                                   NUMBER 13-11-00199-CV

                                      COURT OF APPEALS

                            THIRTEENTH DISTRICT OF TEXAS

                               CORPUS CHRISTI - EDINBURG


SOUTH TEXAS TRUSS COMPANY, LLC,                                                  Appellant,

                                                     v.

EFRAIN R. LARA,                                                                  Appellee.


                        On appeal from the 444th District Court
                             of Cameron County, Texas.


                                     MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Rodriguez and Garza
               Memorandum Opinion by Chief Justice Valdez

       South Texas Truss Company, LLC (“STTC”), challenges the trial court‟s take-

nothing judgment in favor of Efrain R. Lara.1 By five issues, STTC contends that: (1)

the trial court‟s “judgment is against the great weight and preponderance of the

evidence”; (2) the trial court applied the wrong statute; (3) the trial court “erred in finding


       1
           Lara was pro se at the bench trial and is pro se on appeal.
there was „no evidence‟ of [STTC‟s] failure to provide [Lara] Notice of [STTC‟s] claim by

certified mail and return receipt . . . .”; (4) the trial court‟s finding relating to delivery of

the trusses was erroneous; and (5) the trial court abused its discretion by failing to

award attorney‟s fees to STTC. We affirm.

                                        I.      BACKGROUND

       STTC sued Lara for breach of contract after it claimed Lara failed to pay for

trusses STTC delivered to Lara‟s property located at 1329 Calle Pluton, Brownsville,

Texas. STTC claimed that because Lara was listed as the owner of the property, he

was personally liable for payment for the trusses. STTC sought a foreclosure on the

property pursuant to a mechanic‟s and materialman‟s lien.

       The record shows that Lara‟s mother, Maria Gloria Lara, contracted with Dream

Homes to build a house on the Calle Pluton property.2 The contract with Dream Homes

lists Lara and Maria Gloria as the owners of the property. However, Lara was not a

signatory to the contract with Dream Homes. At a bench trial, Maria Gloria testified that

she entered the contract with Dream Homes to build the house and that she paid Dream

Homes $26,000 to complete the work. According to Maria Gloria, Dream Homes did not

complete the construction of the home. At trial, Lara claimed that he was a stranger to

the contract with Dream Homes and STTC.

       Frank Klinger, STTC‟s authorized representative, testified that he and a delivery

man delivered trusses to 5029 Camellia Drive in Brownsville, Texas, a property also

listed as belonging to Lara.3 Klinger stated that because no one was at the job site


       2
          There is nothing in the record indicating that STTC sued Maria Gloria or Dream Homes
regarding the trusses.
       3
           Klinger explained that a “truss” is “a prefabricated, engineered product that is used in the

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when he made the delivery, he did not get a signature showing that the delivery had

occurred. Klinger then identified a picture as the property located at 5029 Camellia

Drive in Brownsville. Klinger stated that he took the picture. Klinger then pointed out to

the trial court where he believed the trusses had been installed on the property.

        As evidence that the trusses were built and delivered, STTC offered an invoice

stating that the ship date was October 13, 2009, and the total due was $1,874.89. The

invoice is addressed to Dream Homes and contains the Calle Pluton address and the

property‟s legal description. Klinger claimed that payment was due the day after the

trusses were delivered. According to Klinger, he attempted to collect the balance due

from Dream Homes by making “numerous calls” to Dream Homes. Klinger also claimed

that he contacted the owner about the bill.4

        Klinger testified that while attempting to locate the owner of the property, he

“r[a]n into” Maria Gloria, and she informed him that she had entered into a contract with

Dream Homes to build a house on the property.                       Klinger stated that Maria Gloria

showed him her contract with Dream Homes. According to Klinger, Maria Gloria had

“apparently given [Dream Homes] a cash payment of $30,000 almost a year prior to the

house being started,” which Klinger thought was “rather strange.”                         After talking to

someone at Dream Homes who told Klinger Maria Gloria was responsible for paying the

bill to STTC, Klinger filed a lien on the property. The trial court admitted a copy of the

lien filed by Klinger. The lien listed Lara as the owner of the Calle Pluton property and

stated that he was personally liable for payment of the trusses pursuant to a contract



construction of the roof of residential and commercial property.”
        4
            At this point, Lara interrupted Klinger, and stated, “He never contacted me, Your Honor.”


                                                       3
with Dream Homes. The trial court admitted an internet printout from the Cameron

County Appraisal District showing that Lara is listed as the titleholder of the Calle Pluton

property.

