Precision Roofing Inc. v. David Zavelson and Tracy Zavelson ( 2018 )


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  •       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
    NO. 03-17-00550-CV
    Precision Roofing, Inc., Appellant
    v.
    David Zavelson and Tracy Zavelson, Appellees
    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
    NO. D-1-GN-16-000909, HONORABLE KARIN CRUMP, JUDGE PRESIDING
    MEMORANDUM OPINION
    In this residential-construction case, a subcontractor and the property owners dispute
    the validity of the subcontractor’s statutory lien. See generally Tex. Prop. Code §§ 53.001-.287
    (“Mechanic’s, Contractor’s or Materialman’s Liens”). The subcontractor, Precision Roofing, Inc.
    (Precision), filed suit to foreclose its lien on the property of David and Tracy Zavelson. The
    Zavelsons filed a summary motion to remove the lien. See 
    id. § 53.160
    (authorizing summary
    motion to remove invalid or unenforceable lien). Both parties filed cross-motions for summary
    judgment. The trial court granted the motion to remove the lien, granted the Zavelsons’ motion for
    summary judgment, and denied Precision’s. For the reasons that follow, we will modify the
    judgment to reduce the award of attorney’s fees and costs and affirm as modified.
    FACTUAL AND LEGAL BACKGROUND
    We begin by setting out the governing statutory framework. A subcontractor such
    as Precision is considered a derivative claimant because, “unlike a general contractor, [it] has no
    constitutional, common law, or contractual lien on the property of the owner.” First Nat. Bank in
    Graham v. Sledge, 
    653 S.W.2d 283
    , 285 (Tex. 1983). As a result, a derivative claimant’s right to
    recover against the property owner depends entirely on the lien statutes. Id.; Ready Cable, Inc. v.
    RJP S. Comfort Homes, Inc., 
    295 S.W.3d 763
    , 765 (Tex. App.—Austin 2009, no pet.). Chapter 53
    entitles a person who supplies labor or furnishes materials to construct or repair a “house, building,
    or improvement” pursuant to a contract with the property owner, the owner’s agent, or the original
    contractor to a lien on that property and on “each lot of land necessarily connected” under certain
    circumstances. See Tex. Prop. Code §§ 53.021-.023.
    Subchapter C sets out the procedures necessary to perfect the lien. See 
    id. § 53.051
    (“To perfect the lien, a person must comply with this subchapter.”); see generally 
    id. §§ 53.051-.058
    (“Procedure for Perfecting Lien”). As a general rule, a claimant must timely file an affidavit with
    specified contents in the real property records of the county where the property is located and send
    a copy of the affidavit to the owner. See 
    id. §§ 53.052,
    .054, .055. Additional procedures apply to
    certain derivative claimants.     See generally 
    id. §§ 53.056-.058
    (setting specialized notice
    requirements). Subchapter K contains additional procedures that are applicable if the claim arises
    from a “residential construction project.” See 
    id. § 53.251(b)
    (“A person must comply with this
    subchapter in addition to the other applicable provisions of this chapter to perfect a lien that arises
    2
    from a claim resulting from a residential construction project.”); see generally 
    id. §§ 53.251-.260
    (“Residential Construction Projects”).
    A derivative claimant may also “seek recovery from ‘trapped’ funds held
    by the property owner or funds ‘retained’ by the owner.” Pham v. Harris Cty. Rentals, L.L.C.,
    
    455 S.W.3d 702
    , 707 (Tex. App.—Houston [1st Dist.] 2014, no pet.). Subchapter E addresses
    “retained” funds, which are “withheld from the original contractor either under a contractual
    agreement or under section 53.101.” Id.; see generally Tex. Prop. Code §§ 53.101-.107 (“Required
    Retainage for Benefit of Lien Claimants”). Section 53.101 requires an owner to retain ten percent
    of the contract price during work “under an original contract for which a mechanic’s lien may be
    claimed” to “secure the payment of artisans and mechanics who perform labor or service.” See Tex.
    Prop. Code §§ 53.101, .102. “A claimant has a lien on the retained funds” if it “sends the notices
    required by this chapter in the time and manner required,” and timely “files an affidavit claiming a
    lien.” 
    Id. § 53.103.
    However, if the owner fails or refuses to retain funds:
    [T]he claimants complying with Subchapter C or this subchapter have
    a lien, at least to the extent of the amount that should have been
    retained from the original contract under which they are claiming,
    against the house, building, structure, fixture, or improvement
    and all of its properties and against the lot or lots of land
    necessarily connected.
