*1 CABLE, INC., Appellant, READY COMFORT
RJP SOUTHERN INC., HOMES, Appellee. No. 03-08-00652-CV. Texas, Appeals Court Austin. Aug. 2009. Sept. Rehearing Overruled Firm, Peebles, The Peebles Law
C.D. Southlake, TX, Appellant. for Stanley, Christopher Stan- Christopher TX, Associates, P.C., Georgetown, ley & Appellee. PATTERSON, Justices Before PEMBERTON and WALDROP. OPINION WALDROP, ALAN Justice.
G. whether a subcontrac- This suit involves materialman’s tor enforce when owner the subcon- refused to lien affidavit tractor’s delivered See Prop.Code Ann. filing. 53.052(a) (West We hold *2 21, 2007, August Ready basis for the On Cable re- legitimate where there no affidavit, ceived notification from the Williamson clerk’s refusal to file the lien Clerk, 16, that the County August dated affidavit should be deemed to have been accepted filing. clerk had not Accord- filing. on the date it was delivered for filed clerk, ing it could not Consequently, we reverse the district an attachment. unofficial document as On judgment and remand to the dis- court’s 17, 2007, September Ready filed a proceedings trict court for further consis- modified affidavit with the clerk. opinion. with this tent against Ready RJP filed suit Cable on Background and Procedural Factual 29, 2007, seeking removal of the Homes, Appellee RJP Southern Comfort lawsuit, attorneys’ lien and fees.1 In its on its real improvements Inc. constructed summary RJP filed a motion to remove in property Williamson RJP 53.160(a) Ready lien. Cable’s Jimmy Reyes hired contractor Concrete (West 2007). According to RJP’s sum- Construction install foundations two motion, mary Ready filed on June Reyes, property. condominiums lien was not filed. Cable’s turn, Cable, appellant Ready hired Inc. to 53.052(a). responded by supply post-tension and foundation materi- a “traditional” motion for als, and work related to those materials. judgment, 166a(c), Tex.R. P. see Civ. and alleges paid Reyes that it in full for RJP summary judg- “no evidence” motion for performed improvements. the work on the ment, 166a(i), see Tex.R. Civ. P. contend- However, Reyes pay Ready failed to ing performed Cable had all project, for its labor and materials on the precedent properly conditions secure a which had been delivered on contractor’s lien and that the lien is valid. response, argued In that no lien had and, been filed deadline of claim Cable sent notice and support, attached Cable’s payment July demand for to RJP on affidavit, clerk’s notification $2,118.72 for which that such accepted, could Cable had not Au- payment. received On September 17 affidavit. On 15, 2007, gust Ready Cable caused to be 23, 2008, September the district court delivered to the clerk of Williamson RJP’s motion to remove County an affidavit a lien on lien, removed, the lien ordered property RJP’s in the same amount. At- attorneys’ awarded RJP fees. Ca- tached to the affidavit was a document appeals. ble entitled ‘A’ “EXHIBIT to Condominium Analysis NOTES,” Declaration: FIELD which con- legal description tained a Property The Texas Code se sought charged with the lien. The payment cures for persons provide who phrase appears “Unofficial Document” labor or materials for certain construction across the face of the projects entitling document. on real such tract, Act, against Reyes, 1. RJP also filed suit the con- violation of the Texas Fund Trust tractor, Concrete, L.P., attorneys’ Following Ironhorse fees. RJP's default subcontractor, judgment against Reyes, a second which had also filed Ironhorse non-suited claims, being an affidavit party lien on RJP’s on RJP the real based Reyes's non-payment. Reyes dispute based on failed in interest to Ironhorse's claims. No answer, appear involving Reyes and RJP took a default or Ironhorse is before us on judgment against Reyes appeal. for breach of con- this property. (Tex.App.-San Antonio to a lien on persons writ); 53.021-.023 see Tex. A is considered 53.054(a). subcontractor addition, courts have been rely on claimant and must these derivative willing to *3 more excuse mistake or omis Raymond v. statutory lien remedies. party sion in cases where no is prejudiced Rahme, 552, (Tex.App.-Aus- 78 S.W.3d 559 Mustang Equip. the defect. Tractor & 2002, pet.) (citing no First Nat’l Bank tin Co., Co. v. Accident & Indem. Hartford (Tex.1983)). 283, 285 Sledge, v. 2008, 263 441 S.W.3d lien, therefore, Ready Cable perfect To denied); pet. Richardson v. Mid-Cities spec- an affidavit with required sign was to (Tex. Inc., Drywall, 515 S.W.2d contents, Ann. Prop.Code see Tex. ified (“[Sub App.