Opinion issued March 10, 2015




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-13-00615-CV
                            ———————————
 DONNA T. MOORE, DAVID B. MOORE, AND PROVIDENT FUNDING
   ASSOCIATES, LP D/B/A PROVIDENT HOME LOANS, Appellants
                                        V.
                   BRENHAM READY MIX, INC., Appellee



                    On Appeal from the 155th District Court
                             Waller County, Texas
                       Trial Court Case No. 09-12-20105



                                  OPINION

      In this case, Brenham Ready Mix, Inc., a supplier of ready-mix concrete and

fill dirt for the development of a residential subdivision, sought to foreclose upon
two materialman’s liens on two lots owned by Donna T. and David B. Moore and

Provident Funding Associates, LP d/b/a Provident Home Loans 1 (collectively, “the

individual homeowners”). After a bench trial, the trial court ruled that Brenham

Ready Mix could foreclose upon its liens in the amount of $214,757.76 against

each of the lots, and the court awarded $75,000 in trial-level attorney’s fees and

$25,000 in conditional appellate attorney’s fees. In three issues on appeal, the

individual homeowners contend that (1) the trial court erroneously enforced the

full amount of the liens, which represented materials used for the entire

development project, against their individual lots; (2) Brenham Ready Mix did not

perfect its lien for the concrete because it did not substantially comply with the

statutory notice requirements; and (3) the trial court erred in awarding attorney’s

fees to Brenham Ready Mix due to the excessive-demand doctrine or, if the trial

court properly awarded attorney’s fees, the court erred in the amount awarded

because Brenham Ready Mix did not segregate its fees relating to each particular

property.

      We reverse and remand.



1
      Brenham Ready Mix obtained a judgment against the only other individual
      homeowners who had bought lots in Phase 3, Brent Dirden and Christopher St.
      Mary, as well. While this appeal was pending, Brenham Ready Mix, Dirden, and
      St. Mary reached a settlement agreement, and Dirden and St. Mary moved to
      dismiss their appeal. We granted this motion and dismissed their appeal in an
      interlocutory order dated August 14, 2014.

                                        2
                                    Background

      Art DePue owned twenty-five acres of land in Prairie View, Texas. In 2002,

DePue subdivided the land and filed a plat for the Brookside Meadow subdivision.

DePue filed a replat of the subdivision in 2006, subdividing the land into seventy-

one lots.    L&F Homes and Development (“L&F”) was the initial original

contractor for the construction project, which involved, among other things,

building duplexes on each of the lots.

      Brenham Ready Mix supplies ready-mix concrete and other materials for

residential and commercial construction projects. In early 2006, Felix Meyer,

Brenham Ready Mix’s president, met with David Solomon of L&F, who was the

project manager for the Brookside Meadow project, and George Mott of Mott

Concrete, Inc., the subcontractor that had a contract with L&F to provide and pour

the concrete to be used for the slabs, sidewalks, and parking lots in the subdivision.

Meyer quoted a price for concrete to Mott, and Brenham Ready Mix entered into a

subcontract on an open-account basis with Mott to provide ready-mix concrete for

the entire development. Brenham Ready Mix’s contract with Mott did not specify

the amount of concrete to be used on each specific lot, and it did not “enter into

any contracts that were specific to lots.”

      The construction project was divided into three phases. Mott paid Brenham

Ready Mix for the concrete provided for Phases One and Two, and there is no



                                             3
dispute in this litigation about those two phases. Phase Three involved thirty-seven

lots, and Brenham Ready Mix delivered concrete for this phase in July and

September 2007.2 During construction, Mott would inform Brenham Ready Mix

of how much concrete it needed for the next day, Brenham Ready Mix would

deliver that amount to the jobsite, and Mott would direct and pour the concrete.

Brenham Ready Mix generally billed Mott monthly, although it occasionally billed

more frequently if it had delivered a large volume of concrete. Mott failed to pay

for $206,661.76 worth of the concrete deliveries in July and September. The trial

court admitted several unpaid invoices from Brenham Ready Mix to Mott dated

throughout August, September, and October 2007.

      During construction, DePue sold the Phase Three property to L&F, which

then sold the property to Jim Fitchett on September 12, 2007. Around September

2007, Stability Homes replaced L&F as the general contractor on the project.3

Solomon, the project manager for L&F, remained the manager for the project.



2
      Brenham Ready Mix also delivered concrete to the project in December 2007. By
      that point, Terra Estrada had replaced Mott as the concrete subcontractor, and
      Terra Estrada paid Brenham Ready Mix upfront for these deliveries. There is no
      dispute in this litigation concerning these deliveries of concrete.
3
      The record does not indicate the precise date that Stability Homes replaced L&F
      as the general contractor on the project. David Solomon testified that he was the
      project manager for Stability Homes on the project from September 2007 through
      January 2008 and that he had previously been involved with the project prior to
      September 2007. This is the only testimony relevant to this question that is
      contained in the record.

