Lawyers Title Co. of Houston v. Authur
| Decision Date | 06 July 1978 |
| Docket Number | No. 5851,5851 |
| Citation | 569 S.W.2d 578 |
| Parties | LAWYERS TITLE COMPANY OF HOUSTON, Appellant, v. Frederick A. AUTHUR et al., Appellees. |
| Court | Texas Court of Appeals |
This is a suit for a bond premium and attorneys' fees, together with a Third Party Cross-Action by the Defendants for indemnity. Plaintiff Higdon Compton Insurance Agency brought this suit against Defendants Frederick A. Authur, A. O. Authur and wife Velma Authur, and Eldred Keith Kamman and wife Patsy Authur Kamman for one year's bond premium in the amount of $1260.00 plus $420.00 attorneys' fees. The Defendants Frederick A. Authur et al filed a Third Party Cross-Action against the Appellant Lawyers Title Company of Houston for indemnity to reimburse Defendants for any amounts, if any, that Defendants might be obliged to pay Plaintiff. Said cross-action was based upon a claim that Lawyers Title was negligent in its failure to record a release of the lien which was the subject matter of the bond in question, which alleged failure occasioned an additional year's bond premium sued for by Plaintiff.
Trial was to the court without a jury, after which Plaintiff Higdon Compton was awarded judgment against Defendants Frederick A. Authur et al in the amount of $1228.95 and costs with a denial of attorneys' fees; also Defendants Frederick A. Authur et al were awarded a judgment of indemnity in the same amount of $1228.95 and costs against Lawyers Title.
Cross-Defendant Lawyers Title has appealed from the trial court's judgment and Plaintiff Higdon Compton has appealed from the trial court's refusal to award Plaintiff attorneys' fees. We overrule all points of error and affirm the trial court's judgment.
Appellant Lawyers Title asserts two points of error, to wit: (1) the trial court erred in failing to apply the two-year statute of limitations to the action filed by Defendants Authur et al against Lawyers Title, and (2) the trial court erred in failing to file findings of fact and conclusions of law after demand was made by Appellant.
Plaintiff Higdon Compton asserts one point of error, namely, that the trial court erred in failing to award attorneys' fees to Plaintiff under the provisions of Article 2226, Vernon's Texas Civil Statutes.
Defendant Frederick A. Authur was the owner of a tract of real estate upon which he planned to construct a shopping center. Barksdale Mortgage Corporation had filed a lien against said real estate in the amount of $31,500.00, which lien clouded the title and which hampered Defendant Authur's efforts to get financing so as to proceed with the construction of his shopping center.
On or about January 4, 1973, Frederick A. Authur secured a bond from Plaintiff Higdon Compton Insurance Agency for the purpose of indemnifying Barksdale Mortgage Corporation concerning the lien filed by Barksdale hereinabove mentioned. Said bond was made with Maryland American General Insurance Company as surety, and with Frederick A. Authur and the other above-named Defendants as principals. Said bond application provided that a premium be paid to Higdon Compton at the rate of $1260.00 per year, and that said bond would continue in effect from year to year until the issuing company (Maryland) was furnished with conclusive evidence that there could be no further liability on the bond.
Defendant Authur paid the first year's premium to Higdon Compton for the period from January 4, 1973, through January 4, 1974. With this bond having been made, Defendant Frederick A. Authur was free to secure, and did secure, a loan from Huntwick Bank by which he was enabled to have sufficient money to pay off the lien to Barksdale and other debts and to proceed with the shopping center construction. With the acquiescence and/or approval of the Huntwick Bank, Defendant Authur secured the services of Lawyers Title to act as escrow and disbursing agent of the loan funds and to issue the necessary title insurance policy for the Bank. For these services rendered by Appellant Lawyers Title, Authur paid Appellant a fee. On December 21, 1973, Authur's loan with Huntwick Bank was closed by Lawyers Title, and said loan funds were disbursed, included in which disbursement was payment to Barksdale Mortgage Corp. the amount required to discharge the lien which Barksdale had filed against Authur's property. Higdon Compton Insurance Agency needed to be furnished a release of this Barksdale lien in order to stop the necessity of Authur's having to pay a second year's bond premium, which was due January 4, 1974. However, Higdon Compton never was furnished a copy of the Barksdale release. Authur was not a lawyer, and had no lawyer to represent him at the December 21, 1973, loan closing. It is apparent from the record that at the time of the closing and for some time thereafter Authur did not realize and understand that Higdon Compton needed this release in order to "stop" the bond premium from running. Be that as it may, Lawyers Title's employee, one Buck Eckels, handled the loan closing for Authur, and as part of the closing agreed with Authur that Lawyers Title would record all necessary releases. Authur testified that when the loan closing transaction was completed, Eckles assured him (Authur) that everything necessary to the closing had been accomplished, and that Authur could go ahead with construction of his shopping center. Authur testified that the Barksdale release was executed and that he (Authur) saw this release in Eckels's file at the time of the closing; however, Eckels denied this. At any rate, Mr. Higdon Compton testified that he checked the official records in the early part of 1974, and the Barksdale release had never been recorded. Meanwhile, Higdon Compton made several demands on Authur to pay the second year's bond premium of $1260.00 which Authur refused to pay. After considerable wrangling between Higdon Compton, Authur, and Lawyers Title, Lawyers Title finally secured the necessary Barksdale release on November 26, 1974, which was filed for record on December 5, 1974, thus stopping the bond premium from running any further.
We revert to Appellant Lawyers Title's first...
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