    
    Id. § 53.105(a).
    We now turn to the partes’ dispute. In October of 2014, David Zavelson—but not
    Tracy—signed a contract with Cox Development Corporation to remodel and expand their home (the
    3
    Property) in Travis County. Cox subcontracted “roofing and flashing services” to Precision. In
    December of 2014, David Zavelson terminated the contract with Cox.
    Shortly after David terminated the contract, Precision filed two affidavits in the real
    property records of Travis County claiming a lien on both the Property and the retainage in the total
    amount of $15,374. Precision subsequently filed suit to foreclose on the lien. Because David’s
    contract with Cox did not contain a retainage clause, Precision relied entirely on the statutory
    retainage provisions in Chapter 53. The Zavelsons argued in their answer to the lawsuit that the lien
    was invalid because the Property was their homestead and the prerequisites to attaching a lien to a
    homestead had not been met. Under Subchapter K, in addition to complying with the applicable
    notice and filing requirements, “[t]o fix a lien on a homestead, the person who is to furnish material
    or perform labor and the owner must execute a written contract setting forth the terms of the
    agreement.” 
    Id. § 53.254(a).
    And, “[i]f the owner is married, the contract must be signed by both
    spouses.” 
    Id. § 53.254(c).
    The Zavelsons asserted that this requirement was not met because Tracy
    did not sign the contract with Cox.
    The parties subsequently stipulated that Tracy did not sign the contract, and that the
    lien would be unenforceable against the Property if the trial court determined that it was the
    Zavelsons’ homestead. In addition, the parties stipulated that David did not retain any funds but that
    if he had, “the total statutory retainage amount . . . would have been at least $18,589.77.” Almost
    a month later, Precision filed a “Partial Release Regarding Affidavits Claiming Lien” in the real
    4
    property records of Travis County releasing its lien against the Property but not the retainage.1
    See 
    id. § 53.157(1)
    (providing that lien can be released by “recording a lien release signed by
    the claimant”).
    Precision then filed a motion for summary judgment arguing that the Zavelsons were
    liable for the $18,589.77 that Section 53.101 required David to retain. The Zavelsons filed a
    combined summary motion to remove the lien and a cross motion for summary judgment. Precision
    argued that the statutory duty to retain applied to David and that the Zavelsons were “personally
    liable” for that amount under Section 53.057(f). In response, the Zavelsons argued that Section
    53.101 did not apply in this case because “no liens can exist against the retainage alone without an
    underlying lien against the Property.” They also argued that even if the duty did apply, Chapter 53
    provided only one remedy: a lien on the Property under Section 53.105. And the Zavelsons asserted
    that because Precision had already released its lien on the Property, they were entitled to summary
    judgment. Both parties also sought an award of attorney’s fees. See 
    id. § 53.156
    (authorizing trial
    court to award attorney’s fees “in any proceeding to declare that any lien or claim is invalid or
    unenforceable in whole or in part”).
    The trial court issued an order that removed the lien on the Property, granted the
    Zavelsons’ motion for summary judgment and denied Precision’s, and awarded the Zavelsons
    $15,374 in attorney’s fees and conditional appellate fees. This appeal followed.
    1
    Precision excluded from the release “any other claims and liens that may exist in favor of
    [Precision] under any applicable law against [the Zalvesons] (but not the Property) and/or against
    any statutory Retainage that may have been withheld by [the Zavelsons.].”
    5
    DISCUSSION
    In four issues on appeal, Precision argues that the trial court erred in granting the
    Zavelsons’ motion for summary judgment and denying Precision’s, and that the trial court abused
    its discretion in awarding fees. In the alternative, Precision argues that insufficient evidence supports
    the amount awarded for attorney’s fees. Precision also asserts that the portion of the judgment
    removing the lien on the Property is an advisory opinion because its release of the lien as to the
    Property mooted the issue of whether the lien attached.
    Liability of the Zavelsons
    Precision first argues that it was entitled to summary judgment because the Zavelsons
    are “personally liable” to it under Section 53.057 for the amount that should have been retained.
    Standard of Review
    We review a grant of summary judgment de novo.2 Texas Workforce Comm’n
    v. Wichita Cty., 
    548 S.W.3d 489
    , 492 (Tex. 2018). Summary judgment is proper when there is no
    genuine issue of material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ.
    P. 166a(c); City of Richardson v. Oncor Elec. Delivery Co., 
    539 S.W.3d 252
    , 259 (Tex. 2018). “On
    cross-motions for summary judgment, each party bears the burden of establishing that it is entitled
    to judgment as a matter of law.” ConocoPhillips Co. v. Koopmann, 
    547 S.W.3d 858
    , 865 (Tex.
