     TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-05-00547-CV



   Gary Milner d/b/a Gary’s Industrial Machine and Fabrication Company, Appellant

                                                 v.

        Balcke-Durr, Inc. and Lumbermens Mutual Casualty Company, Appellees




     FROM THE DISTRICT COURT OF HAYS COUNTY, 274TH JUDICIAL DISTRICT
         NO. 02-1492, HONORABLE JACK H. ROBISON, JUDGE PRESIDING



                           MEMORANDUM OPINION


              This appeal concerns whether appellant Gary Milner d/b/a Gary’s Industrial Machine

and Fabrication Company properly perfected his mechanic’s and materialman’s lien, thereby

precluding his claim against the indemnity bond. Concluding that the lien was not perfected, the

district court granted summary judgment in favor of appellees Balcke-Durr, Inc. and Indiana

Lumbermens Mutual Casualty Company. We affirm.


                                        BACKGROUND

              The underlying facts are not in dispute, and the parties agree that this appeal presents

questions of law. American National Power, Inc., entered into a contract with Balcke-Durr to act

as general contractor on the construction of a power plant in Hays County. Balke-Durr, in turn,
entered into a subcontract with Air Condensor Construction, Inc. (“AC Construction”). AC

Construction then contracted with Milner to supply fabricated steel. Milner alleges that he furnished

materials and labor under his contract with AC Construction but that it became insolvent and never

paid him the amount he claims is due, $23,511.28.

                Subsequently, Milner attempted to secure payment by perfecting a mechanic’s and

materialman’s lien on American National’s property. See generally Tex. Prop. Code Ann.

§§ 53.001-.260 (West 1995 & Supp. 2005). He filed an “Affidavit Claiming Lien” with the County

Clerk of Hays County. See id. § 53.051 (West 1995), § 53.052 (West Supp. 2005). Balcke-Durr

filed a bond to indemnify against the lien. See id. §§ 53.171-.175 (West Supp. 2005). Lumbermens

is the surety on the bond.

                Milner filed suit asserting claims against AC Construction for breach of contract,

Balcke-Durr and Lumbermens for payment on the bond, and, in the event the bond was ineffective

or invalid, against American National to foreclose his lien on American National’s property. Under

each theory, Milner sought $23,511.28 in damages, plus attorney’s fees. Milner sought summary

judgment on his claims against Balcke-Durr, Lumbermen’s, and American National. All three

defendants filed responses to Milner’s summary judgment motion.

                Balcke-Durr and Lumbermens also filed a cross-motion for summary judgment

contending that Milner had failed to properly perfect his mechanic’s and materialman’s lien.

Specifically, the cross-movants argued that (1) Milner’s affidavit was not properly sworn to and

sealed; (2) the affidavit was not timely filed; (3) the affidavit failed to reference the months in which




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work was performed; and (4) the underlying notices were insufficient to perfect Milner’s claim. See

id. §§ 53.021 (West Supp. 2005), .052, .054 (West Supp. 2005), .056 (West Supp. 2005).

               Without stating the grounds upon which it relied, the district court granted the cross-

movants’ motion and denied Milner’s. Milner subsequently nonsuited his claims against AC

Construction and American National, making the summary judgment order final and appealable.

This appeal followed.


                                          DISCUSSION

               Milner brings two issues on appeal complaining, respectively, that the district court

erred by granting summary judgment in favor of Balke-Durr and Lumbermens and by denying his

motion.


Standard of review

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

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128

S.W.3d 211, 215 (Tex. 2003). When reviewing a summary judgment, we take as true all evidence

favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in

the nonmovant’s favor. Valence Operating Co., 164 S.W.3d at 661; Knott, 128 S.W.3d at 215.

Summary judgment is proper when there are no disputed issues of material fact and the movant is

entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Shell Oil Co. v. Khan, 138 S.W.3d

288, 291 n.4 (Tex. 2004) (citing Knott, 128 S.W.3d at 215-16).




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               When, as here, both parties move for summary judgment and the district court grants

one motion and denies the other, we review the summary-judgment evidence presented by both

sides, determine all questions presented, and render the judgment the district court should have

rendered. Texas Workers’ Comp. Comm’n v. Patient Advocates of Tex., 136 S.W.3d 643, 648 (Tex.

2004). Because the trial court’s order granting summary judgment does not specify the grounds

relied upon, we must affirm the summary judgment if any of the grounds presented to the trial court

are meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex. 2000).


Application

               We first review the statutory standards governing perfection of mechanic’s and

materialman’s liens. The property code secures payment for certain individuals who provide labor

or materials in construction projects on real property by imposing a lien on the property. Tex. Prop.

