*1 appeals’ court of request explain why appeal dismissed, should not have been
I reluctantly agree that we should remand appeals
this case to the court of for consid-
eration of the merits. PAGE, Petitioner,
Herman C.
v. COMPONENTS,
STRUCTURAL WOOD
INC., Respondent.
No. 01-1122.
Supreme Court of Texas.
Argued Oct. April
Decided
terminated, the was we hold that affidavit Consequently, filed. we reverse judgment and render appeals’ the court of take the subcontractor judgment nothing.
I 1997, Page Mark In Herman C. hired $300,000 Sepolio general contractor on a M. Law M. Young, John Office of John project for Houston, remodeling expansion and Young, for Petitioner. in Se- building Page owned Houston. Keeling, Kenneth Elmore A. James subcontractors, in turn polio hired several III, Hudson, LLC, Keeling Hudson Hous- including Components, Structural Wood ton, Respondent. for (Structural Wood), provide Inc. to labor complet- and materials. Structural Wood Chief Justice PHILLIPS delivered mid-March, portion job ed its Court, opinion of the in which Justice progressed 1998. As work on the HECHT, OWEN, Justice Justice struction, Page periodic payments made O’NEILL, SCHNEIDER, Justice Justice $270,000. Sepolio pro- SMITH, totaling Before and Justice WAINWRIGHT however, finished, Sepo- ject Page was and joined. work, quarreled Sepolio lio over the and Chapter per- the Property 53 of Code funds requested additional to finish mits a construction claim subcontractor to refused, 14, project. Page April and on a hen on funds retained the owner 1998, terminated Sepolio’s he “(1) the subcontractor the notices sends Page then hired six new contractors required by chapter in the time and ad- hiring finish the construction. Without (2) required; manner and files an affidavit subcontractors, ditional new contrac- claiming day a hen not later than the 30th 21, completed project July tors on completed.” after the work is Tex. PROP. 1998, $27,074.43. payment for a total case, In this 53.103. the owner Code Meanwhile, Sepolio pay terminated the and contractor because failed to materials, hired other complete contractors in full for its and labor Structur- when, project. question claiming us is filed an affidavit a lien on before al Wood 15, fulfilling requirement 1998, property May thirty-one the affidavit on statute, completed. “work” days Page The subcon- after terminated the contract thirty-one Sepolio. tractor here filed its affidavit with Structural subse- Wood termi- filed lien. quently contract was suit to foreclose on its trial, nated but before trial subsequent well contrac- After a bench court conclud- project. completed July tors finished the The court of that the ed work was on appeals replacement held that work is when when contrac- completed are requirements project. of the initial contract tors finished the The trial court finished, Sepolio jointly severally either the first Page contractor held and and $11,861 by subsequent for contractors. 57 S.W.3d liable Structural Wood damages pre- must plus post-judg- 524. Because we conclude that work actual defined in to a interest court fur- particular relation ment and costs. The tract, and that the work that con- ordered of the lien ther foreclosure individually Page tract was held Page’s property the contract $4,000 in attorney’s liable for Page fees. file “an affidavit claiming lien not later appealed appeals and the court of re- day than the 30th after the work is com formed judgment to eliminate the fore- pleted.” period during 53.103. The order, closure holding that no evidence which a claimant can and must file a lien *3 supported the trial finding court’s that affidavit under section 53.103 is therefore Page had failed to retain percent ten of the period the same that an owner can and price contract required by as section retainage must hold under section 53.101— Property 53.101 of the Code. S.W.3d at completion after the of work. However, 53.103, based on section consequently It is in the best interest of all the court of appeals upheld personal participants construction to know when the judgment against Page, concluding that period thirty-day terminates —the owner Structural Wood would still be entitled to a funds, that it so can release the remaining hen on retained long funds as as the lien original contractor so that it can bud affidavit was filed. Id. at 531-32. get for final payment, its and the claimant court, Like the trial the court of appeals so that it can file the lien affidavit before interpreted the statutory definition of com- that date. pletion as the when date the additional To determine thirty-day period when the project July contractors finished the ends, statutory we look to the definitions 1998. Id. “completion of “work” and of an original II Property provides contract.” The Code “ that ‘[cjompletion’ original of an contract Property
The Texas requires Code work, means the actual owners to retain either “10 percent of the any including change extras or orders rea price contract of the work to the owner” or sonably required contemplated or under “10 of the value of the work ... Prop.Code original contract....” or, using price the contract if there is no Tex. 53.001(15).1 § The Code defines “work” as price, contract using the reasonable value “any part repair per of construction of completed work” for “30 Prop.Code original formed under an contract.” Tex. completed.” the work is PROp.Code 53.001(14). § parties’ § 53.101. These stat retained funds “secure the utory interpretations payment focus on different of artisans and mechanics who service,” perform words within these definitions. labor or including sub contractors such as Structural Wood. Id.
