      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                       NO. 03-03-00438-CV




                               Wesco Distribution, Inc., Appellant


                                                  v.


                                 Westport Group, Inc., Appellee




   FROM THE DISTRICT COURT OF BASTROP COUNTY, 335TH JUDICIAL DISTRICT
        NO. 23,999, HONORABLE HAROLD R. TOWSLEE, JUDGE PRESIDING



                                             OPINION


               Appellant, Wesco Distribution, Inc., appeals the judgment of the district court of

Bastrop County granting appellee Westport Group Inc.’s motion for summary judgment to remove

a materialman’s lien and awarding Westport attorney’s fees in the amount of $16,140.77. Wesco

raises two issues on appeal, asserting: (1) the district court misinterpreted the notice provisions of

sections 53.003 and 53.056 of the property code, see Tex. Prop. Code Ann. §§ 53.003, .056 (West

2002); and (2) the district court abused its discretion in awarding Westport attorney’s fees. We

affirm the judgment of the district court.
                                  FACTUAL BACKGROUND

               Westport, a general contractor, agreed to build a dental office for E&M Properties and

hired J&D Electric as its electrical subcontractor for the project. J&D Electric agreed to provide all

the labor and materials necessary to perform the subcontract work. J&D Electric purchased some

of the materials used in the dental office from Wesco, but failed to fully pay Wesco for these

materials. On July 11, 2001, Wesco attempted to send notice by mail to Westport of J&D Electric’s

outstanding bill for materials purchased between March 2001 and June 25, 2001, in order to notify

Westport of Wesco’s claim for a materialman’s lien on the property. The post office returned this

notice to Wesco because Wesco failed to attach sufficient postage. Wesco added postage and again

mailed its notice to Westport on July 25, 2001. On July 19, Westport, having received no notice of

lien, made a payment to J&D Electric. Although it is unclear when notice was actually received, it

is clear that no payments were made by Westport after receipt of notice. By the time it received

notice, Westport had paid J&D Electric almost everything it was owed. Wesco filed an affidavit

claiming a lien on September 13, 2001.

               Westport filed suit to remove Wesco’s claimed lien, and Wesco filed suit for damages

and foreclosure of its lien. The two lawsuits were consolidated. Westport filed a summary motion

“to remove invalid or unenforceable lien” pursuant to section 53.160 of the property code, and

Wesco opposed the motion. See id. § 53.160. The trial court initially denied Westport’s summary

motion, but when the parties filed cross-motions for summary judgment, the trial court granted

Westport’s request for summary judgment made on the same grounds as its earlier motion. Wesco

then brought this appeal.



                                                  2
                                   STANDARD OF REVIEW

               Because the propriety of a summary judgment is a question of law, we review the trial

court’s decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); Texas Dep’t

of Ins. v. American Home Assurance Co., 998 S.W.2d 344, 347 (Tex. App.—Austin 1999, no pet.).

The standards for reviewing a motion for summary judgment are well established: (1) the movant

for summary judgment has the burden of showing that no genuine issue of material fact exists and

that it is entitled to judgment as a matter of law; (2) evidence favorable to the nonmovant will be

taken as true in deciding whether there is a disputed material fact issue precluding summary

judgment; and (3) every reasonable inference must be indulged in favor of the nonmovant and any

doubts resolved in its favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).


                                          DISCUSSION

Construction of the Notice Provision

               In Wesco’s first issue, it argues that the trial court mistakenly interpreted the notice

provisions contained in the materialman’s lien statute1 by finding that Wesco did not comply with

its terms. The statute sets out deadlines for giving notice of unpaid balances owed by subcontractors

to materialmen to the original contractor and the property owner and requires timely notice as a

prerequisite for a valid lien claim.2 For Wesco’s lien claim to be valid, Wesco must have effectively

       1
          “If notice is sent by registered or certified mail, deposit or mailing of the notice in the
United States mail in the form required constitutes compliance with the notice requirement.” Tex.
Prop. Code Ann. § 53.003 (West 2002).
       2
           “A claimant other than an original contractor must give the notice prescribed by this
section to be valid.” Tex. Prop. Code Ann. § 53.056(a) (West 2002).


                                                  3
notified Westport by July 15 of any unpaid balance for materials delivered in May.3 Because it

attempted to send a notice on July 11, before the deadline, Wesco argues that it timely notified

Westport under the statute. When that notice was returned to Wesco for insufficient postage, and the

notice was re-sent on July 25, 2001, Westport argued that there was no timely notice of lien for

nonpayment for supplies delivered to J&D Electric prior to the end of May.

