Gustavo ARIAS d/b/a Gus Trucking Service, Appellant, v. BROOKSTONE, L.P. and Liberty Mutual Insurance Company, Appellees. and Site Work Group, Inc., Appellant, v. Gustavo Arias d/b/a Gus Trucking Service, Appellee. and Brookstone, L.P., Appellant, v. Site Work Group, Inc., Appellee.
No. 01-05-00746-CV
Court of Appeals of Texas, Houston (1st Dist.).
Dec. 20, 2007
Opinion Dissenting from Denial of Rehearing April 3, 2008.
265 S.W.3d 459
Gary Martin Jewell, Stephen Ray Smith, Christian, Smith & Jewell, LLP, Michael Lance Burnett, Coats, Rose, Yale, Ryman & Lee, P.C., Houston, for appellee.
Panel consists of Justices NUCHIA, KEYES, and HIGLEY.
OPINION
SAM NUCHIA, Justice.
This appeal arises out of disputes over the construction of a new building for the Unity Church of Christianity. Among other things, we must decide whether Property Code section 53.055 requires that a mechanic‘s, contractor‘s, and material-
Background
Brookstone, L.P. (Brookstone) was the general contractor on the construction project. Brookstone posted a payment bond in favor of Unity, which was issued by Liberty Mutual Insurance Company (Liberty Mutual). Brookstone subcontracted the site preparation to Site Work Group, Inc. (SWG). SWG, in turn, subcontracted with Gustavo Arias d/b/a Gus Trucking Service (Arias) to haul off the excavated material and to supply new fill for the foundation. Problems arose between these parties and also with others who are not involved in this appeal. Primarily, Brookstone was dissatisfied with SWG‘s work, and SWG was dissatisfied with Arias‘s work. When Arias was not paid by SWG, he filed lien affidavits against the property, which affected Brookstone and its payment bond issued by Liberty Mutual. Brookstone filed suit seeking a declaratory judgment that Arias had no right to assert liens against the property. Brookstone later added SWG as a defendant, suing for breach of contract. Arias counterclaimed against Brookstone and Liberty Mutual as third-party defendants and cross-claimed against SWG. SWG counterclaimed against both Brookstone and Arias.
After the trial court rendered partial summary judgment on some of the issues in dispute and others were nonsuited, the case was tried to a jury. The trial court rendered judgment on the verdict as follows: (1) Brookstone take nothing from SWG; (2) SWG recover $15,000 from Brookstone along with attorney‘s fees for its quantum meruit claims; (3) SWG take nothing from Brookstone on its breach-of-contract and other claims; (4) Arias recover $42,000 from SWG along with attorney‘s fees for his breach-of-contract claim; (5) Arias take nothing from SWG on his fraud claims; and (6) SWG take nothing from Arias on its breach-of-contract claim. The trial court also rendered judgment based on its February 14, 2005 summary-judgment order as follows: (1) Arias take nothing from Liberty Mutual on his claim on a payment bond; (2) the lien affidavits filed by Arias against Unity were invalid; and (3) Arias pay Brookstone and Liberty Mutual $15,000 in attorney‘s fees.
Arias‘s Appeal Against Brookstone and Liberty Mutual
In his first issue, Arias contends the trial court erred in its February 14, 2005 summary-judgment order by dismissing Arias‘s claim for payment on the payment bond and invalidating his filed lien affidavits. On March 14, 2003, Arias executed lien affidavits and mailed copies to Unity, the property owner, and contractors Brookstone and SWG. On April 4, 2003, Arias filed the affidavits with the county clerk. Brookstone‘s and Liberty Mutual‘s motion for summary judgment against Arias raised two grounds: (1) Arias failed to comply with the notice provisions of Property Code section 53.055(a) because he sent copies of the affidavits before he filed them with the county clerk and (2) Arias‘s May 29, 2003 lien affidavits, filed with the county clerk on May 30, 2003, were not supported by any valid debt.
