                                       NO. 07-11-0163-CV

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                             PANEL E

                                        AUGUST 9, 2012

                            ______________________________


                   JERRY ULMER D/B/A LONGHORN CONSTRUCTION
                          AND MAINTENANCE, APPELLANT

                                                 V.

                    SAM MOORE AND SHARIE MOORE, APPELLEES

                          _________________________________

               FROM THE 110TH DISTRICT COURT OF FLOYD COUNTY;

                   NO. 9679; HONORABLE WILLIAM P. SMITH, JUDGE

                            _______________________________

Before HANCOCK and PIRTLE, JJ. and BOYD, S.J.1


                                  MEMORANDUM OPINION


       Appellant, Jerry Ulmer d/b/a Longhorn Construction and Maintenance, appeals

from entry of summary judgment in favor of Appellees, Sam Moore and Sharie Moore,

in Ulmer’s action for breach of a construction contract. In support, Ulmer asserts: (1)


_____________________
1
 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t Code
Ann. § 75.002(a)(1) (West 2006).
the Prompt Payment for Contractors and Subcontractors Act2 permitted Ulmer to charge

the Moores 18% interest on amounts past due under the construction contract; (2) there

was no loan of money from Ulmer to the Moores that made the Texas Finance Code’s

interest provisions3 applicable; (3) his claim for prejudgment interest did not subject him

to usury penalties; and (4) he did not extend credit or advance funds to the Moores that

made the usury statutes applicable. We reverse and remand for further proceedings

consistent with this opinion.


                                            BACKGROUND


        In August 2000, Ulmer and the Moores entered into a written contract whereby

Ulmer agreed to deliver 1,500 cubic yards of mixed railroad ballast rock and caliche to

improve the road and driveway to the Moores’ residence in return for three progress

payments totaling $10,500.00.4 The contract made no provision for the payment of

interest.


        In December 2000 and August 2001, Ulmer sent invoices to the Moores showing

a balance due of $7,000.00. Each invoice indicated that payment was due upon receipt

of the invoice and amounts past due would bear interest at the rate of 1.5 percent per



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2
 See Tex. Prop. Code Ann. §§ 28.001-28.010 (West 2000). Throughout the remainder of this opinion, we
will refer to the Texas Property Code as “section ___” or “§ ___” and we will refer to the Prompt Payment
for Contractors and Subcontractors Act simply as “the Act.”
3
Tex. Fin. Code Ann. §§ 302.001-305.104 (West 2006).
4
 A $3,500.00 deposit was due upon acceptance of the contract and two installments of $3,500.00 each
were due as specified deliveries were completed. Per the contract, Ulmer was not responsible for any
machine work and labor.


                                                   2
month or 18 percent annually.5 In October 2001, the Moores made a second payment

of $3,500.00. In December 2002, Ulmer sent a formal demand letter to the Moores’

attorney indicating that, if the Moores did not pay the balance then owing ($5,465.51),

he would file a collection suit. In June 2004, Ulmer filed his Original Petition, which was

subsequently amended to seek collection of the principal balance of $3,500.00, together

with attorney’s fees, costs and “pre- and post-judgment interest at the highest rate

allowed by law.” The Moores responded by alleging Ulmer breached their contract and

negligently performed the work. The Moores further asserted that the interest sought by

Ulmer was usurious and they were entitled to credit/offset.


       In November 2010, the Moores moved for summary judgment contending Ulmer

had charged a usurious rate of interest under the Texas Finance Code by way of the

two invoices and the demand letter. As a result, they asserted they were entitled to a

take nothing judgment against Ulmer and the recovery of their attorney’s fees. Ulmer

responded that the Texas Finance Code was inapplicable and, as a contractor, the Act

authorized him to charge 18% interest on the outstanding balance due.


       In March 2011, the trial court granted the Moores' motion for summary judgment.

The trial court reasoned that the interest rate sought by Ulmer in his demand letter was

usurious and, as a result, he forfeited the remaining unpaid principal balance together

with any interest. No attorney’s fees were awarded to either party. Ulmer filed a timely

notice of appeal. The Moores did not. This appeal followed.

