Taylor v. Rigby
| Decision Date | 22 November 1978 |
| Docket Number | No. 1160,1160 |
| Citation | 574 S.W.2d 833 |
| Parties | R. M. TAYLOR et al. v. Roy RIGBY d/b/a Rigby Plumbing Co. |
| Court | Texas Court of Appeals |
James R. Cornelius, Jr., Zeleskey, Cornelius, Rogers, Berry & Hallmark, Lufkin, Charles E. Fitch, DeLange, Hudspeth, Pitman & Katz, Houston, for appellants.
Bill McWhorter, McWhorter & Earley, Nacogdoches, for appellee.
Appellee, Roy Rigby d/b/a Rigby Plumbing Company, brought suit against R. M. Taylor and wife, and the First Bank and Trust Company of Lufkin, as Trustee for the First State General Employee Benefit Trust, seeking to foreclose a contractual, a statutory and a constitutional lien on a tract of land in the hands of subsequent purchasers; alternatively, Rigby prayed for $35,480 for labor, materials and renting of equipment in quantum meruit. Taylor and wife answered by general denial, and specifically denied that Rigby had any lien in that he failed to comply with either the constitutional provisions, the statutory provisions or the recording statutes which would create any lien. The bank answered by general denial, and pled waiver and estoppel; that the statutory lien statutes constitute an unconstitutional taking of property rights without due process of law; and that if it should be determined that Rigby had or has a valid constitutional or statutory lien then the bank is entitled to the first proceeds by virtue of its lien on the property. The bank also filed a cross-action for the first proceeds.
Trial was to a jury; the trial court rendered judgment for Rigby, foreclosing a contractual lien, a constitutional lien and a statutory lien. Both the Taylors and First Bank and Trust appeal.
On April 15, 1971, W. C. Murphrey and wife entered into a written contract with Rigby for plumbing work on 30.5 acres of their land which they planned to use as a mobile home park. The contract provided for a lien in favor of Rigby. Rigby completed a portion of the work but stopped work when weekly progress payments were not made as called for by the contract. Rigby demanded payment, then filed his lien contract for record in Nacogdoches County on May 24, 1971.
On May 5, 1971, the Murphreys executed a note and deed of trust to Stone Fort National Bank covering the same 30.5 acre tract. The Murphreys defaulted on this note and Stone Fort Bank, acting through its trustee, foreclosed its deed of trust lien and sold the property to Taylor and wife. The deed to the Taylors was filed for record April 4, 1972.
On March 29, 1972, Rigby sued the Murphreys for the money due on his contract, and default judgment was taken on August 10, 1972, in the amount of $30,000.
On December 5, 1972, the Taylors executed a deed of trust to First Bank and Trust covering the same tract, and such deed was filed for record December 13, 1972.
The time element in the sequence of events follows:
Aug. 15, 1970 The Murphreys bought land, including
both tracts involved here, and gave
deed of trust to Stone Fort National
Bank
Apr. 15, 1971 Rigby contracted with Murphreys to
make improvements (laying sewer and
water lines) on the 30.5 acre tract
for $56,497.50, said contract giving
plaintiff a lien on said tract as security
for payment
Apr. 17, 1971 Rigby began work
May 5, 1971 Murphreys borrowed $10,000 from
Stone Fort National Bank to finance
construction of a KOA building on an
adjoining 24.5 acre tract, and gave
the bank a second lien deed of trust
(on both tracts)
May 24, 1971 Rigby recorded contract with County
Clerk in Mechanics' and Materialmen's
Lien Records (following failure to
receive weekly progress payments from
Murphreys).
Mar. 29, 1972 Rigby filed petition in suit against
Murphreys, claiming $30,000 due for
labor and materials furnished under
the contract.
Apr. 4, 1972 Trustee under second lien deed of
trust held trustee's sale of both tracts
and sold them to Defendant Taylor
for $15,600.
Apr. 10, 1972 Stone Fort National Bank sold the
first note and deed of trust to
Taylor for $42,067.85 by an
assignment of lien.
Aug. 10, 1972 Rigby took default judgment against
Murphreys in that suit for $30,000.
Aug. 16, 1972 Rigby filed abstract of judgement
obtained against Murphreys.
