463 S.W.3d 109
Tex. App.2015Background
- Brenham Ready Mix supplied ready-mix concrete (July & September 2007) and fill dirt (Jan 2008) for Phase Three (37 lots) of the Brookside Meadow subdivision under contracts with subcontractor Mott and later with the general contractor; invoices for July/September concrete ($206,661.76) and fill dirt ($8,096) went unpaid.
- DePue had platted Phase Three into 37 individual lots before the Phase Three deliveries; ownership later passed to L&F, then Fitchett, and individual purchasers bought lots thereafter.
- Brenham filed lien affidavits listing each lot and sent notice letters: for concrete, first written notice to parties other than Mott was November 21, 2007; for fill dirt notice was January 30, 2008. Brenham claimed full-lien amounts against individual lots owned by Moore and Provident.
- Trial court awarded foreclosure of Brenham’s liens in the full amount against each lot and awarded attorney’s fees; Brenham rejected offers from lot purchasers to pay pro rata (1/37th) and demanded full payment to release liens.
- On appeal the court considered (1) whether Brenham substantially complied with statutory notice requirements for its concrete lien, (2) whether the full lien amounts could be enforced against individual lots sold from the previously platted tract, and (3) attorney’s-fee award issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of concrete lien (statutory notice compliance) | Brenham: its discussions with project manager and November 21, 2007 notice suffice for substantial compliance. | Homeowners: Brenham failed to give the written notice to the original contractor within statutory deadlines. | Held: Concrete lien invalid — Brenham did not provide timely written notice to the original contractor as required. |
| Enforcement of full lien against individual lots (apportionment) | Brenham: single contract for contiguous tract allows lien and full amount to attach/enforce against each lot. | Homeowners: lien must be prorated; each lot liable only for its pro rata share (1/37) of the lien. | Held: For fill-dirt lien, lien attaches to whole but enforceable against a subsequently sold individual lot only in proportion to that lot’s share of the entire tract. |
| Attorney’s fees (award amount/segregation & excess-demand doctrine) | Brenham: incurred significant fees and sought fees for foreclosure actions. | Homeowners: fee award improper given invalid concrete lien and lack of segregation for consolidated suits; excess-demand doctrine bars fees. | Held: Trial court’s award vacated as to current homeowners; remand to determine proper fees after recalculation/apportionment. |
Key Cases Cited
- First Nat’l Bank in Graham v. Sledge, 653 S.W.2d 283 (recognizes subcontractor/supplier lien rights are statutory and require compliance)
- Wesco Distrib., Inc. v. Westport Grp., Inc., 150 S.W.3d 553 (actual notice does not substitute for timely written notice under section 53.056)
- Valdez v. Diamond Shamrock Ref. & Mktg. Co., 842 S.W.2d 273 (lien attaches to the lot as it existed when construction began)
- Guar. Sav. Loan & Inv. Co. v. Cash, 91 S.W. 781 (lien attaches to contiguous lots treated as one unit; noncontiguous lots require separate liens)
- Lyon v. Logan, 5 S.W. 72 (materialman lien may attach to multiple contiguous lots owned and treated as one by owner)
- Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (one-satisfaction rule — cannot recover more than total injury)