Code Ann. §§ 53.021(a), .022 (West 1995), § 53.023 (West Supp. 2005). To perfect a mechanic’s

and materialman’s lien on non-residential1 property after the indebtedness has accrued, a claimant

must timely file an affidavit claiming the lien and timely provide notice of filing by sending a copy

of the affidavit via certified or registered mail to specified parties. See id. §§ 53.051, .052, .055

(West Supp. 2005), § 53.056.

               A subcontractor who supplies materials for a construction project is entitled to a lien

on the property where the materials are used. Id. §§ 53.021, .022. Because a subcontractor is a



       1
           Subchapter K, which is inapplicable here, contains additional requirements for perfection
of liens in construction projects on residential property. Tex. Prop. Code Ann. §§ 53.251-.260 (West
Supp. 2005).

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derivative claimant and, unlike a general contractor, has no constitutional, common law, or

contractual lien on the property of the owner, a subcontractor’s lien rights depend on its substantial

compliance with the statutes authorizing the lien. First Nat’l Bank v. Sledge, 653 S.W.2d 283, 285

(Tex. 1983); Raymond v. Rahme, 78 S.W.3d 552, 559-60 (Tex. App.—Austin 2002, no pet.).

Among other things, a subcontractor must timely file an affidavit that complies with the

requirements of section 53.054 of the property code. Tex. Prop. Code Ann. § 53.054. Section

53.054(a) states that the lien affidavit must contain “a sworn statement of the amount of the claim”

and “a general statement of the kind of work done and materials furnished by the claimant and, for

a claimant other than an original contractor, a statement of each month in which the work was done

and materials furnished for which payment is requested.” Id. § 53.054(a)(1), (3).

               Milner challenges two of the summary judgment grounds on which the district court

could have relied. He first argues that his affidavit complied with statutory requirements that it be

sworn and certified. See id. § 53.054(a)(1); see also Tex. Gov’t Code Ann. § 312.011(1) (West

2005) (defining “affidavit”). Second, Milner urges that he timely filed his affidavit. It is undisputed

that Milner filed his affidavit on Monday, April 16, 2001, the first working day following April 15,

2001, the specified due date under section 53.052(a). See Tex. Prop. Code Ann. § 53.052(a). Citing

the code construction act, Milner contends that, because April 15 was a Sunday—in his case, Easter

Sunday—his due date shifted to the following Monday. See Tex. Gov’t Code Ann. § 311.014 (West

2005) (“If the last day of any period is a Saturday, Sunday, or legal holiday, the period is extended

to include the next day that is not a Saturday, Sunday or legal holiday.”).




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               Appellees respond that because section 53.052 of the property code required Milner

to file his affidavit not after a period of days, but on a specific day—“not later than the 15th day of

the fourth calendar month after the day on which the indebtedness accrues”—that deadline

controlled. See Thiel v. Harris County Democratic Executive Comm., 534 S.W.2d 891, 894 (Tex.

1976) (holding that code construction act provision applied “solely to computation of time in

enactments which require that an act be done within a certain number of days to be counted from a

determinable starting point, and which do not specifically set a final date or deadline contrary to” the

provision); see also Tex. Prop. Code Ann. § 53.052(a).

               We need not address either issue, however, because Milner does not challenge on

appeal another ground on which the district court could have relied when granting summary

judgment: the affidavit did not reference the months in which work was performed. See Tex. Prop.

Code. Ann. § 53.054(a)(3). Section 53.054(a)(3) specifies that the lien affidavit must contain “a

general statement of the kind of work done and materials furnished by the claimant and, for a

claimant other than an original contractor, a statement of each month in which the work was done

and materials furnished for which payment is requested.” Id. Milner’s “Affidavit Claiming Lien”

does not comply with section 53.054(a)(3) of the property code. See id. Because compliance with

section 53.054(a)(3) was essential to perfection of his statutory lien and to his claim against the

indemnity bond, summary judgment may stand on that ground alone. See Voice of the Cornerstone

Church Corp. v. Pizza Prop. Partners, 160 S.W.3d 657, 671 (Tex. App.—Austin 2005, no pet.)

(affirming summary judgment against appellant who did not “successfully attack every possible




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ground upon which the district court could have based its summary judgment”). We overrule

Milner’s issues.


                                        CONCLUSION

               We affirm the district court’s grant of summary judgment in favor of Balcke-Durr and

Lumbermens.




                                             __________________________________________

                                             Bob Pemberton, Justice

Before Chief Justice Law, Justices Patterson and Pemberton

Affirmed

Filed: August 4, 2006




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