               Wesco contends that its deposit of the notice with insufficient postage substantially

complies with the statutory requirements of section 53.003 of the property code because Westport

eventually received a notice. Despite the insufficient postage, it argues, Wesco deposited the notice

within the statutory time period, and the statute requires nothing more. Westport responds that

notice mailed with insufficient postage does not comply with statutory requirements because

“sending” notice by mail necessarily includes attaching sufficient postage. Because Wesco failed

to timely notify Westport of its lien claim, Westport argues, the lien it claims is invalid. We agree.

               This case calls for interpretation of the notice provisions of Texas’s mechanic’s and

materialman’s lien statute. See Tex. Prop. Code Ann. §§ 53.003, .056. Statutory interpretation is

a legal matter subject to de novo review. Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex.

2002); Pacesetter Pools, Inc. v. Pierce Homes, Inc., 86 S.W.3d 827, 831 (Tex. App.—Austin 2002,



           “If the lien claim arises from a debt incurred by a subcontractor, the claimant must give
to the original contractor written notice of the unpaid balance. The claimant must give the notice
not later than the 15th day of the second month following each month in which all or part of the
claimant’s labor was performed or material delivered . . . .” Id. § 53.056(b) (West 2002).
       3
          Although Wesco’s lien claim included unpaid balances for materials delivered in March
and April, it is clear from the statute that no valid lien could attach for those balances, as their
deadlines for notice, May 15 and June 15, respectively, had long since passed. Wesco advances no
argument regarding those balances or deadlines.

                                                  4
no pet.) (citing Trinity Indus., Inc. v. Ashland, Inc., 53 S.W.3d 852, 868 (Tex. App. —Austin 2001,

pet. denied)).

                 “The primary rule of statutory interpretation is to ascertain and give effect to the

intent of the legislature.” Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581, 583 (Tex.

App.—Austin 2000, pet. denied) (citing Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280

(Tex. 1984)). If the legislature’s intent can be gathered from a reasonable interpretation of the statute

as written, further implications are forbidden. Id. A court may not add words to a statute unless

necessary to give effect to clear legislative intent. See Jones v. Liberty Mut. Ins. Co., 745 S.W.2d

901, 902 (Tex. 1988); Montemayor, 24 S.W.3d at 583. Courts should take into account the entire

statute, not isolate disputed provisions. Texas Workers’ Compensation Commission v. Continental

Casualty Company, 83 S.W.3d 901, 905 (Tex. App.—Austin 2002, no pet.). When the legislature

employs a term in one section of a statute and excludes it in another, courts presume that the

exclusion was intentional, and that the legislature had a reason for excluding it. Fireman’s Fund

County Mut. Ins. Co. v. Hidi, 13 S.W.3d 767, 769 (Tex. 2000).

                 Courts must also presume that the legislature intended a reasonable result.

Montemayor, 24 S.W.3d at 585; Enochs v. Brown, 872 S.W.2d 312, 318 (Tex. App.—Austin 1994,

no writ). We must be mindful of the consequences of possible constructions when interpreting a

statute, Continental Casualty Co., 83 S.W.3d at 905, because courts should not construe statutes in

a way that leads to foolish or absurd consequences. Montemayor, 24 S.W.3d at 584-85 (citing Meno

v. Kitchens, 873 S.W.2d 789, 792 (Tex. App.—Austin 1994, writ denied)).




                                                   5
                The materialman’s lien statute is liberally construed for the purpose of protecting

laborers and materialmen. Industrial Indem. Co. v. Zack Burkett Co., 677 S.W.2d 493, 495 (Tex.

1984) (per curiam); Hayek v. Western Steel Co., 478 S.W.2d 786, 795 (Tex. 1972). Giving “‘liberal

construction’ means to give the language of a statutory provision, freely and consciously, its

commonly, generally accepted meaning, to the end that the most comprehensive application thereof

may be accorded, without doing violence to any of its terms.” Maryland Cas. Co. v. Smith, 40

S.W.2d 913, 914 (Tex. Civ. App.—Dallas 1931, no writ). Liberal interpretation of a statute does

not permit doing violence to the language in the statute. Deep E. Tex. Reg’l Mental Health & Mental

Retardation Svcs. v. Kinnear, 877 S.W.2d 550, 563 (Tex. App.—Beaumont 1994, no writ).

