University State Bank v. Gifford-Hill Concrete Corp.

• Decision Date: 05 July 1968
• Docket Number: No. 16917,GIFFORD-HILL,16917
• Parties: The UNIVERSITY STATE BANK et al., Appellants, v.CONCRETE CORPORATION et al., Appellees. . Fort Worth
• Court: Texas Court of Appeals

Page 561

431 S.W.2d 561

The UNIVERSITY STATE BANK et al., Appellants, v. GIFFORD-HILL CONCRETE CORPORATION et al., Appellees.

No. 16917.

Court of Civil Appeals of Texas.

Fort Worth.

July 5, 1968.

Rehearing Denied Sept. 13, 1968.

Cantey, Hanger, Gooch, Cravens & Scarborough, and Charles L. Stephens Fort Worth, for appellant University State Bank.

Cook & Hobbs and Paul C. Cook, Fort Worth, for appellants G. A. Mallick, Inc., G. A. Mallick, Jr., St. Francis Village, Inc., Aetna Casualty & Surety Co., and Morris R. Antweil.

Mack & Mack, and Theodore Mack, Fort Worth, for appellant, Henry W . Simon, Jr., Trustee.

Carl A. Skibell, Dallas, for appellee, Dallas Rebar, Inc.

Touchstone, Bernays & Johnston, and Charles Beresford, Dallas, for appellee Gifford-Hill Concrete Corp.

OPINION

LANGDON, Justice.

This suit is primarily one to determine priorities to certain funds which were tendered into court. Gifford-Hill Concrete Corporation and Dallas Rebar, Inc., hereinafter referred to as G.H. and Rebar, respectively, unpaid materialmen, filed separate suits against the owner, St. Francis Village, Inc., the general contractor, G. A. Mallick, Inc., Geo. A. Mallick, Jr., and Morris R. Antweil, hereinafter referred to as the Mallick group, and the surety on the general contractor's bond which suits were consolidated. The defendants, by way of answer in the consolidated suit, filed a Bill of Interpleader bringing into the case The University State Bank, the Trustee in Bankruptcy of L. C. Springer, L. C. Springer, individually and the United States of America (it was dismissed upon failing to press its tax claim). The Trustee in Bankruptcy by a third party complaint brought in certain other parties.

The judgment of the court describes the parties and their relative positions in the following manner: G.H. and Rebar were plaintiffs, cross-defendants and defendants in interpleader, and G. A. Mallick, Jr., individually, G. A. Mallick, Inc., The Aetna Casualty & Surety Company, hereinafter referred to as Aetna, and Morris R. Antweil, individually, were defendants and petitioners in interpleader, and Lathern Clyde Springer, Henry W. Simon, Jr., Trustee (referred to as Trustee) in Bankruptcy of Lathern Clyde Springer, Bankrupt, and The University State Bank were defendants in interpleader and cross-plaintiffs, and the United States of America, defendants in interpleader. The case was tried to a jury.

The Court disregarding certain issues entered judgment for G.H. and Rebar against St. Francis Village, Inc., G.A. Mallick, Inc., G. A. Mallick, Jr., individually, and The Aetna Casualty & Surety Company, jointly and severally, as follows: To G.H. $31,337.56 plus $4,402.70 interest and $6,250.00 attorney's fees, a total of $41,990 .26; to Rebar $16,530.28 plus $2,479.54 interest and $4,000.00 attorney's fees, a total of $23,009.82. Interest at 6% From date of judgment was awarded each. The total sum of $41,990.26 awarded G.H. and $9,261.94 of the $23,009.82 awarded Rebar plus $1,390.00 interest and $2,750.00 attorney's fees, a total of $13,401.94 was ordered satisfied out of the funds in the registry of the court. Both G.H. and Rebar were given judgment establishing and fixing their materialmen liens in the amounts of $41,990.26 and $23,009.82, respectively, against the property of St. Francis Village, Inc., said liens to be foreclosed and said property (therein described) sold by the Sheriff of Tarrant County, Texas, and the proceeds of said sale applied to the satisfaction of the total claims, including attorney's fees and interest. Rebar was further granted an unsecured claim in Bankruptcy in the matter of Lathern Clyde Springer, Bankrupt, for so much of its total judgment which is not finally satisfied out of the funds on deposit or from the foreclosure of its lien and judgment as against St. Francis Village, Inc., the Mallick group and Aetna.

The Trustee was awarded judgment against the Mallick group, St. Francis Village, Inc., and Aetna, jointly and severally for $7,060.49 and for the remaining balance of the funds on deposit after the satisfaction of the judgments awarded G.H . and Rebar and for $3,500.00 attorney's fees, to be paid out of the remaining balance of the funds on deposit.

Relief sought by The University State Bank and other parties was denied.

All parties except G.H. and Rebar have appealed.