                                          4
      After Mott failed to pay the outstanding invoices for the concrete, Brenham

Ready Mix retained attorney Katherine Kenjura to prepare a lien. Kenjura sent a

notice letter regarding Brenham Ready Mix’s lien on the concrete to Mott, the

subcontractor for the concrete, Stability Homes, the then-current general contractor

for the project, and DePue, the former owner of the Phase Three property, on

November 21, 2007. She sent a second notice letter on December 18, 2007, to

L&F, the former general contractor for the project, Stability Homes, and Mott.

Meyer testified that Brenham Ready Mix provided its outstanding invoices solely

to Mott. Thus, the November 21, 2007 notice letter was the first written notice

Brenham Ready Mix provided to entities other than Mott. It had not sent any

notice letters before Stability Homes became the general contractor for the project.

And it did not send the November 21, 2007 notice letter to L&F.             Instead,

Solomon, the project manager for both L&F and Stability Homes, testified by

deposition that Meyer spoke with him in “September, October, around the end of

October, first of November of 2007” and informed him that Mott had not paid

Brenham Ready Mix for the concrete.

      By January 2008, Brenham Ready Mix had finished all of the concrete

deliveries to the project. It then entered into a second contract, this time with

Stability Homes, the general contractor, to provide fill dirt to the site.     This

contract, like Brenham Ready Mix’s initial contract with Mott, the concrete



                                         5
subcontractor, required Brenham Ready Mix to provide fill dirt to the entire

development, not to specific lots within the development. Stability Homes failed

to pay Brenham Ready Mix $8,096 for the fill-dirt deliveries, so Brenham Ready

Mix filed another lien affidavit for these materials. All of the fill-dirt deliveries

occurred in January 2008, and Kenjura sent the notice letter for this lien on January

30, 2008.

      On January 9, 2008, Brenham Ready Mix filed an “Affidavit Claiming

Mechanic’s and Materialman’s Lien” for the ready-mix concrete, averring that it

had an unpaid claim in the amount of $206,661.76 for labor and materials

furnished. This affidavit specifically listed each lot in Phase Three. Brenham

Ready Mix listed L&F as the “owner or reputed owner” of the property, identified

Stability Homes as the original general contractor, and identified Mott as the

subcontractor. The affidavit further stated that Brenham Ready Mix had sent

notice of the claimed lien to L&F by certified mail on November 21, 2007, and

December 18, 2007. Brenham Ready Mix sent notice of the lien affidavit to L&F,

Stability Homes, and Mott.

      Brenham Ready Mix filed an affidavit claiming a lien for the fill dirt on

February 13, 2008. This affidavit again specifically listed each lot, named L&F as

the owner or reputed owner, and listed Stability Homes as both the original general

contractor and as subcontractor for the fill dirt. This affidavit stated that Brenham



                                         6
Ready Mix had sent notice of the claimed lien to L&F by certified mail on January

30, 2008.

      Beginning in March 2008, individuals began to purchase lots in the

subdivision from Jim Fitchett, who had purchased the property in September 2007.

The individual homeowners offered Brenham Ready Mix approximately $5,800 to

release the liens claimed on their property. This amount represented 1/37th of the

total amounts claimed by Brenham Ready Mix in the two liens, representing the

relation of the individual lot to the total number of lots in Phase Three of the

project. The individual homeowners arrived at this amount based on the theory

that the individual lots were no longer owned by the original owner of the entire

unplatted property, L&F, which had benefited from the delivery of the entire

amount of concrete and fill dirt delivered to the property.          The individual

homeowners reasoned that each lot received 1/37th of the total amount of ready-

mix concrete and fill dirt provided by Brenham Ready Mix to the project and that

each homeowner should, therefore, be liable, if at all, for only that proportionate

share of the liens, and not for the entire value of the liens on the entire property.

Brenham Ready Mix rejected these partial payments and instead demanded

payment of the full lien totals placed on the property for deliveries made to benefit

the entire subdivision as a condition of releasing the lien as to the individual lot

owners.



                                         7
      Regions Bank provided construction financing for Phase Three of the

project. It held liens superior to those of Brenham Ready Mix on all of the

property in the subdivision. On November 4, 2008, Regions Bank foreclosed on

its liens on the thirty-four lots in Phase Three that remained unsold at that time.

Regions Bank then released the liens it held on the three lots that had been sold to

individual homeowners, including the two lots that are the subject of this dispute.

      Joseph Garnett, Brenham Ready Mix’s counsel, testified concerning

attorney’s fees. He testified that charges billed to Brenham Ready Mix totaled

$118,070.71.    He also stated that Brenham Ready Mix originally filed three

separate suits to foreclose on its liens relating to the three separate properties at

issue and that, as a result, he had segregated the fees incurred for each suit up until

the time the trial court consolidated the three suits. After that point, he no longer

segregated his fees by property.