    2
    The Zavelsons’ summary motion to remove the lien “operates, in effect, as a motion for
    partial summary judgment,” and we review it under the same standards. See In re M&O
    Homebuilders, Inc., 
    516 S.W.3d 101
    , 107 & n.10 (Tex. App.—Houston [1st Dist.] 2017,
    orig. proceeding).
    6
    2018). Because the trial court granted one motion and denied the other, we will determine all
    questions presented and render the judgment the trial court should have rendered. 
    Id. Resolution of
    Precision’s issues turn on statutory construction, which is a question
    of law that we review de novo. Youngkin v. Hines, 
    546 S.W.3d 675
    , 680 (Tex. 2018). Our goal
    when construing a statute is to determine and give effect to the legislature’s intent. 
    Id. “We rely
    on
    the plain meaning of the text as expressing legislative intent unless a different meaning is supplied
    by legislative definition or is apparent from the context, or the plain meaning leads to absurd results.”
    Fort Worth Transp. Auth. v. Rodriguez, 
    547 S.W.3d 830
    , 838 (Tex. 2018). In this analysis, we
    examine the language of the specific provision at issue within the context of the whole statute.
    El Paso Healthcare Sys., Ltd. v. Murphy, 
    518 S.W.3d 412
    , 418 (Tex. 2017). The Texas Supreme
    Court directs us to liberally construe lien statutes for the purpose of protecting claimants. First Nat.
    Bank in Dall. v. Whirlpool Corp., 
    517 S.W.2d 262
    , 269 (Tex. 1974); see Lyda Swinerton Builders,
    Inc. v. Cathay Bank, 
    409 S.W.3d 221
    , 235 (Tex. App.—Houston [14th Dist.] 2013, pet. denied).
    Analysis
    The parties dispute, as they did in the trial court, whether Section 53.101 required
    David to retain funds and, if so, whether Precision can recover the amount David was required to
    retain. We will assume without deciding that the statutory duty to retain applied and turn to whether
    Precision can recover that amount under Section 53.057. Precision argues that Sections 53.103 and
    .057 work together to allow a claimant to recover retained funds from the owners: Section 53.103
    creates a lien on the retainage and Section 53.057(f) makes the owners “personally liable” for
    the retainage.
    7
    Section 53.057(f) provides:
    (f) A claimant has a lien on, and the owner is personally liable to the
    claimant for, the retained funds under Subchapter E if the claimant:
    (1) gives notice in accordance with this section and:
    (A) complies with Subchapter E; or
    (B) files an affidavit claiming a lien . . . . and
    (2) gives the notice of the filed affidavit as required by
    Section 53.055.
    Tex. Prop. Code § 53.057(f). Precision focuses on the first sentence but ignores the other parts of
    Section 53.057. Subsection (a) provides:
    A claimant may give notice under this section instead of or in
    addition to notice under Section 53.056 or 53.252[3] if the claimant
    is to labor, furnish labor or materials, or specially fabricate materials,
    or has labored, furnished labor or materials, or specially fabricated
    materials, under an agreement with an original contractor or a
    subcontractor providing for retainage.
    
    Id. § 53.057(a).
    Subsections (b)-(e) dictate the time, manner, and necessary contents of the notice.
    See 
    id. §§ 53.057(b)-(e).
    The plain statutory language reflects that the legislature intended Section
    53.057 to address contractual, rather than statutory, retainage claims. See 
    Pham, 455 S.W.3d at 707
    (observing that the duty to retain can arise “either under a contractual agreement or under section
    53.101”). By providing that a person “has a lien on, and the owner is personally liable to the
    3
    See generally Tex. Prop. Code § 53.252 (setting out notice requirements for derivative
    claimants asserting a lien arising from a “residential construction project”).
    8
    claimant for, the retained funds under Subchapter E,” Section 53.057 details how a claimant can
    perfect a lien on contractual retainage.
    The location of Section 53.057 in the statutory scheme confirms its role as a notice
    provision. See 20801, Inc. v. Parker, 
    249 S.W.3d 392
    , 396 (Tex. 2008) (observing that when
    interpreting a particular provision, “we must consider its role in the broader statutory scheme”).
    Section 53.057 is part of Subchapter C, which lays out the default procedure for perfecting a lien
    under Chapter 53. After setting out the notice and filing requirements applicable to all claims,
    Section 53.056 imposes additional duties on subcontractors in general, and Section 53.058 applies
    to claimants who specially fabricated materials. See Tex. Prop. Code §§ 53.056, .058. Interpreting
    Section 53.057 as setting the notice requirements for contractual retainage claimants is consistent
    with that framework.
