      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-08-00652-CV



                                  Ready Cable, Inc., Appellant

                                                 v.

                         RJP Southern Comfort Homes, Inc., Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
    NO. 07-730-C26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING



                                          OPINION


               This suit involves whether a subcontractor may enforce a statutory materialman’s lien

against a property owner when the county clerk refused to accept the subcontractor’s timely delivered

lien affidavit for filing. See Tex. Prop. Code Ann. § 53.052(a) (West 2007). We hold that where

there is no legitimate basis for the clerk’s refusal to file the lien affidavit, the affidavit should

be deemed to have been filed on the date it was delivered for filing. Consequently, we reverse

the district court’s judgment and remand to the district court for further proceedings consistent

with this opinion.


Factual and Procedural Background

               Appellee RJP Southern Comfort Homes, Inc. constructed improvements on its

real property in Williamson County. RJP hired contractor Jimmy Reyes Concrete Construction

to install foundations for two condominiums on the property. Reyes, in turn, hired appellant
Ready Cable, Inc. to supply post-tension and foundation materials, and work related to those

materials. RJP alleges that it paid Reyes in full for the work performed on the improvements.

However, Reyes failed to pay Ready Cable for its labor and materials on the project, which had been

delivered on April 18, 2007.

               Ready Cable sent notice of claim and demand for payment to RJP on July 15, 2007,

for the $2,118.72 for which Ready Cable had not received payment. On August 15, 2007,

Ready Cable caused to be delivered to the county clerk of Williamson County an affidavit claiming

a lien on RJP’s property in the same amount. Attached to the affidavit was a document entitled

“EXHIBIT ‘A’ to Condominium Declaration: FIELD NOTES,” which contained a legal description

of the property sought to be charged with the lien. The phrase “Unofficial Document” appears across

the face of the document.

               On August 21, 2007, Ready Cable received notification from the Williamson County

Clerk, dated August 16, that the clerk had not accepted the filing. According to the clerk, it could

not accept an unofficial document as an attachment. On September 17, 2007, Ready Cable filed a

modified affidavit with the clerk.

               RJP filed suit against Ready Cable on August 29, 2007, seeking removal of the lien

and attorneys’ fees.1 In its lawsuit, RJP filed a summary motion to remove Ready Cable’s lien. See


       1
          RJP also filed suit against Reyes, the contractor, and against Ironhorse Concrete, L.P.,
a second subcontractor, which had also filed an affidavit claiming a lien on RJP’s property based on
Reyes’s non-payment. Reyes failed to appear or answer, and RJP took a default judgment against
Reyes for breach of contract, violation of the Texas Trust Fund Act, and attorneys’ fees. Following
RJP’s default judgment against Reyes, Ironhorse non-suited its claims, based on RJP being
the real party in interest to Ironhorse’s claims. No dispute involving Reyes or Ironhorse is before
us on this appeal.

                                                 2
id. § 53.160(a) (West 2007). According to RJP’s summary motion, filed on June 24, 2008,

Ready Cable’s lien was not timely filed. See id. § 53.052(a). Ready Cable responded by filing a

“traditional” motion for summary judgment, see Tex. R. Civ. P. 166a(c), and a “no evidence” motion

for summary judgment, see Tex. R. Civ. P. 166a(i), contending that Ready Cable had performed all

conditions precedent to properly secure a contractor’s lien and that the lien is valid. In response, RJP

argued that no lien had been filed by the statutory deadline and, in support, attached Ready Cable’s

August 15 affidavit, the county clerk’s notification that such filing could not be accepted, and

Ready Cable’s September 17 affidavit. On September 23, 2008, the district court granted RJP’s

summary motion to remove the lien, ordered the lien removed, and awarded RJP attorneys’ fees.

Ready Cable appeals.


Analysis

                The Texas Property Code secures payment for persons who provide labor or materials

for certain construction projects on real property by entitling such persons to a lien on the property.