      In its final judgment, the trial court rendered judgment in favor of Brenham

Ready Mix. Specifically, the trial court ordered that Brenham Ready Mix “have

foreclosure of its liens in the amount of $214,757.76” on each of the current

homeowners’ properties.       The court issued an order of sale of the current

homeowners’ properties to satisfy the judgment. The trial court also awarded

Brenham Ready Mix $75,000 in trial-level attorney’s fees and $25,000 in

conditional appellate-level attorney’s fees.



                                          8
      The trial court also issued findings of fact and conclusions of law, several of

which the current homeowners challenge on appeal. This appeal followed.

                                Standard of Review

      Findings of fact in a bench trial have the same “force and dignity as a jury’s

verdict upon questions.” Village Place, Ltd. v. VP Shopping, LLC, 404 S.W.3d

115, 124 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (quoting Anderson v. City

of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991)). As a result, the trial court’s

findings of fact are subject to sufficiency challenges under the same standards that

we use in evaluating the sufficiency of evidence to support a jury verdict. Id.

Unchallenged findings of fact are binding on the parties and on this Court. Id.

      To determine whether legally sufficient evidence supports a challenged

finding of fact, we consider evidence favorable to the finding if a reasonable fact-

finder could consider it, and we disregard evidence contrary to the challenged

finding unless a reasonable fact-finder could not disregard it. City of Keller v.

Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Village Place, 404 S.W.3d at 124. We

sustain a legal sufficiency challenge only if the record demonstrates: (1) a

complete absence of evidence of a vital fact; (2) the court is barred by the rules of

law or of evidence from giving weight to the only evidence offered to prove a vital

fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla;




                                          9
or (4) the evidence conclusively establishes the opposite of the vital fact. City of

Keller, 168 S.W.3d at 810; Village Place, 404 S.W.3d at 124.

          In determining whether factually sufficient evidence supports a challenged

finding, we consider and weigh all of the evidence and set aside the judgment only

if it is so contrary to the overwhelming weight of the evidence as to be clearly

wrong and unjust. Village Place, 404 S.W.3d at 124 (citing Arias v. Brookstone,

L.P., 265 S.W.3d 459, 468 (Tex. App.—Houston [1st Dist.] 2007, pet. denied)).

The trial court, as the fact-finder in a bench trial, is the sole judge of the credibility

of the witnesses. Id. (citing HTS Servs., Inc. v. Hallwood Realty Partners, L.P.,

190 S.W.3d 108, 111 (Tex. App.—Houston [1st Dist.] 2005, no pet.)).

          We review conclusions of law de novo, and we will uphold the trial court’s

conclusions if the judgment can be sustained on any legal theory supported by the

evidence. Id. (citing Noble Mortg. & Invs., LLC v. D & M Vision Invs., LLC, 340

S.W.3d 65, 74–75 (Tex. App.—Houston [1st Dist.] 2011, no pet.)). Conclusions of

law are not subject to challenge for factual insufficiency, but we may review the

legal conclusions drawn from the facts to determine their correctness. Id. (citing

Brown v. Brown, 236 S.W.3d 343, 348 (Tex. App.—Houston [1st Dist.] 2007, no

pet.)).




                                           10
               Substantial Compliance with Notice Requirements

      In their second issue, the individual homeowners contend that Brenham

Ready Mix failed to perfect its materialman’s lien with respect to the concrete

because it did not substantially comply with the statutory written notice

requirements for materialman’s liens and, therefore, the lien is invalid. 4

      A subcontractor, or, as in this case, a supplier to a subcontractor, is a

derivative claimant and, unlike a general contractor, has no constitutional, common

law, or contractual lien on the owner’s property. See First Nat’l Bank in Graham

v. Sledge, 653 S.W.2d 283, 285 (Tex. 1983). As a result, a subcontractor’s lien

rights “are totally dependent on compliance with the statutes authorizing the lien.”

Id.; Indus. Structure & Fabrication, Inc. v. Arrowhead Indus. Water, Inc., 888

S.W.2d 840, 844 (Tex. App.—Houston [1st Dist.] 1994, no writ). The Texas

Supreme Court has recognized, however, that substantial compliance with the

statutes “is sufficient to perfect a lien . . . .” Sledge, 653 S.W.2d at 285.

      Property Code section 53.056 sets out the notice requirement for lien

claimants who are not general contractors. See TEX. PROP. CODE ANN. § 53.056

(Vernon 2014). This section provides that if the lien claim arises, as here, from a



4
      The individual homeowners do not contend that Brenham Ready Mix failed to
      substantially comply with the statutory notice requirements with respect to its
      materialman’s lien for the fill dirt.