    Thus, even if David was under a contractual duty to retain, we would still look to
    Subchapter E to determine the Zavelsons’ liability. Precision argues that there must be a way for
    derivative claimants to hold the owners personally liable for the retainage, or the failure to retain,
    because Subchapter E (Sections 53.103 and .105) only creates a lien on the owner’s property rather
    than making the owners “personally liable.” However, “[a] lien is part and parcel of the underlying
    claim, the former existing only because of the latter.” Daughters of Charity Health Servs. of Waco
    v. Linnstaedter, 
    226 S.W.3d 409
    , 411 (Tex. 2007). A lien against certain property “is necessarily
    a claim against its owner.” 
    Id. By entitling
    the claimant to a lien on the retained funds, Section
    53.103 makes the owners “personally liable” for those funds. See id.; see also Exchange Sav.
    & Loan Ass’n v. Monocrete Pty. Ltd., 
    629 S.W.2d 34
    , 37 (Tex. 1982) (stating, under a previous
    version of Chapter 53, that “[t]he owner is personally liable for any funds paid to the original
    9
    contractor” in violation of the retainage provision). Similarly, Section 53.105 makes the owner who
    fails to retain funds subject to a lien against the property listed in section 53.105. See Tex. Prop.
    Code § 53.105.
    Precision nevertheless argues that this Court approved a judgment against property
    owners in a similar case. See W&W Floor Covering Co. v. Project Acceptance Co., 
    412 S.W.2d 379
    (Tex. App.—Austin 1967, no writ.). That case also concerned a subcontractor’s suit against property
    owners for work on their homestead. 
    Id. at 382.
    The owners did not comply with the duty to retain.
    
    Id. This Court
    held that the claimant was entitled to a judgment against the owners. 
    Id. However, we
    based our decision on a version of the lien statute with different language. At the time, article
    5463 provided:
    If the notices prescribed in Article 5453 have been received by the
    owner and claimant’s lien has been secured in accordance with
    Article 5453 and the claim or any part thereof is reduced to final
    judgment, the owner shall be required to pay, and his property shall
    be liable for, any money that he may have paid to the contractor after
    he is authorized to retain such money by virtue of this Article.
    Act of June 17, 1961, 57th Leg., R.S., ch. 382, § 6, art. 5463(2), 1961 Tex. Gen. Laws 863, 868
    (repealed 1983). When the legislature repealed this statute and enacted the Property Code, it
    included similar language in Subchapter D, which addresses “trapped” funds. See generally Tex.
    Prop. Code §§ 53.081-.085. Under Subchapter D, a subcontractor can send notice to the owner that
    it has not been paid a certain amount, which triggers the owner’s duty to withhold from the original
    contractor “an amount necessary to pay the claim for which he receives notice.” 
    Id. § 53.081(a).
    If
    certain conditions are met, “the owner is liable and the owner’s property is subject to a claim for any
    10
    money paid to the original contractor after the owner was authorized to withhold funds under this
    subchapter.”4 
    Id. § 53.084(b).
    If the legislature wanted to include similar language in Subchapter
    E, it could have done so expressly. See Twin Creeks Golf Grp. v. Sunset Ridge Owners Ass’n,
    
    537 S.W.3d 535
    , 541 (Tex. App.—Austin 2017, no pet.) (declining to interpret Section 82.0675 of
    the Property Code to exempt condominium owners because if the legislature had intended to exempt
    them, “it could have done so expressly”).
    Precision maintains that a lien on the owner’s property cannot be a derivative
    claimant’s sole remedy for the failure to retain because it would undermine the statutory purpose of
    protecting subcontractors and other derivative claimants working on homesteads. Precision argues
    that such persons are usually not in a position to see that the “highly technical legalities” to fix a lien
    to a homestead are fulfilled. We acknowledge these concerns, but Precision’s argument would
    require us to read new language into Section 53.105. The Texas Supreme Court instructs us that “[a]
    court may not judicially amend a statute by adding words that are not contained in the language of
    the statute. Instead, it must apply the statute as written.” ExxonMobil Pipeline Co. v. Coleman,
    
    512 S.W.3d 895
    , 900 (Tex. 2017) (per curiam) (quoting Lippincott v. Whisenhunt, 
    462 S.W.3d 507
    ,
    508 (Tex. 2015) (per curiam)).