                Wesco argues first that the statute does not require postage to be affixed in order for

notice to be effective, and that the absence of the word “postage” in the statute indicates a legislative

intent that postage not be required for mailed notice to be considered effective. It offers two other

provisions of the property code for comparison. The first allows notice to debtors by certified mail

to be considered complete when that notice is deposited with the United States post office, “postage

prepaid and addressed to the debtor” at its last known address. Tex. Prop. Code Ann. § 51.002(e)

(West 2002). The second considers notice by lessors to tenants delivered when deposited with the

United States post office, “properly addressed with postage prepaid.” Id. § 59.043(b) (West 2002).

                Section 53.003, in contrast, is silent on the proper address or prepayment of postage.

It allows notice by certified or registered mail to be considered effective upon “deposit or mailing

of the notice in the United States mail in the form required.” The previous two provisions do not

include the phrase “in the form required,” perhaps because they specify the form required: correctly



                                                   6
addressed and with postage prepaid. Section 53.003 permits use of certified or registered mail and

recognizes compliance with whatever form the U.S. Postal Service requires. The Postal Service

requires postage. 39 C.F.R. § 3030 (2003).4

               Construing the statute to not require postage at all would produce absurd results.

Here, the first attempt at notice would have been effective; there would be no need for Wesco to re-

send the returned correspondence because the statute’s requirements for constructive notice would

have already been met. According to that construction, “notice” that would never and could never

arrive would nonetheless be considered effective against Westport.

               In an attempt to temper this extreme result, Wesco asserts that its interpretation would

indeed require some kind of notice. Because the statute should be liberally interpreted for the benefit

of materialmen, Wesco argues, its timely but postage-deficient notice should, combined with its

postage-prepaid but untimely notice, qualify as substantial compliance with the statute. Wesco

characterizes the return of its notice for insufficient postage as a delay in delivery by the Postal

Service and argues that it substantially complied with the requirement that it mail its notice within

the statutory time period because the initial mailing occurred on July 11, and the general purpose of

the statute’s notice provision was achieved.




       4
           “Postage must be fully prepaid on all mail at the time of mailing, except as authorized by
law or this Schedule. Except as authorized by law or this Schedule, mail deposited without
prepayment of sufficient postage shall be delivered to the addressee subject to payment of deficient
postage, returned to the sender, or otherwise disposed of as specified by the Postal Service. Mail
deposited without any postage affixed will be returned to the sender without any attempt at delivery.”
39 C.F.R. § 3030 (2003).

                                                  7
                The liberal construction for which Wesco argues does not excuse failure to comply

with the statutory requirement that the materialman provide “timely written notice.” See Texas

Constr. Assocs., Inc., v. Balli, 558 S.W.2d 513, 518-19 (Tex. Civ. App.—Corpus Christi 1977, no

writ). In Balli, the materialman failed to provide timely written notice of part of its claim to the

owner and contractor. Id. Even though the contractor and the owner already had actual notice of

the debt, liberal construction did not save the materialman’s lien from his failure to provide timely

written notice. Id. Where, as here, the party entitled to notice does not have actual notice, the

requirement should apply with as much or more force. Liberal construction cannot read the timing

requirements out of the statute. Id. at 518.

                Because Wesco tried to mail its notice, it claims its efforts constitute substantial

compliance with the statute. It is true that substantial compliance is sufficient to perfect a

materialman’s lien. First Nat’l Bank in Graham v. Sledge, 653 S.W.2d 283, 285 (Tex. 1983). In

Sledge, the court held that notice sent by regular instead of certified mail substantially complied with

the notice requirements where it was undisputed that notice was actually received timely. Id. at 287;

see also Occidental Neb. Fed. Sav. Bank v. East End Glass Co., 773 S.W.2d 687, 689 (Tex.

App.—San Antonio 1989, no writ) ( “If in fact a written notice is received, the method by which the

notice was delivered is immaterial.”). Substantial compliance excuses deficiencies in materialman’s

lien notices such as addressing the notice to the wrong entity where it was sent to and received by

the right person in a “system of interlocking corporate shells,” Occidental, 773 S.W.2d at 688, or

failure to write the statement or bill in the usual or customary manner, where notice was timely.




                                                   8
Hunt Developers, Inc. v. Western Steel Co., 409 S.W.2d 443, 449 (Tex. Civ. App.—Corpus Christi

1966, no writ).

                  However, “substantial compliance” is not a license to ignore statutory requirements.

See Conn, Sherrod, & Co. Inc. v. Tri-Electric Supply Co., 535 S.W.2d 31, 34-35 (Tex. Civ.

