Big H Construction, Inc. v. Richard S. Hensley ( 2011 )

Opinion issued March 31, 2011.   

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00379-CV

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Big H Construction, Inc., Appellant

V.

Richard S. Hensley, Appellee

On Appeal from the County Court at Law Number Three

Galveston County, Texas

Trial Court Case No. 61,298

MEMORANDUM OPINION

          In this construction contract dispute, Big H Construction, Inc. appeals a judgment granted in favor of Richard and Katherine Hensley.  Big H Construction contends that the trial court erred in granting a summary judgment under section 53.160 of the Texas Property Code on the day of trial because it did not receive timely notice of the hearing on the motion.  See Tex. Prop. Code Ann. § 53.160 (West 2009).  We agree.  We therefore reverse and remand. 

Background

          In September 2007, Big H Construction and Richard Hensley executed a written contract, in which Big H Construction agreed to improve the Hensley residence in exchange for $3,000.  Richard Hensley made a down payment of $1,500 and agreed to pay another $1,500 when Big H Construction completed its work.  In October 2007, Big H Construction filed an affidavit with the Galveston County Clerk to perfect a mechanic’s and materialman’s lien of $1,500 on the Hensley residence.  In the affidavit, the president of Big H Construction averred that Richard Hensley had failed to pay the $1,500 balance due on the contract, even though Big H Construction had completed the improvements.    

          In August 2009, the Hensleys sued for a declaratory judgment to set aside Big H Construction’s lien affidavit and for attorney’s fees.   Big H Construction filed a general denial and asserted counterclaims against Richard Hensley based on his failure to pay the outstanding $1,500 on the contract and on the theory of quantum meruit for improvements that it made to the Hensley residence.  The Hensleys answered the counterclaims, arguing that the contract was void.  Big H Construction requested a jury trial, and the court set the case for trial in March 2010.     

          On March 9, 2010, the Hensleys filed a summary motion under section 53.160 of the Texas Property Code, asking that the trial court declare Big H Construction’s lien and contract invalid and unenforceable. See Tex. Prop. Code Ann. § 53.160 (West 2009) (allowing party objecting to mechanic’s and materialman’s lien as invalid or unenforceable to file summary motion to remove lien).  On the same day, they allegedly served Big H Construction with the motion.  In the motion, the Hensleys contended that the lien was invalid and unenforceable because: (1) Katherine Hensley did not also sign the contract for the improvement on their residence, as section 53.254(c) of the Texas Property Code requires, and (2) Big H Construction did not file the contract with the county clerk, as section 53.254(e) of the Texas Property Code requires.  See Tex. Prop. Code Ann.                  § 53.254 (West 2009).  They also asserted that Big H Construction also did not deliver a disclosure statement to Richard Hensley before he executed the contract, as section 53.255 of the Texas Property Code requires.  See Tex. Prop. Code Ann. § 53.255 (West 2009).  

          Eight days later, on March 17, 2010, the date of trial, the trial court held a pretrial hearing and considered the Hensleys’ summary motion.  According to the Hensleys, the only issue for the trial court to decide was the attorney’s fees that they incurred in invalidating the lien.  In response, Big H Construction moved to strike the summary motion because the Hensleys failed to give 21-days’ notice of a hearing on the motion, as section 53.160(c) of the Texas Property Code requires. See Tex. Prop. Code Ann. § 53.160(c) (West 2009).    

          The trial court denied Big H Construction’s motion to strike in a written order and granted the Hensleys’ summary motion.  The court dismissed the jury panel and held a hearing on the attorney’s fees.  The court entered a judgment in favor of the Hensleys along with findings of fact and conclusions of law.  In the judgment, the court decreed that the contract between the parties was void and unenforceable, and the mechanic’s and materialman’s lien was void.  It also awarded the Hensleys attorney’s fees.

