Robert Burns Concrete Contractors, Inc. v. Norman

• Decision Date: 26 January 1978
• Docket Number: No. 1093,1093
• Parties: ROBERT BURNS CONCRETE CONTRACTORS, INC., Appellant, v. Jay NORMAN et ux., Appellees.
• Court: Texas Court of Appeals

Page 614

561 S.W.2d 614

ROBERT BURNS CONCRETE CONTRACTORS, INC., Appellant,

v. Jay NORMAN et ux., Appellees.

No. 1093.

Court of Civil Appeals of Texas, Tyler.

Jan. 26, 1978.

Rehearing Denied Feb. 23, 1978.

John Emmett, Dallas, for appellant.

Robert C. Johnson, Grady, Johnson, Smith & Blakeley, Dallas, for appellees.

MOORE, Justice.

Plaintiff, Robert Burns Concrete Contractors, Inc., instituted suit against defendants, Jay Norman and wife, Ethel J. Norman (Normans), to foreclose a mechanic's and materialmen's lien on a house owned by the Normans and situated on Lot 3 of Block L/8188 of Prestonwood Estates Addition to the City of Dallas, Texas. Plaintiff alleged that prior to the time the Normans acquired the title to the lot in question, plaintiff entered into a contract with the Normans' general contractor, Godwin Bevers Company, Inc. (Bevers), to construct a concrete foundation for the house to be built thereon and that Bevers failed and refused to pay the balance due on the contract in an amount in excess of $3,000.00. Plaintiff further alleged that it duly perfected its mechanic's lien on the lot by giving notice to Bevers, who, according to plaintiff, acquired title and became the owner of the lot prior to the time the Normans acquired title. Plaintiff therefore asserted that the lot was burdened with the lien at the time the Normans subsequently acquired title thereto. Plaintiff prayed for a judgment foreclosing the lien on the lot but did not seek a personal judgment against the Normans. The Normans answered with a general and special denial alleging that plaintiff failed to perfect a statutory or any other kind of mechanic's lien upon the lot, because plaintiff did not give them, as the owners of the lot, any notice thereof as provided for under the lien statutes. They alleged that notice of the lien given to Bevers was insufficient to perfect a lien against defendants, because Bevers was never the owner of the lot. After a trial before the court sitting without a jury, the court rendered a take-nothing judgment against the plaintiff and this appeal resulted.

We affirm.

The record is before us by way of a statement of facts only, there being no findings of fact or conclusions of law.

The facts, for the most part, are undisputed. The record shows that at the time this controversy arose, Bevers was in the business of constructing homes and Simons Land Co. (Simons) was a land developer who occasionally sold building sites to Bevers. On May 18, 1972, Bevers contracted to buy four lots from Simons, one of which was the lot in question. Shortly thereafter Bevers erected a "for sale" sign on the lot. Having observed the sign, the Normans contracted with Bevers in regard to purchasing the lot and erecting a house thereon. On November 8, 1972, the Normans entered into a written contract with Bevers in which Bevers agreed to sell them the lot and erect a house thereon for a total cash consideration of $71,000.00. At the time the building contract was executed, Bevers advised them that it did not own the lot, but promised that upon the down payment of $11,350.00 as provided in the contract the building company would obtain a deed from Simons conveying them the title to the lot. According to the undisputed testimony of Mr. Norman, it was the understanding of the parties that $8,850.00 of the down payment would be used to purchase the lot and the remainder would be used in commencing construction of the house. At the time Bevers contracted to sell the lot to the Normans, its time limit to purchase the lot had expired. Bevers called Simons and advised that the lot had been sold. The record does not reflect the nature of this conversation; however, Simons apparently agreed to sell the lot because on November 13, 1972, a general warranty deed conveying the lot to Bevers was prepared and forwarded to Southwest Land Title Company, Simons' escrow agent, with instructions that the deed was not to be delivered until the $8,850.00 was paid. Why the deed was executed to Bevers rather than the Normans is not explained. In any event the record shows that the deed remained at the title company until February 6, 1973.

In the meantime, Bevers, acting as the Normans' general contractor, commenced construction of the house. Shortly thereafter, Bevers subcontracted the concrete foundation work to the plaintiff and subsequently failed or refused to pay plaintiff a balance due thereon in the amount of $3,169.00. The Normans knew nothing of the contract and had no contact whatever with plaintiff. On January 30, 1973, plaintiff, not having been fully paid, filed with the County Clerk of Dallas County an affidavit claiming a mechanic's lien against the lot in question. The affidavit filed by plaintiff stated that Bevers was the owner of the lot, and the testimony shows that notice of the filing of the affidavit for perfecting the lien was timely given to Bevers. No notice, however, was given to the Normans.

Thereafter, on February 6, 1973, Bevers addressed a letter to Simons indicating that it was constructing a home on the lot in question for Mr. & Mrs. Norman, who were paying cash for the lot and improvements. The letter further stated that it was in the best interests of Bevers that the deed to the lot be made directly to the Normans and that the letter would constitute Simons' authority to convey it directly to them. On the same day, Southwest Land Title Company, which apparently had knowledge of the foregoing letter, addressed a letter to Simons Land Company reciting as follows: "We are enclosing check from Godwin Bevers Company in the amount of $8,850.00 covering the above lot, conveyed to Jay Norman and wife, Ethel J. Norman. We are returning the original deed. We are enclosing an authorization for your files signed by Godwin Bevers Company, Inc." There is no direct evidence showing that at the time Bevers paid for the lot it knew that the deed had been executed to Bevers rather than the Normans. Bevers' letter directing Simons to convey the lot directly to the Normans on the same date it delivered its check in payment of the lot indicates that Bevers was not apprised of the fact that the deed was made out to it until the date payment was made. There is no evidence that Bevers ever obtained possession or accepted delivery of the deed or that it had any intention of doing so. Upon receipt of Bevers' letter directing that the deed be executed directly to the Normans, Simons Land Company executed a deed to them on February 8, 1973. At that time Bevers was in the process of constructing the house, and the Normans continued to advance funds for its construction. In the spring of 1973, after the Normans had advanced Bevers approximately $45,000.00, Bevers went into bankruptcy and the Normans were compelled to employ other contractors to finish the house. Although the house was not completed, the Normans moved into the house on April 1, 1973, and construction was finally completed in the summer or early fall of 1973.

Plaintiff contends by a single point of error that the evidence conclusively shows that when Bevers paid the escrow agent for the lot on February 6, 1973, Bevers automatically became the owner,...