RICHARD FENN, d/b/a FROM A DISTRICT COURT RICHARD FENN CONSTRUCTION CO., APPELLANT, v. GREGORY YOUNG AND HOLLY YOUNG, APPELLEES

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-01006-CV
 
RICHARD FENN, d/b/a                                        FROM A DISTRICT COURT
RICHARD FENN CONSTRUCTION CO.,
 
 
        APPELLANT,
 
 
v.
 
 
GREGORY YOUNG AND
HOLLY YOUNG,
 
 
        APPELLEES.                                  OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES WHITHAM, THOMAS AND BURNETT
OPINION BY JUSTICE THOMAS
JULY 11, 1989
        Richard Fenn appeals from a summary judgment in favor of appellees, Gregory and Holly Young. Fenn raises two points of error, claiming that the trial court erred (1) in declaring his materialmen's lien invalid and unenforceable; and (2) in granting summary judgment on his counterclaim for quantum meruit. We agree with Fenn as to the counterclaim; accordingly, we affirm in part and reverse in part and remand the counterclaim to the trial court.
 
FACTUAL BACKGROUND
        The Youngs entered into a contract with Tim Healy to perform construction work at their residence. Fenn was hired to do certain marble and granite work on the residence under the supervision of Healy, the general contractor. Problems arose between Healy and Fenn while the Youngs were out of town, and Healy fired Fenn. Healy would not release Fenn's tools to him nor would he pay him. Fenn filed a mechanic's lien against Healy and the Youngs, which he subsequently released in consideration for his personal tools left at the Young's residence. Fenn never received his tools, so he filed another mechanic's lien--this time against the Youngs' home. The Youngs filed a petition for declaratory judgment and a motion for summary judgment. Fenn counterclaimed stating (1) that he had a separate and distinct oral contract with the Youngs that had been breached, (2) that his tools had been converted, and (3) that he should recover in the alternative on the theory of quantum meruit. The trial court found no issues of material fact relating to the lien and the countercliam for recovery under quantum meruit and granted summary judgment in favor of the Youngs.
MECHANIC'S AND MATERIALMEN'S LIEN
        Fenn urges in his first point of error that the trial court should not have granted summary judgment and declaratory judgment because his materialmen's lien was valid and, as such, he raised genuine issues of fact. We disagree.
        Summary judgment is correctly granted when the defendant's summary judgment evidence has conclusively established against the plaintiff an element of his cause of action. See Gray v. Bertrand, 723 S.W.2d 957, 958 (Tex. 1987). A summary judgment for the defendant disposing of the entire case is proper only if, as a matter of law, plaintiff could not succeed upon any of the theories pleaded. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex. 1983).
        The standards for reviewing a motion for summary judgment are:
            1. The movant for summary judgment has the burden of showing that there is no genuine issue of fact and that it is entitled to judgment as a matter of law.
 
            2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.
 
            3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.
Nixon v. Mr. Property Management, Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984); Wilcox v. St. Mary's Univ., 531 S.W.2d 589, 592-93 (Tex. 1975).
        In order to perfect a lien, the person claiming the lien must meet each of the statutory requisites set forth in sections 53.051 through 53.056 of the Texas Property Code. TEX. PROP. CODE ANN. § 53.051 (Vernon Supp. 1989). See generally Crockett v. Sampson, 439 S.W.2d 355, 358-59 (Tex. Civ. App.--Austin 1969, no writ). Fenn's mechanic's lien complied with section 53.056 of the Texas Property Code, which outlines the procedures necessary to give proper notice of the lien. Specifically, however, the Youngs claim that Fenn did not comply with subsection (d) which states:
            To authorize the owner to withhold funds under Subchapter D, the notice to the owner must state that if the bill remains unpaid, the owner may be personally liable and the owner's property may be subjected a lien unless:
 
