Hayek v. Western Steel Co., 609

• Decision Date: 27 May 1971
• Docket Number: No. 609,609
• Citation: 469 S.W.2d 206
• Parties: E. W. HAYEK et al., Appellants, v. WESTERN STEEL COMPANY et al., Appellees.
• Court: Texas Court of Appeals

Page 206

469 S.W.2d 206

E. W. HAYEK et al., Appellants, v. WESTERN STEEL COMPANY et al., Appellees.

No. 609.

Court of Civil Appeals of Texas Corpus Christi.

May 27, 1971.

Rehearing Denied June 17, 1971.

Milton W. Walton, Corpus Christi, for appellants.

Sorrell, Anderson, Sorrell & Atwill, William R. Anderson, Jr., Head & Kendrick, Michael Kendrick, Jr., Corpus Christi, for appellees.

OPINION

BISSETT, Justice.

This case involves primarily the construction of the statutes relating to the liens of materialmen, particularly the extent of application of Art. 5469, Vernon's Ann.Civ.St.

This appeal is actually concerned with twelve separate cases that were tried together with the consent of all parties. Prior to trial of the consolidated cases, Western Steel Company had already sued Glenn McEntire, a contractor, and had recovered judgment against him for a specified sum of money. Here, Western Steel Company, as plaintiff, sued E. W. Hayek and other landowners, wherein plaintiff sought to obtain a personal judgment against the landowners, and to foreclose its asserted statutory materialmen's liens against the affected land of each landowner-defendant. Gulf Concrete Company intervened and sued McEntire on its account and also sued the landowner-defendants, whereby it, too, sought a personal judgment against them and to foreclose its asserted statutory materialmen's lien against the affected land of each landowner- defendant. The landowner-defendants filed a cross-action against McEntire, praying for a recovery against him in the event the intervenor prevailed against them.

Trial was to the court without the aid of a jury, which resulted in a judgment for Gulf Concrete Company, intervenor, against McEntire for a certain sum of money, plus attorney's fees in a stated amount, and in a judgment for Western Steel Company, plaintiff, against each named landowner-defendant for a specified sum of money, and foreclosing its materialmen's lien against certain lands described therein, and in a judgment for Gulf Concrete Company against each named landowner-defendant for a specified sum of money, and foreclosing its materialmen's lien against certain lands described therein. Judgment over and against Glenn McEntire was decreed in favor of the landowner-defendants on their cross-action.

All of the defendants (save and except Glenn McEntire) have duly perfected their appeal to this Court. We modify the judgment of the trial court, and as modified, affirm. The landowner-defendants will be referred to as appellants and the plaintiff and the intervenor will be referred to as appellees.

Each of the appellants owned one or more tracts of land upon which he constructed a building. Each of them, at various times, by virtue of a separate agreement, entered into a contract with Glenn McEntire for the construction of a concrete foundation for a building with respect to each separately owned tract of land. None of the appellants entered into a construction contract with a general contractor for the construction of his improvements at a fixed contract price, but each appellant acted as his own builder for the particular building on his own land. The contracts with McEntire are the only contracts that are reflected by the record; presumably the other phases of the construction work were performed by third party contractors; the briefs and stipulations indicate as much. None of the affected properties constituted the homestead of any appellant.

The steel and concrete materials incorporated in the foundations were purchased by McEntire from Western Steel Company and Gulf Concrete Company, respectively. He did not pay them in full for these items. A detailed stipulation was made wherein the description of each tract of land, the owner thereof, the total construction cost of each building, the date each building was completed, the contract price for each foundation, the date of delivery of the materials for each foundation, the amount of unpaid claims for each foundation, the date notices of unpaid claims were sent to each owner, the dates of filing and recording data of lien affidavits, and the dates that two (2) copies of the lien affidavits were sent to the owner, were each and all agreed to by and between all parties.

