Reversed and Remanded and Memorandum =
Opinion filed=20
October 18, 2007.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-06-00769-CV
____________
JOHN TSERTOS=20
and DUNDAS HOLDINGS, INC., =
Appellants
V.
YAMMINE=20
GABRIEL YAMMINE, D.D.S. and Y. GABRIEL YAMMINE, D.D.S.,=20
P.A.,=20
Appellees
On Appeal from the =
County Civil Court at Law No. 4
Harris County, =
Texas
Trial Court Cause =
No. 858934
M E M O R=20
A N D U M O P I N I O N
Appellants,=20
John Tsertos and Dundas Holdings, Inc., appeal the trial =
court=3Ds granting=20
appellees=3D, Yammine=20
Gabriel Yammine, D.D.S. and Y. Gabriel Yammine, D.D.S., summary =
motion,=20
declaring the affidavit claiming the mechanic=3Ds and=20
materialman=3Ds lien=20
invalid and unenforceable, and awarding attorney fees to =
appellees. =20
We reverse and remand.
On October=20
19, 2004, Dundas Holdings entered into an agreement to build an =
office to=20
be used for Yammine=3Ds dental=20
practice. The agreed price to build the office was=20
$990,846.25. Under the agreement, Dundas was entitled to =
progress=20
payments. On October 29, 2004, Yammine gave Dundas a payment =
in the=20
amount of $76,500 to lock in the price of steel, glass, and =
stone. =20
Construction on the building began in February 2005. Dundas =
made=20
seven draw requests, as well as other invoices for direct payment =
by=20
Yammine. The first six draw requests were approved and =
paid. =20
The seventh draw request was not paid.
On=20
February 10, 2006, Dundas filed a notice of mechanic=3Ds and=20
materialman=3Ds lien=20
with John Tsertos=3D =
affidavit=20
claiming mechanic=3Ds and=20
materialman=3Ds lien,=20
stating Dundas has an unpaid claim in the amount of =
$313,820.85. On=20
March 2, 2006, Yammine filed suit against Dundas and Tsertos, in =
his=20
individual capacity, alleging the affidavit and notice were =
wrongful and=20
fraudulent, and seeking to have the lien declared invalid and=20
unenforceable. On April 20, 2006, Yammine filed a summary =
motion to=20
remove an invalid or unenforceable lien, which the trial court =
granted,=20
declaring the lien invalid and unenforceable. =
In their=20
first issue, appellants complain the trial court erred in removing =
the=20
lien. In a suit to declare a lien invalid or unenforceable, =
the=20
party objecting to the validity or enforceability of the claim or =
lien may=20
file a motion to remove the claim or lien. Tex. Prop. Code Ann. =
' =
53.160(a)=20
(Vernon 2007). The owner may object to the validity or=20
enforceability of the lien on the basis that he has complied with =
Section=20
53.101=20
and paid the retainage and all other funds owed to the contractor =
before=20
the claimant perfected the lien claim, and the owner received =
notice of=20
the claim. Tex. =
Prop. Code=20
Ann. ' =
53.160(b)(4). =20
The trial court shall promptly determine a motion to remove a =
claim or=20
lien. Tex. Prop. =
Code=20
Ann. ' =
53.160(e). If the trial court determines the movant is not =
entitled=20
to remove the lien, it shall enter an order denying the =
motion. On=20
the other hand, if the court determines the movant is entitled to =
remove=20
the lien, it shall enter an order removing the lien claimed in the =
lien=20
affidavit. Id.
Yammine=20
asserts Dundas did not build the project in accordance with the =
plans and=20
specifications, and at the time of the seventh draw request, =
Dundas was on=20
notice of nonconforming work under the contract, but had not =
undertaken to=20
cure any of the nonconforming work in accordance with the terms of =
the=20
agreement. According to Yammine, Dundas was terminated in =
October=20
2005, for cause under the agreement, and had been paid in full for =
all=20
invoiced work. Appellants, on the other hand, contend when =
the=20
seventh draw request was not honored, the construction was place =
on=20
suspension by Dundas.
