Yeager Elec. & Plumbing, Inc. v. Ingleside Cove Lumber & Builders, Inc.

• Decision Date: 29 August 1975
• Docket Number: No. 970,970
• Citation: 526 S.W.2d 738
• Parties: YEAGER ELECTRIC & PLUMBING COMPANY, INC., Appellant, v. INGLESIDE COVE LUMBER AND BUILDERS, INC., et al., Appellees.
• Court: Texas Court of Appeals

Page 738

526 S.W.2d 738

YEAGER ELECTRIC & PLUMBING COMPANY, INC., Appellant, v. INGLESIDE COVE LUMBER AND BUILDERS, INC., et al., Appellees.

No. 970.

Court of Civil Appeals of Texas, Corpus Christi.

Aug. 29, 1975.

Ronald M. Yeager, Aransas Pass, for appellant.

William L. Ellis, Aransas Pass, for appellees.

OPINION

NYE, Chief Justice.

This is a mechanic's and materialman's lien case involving a dispute between a subcontractor asserting a materialman's lien and the owner of the improved property. Yeager Electric & Plumbing Company, Inc., the subcontractor, brought suit against Mary Beth Brewster, the owner of the properties, her son, Steve Brewster, Ingleside Cove Lumber and Builders, Inc., the general contractor, and Joe Thompson on an open account and to establish and foreclose a statutory mechanic's and materialman's lien. Joe Thompson and Ingleside Cove Lumber and Builders, Inc. failed to answer. The trial court entered an interlocutory default judgment against the contractor, Ingleside Cove Lumber and Builders, Inc., and Joe Thompson, for the amount of the open account ($2,347.50), plus $1,200.00 attorneys' fees and interest amounting to $266.44. This judgment was subsequently made final.

The court, without the aid of a jury, heard plaintiff's suit against the owner. It resulted in a judgment that plaintiff take nothing against the owner and that plaintiff's claim of lien be declared invalid. The court found that Steve Brewster had no interest in the property. Yeager, the subcontractor, has perfected its appeal to this Court. We reverse and render judgment for the subcontractor, Yeager.

The facts relating to Yeager's establishment of its mechanic's and materialman's lien are virtually undisputed. Sometime prior to May 19, 1972, Mrs. Mary Beth Brewster, the owner of certain property entered into a turn-key contract with Ingleside Cove Lumber and Builders, Inc. (hereafter referred to as Contractor), for the repair and replacement of a certain building, including the installation of a septic system and shell driveway for a two story restaurant building on Highway 35 north, Aransas Pass, Texas, then known as 'Payne's Restaurant'. The turn-key contract price for such work was set at $49,000.00. On May 19, 1972, Yeager submitted a bid to the general contractor for the air conditioning, plumbing and the electrical repairs and was awarded the electrical and plumbing jobs. The total contract for both electrical and plumbing amounted to $3,176.00 of which $1,933.00 was for the plumbing portion and $1,243.00 for the electrical portion.

Yeager commenced work on the plumbing and electrical subcontract around May 20th or 21st, 1972, and worked on the building until the building was ready to 'trim out,' which was around July 15, 1972. On July 31, 1972, Yeager sent a statement to the contractor setting out that eighty percent (80%) of the electrical and seventy percent (70%) of the plumbing job had been completed. Yeager never received any part of the $2,347,50 due from the contractor or the owner. It then terminated its portion of the job before completion.

The funds which were to be used in paying the contract price of $49,000.00 to the contractor came from an escrow account at the First State Bank, Aransas Pass, Texas, being the proceeds of an S.B.A. loan to the owner, Mary Beth Brewster. From that account, the sum of $16,015.00 was paid on May 12, 1972, and $16,415.00 was paid to the contractor on June 23, 1972, making a total paid to the contractor of $32,430.00. After the June 23, 1972 payment, no further payments were made to the original contractor either from the escrow account or directly from the owner.