-Texarkana pet.) no (West 2007), timely § file the affida- 53.054 compliance stantial is shown to exist where clerk, county see id. vit with the prejudice.”). no one has been misled to his 53.052(a), § notice of the filed provide single appeal The issue in this is wheth- owner and the property affidavit to the contractor, § er Cable’s affidavit delivered to the original see id. 53.055 2007). County Also, was to Williamson Clerk should be required unpaid of the provided prior timely party objecting have notice deemed filed.3 A to owner and the property validity enforceability balance of a lien via § original contractor. summary motion under code sec- (West 2007).2 may tion 53.160 assert that the affidavit a lien was not filed as summary judgments de We review required by property section Dorsett, Operating novo. Valence Co. 53.160(b)(2). § Ann. See Tex. (Tex.2005). It is well provides, part, Section 53.052 relevant mechanic’s and material- settled person claiming that “the the lien must file liberally man’s lien statutes are to be con an affidavit with the clerk of the purpose protecting for the labor strued county in ... which the is located First Nat’l Bank v. ers and materialmen. day not later than the 15th of the fourth (Tex. Whirlpool Corp., 517 day calendar month after the on which the Generally, purposes perfect 53.052(a). § indebtedness accrues.” Id. hen, only compliance is ing the substantial The indebtedness at issue here accrued on required in order to fulfill the Consequently, or about 2007. requirements. Neb. Fed. Sav. Occidental required to have filed v. East End Bank Glass addition, argues appeal requirements apply perfec- Additional 2. projects tion liens in construction in which provided evidence in the record that agrees repair the contractor to construct or proper filing tendered to the fee was See Tex. the owner's residence. Ann. clerk. See Tex. Loc. Gov’t Code 53.001(9), (10), .052(b), .251-.260 (West 2008) ("A 118.023(b) (West 2007). compelled record not be to file or writing authorized or instrument or only 3. The basis for removal of the lien stated payment recorded until for all fees has in RJP's motion is that the However, tendered.”). RJP failed to been timely. Prop. the affidavit was not See Tex. court, issue before the district either raise this (West 2007) ("The 53.160(a) Code Ann. motion, pleadings, in its or in in its legal [summary] motion must ... state the response Cable's motion for sum- objecting validity and factual basis for mary judgment. lien.”). enforceability of the claim or by August requirements a lien or fees for or record- ing legal paper. 191.007(a) Tex. Loc. Gov’t Code The clerk refused to The of an affidavit of be- 15 lien affidavit describing lien claim with an attachment legal description cause the of the the property concerned that bears the no- that was attached to the affidavit had on it tation “unofficial document” is not a failure the notation “unofficial document.”4 The to meet the of subsections then, question, is whether the (b) through (g) of section 191.007. See id. fails comply timing § 191.007(b)-(g). clerk was *4 requirements property of code section “impose not authorized to additional re- 53.052(a) only when the reason for such quirements” filing for or recording legal a county rejecting failure is the clerk’s its paper such as the removal of irrelevant that, case, filing. We hold in this it does 191.007(a). § notations. See id. There- county not. The clerk was fore, filing the was a affidavit ministerial 53.052(c) § record the affidavit. See id. act, county and the clerk’s refusal to ac- (“The county clerk shall record affida- cept the August 15 lien affidavit was im- .”). vit... RJP does not direct us to—and proper. any authority we do not that would find— Having authority found no for coun- county authorize the clerk to refuse to file ty rejection Ready clerk’s filing, Cable’s an record affidavit of a materialman’s we conclude that the clerk’s failure to ac- lien based on an bearing attachment cept filing Ready for Cable’s lien affidavit property description bearing also the nota- timely when it was filing delivered for govern- tion “unofficial document.” Local August 15 did not result in invalidation of 191.007(a), ment relating code section the lien claim for lack of timeliness. See county records, provides as follows: 53.052(c) (“Failure Prop.Code A legal paper presented county of the properly clerk to record or recording clerk for or for index a filed affidavit does not invalidate must meet the pre- lien.”); v. Morton Rubber In- Biffle (b) through dus., Inc., (Tex.1990) scribed Subsections (g). 785 144 S.W.2d (“Since section, curiam) Except provided by as this (per [appellant] satisfied impose duty bond, not additional timely his to file the cost he (a)(6) property property Subsection code section code section 53.054. requires 53.054(a); 53.054 that the lien affidavit contain Mustang Equip. Tractor & Co. v. description property sought of the to be Accident & Indem. Hartford charged "legally with the lien that is sufficient denied) pet. 444 for identification.” Tex. affidavit, (finding compliance by substantial 53.054(a)(6) (West 2007). However, as to (a)(8) despite non-compliance with subsection affidavit, August there is no evidence 53.054, property of section where owner re- described, property incorrectly that the was ceived actual notice of claims in man- provide proper that the attachment failed to prejudice); ner and was not misled to his issue, property notice of which atwas or that Corp., Perkins Constr. Co. v. Ten-Fifteen RJP prejudice would have been misled to its if (Tex.Civ.App.