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5
 Ulmer concedes in his affidavit filed in response to the Moores’ Motion for Summary Judgment that “the
Moores never agreed to the payment of the invoices,” “never agreed to the interest charge in the
invoices,” and “[t]here was no amendment or modification of the original contract as a result of the
sending of the invoices.”

                                                  3
                                       DISCUSSION


      The crux of this appeal is the applicability of the Act to the facts of this case. The

trial court found that the Act was inapplicable to Ulmer’s claim for payment of past due

amounts and, as a result, the interest he sought to collect by way of the invoices and

demand letter was usurious under the Texas Finance Code. During closing arguments

before this Court, the Moores conceded that a claim for usury would not exist if the Act

were applicable. We find the Act does apply.


                                  STANDARD OF REVIEW


      We review the trial court’s summary judgment de novo. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Summary judgment is appropriate if the

movant establishes there is no genuine issue of material fact and judgment should be

granted as a matter of law. Tex. R. Civ. P. 166a(c); Diversicare General Partner, Inc. v.

Rubio, 185 S.W.3d 842, 846 (Tex. 2003).           In reviewing a trial court’s summary

judgment, we take as true all evidence favorable to the nonmovant and indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. Dorsett, 164

S.W.3d at 661; Providence Life and Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215

(Tex. 2003).


      Statutory construction is a legal question we also review de novo.            City of

Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). In construing statutes, we

ascertain and give effect to the Legislature’s intent as expressed by the language of the

statute. See State v. Shumate, 199 S.W.3d 279, 284 (Tex. 2006). We use definitions

prescribed by the Legislature and any technical or particular meaning the words have

                                            4
acquired. Tex. Gov’t Code Ann. § 311.011(b) (West 2005). Otherwise, we construe the

statute’s words according to their plain and common meaning; Texas Dep’t of Transp. v.

City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004), unless a contrary intention is

apparent from the context; Taylor v. Fireman’s and Policeman’s Civil Serv. Comm. of

City of Lubbock, 616 S.W.2d 187, 189 (Tex. 1981), or unless such a construction leads

to absurd results. Univ. of Tex. S. W. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 356

(Tex. 2004).   When a statute’s language is clear and unambiguous, however, it is

inappropriate to resort to rules of construction or extrinsic aids to construe the language.

City of Rockwall, 246 S.W.3d at 626.


                                         THE ACT


       The Moores contend the Act does not apply to the circumstances of this case

because Ulmer was a materialman, not a contractor. They also contend that to qualify

as a contractor Ulmer was required to provide labor or work to improve the property, not

simply furnish materials. Under the Act, a “contractor” is a “person who contracts with

an owner to improve real property or perform construction services for an owner.” §

28.001(1). An “owner” is a person “with an interest in real property that is improved, for

whom an improvement is made, and who ordered the improvement to be made.” §

28.001(4). An "improvement" includes "constructing a driveway or roadway," § 28.001

(3), and to "improve" means, among other things, to "furnish any material" for the

purpose of "construct[ing] a driveway or roadway." § 28.001 (2)(C)-(D).           As such,

according to the clear meaning of the Act, the Moores are “owners” and Ulmer is a

“contractor” because they contracted with him to deliver materials, i.e., 1,500 cubic



                                             5
yards of mixed railroad ballast rock and caliche, to construct or improve a driveway or

roadway leading to their residence.


        Under the Act, if an owner “receives a written payment request from a contractor

for an amount that is allowed to the contractor under the contract for properly performed

work or suitably stored or specially fabricated materials, the owner shall pay the amount

to the contractor . . . no later than the 35th day after the owner receives the request.” §

28.002(a).     Further, “[a]n unpaid amount required under [the Act] begins to accrue

interest on the day after the date on which the payment becomes due” and “bears

interest at the rate of 1 ½ percent each month.” § 28.004(a)-(b).6


        Ulmer’s suit is premised on a claim against the Moores for nonpayment under a

contract requiring Ulmer to deliver mixed railroad ballast rock and caliche for the

purpose of improving a road and driveway to the Moores’ residence. As such, Ulmer is

entitled to bring his action under the Act; § 28.005, as well as seek its remedies. See

All Seasons Window and Door Manufacturing, Inc. v. Red Dot Corp., 181 S.W.3d 490,