Discussion

Appellate Jurisdiction

          We review issues affecting our appellate jurisdiction sua sponte.  M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004).  Here, the trial court’s judgment does not explicitly address Big H Construction’s quantum meruit claim.  But, at the hearing on their summary motion, the Hensleys contended that Big H Construction could not recover on its contract and quantum meruit claims.  The trial court agreed and granted the motion.  The court stated that the only issue left to decide in the case was attorney’s fees and, as a result, dismissed the jury panel.  The record indicates that the court intended the judgment to dispose of all claims and of the entire case.  We hold that the record reflects that the parties and the trial court intended the judgment to be final.  See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex. 2001) (holding that “an order that all parties appear to have treated as final may be final despite some vagueness in the order itself”).

Notice

          Big H Construction contends that the trial court erred in granting Hensley’s summary motion because it did not receive timely notice of the hearing on the motion. Section 53.160 of the Texas Property Code provides in relevant part:

          (a) In a suit brought to foreclose a lien or to declare a claim or lien invalid or unenforceable, a party objecting to the validity or enforceability of the claim or lien may file a motion to remove the claim or lien . . .

. . . .

(c)  The claimant is not required to file a response.  The claimant and any other party that has appeared in the proceeding must be notified by at least 21 days before the date of the hearing on the motion . . .

Tex. Prop. Code Ann. § 53.160 (a,c) (West 2009). Section 53.160(c) expressly provides that the nonmovant is entitled to 21-days’ notice of the hearing on the motion. Here, the Hensleys filed their summary motion on March 9, 2011, and served Big H Construction with it on the same day.  The trial court conducted a hearing on the motion on March 17, 2011.  The Hensleys did not comply with the notice requirement of the statute.   

          In response, the Hensleys maintains that Big H Construction did not preserve error on this issue.  Lack of proper notice is a non-jurisdictional defect that the nonmovant can waive.  See May v. Nacogdoches Mem’l Hosp., 61 S.W.3d 623, 626 (Tex. App.—Tyler 2001, no pet.); see also White v. Wah, 789 S.W.2d 312, 319 (Tex. App.—Houston [1st Dist.] 1990, no writ).  To preserve error for a complaint regarding late notice of a summary judgment hearing, a nonmovant who receives notice that is untimely but sufficient to enable the nonmovant to attend the hearing must move for continuance or raise the late-notice complaint in writing.  May, 61 S.W.3d at 626; Rios v. Texas Bank, 948 S.W.2d 30, 33 (Tex. App.—Houston [14th Dist.] 1997, no writ).  Here, the record reflects that Big H Construction presented a written objection to the trial court complaining that Hensley violated the 21-days’ notice requirement. The trial court overruled the objection in a written order.  In addition, Big H Construction objected at the hearing and quoted the text of section 53.160(c) for the court.   Accordingly, Big H Construction preserved its late-notice complaint for our review.  See May, 61 S.W.3d at 626; Rios, 948 S.W.2d at 33.  We hold that the trial court erred in granting the Hensleys’ summary motion because Big H Construction did not receive the required 21-days’ notice of the hearing.[1]  Given our disposition on this issue, we do not address the remaining issues raised by Big H Construction.[2]

Conclusion

We reverse the judgment and remand the cause to the trial court.

                                                                   Jane Bland

                                                                   Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

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[1] We also note that even if we construe the Hensleys’ summary motion as a traditional summary judgment motion the trial court still erred in granting it because, in a summary judgment proceeding, the nonmovant also is entitled to 21-days’ notice of the hearing or submission.  See Tex. R. Civ. P. 166a(c); see also Chadderdon v. Blaschke, 988 S.W.2d 387, 388 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (reversing trial court’s grant of summary judgment in favor of movant because movant did not provide proper notice of hearing to nonmovant).  

[2] Although we do not address the merits of the Hensleys’ summary motion, we note that section 53.160 of the Texas Property Code only authorizes the trial court to enter an order removing the lien claimed in a lien affidavit.  See Tex. Prop. Code Ann. § 53.160(e) (West 2009).  Section 53.160 does not authorize the trial court to invalidate a contract and rule summarily on other claims raised by the parties.