-San S.W.2d 500-01 Anto- accepted clerk had writ) (finding fatally nio affidavit Thus, filing. with the attachment for defective where owner "could not rejecting Ready clerk's basis for Ca- specifically locate the 1.988-acre tract on ble’s was not a defect that sought imposed which a lien is from the satisfy would cause the lien affidavit to fail to instrument”). description contained in the ... compliance requirement the substantial penalized filing separate for an error once submit affida- should not be distinct vit after the custody deadline for was in the instrument expired. had clerk.”). Moreover, Because section 53.052 of of the control code does not provide for its received actual dispute having does not lien to be filed after the filing of the of the lien notice applicable period expired, time has I would affidavit, allege that it was otherwise that Ready hold claim is prejudice. Mustang misled to judgment. valid and affirm See Tex. 441; Equip., at Tractor & I, §Ann. Richardson, 968 at 515. There- therefore, respectfully dissent. fore, Ready Cable’s motion seeking of RJP’s sum- judgment denial This out appeal arises of a lawsuit pursuant property code mary Homes, motion brought by RJP Southern Comfort been (“RJP”), section 53.160 should have Inc. an owner and developer reverse the County, the district court. We real in Williamson contractor, judgment Jimmy Reyes district court. Con- Construction,1 crete who hired to in- addition, Ready Cable asserted coun- *5 stall foundations on property, concrete the seeking judicial against terclaims RJP subcontractors, and two including Ready foreclosure, damages, attorneys’ and fees. sup- Cable who contracted with Reyes to We remand the cause to the district court post ply tension and foundation materials for parties’ consideration claims for incorporation for into the RJP In project. fees, attorneys’ and other for all actions petition, alleged amended RJP that it necessary final to be judgment entered paid Reyes in full for work performed and our that Ready consistent with conclusion provided Reyes materials and failed timely Cable’s hen affidavit was filed in pay to subcontractors for services with compliance section lawsuit, provided. materials sought to a remove declare invalid by “purported Ready lien claim” on Cable Dissenting Opinion by Justice RJP’s real property. After RJP filed PATTERSON. lien, motion to remove the dis- Justice, PATTERSON, JAN P. trict court motion and ordered dissenting. Ready claiming lien that had removed official Cable filed from the majority appellant Ready
The deems public County. records of Williamson See a materialman’s (West §id. premise filed on the bald legitimate “no basis for the there was ap- facts underlying relating to to file affidavit” that clerk’s refusal the lien dispute. are On peal not attempted file on the last Ready Cable delivered materials to day of its four-month deadline. construction site and submitted a bill re-present $2,118.72 Ready But Cable did not or Reyes amount of for which this affidavit other pursue Reyes amend avail- remit After payment. failed to account, at the against Reyes pay able remedies time coun- failed ty along the county non-payment clerk when clerk refused to Cable sent a notice of file the affidavit. chose to with the invoices to RJP. RJP does answer, contract, appear Reyes breach violation of the Texas failed and RJP Act, attorney’s judgment against Reyes a default Trust Fund fees. took dispute that it received the notice. Subse- lien was not timely. filed quently, payment, Ready .160(b)(2).3 to secure 53.052, §§ Ready Cable did attempted to file an “Affidavit A Claiming response, not file a but filed a motion for Lien” with the clerk of Williamson summary judgment contending that it had 53.051, .052 complied precedent with all conditions nec- 2007). The affidavit lien was essary to enforce its lien RJP “as 15, 2007, August dated described the evidenced accompa- this motion and its “property sought charged nying affidavits” and that there was no lien” reference to an attached exhibit evidence that Cable had not com- “incorporat[ed] pur- herein for all plied with all precedent. conditions poses” the exhibit. The attached exhibit 166a(i). Tex.R. Civ. P In its affidavit ac- purports to be the “Field Notes” of the companying its motion for judg- “Condominium Declaration” setting forth a ment, the chief financial officer of description under construction Cable averred that on August apparently prepared by a surveying com- Cable “caused to be delivered” the affida- pany identified on the document. The vit claiming a lien on RJP’s real phrase “Unofficial appears Document” clerk and that company across the