Opinion issued December 20, 2007
This appeal=20
arises out of disputes over the construction of a new building for =
the=20
Unity Church of Christianity. Among other things, we must decide =
whether=20
Property Code section 53.055 requires that a mechanic's, =
contractor's, and=20
materialman's lien affidavit be filed with the county clerk before =
the=20
required notice is given. Tex. Prop. Code Ann. =A7 53.055 (Vernon =
Supp.=20
2007). We hold that it does not.
Brookstone,=20
L.P. ("Brookstone") was the general contractor on the construction =
project. Brookstone posted a payment bond in favor of Unity, which =
was=20
issued by Liberty Mutual Insurance Company ("Liberty Mutual"). =
Brookstone=20
subcontracted the site preparation to Site Work Group, Inc. =
("SWG"). SWG,=20
in turn, subcontracted with Gustavo Arias d/b/a Gus Trucking =
Service=20
("Arias") to haul off the excavated material and to supply new =
fill for=20
the foundation. Problems arose between these parties and also with =
others=20
who are not involved in this appeal. Primarily, Brookstone was=20
dissatisfied with SWG's work, and SWG was dissatisfied with =
Arias's work.=20
When Arias was not paid by SWG, he filed lien affidavits against =
the=20
property, which affected Brookstone and its payment bond issued by =
Liberty=20
Mutual. Brookstone filed suit seeking a declaratory judgment that =
Arias=20
had no right to assert liens against the property. Brookstone =
later added=20
SWG as a defendant, suing for breach of contract. Arias =
counterclaimed=20
against Brookstone and Liberty Mutual as third-party defendants =
and=20
cross-claimed against SWG. SWG counterclaimed against both =
Brookstone and=20
Arias. After the=20
trial court rendered partial summary judgment on some of the =
issues in=20
dispute and others were nonsuited, the case was tried to a jury. =
The trial=20
court rendered judgment on the verdict as follows: (1) Brookstone =
take=20
nothing from SWG; (2) SWG recover $15,000 from Brookstone along =
with=20
attorney's fees for its quantum meruit claims; (3) SWG take =
nothing from=20
Brookstone on its breach-of-contract and other claims; (4) Arias =
recover=20
$42,000 from SWG along with attorney's fees for his =
breach-of-contract=20
claim; (5) Arias take nothing from SWG on his fraud claims; and =
(6) SWG=20
take nothing from Arias on its breach-of-contract claim. The trial =
court=20
also rendered judgment based on its February 14, 2005 =
summary-judgment=20
order as follows: (1) Arias take nothing from Liberty Mutual on =
his claim=20
on a payment bond; (2) the lien affidavits filed by Arias against =
Unity=20
were invalid; and (3) Arias pay Brookstone and Liberty Mutual =
$15,000 in=20
attorney's fees. In his=20
first issue, Arias contends the trial court erred in its February =
14, 2005=20
summary-judgment order by dismissing Arias's claim for payment on =
the=20
payment bond and invalidating his filed lien affidavits. On March =
14,=20
2003, Arias executed lien affidavits and mailed copies to Unity, =
the=20
property owner, and contractors Brookstone and SWG. On April 4, =
2003,=20
Arias filed the affidavits with the county clerk. Brookstone's and =
Liberty=20
Mutual's motion for summary judgment against Arias raised two =
grounds: (1)=20
Arias failed to comply with the notice provisions of Property Code =
section=20
53.055(a) because he sent copies of the affidavits before he filed =
them=20
with the county clerk and (2) Arias's May 29, 2003 lien =
affidavits, filed=20
with the county clerk on May 30, 2003, were not supported by any =
valid=20
debt. Tex. Prop. Code Ann. =A7 53.055 (Vernon Supp. 2007). Because =
the trial=20
court granted the motion without specifying a particular ground, =