App.—Tyler 1976, writ ref’d n.r.e.) (holding that liberal interpretation and substantial compliance

did not allow courts to alter meaning of statutory language, and that timely filing of affidavit without

correct jurat was not substantial compliance as required to perfect materialman’s lien). In Sledge,

for instance, the court was careful to note that, in looking for substantial compliance, it determined

whether the liens at issue were valid by comparing the steps taken to perfect them with the statutory

requirements. Sledge, 653 S.W.2d at 286. Failure to satisfy the notice provisions of the statute was

fatal to the lien claim in Sledge; the court examined the only notices sent within the statutory time

limit and decided that, because they did not contain the proper information, they did not substantially

comply with the statute. Id. at 287.

                  The notice requirement, unlike the technical defects excused by substantial

compliance, plays a critical role in achieving the purposes of this statute. The materialman’s lien

statute is designed to protect contractors, subcontractors, and owners. Cabintree, Inc. v. Schneider,

728 S.W.2d 395, 396 (Tex. App.—Houston [1st Dist.] 1986, writ ref’d). The purposes of notice are:

(1) to give those parties entitled to notice an opportunity to protect their interests, and (2) to prevent

surprise. Philbrook v. Berry, 679 S.W.2d 651, 653 (Tex. App.—Houston [1st Dist.] 1984, orig.

proceeding). There are many examples of courts applying the notice provision to protect the interests

of the parties entitled to notice. In disputes between the materialman and the property owner, the



                                                    9
owner is the party entitled to notice, and Texas courts apply the statute’s protections to the owner.

In Raymond v. Rahme, 78 S.W.3d 552, 560 (Tex. App.—Austin 2002, no pet.), for example, the

court required timely notice to the property owner in order for substantial compliance to make the

lien valid. The court examined the only notice that arrived timely and found it inadequate because

it did not contain a required warning to the owner that personal liability might attach if the debt

remained unpaid. Id. at 561. Similarly, the Occidental court explains the object of the statute’s

notice provision: “[t]he common sense reason for requiring a materialman to give notice to the

owner is to let the owner know that the contractor has not paid the materialman . . . and give[] the

owner an opportunity to retain funds still under [the] owner’s control and to avoid the imposition

of a statutory lien.” Occidental, 773 S.W.2d at 688. Wesco reads these cases to hold that only the

owner may claim protections from the notice provision. Wesco quotes Hunt Developers, which says,

“[t]he Legislature did not intend that the materialman should lose his lien through the technicalities

of a warning, where the owner was not misled to his prejudice,” to support the proposition that

prejudice to the general contractor does not justify holding the materialman to the statutory notice

requirements of the statute.5 409 S.W.2d at 449 (emphasis added). Because E&M Properties, the

owner, received sufficient notice, Wesco argues, the lien can be valid as to Westport without timely

notice to Westport. Under Wesco’s interpretation, the statute is not intended to protect the interests




       5
           Here Wesco uses “notice” and “warning” interchangeably, but the warning is a portion of
the notice to the owner that explains that personal liability might attach if the bill remains unpaid.
See Hunt Developers, Inc. v. Western Steel Co., 409 S.W.2d 443, 446-47 (Tex. Civ. App.—Corpus
Christi 1996, no writ).

                                                 10
of general contractors. This reading would nullify the requirement that notice be provided to the

general contractor.

                Neither the principles of statutory construction nor case law permit this interpretation

because it does violence to the terms of the materialman’s lien statute by reading the notice

provision6 completely out of the statute. See Kinnear, 877 S.W.2d at 563; Maryland Cas. Co., 40

S.W.2d at 914. Furthermore, Wesco is mistaken in its assumption that the statute is not intended to

protect the interests of general contractors. Hunt Developers itself holds substantial compliance

“especially sufficient where no one has been misled to his prejudice.” Hunt Developers, 409 S.W.2d

at 449 (emphasis added). Other cases indicate that where the materialman does not timely notify the

general contractor entitled to notice under the materialman’s statute, the materialman has not

substantially complied. See, e.g., Stone Fort Nat’l Bank v. Elliot Elec. Supply Co., 548 S.W.2d 441,

445 (Tex. Civ. App.—Tyler 1977, writ ref’d n.r.e.). In Stone Fort, the materialman claimed a lien

because it “substantially complied” with the statute by properly and timely filing its affidavit and

notifying the owner of the outstanding bill and of the affidavit. Id. The court disagreed with this

contention of substantial compliance because it ignored notice to the original contractor. Id. The

notice to the original contractor “is for the benefit of the original contractor. It is the only notice that

the original contractor personally receives.” Id. at 445-46. Because the materialman failed to




        6
          “If the lien claim arises from a debt incurred by a subcontractor, the claimant must give to
the original contractor written notice of the unpaid balance. The claimant must give the notice not
later than the 15th day of the second month following each month in which all or part of the
claimant’s labor was performed or material delivered . . . .” Tex. Prop. Code Ann. § 53.056(b).