Property Code section 53.055(a) states:
A person who files an affidavit must send a copy of the affidavit by registered or certified mail to the owner or
reputed owner at the owner‘s last known business or residence address not later than the fifth day after the date the affidavit is filed with the county clerk.
In a split decision, the Corpus Christi Court of Appeals has held that section 53.055 does not require that a mechanic‘s, contractor‘s, and materialman‘s lien affidavit be filed with the county clerk before the required notice is given. New AAA Apartment Plumbers, Inc. v. DPMC-Briarcliff, L.P., 145 S.W.3d 728, 730 (Tex. App.-Corpus Christi 2004, no pet.). We agree with this holding.
Unless a statute is ambiguous, we construe a statute as written, using the literal text. Alex Sheshunoff Mgmt. Servs., L.P. v. Kenneth Johnson & Strunk & Assocs., L.P., 209 S.W.3d 644, 651-52 (Tex. 2006). We resort to external sources like those listed in the Code Construction Act only when the statute is ambiguous. Id. at n. 4; Code Construction Act,
When a statute is intended to establish a period in which an action must be taken, the legislature‘s own drafting standard is to set forth clearly the first and last days of the period. TEXAS LEGISLATIVE COUNCIL DRAFTING MANUAL § 7.28, at 99 (Charlotte Norris ed. 2006) (giving drafting example of after March 31 and before June 1 as clear means of describing period). Nothing in the statute clearly states that notice must be given during a period that begins on the day after the lien affidavit is filed and ends on the fifth day after the date the affidavit is filed. See Code Construction Act,
The heading for section 53.055, NOTICE OF FILED AFFIDAVIT, does suggest that notice is to be given after filing the affidavit. A statute‘s heading, however, should not be used to limit or expand the meaning of the statute. Code Construction Act,
Interpreting a former version of section 53.055, we held that in the absence of a specific deadline to give notice of the lien affidavit to the property owner, notice must be given no later than the deadline to file the affidavit.1 Cabintree, Inc. v. Schneider, 728 S.W.2d 395, 397 (Tex. App.-Houston [1st Dist.] 1986, writ ref‘d). We further stated that the purpose of section 53.055 is to ensure that the owner receives actual notice that an affidavit has been filed against his property so that he will be able to take steps to protect himself. Id. at 396-97 (emphasis original). While the question of whether notice of the lien affidavit could predate the filing of the affidavit was not at issue in Cabintree, the language quoted above certainly indicates in dicta that the affidavit should be filed before notice is given. Id. We based this dicta not on the then-current text of section 53.055, but instead on an analysis of
Since we issued Cabintree, the supreme court has held that courts may not look back to the former text of a statute which has been nonsubstantively codified if the current text is direct and unambiguous. Fleming Foods of Texas, Inc. v. Rylander, 6 S.W.3d 278, 286 (Tex. 1999).2 Our prior analysis in Cabintree, based on the text of former article 5453(1), is no longer a permissible means of statutory construction, and we decline to follow the dicta from Cabintree that notice must be given after the lien affidavit has been filed.
Reading section 53.055 and applying the rules of statutory interpretation cited above, we conclude that the purpose of the statute is to ensure that the owner receives actual notice that a lien affidavit has been executed with the intent to file the affidavit and create a lien against the owner‘s property, thus allowing the owner or original contractor to take appropriate action. Nothing in the statute requires that the property owner or original contractor be notified that the affidavit was actually filed. Because the person executing the lien affidavit must file the affidavit by the relatively short deadlines stated in Property Code sections 53.052 and 53.056 (generally within two to four months from the date the indebtedness accrues), the owner and original contractor can hardly claim to be hurt when they are notified in advance of the actual filing of the lien affidavit.
In their second ground for summary judgment, Brookstone and Liberty Mutual claim that Arias‘s May 29, 2003 lien affidavits, filed on May 30, 2003, are nullities because they do not refer to a new debt separate from the March 14, 2003 lien affidavits. See
We sustain issue one.
In issue two, Arias challenges the trial court‘s award of attorney‘s fees under Property Code section 53.156.
We sustain issue two.