                                           11
debt incurred by a subcontractor, the claimant must give the original contractor5

written notice of the unpaid balance not later than the fifteenth day of the second

month following each month in which all or part of the claimant’s material was

delivered. Id. § 53.056(b). The claimant must then give the same notice to the

owner or reputed owner of the property and the original contractor not later than

the fifteenth day of the third month following each month in which all or part of

the claimant’s material was delivered. Id. Section 53.056(f) provides that “[a]

copy of the statement or billing in the usual and customary form is sufficient as

notice under this section.” Id. § 53.056(f). The “liberal construction” of the

materialman’s liens statutes “does not excuse failure to comply with the statutory

requirement that the materialman provide ‘timely written notice.’” Wesco Distrib.,

Inc. v. Westport Grp., Inc., 150 S.W.3d 553, 558 (Tex. App.—Austin 2004, no

pet.).

         A. July 2007 Deliveries

         For the concrete that Brenham Ready Mix delivered to the worksite in July

2007, Brenham Ready Mix was required to give written notice of the claim to the

original contractor, Stability Homes, by September 15, 2007, which was the

5
         The Property Code defines “original contractor” as “a person contracting with an
         owner either directly or through the owner’s agent.” See TEX. PROP. CODE ANN.
         § 53.001(7) (Vernon 2014). The Property Code defines “subcontractor” as “a
         person who has furnished labor or materials to fulfill an obligation to an original
         contractor or to a subcontractor to perform all or part of the work required by an
         original contract.” Id. § 53.001(13).

                                             12
fifteenth day of the second month following the month in which Brenham Ready

Mix delivered part of its materials. See TEX. PROP. CODE ANN. § 53.056(b). As

evidence that it complied with the statutory notice requirement for the July 2007

deliveries, Brenham Ready Mix points to David Solomon’s deposition testimony in

which he stated that, as project manager for both L&F and Stability Homes, he

received and approved the invoices from suppliers, that Felix Meyer, Brenham

Ready Mix’s president, approached him in “September, October and early

November about the unpaid invoices,” and that he saw “additional documents”

from Meyer to substantiate Brenham Ready Mix’s claims during conversations

occurring from September through early November 2007.

      Solomon testified that his general duties as project manager included

“inspecting and the processing [of] invoices” relating to the project. He also

testified that he first saw information relating to Brenham Ready Mix’s claim when

Meyer “first told [him], hey, I didn’t get paid.” According to Solomon, that

occurred in “September, October, around the end of October, first of November of

2007.” Solomon then testified that, with regard to L&F’s and Stability Homes’

subcontracts with Mott, his job as project manager did not involve “looking at

invoices and paying invoices” because L&F and Stability Homes had a turnkey

contract with Mott. As a result, Mott gave Solomon “one price for the whole

thing,” Mott supplied all the labor and materials to complete its contractual



                                       13
obligations, and Solomon was not “privy [to] what [Mott] actually pays for each

and how much [Mott] buys.” Mott turned in one bill to the original contractor

when it completed work on a specific phase of the project.

      Brenham Ready Mix did not present any specific testimony or other

evidence that Solomon, on behalf of either L&F or Stability Homes, the two

original contractors on the project, received written notice of Brenham Ready

Mix’s lien claim for the concrete delivered in July 2007, either in the form of an

unpaid invoice or otherwise, by September 15, 2007. Even if Solomon had actual

notice by September 15, 2007, that Brenham Ready Mix had not been paid, an

issue we need not determine, courts have held that “liberal construction [of the

materialman’s liens statute does] not save the materialman’s lien from his failure to

provide timely written notice.” Wesco Distrib., 150 S.W.3d at 558 (citing Tex.

Constr. Assocs., Inc. v. Balli, 558 S.W.2d 513, 518–19 (Tex. Civ. App.—Corpus

Christi 1977, no writ)). As the Austin Court held in Wesco Distribution, “[l]iberal

construction cannot read the timing requirements out of the statute.” Id. Because

the record contains no evidence that Brenham Ready Mix notified the general

contractor, Stability Homes, of its lien claim with regard to the July 2007 deliveries

of concrete by written notice on or before September 15, 2007, as required by

Property Code section 53.056(b), we conclude that the trial court erroneously




                                         14
determined that Brenham Ready Mix substantially complied with the statutory

notice requirements with respect to these deliveries.

      We sustain the individual homeowners’ second issue with respect to the July

2007 concrete deliveries.

      B. September 2007 Deliveries

      For the concrete that Brenham Ready Mix delivered to the worksite in

September 2007, Brenham Ready Mix was required to give written notice of the

claim to Stability Homes, the general contractor, by November 15, 2007, which

was the fifteenth day of the second month following the month in which Brenham

Ready Mix delivered part of its materials. It is undisputed that Brenham Ready

Mix sent a written notice dated November 21, 2007, to Mott, Stability Homes, and

Art DePue concerning its claim. Brenham Ready Mix contends that it satisfied the

statutory notice requirement because Solomon testified that he received and

approved invoices for the project and that “Meyer showed him documents about

the unpaid invoices in September, October, and early November.”