                                                    11
provide that notice, it had not complied with the requirements of the materialman’s lien statute. Id.

at 446.

               Wesco draws comparisons between this case and Don Hill Construction Company

v. Dealers Electrical Supply Company, 790 S.W.2d 805 (Tex. App.—Beaumont 1990, no writ). In

Don Hill, the materialman properly notified the property owner, but failed to timely notify the

general contractor of part of its claim. Id. at 809-10. The owner, despite acknowledging it had

received notice of the nonpayment, did not retain funds for the materialman, but paid the general

contractor instead. Id. at 810. The court held that the properly notified owner could not escape its

own liability because notice to the general contractor was untimely. Id. at 809. In this case, the

owner, E&M Properties, has not escaped liability. E&M Properties properly withheld funds and

eventually surrendered them. Don Hill does not stand for the proposition that the general contractor

can be held liable under the materialman’s lien statute without proper notice because the

materialman notified others; the general contractor in Don Hill argued that, because its notice was

untimely, it could not be held liable for nonpayment under the materialman’s lien statute in the

property code. Id. at 811. The court held the general contractor liable under a different theory not

presented here.7 In other words, the court found the owner liable under the materialman’s lien

statute, but the court did not find the general contractor liable under the materialman’s lien statute.




          7
          The Don Hill court held that, because the owner paid the general contractor after receiving
the materialman’s notice of lien, the funds it paid were trust funds held for the benefit of the
materialman, and transfer of those funds did not change their character. Don Hill Constr. Co. v.
Dealers Elec. Supply Co., 790 S.W.2d 805, 811-12 (Tex. App.—Beaumont 1990, no writ). Westport
did not receive the contested amount in trust funds from E&M Properties, and neither party raises
the issue of trust funds here. Accordingly, we do not reach it.

                                                  12
               Texas’s materialman’s lien statute strikes a balance between interests of materialmen

and general contractors by imputing notice to contractors to whom notice has been properly mailed.

This scheme mirrors the evidentiary presumption that a properly mailed notice is received at its

destination. When a sender has done everything necessary for notice to arrive, notice is considered

effective as to the intended recipient. See Mosser v. Plano Three Venture, 893 S.W.2d 8, 11 (Tex.

App.—Dallas 1994, no writ) (holding service by mail complete upon deposit of properly addressed

envelope, postage prepaid, with Postal Service); Mobile Am. Sales Corp. v. Gradley, 612 S.W.2d

625, 628 (Tex. Civ. App.—Beaumont 1980, no writ) (reciting rule that presumption that mailed

letter was received only arises upon proof of proper address, stamp, and mailing); Employers’ Nat’l

Life Ins. Co. of Dallas, Tex. v. Willits, 436 S.W.2d 918, 921 (Tex. Civ. App.—Amarillo 1968, writ

ref’d n.r.e.) (noting that letters properly addressed, stamped, and mailed are sufficient to raise

presumption that they were received). This presumption relieves the sender of the difficult burden

of showing that the recipient actually received notice. So does Texas’s materialman’s lien statute.

See Buckner v. Anderson-Dunham, Inc., 482 S.W.2d 350, 351-52 (Tex. Civ. App.—Eastland 1972,

no writ) (holding notice properly addressed and marked as postage paid certified mail was effective

when mailed, not when received). Neither encompasses the absurd result that receipt of notice is

imputed to a party to whom notice was never properly sent. The statute and case law treat certain

parties as entitled to notice. Correspondence without postage will not and cannot ever reach the

party entitled to notice. Imputing notice to the intended recipient when the sender had not done

everything necessary for notice to arrive would be nonsensical and unfair, and would render the

notice provisions of the statute a meaningless ritual.