we review=20
both grounds. Cincinnati Life Ins. Co. v. Cates, 927 =
S.W.2d 623,=20
626 (Tex. 1996). Property=20
Code section 53.055(a) states: A =
person=20
who files an affidavit must send a copy of the affidavit by =
registered or=20
certified mail to the owner or reputed owner at the owner's last =
known=20
business or residence address not later than the fifth day after =
the date=20
the affidavit is filed with the county clerk. In a split=20
decision, the Corpus Christi Court of Appeals has held that =
section 53.055=20
does not require that a mechanic's, contractor's, and =
materialman's lien=20
affidavit be filed with the county clerk before the required =
notice is=20
given. New AAA Apartment Plumbers, Inc. v. DPMC-Briarcliff, =
L.P.,=20
145 S.W.3d 728, 730 (Tex. App.--Corpus Christi 2004, no pet.). We =
agree=20
with this holding. Unless a=20
statute is ambiguous, we construe a statute as written, using the =
literal=20
text. Alex Sheshunoff Mgmt. Servs., L.P. v. Kenneth Johnson =
&=20
Strunk Assocs., L.P., 209 S.W.3d 644, 651-52 (Tex. 2006). We =
resort=20
to external sources like those listed in the Code Construction Act =
only=20
when the statute is ambiguous. Id. at n.4; Code =
Construction Act,=20
Tex. Gov't Code Ann. =A7 311.023 (Vernon 2005). As written, the =
statute only=20
provides the deadline for giving notice that a lien =
affidavit has=20
been executed, not a period during which notice may be=20
given. When a=20
statute is intended to establish a period in which an action must =
be=20
taken, the legislature's own drafting standard is to set forth =
clearly the=20
first and last days of the period. Texas Legislative Council =
Drafting=20
Manual =A7 7.28, at 99 (Charlotte Norris ed. 2006) (giving =
drafting example=20
of "after March 31 and before June 1" as clear means of describing =
period). Nothing in the statute clearly states that notice must be =
given=20
during a period that begins on the day after the lien affidavit is =
filed=20
and ends on the fifth day after the date the affidavit is filed.=20
See Code Construction Act, Tex. Gov't Code Ann. =A7 =
311.014 (Vernon=20
2005) (setting forth means of computing period of =
time). The heading=20
for section 53.055, "NOTICE OF FILED AFFIDAVIT," does suggest that =
notice=20
is to be given after filing the affidavit. A statute's heading, =
however,=20
should not be used to limit or expand the meaning of the statute. =
Code=20
Construction Act, Tex. Gov't Code Ann. =A7 311.024 (Vernon 2005);=20
see Brooks v. State, 682 S.W.2d 437, 438 (Tex.=20
App.--Houston [1st Dist.] 1984, pet. ref'd). Since we=20
issued Cabintree, the supreme court has held that courts =
may not=20
look back to the former text of a statute which has been=20
"nonsubstantively" codified if the current text is direct and =
unambiguous.=20
Fleming Foods, Inc., v. Rylander, 6 S.W.3d 278, 286 (Tex. =
1999). Reading=20
section 53.055 and applying the rules of statutory interpretation =
cited=20
above, we conclude that the purpose of the statute is to ensure =
that the=20
owner receives actual notice that a lien affidavit has been =
executed with=20
the intent to file the affidavit and create a lien against the =
owner's=20
property, thus allowing the owner or original contractor to take=20
appropriate action. Nothing in the statute requires that the =
property=20
owner or original contractor be notified that the affidavit was =
actually=20
filed. Because the person executing the lien affidavit must file =
the=20
affidavit by the relatively short deadlines stated in Property =
Code=20
sections 53.052 and 53.056 (generally within two to four months =
from the=20
date the indebtedness accrues), the owner and original contractor =