        Later on cross-examination, Klinger stated that the trusses were delivered to “Lot

87, Block A, Colonia Galaxia” on October 13, 2009. This is the legal description of the

Calle Pluton property.        However, Klinger admitted that he could not remember the

address where the trusses were delivered. Klinger stated that he did not have the

receipt from the company that built and delivered the trusses, but he claimed that he

paid for the fabrication of the trusses.

        Klinger testified that although he did not personally receive an order for the

trusses, someone at STTC took the order, and he filled it. Klinger was not able to

identify who it was from Dream Homes that placed the order for the trusses or who took

the order for STTC. Klinger simply stated that one of STTC‟s sales truss technicians

took the order. Klinger admitted that STTC did not enter into a contract with Dream

Homes to provide the trusses.5 However, Klinger later stated that the agreement with

Dream Homes was verbal. Klinger did not enter into that verbal agreement with Dream

Homes, and the STTC representative who allegedly entered into the verbal agreement

did not testify at the bench trial. Klinger stated that “[t]he agreement [was] that [STTC]

would be paid soon after the materials were delivered.” However, Klinger admitted that

he did not have any documentation showing that Dream Homes entered an agreement

to pay for the trusses.         Klinger claimed that the invoice showed the terms of the


        5
            Klinger stated that STTC typically did not enter contracts with “new customers or one-time
builders, if it‟s supposed to be a COD or cash deal . . . .” Klinger claimed that the deal with Dream Homes
was a “cash deal” in this case.


                                                    4
agreement with Dream Homes. Klinger explained that he had no written proof that

someone from Dream Homes approved the estimate for the trusses or authorized the

delivery.   Klinger testified that he could not prove the terms of the agreement with

Dream Homes, “Other than the fact that he [representative from Dream Homes] was

sent—he was given that amount before he approved the order.” When asked why

STTC had not sued Dream Homes, Klinger stated he did not know and to ask his

attorney.

       Maria Gloria testified that she entered into a contract with Dream Homes to build

a home on the Calle Pluton property. Maria Gloria acknowledged that she received an

invoice from STTC stating that there was an outstanding balance for delivery of the

trusses. Maria Gloria claimed that she gave the invoice to the representative from

Dream Homes. On re-direct examination, Maria Gloria stated that she resides at 1329

Pluton. The trial court admitted a printout from the Cameron County Appraisal District

showing that Maria Gloria owns the property on Camellia Drive.

       Lara testified that he understood that when people entered into an agreement,

“they make some kind of form, a written contract, that way they can back up what

they‟re saying and how much the agreement was for.” According to Lara, in this case,

STTC did not have any proof showing when the parties agreed that payment for the

trusses would be made. Lara found it unbelievable that someone would “just drop[] off

equipment on the side of the road and just leave.” Lara stated that he did not enter into

a contract with Dream Homes or with STTC.

       During closing argument, STTC claimed that there is no rule requiring a contract

between STTC and Lara. However, STTC acknowledged that “[t]here is only a contract



                                           5
or an agreement between the homeowner and the contractor, which we have as Exhibit

No. 1.” Lara argued that “there is no signature approving anybody‟s decision to actually

make this—these trusses.” According to Lara, without the agreement, there is nothing

to prove that Dream Homes agreed to the terms as set out in STTC‟s invoice. Lara

reiterated that “[t]here is no contract where somebody placed the order. There is no

receipt where somebody received the material. And it‟s in doubt whether the agreement

was to pay like they‟re saying it was paid because there is no signature.”

      After the bench trial, the trial court rendered a take nothing judgment in favor of

Lara. At the request of STTC, the trial court issued the following findings of fact and

conclusions of law:

                                    Findings of Fact

      1.)    Dream Homes contracted with Maria [Gloria] Lara to build a home
             for her at 1329 Calle Pluton.

      2.)    Dream Homes ordered trusses from [STTC].

      3.)    [STTC] specially fabricated trusses for Dream Homes on this
             project.

      4.)    There was no contract between [STTC] and Dream Homes.

      5.)    There is no delivery address on the Delivery List (Exhibit 1).

      6.)    Driver of delivery truck did not know the delivery address and
             contacted plaintiff Klinger.

      7.)    No one was present at site where trusses were delivered except for
             driver and Klinger.

      8.)    Mr. Klinger did not know the address the trusses were delivered to.

      9.)    [Lara] owns at least two homes in Brownsville.

