Gustavo Arias D/B/A Gus Trucking Service v. Brookstone, L.P. and Liberty Mutual Insurance Company

Opinion

Opinion issued April 3, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00746-CV

GUSTAVO ARIAS D/B/A GUS TRUCKING SERVICE, Appellant

V.

BROOKSTONE, L.P. AND LIBERTY MUTUAL INSURANCE COMPANY, Appellees

and

SITE WORK GROUP, INC., Appellant

V.

GUSTAVO ARIAS D/B/A GUS TRUCKING SERVICE, Appellee

and

BROOKSTONE, L.P., Appellant

V.

SITE WORK GROUP, INC., Appellee

On Appeal from the 190th District Court

Harris County, Texas

Trial Court Cause No. 2003-54015

OPINION DISSENTING FROM DENIAL OF REHEARING

Our December 20, 2007 opinion interpreting section 53.055 of the Property Code holds that a person claiming a mechanic's, contractor's, and materialman's lien against property may satisfy the requirements of the section by sending a copy of the lien affidavit to the owner of the property at any time before the lien is filed with the county clerk or within five days thereafter. See Tex. Prop. Code Ann. § 53.055 (Vernon 2007) ("Notice of Filed Affidavit"). In their motion for rehearing, appellees Brookstone, L.P. and Liberty Mutual Insurance Company argue that section 53.055 is designed to give notice of the date of filing of the lien, that "notice" of filing sent prior to the filing cannot give notice of the actual filing, and that our holding upsets a carefully articulated statutory scheme and is incorrect. I agree with appellees, and, therefore, I respectfully dissent from denial of rehearing.

Property Code section 53.055(a) states:

A person who files an 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.

Tex. Prop. Code Ann. § 53.055(a) (Vernon 2007) (emphasis added).

Despite the plain language of section 53.055 stating that a person who files a lien affidavit must send a copy . . . to the owner of the property against which the lien has been filed "not later than the fifth day after the date the affidavit is filed with the county clerk," and despite the title, "Notice of Filed Affidavit,'" our December 12, 2007 opinion holds that the person filing the lien can comply with the notice statute by simply sending a copy of the lien affidavit at any time before the lien is filed so long as the copy of the affidavit is sent not later than five days after the lien is actually filed. Such an interpretation gives no notice of the actual date of filing of the lien. In other words, it contravenes the very purpose of the statute, which is to give notice. It also contravenes the plain language of the statute and its title. Thus, I disagree with our December 20, 2007 holding.

I likewise agree with appellees' reasoning in their motion for rehearing and disagree with the reasoning by which we reached the December 20, 2007 holding. In reaching our conclusion in that opinion, we distinguished and effectively overruled a prior opinion of this Court, Cabintree, Inc. v. Schneider, 728 S.W.2d 395, 397 (Tex. App.--Houston [1st Dist.] 1986, writ ref'd), which construed a previous version of section 53.055, article 5453(1) of the Texas Revised Civil Statutes. At the time Cabintree was decided, section 53.055 provided that a person who filed an affidavit "must send two copies of the affidavit by registered or certified mail to the owner," but it set no deadline for compliance with the section. See Cabintree, 728 S.W.2d at 396. We noted that the then current version of section 53.055 was silent as to when the notice must be sent, but we followed the rule of construction that when prior law has merely been recodified without substantive revision, as the Texas Property Code was in 1984, the wording and context of the prior law is controlling. Id. at 397; see also Tex. Prop. Code Ann. § 1.001 (Vernon 1984) (classifying Texas Property Code as non-substantive revision of Texas Revised Civil Statutes). We held that "the notice of filed affidavit must be sent to the owner within the same period applicable to the filing of the affidavit," stating, "The purpose of § 53.055 is to ensure that the owner receives actual notice that an affidavit has been filed against his property so that he will be able to take steps to protect himself. This purpose is frustrated if the notice is not sent in a timely manner." Id. at 396-97.

In our December 20, 2007 opinion in this case, we repudiated not only the holding but the reasoning in Cabintree, stating "Our prior analysis in Cabintree, based on the text of former article 5453(1), is no longer a permissible means of statutory construction, and we decline to follow the dicta from Cabintree that notice must be given after the lien affidavit has been filed." Arias v. Brookstone, 01-05-00746-CV, 2007 WL 4465517, at *3 (Tex. App.--Houston [1st Dist.] Dec. 20, 2007, no pet. h.). Citing Fleming Foods of Texas, Inc. v. Rylander, 6 S.W.3d 278 (Tex. 1999), as authority, we stated that "courts may not look back to the former text of a statute which has been 'nonsubstantively' codified if the current text is direct and unambiguous." Arias, 2007 WL 4465517, at *3.

Appellees argue that our December 20 opinion misconstrues Fleming Foods. I agree. In Fleming Foods, the Texas Supreme Court held that an express change in the terms of a statute by the Legislature upon recodification overrides contrary language in the prior version of the statute regardless of a general provision in the Code stating that recodification is not intended to make substantive changes in the law. See 6 S.W.3d at 283-84. The supreme court explained:

Under the Code Construction Act, see Tex. Gov't Code §§ 311.001-.032, . . . courts may consider prior law, the circumstances under which the law was enacted, and legislative history among other matters to aid them in construing a code provision "whether or not the statute is considered ambiguous on its face," Tex. Gov't Code Ann. § 311.203. But prior law and legislative history cannot be used to alter or disregard the express terms of a code provision when its meaning is clear from the code when considered in its entirety, unless there is an error such as a typographical one. Nor can the Code Construction Act's directive to the Legislative Council to refrain from changing the sense, meaning, or effect of a previous statute, see id. § 323.007(b), be used as a basis to alter the express terms of a code that the Legislature enacts as law, even when the Council's language does change the prior, repealed law.