§ 53.102. A Page phrase subcontractor or other claim focuses on the “under ant who to make a wants claim on contract”2 and contends that properly must give notice and work under an individual contract should arose, written, dispute originally At the time this definition contract as however. 53.106(e). Rather, was Property "original found in The statute was Code defines amended agreement in 1997 to move the definition of "an contract” as to which an own- ‘completion’ of an contract” to party directly by implication er is a either or 53.001(15). Property clarity, 53.001(6). Code For we of law.” An 53.001(15). refer to the current section "origi- amended contract can therefore be an statute, nal contract” under the own- may "original er into a premised enter number of 2. The dissent is on the notion that the "Sepolio’s tracts” with different contractors. In this contract case, Page had at least seven and that all the work done was work contem- plated Sepolio under that contract....” 102 S.W.3d tracts: one with and at least six with "Original replacement at 730. contract” does mean contractors. See, First Bank v. e.g., Nat’l be deemed claimants. argues (Tex.1983).3 He terminated abandoned. Sledge, 653 S.W.2d will just as a contract’s amount arguments are strong there Although price change when the contract is later interpretations, we con- both supporting modified, peri- too the retainage so should authority greater weight clude change when the work is od modified. supports Page’s contention that contemplated Page argues that the work is terminated. The ends when a contract necessarily completed under a contract is dem- terminated, history the mechanic’s lien statute when a contract is no addi- tional work to make Legislature’s intent onstrates *4 dependent on indi- requirements the previous vidual A version of contracts. focuses on word Structural Wood the phrased lien statute the retain- that mechanic’s “contemplated” and counters because requires completion requirement “actual age the statute of as: ... reasonably required or con- (10%) per price ten cent of the contract contract,” templated under the work, ten to the ... of such owner court should determine based (10%) same, the per cent of value of initially on when all the work proportion the that the by measured contract is In finished. done, work bears to the to be done work case, the original contemplat- this none, using price or, if the contract expansion ed the remodeling and of the value of the work reasonable building, so lien affidavit could filed computing as a basis of value. any at time pro- within of the ject’s completion. accepting In this inter- 1961, 382, 17, Leg., Act of 57th ch. June pretation, appeals the court of noted that 9,§ (repealed 1961 Tex. Gen. Laws 869 “specify the statute did that not 1983) (current at version only be done the contractor who started 53.101). Co., Hayek In v. Western Steel it, opposed ato substitute contractor.” 786, (Tex.1972), 478 792 S.W.2d Court 57 at argues S.W.3d 531. Structural Wood interpreted language this to mean that interpretation urged alternative percent pro owner retain ten must by Page hardship works a on subcontrac- ject’s many of individ regardless cost how tors, must who file their lien in a affidavits ual construction contracts were awarded. may shorter time and who not if an know Therefore, we held that a subcontractor general owner has terminated the contrac- had steel and to the supplied who concrete posits only tor. Structural Wood its bring foundation contractor could a retain- comports requirement approach with the age just percent not for ten claim interpret that courts lien mechanic’s liberally protect in of rather statute order to hen value the foundation but 3. The dissent not First Bank v. Whirl "[w]e observes must materialmen.” Nat’l forget (Tex. 1974). mechanic’s and materialman’s pool S.W.2d 269 Corp., 517 protect lien statutes are meant to the subcon particular claimant Although the lien in this tractor, general contractor.” subcontractor, general case is a contractors (emphasis original). S.W.3d at How may Con provide labor and materials. also ever, designed protect the statute is not ignore sequently, effect of our we cannot Rather, only subcontractors. we have held general interpretation we contractors: that "the and materialman’s lien mechanic’s applies to all must the statute as it consider liberally statutes of State will be con suppliers of material. laborers and purpose protecting for the of laborers strued percent dissent, for ten of Hayek the entire cost of build- in his focusing on the en- ing the home. Id. project tire instead of the individual con- tracts that a means contractor “who has in Hayek Court’s decision focused performed fully by constructing the foun- on protecting might hen claimants who of building paid dation ... cannot be fund, need to share in the retainage based full until 30 