Sheldon Pollack Corp. v. Pioneer Concrete of Texas, Inc.

• Decision Date: 31 January 1989
• Docket Number: No. 05-88-00065-CV,05-88-00065-CV
• Citation: 765 S.W.2d 843
• Parties: SHELDON POLLACK CORPORATION, Appellant, v. PIONEER CONCRETE OF TEXAS, INC., Appellee.
• Court: Texas Court of Appeals

Page 843

765 S.W.2d 843

SHELDON POLLACK CORPORATION, Appellant, v. PIONEER CONCRETE OF TEXAS, INC., Appellee.

No. 05-88-00065-CV.

Court of Appeals of Texas Dallas.

Jan. 31, 1989.

Rehearing Denied March 3, 1989.

Lionel M. Schooler, Houston, for appellant.

William D. Weber, Houston, for appellee.

Before WHITHAM, BAKER and THOMAS, JJ.

BAKER, Justice.

Judgment was rendered against Sheldon Pollack Corporation on its bond to indemnify the mechanic's and materialman's lien claim filed by Pioneer Concrete of Texas, Inc. In this appeal, Pollack asserts four points of error contending that the district court erred: (1) by failing to file findings of fact and conclusions of law after its timely request; (2) because the undisputed evidence demonstrates that Pollack is not liable on the bond to indemnify Pioneer's mechanic's lien; (3) because Pioneer submitted no evidence or insufficient evidence of the sale, delivery, and consumption of the materials on the project; and (4) in awarding Pioneer its attorney's fees because Pioneer introduced no evidence or insufficient evidence to show that the fees awarded were proved or were reasonable.

We affirm in part and reverse and remand in part.

Pioneer sold concrete to Star General Concrete of Texas, Inc., for Star to use as a subcontractor to Pollack, the general contractor, on the construction of a shopping center in Plano, Collin County, Texas. Star did not pay all of Pioneer's account. Pioneer then timely filed a mechanic's and materialman's lien on the project and gave notice of the filing of the lien to Pollack. Pollack, as principal, and Insurance Company of America, as surety, posted a bond to indemnify Pioneer's lien. When Star failed to pay Pioneer, Pioneer sued Star on a sworn account and also sued Pollack and INA on the indemnity bond. In a nonjury trial, judgment was rendered in favor of Pioneer against Star on the account. The trial court also found in favor of Pioneer against Pollack as principal on the indemnity bond, and rendered judgment for principal, interest, and attorney's fees. The trial court found in favor of INA against Pioneer. Pollack appeals on its liability as principal on the indemnity bond.

In its first point of error, Pollack complains that the trial court's failure to file findings of fact and conclusions of law, despite Pollack's timely request and reminder, mandates that this cause be reversed and remanded for trial. Pollack asserts that the trial court's failure constitutes reversible error because injury is presumed unless the contrary appears. See Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117, 119 (1944). However, it is equally true that if the record before the appellate court affirmatively shows that the complaining party suffered no injury, then the trial court's failure to file findings of fact or conclusions of law does not require a reversal of the judgment. See Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 256 (Tex.1984); Wagner, 178 S.W.2d at 120.

The test of whether there is harm depends on whether the circumstances of the particular case would require an appellant to have to guess the reason or reasons that the trial judge has ruled against it. In factually complicated situations in which there are two or more possible grounds for recovery or defense, an undue burden would be placed upon an appellant. See Fraser v. Goldberg, 552 S.W.2d 592, 594 (Tex.Civ.App.--Beaumont 1977, writ ref'd n.r.e.). The issue is whether there are disputed facts to be resolved. See Barnes v. Coffman, 753 S.W.2d 823 (Tex.App.--Houston [14th Dist.] 1988, writ denied). Pollack asserts that there is a dispute as to its liability on the indemnity bond, a dispute as to Pioneer's proof of its sale and delivery of the materials, and a dispute as to Pioneer's failure to properly prove reasonable attorney's fees.