    We conclude that a claimant’s remedy for an owner’s failure to retain funds is a lien
    on the owner’s property as provided in Section 53.105. Having released its lien on the Property,
    Precision was accordingly not entitled to summary judgment. We overrule Precision’s first issue.
    4
    Precision argues several times in its briefs to this Court that Section 53.084 also entitles
    it to a judgment against the Zavelsons. However, Precision does not argue that David was under a
    duty to “trap” funds or that it fulfilled the other requirements in Subchapter D. On this record, we
    cannot conclude that the Zavelsons are liable to Precision under Section 53.084.
    11
    Advisory Opinion
    Precision’s next argument is that the portion of the trial court’s judgment that
    provides the lien against the Property is “hereby expunged and removed” constitutes an advisory
    opinion because Precision’s release of its lien mooted the issue of whether the lien attached.
    A case becomes moot when there is no longer a justiciable controversy between the
    parties or if the parties lack a cognizable interest in the outcome. Heckman v. Williamson Cty.,
    
    369 S.W.3d 137
    , 162 (Tex. 2012). “Put simply, a case is moot when the court’s action on the merits
    cannot affect the parties’ rights or interests.” 
    Id. If a
    case becomes moot, the court loses jurisdiction
    because any decision rendered at that point would be an advisory opinion. Matthews v. Kountze
    Indep. Sch. Dist., 
    484 S.W.3d 416
    , 418 (Tex. 2016).
    We cannot agree that Precision’s lien release mooted any claim against the Property
    because Precision’s claim against the Zavelsons rested on the same affidavits. Precision itself stated
    in the release that because:
    filing of the Affidavits were still required for perfection of and pursuit
    of [Precision’s] liens afforded under Subchapter E of Chapter 53 of
    the Texas Property Code against the Retainage and Claimant’s claims
    for personal judgment against Owners for failing to comply with the
    duty to withhold the Retainage as asserted in the Litigation,
    [Precision] cannot release the Affidavits entirely without prejudicing
    [Precision’s] claims against [the Zavelsons] personally.
    Despite the ostensible release of the lien and claim against the Property itself, Precision’s claim was
    still present in the real property records for the Property. The validity of the lien claimed in those
    affidavits was the principal controversy between the parties, and expunging them from the property
    records was necessary to grant the Zavelsons complete relief. Because the validity of the lien
    12
    claimed in the affidavits filed in the county records for the Property remained a live controversy, the
    trial court did not render an invalid advisory opinion.
    We overrule Precision’s second issue.
    Attorney’s Fees
    Precision challenges the trial court’s award of fees in its final two issues. “In any
    proceeding to foreclose a lien . . . or in any proceeding to declare that any lien or claim is invalid or
    unenforceable in whole or in part, the court shall award costs and reasonable attorney’s fees as are
    equitable and just.” Tex. Prop. Code § 53.156. We review an fee award under Section 53.156 for
    an abuse of discretion. Wesco Distribution, Inc. v. Westport Grp., 
    150 S.W.3d 553
    , 562 (Tex.
    App.—Austin 2004, no pet.). A trial court abuses its discretion by ruling without reference to
    guiding rules or principles. Miller v. JSC Lake Highlands Operations, LP, 
    536 S.W.3d 510
    , 513
    (Tex. 2017).
    Precision asserts the trial court abused its discretion in denying its attorney’s fees
    request because Precision was entitled to prevail on the merits and that insufficient evidence supports
    the $15,374 attorney’s fees award to the Zavelsons. Because we have already concluded that the trial
    court correctly granted relief to the Zavelsons, we overrule Precision’s third issue. Precision’s final
    argument is that insufficient evidence supports the award because the Zavelsons only presented
    evidence of $11,288.65 in fees and costs. Subject to its other arguments on appeal, Precision does
    not dispute that an award of $11,288.65 would be reasonable and just and asks us to reduce the
    award to that amount. The Zavelsons agree that the evidence is insufficient and also request that we
    modify the judgment to reduce the award to $11,288.65. After reviewing the record, we agree that
    13
    the Zavelsons presented sufficient evidence to support an award of $11,288.65 but not the $15,374
    awarded in the trial court’s judgment. We sustain Precision’s fourth issue.
    CONCLUSION
    We modify the trial court’s judgment to reduce the award of attorney’s fees and costs
    to $11,288.65, and affirm the judgment as modified. See Tex. R. App. P. 43.2(b).
    _________________________________________
    Cindy Olson Bourland, Justice
    Before Justices Puryear, Field, and Bourland
    Modified and, as Modified, Affirmed
    Filed: November 9, 2018
    14