

 
NO. 07-09-0018-CV
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL C  
 
 APRIL 13, 2011

 
 

 
 
MARK ADAMS BROWN, APPELLANT
 
v.
 
CLAY CROOKS, INDIVIDUALLY AND DOING BUSINESS AS CLAY CROOKS ROOFING AND
INSULATION, APPELLEE 

 
 

 
 FROM THE 340TH DISTRICT
COURT OF TOM GREEN COUNTY;
 
NO. C-07-1039-C; HONORABLE BARBARA L. WALTHER, JUDGE

 
 

 
Before QUINN, C.J., and HANCOCK and
PIRTLE, JJ.
 
 
MEMORANDUM OPINION
            Appellant, Mark Adams Brown, appeals from
a judgment entered in favor of Appellee, Clay Crooks, Individually and d/b/a
Clay Crooks Roofing and Insulation, in a suit to enforce a mechanic's and
materialman's lien following a bench trial. 
In support, Brown asserts the trial court erred by (1) failing to
specify in its Judgment and Findings of Fact and Conclusions of Law whether
Crooks's lien was a subcontractor’s lien or an original contractor's lien, (2)
finding Crooks has any lien other than a subcontractor's lien, (3) basing its
judgment on a subcontractor's lien, (4) referring to Crooks's lien in its
Judgment as a recorded mechanic's lien, (5) failing to quantify the full amount
of the lien in its Findings of Fact and Conclusions of Law, (6) failing to
specify the amount of damages in its Findings of Fact and Conclusions of Law,
(7) awarding damages recoverable on a subcontractor's lien, (8) finding legally
sufficient evidence to award $5,200 as damages to enforce a subcontractor's
lien, (9) awarding any damages recoverable on a subcontractor's lien because
Crooks did not plead such damages, (10) rendering judgment in personam against Brown because of insufficient evidence he
contracted with Crooks, and (11-13) finding legally sufficient evidence to
justify a damages award based on quantum
meruit.  We reverse and render in
part and affirm in part. 
Background
            In
July 2007, Crooks filed his Original Petition seeking to enforce a mechanic's
and materialman's lien on property purchased by Brown located at 518 Pope, San
Angelo, Texas (the Property).[1]  In addition to seeking enforcement of the
lien, Crooks sought a judgment based on quantum
meruit.    
            The
following evidence was adduced at a bench trial held in July 2008.[2]  Victor Samaniego, Sr., owned the Property
from October 1992 through January 2007. 
In January 2006, Samaniego executed a Durable Power of Attorney and
appointed Emily R. McDonald as his agent and attorney-in-fact.  The Durable Power of Attorney was recorded
with the County Clerk of Tom Green County, Texas on January 7, 2006.
            On
July 6, 2006, McDonald signed a contract with Clay Crooks to repair the roof of
a building on Samaniego's Property.    Under the contract, Crooks agreed to remove a
composition roof and wood shingles, redeck, and reshingle the roof with twenty
year shingles.  In return, McDonald
agreed to pay Crooks $5,200.  Crooks
performed the work but neither McDonald nor Samaniego made any payment on the
contract price.
            On
August 7, 2006, Crooks filed an affidavit with the County Clerk of Tom Green
County, claiming a mechanic's and materialman's lien on the Property in the
amount of the unpaid claim, $5,200.[3]  The affidavit stated, in pertinent part, as
follows:
2.         The last name and the
last known address of the owner or reputed owner ("Owner") of the
real property and improvements on which this claim is made is Victor Samaniego
. . . .
*   *   *
5.         Claimant [Crooks]
furnished the above-described labor and materials under a contract with Emily
R. McDonald, whose last known address is 2530 North US Hwy. 277, Bronte, Texas
76933.
6.         The name and last known
address of the original contractor on the above-referenced project are (sic) Emily
R. McDonald, 2530 North US Hwy. 277, Bronte, Texas
76933.
 