The appellants, the Mallick group, St. Francis Village and Aetna, contend that the court erred: (a) in awarding any attorney's fees or interest to Rebar, and to G.H. and holding same were a lien against the funds on deposit in the registry of the court and the property of St. Francis Village, Inc.; in awarding the Trustee any attorney's fees and holding same were a lien on the funds in the registry of the court; (b) in awarding Rebar a lien against St. Francis Village, Inc. for any amount in excess of $9,261.94 (Points 1 thru 15); (c) in holding the Mallick group, Aetna, and St. Francis Village, Inc., liable to Rebar, G.H. and the Trustee for any part of their claims and in granting foreclosure of any lien against the property of St. Francis Village, Inc.; in refusing to discharge any lien claims against St. Francis Village, Inc. and to quiet the title thereto; in awarding Henry W. Simon, Jr., a personal judgment against the Mallick group, St. Francis Village, Inc., and Aetna, for the $7,060.49 balance of the L. C. Springer sub-contract; in failing to grant to these same parties subrogation of the L. C. Springer bankruptcy for any amount paid by any of said parties to Rebar or G. H. (Points 16 thru 32); and in refusing to award G. A. Mallick, Inc. interpleader attorney's fees for work done by its attorneys exclusive of the work connected with the contest over backcharges and the claim of the Trustee for additional compensation (Point 33).

The appellant, The University State Bank, insists the court erred in the following particulars: (a) in failing to render judgment on the verdict or to grant its motion for directed verdict in the amount of its claim, to be paid ahead of all other claimants out of the impleaded funds (Points 1 & 2); (b) in failing to render judgment for it against G. A. Mallick, Inc., and/or G. A. Mallick, Jr., in an amount equal to the progress payments that should have paid to Springer on or about October 10, 1964, and November 10, 1964; (c) in failing to render judgment for it and against G. A. Mallick, Inc., and/or G. A. Mallick, Jr., in the additional amount of $1,542.24 ($1,713.60 less 10% Hold-back) representing progress payment for the supplemental agreement between general contractor and Springer covering the rectory foundation; (d) in disregarding the jury's answers to related Special Issues Nos. 5 and 5-a and in thereby failing to enter judgment that appellant G. A. Mallick, Inc., pay into court the sum of $2,484.00 found by the jury to be due Springer under the oral contract in question; (e) in failing to grant judgment against G. A. Mallick, Inc., in the additional amount of $422.60, which amount G. A. Mallick, Inc.'s president admitted was owed to Springer for repair to foundations resulting from hail damage covered by insurance; or, in the alternative, the trial court erred in not deducting such sum of $422.60 from the chargeback off-set otherwise allowable to G. A. Mallick, Inc., under the jury's verdict; (f) in rendering judgment that appellee Rebar was entitled to have a substantial portion of its claim and appellee G.H. its entire claim for material satisfied and paid out of the funds on deposit; (g) in holding that appellees G.H. and Rebar had a lien upon the interpleaded funds for interest and attorney's fees and that all costs be taxed against the interpleaded funds rather than taxing costs against appellants G. A. Mallick, Inc., and G. A. Mallick, Jr.; (h) in holding that the Trustee was entitled to have his attorney's fees paid out of the funds on deposit rather than be paid by appellants G. A. Mallick, Inc., and/or G. A. Mallick, Jr.; (i) in failing to submit in its charge to the jury certain requested special issues and instructions; (j) in overruling its objections to certain 'duplicitous and overlapping' issues in the charge and to evidence offered for impeachment purposes of certain exhibits, and its motion to strike from the record the exhibits and testimony relating thereto. (Points 3-22).

The appellant, Trustee, contends the court erred: (a) in granting the motions of the Mallick group and St. Francis Village, Inc., and Aetna to disregard the jury's answers to Special Issues Nos. 5, 5-a, 7, 7a, 7b, 7c, and in granting judgment notwithstanding the jury's answers to said issues; in ordering costs of suit paid out of the court funds (Points 1-3); (b) in failing to grant the Trustee judgment jointly and severally against G. A. Mallick, Inc. and George A. Mallick, Jr., as well as against the fund on deposit for his attorney's fees of $3,500.00; (c) in granting G.H. satisfaction of its judgment for $41,990.26 and $13,401.94 of Rebar's $23,009.82 judgment including interest and attorney's fees out of the fund on deposit in the registry of the court; (d) in failing to grant judgment that the entire $58,752.21 on deposit be paid to the Trustee for distribution in accordance with the Bankruptcy Act.

The following background is deemed pertinent to a discussion of the issues: On October 29, 1963, G. A. Mallick, Inc., George A. Mallick, Jr., individually, and Morris R. Antweil, individually, (the Mallick group) executed a general construction contract with St . Francis Village, Inc. for construction of extensive improvements on a large tract of land owned by St. Francis Village, Inc. in Tarrant County, Texas. The contract price was $3,413.748.00. On the same date, Mallick, Inc., Mallick, and Antweil (the Mallick group) executed a payment and performance bond in the amount of the contract price as principals with the Aetna Casualty & Surety Company as surety and with St....