9th district (Truss World, Inc. v. ERJA, Inc. ,No.
09-07-00432-CV, 284 SW3d 393, 02-12-09, pet. denied July
2009)(construction law, M&M lien, derivative claims, indemnity, construction bond)

In The

Court of Appeals

Ninth District of Texas at Beaumont

NO. 09-07-00432-CV





On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 03-12-08834 CV


Truss World, Inc. designed and sold trusses, used in residential construction, for ERJS, f/k/a America's Great
Homes, Inc. and America's Great Homes, Ltd. (AGH). AGH did not pay for some of the trusses, and Truss
World filed materialman's liens. AGH filed a summary motion to remove the liens. See Tex. Prop. Code Ann. §
53.160 (Vernon 2007). Bonds to indemnify against the liens were filed, naming Suretec Insurance Company as
the surety. See Tex. Prop. Code Ann. §§ 53.171-53.175 (Vernon 2007).

Truss World filed a countersuit against AGH for breach of contract, enforcement of the liens, and estoppel,
and also sued Suretec, the surety on the bonds. All Tex Financial, Inc., an assignee of Truss World's claims
and causes of action, and of accounts receivable owed by AGH, intervened and also sued AGH for fraud and
negligent misrepresentation.

Following a bench trial, a money judgment was rendered against AGH based on the breach of contract claim.
The court concluded Truss World "provided specially fabricated items/trusses to [AGH]." The trial court found
that "Truss World did not send notice to [AGH] for specially fabricated items as required by the Texas Property
Code prior to filing the Affidavits for Mechanic's and Materialman's Liens." The trial court concluded that Truss
World failed to perfect the liens, and ordered that Truss World and All Tex take nothing on the bonds. Truss
World and All Tex, Inc. appeal that take-nothing judgment. No other party filed a notice of appeal. No
cross-points are presented by Suretec or AGH.

The trial court erred in finding that Truss World failed to properly perfect the liens. We therefore reverse the
part of the judgment that provides appellants take nothing from Suretec, and remand the case to the trial court
to render judgment in favor of appellants on the bonds. See Tex. R. App. P. 43.3(a).

Original Contractor or Derivative Claimant?

Appellants argue the notice requirements of section 53.055 apply to an original contractor. See Tex. Prop.
Code Ann. § 53.055 (Vernon 2007). Appellants contend the trial court erred in not presuming, pursuant to
Texas Rules of Civil Procedure 54, that Truss World gave AGH the required notice under section 53.055
because notice and filing were pled and not specifically denied. See Tex. R. Civ. P. 54.

Appellants argue Truss World was not required to comply with section 53.058 of the Texas Property Code, a
provision applicable to derivative claimants. Generally, section 53.058 entitled "Derivative Claimant: Notice for
Specially Fabricated Items," states that -- for a lien to be valid for non-delivered specially fabricated items -- a
claimant who specially fabricates material must give the owner notice not later than the 15th day of the second
month after the month in which the claimant receives and accepts the order for the material. See Tex. Prop.
Code Ann. § 53.058(a),(b) (Vernon 2007); see also § 53.253 (Vernon 2007) (applicable to residential
construction projects). A subcontractor is a derivative claimant; an original contractor is not. See First Nat'l
Bank v. Sledge, 653 S.W.2d 283, 285 (Tex. 1983). Truss World asserts it is an original contractor.

For the purposes of mechanic or materialman liens, an "original contractor" is "a person contracting with an
owner either directly or through the owner's agent." Tex. Prop. Code Ann. § 53.001(7) (Vernon 2007). A
subcontractor is "a person who has furnished labor or materials to fulfill an obligation to an original contractor
or to a subcontractor to perform all or part of the work required by an original contract." Id. § 53.001(13).
Truss World contracted directly with the owner of the real property, AGH, to provide trusses to AGH.