Appellants=20
complains of Yammine=3Ds=20
affidavit because it does not state the facts contained in the =
affidavit=20
are true and correct. An affidavits that does not represent =
that the=20
facts as disclosed in the affidavit to be true and within the=20
affiant=3Ds personal=20
knoweldge is legally insufficient. Humphreys v. =
Caldwell, 888=20
S.W.2d 469, 470 (Tex. 1994) (orig. proceeding). Appellants =
assert=20
Yammine=3Ds=20
affidavit is identical to those in Humphreys and, =
therefore, is not=20
sufficient to establish the matters set forth therein. =
Where an=20
affidavit does not specifically recite that the facts are true, =
but sets=20
out that it was made on the affiant=3Ds personal=20
knowledge and is subscribed to and sworn before a notary public, =
it is not=20
defective if, when considered in its entirety, its obvious effect =
is the=20
affiant is representing the facts stated therein are true and=20
correct. Federal Fin. Co. v. Delgado, 1 S.W.3d 181, =
184 (Tex.=20
App.CCorpus=20
Christi 1999, no pet.); Huckin v. Connor, 928 S.W.2d 180,=20
183B84 (Tex.=20
App.CHouston=20
[14th Dist.] 1996, writ denied). Although =
Yammine=3Ds=20
affidavit does not specifically state the facts contained therein =
are=20
Atrue and=20
correct,@ =
it=20
states, AI have=20
personal knowledge of the statements made in this =
affidavit,@ =
it is a=20
sworn document, and its obvious effect is Yammine is representing =
the=20
facts stated therein are true and correct. Therefore, we =
will=20
consider Yammine=3Ds=20
affidavit.
Yammine=20
asserts he complied with Section 53.101 and paid all funds owed to =
Dundas=20
for work done or materials furnished prior to Dundas=3D =
perfection of its lien claim and before he received noticed of the =
claim. Yammine also asserts he is owed the $76,500 =
prepayment he=20
made for the steel, glass, and stone. According to Yammine, =
Tsertos=20
said he would be reimbursed after the financing was in place and =
the draw=20
requests were made. Yammine, however, asserts he has yet to =
be=20
reimbursed. Attached to appellants=3D =
response=20
to Yammine=3Ds summary=20
motion, is John Tsertos=3D =
affidavit=20
in which he states two change orders were submitted on June 30, =
2005, and=20
approved on September 12, 2005, for a total of $42,296.15, plus =
$11,471.00=20
for an increase in steel prices. Tsertos further asserts all =
offsets=20
have been applied, including the $76,500 prepayment. =
We=20
conclude appellants have raised a fact issue with regard to =
whether=20
Yammine had paid all money due to Dundas. Therefore, the =
trial court=20
erred in granting the summary motion, and appellants=3D =
first=20
issue is sustained. =20
Accordingly,=20
we reverse the judgment of the trial court and remand for =
proceedings=20
consistent with this opinion.
_____________________________
J. Harvey =
Hudson
Senior =
Justice
Judgment=20
rendered and Memorandum Opinion/Opinion filed October 18, =
2007.
Panel=20
consists of Chief Justice Hedges, Justice Guzman, and Senior =
Justice=20
Hudson.
Section 53.101 provides during =
the progress=20
of the work under an original contract for which a =
mechanic=3Ds lien may be claimed and for 30 days =
after the=20
work is completed, the owner shall retain (1) 10 percent of the =
contract=20
price of the work to the owner; or (2) 10 percent of the value of =
the=20
work, measured by the proportion that the work done bears to the =
work to=20
be done, using the contract price or, if there is no contract =
price, using=20
the reasonable value of the completed work. Tex. Prop. Code Ann. =
' 53.101(a) (Vernon =
2007).
Appellants assert Yammine relies =
on section=20
53.160(5). However, because Yammine sought to remove the =
lien under=20
on section 53.160(4), we will address the summary motion under=20
53.160(4).
Because of our disposition, we =
need not=20
address appellants=3D other issues in which they complain the =
trial=20
court erred in awarding attorney fees payable by Dundas and =
Tsertos,=20
jointly and severally, and the trial court erred in not making =
findings of=20
fact and conclusions of law.
Senior Justice J. Harvey Hudson =
sitting by=20
=
assignment. |