Monocrete Pty. Ltd. v. Exchange Sav. & Loan Ass'n
| Decision Date | 20 May 1980 |
| Docket Number | No. 20155,20155 |
| Citation | 601 S.W.2d 448 |
| Parties | MONOCRETE PTY. LTD., d/b/a Monier Company, Appellant, v. EXCHANGE SAVINGS & LOAN ASSOCIATION, Russell Builders, Inc., d/b/a Russell Custom Homes, Powell, Ardis and Powell, Inc., and Kenneth L. Steward d/b/a S & H Roofing, Appellees. |
| Court | Texas Court of Appeals |
Robert Harms Bliss, Jerry L. Hughes, Cleveland Guy Clinton, Bliss & Hughes, Dallas, for appellant.
W. Mike Baggett, Winstead, McGuire, Sechrest & Trimble, Dallas, for appellees.
Before GUITTARD, C. J., and ROBERTSON and STOREY, JJ.
This appeal concerns the application of the "material injury" rule to a materialman's removal of a concrete tile roof. The trial court, in this non-jury case, found that "the concrete roof tiles cannot be removed without substantial damage to the tiles themselves, the remaining structure, existing improvements, and the land." It accordingly ordered that the deed of trust liens of defendant Exchange Savings & Loan were superior and that their foreclosures extinguished the materialman's liens of plaintiff Monocrete Pty. Ltd. Plaintiff attacks the trial court's finding on the ground that it is against the great weight and preponderance of the evidence. We agree with this contention and therefore reverse and remand the judgment insofar as it favors defendant Exchange, but we affirm the judgment in favor of plaintiff against the remaining defendants, Russell Builders, Inc. and S & H Roofing Co. 1
The parties agree that the case is governed by Tex.Rev.Civ.Stat.Ann. art. 5459 (Vernon Supp. 1980), which creates a statutory lien in favor of the materialman upon any structure for which it furnished materials that were incorporated into the structure. They also agree that the case is controlled by the long standing rule that the materialman's lien, if perfected, is superior to a prior recorded deed of trust lien on the land and structure when the improvements (materials) can be removed without material injury to the land and pre-existing improvements, or to the improvements (materials) themselves. First National Bank v. Whirlpool Corporation, 517 S.W.2d 262, 269 (Tex.1974); Summerville v. King, 98 Tex. 332, 83 S.W. 680 (1904); Parkdale State Bank v. McCord, 428 S.W.2d 121 (Tex.Civ.App.-Corpus Christi 1968, writ ref'd n. r. e.); Freed v. Bozman, 304 S.W.2d 235 (Tex.Civ.App.-Texarkana 1957, writ ref'd n. r. e.). It also is agreed that defendant Exchange had a prior recorded deed of trust lien upon the three lots and improvements involved and that plaintiff had perfected its statutory materialman's lien upon each of them. The question is which has the superior lien. Plaintiff concedes that the prior recorded deed of trust lien is superior to its statutory lien unless it can be shown that its materials can be removed from the premises without material injury to the existing improvements or to the materials themselves. Neither party contends that the land will be injured by removal of the tile roof.
While the supreme court in Whirlpool laid to rest many of the long standing problems with respect to superiority of liens which have troubled the courts and litigants for years, it did not answer the threshold question, namely, what constitutes material injury. Defendant contends that we must look to the nature of the improvements which are sought to be removed and it quotes from Whirlpool for authority. It seems to argue that removable improvements are limited to "accessories" or to an improvement which is "connectable" to the structure. We do not agree. While the supreme court in Whirlpool was concerned with disposals and dishwashers, it did not limit its holding to accessories, connectables or appliances. The court's discussion of the nature of the improvements was limited to its determination of whether the improvements were, in the first instance, incorporated into the structure so as to bring them within the purview of article 5459. 517 S.W.2d at 266. For the same reason, we do not agree with defendant that a roof may not be removed because it is a "basic" part of the structure.
