William R. Vance, Jr., Individually and as Independent of the Estate of Florene K. Grace v. Carolyn G. Vance ( 2010 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-10-00161-CV

William R. Vance, Jr., Individually

and as Independent Executor of the

Estate of Florence K. Grace, Deceased,

                                                                                                Appellant

v.

CAROLYN G. VANCE,

                                                                                                Appellee

From the County Court at Law No. 1

Brazos County, Texas

Trial Court No. 12,787-PC

ORDER OF RECUSAL

            I hereby recuse myself from further participation in this case.  Tex. Code Jud. Conduct, Cannons 1, 2, and 3, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. B (Vernon 2005); Tex. R. App. P. 16.2; and Tex. R. Civ. P. 18b(2)(a).

                                                                        TOM GRAY

                                                                        Chief Justice

                                                                        Date: May 18, 2010

in-right: 0.5in">27: Dealers did not incur any reasonable and necessary attorneys fees in connection with trial or appeal of this case.

28 and 29: Hartford did not act as a surety on any payment bond on the two units.

Conclusions of Law

30: Dealers' claim against Williams and Hartford was based only on Article 5160, Tex. R. Civ. Stat.

31: Dealers was required to notice Williams of amounts claimed on or before the 36th day following the 10th day of the month following delivery of materials for which it claims it was not paid, before it could enforce any right of action against Williams pursuant to Article 5160B(b)(2), Tex. R. Civ. Stat.

32: Dealers' notice to Williams of July 15, 1987, would only be sufficient to support recovery by Dealers for materials delivered in May 1987, for which it had not been paid.

33: Dealers failed to give sufficient notice to Williams of the claims pursuant to Article 5160B(b)(2), Tex. R. Civ. Stat.

34: The amounts claimed by Dealers to be due from Williams are not just, true, and due.

35:Williams is entitled to credit for amounts paid jointly to Dealers and Fort Bend.

36:Dealers is not entitled to recover any amounts by way of its cause of action against Williams and Hartford.

Dealers' 14 points of error may be profitably summarized as

follows:

(1) The trial court erred in finding that Dealers had no direct contractual relationship with Defendants for the construction of the Beto and Trusty Camp Units, because the evidence conclusively established the opposite. (Findings 14,15).

(2) The trial court erred in finding that no materials were delivered by Dealers for either unit during or after May 1987, for which Dealers was not paid, because the evidence established that materials were delivered to the Trusty Camp Unit from 4/27/87 through 5/21/87, and to the Beto Unit from 4/24/87 through 5/18/87. (Findings 20, 21).

(3) The trial court erred in finding that Dealers was paid $233,247.98 for material for the two units, because the evidence conclusively established that Dealers did not receive all of such funds, nor were such funds paid during a period relevant to Dealers' claim. (Finding 22).

(4) The trial court erred in finding that Dealers turned over $104,983.80 of such $233,247.98 to Fort Bend without giving Williams credit therefor, because such finding is against the great weight and preponderance of the evidence. (Finding 23).

(5) The trial court erred in finding that Dealers turned over to Fort Bend $31,727.40, on May 21, 1987, because the uncontroverted evidence shows that such payment was for invoices through 4/20/87. (Finding 24).

(6) The trial court erred in finding Williams had paid all amounts due and owing to Dealers on the two units because the only evidence shows payment for invoices through April 20, 1987. (Finding 25).

(7) The trial court erred in finding that Dealers incurred no attorney's fees because the finding is against the great weight and preponderance of the evidence. (Finding 27).

(8) The trial court erred in finding that Hartford did not act as a surety on any payment bond on the two units. (Findings 28, 29).

(9) The trial court erred in concluding that Dealers was required to give the "36 day rule" notice, because Dealers was in contractual relationship with Williams and the "90 day rule" applied. (Conclusion 31).

    (10) The trial court erred in concluding that the July 15, 1987, notice would only be sufficient to support recovery for materials delivered in May 1987, because Dealers was in contractual relationship with Williams, and the July 15, 1987, notice covered all deliveries in April, May, and June 1987, under the "90 day rule." (Conclusion 32).