6 S.W.3d at 283-84. The court then instructed that the Legislature's general statement that "no substantive change in the law is intended" by recodification "must be considered with the clear, specific language used" in the recodified sections. Id. at 284.

In my view, our December 20, 2007 opinion erroneously interprets Fleming Foods as holding that "courts may not look back to the former text of a statute which has been 'nonsubstantively' codified if the current text is direct and unambiguous." Arias, 2007 WL 4465517, at *3. The opinion then goes on to interpret the notice language in current section 53.055--which expressly mandates that "[a] person who files an affidavit must send a copy of the affidavit by registered or certified mail to the owner . . . not later than the fifth day after the date the affidavit is filed"--as actually meaning the opposite of what it directly and unambiguously says, namely, as meaning that the affidavit need not be on file when notice of a filed affidavit is sent and that the notice need not be sent within five days "after the date the affidavit is filed."

I cannot agree with our interpretation of the mandate of Fleming Foods or with our conclusion that current section 53.055 clearly and specifically requires us to hold that a "notice of filed affidavit" may be given before the affidavit is filed. As Fleming Foods states, proper code construction requires that in determining the meaning of a statute in an integrated code chapter, we consider the code in its entirety. See Fleming Foods, 6 S.W.3d at 282 ("The doctrine of legislative acceptance contemplates that "'[a] statute of doubtful meaning that has been construed by the proper administrative officers, when re-enacted without any substantial change in verbiage, will ordinarily receive the same construction.'"); see also Tex. Gov't Code Ann. §§ 311.021, ⁽¹⁾

311.023 ⁽²⁾ (Vernon 2005). Indeed, the Texas Supreme Court has specifically directed that

we must always consider the statute as a whole rather than its isolated provisions. We should not give one provision a meaning out of harmony or inconsistent with other provisions, although it might be susceptible to such a construction standing alone. We must presume that the Legislature intends an entire statute to be effective and that a just and reasonable result is intended.

Helena Chemical Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001) (citations omitted); see also Ken Petroleum Corp. v. Questor Drilling Corp., 24 S.W.3d 344, 350 (Tex. 2000) (citing Fleming Foods and section 311.023 of the Government Code and stating that "[i]n determining legislative intent, the Legislature has instructed that we may consider, among other things, the object the Legislature sought to obtain, the circumstances under which the statute was enacted, legislative history, and the consequences of a particular construction").

Section 63.055 is an integral part of a statutory scheme governing the perfection of mechanic's, contractor's and materialman's liens. See, e.g., Tex. Prop. Code Ann. §§ 53.051 ("To perfect the lien, a person must comply with this subchapter."); 52.052 (setting out deadlines for person claiming lien to file affidavit, running from day on which indebtedness accrues and requiring clerk to record affidavit); 53.053 (setting deadlines for accrual of indebtedness); 53.054(a) and (b) (setting out contents of lien affidavit, including dates of each notice to owner); 53.056 (setting out requirements for notice by derivative claimant); and 53.081 (conveying authority to withhold funds for claimants).

Employing the rules of statutory construction, and considering the language and purpose of current section 53.055 and prior law, I agree with appellees that interpreting section 53.055 as requiring notice within 5 days after the filing of the lien accords with prior law, reflects the intent of the Legislature, preserves the statutory scheme set out in related sections within the same subchapter of the Texas Property Code, and is just and reasonable. See Cabintree, 728 S.W.2d at 397; Tex. Gov't Code Ann. § 311.021, 311.023(1). I would hold that Cabintree is good law and precedent in this Court and that Cabintree, the plain language of current section 53.055, and the foregoing considerations all support the interpretation that section 53.055 requires that an affidavit giving notice of a filed mechanic's, contractor's, or materialman's lien must be sent to the owner or reputed owner of the property against which the lien has been filed within five days after the lien is filed. An affidavit of filed lien sent before the lien is filed does not substantially comply with the statute. Because I would hold that a person does not comply with the Property Code by sending an affidavit of filed lien to the property owner prior to the filing of the lien, I would grant rehearing on this issue.

Evelyn V. Keyes

Justice

Panel consists of Justices Nuchia, Keyes, and Higley.

Justice Keyes, dissenting from denial of rehearing.

1. Section 311.021 provides, inter alia, that when the Legislature enacts a statute, "it is presumed that . . . (2) the entire statute is presumed to be effective" and "a just and reasonable result is intended." Tex. Gov't Code Ann. § 311.021 (Vernon 2005) (emphasis added).

2. Section 311.023 provides:

In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the:

(1) object sought to be attained;

(2) circumstances under which the statute was enacted;

(3) legislative history;

(4) common law or former statutory provisions, including laws on the same or similar subjects;

(5) consequences of particular construction;

(6) administrative construction of the statute; and

(7) title (caption), preamble, and emergency provision.

Tex. Gov't Code Ann. § 311.023 (Vernon 2005) (emphasis added).