnots' property.   In point of error three, the Hadnots contend that the trial court erred in not making findings of fact and/or conclusions of law to establish (1) the name of the entity to whom the appellees sold their goods and materials that formed the basis of their mechanic's liens;  (2) the amount due to appellees on the date of the trial;  (3) that the amount due and owing to the appellees was due and owing on the date of trial;  and (4) that the Hadnots were liable to appellees for such amounts.   The Hadnots conclude that these findings were necessary to support the judgment establishing and foreclosing the lien and awarding attorney's fees.   We disagree.

Standard of Review

Findings of fact in a case tried to the court have the same force and dignity as a jury's verdict on special issues.  Herbage v. Snoddy, 864 S.W.2d 695, 698 (Tex.App.-Houston [1st Dist.] 1993, writ denied).   However, findings of fact are not conclusive when a complete statement of facts appears in the record.  Id.  The trial court's findings of fact are reviewable for legal and factual sufficiency of the evidence to support them by the same standards applied in reviewing the legal or factual sufficiency of the evidence supporting a jury's answer to a jury question.  Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994);  National Commerce Bank v. Stiehl, 866 S.W.2d 706, 707 (Tex.App.-Houston [1st Dist.] 1993, no writ).   Conclusions of law are reviewable de novo as a question of law and will be upheld on appeal if the judgment can be sustained on any legal theory supported by the evidence.   Nelkin v. Panzer, 833 S.W.2d 267, 268 (Tex.App.-Houston [1st Dist.] 1992, writ dism'd w.o.j.).   Although a trial court's conclusions of law may not be challenged for factual sufficiency, the trial court's conclusions drawn from the facts may be reviewed to determine their correctness.  Stiehl, 866 S.W.2d at 707.

In reviewing legal insufficiency or no evidence points, the reviewing court considers only the evidence and inferences, when viewed in their most favorable light, that tend to support the finding and disregards all evidence and inferences to the contrary.  Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989);  Neese v. Dietz, 845 S.W.2d 311, 312 (Tex.App.-Houston [1st Dist.] 1992, writ denied).   An appellate court is limited to reviewing only the evidence tending to support the jury findings in a no evidence point of error.  Sherman v. First Nat'l Bank, 760 S.W.2d 240, 242 (Tex.1988);  Fazzino v. Guido, 836 S.W.2d 271, 273 (Tex.App.-Houston [1st Dist.] 1992, writ denied).   If there is any evidence of probative force to support the finding, the point must be overruled and the finding upheld.   Sherman, 760 S.W.2d at 242;  Hollander v. Capon, 853 S.W.2d 723, 726 (Tex.App.-Houston [1st Dist.] 1993, writ denied).

Analysis

The Hadnots entered into a mechanic's lien contract with Gibraltar for the construction of a new home.   On March 21, 1994, Gibraltar completed the house.   The Hadnots paid Gibraltar in full that same day and closed their permanent home loan.   The Hadnots did not withhold the required 10% of the contract from Gibraltar.   Accordingly, appellees were not required to claim liens within 30 days after the work was completed.   See General Air, 426 S.W.2d at 544.   Appellees were required only to notify the Hadnots within the period specified by section 53.056(b) of the Property Code, the 15th day of the third month following each month in which all or part of the claimant's labor was performed or material was delivered.

The trial court made findings of fact that appellees timely gave their notice 2 and filed proper lien affidavits.   After viewing the record, we agree.   Invoices from Wenco and M & M Lighting that were introduced into evidence were dated March 3, 1994.3  An invoice from Hall that was introduced into evidence was dated February 23, 1994.4  An invoice from Dan that was introduced into evidence was dated March 21, 1994.   Under section 53.056, Wenco, M & M Lighting, and Dan were required to timely file their notices of lien claims by June 15, 1994, and Hall was required to file its notice of a lien claim by May 15, 1994.   The record shows that all of the appellees filed their notices timely.   They also filed proper lien affidavits required by section 53.054(a) of the Property Code. The invoices and the affidavits show that Gibraltar was the one to whom appellees supplied their labor and/or material and specified the amounts owed by Gibraltar.   Therefore, appellees properly perfected liens on any retained funds held by the Hadnots.   See Tex. Prop.Code Ann. §§ 53.101, 53.105 (Vernon 1995).   We hold that the trial court properly found that the Hadnots were liable to appellees for such amounts and properly ordered the establishment and foreclosure of appellees' liens.

We further hold that the trial court did not err in failing to find that the amounts due to appellees were due and owing on the date of trial.   At trial, appellees established that they had unpaid claims against Gibraltar.   If the claims were not due and owing at that time, it was up to the Hadnots to show that there had been accord and satisfaction.   See Tex.R.App. P. 94.   Further, the Hadnots never contested the amounts at trial.

We overrule points of error two and three.

DENIAL OF THE HADNOTS' REQUESTED FINDINGS AND CONCLUSIONS

In point of error six, the Hadnots contend that the trial court erred in not making findings of fact and conclusions of law that (1) appellees' liens were void, unenforceable, and constituted clouds on the title of their property;  and (2) they were entitled to attorney's fees.   We disagree.

The Hadnots condition this point of error on our sustaining points of error one, two, or three.   Because we overruled all of these points of error in holding that the trial court properly rendered judgment for appellees, it is unnecessary for us to reach the merits of this point of error.

We overrule point of error six.