When Yeager did not receive his money from the contractor on his billing of July 31, 1972, he perfected his statutory lien against the owner. Yeager sent a notice letter by certified mail (return receipt requested) on August 3, 1972, to Mary Beth Brewster, the owner of the improved property, which was received by her on or about August 18, 1972. Included in the notice to the owner was the statement by Yeager that it, as subcontractor, was making a claim for a debt incurred by the original contractor, for the unpaid balance of $2,347.50 as a result of having furnished materials and labor on the owner's property, describing the same. The letter advised Mrs. Brewster that as owner of the property she might become personally liable and her property become subject to a lien unless such funds were withheld from the contract for payment of this statement or unless the bill was otherwise settled. Thereafter, Yeager forwarded its mechanic's and materialman's lien affidavit to the county clerk of Aransas County for filing on August 24, 1972. As required by statute, a copy of the letter of transmittal to the county clerk, together with two copies of such affidavit were sent by certified mail to Mrs. Brewster and were in fact received by her.

It appears from the record that the contractor abandoned the job and failed to complete the same. The balance of the work was contracted out by the owner to various other contractors and was completed by them sometime in April, 1973. They were collectively paid approximately $17,835.00. This brought the total contract price paid by the owner to $50,455.00.

Yeager then filed suit against the owner and the contractor as aforesaid alleging that the amount of $2,347.50 was due and owing for labor and materials furnished to the contractor on the owner's property giving the legal description thereof. Yeager claimed that it had a valid mechanic's and materialman's lien which was filed of record in the mechanic's and materialman's lien records of Aransas County and that its mechanic's and materialman's lien entitled it to a first and superior lien upon the real estate owned and described therein and on all the improvements, fixtures and personal property placed thereon. It sought judgment for attorneys' fees, interest, for foreclosure of its lien on the said property, and for general relief.

Appellant brings forward two points of error on appeal. It contends that the trial court erred in holding: 1) that plaintiff take nothing against the owner of the property by declaring the plaintiff's lien to be invalid, and in discharging and relinquishing the same, because its lien was properly perfected under Article 5453, Tex.Rev.Civ.Stat.Ann.; and 2) the trial court erred in holding that plaintiff take nothing against the owner, because it had also perfected its lien pursuant to Articles 5463 and 5469, which required the owner to retain funds for the benefit of Yeager.

The appellee replies to such points by stating that in order for a lien asserted under either Article 5453 or under Articles 5463 and 5469, 'notice' must be specifically alleged in plaintiff's petition and later proved before either lien can be fixed and perfected; and without an allegation of notice in plaintiff's petition, a judgment fixing and foreclosing either of such liens could not be sustained. Therefore, the trial court was correct.

Appellee does not contend nor argue that Yeager has failed to secure and fix its liens on the owner's property under Article 5453 or 5463 and 5469. During oral argument, appellee candidly admitted, from a question of the court, that except for the failure of the appellant to plead that it had given the requisite statutory notice Yeager would probably be entitled to a lien and judgment. It is appellee's contention that the appellant Yeager failed to plead in his petition that the requisite statutory notice had been given to the owner. This is the specific question on this appeal.

During the course of the trial, Yeager offered the notice letters in evidence. The appellee objected on the basis 'that there is no predicate in the pleadings, there is no allegations that any notice was ever given'. The trial court overruled the owner's objections and admitted the letters into evidence. The subject letters gave the owner the necessary statutory notice of the filing of the mechanic's and materialman's lien. The trial court entered judgment for the appellee owner on an erroneous theory unrelated to the sole question raised by the parties in this appeal.

Appellee owner argues in effect that since the proof of notice had not been pled, it was error for the trial court to admit the letters into evidence in the fact of his objection and, therefore, a required element of proof would have been missing had the court properly sustained the appellee's objection. Appellee contends that a judgment (reversing and rendering) upholding the validity of the lien based on such evidence cannot be sustained here, since there were no pleadings to support the element of notice.

The giving of notice to the owners as required by Section 2, b(2) of Article 5453 is a condition precedent to the validity of a lien claimed by a subcontractor. Herrington v. Luce, 491 S.W.2d 478 (Tex.Civ.App.--Tyler 1973, no writ); Trinity Universal Insurance Company v. Palmer, 412 S.W.2d 691 (Tex.Civ.App.--San Antonio 1967, writ ref'd n.r.e.). However, plaintiff alleged in its petition that it had filed its lien of record and alleged generally that it had perfected a first and superior lien on the Brewster property and that it was entitled to foreclosure and such other and further relief at law or in equity to which it shows itself justly entitled. No exceptions were levied or urged toward such...