      10.)   [Maria Gloria] Lara did not retain any of the contract prices for the
             home she contracted to have built.

                                            6
       ....

12.)   The plaintiff[‟s] requests for admissions were sent to [Lara] or Maria
       [Gloria] Lara regarding trusses in question and were the only
       documents sent certified or registered that were introduced in
       evidence.

13.)   Verbal attempts were made to contact [Lara] and Maria [Gloria]
       Lara by the plaintiff.

14.)   The notice of lien was filed with Cameron County on the 20 th day of
       the month following delivery of trusses he fabricated.

15.)   There was never a clear indication as to exactly what home exhibit[]
       3 and exhibit[] 4 depicted.

                            Conclusions of Law

1.)    Subchapter K of Chapter 53 of the Property Code applies to
       Residential construction projects.

2.)    53.251 states that a person must comply with subchapter to perfect
       a lien that carries from a claim resulting from a residential
       construction project.

3.)    53.252 states a claimant must give the owner notice by registered
       or certified mail no later than the 15th day of the second month
       following each month in which all or part of claimants specifically
       fabricated material was delivered.

4.)    53.254 to file a lien on a homestead, the person who is to furnish
       the material must execute a written contract setting forth terms of
       the agreement.

5.)    53.056 requires written notice by certified or registered mail to the
       owner of the property by the claimant.

6.)    As a result of there being no evidence of certified mail or registered
       mail giving notice to [Lara] of the claim the lien was not perfected
       and thereby invalid.

7.)    As a result of there not being a contract for the trusses the lien on
       the homestead is not enforceable.




                                     7
        8.)     The testimony of Mr. Klinger did not establish exactly where the
                trusses were delivered because it was unclear.

This appeal followed.

                                 II.     ENTITLEMENT TO THE LIEN

        By their first four issues, STTC appears to argue that STTC proved as a matter of

law that it was entitled to a lien on Lara‟s property interest because he was personally

liable for payment of the trusses.6 Lara argues, on the other hand, that because he was

not a party to the original contract between Dream Homes and Maria Gloria, he is not

personally liable for payment of the trusses. We agree with Lara.

A.      Standard of Review and Applicable Law

        Findings of fact in a bench trial have the same force and effect as findings by the

jury. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); Pulley v.

Milberger, 198 S.W.3d 418, 426 (Tex. App.—Dallas 2006, pet. denied). If there is any

evidence of a probative nature to support the trial court‟s judgment, we will not set it

aside, and if there is any evidence in the record to sustain the trial court‟s findings, we

may not substitute our findings of fact for those of the trial court. Ray v. Farmers’ State

Bank of Hart, 576 S.W.2d 607, 609 (Tex. 1979); Harlingen Irrigation Dist. Cameron

County No. 1 v. Caprock Commc’ns Corp., 49 S.W.3d 520, 529 (Tex. App.—Corpus

Christi 2001, pet. denied). We review the trial court‟s findings of fact by the same

standards we use in reviewing the sufficiency of the evidence supporting a jury‟s

answers. Caprock Commc’ns Corp., 49 S.W.3d at 529.

        6
          STTC does not state whether it challenges the legal or factual sufficiency of the trial court‟s
findings of fact. STTC generally states that the “take nothing judgment is against the great weight and
preponderance of the evidence”; however, in its prayer, STTC requests that we render judgment in its
favor. Furthermore, STTC has not stated a standard of review to be applied in this case. See TEX R.
APP. P. 38.1(i).


                                                   8
       If a party with the burden of proof challenges the legal sufficiency of an adverse

finding, we must determine whether the complaining party has demonstrated on appeal

that the evidence establishes, as a matter of law, all vital facts in support of the issue.

Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam). In a “matter

of law” challenge, we “first examine the record for evidence that supports the finding,

while ignoring all evidence to the contrary.” Id. If there is no evidence to support the

finding, we will examine the entire record in order to determine whether the contrary

proposition is established as a matter of law.     Id. We will sustain the issue if the

contrary proposition is conclusively established. Id. The final test for legal sufficiency

must always be whether the evidence at trial would enable reasonable and fair-minded

people to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 822

(Tex. 2005).