face of the document. The received the notice from the county clerk did not file the affidavit for rejecting its affidavit 21. The record but returned it to Cable. In district court held a hearing on the sum- 16, 2007, notice dated mary lien, motion to par- remove and both clerk advised ties filed briefs with the district court after being returned for the reason *6 hearing. the district court “We cannot an unofficial document motion, summary the ordering that the as an attachment.”2 Cable filed a affidavit claiming a lien that by was filed subsequent September affidavit on 17, 2007, on September Cable be with the clerk. The subse- removed from the official public records of quent affidavit legal contained a descrip- Williamson County. tion of the in the affidavit and did not have attachments. In its appeal, sole issue on Ready Cable sought a complied motion to contends that it with re- the statuto- move “purported ry requirements lien claim” of Chapter 53 of the Tex- ground on the that the Property affidavit as by Code sending necessary all that, 2. The notice that the clerk sent when vides brought "[i]n a suit to foreclose a it returned the 15 affidavit to lien or to declare a claim or lien invalid or government Cable also referenced local code unenforceable, party objecting to the validi- 118, 191, 192, chapters and 193 and ty enforceability or of the claim or lien chapters 11 and 12. See Tex. Loc. Gov’t file a motion to remove the claim or lien.” (fees §§ Code Ann. charged by 118.001—.801 53.160(a) (West 2007). Prop.Code Tex. §Ann. officers), (general 191.001-009 rec- hearing At the of a motion to re- provisions counties), affecting ords 192.001- lien, move the burden is on the claimant to (instruments counties); by .007 to be recorded prove that notice of claim and of affidavit (recording 193.001-.013 indexing by lien were original furnished to the owner and counties) (West 2008); contractor and on the movant "to establish (provisions generally 11.001-008 applica- that the any lien should be removed for other records), public ble (recording 12.001~.018 ground authorized this section.” Id. instruments) (West Supp. 2004 & 53.160(d). 53.160, "Summary 3. Section titled Motion to Lien,” Remove Invalid pro- or Unenforceable construction and “sub- policy its affidavit tive of liberal timely delivering notices in compliance” do not control those stantial county clerk and that mandated legislature where the has affida- cases refused to file the wrongfully a lien perfecting certain that dispute does not vit. unequivocal claim clear terms. Au- filing was statutory deadline for Co., 34; Conn, & at Sherrod that clerk did gust Goldman, 341 at 158. see also affidavit, contends but not file any produced “has no evidence that RJP Procedures,” “Necessary sec- Entitled a result of that resulted to it as prejudice requires compliance with sub- tion 53.051 clerk’s filing delay caused perfect C the lien.” Tex. chapter “[t]o urges “pur- the clerk’s action” 53.052, 53.051. Section filing ported reason for refusal of here, provision expressly operative al- contends justified.” not an provides filing a timetable for the “complete ternatively filing was perfect affidavit to lien and does the clerk delivery of an affidavit to upon be filed any provision contain a lien to fee.” appropriate statutory after the deadline perfected passed. has fundamental that mechanic’s It is are lien statutes of the State
materialman’s Septem- affidavit filed on Ready Cable’s liberally purpose construed for the affidavit only 17 was the first and ber laborers and materialmen. See protecting Seeking actually filed. avoid Co., Steel Hayek argues v. Western requirement, (Tex.1972); & Mustang upon delivery Tractor “complete filing was Indem. Accident & Equip. appropriate Co. to the clerk with the Hartford prior accomplished But no fee.” denied). Nevertheless, majority because pet. 17. Neither the September authority is a claimant derivative has subcontractor nor cited contractor, and, has no general unlike a requirement allows the constitutional, law, common or contractual after the deadline. See satisfied *7 owner, a sub- Components, on the Wood Page hen v. Structural (affi- (Tex.2003) compli- 720, rights depend Inc., on contractor’s 721 102 S.W.3d lien. authorizing thirty-first day the statutes not time- ance with on the davit filed Sledge, Bank v. 653 S.W.2d ly First Nat’l section 53.103 of the under (Tex.1983); 283, Mfg. code, provides thirty-day Da-Col Paint 285 which section Co., funds); filing v. American Indem. 517 S.W.2d liens retained Co. on deadline (Tex.1974); Rahme, (lien affidavit, 270, Rahme, v. Raymond 273 at 561 559-60 when deadline on filed it was pet.). March Because filing affidavit September undisputed enlarge plain may not or alter We that RJP timely, I would conclude was not statutory Wording language. meaning of under 53.160for its section met burden given inter- is to be its literal statutes from September of the removal clearly un- pretation wording when that public records of Williamson the official Torres, 161 Tex. Goldman v. ambiguous. Conn, (1960); 158 53.160(d). § Supply & Inc. Tri-Electric Sherrod the local Co., Inc., on section 191.007 of (Tex.Civ.App.