In issue three, Arias contends the trial court erred in denying his January 13, 2005 third motion for summary judgment against Liberty Mutual. We overrule this issue because there was a jury trial as to all issues not resolved by summary judgment. Arias, therefore, is not entitled to appeal the denial of his motion for summary judgment. Cincinnati Life, 927 S.W.2d at 625.
In issue four, Arias claims the trial court erred in rendering summary judgment for Brookstone on its affirmative defense to Arias‘s claim that Brookstone misapplied constructive trust funds in violation of Property Code section 162.031.
In Arias‘s issue five, he asks this Court to award him appellate attorney‘s fees against SWG according to a Rule 11 agreement in the trial court. See
Site Work Group‘s Appeal Against Arias
In two issues, SWG challenges the portion of the final judgment which awarded $42,000 to Arias. SWG first argues that Arias‘s lawyer committed incurable jury argument by going outside the record to allege criminal conduct, fraud, and a
SWG tacitly acknowledges its lack of preservation at closing argument, as it relies on case law that relieves a party from contemporaneously preserving error concerning an improper jury argument if the argument is incurable. See, e.g., Otis Elevator Co. v. Wood, 436 S.W.2d 324, 333 (Tex. 1968). The rationale for not requiring a contemporaneous preservation of error is that the lawyer making the incurable argument is the offender, so the law does not require the opposing lawyer to potentially further prejudice the client‘s case before the jury by objecting. Id. Incurable jury argument, however, must be raised in a motion for new trial, which SWG did. See
Characterizing a jury argument as incurable, as opposed to merely improper, is a serious matter. The supreme court has described this distinction as follows: Argument which could be properly cured by objection by opposing counsel and instruction by the trial judge is not reversible error in the absence of such objection. Unless the argument is incurable, a litigant will not be permitted to lie in wait, taking a chance on a favorable verdict, and, being disappointed, complain for the first time of improper argument in a motion for new trial. Turner, 385 S.W.2d at 237. Accordingly, a party alleging incurable jury argument must explain on appeal why counsel‘s argument was incurable based on an evaluation of the whole case. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (requiring party on appeal to explain why comments were incurable); Luna v. N. Star Dodge Sales, Inc., 667 S.W.2d 115, 120 (Tex. 1984) (trial court‘s decision not to grant mistrial based on incurable argument or questioning may be reversed only after evaluating case from voir dire to closing argument).
This was a week-long jury trial involving multiple parties and witnesses. The appellate record consists of a 15-volume clerk‘s record and 19-volume reporter‘s record. In its brief, SWG does not place the alleged improper comments in the context of the entire case, even though it acknowledges there were claims of conspiracy and constructive trust violations that were nonsuited before all sides rested and final argument began. It is an appellant‘s burden to demonstrate reversible error, and we hold that SWG has not argued the alleged incurable jury argument in light of the entire case. Accordingly, we overrule issue one.
In issue two, SWG argues there is legally and factually insufficient evidence to support the jury‘s answer to question 24:
What sum of money, if paid now in cash, would fairly and reasonably compensate [Arias] for its damages, if any, that resulted from [SWG‘s] failure to comply? Consider the following elements of damages, if any, and none other:
- The amount [SWG] agreed to pay [Arias] pursuant to their agreement.
- Lost profits that, as a natural, probable, and foreseeable consequence of [SWG‘s] breach of contract, [Arias] suffered in the past;
- Returned check charges that, as a natural, probable, and foreseeable consequence of [SWG‘s] breach of contract, [Arias] sustained in the past.
Do not add any amount for interest on damages, if any.
Answer in dollars and cents, if any.
ANSWER: $42,000.00
SWG preserved its legal-sufficiency complaint in a motion to disregard jury findings and its factual-sufficiency complaint in a motion for new trial.
When SWG challenges the factual sufficiency of the evidence, this Court must consider and weigh all the evidence and should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); see also Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986), overruled on other grounds by Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex. 2000); In re King‘s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).