painting after the on the Legislature’s “broad extension finally completed contractor has the last protection and sharing this fund to a work on building. may This be sever- (materialmen).” persons new class of years al after the work of the foundation However, at 793. deter completed.” contractor was Hayek, 478 Hayek placed mined that too great a bur (Walker, J., S.W.2d at 797 dissenting). den on owners and contractors Structural interpretation Under Wood’s creating “an unreasonable retainage re statute, the current an owner who termi- quirement on who origi owners enter into nated a contract before the con- 16, 1973, nal May contracts.” Act of 63rd project struction was completely finished 96, § Leg., ch. 1973 Tex. Gen. Laws 215 would not have to release the ten 1983) (current (repealed version at *5 retainage until thirty days after all the Prop.Code 53.001). § In response, the job. new contractors finished the if Even Legislature amended the statute at its postponed comple- an economic downturn regular next analysis session. The bill years, tion for the general terminated stated that “original legis the intent of the payment tractor could not claim its final lation was for the retainage require 10% project until later completed. was apply contract, ment to to each individual is, an delay payment Such indefinite in we job” not the total cost of the and that the believe, exactly what the Legislature was purpose “carry bill’s was to out the intent trying prevent to it when added refer- original legislation which created the original ences to “an contract” in its defi- retainage requirement 10% by limiting the ” price” nitions of “contract and “work.” to 10% each individual contract.... Prop.Code (14). 53.001(1), § See Tex. Judiciary, Analysis, House Comm. on Bill (1973). H.B. Leg., Tex. 63rd R.S. Hardship possibility caused language The new added references to “an delay just such would not be limited to original contract” in the contractors, definitions of general but would also affect price.” “work” and “contract “Work” was lien A generally. longer claimants retain- “any repair defined as construction ... or age period give potential would lien claim- performed pursuant which is to an original longer ants a time which to file their contract,” price” and “contract was defined affidavits, delay but would also a lien “the any as cost to the owner for construc claimant’s to ability enforce a lien on the repair tion ... performed pur or which is retainage. owner’s A subcontractor who suant to an original May contract.” Act of early example, had finished its work —for 16, 1973, 2(d), § Leg., 63rd ch. 1973 the subcontractor who laid the foundation 1983) (cur (repealed Tex. Gen. Laws for a building take little comfort —would Prop.Code 53.001). rent version at having period extended which to claim a hen on the owner’s retained funds Focusing initially on the work contem- many those funds were retained for plated may give a subcontractor more years. months or lien, perfect time to a it may but also greatly delay payment for contractors in Nor do we agree with Structural Wood’s general. pointed As out contention that subcontractors need to be Justice WalkeR “ ‘completion’ of an phrase defined the rely initially able on the work contem- original contract.” plated under contract in order 53.001(15). Moreover, period thirty-day begins when the know any “includ[es] ex specified that the term interpretation, our run. Under reasonably required or change tras orders true that a not be subcontractor would contemplated” by the contract. rely able on a visual examination Thus, if additional work to parties add worksite in order to determine whether contract, will not contract completed. the work has been A subcon- also completed until that work is com be half-completed pro- tractor viewed a who Likewise, parties if the scale back pleted. ject assumed the lien affidavit will be project, contract com yet due would run the risk pleted complet when the reduced work general had been terminated If ed. the owner or the contractor termi passed. the affidavit deadline had nates the then no additional work may But examination not be mere visual contemplated can be under enough interpretation. either To Hayek analogy borrow the from dis- sent, even under Structural Wood’s inter- recognizes The mechanic’s hen statute