No Texas authority, either before or after Whirlpool, has been found which attempts to define "material injury" nor do we believe the term is susceptible of precise definition. As the authorities illustrate, each case must be determined upon its particular facts. In the following cases, materials were held to be removable: First Continental Real Estate Investment Trust v. Continental Steel Co., 569 S.W.2d 42 (Tex.Civ.App.-Fort Worth 1978, no writ) (windows and doors could be removed by taking out brick around them without causing ultimate damage to residence); American Amicable Life Insurance Co. v. Jay's Air Conditioning & Heating, Inc., 535 S.W.2d 23 (Tex.Civ.App.-Waco 1976, writ ref'd n. r. e.) (air conditioning units and heating units held removable from apartment complex without material injury thereto); Wallace Gin & Burton-Lingo Co., 104 S.W.2d 891 (Tex.Civ.App.-Austin 1937, no writ) (materials used in erection of cotton house connected by roof extension to a cotton gin could be removed without materially damaging adjoining gin). The following are examples of non-removable improvements: Cameron County Lumber Co. v. Al & Lloyd Parker, Inc., 122 Tex. 487, 62 S.W.2d 63 (1933) (); Chamberlain v. Dollar Savings Bank of New York, 451 S.W.2d 518 (Tex.Civ.App.-Amarillo 1970, no writ) (brick could not be removed from house without detriment or material injury to improvements); Irving Lumber Co. v. Alltex Mortgage Company, Inc., 446 S.W.2d 64 (Tex.Civ.App.-Dallas 1969), affirmed, 468 S.W.2d 341 (Tex.1971) (). In the light of these authorities, we must examine the record before us to determine if the trial court's findings are so against the great weight and preponderance of the evidence as to render them manifestly unjust. Harrison v. Chesshir, 159 Tex. 359, 320 S.W.2d 814 (1959); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
The materials sought to be removed are precast concrete roofing tiles which are 161/2 by 13 by 1/2 and weigh about ten pounds each. These are identified in the record as "field tile." The tiles are corrugated so that when one row is laid to overlap another, an interlocking effect results. The roof system, of which the tiles are a part, is constructed as follows: A solid deck of 1/2 plywood is installed over the exposed rafters of the structure, in this case a townhouse; the decking is then covered with a layer of felt paper; strips of 1 by 4 wood lathing are then nailed end to end across the length of the roof about 12 inches apart; the tiles are then laid over the lathing in rows so that each tile overlaps the next and each row overlaps the preceding row. Around the perimeter of the roof is nailed a fascia board to cover the exposed rafter ends. Trim tiles, which slightly overhang the fascia board, are nailed around the perimeter of the roof. Additionally, the system employs rake tile and ridge tile which cover the ridge rows and are fixed in place by mortar. When tiles abut a wall or vent pipes which protrude through the roof line, lead flashing is installed to overlap the tile in order to prevent water leakage. The interlocking effect created by the overlapping of tiles and by the lath is not secure in itself; consequently, depending upon the pitch of the roof, some of the tiles must be nailed to the lath. For this purpose, one nail-size hole is left in each tile during the molding process. Here, the roof was not severely pitched; therefore, only every second tile in every second row was nailed.
As stated before, only the tile is sought to be removed from the three houses in question. The record shows that on the average each house contains about thirty-seven to thirty-nine squares of tile which translates into 3,700 to 3,900 pieces of tile. Of these, about ninety percent are field tile and ten percent are a combination of rake, trim and ridge tile. The retail price of each piece of field tile is forty-five cents and the labor cost for the removal of all the tile would be about ten dollars per square.
During the installation process, the tile is lifted to the roof of the house by means of a thirty-two foot conveyor belt and spaced in stacks about the surface of the roof so as not to create undue weight stress on any part of the decking. The testimony is that removal would be accomplished in a reverse order from the installation. Five witnesses, each with varying degrees of experience and expertise with concrete tile roofs, gave testimony regarding installation and removal of the roofs.
Steward, the owner of S & H Roofing Co., who was a defendant in the trial court, was called as an adverse witness by plaintiff. He had been in the roofing business for many years; however, his experience with concrete tile was limited to four jobs. He testified: "Well, there would be some broken tile if you take them off and there would probably be a little damage to the house, but I don't think it would be much." The damage to the house, according to Steward, consisted of "possible" tearing of some felt, a bending of flashing, and some nail holes. He could not testify that the nails penetrated the decking and into the attic. Kilgore was the head of plaintiff's contract division and charged with the training...
To continue reading
Request your trial
-
Exchange Sav. & Loan Ass'n v. Monocrete Pty. Ltd.
...trial court's judgment and remanded the part of the judgment denying foreclosure of the materialman's lien on lots H-28, L-98 and H-18. 601 S.W.2d 448. We reverse the judgment of the court of civil While this Court does not have jurisdiction to review the question of factual sufficiency of ......