From the stipulation as filed, from agreements of counsel and from the evidence contained in the record, it is undisputed that (a) the total cost of the construction of all the improvements built by the respective appellants amounted to $500,346.97; (b) the total of the contract prices of all the foundation work covered by appellants' contracts with McEntire amounted to $49,581.00; (c) the total of appellees' unpaid claims for the materials furnished in the construction of the foundations amounted to $20,002.87; (d) the foundations were completed less than thirty (30) days after delivery of materials therefor; (e) the foundation work was completed and each appellant paid McEntire all of the contract price therefor before the respective appellant learned that McEntire had not paid appellees; (f) both the notices of unpaid claims and the lien affidavits were given and filed, respectively, more than thirty (30) days after the foundations were completed, but less than ninety (90) days after the indebtedness therefor had accrued; (g) all said notices and lien affidavits were given and filed, respectively, before the building was completed; (h) none of the appellants retained any funds during the progress of the work on their respective building or for thirty (30) days after the work was completed; and (i) there was no agreement between appellants and anyone for any retainage of funds.

Extensive findings of fact and conclusions of law were made and filed by the trial court, which findings not only incorporated therein the aforesaid stipulation, but, in addition thereto, found (among other findings):

'(12) Both Gulf Concrete Company and Western Steel Company complied with the notice provisions of Article 5452, et seq., V.A.T.C.S., and gave timely, adequate and proper notices of their claims to the owner-defendants with respect to their individual properties, and such notices were given via U.S. certified mail, return receipt requested.

(13) Within ninety (90) days from the date their calims accrued for the materials and labor furnished to the properties owned by the respective owner-defendants, both Western Steel Company and Gulf Concrete Company filed lien affidavits in the proper records of San Patricio County, Texas, claiming a lien against those properties listed on 'Stipulation Exhibit A' opposite which on said exhibit it is shown that Western Steel Company and/or Gulf Concrete Company claimed an indebtedness.'

The following conclusions of law (among others) were made and filed by the trial court:

'(3) Each of the lien affidavits filed by Western Steel Company and each of the lien affidavits filed by Gulf Concrete Company were properly and timely filed and adequate notices were properly and timely given; and such lien affidavits created valid liens against the properties of the respective owner-defendants and against the fund which they should have retained pursuant to Article 5469, V.A.T .C.S., to secure payment by such owner-defendants for materials and labor furnished by Gulf Concrete Company and Western Steel Company.

(4) Such lien affidavits complied in every respect with Articles 5453 and 5455, V.A.T.C.S.

(5) Gulf Concrete Company and Western Steel Company gave each and all of the notices required by Article 5453 and complied with the provisions of Article 5456, V.A.T.C.S.

(6) Each of the owner-defendants with respect to their own properties were obligated and required under Article 5469, V.A.T.C.S ., to retain during the progress of the work on their respective properties and for thirty (30) days thereafter, ten per cent (10%) of the value of such work shown on 'Stipulation Exhibit A' and designated 'Total Cost of Work (Entire House)'.'

'(10) Owner-defendants were required to retain ten per cent (10%) of the Total Cost of Work (Entire House) during the progress of the construction of all such improvements and for thirty (30) days after the date of completion of the entire house, which completion dates are shown on 'Stipulation Exhibit A' under the column designated 'Date of Completion (Entire House)'.

(11) The 10% Retainage which owner-defendants did not but should have retained was to secure payment of the amounts claimed by Gulf Concrete Company and Western Steel Company and any other claimants complying with the provisions of Article 5452, et seq., V.A.T.C.S.'

Under the record before us, none of the findings of fact are challenged by a point of error. The conclusions of law quoted above are challenged.

In awarding judgment against appellants, the trial court held that each appellant was required by Art. 5469, V.A.C.S., to retain during the progress of the work and for thirty days thereafter 10% Of the total cost of the work for his entire building, not just 10% Of the contract price for the foundation therefor. Under appellees' theory, each appellant should have retained 10% Of the total cost of his building, which would have been more than enough with which to have paid appellees for their claims. Under appellant' theory, the most that was required was that each appellant retain 10% Of his contract price with McEntire, which would have been insufficient to have paid appellees the full amount of their claims.

Article 5452, V.A.C.S., provides, in part, that any person or firm who furnishes material for the construction of a building shall have a lien upon the improvements and property of the owner 'upon complying with the provisions of this Chapter'. Appellees fall within the class covered by this Article.

Article 5453, V.A.C.S., prescribes the procedures for the fixing and securing of the lien provided by Article 5452, V.A.C.S. Appellees fully complied with the provisions of this Article for the...