

                           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.