    (11) The trial court erred in concluding that Dealers failed to give sufficient notice to Williams of the claim under Article 5160B(b)(2) Tex. R. Civ. Stat., because the only evidence shows proper notice on July 15, 1987, well within the "90 day rule." (Conclusion 33).

    (12) The trial court erred in concluding that the amounts claimed by Dealers are not just, true, and due, because the only evidence shows Dealers to be entitled to either $16,131.89 and $4,800.54, or the amounts of $18,093.24 and $8,421.20. (Conclusion 34).

    (13) The trial court erred in concluding that Williams is entitled to credit for the amounts paid jointly to Dealers and Fort Bend, because it is uncontroverted that Williams has paid upon no invoices for materials delivered after April 20, 1987. (Conclusion 35).

    (14) The trial court erred in concluding that Dealers is not entitled to recover any amounts against Williams and Hartford because such conclusion is against the great weight of the evidence. (Conclusion 36).

We address first Dealers's points 1, 2, 9, 10, 11, 12, and 14. Williams, the contractor, is liable to all who have furnished material directly to him. However, as to derivative claimants who have furnished material to a subcontractor, the obligation arises by virtue of the statutes, and in order to recover against the contractor as well as against the surety, the derivative claimant must file his itemized claims in compliance with the statute.

The statute relevant to this case provides for a 36-day notice for a claimant who does not have a contractual relationship with the contractor and for a 90-day notice for a claimant who has a contractual relationship with the contractor. Both provisions require that notice be given 36 or 90 days, as the case may be, from the date of delivery of the materials. See TEX. REV. CIV. STAT. ANN. art. 5160B(a),(b) (Vernon 1987).

  Plaintiff here failed to offer any evidence of the date it delivered the materials involved. See Rife Constr. Co. v. Brans, 298 S.W.2d 254, 262 (Tex. Civ. App.--Dallas 1956, writ ref'd n.r.e.); Metropolitan Cas. Ins. Co. of New York v. Texas Sand & Gravel Co., 68 S.W.2d 551, 553 (Tex. Civ. App.--Waco 1934, writ dism'd). Dealers, having failed to show the date of delivery of the materials furnished the subcontractor, has failed to show that it gave timely notice of its claim. Thus it has failed to establish its derivative claim against Williams. Points 1, 2, 9, 10, 11, 12, and 14 are overruled.

We next address Plaintiff's points 3, 4, 5, 6, and 13. To review, these points assert that the trial court erred in finding that Plaintiff was paid $233,247.98; that Plaintiff turned over $104,983 of said sum to Fort Bend without giving Plaintiff credit therefor; that Plaintiff turned over $31,727 on May 21, 1987; that Williams had paid all amounts owing to Plaintiff on the two units; and that Williams is entitled to credit for the amounts paid jointly to Dealers and Fort Bend.

Dealers failed to prove the date of delivery of the materials furnished. Without such proof, Dealers could not prove that it gave either the 36-day or the 90-day notice, nor could it establish a derivative cause of action against Williams. Moreover, the evidence shows Williams paid Dealers a total of $233,247.98 for materials used in the construction of the two units, $104,983.80 of which Dealers turned over to Fort Bend. The evidence is undisputed that Dealers endorsed the checks and turned them over to Fort Bend without giving Williams any credit therefor. Finally, the trial court concluded, with justification, that Williams was entitled to credit for the amounts paid jointly to Dealers and Williams.

The issuance and acceptance of checks payable jointly to a supplier and a subcontractor constitute payment by the contractor to the supplier so as to preclude enforcement of a materialman's lien. Friedman Steel Sales, Inc. v. Texas Utilities Co., 574 S.W.2d 849 (Tex. Civ. App.--Texarkana 1978, writ ref'd n.r.e.); F. & C. Engineering Co. v. Texas Utilities Co., 300 S.W.2d 323, 327 (Tex. Civ. App.--San Antonio 1957, writ ref'd n.r.e.). Points 3, 4, 5, 6, and 13 are overruled. Points 7 and 8 become immaterial under our view of the case, and are overruled.

The judgment of the 74th Judicial District Court, McLennan County, Texas, is affirmed.

                                             Terry R. Means

DO NOT PUBLISHJustice