pretation a foundation subcontractor would often change that construction contracts likely way have no to know when an interi- project As one progresses. commenta- or-painting paint- subcontractor finished observed, retainage require- tor has ing, and therefore would not know “upon the ment is calculated adjusted price, may as the same from *6 tract Recognizing was finished. this hard- time to 1 Eldon Youngblood, time.” L. ship, a recent treatise noted “[i]n Youngblood Liens, on Texas Mechanics’ situations, many it is difficult to ascertain ed.1999). (2d § the 803.1[b] at 8-20 While actually when all completed; the work is if adjusted upward addi- may be therefore, prudent claimants will their file contract, tional work is added to hen days no later than 30 after the date may adjusted price also be downward. they have finished their own on the work Further, recognizes that the commentator job site.” STERLINGW. STEVES& BRENDAT. uncommon; are not terminated contracts Complete Cubbage, The Guide to Mechan- eventuality he that usu- “[o]ne writes that ic’s & Lien Materialman’s Laws of Texas and, adjusts ally price contract com- (4th ed.2002). at 3-26 Subcon- 3.8.[1] mensurately, the amount of re- precaution tractors who fohow this and file tainage, is the abandonment thirty within lien affidavit of com- contractor.” Id. will pleting fully their own work remain recognized long Texas courts have protected, even contract including contract termi modifications— terminated or abandoned. change nation —can the amount funds required to retained under the contract. Finally, emphasizes the dissent See, Bldg. & e.g., McKalip v. Smith Ma Legislature’s “definition of ‘com 884, Inc., pletion’ any sonry Supply, not include 599 S.W.2d 885-87 does reference 1980, n.r.e.); refd (Tex.Civ.App.-Waco writ whether a contract is abandoned or termi Co., Dowdy v. 498 simply ‘completion’ Supply nated defines as Hale S.W.2d [but] ” (Tex.Civ.App.-Fort 721-22 Worth completion.’ ‘actual at S.W.3d writ). However, no It is therefore consistent Legislature did not define rather, can itself; say that modifications also “completion” by contract word change contemplated by the work Ill tract, and, by implication, the retainage We conclude that the construction terminated, period. a contract When performed contract and the work thereun modified courts have re- complete der are at the time that quirement to require retainage per- of ten abandoned, is terminated or so cent of prior the value of the work to that the lien affidavit must therefore be termination, further recognizing that no thirty days filed within of the contract’s payments contemplated are under a termi- Thus, termination. we hold that Structur See, e.g., Dowdy, nated contract. al Wood’s affidavit was not filed Likewise, case, at 722. no future work is thirty-one days S.W.2d as it was filed contemplated Sepolio’s under a terminated after Page terminated construc tion accordingly contract. We reverse the “comple- we therefore conclude that appeals’ judgment court of and render tion of work” includes a situation in which judgment that Structural Wood take noth the initial contract is terminated. ing against Page. Finally, we note that the has recently pro mandated contractors Justice filed a dissenting ENOCH vide “disclosure statement” to home opinion, in which Justice JEFFERSON engaging owners in residential construc joined. projects. tion 53.255. Justice filed a dissenting ENOCH The disclosure applicable statement is not opinion, in which Justice JEFFERSON case, in this Page Seoplio hired for a joined. commercial, residential, project. not a Nevertheless, the disclosure statement of ap- I agree Because with the court of guidance provides plain- fers because it peals that Structural Wood was not re- English description of an owner’s retain- quired to file until its lien age duties under the mechanic’s hen stat
ute, and these duties are the same in both Sepolio actually completed, I projects pro respectfully residential and commercial dissent. *7 PROp.Code
jects. See 53.101. The disclosure statement informs the owner I “During that: days construction and for 30 Components, Inc. was Structural Wood termination, completion, after final or provided supplies a who subcontractor you abandonment of the contract ... Sepolio. Sepolio Mark a con- should your withhold or cause lender to agreed remodeling tractor to do some who percent withhold 10 pay amount of a Page. Following work for Herman C. performed by ments made for the work payment disagreement, Page terminated your contractor. This is sometimes re 14, 1998, and Sepolio’s April contract on ‘statutory retainage.’” ferred to as hired other contractors to finish the work 53.255(b). PROp.Code Legislature’s originally Sepolio he had contracted with description of the statutory retainage re finally completed to do. The work was on quirement indicates 21, July paid 1998. Sepolio Because never require did not intend to an owner to hold Structural Wood for the materials and la- on to the for statutory retainage more provided, filed a bor Structural Wood thirty than May after the contract’s termi lien on mechanic’s and materialman’s 15, statutory compliance nation. In with original An contract.”6 Page original an Wood sent requirements,1 Structural actu- when the work is 15, 1998, completed and a tract is May claim on notice of its any extras or 18, “including ally completed, May on copy the filed lien affidavit of reasonably required or orders change claims that Structural Wood Page contract, oth- original templated under because timely not file its hen affidavit did replacement or warranty work or er than Sepolio’s terminated contract Page performed repair of the work 14, 1998, was deemed April contract.”7 Page con- completed by that termination. affidavit should have
