American Amicable Life Ins. Co. v. Jay's Air Conditioning & Heating, Inc.

• Decision Date: 11 March 1976
• Docket Number: No. 5517,5517
• Citation: 535 S.W.2d 23
• Parties: AMERICAN AMICABLE LIFE INSURANCE COMPANY, Appellant, v. JAY'S AIR CONDITIONING AND HEATING, INC., Appellee.
• Court: Texas Court of Appeals

Page 23

535 S.W.2d 23

AMERICAN AMICABLE LIFE INSURANCE COMPANY, Appellant, v.JAY'S AIR CONDITIONING AND HEATING, INC., Appellee.

No. 5517.

Court of Civil Appeals of Texas Waco.

March 11, 1976.

Rehearing Denied April 8, 1976.

DeLange, Hudspeth, Pitman & Katz, Eugene Pitman, Houston, Ferguson & Ferguson, Russell G. Ferguson, Austin, for appellant.

Daugherty, Kuperman & Golden, David I. Kuperman and James O. Guleke, II, Austin, for appellee.

HALL, Justice.

Under contract dated October 24, 1972, with a partnership known as S.S.&F. Enterprises (hereinafter 'S.S.&F.'), Jay's Air Conditioning And Heating, Inc., the appellee, sold and installed air conditioning and heating units in apartments being constructed by S.S.&F. on several tracts of land in the City of Austin owned by S.S.&F., including 56 units and 40 units, respectively, on the two tracts in question.

S.S.&F. had previously arranged for interim financing of the construction with the Greenway Bank & Trust Of Houston, and executed its promissory note and deed of trust lien on the two tracts in favor of the bank, on August 28, 1972.The note was later assigned to the appellant, American-Amicable Life Insurance Company, by the Bank in December, 1973; and, on December 17, 1973, a renewal note and another deed of trust on the two tracts securing the note were executed by S.S.&F. in favor of the appellant.Subsequently, this lien was foreclosed by the appellant, and it purchased the two tracts at a public sale held by the trustee on October 1, 1974.

Jay's brought this suit against S.S.&F. and the partners, jointly and severally, to recover the balance allegedly due to Jay's under its contract, for foreclosure of a mechanic's and materialman's lien, and for an order of sale on certain elements of the air conditioning units which it asserted did not become a permanent part of the improvements and were removable without material injury to the realty.Jay's also joined the appellant as a defendant, seeking in effect, a declaration that its mechanic's and materialman's lien is superior to the appellant's interest in the property and a foreclosure of the lien on the two tracts.

After a trial without a jury, judgment was rendered awarding Jay's a recovery against S.S.&F. and the individual partners for $8,620 on the contract, plus $3,000 attorney's fees; foreclosing a mechanic's and materialmen's lien in favor of Jay's on the two tracts in question upon which the 96 apartments are constructed; decreeing an order of sale in Jay's favor for the removal and sale of the compressors and air-handling units in each of the air conditioning units installed by it in the apartments; and a recovery in favor of the appellant on its pleadings against S.S.&F. and the partners for any amount that the appellant'may be obligated to pay in behalf of (S.S.&F.) to prevent foreclosure of its property.'

S.S.&F. did not appeal.

Article XVI, Sec. 37, Vernon's Tex.Const., gives mechanics and materialmen of every class a lien on buildings and articles on which they labor or for which they furnish materials, and specifies that the Legislature shall provide by law for the speedy and efficient enforcement of the lien.The line granted therein is self-executing as between the owner and the laborers and materialmen who contract directly with the owner, without need of any statutory provisions.Strang v. Pray, 89 Tex. 525, 35 S.W. 1054, 1056(1896);Hayek v. Western Steel Co.(Tex.Sup., 1972), 478 S.W.2d 786, 789.Pursuant to the mandate set forth therein, the Legislature has enacted Articles 5452, et seq., Vernon's Ann.Tex.Civ.St., prescribing the lien, and providing for the securing, priority, and enforcement of it.Sec. 1 of Article 5459, dealing with the priority and enforcement of the lien, has been interpreted to mean that the lien is superior to a prior recorded deed of trust lien where the improvements made can be removed without material injury to the land and preexisting improvements, or to the improvements removed.First National Bank In Dallas v. Whirlpool Corp.(Tex.Sup., 1975), 517 S.W .2d 262, 269.

The appellant asserts that the evidence conclusively shows that Jay's claims under its contract with S.S.&F. were paid in full from a particular source; or that, alternatively, the evidence is factually insufficient to overcome the appellant's pleadings and proof of such payment.For these reasons, it says that the judgment of foreclosure of a mechanic's and materialman's lien in favor of Jay's on the tracts in question is erroneous.We...