Cheryl Waller v. R. S. Concrete, Inc.--Appeal from 113th District Court of Harris County

Affirmed and Memorandum Opinion filed May 17, 2005

Affirmedand Memorandum Opinion filed May 17, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00553-CV

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CHERYL WALLER, Appellant

V.

R. S. CONCRETE, INC., Appellee

On Appeal from the 113th District Court

Harris County, Texas

Trial Court Cause No. 02-52845

M E M O R A N D U M O P I N I O N

Appellant, Cheryl Waller, appeals the trial court s judgment ordering foreclosure of a lien in favor of appellee, R. S. Concrete, Inc. (RSC), for material that RSC supplied for the improvement of certain real property Waller owned. Waller contends the trial court erred in granting foreclosure because RSC failed to satisfy the statutory requirements for notice to Waller and therefore the lien was invalid. Waller also contends the trial court erred in failing to grant her oral motion for continuance to obtain a lawyer, and in failing to grant her motion for new trial on the basis of the lien s alleged invalidity. For the reasons stated below, we affirm.

I. Background

In 2000, Waller began a construction project on real property she owned. The property was not her homestead. She contracted with Luna Concrete and Construction and ultimately paid Juan Luna $29,600 for the construction project. In June of 2000, Luna placed an order for concrete with RSC, and RSC delivered the concrete to the property. Luna paid RSC for some of the concrete, but a balance remained in the amount of $8,686.70 because Luna had paid this amount with a check that was returned for insufficient funds.

In September 2000, RSC sent a bill to Waller for the unpaid balance. The bill was sent by certified mail, return receipt requested, and Waller does not dispute that she received it. In October of 2000, RSC filed a lien affidavit and claim in the Harris County real property records, and sent a copy to Waller. Two years later, RSC retained an attorney to sue Waller for the unpaid balance and to obtain judicial foreclosure of the lien.[1]

The case was tried to the court in one day in November 2003. Both parties announced ready. Waller represented herself pro se. During the trial, Waller made an oral request for a continuance, which the trial court denied. At the conclusion of the trial, the trial court announced that it rendered judgment in favor of RSC. On March 1, 2004, the trial court signed a judgment ordering foreclosure of RSC s lien on Waller s property.[2] Waller moved for a new trial prior to the entry of judgment, and the trial court denied the motion on June 7, 2004. This appeal followed.

II. The Validity of the Judgment

Waller s primary complaint on appeal is that the trial court erred by rendering judgment in favor of RSC, whose lien she claims was invalid because RSC s notice of its claim was inadequate under Texas Property Code section 53.056. That section prescribes the notice claimants other than an original contractor are to give owners before a materialman s lien may be imposed. To authorize the owner to withhold funds . . ., the notice to the owner must state that if the claim remains unpaid, the owner may be personally liable and the owner s property may be subjected to a lien unless: (1) the owner withholds payments from the contractor for payment of the claim; or (2) the claim is otherwise paid or settled. See Tex. Prop. Code 53.056(d). This language is sometimes referred to as the statutory warning. See Brown v. Dorsett Bros. Concrete Supply, Inc., 705 S.W.2d 765, 766 (Tex. App. Houston [14th Dist.] 1986, no writ) (holding absence of statutory warning rendered notice defective and lien unenforceable). A claimant must give the notice prescribed by section 53.056 for the lien to be valid. Tex. Prop. Code 53.056(a).

The bill Waller received was in the form of a letter informing her of the unpaid balance for the materials shipped to her property. The letter directed Waller to pay the full amount immediately to avoid further action, but it did not include the statutory warning language. In response, RSC contends that Waller has waived this issue, and even if she has not waived it, RSC substantially complied with the notice requirement because the billing was in its usual and customary form. See id. 53.056(f) ( A copy of the statement or billing in the usual and customary form is sufficient as notice under this section. ).

We need not determine whether RSC s notice was sufficient, however, because we agree that Waller waived this issue. Although Waller complains that RSC represented to the trial court that it had perfected its lien, at no time did Waller raise the issue of inadequate notice to the trial court. Other than fundamental error, to preserve a complaint for appellate review, a party must present to the trial court a timely request, motion, or objection with sufficient specificity as to make the trial court aware of the complaint, unless the specific grounds are apparent from the context. See Tex. R. App. P. 33.1(a). This rule is to ensure that the trial court has the opportunity to rule on matters for which parties later seek review in the appellate court. Dolcefino v. Randolph, 19 S.W.3d 906, 926 (Tex. App. Houston [14th Dist.] 2000, pet. denied).