tends that the hen interpret the Texas upon called When 14, May 1998.2 filed on or before been statutes, hen and materialman’s mechanic’s asserts that the work was Structural Wood exactly “are not they recognizing until actually completed July hberahy construe clarity,”8 we model therefore, timely its hen affidavit was and laborer, artisan, the protect them to filed. here, lan- But and the materialman.9 is clear question of the statutes guage
II
no more
and we need do
unambiguous,
Property
requires
The Texas
Code
ordinary mean-
them their
than ascribe to
an
of the contract
owner retain ten
support
this statute
ing.10 The words of
during
amount
the time the work contem
that it
filed
Wood’s claim
Structural
is in
plated
affidavit,
under an
contract
it filed its affida-
its hen
because
progress,
and for
com-
actually
the work was
vit well before
of the work.3 The
July 21.
pleted on
that these funds be set
requires
statute
“defi-
Page argues
Legislature’s
that the
specifically to ensure that subcon
aside
clearly mandates that work
nition of “work’
tractors, artisans, mechanics, and others
perform
material and
labor are
supply
who
is abandoned
when that
paid.4
against
To have a vahd hen
terminated,”
authority
offers no
but he
funds, a
must meet
retained
subcontractor
Instead,
support this “clear” mandate.
“(1)
only
requirements:
send[]
two
statutory language that reads
he cites
chapter
notices
in the
follows:
(2)
required;
file[ ]
time and manner
to an
contractor
Indebtedness
claiming a hen not later than
an affidavit
(1)
day
the month
on the last
accrues:
day
complete
after the work is
30th
5
by the
declaration
which written
d.”
re-
the owner is
original contractor or
party stating that
“any part
ceived
the other
The statute defines “work” as
*8
has been terminat-
original
repair performed
of
or
under
construction
53.055,
Sledge,
v.
653 S.W.2d
§§
8. First Nat’l Bank
53.056.
1. (Tex.1983).
286
§
2. See id.
53.101.
Co.,
Zack Burkett
Co. v.
9. See Indus. Indem.
3.
Id.
curiam):
(Tex.1984) (per
495
677 S.W.2d
§ 53.102.
4.
Id.
Bank,
ed; day required original on the last of the month was work under original tract, therefore, in which the contract has been the work was not settled, completed, finally or aban- completed pocket until that actually door doned.11 was installed.16 way provision any This does not refer Appeals’ The Eleventh Court of reason- completed; it merely when work is estab persuasive. “actual ing Defining is com- point lishes the in time from which the pletion” completion” mean “actual is the original owner’s indebtedness to the con only way every to ensure that subcontrac- provision tractor accrues. The is not defi original tor under an construction contract Furthermore, nitional. the mechanic’s and protected: provide materialman’s lien statute does a completion definition of of work contem If, example, the subcontractor who for plated Legisla under a contract. And the pocket had installed the door were [sic] “completion” ture’s definition of does not work, paid he should not for his any include reference to whether a con security entitled to the of a ten tract is abandoned or terminated. It sim fund the full con measured “completion” complet ply defines as “actual Yet, price tract ion.” filing the time for his lien affidavit had Appeals The Eleventh of consid- Court already run at the time when he com ered is con- this same issue—when work work, pleted his he would have been purposes perfect- sidered for of ... rights through divested of his no TDIndustries, ing retainage a hen—in Inc. escaping fault own. There is no of his v. Texas National Bank.13 In that NCNB “completion” the conclusion that means case, a lien subcontractor filed performance the last item com- of against the bank. The bank claimed that work that con pensable and lienable the hen had not been filed. The templated by contract.17 however, appeals, court of held even requires completion The statute actual though an architect certified at work, “any part of con- being work beginning January, the work was repair performed under an struction or actually completed until the end of original contract.”18 The workers hired February pocket door perform by Page were not hired to work construction remodeling different or unrelated to the finally installed.14 Because the term “completion” legislatively defined was both They complete tract. were hired to appeals the court of lit- unambiguous, “ repair construction or that were parts of comple- erally construed the term ‘actual Sepolio’s original con-
tion,’
contemplated under
according
...