            In
January 2007, Brown purchased the Property. 
Prior to purchasing, he examined the title and, in his examination, discovered
Crooks's lien affidavit filed with the County Clerk.  In February, Crooks sent Brown a letter
advising Brown of his claimed lien and attached a copy of his affidavit.  When subsequent efforts to collect the
contract price proved to be unsuccessful, Crooks filed suit on July 31,
2007.  During a bench trial, Brown
testified that he believed Crooks's affidavit sought to enforce a
subcontractor's lien rather than an original contractor's lien.  
            At
the trial's conclusion, the trial court awarded Crooks a judgment against Brown
for $5,200, the full amount of the lien, and granted foreclosure on the
Property.  Per Brown's request, the trial
court subsequently issued Findings of Fact and Conclusions of Law that affirmed
its judgment.  This appeal followed.  
Discussion
            Essentially,
at trial, Brown disputed the nature of Crooks's lien, i.e., whether Crooks's
Affidavit noticed an original contractor's lien or a subcontractor's lien.  Brown did not file any cross-claim or
challenge whether Crook complied with the statutory requirements for claiming a
mechanic's and materialman's lien under Texas Property Law.  See Tex.
Prop. Code Ann. §§ 53.001-53.260 (West 2007).[4]  On appeal, nearly all of his thirteen issues
stem from this dispute.
            
            Issue One
            Brown does not cite any case law or
other authority in support of his contention that the trial court was required to state in its Findings of
Fact and Conclusions of Law whether Crooks's lien was an original contractor's
lien or subcontractor's lien.  Neither
did Brown object to the findings and conclusions entered or seek clarification
of the language in the Findings of Fact and Conclusions of Law.  See Tex. R. Civ. P. 298.
            Texas
Rule of Appellate Procedure 38.1(i) requires that an appellant's brief "contain
a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record."  To comply, an appellant must "provide us
with such discussion of the facts and authorities relied upon as may be
requisite to maintain the point at issue"; Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d
118, 129 (Tex.App.--Houston [1st Dist.] 2002, pet. denied) (citing Franklin v. Enserch, Inc. 961 S.W.2d
704, 711 (Tex.App.--Amarillo 1998, no pet.)), and "[i]ssues on appeal are
waived if an appellant fails to support his contention by citations to
appropriate authority or cites only to a single non-controlling
case."  Abelnour v. Mid Nat'l Holdings, Inc.,
190 S.W.3d 237, 241 (Tex.App.--Houston [1st Dist.] 2006, no pet.) (citing Wolfe v.
C.S.P.H., 24 S.W.3d 641, 647 (Tex.App.--Dallas 2000, no pet.)).  Hence, Brown's first issue was insufficiently
briefed, and therefore, waived.    
            That
said, however, the clear implication from the trial court's Findings of Fact and
Conclusions of Law is that the trial court determined Crooks's lien to be an
original contractor's lien and granted Crooks complete relief with the
exception of his prayer for attorney’s fees. 
Although we find issue one was waived, we will consider Brown's legal
arguments regarding the statutory differences between an original contractor's
lien and a subcontractor's lien in our consideration of Brown's second issue. 
            Issue Two
            The mechanic's and materialman's lien
statutes, as well as relevant case law, mandate that a lien affidavit should
not be judged by a strict standard but by whether the claimant substantially
complied with the statutory requirements. 
See § 53.054 (stating that
lien affidavits "must contain substantially" the required information);
Occidental Neb. Fed. Sav.
Bank v. East End Glass Co., 773 S.W.2d 687, 688 (Tex.App.--San Antonio
1989, no writ) ("For purposes of perfection, only substantial compliance
is required in order to fulfill the requirements of the mechanic's and
materialman's lien statutes.")  This
substantial compliance standard is consistent with the liberal construction
generally afforded to mechanic's and materialman's lien statutes.  See,
e.g., First Nat'l Bank in Dallas v. Whirlpool Corp., 517 S.W.2d 262, 269
(Tex. 1974) ("It is well settled that the mechanic's and materialman's
lien statutes of this State will be liberally construed for the purpose of
protecting laborers and materialmen.")
            For
purposes of mechanic’s or materialman’s liens, an "original
contractor" is a "person contracting with an owner either directly or through the owner's agent."  § 53.001(7) (emphasis added).  A subcontractor is "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."  §
53.001(13).  Because Crooks contracted
directly with McDonald, an agent of the owner, Samaniego, to provide labor and
materials to repair the roof of Samaniego's residence, Crooks was an original
contractor.
            Brown
asserts, nevertheless, that Crooks's statement in the affidavit filed with the
County Clerk identifying McDonald as the original contractor and a reference to
Crooks being a subcontractor in the notice letter sent to Samaniego and
McDonald[5]
constitute judicial admissions that Crooks was in fact a subcontractor.  Form requirements for mechanic's and materialman's
lien affidavits are to be liberally construed and substantial compliance with
the mechanic's and materialman's lien statute authorizing the lien is
sufficient.  See Whirlpool Corp., 517 S.W.2d at 269; Occidental Neb. Fed. Sav.
Bank., 773 S.W.2d at 688.  Regarding the giving of notice of the claimed
lien, there are no informational requirements other than requiring that the
person filing the affidavit "send a copy of the affidavit by registered
mail."  § 53.055.  Accordingly, we decline to treat the
statement in Crooks's affidavit, or the letter received by
the prior owners accompanied by a copy of the affidavit, as binding judicial
admissions, "but instead look at the actual relationship of the
parties and the purpose of the statute." 
Truss World, Inc. v. ERJS Inc., 284
S.W.3d 393, 395-96 (Tex.App.--Beaumont 2009, pet. denied) (where the actual
relationship of the parties is that of owner and original contractor, the fact
that the original contractor referred to himself as a subcontractor in his lien
affidavit was not a judicial admission and the statutory requirements for an
original contractor's lien affidavit were satisfied).  Issue two is overruled.


