First Continental Real Estate Inv. Trust v. Continental Steel Co.

• Decision Date: 08 June 1978
• Docket Number: No. 17941,17941
• Citation: 569 S.W.2d 42
• Parties: FIRST CONTINENTAL REAL ESTATE INVESTMENT TRUST, Appellant, v. CONTINENTAL STEEL CO. et al., Appellees.
• Court: Texas Court of Appeals

Page 42

569 S.W.2d 42

FIRST CONTINENTAL REAL ESTATE INVESTMENT TRUST, Appellant, v.CONTINENTAL STEEL CO. et al., Appellees.

No. 17941.

Court of Civil Appeals of Texas, Fort Worth.

June 8, 1978.

Rehearing Denied July 27, 1978.

Passman, Jones, Andrews, Coplin, Holley & Co., and Gerald R. Coplin, Dallas, for appellant.

Geary, Stahl, Koons, Rohde & Spencer and D. Ronald Reneker, Dallas, for appellee, Continental Steel Co.

Margraves, Kennerly & Schueler and Stephen W. Schueler, Houston, for appellee, Flintkote Supply Co.

James H. Cummings, Dallas, for appellee, Freeway Ready Mix, Inc.

Odom & Gwynn and G. Scott Odom, Dallas, for appellee, Jackson Concrete, Inc.

Coke & Coke and Robert M. Roller, Dallas, for appellee, Krestmark Industries, Inc.

Tucker, Gano, Alexander & Cochran and John H. Cochran, Dallas, for appellee, Sharp & Son, Inc.

John Emmett, Dallas, for appellee, Wilcher-Moore Lumber Co.

OPINION

HUGHES, Justice.

Continental Steel Company(Steel) sued H.E.M. Building Corporation(HEM), First Continental Real Estate Investment Trust (Trust) and Billy Scott Stanfield to foreclose a materialman's lien on real estate composed of 15 lots in Lewisville, Texas.Numerous interventions and joinders increased the parties to 13.At issue is the priority of the liens of seven materialmen (all plaintiff-appellees) as compared to Trust's deed of trust lien and alleged subrogated vendor's lien.

By stipulation it was agreed to non-suit the home owners involved, plaintiffs to forego lien foreclosures on individual homes and agreeing to sue for money judgments against Trust and HEM to the extent plaintiffs mechanic's and materialman's liens could be proven valid and superior to deed of trust liens in favor of Trust and if any part of Trust's debt is found to be secured by vendor's lien, then to the extent that Trust received consideration at a proper foreclosure sale on that vendor's lien in excess of the amount of its debt secured by such vendor's lien, if any.

This left Steel Flintkote Supply Company, Wilcher-Moore Lumber Company, Jackson Concrete, Inc., Sharp and Son, Inc., Freeway Ready Mix, Inc., and Krestmark Industries, Inc., as plaintiffs aligned against HEM and Trust as defendants.

The case was tried to the court without a jury and resulted in the court rendering money judgments for all the plaintiffs against both of the defendants.HEM, which defaulted, did not appeal.Trust has perfected its appeal from such judgment.

We affirm in part and reverse and render in part.

Trust claims to be equitably subrogated to vendor's lien rights formerly held by HEM's predecessors in title and by a bank mortgagee holding a second vendor's lien and purchase money mortgage deed of trust.It therefore claims a superior lien to all plaintiffs and that trial court erred in finding plaintiffs' mechanic's and materialmen's liens superior to any liens of Trust.

Trust urges in Point of Error number 1 that trial court should have found its liens superior to the plaintiff's liens under the doctrine of equitable subrogation.Steel contends Point of Error number 1 was waived because Trust did not request, and the trial court did not make, any findings of fact respecting the defense of equitable subrogation.In its brief Trust claims subrogation by reason of funds it had advanced for HEM which paid off and got a release for purchase money owed on the land by HEM, even though the lien was not transferred to it by any written instrument.

We were cited Skeen v. Slavik, 555 S.W.2d 516, 520(Tex.Civ.App. Dallas1977, writ ref'd n.r.e.) by Trust to the effect that where, in a case, "the evidence establishes as a matter of law facts inconsistent with the judgment" the presumption of all fact findings in favor of the judgment must be overturned.This concerned a situation where there was absent a jury verdict or any express finding of fact and conclusions of law by the trial court, as in the instant case.In Skeen, supra, admissions of the appellees that they were charging fees solely as compensation for the service of lending money, at what was indisputably usury, established usury.In the case at hand there are no such admissions from appellees setting up Trust's claim of equitable subrogation, nor are there facts "indisputably established by the record" to establish same.