499, 502 (Tex.App.—Texarkana 2005, no pet.). Further, having found that it is legal for

Ulmer to seek the interest rate provided by the Act, we also find that Ulmer did not

commit usury by sending the invoices and demand letter to the Moores. See Walker &

Associates Surveying, Inc. v. Roberts, 306 S.W.3d 839, 851 (Tex.App.—Texarkana


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6
  Interest on an unpaid amount stops accruing on the earlier of: (1) date of delivery; (2) the date of mailing,
if payment is mailed and delivery occurs within three days; or (3) the date a judgment is entered in an
action brought under this chapter. § 28.004(c). A contractor need only file a claim for general relief to be
entitled to prejudgment interest under section 28.004(c)(3). Talley Construction Co. v. Rodriguez, No. 01-
                                                                                st
03-01147-CV, 2006 Tex. App. LEXIS 2721, at *31-32 (Tex.App.—Houston [1 Dist.] Apr. 6, 2006, no pet.)
                                                                                                       st
(mem. op. on reh’g). See Gordon v. Leasman, 365 S.W.3d 109, 118-19 (Tex.App.—Houston [1 Dist.]
2011, no pet.).


                                                      6
2010, no pet.) (an essential element of a usurious transaction is that the creditor exact a

greater compensation than allowed by law).


        The Moores cite Brazos Concrete Products, Inc. v. Bullock, 567 S.W.2d 877

(Tex.App.—Eastland 1978, no writ) for the proposition that Ulmer is a “materialman”

rather than a “contractor.” Id. at 877-78. Brazos is distinguishable as a sales tax case

where the appellate court was asked to interpret provisions of the Texas Tax Code. Id.

In addition, the language of the Act as it applies in this case is clear and unambiguous.

As such, we need not resort to rules of construction or extrinsic aids to construe its

language. City of Rockwall, 246 S.W.3d at 626.


        The Moores also assert that, because the contract did not specify a rate of

interest for amounts past due, Ulmer may not seek 18 percent interest under the Act,

but is limited to 10 percent interest under the Texas Finance Code. See Tex. Fin. Code

Ann. § 302.001(b) (West 2006) (“The maximum rate or amount of interest is 10 percent

a year except as otherwise provided by law.” (Emphasis added)). In support, the

Moores cite Hoxie Implement Co., Inc. v. Baker, 65 S.W.3d 140 (Tex.App.—Amarillo

2001, pet. denied). Although, like here, the parties in Hoxie did not agree to pay interest

at any particular rate; 65 S.W.3d at 16-17, Hoxie is distinguishable because neither

party raised the applicability of the Act in their contract action.                 The Act expressly

provides that an unpaid amount required thereby “bears interest at the rate of 1 ½

percent each month.” § 28.004(b).7 Further, as to section 302.001(b) of the Texas

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7
 The Act contains no provision requiring parties to enter into a contract providing for the payment of
interest before a party may seek relief under the Act and we will not read such a provision into it. See
generally AMX Enterprises, L.L.P., Inc. v. Master Realty Corp., 283 S.W.3d 506, 511 (Tex.App.—Fort
Worth 2009, no pet.) (op. on reh’g) (where the Act contains no provision for tolling the accrual of interest

                                                     7
Finance Code, in this instance, the 18 percent interest rate is “otherwise provided by

law” per the Act regardless of whether the parties’ contract provided for interest in the

event payments became overdue.


        Accordingly, Ulmer’s first issue is sustained.               Our sustention of issue one

pretermits Ulmer’s remaining issues and the Moores’ cross-point of error. See Tex. R.

App. P. 47.1.


                                             CONCLUSION


        The trial court’s judgment is reversed and the cause is remanded for further

proceedings consistent with this opinion.



                                                         Patrick A. Pirtle
                                                             Justice




______________________

during periods of litigation delay, one may not be supplied by the court). Although the All Seasons court
held that a contract providing for interest “at the maximum rate permitted by applicable law” permitted an
18 percent interest charge on amounts past due under the Act; All Seasons Window, 181 S.W.3d at 497-
99, nowhere did the All Seasons court state that the “maximum rate permitted by law” language was
necessary for a contractor to apply the Act’s 18 percent rate of interest to any amount past due under a
contract.

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