Wesco Distribution, Inc. v. Westport Group, Inc.

150 S.W.3d 553, 2004 Tex. App. LEXIS 3208, 2004 WL 741688
CourtCourt of Appeals of Texas
DecidedApril 8, 2004
Docket03-03-00438-CV
StatusPublished
Cited by42 cases

This text of 150 S.W.3d 553 (Wesco Distribution, Inc. v. Westport Group, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wesco Distribution, Inc. v. Westport Group, Inc., 150 S.W.3d 553, 2004 Tex. App. LEXIS 3208, 2004 WL 741688 (Tex. Ct. App. 2004).

Opinion

OPINION

DAVID PURYEAR, Justice.

Appellant, Wesco Distribution, Inc., appeals the judgment of the district court of Bastrop County granting appellee West-port Group Inc.’s motion for summary judgment to remove a materialman’s lien and awarding Westport attorney’s fees in the amount of $16,140.77. Wesco raises two issues on appeal, asserting: (1) the district court misinterpreted the notice provisions of sections 53.003 and 53.056 of the property code, see Tex. Prop.Code Ann. §§ 53.003, .056 (West 2002); and (2) the district court abused its discretion in awarding Westport attorney’s fees. We affirm the judgment of the district court.

FACTUAL BACKGROUND

Westport, a general contractor, agreed to build a dental office for E & M Properties and hired J & D Electric as its electrical subcontractor for the project. J & D Electric agreed to provide all the labor and materials necessary to perform the subcontract work. J & D Electric purchased some of the materials used in the dental office from Wesco, but failed to fully pay Wesco for these materials. On July 11, 2001, Wesco attempted to send notice by mail to Westport of J & D Electric’s outstanding bill for materials purchased between March 2001 and June 25, 2001, in order to notify Westport of Wesco’s claim for a materialman’s hen on the property. The post office returned this notice to Wesco because Wesco failed to attach sufficient postage. Wesco added postage and again mailed its notice to Westport on July 25, 2001. On July 19, Westport, having received no notice of lien, made a payment to J & D Electric. Although it is unclear when notice was actually received, it is clear that no payments were made by Westport after receipt of notice. By the time it received notice, Westport had paid J & D Electric almost everything it was owed. Wesco filed an affidavit claiming a lien on September 13, 2001.

Westport filed suit to remove Wesco’s claimed lien, and Wesco filed suit for damages and foreclosure of its lien. The two lawsuits were consolidated. Westport filed a summary motion “to remove invalid or unenforceable lien” pursuant to section 53.160 of the property code, and Wesco opposed the motion. See id. § 53.160. The trial court initially denied Westport’s summary motion, but when the parties filed cross-motions for summary judgment, the trial court granted Westport’s request for summary judgment made on the same grounds as its earlier motion. Wesco then brought this appeal.

STANDARD OF REVIEW

Because the propriety of a summary judgment is a question of law, we review the trial court’s decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994); Texas Dep’t of Ins. v. American Home Assurance Co., 998 S.W.2d 344, 347 (Tex.App.-Austin 1999, no pet.). The standards for reviewing a motion for summary judgment are well established: (1) the movant for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law; (2) evidence favorable to the nonmovant will be taken as true in deciding whether there is a disputed material fact issue precluding summary judgment; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in *556 its favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-9 (Tex.1985).

DISCUSSION

Construction of the Notice Provision

In Wesco’s first issue, it argues that the trial court mistakenly interpreted the notice provisions contained in the ma-terialman’s lien statute 1 by finding that Wesco did not comply with its terms. The statute sets out deadlines for giving notice of unpaid balances owed by subcontractors to materialmen to the original contractor and the property owner and requires timely notice as a prerequisite for a valid lien claim. 2 For Wesco’s lien claim to be valid, Wesco must have effectively notified West-port by July 15 of any unpaid balance for materials delivered in May. 3 Because it attempted to send a notice on July 11, before the deadline, Wesco argues that it timely notified Westport under the statute. When that notice was returned to Wesco for insufficient postage, and the notice was re-sent on July 25, 2001, Westport argued that there was no timely notice of lien for nonpayment for supplies delivered to J & D Electric prior to the end of May.

Wesco contends that its deposit of the notice with insufficient postage substantially complies with the statutory requirements of section 53.003 of the property code because Westport eventually received a notice. Despite the insufficient postage, it argues, Wesco deposited the notice within the statutory time period, and the statute requires nothing more. Westport responds that notice mailed with insufficient postage does not comply with statutory requirements because “sending” notice by mail necessarily includes attaching sufficient postage. Because Wesco failed to timely notify Westport of its lien claim, Westport argues, the lien it claims is invalid. We agree.

This case calls for interpretation of the notice provisions of Texas’s mechanic’s and materialman’s lien statute. See Tex. Prop. Code Ann. §§ 53.003, .056. Statutory interpretation is a legal matter subject to de novo review. Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex.2002); Pacesetter Pools, Inc. v. Pierce Homes, Inc., 86 S.W.3d 827, 831 (Tex.App.-Austin 2002, no pet.) (citing Trinity Indus., Inc. v. Ashland, Inc., 53 S.W.3d 852, 868 (Tex.App.Austin 2001, pet. denied)).

“The primary rule of statutory interpretation is to ascertain and give effect to the intent of the legislature.” Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581, 583 (Tex.App.-Austin 2000, pet. denied) (citing Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex.1994)). If the legislature’s intent can be gathered from a reasonable interpretation of the *557 statute as written, further implications are forbidden. Id. A court may not add words to a statute unless necessary to give effect to clear legislative intent. See Jones v. Liberty Mwt. Ins. Co., 745 S.W.2d 901, 902 (Tex.1988); Montemayor, 24 S.W.3d at 583. Courts should take into account the entire statute, not isolate disputed provisions. Texas Workers’ Compensation Commission v. Continental Casualty Company, 83 S.W.3d 901, 905 (Tex.App.-Austin 2002, no pet.).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re M & O Homebuilders, Inc.
516 S.W.3d 101 (Court of Appeals of Texas, 2017)
Crawford Services, Inc. v. Skillman International Firm, L.L.C.
444 S.W.3d 265 (Court of Appeals of Texas, 2014)
Avelo Mortgage, LLC v. Infinity Capital, LLC
366 S.W.3d 258 (Court of Appeals of Texas, 2012)
Morrell Masonry Supply, Inc. v. Lupe's Shenandoah Reserve, LLC
363 S.W.3d 901 (Court of Appeals of Texas, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
150 S.W.3d 553, 2004 Tex. App. LEXIS 3208, 2004 WL 741688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wesco-distribution-inc-v-westport-group-inc-texapp-2004.