       “In any foreclosure suit, the plaintiff must establish the existence of a valid

obligation owing to him by the defendant because foreclosure is merely a method of

assuring payment of the plaintiff‟s claim.” Gibson v. Bostick Roofing & Sheet Metal, 148

S.W.3d 482, 493 (Tex. App.—El Paso 2004, no pet.) (citing Hagan v. Anderson, 506

S.W.2d 298, 302 (Tex. Civ. App.—San Antonio 1973, writ ref‟d n.r.e.)). A person is

entitled to a lien if he furnishes or fabricates materials for the construction of a house

and “the person labors, specially fabricates the material, or furnishes the labor or

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

receiver, contractor, or subcontractor.” TEX. PROP. CODE ANN. § 53.021 (West 2007). A

lien may not be fixed on an owner‟s property “where the contract for labor, materials or

construction is not made with the owner or his duly-authorized agent.” Gibson, 148



                                            9
S.W.3d at 494 (citing Kelly v. Heimer, 312 S.W.2d 430, 434 (Tex. Civ. App.—San

Antonio 1958, writ ref‟d n.r.e.)). Furthermore, in cases where a contract for materials,

labor, or construction is not made with the owner of the property or his duly-authorized

agent, the owner may not be held personally liable for the materials, labor, or

construction. Id. “Our courts have long held that a mechanic‟s lien attaches to the

interest of the person contracting for construction.     Thus, if a lessee contracts for

construction, the mechanic‟s lien attaches only to the leasehold interest, not to the fee

interest of the lessor. Similarly, a mechanic‟s lien may attach to an equitable interest of

one holding an option on land, but the lien is extinguished if the fee is not obtained by

the optionee.” Id. at 495 (citing Diversified Mtg. Investors v. Lloyd D. Blaylock Gen.

Contractor, 576 S.W.2d 794, 805 (Tex. 1978)).

B.     Analysis

       STTC does not challenge the trial court‟s finding of fact that Maria Gloria entered

the contract with Dream Homes to build a home on the Calle Pluton property.

Moreover, this finding is supported by the evidence admitted at trial. The only contract

admitted shows that Maria Gloria entered the contract with Dream Homes and that Lara

did not sign the contract. At no time did STTC contend that Maria Gloria was Lara‟s

duly-authorized agent.

       To be entitled to a lien on Lara‟s interest in the property, STTC was required to

prove that it provided the trusses under or by virtue of a contract with Lara or his agent,

trustee, receiver, contractor, or subcontractor. See TEX. PROP. CODE ANN. § 53.021. In

this case, the evidence established that Lara did not enter into a contract with Dream

Homes to build the home for which STTC allegedly provided the trusses, and STTC



                                            10
neither alleged nor proved that Maria Gloria was Lara‟s duly-authorized agent. STTC

failed to prove that it provided the trusses by virtue of a contract with Lara, his agent,

trustee, receiver, contractor, or subcontractor. Therefore, STTC did not prove as a

matter of law that Lara was personally liable for payment of the trusses and that it was

entitled to a lien on Lara‟s interest in the Calle Pluton property. See Ray, 576 S.W.2d at

609; Harlingen Irrigation Dist. Cameron County No. 1, 49 S.W.3d at 529; see also In re

Kellogg Brown & Root, Inc., 166 S.W.3d 732, 741 (Tex. 2005) (providing that a direct

contractual relationship is required between the owner of the property and the

mechanic, materialman, or artisan).             The mechanic‟s lien could only attach to the

interest of the party contracting for the labor, materials, or construction—Maria Gloria in

this case. Accordingly, we conclude that the trial court properly rendered a take-nothing

judgment in favor of Lara. We overrule STTC‟s first four issues.7




                                      III.     ATTORNEY’S FEES

        By its fifth issue, STTC contends that it was entitled to recover attorney‟s fees

from Lara. However, we have concluded that the trial court properly denied STTC‟s

cause of action against Lara; therefore, STTC is not entitled to attorney‟s fees. See

Rodgers v. RAB Invs., Ltd., 816 S.W.2d 543, 551 (Tex. App.—Dallas 1991, no writ)

(providing that to obtain an award of attorney's fees, a party must prevail on a cause of

action for which attorney‟s fees are recoverable). We overrule STTC‟s fifth issue.

        7
         Because Lara could not be held personally liable for payment of the trusses in this case, STTC‟s
issues regarding whether it provided Lara proper notice of the bill and whether the trial court erroneously
found that notice was required pursuant to the homestead rules are not dispositive of this appeal. See
TEX. R. APP. P. 47.1.


                                                   11
                                  IV.    CONCLUSION

      We affirm the trial court‟s judgment.

                                                      ___________________
                                                      ROGELIO VALDEZ
                                                      Chief Justice


Delivered and filed the
31st day of August, 2011.




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