AGH and Suretec argue, nevertheless, that Truss World's statement in the lien affidavits filed with the county
clerk, identifying Truss World as a subcontractor, constitutes a judicial admission that Truss World was in fact
AGH's subcontractor. Form requirements for materialmen's lien affidavits are to be liberally construed;
substantial compliance with the mechanic's and materialmen's lien statute authorizing the lien is sufficient. See
generally Gill Sav. Ass'n v. Int'l Supply, 759 S.W.2d 697, 700-01 (Tex. App.--Dallas 1988, writ denied) ("The
mechanic's and materialmen's lien statutes are to be liberally construed for the purpose of protecting laborers
and materialmen."). We decline to treat the statement in the lien affidavits as a binding judicial admission, but
instead look at the actual relationship of the parties and the purpose of the statute.

Truss World contracted directly with AGH and was an original contractor, not a subcontractor or derivative
claimant. See Tex. Prop. Code Ann. § 53.001(7),(13). As an original contractor, Truss World was not required
to serve additional notices required of a subcontractor or derivative claimant to perfect a lien claim.

Section 53.055

An original contractor must provide the owner notice pursuant to section 53.055 of the Texas Property Code
when filing a lien affidavit. See Tex. Prop. Code Ann. § 53.055 (Vernon 2007). Section 53.055 states in part
that "[a] person who files [a lien] affidavit must send a copy of the affidavit by registered or certified mail to the
owner or reputed owner at the owner's last known business or residence address not later than the fifth day
after the date the affidavit is filed with the county clerk." Id.

Requiring a lien affiant to give actual notice to the property owner of the lien ensures that a property owner will
not be ambushed by recorded liens of which he is unaware. New AAA Apartment Plumbers, Inc. v. DPMC-
Briarcliff, L.P., 145 S.W.3d 728, 730 (Tex. App.--Corpus Christi 2004, no pet.). Although section 53.055
requires that notice of a mechanic's and materialman's lien must be given to the property owner no later than
five days after the affidavit is filed, the statute does not prohibit giving notice before the lien affidavit is filed.
See Overseas Enters. USA, Inc. v. Whatley, No. 09-07-565 CV, 2008 Tex. App. LEXIS 8523, at *8 (Tex.
App.--Beaumont Aug. 28, 2008, no pet.)(mem. op.); Arias v. Brookstone, 265 S.W.3d 459, 465 (Tex.
App.--Houston [1st Dist.] 2007, pet. denied)("[T]he owner . . . can hardly claim to be hurt when . . . notified in
advance of the actual filing of the lien affidavit."); New AAA Apartment Plumbers, Inc., 145 S.W.3d at 730
(citing Hammons v. Tex. Pride Landscape, No. 05-99-980-CV, 2000 Tex. App. LEXIS 3025, 2000 WL 567108,
at *4 (Tex. App.--Dallas May 10, 2000, pet. denied) (mem. op.)); see also Tex. Prop. Code Ann. § 53.055.
Substantial compliance with the statute is sufficient to perfect the lien. See First Nat'l Bank v. Sledge, 653
S.W.2d 283, 285 (Tex. 1983) (predecessor statute).

Rule 54

Truss World alleged it would show it "filed and perfected" the liens. Truss World pled in its petition that, "On or
about November 25, 2002, Truss World mailed lien affidavits, certified mail, return receipt requested, informing
AGH of its intent to file liens on the property to secure its claim on the delinquent payments. And on December
3, 2002 Truss World filed lien affidavits on the properties." When a party pleads the performance or
occurrence of conditions precedent, the party pleading the conditions precedent is only required to prove at
trial those performances or occurrences that were specifically denied by the opposing party. Tex. R. Civ. P.
54. Essentially, Truss World's pleading asserted compliance with its notice obligations. See Tex. Prop. Code
Ann. § 53.055; see also Arias, 265 S.W.3d at 465. Appellants were not required to prove notice unless AGH
and Suretec specifically denied appellants gave the notice as pled, or otherwise specifically denied compliance
with section 53.055. See Tex. R. Civ. P. 54.