See Tex. Prop. Code Ann. §§ 53.021-.023 (West 2007). A subcontractor is considered a derivative

claimant and must rely on these statutory lien remedies. Raymond v. Rahme, 78 S.W.3d 552,

559 (Tex. App.—Austin 2002, no pet.) (citing First Nat’l Bank v. Sledge, 653 S.W.2d 283, 285

(Tex. 1983)). To perfect its lien, therefore, Ready Cable was required to sign an affidavit with

specified contents, see Tex. Prop. Code Ann. § 53.054 (West 2007), timely file the affidavit with

the county clerk, see id. § 53.052(a), and provide notice of the filed affidavit to the property owner




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and the original contractor, see id. § 53.055 (West 2007). Also, Ready Cable was required to have

provided prior notice of the unpaid balance to the property owner and the original contractor. See

id. § 53.056 (West 2007).2

               We review summary judgments de novo. Valence Operating Co. v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005). It is well settled that the mechanic’s and materialman’s

lien statutes are to be liberally construed for the purpose of protecting laborers and materialmen.

First Nat’l Bank v. Whirlpool Corp., 517 S.W.2d 262, 269 (Tex. 1974). Generally, for purposes

of perfecting the lien, only substantial compliance is required in order to fulfill the statutory

requirements. Occidental Neb. Fed. Sav. Bank v. East End Glass Co., 773 S.W.2d 687, 688

(Tex. App.—San Antonio 1989, no writ); see Tex. Prop. Code Ann. § 53.054(a). In addition, courts

have been more willing to excuse a mistake or omission in cases where no party is prejudiced by the

defect. Mustang Tractor & Equip. Co. v. Hartford Accident & Indem. Co., 263 S.W.3d 437, 441

(Tex. App.—Austin 2008, pet. denied); Richardson v. Mid-Cities Drywall, Inc., 968 S.W.2d 512,

515 (Tex. App.—Texarkana 1998, no pet.) (“[S]ubstantial compliance is shown to exist where no

one has been misled to his prejudice.”).

               The single issue in this appeal is whether Ready Cable’s affidavit delivered to

the Williamson County Clerk should be deemed timely filed.3 A party objecting to the validity or

       2
         Additional requirements apply for perfection of liens in construction projects in which
the contractor agrees to construct or repair the owner’s residence. See Tex. Prop. Code Ann.
§§ 53.001(9), (10), .052(b), .251-.260 (West 2007).
       3
          The only basis for removal of the lien stated in RJP’s summary motion is that the filing of
the affidavit was not timely. See Tex. Prop. Code Ann. § 53.160(a) (West 2007) (“The [summary]
motion must . . . state the legal and factual basis for objecting to the validity or enforceability of
the claim or lien.”). In addition, RJP argues on appeal that Ready Cable provided no evidence in the

                                                  4
enforceability of a lien via summary motion under property code section 53.160 may assert that

the affidavit claiming a lien was not timely filed as required by property code section 53.052. See

Tex. Prop. Code Ann. § 53.160(b)(2). Section 53.052 provides, in relevant part, that “the person

claiming the lien must file an affidavit with the county clerk of the county in which the property is

located . . . not later than the 15th day of the fourth calendar month after the day on which the

indebtedness accrues.” Id. § 53.052(a). The indebtedness at issue here accrued on or about April 18,

2007. Consequently, Ready Cable was required to have filed the affidavit claiming a lien by

August 15, 2007.

                The county clerk refused to accept Ready Cable’s August 15 lien affidavit because

the legal description of the property that was attached to the affidavit had on it the notation

“unofficial document.”4 The question, then, is whether the August 15 affidavit fails to comply with