      As stated above with respect to the July deliveries, Solomon testified that he

did not receive invoices relating to the concrete subcontract with Mott because

Stability Homes had a turnkey contract with Mott and only received one bill from

Mott at the end of each phase of construction. Solomon testified that, while in

conversation with Meyer, he “[thought he] saw a copy of all this stuff” in



                                         15
“September, October, around the end of October, first of November of 2007,” but

Meyer testified that Brenham Ready Mix did not send copies of outstanding

invoices to any party other than Mott, and he agreed that the November 21, 2007

notice letter “was the first written notice that [Brenham Ready Mix] provided to

the entities involved in the delivery of ready mix material other than Mott

Concrete.” Meyer specifically agreed that the November 21, 2007 letter “would

have been the first notice to the owner of the original contract”—Stability

Homes—and that “[t]here were no notice letters sent before November 21st,

2007.” Furthermore, Katherine Kenjura, the attorney who prepared the notice

letters and handled the filing of Brenham Ready Mix’s lien claims, had the

following exchange with the current homeowners’ counsel:

      [Counsel]: So it’s true, isn’t it, that Stability Homes was not given
                 notice of this claim by the 15th day of the second month
                 after September 2007, that’s true, isn’t it?

      [Kenjura]: They were not given notice.

      [Counsel]: That’s what I said, Stability did not receive that notice,
                 did they?

      [Kenjura]: They did not.

      Even if Solomon’s deposition testimony supports an argument that Stability

Homes had actual notice that Brenham Ready Mix had not been paid for its

September 2007 deliveries, as we have already held with respect to the July 2007

deliveries, actual notice of an unpaid claim does not satisfy the statutory notice

                                       16
requirements of section 53.056. See Wesco Distrib., 150 S.W.3d at 558; Balli, 558

S.W.2d at 518–19. Brenham Ready Mix presented evidence that Stability Homes

received written notice of the unpaid claim on November 21, 2007, but it did not

present any evidence that Stability Homes received written notice before

November 15, 2007, the relevant date pursuant to section 53.056.

      Furthermore, to the extent Brenham Ready Mix contends that, because the

current homeowners do not challenge the trial court’s fact finding that Art DePue,

the initial reputed owner of the property, received timely notice of the lien claim,

this finding obviates the need to provide proper statutory notice to Stability Homes,

the general contractor, we note that our sister courts have rejected this argument.

Notice to the general contractor “is the only notice that the original contractor

personally receives” and is “for the benefit of the original contractor.” Wesco

Distrib., 150 S.W.3d at 560; Stone Fort Nat’l Bank v. Elliott Elec. Supply Co., 548

S.W.2d 441, 445–46 (Tex. Civ. App.—Tyler 1977, writ ref’d n.r.e.) (holding that

materialman did not substantially comply with notice requirement relative to

general contractor even though materialman properly and timely provided notice to

owner of property).

      Based on the record, we conclude that the trial court erroneously determined

that Brenham Ready Mix substantially complied with the statutory requirement to

provide timely written notice to Stability Homes, the general contractor, pursuant



                                         17
to Property Code section 53.056.           Because Brenham Ready Mix did not

substantially comply with the statutory notice requirements with regard to its lien

for ready-mix concrete, we hold that that lien is invalid. See Wesco Distrib., 150

S.W.3d at 561 (affirming trial court’s decision that materialman’s lien was invalid

for failure to substantially comply with statutory notice requirements).

      We sustain the individual homeowners’ second issue in its entirety.

                              Enforcement of the Liens

      In their first issue, the individual homeowners contend that the trial court

erred by enforcing the full amount of both of Brenham Ready Mix’s materialman’s

liens, which covered concrete and fill dirt delivered and used on all thirty-seven

lots in Phase Three, against their individual lots. 6 They argue that the extent of

Brenham Ready Mix’s lien on their individually-owned lots is limited by the

proportionate share of the entire property represented by their lots as defined on the

recorded subdivision plats and that the total amount of the lien against the entire

property cannot be applied to each lot sold individually. Instead, the trial court can

only apply the value of the proportion of the materials used on each lot in relation

to the total value of the lien on the entire property.



6
      Because we have already held that Brenham Ready Mix’s lien for concrete is
      invalid due to its failure to substantially comply with the statutory notice
      requirements, we analyze only whether the entire amount of Brenham Ready
      Mix’s fill-dirt lien can be enforced against each individual lot.

                                           18
      Brenham Ready Mix contends that because it delivered materials to the

project pursuant to a single contract with the contractor, the contract did not

designate which materials were to be used on which lot, and it was not paid by the

lot, the lien may extend to more than one lot and the aggregate amount of the lien

may be applied to each lot. The individual homeowners respond that the amount

of actual materials used on the entire property is immaterial. It is the proportionate

share of the value of the lien that is at issue, not the proportionate value of the

actual amount of materials used. We agree with the individual homeowners.

      Texas Property Code Chapter 53 governs materialman’s liens. See TEX.