can=20
hardly claim to be hurt when they are notified in advance of the =
actual=20
filing of the lien affidavit. Tex. Prop. Code Ann. =A7=A7 53.052, =
.056 (Vernon=20
Supp. 2007); see New AAA Apartment Plumbers, 145 =
S.W.3d=20
at 730 (purpose of section 53.055 notice is, in part, to prevent =
property=20
owner from being ambushed by recorded lien). In fact, the property =
owner=20
or original contractor may be able to resolve the dispute before =
the lien=20
affidavit is filed, preventing a cloud on title to the property. =
It is in=20
no way absurd for the legislature to allow a property owner or =
original=20
contractor to receive notice before an affidavit is actually =
filed, as=20
opposed to five days after the filing occurs, and we decline to =
rewrite=20
section 53.055 to require that notice can be given only after the =
lien=20
affidavit is filed. In their=20
second ground for summary judgment, Brookstone and Liberty Mutual =
claim=20
that Arias's May 29, 2003 lien affidavits, filed on May 30, 2003, =
are=20
nullities because they do not refer to a new debt separate from =
the March=20
14, 2003 lien affidavits. See Tex. Prop. Code Ann. =A7 =
53.024=20
(Vernon 1995) (limiting amount a subcontractor may claim). In =
essence,=20
Brookstone and Liberty Mutual are claiming that the May affidavits =
cannot=20
cure the alleged deficiency in notice associated with the original =
affidavits. Brookstone and Liberty Mutual admit in their motion =
for=20
summary judgment that the two sets of affidavits are for the same=20
underlying debt. Because we have held that the March 14, 2003 =
affidavits=20
are not invalid due to lack of notice, we need not reach =
Brookstone's and=20
Liberty Mutual's second ground for summary judgment. We sustain=20
issue one. In issue=20
two, Arias challenges the trial court's award of attorney's fees =
under=20
Property Code section 53.156. Tex. Prop. Code Ann. =A7 53.156 =
(Vernon 1995)=20
(allowing attorney's fees "as are equitable and just"). Because we =
have=20
concluded that the trial court erred in granting Brookstone's and =
Liberty=20
Mutual's motion for summary judgment, we agree that the trial =
court's=20
award of attorney's fees was error. See Page v. =
Marton=20
Roofing, Inc., 102 S.W.3d 750, 754 (Tex. App.--Houston [1st =
Dist]=20
2002), rev'd on other grounds, 102 S.W.3d 733 (Tex.=20
2003). We sustain=20
issue two. In issue=20
three, Arias contends the trial court erred in denying his January =
13,=20
2005 third motion for summary judgment against Liberty Mutual. We =
overrule=20
this issue because there was a jury trial as to all issues not =
resolved by=20
summary judgment. Arias, therefore, is not entitled to appeal the =
denial=20
of his motion for summary judgment. Cincinnati Life, 927 =
S.W.2d=20
at 625. In issue=20
four, Arias claims the trial court erred in rendering summary =
judgment for=20
Brookstone on its affirmative defense to Arias's claim that =
Brookstone=20
misapplied constructive trust funds in violation of Property Code =
section=20
162.031. Tex. Prop. Code Ann. =A7 162.031 (Vernon 1995). Nowhere =
in Arias's=20
appellate brief is there an indication that his request for the =
remedy of=20
a constructive trust is for a claim that is different from the =
claim that=20
underlies the lien affidavits we have previously discussed in =
issue one.=20
Because we sustained issue one, it is unnecessary for us to reach =
issue=20
four. In Arias's=20
issue five, he asks this Court to award him appellate attorney's =
fees=20
against SWG according to a Rule 11 agreement in the trial court.=20
See Tex. R. Civ. P. 11. We take no action on this issue =
because=20
Arias is not claiming any error on the part of the trial =
court.