AGH and Suretec alleged in their answers that appellants' "failure to properly give notice as required by the
Texas Property Code for specially fabricated items" precluded the claims, and they asserted appellants did not
properly perfect the liens. AGH and Suretec alleged that the notice did not comply with sections 53.058 and
53.253. Contrary to the trial court's finding, however, the Property Code provisions dealing with "specially
fabricated items" are inapplicable here, because the Property Code notice requirements for "specially
fabricated items" apply to derivative claimants, not original contractors. See Tex. Prop. Code Ann. § 53.058.
The denial by AGH and Suretec was not a specific denial of notice under section 53.055. Furthermore, AGH's
and Suretec's broad denial in their answers, that appellants "fail[ed] to properly perfect its liens, pursuant to
the Texas Property Code[,]" failed to specifically state in what way the liens were not "properly perfected." The
assertion did not specifically deny that appellants gave notice as pled by appellants of the filing of the liens.
See generally Wade & Sons, Inc. v. Am. Std. Inc., 127 S.W.3d 814, 825-26 (Tex. App.--San Antonio 2003, pet.
denied)(A pleading "specifically denying that all conditions precedent" to plaintiff's right to recover have "been
performed" or "waived" was insufficient under Rule 54.).

Appellants also argue Rule 93(12) of the Texas Rules of Civil Procedure requires that a plea "[t]hat notice and
proof of loss or claim for damage has not been given as alleged" must be verified by affidavit and that "denial
of such notice or such proof shall be made specifically and with particularity." See Tex. R. Civ. P. 93(12). AGH
and Suretec cite Bunch Electric Company v. Tex-Craft Builders, Inc., 480 S.W.2d 42 (Tex. Civ. App.--Tyler
1972, no writ) in arguing that verification under Rule 93(12) is inapplicable here. In Bunch Electric the court
held that Rule 93(m), the prior version of Rule 93(12), did not apply to the procedure applicable under Article
5160 of the Texas Revised Civil Statutes. See Bunch Electric, 480 S.W.2d at 46. The court held article 5160
provided the procedure and remedy for presenting a claim against a payment bond on a public contract. See
id. at 45-46.

In Skinny's Inc. v. Hicks Brothers Construction Company, 602 S.W.2d 85, 90 (Tex. Civ. App.--Eastland 1980,
no writ), the court declined to follow the reasoning in Bunch Electric. The court applied the Rules of Civil
Procedure, specifically Rule 54, and held that the claimants were required to prove only the conditions
precedent specifically denied by the owner. See id. The owner could not assert, for the first time on appeal,
that there was no evidence of mailing copies of the lien affidavits to the owner by certified mail. The court
explained that "the general contractor and the subcontractor were required to prove only such conditions
precedent as were specifically denied by the owner." Id.

In City of Houston v. Flanagan, 446 S.W.2d 348, 349-50 (Tex. Civ. App.--Houston [1st Dist.] 1969, writ ref'd
n.r.e.), a personal injury lawsuit, the court held that Rule 54 and Rule 93(12)'s predecessor, Rule 93(m),
applied to all civil actions. See id. at 350. Although it seems arguable Rule 93(12) is also applicable to the
notice pleading here, we need not reach that specific issue. The Rules of Civil Procedure, including Rule 54,
apply to pleading requirements in civil actions like this one. See Skinny's, Inc., 602 S.W.2d at 90; Flanagan,
446 S.W.2d at 349-50. Pursuant to Rule 54, appellants were required to prove only the performances or
occurrences of conditions precedent pled that were specifically denied. See Tex. R. Civ. P. 54; Skinny's, Inc.,
602 S.W.2d at 90.

Truss World specifically pled performances or occurrences that were conditions precedent to establish the
liens: notice and filing. AGH's and Suretec's denials did not specifically address the "performances or
occurrences" as pled. Appellants were entitled to rely on their pleadings in the absence of a specific denial of
the performances or occurrences pled. Under the circumstances, notice as pled should have been presumed
by the trial court. See Tex. R. Civ P. 54. Appellants' issue is sustained.


The trial court concluded that Truss World provided the trusses and fully performed its obligations. The court
entered judgment for damages based on breach of contract. No party contests those conclusions or appeals
that award. We reverse only that part of the judgment providing appellants take nothing from the surety,
Suretec. The case is remanded for the trial court to render judgment on the surety bonds.





Submitted on September 8, 2008

Opinion Delivered February 12, 2009

Before Gaultney, Kreger, and Horton, JJ.