PROP. CODE ANN. §§ 53.001–.287 (Vernon 2014). A mechanic’s or materialman’s

lien is a “lien created by law on real estate, and the improvements thereon, to

secure persons who, within the intent of the law, have labored or furnished

material, machinery, fixtures, or tools to erect or repair the improvements.”

Efficient Energy Sys., Inc. v. J. Hoyt Kniveton, Inc., 631 S.W.2d 538, 540 (Tex.

App.—El Paso 1982, no writ). Courts liberally construe the statutes providing for

materialman’s liens “for the purpose of protecting laborers and materialmen.”

Sledge, 653 S.W.2d at 288.

      A materialman has a lien on property if it furnishes labor or materials for

construction of a house, building, or improvement, and it “furnishes the labor or

materials under or by virtue of a contract with the owner or the owner’s agent,



                                         19
trustee, receiver, contractor, or subcontractor.” TEX. PROP. CODE ANN. § 53.021(a)

(Vernon 2014). Section 53.022(a) provides that “[t]he lien extends to the house,

building, fixtures, or improvements, . . . and to each lot of land necessarily

connected or reclaimed.”       Id. § 53.022(a) (Vernon 2014) (emphasis added).

Section 53.022(c) specifies that “[a] lien against land in a city, town, or village

extends to each lot on which the house, building, or improvement is situated or on

which the labor was performed.” Id. § 53.022(c). The Property Code does not

define “lot.” The Texas Supreme Court has stated, however, that the term “lot”

“usually refers to a parcel of land as marked on a plat or survey.” Valdez v.

Diamond Shamrock Ref. & Mktg. Co., 842 S.W.2d 273, 275 (Tex. 1992). The

Property Code also does not define “necessarily.” The construction of that term is

a matter of first impression for this Court.

      The law in this area derives from the Texas Supreme Court’s 1887 decision

in Lyon v. Logan, a case decided well prior to the enactment of Property Code

Chapter 53. In Lyon, the Texas Supreme Court held that “[w]hen materials have

been furnished under a single contract for buildings erected on two or more

contiguous lots owned by the person to whom the material is furnished, we see no

reason why the lien should not attach to all the lots.” 5 S.W. 72, 74 (Tex. 1887).

The court reasoned that, when materials are furnished to multiple lots owned by

the same person or entity, the property owner controls how much of the materials



                                          20
are used on each lot, and if the owner does not make separate contracts for each

lot, “he cannot be heard to say that a lien does not attach upon all the lots upon

which the material is used.” Id.

      The Texas Supreme Court later emphasized that the land, even if divided or

platted into multiple lots, must be continuous and must be treated as one unit under

the contract for the materialman’s lien to attach to all. Guar. Sav. Loan & Inv. Co.

v. Cash, 91 S.W. 781, 783 (Tex. 1906) (holding that lien attached to two

contiguous lots for which improvements were contracted but did not attach to non-

contiguous lot on which improvements were made); see also Oil Field Salvage Co.

v. Simon, 168 S.W.2d 848, 853 (Tex. 1943) (holding that “[w]here different lots or

tracts of land are contiguous, and are treated as a single tract, the lien statutes do

not require the affidavit and account to stipulate on which tract the material was

delivered or used”; and that lien attaches to whole).

      The Texas Supreme Court revisited the issue of the scope of the lien in

Valdez. In Valdez, the property owner owned a 7.9 acre tract of land, on which

Valdez poured and fabricated concrete pursuant to a subcontract on the entire tract

while it was singly owned. 842 S.W.2d at 274. While Valdez was working at the

property, the owner replatted the land into a 7.1 acre tract and a 0.8 acre tract and

sold the 0.8 acre tract to Diamond Shamrock. Id. All of Valdez’s work occurred

on the 7.1 acre tract, but he claimed a lien covering the entire 7.9 acres to which he



                                         21
had agreed to supply concrete.        Id.    The Texas Supreme Court ultimately

concluded that the term “lot,” as used in section 53.022, “refers to a single tract of

land as recorded in the county deed records” and held that Valdez had a properly

perfected lien that extended “to the lot that existed when construction began—the

entire undivided 7.9 acres.” Id. at 275. The court also stated that a financing

agreement reflecting the division of the property, which had been entered into

before construction began and which was not filed in the real property records, did

not “serve the same legal purposes of a duly recorded replatting,” and, as a result,

Valdez “had no reason to believe anything other than that Opus owned the 7.9-acre

tract as an undivided lot.” Id.; see also Habitat, Inc. v. McKanna, 523 S.W.2d 787,

789 (Tex. Civ. App.—Eastland 1974, no writ) (holding that trial court correctly

applied full amount of lien to forty-two lots on which materialman provided

plumbing materials to owner for townhouses).

      All of the foregoing cases hold that a materialman’s lien attaches to the

entire contiguous property, or tract, on which the owner contracted to have the

materials used.    But none addresses the issue presented by this case: the

enforcement of the value of a lien that attached to undivided property against

subsequent purchasers of a specified portion of the tract, here the subsequent

owners of individual lots in a subdivision platted into individual lots prior to the




                                            22
delivery of the materials but sold after the material had been supplied to the entire

undivided property.