- Relying code, n.r.e.). contends government legisla- d The writ ref Tyler deed, that it complied statutory filing mortgage, each or other instrument because the of Au permitted by that is law to be gust affidavit was a ministerial act and the recorded.” Chapters See id. county clerk had no discretion determin of the code also address ing whether to file it. Tex. Loc. Gov’t public records and the recording of instru- (West 2008). Code Ann. 191.007 The ments, including concerning instruments majority agrees with Cable based property. See Tex. Prop.Code Ann. on county its conclusion that “the §§ (provisions generally 11.001-008 appli- ‘impose was not authorized to additional (re- records), public cable to 12.001-018 requirements’ for recording a le instruments) cording of 2004 & gal paper such as the removal of irrelevant 2008).5 Supp. Concluding it has notations” fact-finding and its authority “found no county for the clerk’s Cable’s require affidavit met the rejection filing,” the ma- (b) ments of through (g) subsections jority ignores these substantive statutes.6 section 191.007. See id. But subsections face, Clear on their these statutes cabin (b) through (g) of provide section 191.007 authority of the clerk to file docu- non-substantive “specifications” for legal proffered ment to it. And the papers dispositive and are not here. See clerk—unlike the majority recognized the — id.4 limits on authority. clerk in its notice letter of But this case becomes clear when we non-filing referenced statutory provisions consider that Cable defaulted on that substantively address a clerk’s the various remedies available to it at the duties to file and record documents. time it “caused [the affidavit] be deliv- 191.001(c) Among provisions, section ered.” Cable did not re-present or government the local provides code that a amend its affidavit or seek avail- duty clerk’s to record documents is limited able relief clerk for to those documents that the clerk “is au- refusing to file the affidavit 191.001(c). thorized to record.” See id. Cable had “caused to be Chapter delivered” government 192 of the local day last of its four-month types addresses dead- instruments that clerks Instead, are line. authorized to record. opted to file a separate 192.001-.007 Section distinct affidavit in the middle of directs the clerk to September “record long after deadline 191.007(b)(1) example, specifies For section "face of the complies document that it with page that "a must ... be no statute”). wider than 8 applicable ½ *8 longer inches and no than 14 inches.” See 191.007(b)(1) Tex. Loc. Gov't Code Ann. majority (c) 6.The also relies on subsection of (West 2008). section 53.052 of the code that re- quires clerk to "record” the affida- Op. Att'y 5. See also Tex. Gen. No. GA-0450 53.052(c) vit. See Tex. (2006) ("[A] county prohibited clerk is from majority conflates recording and a document that no stat- recording requirements in the statute. authorizes, requires, permits ute the clerk (a) Subsection provides of section 53.052 accept.”); Op. to Att’y Tex. Gen. No. JC-0256 person "the (2000) ("[A] the lien must file an clerk is document, affidavit with the filing only for face,' clerk” and subsec- regular on its (c) that, filed, 'authorized, provides tion that the once required, clerk is "the permitted’ (citation statute properly. to file.” clerk shall record the affidavit” See omitted)); Op. Att’y 53.052(a), (c). Tex. Gen. No. LO-016 (1998) (clerk must be able to determine from also failed passed. had LIBERTY MUTUAL INSURANCE remedy of mandamus.
pursue the available COMPANY, Appellant, Fryar, Abilene v. City 1940, no (Tex.Civ.App.-Eastland v. writ) per- of clerk to (remedy for failure Roy BURK, Appellee. ministerial file record duty to form No. 2-08-444-CV. see, mandamus); is action of instrument Packer, 833, 839 e.g., Texas, v. Walker Appeals Court of (Tex.1992) (writ may issue to of mandamus Fort Worth. aof ministerial performance
compel 31, 2009. Aug. Archer, Park 158 Tex. duty); act or (mandamus (1958) re- S.W.2d against clerk court lief available transcript to file
failure “tendered facts”); Att’y Gen. Op. statement (1998) (“If clerk, through No. LO-016 statute, understanding of the a mistaken to file a document is statutori- refuses filed, remedy ly required mandamus, which enables action of recording construe the statute court to it as a of law whether determine matter question.”). to the document applies record, this I would conclude On err in granting district court did not favor of RJP motion a lien remove September 17 from Ready Cable filed on public records of Williamson the official 721; at Page, I, Conn, at 34. Sherrod & therefore, judgment would affirm
the district court.