Dec. 5, 1972 Taylors executed deed of trust to
Lemke, Trustee for benefit of First
Bank & Trust of Lufkin (a defendant
here), as Trustee for First State
General Employee Benefit Trust, said
deed of trust covering both tracts.
The jury found 1 that Rigby performed his obligations to the Murphreys under the April 15, 1971, contract; that the Stone Fort Bank had notice of the work and the lien of Rigby at the time of the execution of the deed of trust by the Murphreys on May 5, 1971; that Rigby's failure to warn Taylor of his lien did not mislead Taylor to his injury so as to estop Rigby from asserting his lien; that Rigby did not waive his claim to a lien; that Taylor did have actual knowledge of Rigby's lien and any fact or facts that would cause a prudent person to make inquiry as to such claim on or before April 4, 1972; and that $33,000 is the value of the improvements made by Rigby on the tract in question.
The judgment of the trial court provided that Rigby "recover his debt, damages and costs and have foreclosure of his contractual lien, constitutional lien and statutory lien" on the property, and that an Order of Sale issue and the property be sold at sheriff's sale, with the costs and expenses of sale be first paid; then the $30,000 judgment in favor of Rigby against the Murphreys be satisfied; then the deed of trust from the Taylors to First Bank & Trust be paid, and then any balance to the Taylors.
The Taylors and the First Bank and Trust (hereinafter called appellants) have filed a joint brief and by their point 1 contend that Rigby's only monetary recovery being in quantum meruit, there is no lien to secure it. Argument is made that the written contract only gave a lien to secure payment of the amount due under the completed contract and it does not provide for a lien if the contract was only partially completed. Appellants further maintain that there was no substantial performance by Rigby; that the jury's answer to special issue 1 was based on the trial court's instruction that Rigby was relieved of his obligation to perform by the owner's breach in not making progress payments; and that the only issue submitted to the jury regarding damages was based on quantum meruit in issue 6, and that no lien exists to secure quantum meruit recovery.
Appellee argues that no money judgment was rendered, but rather his prayer for foreclosure of his contractual, constitutional and statutory liens was granted, and that the judgment was for satisfaction of the prior judgment against the Murphreys; that the contract was divisible and he had completely performed items 1, 2, 3, and 7 thereof (relating to laying sewer lines); that all the cases relied on by appellant are contractual lien cases only; and that according to the contract, quantum meruit relief would be secured by foreclosure of the contractual lien.
Appellants reply that appellee had no constitutional or statutory lien no constitutional lien because he was not making or repairing any "buildings or articles" as required by the constitutional provision, and no statutory lien because he did not follow the proper procedures to fix such a lien.
It becomes necessary to determine whether Rigby had a lien, and if so, what kind of lien. Did Rigby have a constitutional lien? Section 37, Article 16 of the Constitution of Texas provides:
"Mechanics, artisans and materialmen, of every class, shall have a lien upon the Buildings and Articles made or repaired by them for the value of their labor done thereon, or material furnished therefor; . . ." (Emphasis added.)
In Campbell v. City of Dallas, 120 S.W.2d 1095, 1097 (Tex.Civ.App. Waco 1938, writ ref'd), the court, speaking through Judge Alexander, held that one who installed sewer and water mains "was not engaged in erecting a building or making or repairing an article within the contemplation of art. 16, sec. 37 of our State Constitution, . . . and therefore did not have a constitutional lien thereon." The Campbell case has not been overruled or modified, and we believe it controls the question here. Therefore, we hold that Rigby did not have a constitutional lien on the tract of land involved here.
As to the statutory lien claimed by Rigby and foreclosed by the trial court judgment, Article 5453 2 provides that:
Rigby filed his lien contract for record on May 24, 1971. An examination of that instrument, however, reveals that it did not comply with the statute in that it is not sworn to. It contains the acknowledgment of the parties to the contract, but there is no jurat, and such instrument was not an affidavit within the statute requiring a sworn statement of a claimed lien. Conn, Sherrod & Co., Inc. v. Tri-Electric Supply Co., 535 S.W.2d 31, 34 (Tex.Civ.App. Tyler 1976, writ ref'd n.r.e.). Art. 5455 provides, "An affidavit claiming a lien filed for record . . . shall be...
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