                                                 13
                In other contexts, Texas courts hold that mailing a notice requires proper postage.

There has been a longstanding general rule that a mailed notice is only effective if it has been

properly mailed, meaning properly addressed and bearing the correct amount of postage. Johnson

Serv. Co. v. Climate Control Contractors, Inc., 478 S.W.2d 643, 645-46 (Tex. Civ. App.—Austin

1972, no writ). Notice that is required by statute before suspending a real estate license is effective

when it is properly stamped, addressed, certified, and mailed. Tunnell v. Texas Real Estate Comm’n,

761 S.W.2d 123, 124 (Tex. App.—Dallas 1988, no writ); Texas Real Estate Comm’n v. Howard, 538

S.W.2d 429, 433 (Tex. Civ. App.—Houston [1st Dist.] 1976, writ ref’d n.r.e.). A lessor’s

contractual duty to notify by mail that did not specify that proper postage be affixed was not satisfied

by a letter that actually arrived at the correct address, but with postage due of $0.50. Rosenthal v.

Executive Car Leasing Co. of Houston, 435 S.W.2d 168, 169-70 (Tex. Civ. App.—Houston [1st

Dist.] 1968, no writ.) In these cases, insufficient postage meant ineffective notice.

                The district court’s decision that Wesco’s lien is invalid because its attempt to timely

notify Westport failed for lack of sufficient postage is consistent with the statute. The effort Wesco

made did not satisfy the notice requirements mandated by the materialman’s lien statute. We

overrule the first issue.


Attorney’s Fees

                In Wesco’s second issue, it argues that the district court abused its discretion in

awarding Westport the full amount of its attorney’s fees under section 53.156 of the property code.

The award of attorney’s fees rests in the sound discretion of the district court and will not be reversed

absent a clear showing of abuse of discretion. Oake v. Collin County, 692 S.W.2d 454, 455 (Tex.


                                                   14
1985); West Tex. Rehab. Ctr. v. Allen, 810 S.W.2d 870, 874 (Tex. App.—Austin 1991, no writ). A

trial court abuses its discretion when it acts unreasonably and arbitrarily or without reference to

guiding principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). In a proceeding to foreclose a

materialman’s lien or declare such a lien or claim invalid, the court may award costs and reasonable

attorney’s fees that are equitable and just. Tex. Prop. Code Ann. § 53.156 (West 2002).

               Wesco argues that the district court improperly awarded attorney’s fees because

Westport incurred the majority of those fees after and because of the court’s error. The district court

initially denied Westport’s summary motion to remove an invalid or unenforceable lien, but later

granted Westport’s motion for partial summary judgment made on the same grounds: untimely

notice because of insufficient postage.        At the attorney’s fees hearing, the district court

acknowledged that granting the first motion would have resulted in lower attorney’s fees. Wesco

puts great emphasis on the court’s comment: “Some of this burden might need to be mine.”

               Westport responds by identifying a variety of factors the district judge should consider

in determining attorney’s fees, including the quality of legal work, the time and effort required, the

nature and intricacies of the case, the extent and type of the attorney’s responsibilities, and any

benefits from the litigation. See Del Valle Indep. Sch. Dist. v. Lopez, 863 S.W.2d 507, 513 (Tex.

App.—Austin 1997, pet. denied). Consideration of such factors is important in determining

attorney’s fees. Arthur Anderson & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997);

Lubbock County v. Strube, 953 S.W.2d 847, 858 (Tex. App.—Austin 1997, pet. denied). Where,

as here, the court took evidence and considered such factors, it did not act without reference to

guiding principles.

                                                  15
               Obviously, disposing of any case earlier would result in lower attorney’s fees for all

involved. Not all cases are resolved as efficiently as, in hindsight, they could have been. However,

the touchstone of whether attorney’s fees can be awarded is whether they were reasonable and

necessary at the time the party incurred them. See Stewart Title Guar. Co. v. Sterling, 822 S.W.2d

1, 10 (Tex. 1991). This determination of reasonableness is a question for the trier of fact. Id. at 12.

The district court found that the fees were reasonable and necessary, including those incurred

between the initial summary motion and the motion for partial summary judgment. Wesco continued

to pursue its lien. Westport had no choice but to continue to incur attorney’s fees in defending its

position. We cannot say that the district court acted unreasonably, arbitrarily, or without reference

to guiding principles in so finding. We leave the award of attorney’s fees undisturbed.


                                          CONCLUSION

               We hold that the district court did not err in granting summary judgment invalidating

Wesco’s lien because Wesco failed to provide timely notice. The grant of attorney’s fees to

Westport was not unreasonable, arbitrary, or made without reference to guiding principles.

Accordingly, we affirm the district court on both points.




                                               David Puryear, Justice

Before Chief Justice Law, Justices Kidd and Puryear

Affirmed

Filed: April 8, 2004

                                                  16