ATTORNEY'S FEES

In points of error four and five, the Hadnots complain about the award of attorney's fees.   In point of error four, the Hadnots contend that the trial court erred in awarding attorney's fees in the event of any appeals to the court of appeals and/or to the supreme court without conditioning the award upon appellees' success on either appeal.   In point of error five, the Hadnots contend that the trial court erred in awarding the attorney's fees in appellees' attorney's name because he was not a party to this case.

Successful on appeal

In any proceeding to foreclose a lien, the court may award costs and attorney's fees as are equitable and just.  Tex. Prop.Code Ann. § 53.156 (Vernon 1995).   An award of attorney's fees by the trial court to the non-appealing party in case of an appeal is allowed, but it must be conditioned upon the appealing party's being unsuccessful on appeal.  Siegler v. Williams, 658 S.W.2d 236, 241 (Tex.App.-Houston [1st Dist.] 1983, no writ).   An unconditional award of appellate attorney's fees is improper.  Id.  A trial court may not penalize a party for prosecuting a successful appeal by taxing him with attorney's fees if he takes such action.  Id.  However, if on appeal to the court of appeals the appealing party is unsuccessful, then the unconditional award of attorney's fees at the court of appeals level is harmless.

The trial court awarded attorney's fees to Chuck Portz, appellees' attorney, in the amount of $2,750, in the amount of $2,500 in the event of an appeal to the court of appeals, and in the amount of $2,000 in the event of an appeal to the supreme court.   The award did not condition the appellate attorney's fees upon appellees' success in this Court or at the supreme court.   We hold that the trial court erred.   This error is harmless so far, however, because the Hadnots are unsuccessful on this appeal.   See Sipco Serv. Marine v. Wyatt Field Serv., 857 S.W.2d 602, 608 (Tex.App.-Houston [1st Dist.] 1993, no writ).   Yet, to the extent that this point of error applies to the unconditional award of attorney's fees on appeal to the supreme court, it is not harmless.   The remedy is to reform the judgment of the trial court to condition appellees' attorney's fees on the appellees' success on appeal, if any, to the supreme court.   See Sipco, 857 S.W.2d at 608.

We sustain point of error four to the extent that it applies to the unconditional award of attorney's fees on appeal to the Texas Supreme Court.

Direct Award of Attorney's Fees

The Hadnots rely on Streeter v. Thompson, 751 S.W.2d 329, 331 (Tex.App.-Fort Worth 1988, no writ), to support their argument that it was error to award attorney's fees directly to appellees' attorney, Chuck Portz.   In Streeter, the trial court awarded attorney's fees under Tex. Civ. Prac. & Rem.Code Ann. § 38.001 (Vernon 1986) directly to the attorneys.   On appeal, the Fort Worth Court held that the award of attorney's fees directly to the attorneys (1) was not the intent of the statute, (2) did not conform to the parties pleadings, and (3) was erroneous because the attorneys were not parties to the case.  Streeter, 751 S.W.2d at 331.   The court modified the judgment to award the attorney's fees directly to the parties.  Id.  The supreme court held, however, in Newman v. Link, 889 S.W.2d 288, 289 (Tex.1994), that an attorney becomes a party to the judgment by representing a client in an action in which attorney's fees are requested and awarded.

In this case, appellees requested attorney's fees in their petition but did not request that they be awarded directly to Chuck Portz.   The award of attorney's fees confers party status on Chuck Portz.   We can perceive no reason why an award of attorney's fees directly to Chuck Portz would frustrate the intent of chapter 53.   We hold that awarding the attorney's fees directly to Chuck Portz, if error, is harmless.   The Hadnots can point to no harm they suffered as a result of an award directly to the attorney rather than indirectly to him through the agency of appellees.

We overrule point of error five.

We reform the judgment of the trial court to award attorney's fees to appellees in the event of an appeal by the Hadnots to the supreme court only if appellees are ultimately successful in having their judgment affirmed.   As reformed, we affirm the judgment of the trial court.

FOOTNOTES

1.   Tex. Prop.Code Ann. §§ 53.001-53.239 (Vernon 1995).

FN2. Tex. Prop.Code Ann. § 53.056(c) (Vernon 1995) requires claimants to send notice to the original contractor.   The record shows that Wenco and M & M Lighting sent notice to Gibraltar.   The record does not show whether Hall and Dan sent notice to Gibraltar.   The Hadnots do not contest this fact, so we will presume that Hall and Dan sent the required notice..  FN2. Tex. Prop.Code Ann. § 53.056(c) (Vernon 1995) requires claimants to send notice to the original contractor.   The record shows that Wenco and M & M Lighting sent notice to Gibraltar.   The record does not show whether Hall and Dan sent notice to Gibraltar.   The Hadnots do not contest this fact, so we will presume that Hall and Dan sent the required notice.

FN3.  The trial court found that Wenco completed its work on March 2. The record shows, however, that Wenco completed its work on March 3. The discrepancy is of no consequence..  FN3.  The trial court found that Wenco completed its work on March 2. The record shows, however, that Wenco completed its work on March 3. The discrepancy is of no consequence.

FN4.  The trial court found that Hall completed its work on March 9. The record shows, however, that Hall completed its work on February 23, which required Hall to notify the Hadnots and Gibraltar by May 15 instead of June 15 in accordance with Tex. Prop.Code Ann. § 53.056(c) (Vernon 1995)..  FN4.  The trial court found that Hall completed its work on March 9. The record shows, however, that Hall completed its work on February 23, which required Hall to notify the Hadnots and Gibraltar by May 15 instead of June 15 in accordance with Tex. Prop.Code Ann. § 53.056(c) (Vernon 1995).

HEDGES, Justice.