At trial and on appeal, SWG does not challenge the sufficiency of the evidence based on all three elements that were submitted to the jury in question 24. SWG does not argue on appeal that the trial court submitted an erroneous charge. We therefore review the sufficiency of the evidence based on the court‘s charge, not against the question and any instruction that should have been submitted. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000). Because SWG does not address
Brookstone‘s Appeal Against Site Work Group
In a single issue, Brookstone appeals the portion of the final judgment which awarded $15,000 to SWG from Brookstone for the amount of compensable work rendered by SWG for which it was not paid, because the judgment also stated that SWG take nothing by its claim for breach of contract against Brookstone. This portion of the judgment was based on the answers to questions 5, 6, 7, 9, and 10 in the jury‘s verdict, which found that Brookstone failed to comply with its agreement with SWG (question 5), that Brookstone‘s failure to comply was excused (questions 6 and 7), that SWG performed compensable work for Brookstone for which it was not paid (question 9), and that $15,000.00 was the reasonable value of the compensable work (question 10). The jury also found that SWG failed to comply with its agreement with Brookstone (question 1), that SWG‘s failure was excused (question 2), and that SWG substantially complied (question 3). Because the jury found that Brookstone‘s breach of contract was excused, the trial instead awarded SWG $15,000 on the quantum meruit claim.
Brookstone claims the trial court erred in allowing SWG to recover in quantum meruit when the work was performed pursuant to a contract for which Brookstone‘s breach was excused. Quantum meruit is an equitable remedy which does not arise out of a contract, but is independent of it.3 Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990). Generally, a party may recover under quantum meruit only when there is no express contract covering the services or materials furnished. Id. A party to a contract may, however, seek alternative relief under both contract and quantum meruit theories. In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 740 (Tex. 2004). The problem is not that the trial court submitted alternative theories of recovery to the jury. Instead, the issue is whether SWG can recover based on quantum meruit once the jury found that Brookstone breached its contract with SWG.
There is no dispute that a written contract exists which covers the services and materials in question. SWG, therefore, cannot recover in quantum meruit unless an applicable exception to the general rule exists. See DiMiceli v. Affordable Pool Maint., Inc., 110 S.W.3d 164, 169 (Tex. App.-San Antonio 2003, no pet.). SWG, however, does not argue that an exception applies here. Instead, it appears to make two arguments. First, SWG claims that case law stating a party can submit alternative theories of recovery to the jury also authorizes a party to recover both on the contract and in quantum meruit. Second, SWG argues that because Brookstone‘s breach of contract was excused, there was no recovery. SWG cites no authority expressly addressing either of these arguments, and we know of none.
Brookstone further challenges the portion of the final judgment which awarded (1) $70,000 to SWG from Brookstone for attorney‘s fees, plus additional attorney‘s
We sustain Brookstone‘s single issue.
In its September 15, 2006 appellee‘s brief, SWG also brings what it calls a cross-point, claiming the trial court erred in failing to render judgment on the jury‘s verdict that Brookstone breached the contract (question 5) and damages for that breach were $31,919 (question 8). SWG asks this Court to hold that the two finding that Brookstone‘s breach was excused (questions 6 and 7) are immaterial. SWG has wholly failed to brief this cross-point on either the law or the law‘s relation to the facts of this case. See
Conclusion
We reverse the portions of the judgment that (1) dismissed Arias‘s claim for payment on the payment bond and invalidated his filed lien affidavits, (2) awarded attorney‘s fees from Arias to Brookstone and Liberty Mutual, and (3) awarded $15,000 from Brookstone to SWG, as well as attorney‘s fees and court costs.
We affirm the remainder of the judgment and remand the case to the trial court for the limited purposes of considering (1) Arias‘s claim on the payment bond and (2) and any motion to sever.
EVELYN V. KEYES, Justice, dissenting from denial of rehearing.