Pioneer contends that a full statement of facts has been filed, that its sole cause of action against Pollack was based upon the indemnity bond, that it properly proved the sale and delivery of the materials to the project, and that the attorney's fees awarded by the court were reasonable. We have reviewed the record and conclude that with the exception of the attorney's fees issue, an abatement of this appeal solely for the purpose of compelling the trial court to file findings of fact and conclusions of law would serve no useful purpose. For reasons that will become apparent in our following discussion, we overrule appellant's point number one.

In its second point, Pollack contends that the trial court erred in granting Pioneer judgment because the undisputed evidence shows Pollack was not liable on the indemnity bond. Pollack, as principal, posted the indemnity bond in question in accordance with the provisions of section 53.171 of the Texas Property Code. See TEX.PROP.CODE ANN. § 53.171 (Vernon 1984). The terms of the bond complied with the provisions of section 53.172 of the Texas Property Code; however, it contained an additional clause which reads:

PROVIDED, HOWEVER, there shall be no liability under this bond to the Obligees, or either of them unless the said Obligees, or either of them, shall make payments to the Principal strictly in accordance with the terms of said Contract as to payment, and shall perform all of the other obligations to be performed under said contract at the time and in the manner therein set forth; all of the acts of one Obligee being binding on the other.

The attached bond shall be subject to all of its terms, conditions and limitations except as herein modified.

Pollack argues that the owner of the project, one of the obligees on the bond, failed to pay under the contract with Pollack. Since the owner failed to pay, Pollack argues that Pioneer, as another obligee, is bound by the condition; and therefore, it as principal was released from its obligation to Pioneer as obligee.

Pioneer concedes that its sole cause of action against Pollack is based upon Pollack's liability under the indemnity bond. Pioneer asserts that it complied with all of the statutory requirements to proceed against the bond and that the only arguable reason for absolving Pollack from liability is the imposition of the rider condition against it. Pioneer argues that the rider provision is unenforceable and void because it conflicts with the provisions of section 53.172 of the Texas Property Code and the public policy of the lien and bond laws. We agree with Pioneer.

Where a bond is executed with the intention of the parties to comply with the requirements of a statute, the terms of such statute will become a part of such obligation, by incorporation, even though the bond itself is otherwise silent as to the statutory obligations. See Grimes v. Bosque County, 240 S.W.2d 511, 516 (Tex.Civ.App.--Waco 1951, writ ref'd n.r.e.). The statute establishing the terms of the indemnity bond contains no limitation of liability such as that made a part of this bond by the rider referred to above. It is our opinion that this bond provision, because it exceeds the statutory limitations of liability, is unenforceable as to Pioneer. See Langdeau v. Great American Ins. Co., 369 S.W.2d 944, 951 (Tex.Civ.App.--Austin 1963), rev'd on other grounds, 379 S.W.2d 62 (Tex.1964).

Pollack argues that reversal of this judgment would bring no harm to Pioneer because Pioneer can still pursue its lien claim against the owner of the project. Pollack's reliance on University Savings and Loan Ass'n v. Security Lumber Co., 423 S.W.2d 287 (Tex.1967), as authority for this position is misplaced. Because of the express terms of the Property Code, Pioneer cannot pursue a lien claim against the owner. TEX.PROP.CODE ANN. § 53.171(c) (Vernon 1984); Nixon Constr. Co. v. Rosales, 437 S.W.2d 52, 54 (Tex.Civ.App.--El Paso 1969, writ ref'd n.r.e.). We overrule Pollack's second point of error.

In its third point of error, Pollack contends that the judgment was erroneous because Pioneer presented no evidence or insufficient evidence of the sale, delivery, and consumption of the materials on the project involved. One of Pollack's assertions is that Pioneer failed to prove that the materials were actually consumed in the construction of the project. The authorities relied upon by Pollack for this proposition involve public works contracts. See Brown & Root v. Durland, 126 Tex. 20, 84 S.W.2d 1073 (Tex.Comm'n App.1935, opinion adopted); John F. Buckner & Sons v. Arkansas Fuel Oil Corp., 301 S.W.2d 325 (Tex.Civ.App.--Waco 1957, no writ); National Surety Corp. v. Dabney, 282 S.W.2d 70 (Tex.Civ.App.--Waco 1955, no writ). While this is the rule for public works projects, such is not the rule on private...