We agree with Steel that equitable subrogation is an affirmative defense as alleged by Trust.It had the burden of proving such affirmative defense.Bradley v. Freeman, 163 S.W.2d 693(Tex.Civ.App. Amarillo 1942, no writ).

Since the record shows no specific request for or findings of fact on equitable subrogation and that trust did not request additional findings, we hold that such defense was waived for purposes of appeal.Gasperson v. Madill National Bank, 455 S.W.2d 381(Tex.Civ.App. Fort Worth1970, writ ref'd n.r.e.).We overrule Point of Error number 1.

APPELLEE, CONTINENTAL STEEL

The essence of Trust's Point of Error number 2 is that the steel material delivered by Steel was not proven to be Incorporated into the work (emphasis ours) and visible before July 9, 1974, when, at 1:10 p. m., Trust filed its deed of trust.Blaylock v. Dollar Inns of America, Inc., 548 S.W.2d 924(Tex.Civ.App. Tyler1977, writ granted).We disagree with Trust's interpretation of Blaylock to the effect that until materials are incorporated into the work under Tex.Rev.Civ.Stat.Ann. art. 5452 (Supp.1978), for the purposes of the mechanic's lien statutesthey would not even be considered materials.The court in Blaylockat page 930 lists four basic criteria under Tex.Rev.Civ.Stat.Ann. art. 5452 (Supp.1978), upon which to determine inception date of a mechanic's lien.They are listed alternatively from each other by "or".One of the criteria, which we hold to be present in this case, is:

"(2) The delivery of materials to the land upon which improvements are to be located for use thereon provided such material is actually visible from an inspection of the land."

Trial court found that: Steel and HEM entered into a contract for Steel to furnish steel building material to HEM to be incorporated into the property; Steel made a delivery of steel building materials ordered by HEM to each of the lots in the property before 1:10 p.m. on July 9, 1974; such materials were visible on each lot by inspection before July 9, 1974 at 1:10 p.m.; such materials were incorporated into the property improvements; and Trust recorded the deeds of trust on the property at 1:10 P.M. on July 9, 1974.

Trial court had ample testimony to support its findings of fact and we must accept them.Arlington Acceptance Corporation v. Taylor, 426 S.W.2d 567(Tex.Civ.App. Fort Worth 1968, no writ).

Point of Error number 2 is overruled.

We overrule Point of Error number 3 which was one complaining of the trial court's overruling and objection to a leading question.The question involved was leading (and suggestive), but its answer was cumulative of other evidence establishing the time of delivery of the materials.

Point of Error number 4 avers that Lot 8, Block B remained unimproved during all times relative to this dispute.Examination of the record reveals some testimony which controverts Billy Scott Stanfield, in his answer of "No" to the question "Was there any improvement on block B lot 8 at that time?"This question and answer covered the period of 20 or 30 days before trial and was what Trust relied on in this Point of Error.

There is testimony that:

Fifteen houses were to be built on the property; HEM ordered steel for 15 houses from Steel; Fred Gerson, HEM purchasing agent, ordered the steel, but "couldn't swear" that Steel delivered steel for all the 15 houses that were being built, and he did see steel material at the job site.He also said the building materials furnished by Steel were incorporated into the work.

Also, it was stipulated by the parties that the property in question was made up of 15 lots, clearly the only lots in the case.

We hold that trial court had sufficient testimony for an issue.Trial court resolved it in favor of Steel.We have to sustain the trial court's finding if any evidence supports it.Hous. Authority, etc. v. State ex rel. Velasquez, 539 S.W.2d 911(Tex.Civ.App. Corpus Christi1976, writ ref'd n.r.e.).

Point of Error number 4 overruled.

APPELLEE, FLINTKOTE

Trust avers that the trial court erred in holding Flintkote's lien on all the lots had its inception when Flintkote first delivered materials to any one of such lots.Flintkote claims that the lots were treated as one property and that the lien attached to all as of the first incipiency.

Trial Court's finding of fact number 29 found that: The lots comprising the property were treated as...