      Brenham Ready Mix contends that because the lots in Phase Three were

contiguous, because it delivered the materials to the project pursuant to a single

contract, and because the contract did not specify the amount of materials to be

used on each specific lot, the entire amount of the fill-dirt lien can be enforced

against any given individual lot.     We agree that the lien attached to all the

properties. The law established in Lyon and its progeny is clear: a materialman

who provides goods and services to a property owner may place a lien for the value

of unpaid materials and labor on all the “necessarily connected” lots, i.e., all lots

that are contiguous and owned by a single owner at the time the work is done. See

Lyon, 5 S.W. at 74. But the issue is not whether the lien could be placed on the

entire property to which materials were supplied when all the lots were contiguous

and the property was owned by a single owner. The issue is whether the lien may

be enforced in its entirety against the subsequent purchasers of individual lots of

the property.

      As the Texas Supreme Court noted in Cash, a case which involved two

contiguous lots and one non-contiguous lot,

      The leading purpose running through [the predecessor statutes to
      Property Code Chapter 53] is to secure persons furnishing labor or
      materials in improving land by a lien upon that into which the labor or
      material has entered; i.e., the structures and the land to which they are

                                         23
      attached. . . . Evidently the statute contemplates one improvement,
      constituting an entirety, to be affected by the lien to secure the value
      of the work, material, etc., which made it, and not that one
      improvement is to be charged [with] the cost of an entirely different
      one.

91 S.W. at 782 (emphasis added). In discussing Lyon, the court noted that several

lots “constituted one continuous body or area which the owner, disregarding

artificial divisions, had the right to treat as a unit.” Id. at 783. The court then

turned to whether the lien could be extended to the third, non-adjoining lot. The

court noted that “[t]he lien is not given by contract but by the statute, and that does

not make the character of the contract at all important.” Id. The court stated:

      [The statute] attaches the lien to an improvement upon land, treating
      the land and the improvement as one, for the labor and material which
      have gone into such improvement, and because they have gone into it,
      and not because of the particular form of contract under which it was
      done. The lien is given upon the house, building, improvement, etc.,
      and upon the ‘lot or lots’ of land, or the ‘tract’ of land necessarily
      connected therewith. This refers the inquiry to the facts existing and
      not to the contracts of the parties. The contract cannot change the
      actual situation of parcels of land separated from each other by
      intervening lands and make them one; nor can it locate upon or
      necessarily connect with one an improvement actually made on the
      other, and yet this would have to be done in order, under the terms of
      the statute, to give the lien claimed upon all for improvements upon
      each.

Id. (emphasis added). The supreme court reversed the judgment extending the lien

to all three lots and remanded the case to give the materialman an opportunity to

establish “a lien upon each of the lots with its improvement for the price of the

labor and material expended on it.” Id.

                                          24
      Here, it is undisputed that the concrete and fill dirt delivered to the

Brookside Meadow subdivision were all contracted for by the then sole owner of

the entire property and were intended by the owner to benefit the entire property.

However, before Brenham Ready Mix began delivering materials to Phase Three,

Art DePue, the owner of the property, filed a plat and a replat of Phase Three with

the Waller County Clerk’s office. These documents divided Phase Three into

thirty-seven individual lots.   See TEX. PROP. CODE ANN. § 13.002(1) (Vernon

2014) (“An instrument that is properly recorded in the proper county is . . . notice

to all persons of the existence of the instrument . . . .”). The plat changed the

operative existing facts. See Cash, 91 S.W. at 782. Thus, in contrast to Valdez, at

the time Brenham Ready Mix delivered the materials to the project, although

DePue was still the record owner of the property, he had already platted and

replatted the property into thirty-seven separate lots for the Brookside Meadow

subdivision. Brenham Ready Mix was therefore on notice that DePue owned the

property as divided lots that composed the Brookside Meadow subdivision and that

the plat contemplated the sale of the lots as individual lots to individual property

owners. In other words, Brenham Ready Mix was on notice that ownership of the

property on which the lien had attached would not necessarily remain in the same

owner’s hands but might be transferred to a single future owner of the whole or

many individual owners of separate portions of the property.



                                        25
      Thus, although the lots of Phase Three were contiguous and a single contract

governed Brenham Ready Mix’s delivery of materials to the project, allowing

Brenham Ready Mix to treat all thirty-seven lots of the subdivision as one, such

that its lien attached to all of the lots in Phase Three, without regard for the amount

of the materials used to improve the particular lot, it does not follow that Brenham

Ready Mix could enforce the full amount of its lien against any and all subsequent

purchasers of individual lots.

