Arias v. Brookstone, L.P.

• Decision Date: 20 December 2007
• Docket Number: No. 01-05-00746-CV.,01-05-00746-CV.
• Parties: Gustavo ARIAS d/b/a Gus Trucking Service, Appellant, v. BROOKSTONE, L.P. and Liberty Mutual Insurance Company, Appellees. and Site Work Group, Inc., Appellant, v. Gustavo Arias d/b/a Gus Trucking Service, Appellee. and Brookstone, L.P., Appellant, v. Site Work Group, Inc., Appellee.
• Court: Texas Court of Appeals

265 S.W.3d 459

Gustavo ARIAS d/b/a Gus Trucking Service, Appellant, v. BROOKSTONE, L.P. and Liberty Mutual Insurance Company, Appellees. and Site Work Group, Inc., Appellant, v. Gustavo Arias d/b/a Gus Trucking Service, Appellee. and Brookstone, L.P., Appellant, v. Site Work Group, Inc., Appellee.

No. 01-05-00746-CV.

Court of Appeals of Texas, Houston (1st Dist.).

December 20, 2007.

Opinion Dissenting from Denial of Rehearing April 3, 2008.

Mary Frances Masterson, Houston, for appellant.

Gary Martin Jewell, Stephen Ray Smith, Christian, Smith & Jewell, LLP, Michael Lance Burnett, Coats, Rose, Yale, Ryman & Lee, P.C., Houston, for appellee.

Panel consists of Justices NUCHIA, KEYES, and HIGLEY.

OPINION

SAM NUCHIA, Justice.

This appeal arises out of disputes over the construction of a new building for the Unity Church of Christianity. Among other things, we must decide whether Property Code section 53.055 requires that a mechanic's, contractor's, and materialman's lien affidavit be filed with the county clerk before the required notice is given. TEX. PROP.CODE ANN. § 53.055 (Vernon Supp.2007). We hold that it does not.

Background

Brookstone, L.P. ("Brookstone") was the general contractor on the construction project. Brookstone posted a payment bond in favor of Unity, which was issued by Liberty Mutual Insurance Company ("Liberty Mutual"). Brookstone subcontracted the site preparation to Site Work Group, Inc. ("SWG"). SWG, in turn, subcontracted with Gustavo Arias d/b/a Gus Trucking Service ("Arias") to haul off the excavated material and to supply new fill for the foundation. Problems arose between these parties and also with others who are not involved in this appeal. Primarily, Brookstone was dissatisfied with SWG's work, and SWG was dissatisfied with Arias's work. When Arias was not paid by SWG, he filed lien affidavits against the property, which affected Brookstone and its payment bond issued by Liberty Mutual. Brookstone filed suit seeking a declaratory judgment that Arias had no right to assert liens against the property. Brookstone later added SWG as a defendant, suing for breach of contract. Arias counterclaimed against Brookstone and Liberty Mutual as third-party defendants and cross-claimed against SWG. SWG counterclaimed against both Brookstone and Arias.

After the trial court rendered partial summary judgment on some of the issues in dispute and others were nonsuited, the case was tried to a jury. The trial court rendered judgment on the verdict as follows: (1) Brookstone take nothing from SWG; (2) SWG recover $15,000 from Brookstone along with attorney's fees for its quantum meruit claims; (3) SWG take nothing from Brookstone on its breach-of-contract and other claims; (4) Arias recover $42,000 from SWG along with attorney's fees for his breach-of-contract claim; (5) Arias take nothing from SWG on his fraud claims; and (6) SWG take nothing from Arias on its breach-of-contract claim. The trial court also rendered judgment based on its February 14, 2005 summary-judgment order as follows: (1) Arias take nothing from Liberty Mutual on his claim on a payment bond; (2) the lien affidavits filed by Arias against Unity were invalid; and (3) Arias pay Brookstone and Liberty Mutual $15,000 in attorney's fees.

Arias's Appeal Against Brookstone and Liberty Mutual

In his first issue, Arias contends the trial court erred in its February 14, 2005 summary-judgment order by dismissing Arias's claim for payment on the payment bond and invalidating his filed lien affidavits. On March 14, 2003, Arias executed lien affidavits and mailed copies to Unity, the property owner, and contractors Brookstone and SWG. On April 4, 2003, Arias filed the affidavits with the county clerk. Brookstone's and Liberty Mutual's motion for summary judgment against Arias raised two grounds: (1) Arias failed to comply with the notice provisions of Property Code section 53.055(a) because he sent copies of the affidavits before he filed them with the county clerk and (2) Arias's May 29, 2003 lien affidavits, filed with the county clerk on May 30, 2003, were not supported by any valid debt. TEX. PROP. CODE ANN. § 53.055 (Vernon Supp.2007). Because the trial court granted the motion without specifying a particular ground, we review both grounds. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996).

Property Code section 53.055(a) states:

A person who files an affidavit must send a copy of the affidavit by registered or certified mail to the owner or reputed owner at the owner's last known business or residence address not later than the fifth day after the date the affidavit is filed with the county clerk.