Our December 20, 2007 opinion interpreting section 53.055 of the Property Code holds that a person claiming a mechanic‘s, contractor‘s, and materialman‘s lien against property may satisfy the requirements of the section by sending a copy of the lien affidavit to the owner of the property at any time before the lien is filed with the county clerk or within five days thereafter. See
Property Code section 53.055(a) states:
A person who files an affidavit must send a copy of the affidavit by registered or certified mail to the owner or reputed owner at the owner‘s last known business or residence address not later than the fifth day after the date the affidavit is filed with the county clerk.
Despite the plain language of section 53.055 stating that a person who files a lien affidavit must send a copy . . . to the owner of the property against which the lien has been filed not later than the fifth day after the date the affidavit is filed with the
I likewise agree with appellees’ reasoning in their motion for rehearing and disagree with the reasoning by which we reached the December 20, 2007 holding. In reaching our conclusion in that opinion, we distinguished and effectively overruled a prior opinion of this Court, Cabintree, Inc. v. Schneider, 728 S.W.2d 395, 397 (Tex. App.-Houston [1st Dist.] 1986, writ ref‘d), which construed a previous version of section 53.055, article 5453(1) of the Texas Revised Civil Statutes. At the time Cabintree was decided, section 53.055 provided that a person who filed an affidavit must send two copies of the affidavit by registered or certified mail to the owner, but it set no deadline for compliance with the section. See Cabintree, 728 S.W.2d at 396. We noted that the then current version of section 53.055 was silent as to when the notice must be sent, but we followed the rule of construction that when prior law has merely been recodified without substantive revision, as the Texas Property Code was in 1984, the wording and context of the prior law is controlling. Id. at 397; see also
In our December 20, 2007 opinion in this case, we repudiated not only the holding but the reasoning in Cabintree, stating Our prior analysis in Cabintree, based on the text of former article 5453(1), is no longer a permissible means of statutory construction, and we decline to follow the dicta from Cabintree that notice must be given after the lien affidavit has been filed. Arias v. Brookstone, 01-05-00746-CV, 2007 WL 4465517, at *3 (Tex. App.-Houston [1st Dist.] Dec. 20, 2007, no pet. h.). Citing Fleming Foods of Texas, Inc. v. Rylander, 6 S.W.3d 278 (Tex. 1999), as authority, we stated that courts may not look back to the former text of a statute which has been ‘nonsubstantively’ codified if the current text is direct and unambiguous. Arias, 2007 WL 4465517, at *3.
Appellees argue that our December 20 opinion misconstrues Fleming Foods. I agree. In Fleming Foods, the Texas Supreme Court held that an express change in the terms of a statute by the Legislature upon recodification overrides contrary language in the prior version of the statute regardless of a general provision in the Code stating that recodification is not intended to make substantive changes in the law. See 6 S.W.3d at 283-84. The supreme court explained:
Under the Code Construction Act, see
TEX. GOV‘T CODE §§ 311.001 -.032, . . . courts may consider prior law, the circumstances under which the law was enacted, and legislative history amongother matters to aid them in construing a code provision whether or not the statute is considered ambiguous on its face, TEX. GOV‘T CODE ANN. § 311.203 . But prior law and legislative history cannot be used to alter or disregard the express terms of a code provision when its meaning is clear from the code when considered in its entirety, unless there is an error such as a typographical one. Nor can the Code Construction Act‘s directive to the Legislative Council to refrain from changing the sense, meaning, or effect of a previous statute, seeid. § 323.007(b) , be used as a basis to alter the express terms of a code that the Legislature enacts as law, even when the Council‘s language does change the prior, repealed law.
6 S.W.3d at 283-84. The court then instructed that the Legislature‘s general statement that no substantive change in the law is intended by recodification must be considered with the clear, specific language used in the recodified sections. Id. at 284.
In my view, our December 20, 2007 opinion erroneously interprets Fleming Foods as holding that courts may not look back to the former text of a statute which has been ‘nonsubstantively’ codified if the current text is direct and unambiguous. Arias, 2007 WL 4465517, at *3. The opinion then goes on to interpret the notice language in current section 53.055—which expressly mandates that [a] person who files an affidavit must send a copy of the affidavit by registered or certified mail to the owner . . . not later than the fifth day after the date the affidavit is filed—as actually meaning the opposite of what it directly and unambiguously says, namely, as meaning that the affidavit need not be on file when notice of a filed affidavit is sent and that the notice need not be sent within five days after the date the affidavit is filed.