In two=20
issues, SWG challenges the portion of the final judgment which =
awarded=20
$42,000 to Arias. SWG first argues that Arias's lawyer committed =
incurable=20
jury argument by "going outside the record to allege criminal =
conduct,=20
fraud, and a conspiracy between SWG and Brookstone." SWG =
specifically=20
mentions five examples of alleged improper argument: (1) in the =
first=20
example, SWG did not object; (2) in the second example the trial =
court=20
sustained SWG's objection; and (3) in the other three examples the =
trial=20
court did not rule on the objections. The trial court instructed =
the jury=20
to base the verdict on the evidence and to not let bias, =
prejudice, or=20
sympathy affect its deliberations. SWG failed to obtain a =
contemporaneous=20
adverse ruling on its objections, as is normally required to =
preserve an=20
error for appeal. See Tex. R. App. P. 33.1(a). SWG tacitly=20
acknowledges its lack of preservation at closing argument, as it =
relies on=20
case law that relieves a party from contemporaneously preserving =
error=20
concerning an improper jury argument if the argument is incurable. =
See, e.g., Otis Elevator Co. v. Wood, 436 S.W.2d =
324,=20
333 (Tex. 1968). The rationale for not requiring a contemporaneous =
preservation of error is that the lawyer making the incurable =
argument is=20
the offender, so the law does not require the opposing lawyer to=20
potentially further prejudice the client's case before the jury by =
objecting. Id. Incurable jury argument, however, must be =
raised=20
in a motion for new trial, which SWG did. See Tex. R. =
Civ. P. 324=20
(incurable jury argument must be raised in motion for new trial if =
not=20
otherwise ruled on by the trial judge); see, e.g., =
Turner v.=20
Turner, 385 S.W.2d 230, 237 (Tex. 1964) (complaint of =
incurable jury=20
argument may be made for first time in motion for new =
trial). This was a=20
week-long jury trial involving multiple parties and witnesses. The =
appellate record consists of a 15-volume clerk's record and =
19-volume=20
reporter's record. In its brief, SWG does not place the alleged =
improper=20
comments in the context of the entire case, even though it =
acknowledges=20
there were claims of conspiracy and constructive trust violations =
that=20
were nonsuited before all sides rested and final argument began. =
It is an=20
appellant's burden to demonstrate reversible error, and we hold =
that SWG=20
has not argued the alleged incurable jury argument in light of the =
entire=20
case. Accordingly, we overrule issue one. In issue=20
two, SWG argues there is legally and factually insufficient =
evidence to=20
support the jury's answer to question 24: What sum of=20
money, if paid now in cash, would fairly and reasonably compensate =
[Arias]=20
for its damages, if any, that resulted from [SWG's] failure to=20
comply? Consider=20
the following elements of damages, if any, and none =
other: a. The=20
amount [SWG] agreed to pay [Arias] pursuant to their =
agreement. b. Lost=20
profits that, as a natural, probable, and foreseeable consequence =
of=20
[SWG's] breach of contract, [Arias] suffered in the =
past; c. Returned=20
check charges that, as a natural, probable, and foreseeable =
consequence of=20
[SWG's] breach of contract, [Arias] sustained in the =
past. Do not add=20
any amount for interest on damages, if any. Answer in=20
dollars and cents, if any. SWG=20
preserved its legal-sufficiency complaint in a motion to disregard =
jury=20
findings and its factual-sufficiency complaint in a motion for new =
trial. When SWG=20
attacks the legal sufficiency of an adverse finding on an issue =
for which=20
it did not have the burden of proof, SWG must demonstrate that =
there is no=20
evidence to support the adverse finding. See Croucher =
v.=20
Croucher, 660 S.W.2d 55, 58 (Tex. 1983). Such a no-evidence =
challenge=20
will be sustained when "'(a) there is a complete absence of =
evidence of a=20
vital fact, (b) the court is barred by rules of law or of evidence =
from=20
giving weight to the only evidence offered to prove a vital fact, =
(c) the=20
evidence offered to prove a vital fact is no more than a mere =
scintilla,=20
or (d) the evidence conclusively establishes the opposite of the =
vital=20
fact.'" King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 =
(Tex.=20
2003) (quoting Merrell Dow Pharms., Inc. v. Havner, 953 =
S.W.2d=20
706, 711 (Tex. 1997)). When SWG challenges the legal sufficiency =