      It is undisputed that the materials delivered by Brenham Ready Mix to the

project were not solely applied to one particular lot in Phase Three; instead, the

materials were applied to each of the thirty-seven lots. We therefore conclude,

under the particular facts of this case, that Brenham Ready Mix may not enforce

the full value of its fill-dirt lien against any individually-owned lot but may instead

only enforce its fill-dirt lien to the proportion the individual improved lot bears to

the entire tract.    See id. at 782 (“Evidently the statute contemplates one

improvement, constituting an entirety, to be affected by the lien to secure the value

of the work, material, etc., which made it, and not that one improvement is to be

charged [with] the cost of an entirely different one.”).

      Were we to hold otherwise, a cascade of absurd and unreasonable results

would follow in violation of the rules of statutory construction and the case law

applying those rules. See TEX. GOV’T CODE ANN. § 311.021(3) (Vernon 2013)



                                          26
(“In enacting a statute, it is presumed that . . . a just and reasonable result is

intended . . . .”); In re Blair, 408 S.W.3d 843, 848 (Tex. 2013) (orig. proceeding)

(“[C]ourts will not interpret statutes to work absurd results.”).

      First, the purchaser of an individual unit in a multi-million-dollar complex of

condominiums or a mixed-use development or a subdivision could—as here—be

held liable for the entire value of a debt incurred by someone else for the benefit

not simply of the individual property purchased but for all contiguous property in

the project benefitted by the original owner’s contract with a materialman. The

result could be—as it is here—the court-ordered enforcement of the entire value of

the lien against an individual lot owner for many times the value of the labor and

materials proportionately supplied to the property purchased by that individual lot

owner. And the result could well be—again, as it is here—the court-ordered sale

of the individual lot owner’s property to satisfy a debt incurred by another on a

much larger piece of property than that owned by the person against whom the

debt is enforced.

      Such a result also allows for multiple recoveries of the same total value of

the lien against multiple individual property owners, violating the one-satisfaction

rule. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 303 (Tex. 2006)

(“‘There can be but one recovery for one injury, and the fact that . . . there may be




                                          27
more than one theory of liability[] does not modify this rule.’”) (quoting Stewart

Title Guar. Co. v. Sterling, 822 S.W.2d 1, 8 (Tex. 1991)).

      For all of the foregoing reasons, we conclude that the trial court erroneously

determined that Brenham Ready Mix could enforce the full value of its fill-dirt lien

against either of the current individual homeowners’ lots. And we find support for

our conclusion as far back as Lyon. In that seminal 1887 case, the supreme court

held, “So long as [the owner of the entire property] treats each lot as one property,

by making one contract for material to be used on all of them . . . , so long may the

material-man treat the lots as one piece of property in fixing his lien upon it.”

Lyon, 5 S.W. at 74.

      We now hold that the converse is also true. Once the owner no longer treats

the lots encumbered by a materialman’s lien as one piece of property by retaining

ownership of the whole, then, although the lien is fixed upon the entire property

and its scope extends to future purchasers, the value of the debt secured by any

individual lot, or individual portion of the property divided and sold to another

owner, must be proportioned to the percentage of the individual property or lot

purchased relative to the entire property subject to the lien.

      Because the debt of an individual purchaser of a lot or individual portion of

the encumbered property must be treated proportionately to the area of the property

purchased, it follows that the debt is not apportioned to the value of the actual



                                          28
amount of fill-dirt supplied to the individual lot against which the lien is sought to

be enforced when the property was undivided and owned by one owner. This

conclusion too is supported by Lyon. See id. (stating that, although lien attached to

all contiguous lots that benefitted from materials and labor supplied under owner’s

contract with materialman, “it would be exceedingly unreasonable to require the

person who furnishes the material in such a case to ascertain how much of the

material [was] placed in each house,” as this was “a matter under the control of the

owner of the property improved”).

       We hold that when an improvement has been made to an entire undivided

property, a materialman’s lien has attached to the whole, and an individual portion

of the encumbered property, such as a lot, is subsequently sold to an individual

homeowner or lot owner, the court must apportion the value of the lien to the

percentage of the property purchased by that individual owner to determine the

value of the lien enforceable against the individual owner. We therefore hold in

this case that the percentage of the value of the fill-dirt lien for which the

individual homeowners are liable is restricted to the individual homeowner’s pro

rata share of the total value of the lien.

       We sustain the individual homeowners’ first issue.7



7
       Because we conclude that Brenham Ready Mix’s concrete lien is invalid and that
       the trial court improperly enforced the full amount of the fill-dirt against each of

                                             29
                                     Conclusion

      We reverse the judgment of the trial court awarding Brenham Ready Mix

foreclosure of the full amount of both of its liens and attorney’s fees, render

judgment that Brenham Ready Mix’s concrete lien is invalid, and remand the case

to the trial court to determine the dollar amount of the fill-dirt lien that can be

enforced against each of the individual homeowners’ properties.




                                               Evelyn V. Keyes
                                               Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.




      the current homeowners’ properties, we vacate the trial court’s award of attorney’s
      fees in favor of Brenham Ready Mix.


                                          30