to the rules of common
unfinished.
usage.”15
pocket
Installation of the
door
tract but left
53.053(b).
Prop.Code 11.
16.
Id.
53.001(15).
Youngblood
Youngblood,
on Tex-
Eldon L.
*9
(1996)
(em-
Liens, § 803.6[a]
as Mechanics’
1992,
(Tex.App.-Eastland
13.
14. Id. at 272. 53.001(14). 18.
15.
729 ordinary, unambiguous sabotages hold an Page persuaded has the Court to Court infusing it with counterintuitive really phrase by completion” that “actual doesn’t meaning. that of completion,” “actual shades mean enlarged should meaning of the term be contractor, Sepolio, never The of a include abandonment or termination the work But that we cannot do. We contract. That work had to be original contract. completion differently from cannot define finished others. The other contractors points Legislature.19 Page As himself work, they doing warranty were not out, statutory lan- we are bound repair Sepolio or replace did not courts, possessing legis- no guage: “[T]he merely fin- already performed. They had powers, may enlarge not or alter the lative job contemplated un- originally ished the statutory language. plain meaning The work was not Sepolio’s der given its Wording statutes is actually completed Page when terminated interpretation wording literal April 14. The work Sepolio’s contract on duty here is clearly unambiguous.”20 Our actually completed July on 21. Struc- was The apply the words of the statute. tural filed its lien. Wood today unambiguous, ordi- Court takes Ill
nary phrase,
meaning,
alters its
and turns
longer
points
legislative
it into a
term of art.
The
out that
his-
legal
For no
Court
in-
completion”
“actually tory
Legislature’s
does “actual
mean
“demonstrates
completed;”
“actually
retainage requirements
it now means
com-
de-
tent to make
In
pleted”
really
pendent
contracts.”23
because
individual
—but
Co.,24
actually completed,
is not
we held that
Hayek
but is abandoned
v. Western Steel
terminated,
percent
retainage requirement
it
also means that
has
the ten
actually completed.21
project.
been
This cannot be. meant ten
of the entire
decided,
Legislature
provided
year
has
defini-
Hayek
One
clear,
unambiguous
rejected
holding
tion of
in that
case,
complains
terms. This Court often
of the
and amended the lien statutes so
clarity
legislative pronounce-
requirement
apply
lack of
would
legislative clarity,
ments.22 In the face of
rather
than the
each individual
incomprehensible
today,
project
as a whole.25
cost
Co.,
Univ.,
297,
(Tex.1976)
Ryan
19. See
v.
S.W.2d
301
Travelers Ins.
715 S.W.2d
540
172,
1986,
C.J.,
(Greenhill,
(Tex.App.-Houston
concurring); see
Chief
175
also
[1st Dist.]
n.r.e.)
Judiciary
(stating
Phillips, State
writ ref’d
that when a statute
Justice Thomas
4, 2003),
(March
rights,
http://
substantially modifies common law
available at
Address
entirely
rights
supreme.courts.state.tx.us/Adviso-
statute
controls the
and obli-
www.
gations
parties
brought
ry/SOJ.pdf.
to an action
statute).
under that
at
23. 102
723.
S.W.3d
Conn,
Supply
Sherrod & Co. v. Tri-Elec.
Co.,
31,
(Tex.Civ.App.-Tyler
535 S.W.2d
34
786,
(Tex.1972).