of the=20
evidence that Arias offered to prove a vital fact, "we must view =
the=20
evidence in a light that tends to support the finding of disputed =
fact and=20
disregard all evidence and inferences to the contrary." =
Wal-Mart=20
Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003). =
However,=20
"[t]he final test for legal sufficiency must always be whether the =
evidence at trial would enable reasonable and fair-minded people =
to reach=20
the verdict under review. . . . [L]egal-sufficiency =
review=20
in the proper light must credit favorable evidence if reasonable =
jurors=20
could, and disregard contrary evidence unless reasonable jurors =
could=20
not." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. =
2005).=20
The jury is the sole judge of witnesses' credibility; it may =
choose to=20
believe one witness over another, and a reviewing court cannot =
impose its=20
own opinion to the contrary. Id. at 819. Because it is =
the jury's=20
province to resolve conflicting evidence, we must assume that =
jurors=20
resolved all conflicts in accordance with their verdict if =
reasonable=20
human beings could do so. Id. When SWG=20
challenges the factual sufficiency of the evidence, this Court =
must=20
consider and weigh all the evidence and should set aside the =
judgment only=20
if it is so contrary to the overwhelming weight of the evidence as =
to be=20
clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, =
176 (Tex.=20
1986); see also Pool v. Ford Motor Co., 715 =
S.W.2d 629,=20
635 (Tex. 1986), overruled on other grounds by Crown =
Life=20
Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex. 2000); In =
re King's=20
Estate, 244 S.W.2d 660, 661 (Tex. 1951). At trial=20
and on appeal, SWG does not challenge the sufficiency of the =
evidence=20
based on all three elements that were submitted to the jury in =
question=20
24. SWG does not argue on appeal that the trial court submitted an =
erroneous charge. We therefore review the sufficiency of the =
evidence=20
based on the court's charge, not against the question and any =
instruction=20
that should have been submitted. See Osterberg v. =
Peca,=20
12 S.W.3d 31, 55 (Tex. 2000). Because SWG does not address each of =
the=20
three damage elements that was submitted to the jury, we hold that =
SWG has=20
waived its sufficiency challenge to question 24.
In a single=20
issue, Brookstone appeals the portion of the final judgment which =
awarded=20
$15,000 to SWG from Brookstone for the "amount of compensable work =
rendered by SWG for which it was not paid," because the judgment =
also=20
stated that "SWG take nothing by its claim for breach of contract =
against=20
Brookstone." This portion of the judgment was based on the answers =
to=20
questions 5, 6, 7, 9, and 10 in the jury's verdict, which found =
that=20
Brookstone failed to comply with its agreement with SWG (question =
5), that=20
Brookstone's failure to comply was excused (questions 6 and 7), =
that SWG=20
performed compensable work for Brookstone for which it was not =
paid=20
(question 9), and that $15,000.00 was the reasonable value of the=20
compensable work (question 10). The jury also found that SWG =
failed to=20
comply with its agreement with Brookstone (question 1), that SWG's =
failure=20
was excused (question 2), and that SWG substantially complied =
(question=20
3). Because the jury found that Brookstone's breach of contract =
was=20
excused, the trial instead awarded SWG $15,000 on the quantum =
meruit=20
claim. Brookstone=20
claims the trial court erred in allowing SWG to recover in quantum =
meruit=20
when the work was performed pursuant to a contract for which =
Brookstone's=20
breach was excused. Quantum meruit is an equitable remedy which =
does not=20
arise out of a contract, but is independent of it. There is no=20
dispute that a written contract exists which covers the services =
and=20
materials in question. SWG, therefore, cannot recover in quantum =
meruit=20
unless an applicable exception to the general rule exists. =
See=20
DiMiceli v. Affordable Pool Maint., Inc., 110 S.W.3d 164, =
169=20
(Tex. App.--San Antonio 2003, no pet.). SWG, however, does not =
argue that=20
an exception applies here. Instead, it appears to make two =
arguments.=20
First, SWG claims that case law stating a party can =
submit=20
alternative theories of recovery to the jury also =
authorizes a=20
party to recover both on the contract and in quantum meruit. =
Second, SWG=20