I cannot agree with our interpretation of the mandate of Fleming Foods or with our conclusion that current section 53.055 clearly and specifically requires us to hold that a notice of filed affidavit may be given before the affidavit is filed. As Fleming Foods states, proper code construction requires that in determining the meaning of a statute in an integrated code chapter, we consider the code in its entirety. See Fleming Foods, 6 S.W.3d at 282 (The doctrine of legislative acceptance contemplates that [a] statute of doubtful meaning that has been construed by the proper administrative officers, when reenacted without any substantial change in verbiage, will ordinarily receive the same construction. ); see also
we must always consider the statute as a whole rather than its isolated provisions.
We should not give one provision a meaning out of harmony or inconsistent with other provisions, although it might be susceptible to such a construction standing alone. We must presume that the Legislature intends an entire statute to be effective and that a just and reasonable result is intended.
Helena Chemical Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001) (citations omitted); see also Ken Petroleum Corp. v. Questor Drilling Corp., 24 S.W.3d 344, 350 (Tex. 2000) (citing Fleming Foods and section 311.023 of the Government Code and stating that [i]n determining legislative intent, the Legislature has instructed that we may consider, among other things, the object the Legislature sought to obtain, the circumstances under which the statute was enacted, legislative history, and the consequences of a particular construction ).
Section 53.055 is an integral part of a statutory scheme governing the perfection of mechanic‘s, contractor‘s and materialman‘s liens. See, e.g.,
Employing the rules of statutory construction, and considering the language and purpose of current section 53.055 and prior law, I agree with appellees that interpreting section 53.055 as requiring notice within 5 days after the filing of the lien accords with prior law, reflects the intent of the Legislature, preserves the statutory scheme set out in related sections within the same subchapter of the Texas Property Code, and is just and reasonable. See Cabintree, 728 S.W.2d at 397;
Because I would hold that a person does not comply with the Property Code by sending an affidavit of filed lien to the property owner prior to the filing of the lien, I would grant rehearing on this issue.
Justice KEYES, dissenting from denial of rehearing.
Jeffrey Daniel HUGHEN, Appellant, v. The STATE of Texas, Appellee.
No. 06-07-00093-CR.
Court of Appeals of Texas, Texarkana.
Submitted March 24, 2008.
Decided June 5, 2008.
Opinion Overruling Rehearing July 16, 2008.
SAM NUCHIA
Justice
Notes
The legislature finds the decision of the Texas Supreme Court in Fleming Foods of Texas, Inc., v. Rylander, 6 S.W.3d 278 (Tex. 1999), to be inconsistent with the clear and repeatedly expressed intent of the legislature in the enactment of the Tax Code and other nonsubstantive codes enacted under the state‘s continuing statutory revision program under Section 323.007, Government Code. The absence of any legislative action subsequent to the holding in Fleming Foods of Texas, Inc., v. Rylander shall not be construed as legislative acceptance of the holding in that case.
Tex. H.B. 2809, § 3, 77th Leg., R.S. (2001). The governor disagreed with the amendments to the Code Construction Act and vetoed the bill. Veto Message of Gov. Perry, Tex. H.B. 2809, 77th Leg., R.S. (2001) ( House Bill No. 2809 would fundamentally alter the manner in which Texas courts interpret the written laws of Texas. Besides implicating separation of powers concerns, this bill would tend to make it more difficult for ordinary Texans to ascertain the laws they are bound to obey. ). The governor did not comment on the legislative disapproval of Fleming.
Section 311.023 provides:In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the:
(1) object sought to be attained;
(2) circumstances under which the statute was enacted;
(3) legislative history;
(4) common law or former statutory provisions, including laws on the same or similar subjects;
(5) consequences of particular construction;
(6) administrative construction of the statute; and
(7) title (caption), preamble, and emergency provision.