Waller suggests in her statement of the issues that the trial court committed fundamental error by upholding the allegedly defective lien. However, the Texas Supreme Court has described fundamental error as a discredited doctrine. See In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003). Fundamental error exists only in those rare instances in which the record shows the court lacked jurisdiction or that the public interest is directly and adversely affected as that interest is declared in the statutes or the Constitution of Texas. Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982) (per curiam). Waller does not contend the court lacked jurisdiction, and she does not argue that the alleged error directly and adversely affected the public interest as declared in the statutes or the Constitution of Texas.

For these reasons, we overrule this issue.

III. The Denial of the Motion for Continuance

Waller also contends the trial court abused its discretion by denying Waller s oral motion for a continuance.

Texas Rule of Civil Procedure 251 provides in relevant part: No application for a continuance shall . . . be granted except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law. Tex. R. Civ. P. 251. Absence of counsel is not a ground for a continuance except at the discretion of the trial court upon cause shown or upon matters within the knowledge or information of the judge to be stated on the record. See Tex. R .Civ. P. 253; Gendebien v. Gendebien, 668 S.W.2d 905, 907 (Tex. App. Houston [14th Dist.] 1984, no writ).

The grant or denial of a motion for continuance is left to the trial judge s sound discretion, and we will not disturb its action unless the record discloses a clear abuse of discretion. See State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988). If a party moving for a continuance does not include an affidavit as required by Rule 251, we generally will presume that the trial court did not abuse its discretion in denying the continuance. See Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); Waste Water, Inc. v. Alpha Finishing & Dev. Corp., 874 S.W.2d 940, 942 (Tex. App. Houston [14th Dist.] 1994, no writ).

Waller cites Villegas v. Carter for the proposition that she should have received a continuance because she did not have an attorney. See 711 S.W.2d at 626 27. However, in Villegas, the Texas Supreme Court found that the failure to grant a lay movant s continuance was an abuse of discretion when the trial court allowed his attorney to withdraw only two days before trial, and the attorney refused to turn over the client s file and evidence, all without fault of the client. Id. The Court held that when a trial court allows an attorney to voluntarily withdraw, it must give the party time to secure new counsel and time for the new counsel to investigate the case and prepare for trial. Id. at 626.

Unlike Villegas, however, this case does not involve a last-minute withdrawal of counsel. RSC filed suit on October 14, 2002, and Waller was representing herself pro se when the trial started almost fourteen months later. Nothing in the record indicates Waller had retained or tried to retain counsel at any time before trial. Waller moved for a continuance orally, after she announced ready for trial, and while she was on the witness stand. Waller made her request after RSC had finished questioning her during the presentation of its case, and her stated reason for requesting a continuance was so that she could get a lawyer to ask her questions on direct examination. The trial court denied her request, stating that Waller had had a lot of time to get a lawyer.

Because Waller s motion for continuance was not in writing and accompanied by a sworn affidavit, as is required by Texas Rule of Civil Procedure 251, and she showed no good cause for a continuance, the trial judge did not abuse her discretion in denying Waller s motion for continuance. See id. at 626 (presumption applies except when lay movant demonstrates attorney s withdrawal was not movant s fault).

IV. The Denial of the Motion for New Trial

Waller also contends the trial court abused its discretion by denying her motion for new trial. She contends the trial court never investigated whether the lien was actually perfected as RSC maintained, and denied the motion for new trial even though RSC s notice did not include the statutory warning required by section 53.056 of the Property Code. RSC responds that the motion for new trial was properly denied by the trial court or overruled by operation of law. We review the trial court s decision to grant or deny a motion for new trial for abuse of discretion. See Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984).

Although Waller alleges the trial court erred because RSC s notice was insufficient and its lien was therefore never perfected, Waller did not move for new trial on this basis. Instead, the sole argument made in Waller s motion for new trial was that, before she received the notice, she already had paid the contractor in full.[3] Waller supported her argument with a statement to that effect in her affidavit. RSC responded with a document Waller apparently filed with the trial court before trial indicating that she continued to pay the contractor after receiving RSC s notice, contradicting Waller s affidavit. On this record, we hold that Waller has failed to demonstrate that the trial court abused its discretion in denying Waller s motion for new trial.

V. Conclusion

The trial court s judgment is affirmed.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed May 17, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Frost.

[1] Waller contends she did not know RSC was represented by counsel until the day of trial, but RSC s petition plainly shows that an attorney filed it on RSC s behalf. Further, the trial transcript reflects that Waller understood that RSC s counsel removed himself because of a conflict of interest, but she apparently did not know that RSC had obtained substitute counsel shortly before trial.

[2] The judgment also ordered that RSC have judgment against Waller for $8,686.70, attorney s fees, post-judgment interest, and costs. Waller s appeal does not address these portions of the judgment.

[3] Waller contends she raised the issue in a hearing on the motion for new trial, but no transcript of such a hearing appears in the record.