argues that because Brookstone's breach of contract was excused, =
there was=20
no "recovery." SWG cites no authority expressly addressing either =
of these=20
arguments, and we know of none. Brookstone=20
further challenges the portion of the final judgment which awarded =
(1)=20
$70,000 to SWG from Brookstone for attorney's fees, plus =
additional=20
attorney's fees on appeal, and (2) court costs. Brookstone asks =
this Court=20
to reverse those awards because SWG did not prevail on its quantum =
meruit=20
claim and was not a successful party to the suit. See =
Tex. R.=20
Civ. P. 131. We agree. We sustain=20
Brookstone's single issue. In its=20
September 15, 2006 appellee's brief, SWG also brings what it calls =
a=20
"cross-point," claiming the trial court erred in failing to render =
judgment on the jury's verdict that Brookstone breached the =
contract=20
(question 5) and damages for that breach were $31,919 (question =
8). SWG=20
asks this Court to hold that the two finding that Brookstone's =
breach was=20
excused (questions 6 and 7) are immaterial. SWG has wholly failed =
to brief=20
this "cross-point" on either the law or the law's relation to the =
facts of=20
this case. See Tex. R. App. P. 38.1(h) ("The brief must =
contain a=20
clear and concise argument for the contentions made, with =
appropriate=20
citations to authorities and to the record."). Although appellate =
courts=20
generally construe the briefing rules liberally, points of error =
or issues=20
unsupported by the citation of authority present nothing for the =
court to=20
review. Harris County Mun. Util. Dist. No. 48 v. =
Mitchell, 915=20
S.W.2d 859, 866 (Tex. App.--Houston [1st Dist.] 1995, no writ).=20
Accordingly, we hold that SWG waived its "cross-point" concerning =
recovery=20
of $31,919 on its breach-of-contract claim. Sam=20
Nuchia Panel=20
consists of Justices Nuchia, Keyes, and Higley.=20
1. "A person who files an affidavit must =
send two=20
copies of the affidavit by registered or certified mail to the =
owner at=20
the owner's last known business or residence address." Act of May =
26,=20
1983, 68th Leg., R.S., ch. 576, sec. 1, =A7 55.055, 1983 Tex. =
Gen. Laws=20
3475, 3540, amended by Act of May 28, 1989, 71st Leg., =
R.S., ch.=20
1138, =A7 7, 1989 Tex. Gen. Laws 4693, 4695, amended by =
Act of Apr.=20
15, 1993, 73d Leg., R.S., ch. 48, =A7 7, 1993 Tex. Gen. Laws 97, =
99,=20
amended by Act of May 19, 1997, 75th Leg., R.S., ch. 526, =
=A7 7,=20
1997 Tex. Gen. Laws 1880, 1882, amended by Act of May 21, =
1999,=20
76th Leg., R.S., ch. 889, =A7 2, 1999 Tex. Gen. Laws 3586, 3587.=20
2. As a separate section of a 2001 enrolled =
bill that=20
sought to add two new sections to the Code Construction Act, =
Government=20
Code chapter 311, the legislature voiced its disapproval of=20
Fleming: The=20
legislature finds the decision of the Texas Supreme Court in =
Fleming=20
Foods of Texas, Inc., v. Rylander, 6 S.W.3d 278 (Tex. 1999), =
to be=20
inconsistent with the clear and repeatedly expressed intent of the =
legislature in the enactment of the Tax Code and other =
nonsubstantive=20
codes enacted under the state's continuing statutory revision =
program=20
under Section 323.007, Government Code. The absence of any =
legislative=20
action subsequent to the holding in Fleming Foods of Texas, =
Inc., v.=20
Rylander shall not be construed as legislative acceptance of =
the=20
holding in that case. Tex. H.B.=20
2809, =A7 3, 77th Leg., R.S. (2001). The governor disagreed with =
the=20
amendments to the Code Construction Act and vetoed the bill. Veto =
Message=20
of Gov. Perry, Tex. H.B. 2809, 77th Leg., R.S. (2001) ("House Bill =
No.=20
2809 would fundamentally alter the manner in which Texas courts =
interpret=20
the written laws of Texas. Besides implicating separation of =
powers=20
concerns, this bill would tend to make it more difficult for =
ordinary=20
Texans to ascertain the laws they are bound to obey."). The =
governor did=20
not comment on the legislative disapproval of Fleming.=20
3. A party who has breached the contract =
cannot=20
normally sue another party to the contract for breach, but there =
is an=20
exception in construction contracts when the breaching plaintiff =
has=20
substantially complied with the contract. Dobbins v. =
Redden, 785=20
S.W.2d 377, 378 (Tex. 1990). Due to this exception, SWG was able =
to=20
successfully sue Brookstone for breach of contract, but the jury =
found=20
that Brookstone's breach was=20
excused.