In a split decision, the Corpus Christi Court of Appeals has held that section 53.055 does not require that a mechanic's, contractor's, and materialman's lien affidavit be filed with the county clerk before the required notice is given. New AAA Apartment Plumbers, Inc. v. DPMC-Briarcliff, L.P., 145 S.W.3d 728, 730 (Tex. App.-Corpus Christi 2004, no pet.). We agree with this holding.

Unless a statute is ambiguous, we construe a statute as written, using the literal text. Alex Sheshunoff Mgmt. Servs., L.P. v. Kenneth Johnson & Strunk & Assocs., L.P., 209 S.W.3d 644, 651-52 (Tex.2006). We resort to external sources like those listed in the Code Construction Act only when the statute is ambiguous. Id. at n. 4; Code Construction Act, TEX. GOV'T CODE ANN. § 311.023 (Vernon 2005). As written, the statute only provides the deadline for giving notice that a lien affidavit has been executed, not a period during which notice may be given.

When a statute is intended to establish a period in which an action must be taken, the legislature's own drafting standard is to set forth clearly the first and last days of the period. TEXAS LEGISLATIVE COUNCIL DRAFTING MANUAL § 7.28, at 99 (Charlotte Norris ed.2006) (giving drafting example 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 during a period that begins on the day after the lien affidavit is filed and ends on the fifth day after the date the affidavit is filed. See Code Construction Act, TEX. GOV'T CODE ANN. § 311.014 (Vernon 2005) (setting forth means of computing period of time).

The heading for section 53.055, "NOTICE OF FILED AFFIDAVIT," does suggest that notice is to be given after filing the affidavit. A statute's heading, however, should not be used to limit or expand the meaning of the statute. Code Construction Act, TEX. GOV'T CODE ANN. § 311.024 (Vernon 2005); see Brooks v. State, 682 S.W.2d 437, 438 (Tex.App.-Houston [1st Dist.] 1984, pet. ref'd).

Interpreting a former version of section 53.055, we held that in the absence of a specific deadline to give notice of the lien affidavit to the property owner, notice must be given no later than the deadline to file the affidavit.¹ Cabintree, Inc. v. Schneider, 728 S.W.2d 395, 397 (Tex.App.-Houston [1st Dist] 1986, writ ref'd). We further stated that the purpose of section 53.055 "is to ensure that the owner receives actual notice that an affidavit has been filed against his property so that he will be able to take steps to protect himself." Id. at 396-97 (emphasis original). While the question of whether notice of the lien affidavit could predate the filing of the affidavit was not at issue in Cabintree, the language quoted above certainly indicates in dicta that the affidavit should be filed before notice is given. Id. We based this dicta not on the then-current text of section 53.055, but instead on an analysis of the text of former Revised Statutes article 5453(1). Id; Act of May 24, 1961, 57th Leg., R.S., ch. 382, § 2, art. 5453(1), 1961 Tex. Gen. Laws 863, 864, repealed by Act of May 26, 1983, 68th Leg., R.S., ch. 576, § 6, 1983 Tex. Gen. Laws 3475, 3730. We looked back to the previous statute, article 5453(1), using the rationale that the 1983 enactment of the Property Code was nonsubstantive. See TEX. PROP.CODE ANN. § 1.001 (Vernon 2004) (stating Property Code is part of continuing statutory revision program that revises existing law without substantive change); see also Act of May 26, 1983, 68th Leg., R.S., ch. 576, § 7, 1983 Tex. Gen. Laws 3475, 3730 ("This Act is intended as a recodification only, and no substantive change in the law is intended by this Act."). The statutory analysis of former article 5453(1) in Cabintree turned on the fact that "the requirements of filing the affidavit, and sending copies of the affidavit, are contained in the same sentence." Cabintree, 728 S.W.2d at 397.

Since we issued Cabintree, the supreme court has held that courts may not look back to the former text of a statute which has been "nonsubstantively" codified if the current text is direct and unambiguous. Fleming Foods of Texas, Inc. v. Rylander, 6 S.W.3d 278, 286 (Tex.1999).² Our prior analysis in Cabintree, based on the text of former article 5453(1), is no longer a permissible means of statutory construction, and we decline to follow the dicta from Cabintree that notice must be given after the lien affidavit has been filed.

Reading section 53.055 and applying the rules of statutory interpretation cited above, we conclude that the purpose of the statute is to ensure that the owner receives actual notice that a lien affidavit has been executed with the intent to file the affidavit and create a lien against the owner's property, thus allowing the owner or original contractor to take appropriate action. Nothing in the statute requires that the property owner or original contractor be notified that the affidavit was actually filed. Because the person executing the lien affidavit must file the affidavit by the relatively short deadlines stated in Property Code sections 53.052 and 53.056 (generally within two to four months from the date the indebtedness accrues), the owner and original contractor can hardly claim to be hurt when ...