record that a proper filing fee was tendered to the county clerk. See Tex. Loc. Gov’t Code Ann.
§ 118.023(b) (West 2008) (“A county clerk may not be compelled to file or record any instrument
or writing authorized or required to be recorded until payment for all fees has been tendered.”).
However, RJP failed to raise this issue before the district court, either in its pleadings, in its summary
motion, or in its response to Ready Cable’s motion for summary judgment.
        4
           Subsection (a)(6) of property code section 53.054 requires that the lien affidavit contain
a description of the property sought to be charged with the lien that is “legally sufficient for
identification.” Tex. Prop. Code Ann. § 53.054(a)(6) (West 2007). However, as to the August 15
affidavit, there is no evidence that the property was incorrectly described, that the attachment failed
to provide proper notice of which property was at issue, or that RJP would have been misled
to its prejudice if the county clerk had accepted the affidavit with the attachment for filing. Thus,
the county clerk’s basis for rejecting Ready Cable’s August 15 filing was not a defect that would
cause the lien affidavit to fail to satisfy the substantial compliance requirement of property code
section 53.054. See id. § 53.054(a); Mustang Tractor & Equip. Co. v. Hartford Accident & Indem.
Co., 263 S.W.3d 437, 444 (Tex. App.—Austin 2008, pet. denied) (finding substantial compliance
by affidavit, despite non-compliance with subsection (a)(8) of section 53.054, where property owner
received actual notice of claims in timely manner and was not misled to his prejudice); Perkins
Constr. Co. v. Ten-Fifteen Corp., 545 S.W.2d 494, 500-01 (Tex. Civ. App.—San Antonio 1976,
no writ) (finding affidavit fatally defective where property owner “could not specifically locate

                                                    5
the timing requirements of property code section 53.052(a) when the only reason for such failure is

the county clerk’s rejecting its filing. We hold that, in this case, it does not. The county clerk was

required to record the affidavit. See id. § 53.052(c) (“The county clerk shall record the affidavit

. . . .”). RJP does not direct us to—and we do not find—any authority that would authorize the

county clerk to refuse to file or record an affidavit of a materialman’s lien based on an attachment

bearing the property description also bearing the notation “unofficial document.” Local government

code section 191.007(a), relating to county records, provides as follows:


       A legal paper presented to a county clerk for filing or for recording in any county
       must meet the requirements prescribed by Subsections (b) through (g). Except as
       provided by this section, a county clerk may not impose additional requirements or
       fees for filing or recording a legal paper.


Tex. Loc. Gov’t Code Ann. § 191.007(a) (West 2008). The filing of an affidavit of lien claim

with an attachment describing the property concerned that bears the notation “unofficial document”

is not a failure to meet the requirements of subsections (b) through (g) of section 191.007. See id.

§ 191.007(b)-(g). The county clerk was not authorized to “impose additional requirements” for

filing or recording a legal paper such as the removal of irrelevant notations. See id. § 191.007(a).

Therefore, filing the affidavit was a ministerial act, and the county clerk’s refusal to accept the

August 15 lien affidavit was improper.

               Having found no authority for the county clerk’s rejection of Ready Cable’s filing,

we conclude that the clerk’s failure to accept for filing Ready Cable’s lien affidavit when it was

timely delivered for filing on August 15 did not result in invalidation of the lien claim for lack of


the 1.988-acre tract on which a lien is sought to be imposed from the description contained in the
. . . instrument”).

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timeliness. See Tex. Prop. Code Ann. § 53.052(c) (“Failure of the county clerk to properly record

or index a filed affidavit does not invalidate the lien.”); Biffle v. Morton Rubber Indus., Inc.,

785 S.W.2d 143, 144 (Tex. 1990) (per curiam) (“Since [appellant] satisfied his duty to file timely

the cost bond, he should not be penalized for an error once the instrument was in the custody

and control of the clerk.”). Moreover, RJP does not dispute its having received actual notice

of the August 15 filing of the lien affidavit, or allege that it was otherwise misled to its prejudice.

See Mustang Tractor & Equip., 263 S.W.3d at 441; Richardson, 968 S.W.2d at 515. Therefore,

Ready Cable’s motion for summary judgment seeking denial of RJP’s summary motion pursuant

to property code section 53.160 should have been granted by the district court. We reverse the

judgment of the district court.

               In addition, Ready Cable asserted counterclaims against RJP seeking judicial

foreclosure, damages, and attorneys’ fees.         We remand the cause to the district court

for consideration of the parties’ claims for attorneys’ fees, and for all other actions necessary for

final judgment to be entered consistent with our conclusion that Ready Cable’s lien affidavit was

timely filed in compliance with property code section 53.052.



                                               __________________________________________

                                               G. Alan Waldrop, Justice

Before Justices Patterson, Pemberton and Waldrop;
  Dissenting Opinion by Justice Patterson

Reversed and Remanded

Filed: August 28, 2009



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