Conn, Sherrod & Co., Inc. v. Tri-Electric Supply Co., Inc., TRI-ELECTRIC

• Decision Date: 11 March 1976
• Docket Number: TRI-ELECTRIC,No. 913,913
• Citation: 535 S.W.2d 31
• Parties: CONN, SHERROD & CO., INC., Appellant, v.SUPPLY COMPANY, INC., Appellee.
• Court: Texas Court of Appeals

Page 31

535 S.W.2d 31

CONN, SHERROD & CO., INC., Appellant, v. TRI-ELECTRIC SUPPLY COMPANY, INC., Appellee.

No. 913.

Court of Civil Appeals of Texas Tyler.

March 11, 1976.

Rehearing Denied April 8, 1976.

Joe Meador, San Antonio, for appellant.

Allan K. DuBois, Lang, Cross, Ladon, Boldrick & Green, San Antonio, for appellee.

DUNAGAN, Chief Justice.

This is an appeal from the 57th Judicial District Court of Bexar County, Texas, in which appellant, Conn, Sherrod & Co., Inc., was plaintiff and cross-defendant, and appellee, Tri-Electric Supply Company, Inc., was a defendant and cross-plaintiff.

For convenience, appellant will be referred to as 'Conn, Sherrod' and appellee will be referred to as 'Tri-Electric.'

Appellant, Conn, Sherrod, as plaintiff, instituted this suit against Barnett Electric Company, as defendant, for indebtedness in the amount of $53,063.17, and to remove mechanic's and materialmen's liens filed by Barnett Electric Company and appellee, Tri-Electric, upon the Woodbury apartment property and Gardendale Shopping Center property owned by Conn, Sherrod. Appellee, Tri-Electric, filed a cross-action against Barnett Electric Company and Conn, Sherrod, as cross-defendants, for sums owed for materials furnished by Tri-Electric for the above properties, for attorney's fees, and to foreclose its liens.

Trial was before the court without the aid of a jury. The claims of appellant, Conn, Sherrod, against Barnett Electric Company were dismissed with prejudice. It was agreed by the parties that appellee, Tri-Electric, was entitled to judgment against Charles C. Barnett, individually and d/b/a Barnett Electric Company. The claims between the appellant and Barnett individually and d/b/a Barnett Electric Company and Pan American National Bank were dismissed with prejudice.

The cause of action between Conn, Sherrod and Tri-Electric proceeded to trial before the court upon stipulated facts and certain documentary evidence. The court rendered judgment for Tri-Electric against Conn, Sherrod in the sum of $4,990.58; for attorney's fees in the sum of $750; and for foreclosure of its respective liens on appellant's properties. Only appellant, Conn, Sherrod, gave notice of appeal. Therefore, the judgment of the trial court, disposing of the other parties in the court below, is final.

The court found, in its findings of fact and conclusions of law, based upon the stipulated facts, that Tri-Electric substantially complied with the pertinent provisions of the Hardeman Act in perfecting its liens against the two parcels of property here involved, and had a valid lien on the property referred to in this cause as the 'Woodbury Square Apartments' in the sum of $2,468.89, and against the 'Gardendale Project' in the sum of $2,521.69, and was further entitled to attorney's fees in the sum of $750.

It is undisputed that in 1974, Conn, Sherrod, as owner and its own general contractor, began constructing improvements on these two of its properties. Contracts were entered into between Conn, Sherrod and Barnett Electric Company to do the electrical work on said projects. It is undisputed that the goods, wares and merchandise to be used in said projects were purchased from Tri-Electric and that the bills were owing on both projects.

On November 13, 1974, appellee's notices of claim on each project, in the respective amounts set out above, were received by appellant by certified mail. On January 24, 1975, Tri-Electric filed an instrument entitled 'Lien Affidavit and Claim' against each respective property and two copies of each document were timely received by Conn, Sherrod and its attorney by certified mail. Such documents were duly recorded in the Builder's and Mechanic's Lien Records of Bexar County, Texas. The respective attestations to the lien affidavits and claims reflected an 'acknowledgment' rather than a 'jurat.'

On April 3, 1975, an 'Affidavit of Correction' was filed and recorded in the Builder's and Mechanic's Lien Records of Bexar County, Texas, and two copies of such affidavit were received by Conn, Sherrod by registered mail prior to trial. The Affidavit of Correction provided the sworn verification to the claims filed on January 24, 1975. The Affidavit of Correction did not amend or change in any respect the allegations or amounts contained in the original recorded claims.

The trial judge concluded that, as a matter of law, Tri-Electric had complied with the pertinent provisions of the Hardeman Act (Articles 5452--5472d, V.T.C.S.) in perfecting its liens. Conn, Sherrod, in its first three points of error, attacks this holding.

The facts are relatively undisputed as to the conduct of the parties in this suit. Upon the trial, appellant sought to have each of the lien affidavits declared null and void and of no force and effect and such liens removed from said properties, on the basis that the lien affidavits were defective inasmuch as they were not sworn, but were merely acknowledged. Conn, Sherrod also contended that the Affidavit of Correction was not timely filed. Conn, Sherrod makes these same contentions on appeal.

Art. 5455, V.T.C.S., Form of Claim, provides in part:

'An affidavit claiming a lien filed for record by any one claiming the benefit of this Act shall be signed by the claimant or by some person on his behalf and shall contain in substance the following:

a. A Sworn statement of his claim, including the amount thereof. A copy of the written agreement or contract, if any, may be attached at the option of the claimant.' (Emphasis added.)

Where an instrument filed for purpose of claiming a lien on property, under the Hardeman Act, bore an acknowledgment but no jurat, such instrument was not an 'affidavit' within the statute (Art. 5453, V.T.C.S.) requiring one who seeks to secure such lien to file an affidavit. Art. 23, subdivision 18, V.T.C.S.; Crockett v. Sampson, 439 S.W.2d 355 (Tex.Civ.App.--Austin 1969, n.w.h.).

It is...