24. 478 S.W.2d
793
1976,
n.r.e.).
d
writ ref
25. See House Comm. on
Judiciary,
Analysis,
Bill
21. See
the owner must set aside an amount to IV payment, subcontractor how much ensure mechanic’s and materialman’s Texas aside, long and for how the owner must set who does lien statutes do not focus on keep it set aside. The the owner must work; and when the they focus on whether is no issue of the amount completed. The actually work is Court long of how question more related to the initial “[fjocusing asserts that to retain the ten required an owner is ly contemplated may give a subcontractor question than it is to the lien,” amount perfect doing but that more time to to retain hardship of whether owner for so creates both in the event the lien claimants be percent, the ten even contractor and other long for a might delay payment terminated or abandoned. cause contract is omitted). (citations S.W.3d at 725-26 limiting ... of a 27. 102 fund 10% particular in situations multiple original are contracts supra, where there 803.1[b]. Youngblood, single pro of a executed for the construction ject.”). 29. Id. 26. Tex. 53.101.
731 completed to receive full period time.31 the inal contract was The Court misses original each contrac- point. forget payment, long We must not that the me as as subcontractors, paid chanic’s and materialman’s hen statutes and the sub- tor his subcontractor, protect to are meant the not forced to file retain- contractors were not the The general contractor. subcon age hens. claimant,32 tractor is a derivative and the hand, If, foundation on the other the provisions of deriva governing claims were painting contractor and contractor claimants, including retainage tive hen contractors, general hired con- sub provisions, specifically distinguished are tractor, thirty they then would both have provisions governing rights from the from actual original and remedies of contractors.33 if general to file their hens tract A leading There is a reason for this. them, pay just did not as the contractor expert on Texas mechanic’s and material- retainage contemplates. It is dif- statute points “[p]roperly man’s hens out ficult a scenario where the to envision characterizing original the claimant as an paid in full general contractor would be important contractor or subcontractor is completely he fin- any event before because a subcontractor is not entitled to a do under agreed ishes the work he lien, relatively constitutional and it is diffi original contract. And once that perfect statutory cult for him to hen.”34 actually completed, general work is provisions place pro There are other thirty days only contractor has to wait general origi tect the contractor.35 “[A]n will paid before he is full—and that nal contractor often has a constitutional happen long paid as as he has his sub- automatically, per hen and the manner of contractors, outstanding and there are no simp fecting statutory relatively his hen is retainage Again, hens. le.” protect hen statute was enacted to gives example Court the foun- contractor, unpaid sub paid dation contractor cannot until get who contractor. painting contractor finishes paint- scenario,
ing.
In the worst case
if the
over
The Court’s concern
owners’
painting
original
hardship misplaced,
foundation contractor and the
contractors’
least,
very
wrong
contractor each had their own
con- or at the
skewed in the
tract, they
direction,
would
considering
purpose
both be an
tractor,
would
Requiring
be entitled to their own statute.
a subcontractor
rights
Additionally,
particular original
and remedies.37
each
know
only
supplying
have to wait
he
materi-
would
under which
has been
orig-
terminated or aban-
his own
als or labor has been
(citations
Youngblood, supra,
31.
terialmen, not to increase their burden contrary, To the it is section 58.001. risk. undeniably Legisla- certain that the more that a suggests The Court subcontractor “completion” did not recognized ture protect by filing himself a hen can best contract, non-completion of the cover thirty days comple- affidavit within to, therefore, expressly it had refer- for tion of his own work.39 But it is not termination in addi- ence abandonment or legislate requirements, this Court to new completion tion to actual section 53.255. that would ex- particularly requirements only includ- tellingly, Legislature And having to the risk of an other- pose owners in the residential express language ed this numerous, and good wise title clouded with provisions, anywhere and not construction unnecessary, lien claims. The largely retainage provisions. hen Most else has not subcontrac- Legislature Legislature intended assuredly, had the thirty affidavit within tors to file their lien anywhere be- non-completion to count else work; completion of their own construction sides the residential required owners to nor has the expressly have done provisions, would with notify the contract subcontractors so. contractor is terminated. Ab- Texas mechanic’s and mate- Because the requirements, such subcontractors sent requires rialman’s lien statute comply only with the current re- must claimants to file their lien affidavits of the statute. Those literal lien quirements Prop.Code 41. See 53.106. 38. See 53.001.
39.
peals. *13 PAGE, Petitioner,
Herman
v. ROOFING, INC.,
MARTON
Respondent.
No. 02-0845.
Supreme Court of Texas.
April