Issues Three Through Nine
            In no more than four sentences each
in issues four and eight, three sentences in issue three, two sentences in
issue nine, and one sentence each in issues five through seven, Brown asserts these
issues without any substantive analysis or citation to applicable legal
authority.  As a result, these issues are
waived.  See Burnett Ranches, LTD v. Cano Petroleum, Inc., 289 S.W.3d 862,
870-71 (Tex.App.--Amarillo 2009, pet. denied) (conclusory or unexplained
arguments without substantive analysis result in waiver of the issues on appeal);
Morrill v. Cisek, 226 S.W.3d 545, 548
(Tex.App.--Houston [1st Dist.] 2006, no pet.) (brief conclusory statements
unsupported by legal citations on appeal result in waiver); Kosowska v. Kahn, 929 S.W.2d 505, 508-09
(Tex.App.--San Antonio 1996, writ denied) (failure to cite any authority on an
issue constitutes waiver of alleged error); Ralston
Purina Co. v. McKendrick, 850 S.W.2d 629, 637 (Tex.App.--San Antonio 1993,
writ denied) (point of error not supported by argument or authorities is
waived).  Brown's issues three through nine
are waived.
            Issue Ten
            Although also lacking in substantive
analysis or citation to applicable legal authority, in the interest of justice,
we choose to address Brown's tenth issue wherein he avers that the trial court
erred in rendering judgment against him individually.  The record establishes that Brown never had a
contractual relationship with Crooks. 
The record further establishes that Brown purchased the Property after
the work the subject of Crooks's lien affidavit was performed and never assumed
personal liability for that work.  Because
Crooks has failed to establish a legal theory or factual basis upon which Brown's
personal liability can be established, we sustain issue ten and reverse the
trial court's judgment as it pertains to Brown's personal liability.
            Issues Eleven Through
Thirteen
            Issues eleven through thirteen assert
that, if the trial court based its
order of foreclosure on quantum meruit, the trial court erred by finding
legally sufficient evidence to justify a damages award based on Crooks's additional
legal theory for recovery.  In overruling
issue two, we concluded that, as a matter of law, Crooks's affidavit was
sufficient to place Brown on notice of Crooks's lien and that the trial court
properly enforced the lien in its judgment. 
As such, we pretermit an analysis whether Crooks's additional legal theory
may also provide a basis for his recovery. 
Accordingly, Brown's issues eleven through thirteen are pretermitted.  See Tex. R. App. P. 47.1.
Conclusion
            The
trial court's judgment is reversed as to Brown's personal liability and
judgment is hereby rendered that Crooks take nothing as to Brown, individually.  In all remaining respects, the judgment of
the trial court is affirmed.
 
                                                                                                Patrick A. Pirtle
                                                                                                      Justice  




[1]The property was described as
follows:
The South 60 feet of Lots 6 and 7, Block 24, Ellis Addition
to the City of San Angelo, Tom Green County, Texas, according to the map or
plat of said Addition of record in the office of the County Clerk, Tom Green
County, Texas.  Said property more
commonly known as 518 Pope, San Angelo, Texas.


[2]Our recitation of the facts mirrors
those established in the trial court's Findings of Fact.


[3]Crooks also mailed a copy of the Affidavit by
certified mail return receipt requested to Samaniego and McDonald.


[4]For convenience, references to
provisions of the Texas Property Code throughout the remainder of this opinion
will be cited as "section ___" or "§ ___."


[5]The notice letter to Brown did not
refer to Crooks as a subcontractor.