                    (1) the owner withholds payments from the contractor for payment of the bill; or
 
                    (2) the bill is otherwise paid or settled.
TEX. PROP. CODE ANN. § 53.056(d) (Vernon Supp. 1989).
        Fenn sent the Youngs a copy of the invoices that detailed his work. The invoices had the following notation on the last page:
            Please be advised that my attornies [sic] are perfecting a lien on your property for the sum of $7,941.00 dollars and that if payment, in full, has not been made in my office within 10 days after receipt of this invoice, my attornies [sic] will follow through with a court date and additional costs incurred there-in.
Under Texas law, a lien is invalid if it does not contain the statutory warning that unless the claim is paid or settled, the homeowner may be held personally liable or his property subjected to a lien. See generally Lopez v. Bonded Constr. & Supply Co., 594 S.W.2d 809, 812 (Tex. Civ. App.--Waco 1980, no writ). With this notation, Fenn put the Youngs on notice that they would be personally liable for the charges rather than Healy, the general contractor. Substantial compliance with the statute is sufficient to perfect a lien; the receipt of invoices, coupled with a demand for payment wherein the creation of a lien is mentioned, is enough to meet the statutory warning. See First Nat'l Bank v. Sledge, 653 S.W.2d 283, 285-86 (Tex. 1983); Brown v. Dorsett Bros. Concrete Supply, Inc., 705 S.W.2d 765, 766 (Tex. App.--Houston [14th Dist.] 1986, no writ). The statutory warning is a condition precedent; without it no lien can be imposed. See Trinity Universal Ins. Co. v. Palmer, 412 S.W.2d 691, 694 (Tex. Civ. App.--San Antonio 1967, writ ref'd n.r.e.). We hold that Fenn substantially complied with the statutory warning requirement of section 53.056. He adequately described the work performed, the materials furnished, and alerted the Youngs to the imposition of a lien on their residence if the debt remained unpaid.
        However, even though we have concluded that the Youngs received proper notice of Fenn's lien claim, his lien was still not properly perfected. Fenn's lien affidavit failed to meet the requisites of section 53.054, which reads in pertinent part:
        (a)    The affidavit must be signed by the person claiming the lien or by another person on the claimant's behalf and must contain substantially:
 
                (3)    a general statement of the kind of work done and the materials furnished by the claimant.
TEX. PROP. CODE ANN. § 53.054(a)(3) (Vernon Supp. 1989). Fenn's lien affidavit described the kind of work performed and the materials furnished as follows:
            Reasonable value of goods and services provided to and for improvements to property located at 4711 Cherokee Trial under a contract which existed between Richard Fenn and Tim Healy and Greg Young.
        A lien affidavit and its recordation serve to give fair notice to third parties as to the reason a lien is being claimed. See Wiseman Hardware Co. v. R.L. King Constr. Co., 387 S.W.2d 79, 81 (Tex. Civ. App.--Dallas 1965, no writ). Although a long itemization of the kind of work performed or the materials furnished is no longer required, the general statement must nevertheless state something meaningfully descriptive and intelligible. See Haden Co. v. Mixers, Inc., 667 S.W.2d 316, 318 (Tex. App.--Dallas 1984, no writ). In our view to merely state that a lien is for "goods and services," as in this case, does not sufficiently describe the work performed so as to give notice to third parties.
        Fenn also refers us to the contract between Healy, the Youngs, and himself. He argues that, considering the contract and lien affidavit together, the description is sufficient to meet the statutory requirements. However, Fenn did not attach a copy of the contract or any other explanatory documents such as invoices, contracts, correspondence, etc., to the lien affidavit. Moreover, even if Fenn had attached the contract, his reference to the contract is irrelevant; the language of the contract offers no further explanation or description of the work to be performed or the materials to be supplied. FN:1 We conclude that Fenn's lien affidavit was insufficient under section 53.054.
        Therefore, despite Fenn's substantial compliance with section 53.056, his noncompliance with section 53.054 renders his purported lien invalid. As such, the trial court did not err in granting the Youngs summary judgment on Fenn's lien claim. The first point is overruled.
QUANTUM MERUIT
        In the second point of error, Fenn urges that the trial court erred in granting summary judgment on his quantum meruit counterclaim. We agree.
        Summary judgment should be granted where there is no genuine issue as to any material fact. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex. 1979). See American Petrofina Co. v. Crump Business Forms, Inc., 597 S.W.2d 467, 470 (Tex. Civ. App.--Dallas 1980, writ ref'd n.r.e.); TEX. R. CIV. P. 166a(c). In determining whether there is a genuine issue of fact in a case, the evidence must be construed in the light most favorable to the party opposing the motion, and all doubts must be resolved against the movant. First Nat'l Bank v. Rector, 710 S.W.2d 100, 103 (Tex. App.--Austin 1986, writ ref'd n.r.e.). Further, the appellate court must accept as true the non-movant's version of the evidence and make every reasonable inference in the non-movant's favor. Sabine Pilot Serv. Inc. v. Hauck, 687 S.W.2d 733, 734 (Tex. 1985); Bayouth v. Lion Oil Co., 671 S.W.2d 867, 868 (Tex. 1984). The affidavits employed as summary judgment evidence must be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. . Querner Truck Lines, Inc. v. Alta Verde Indus., 749 S.W.2d 464, 468 (Tex. App.--San Antonio 1988, no writ). Applying these principles, we review the summary judgment evidence in the light most favorable to Fenn. See El Chico Corp. v. Poole, 732 S.W.2d 306, 315 (Tex. 1987).
        Fenn urges in his affidavit that he entered into an express oral contract with Holly Young do certain marble and granite work on the Youngs's house. Fenn states in his affidavit that Holly Young retained him to do the marble and granite work and advised him that the work would be done under the supervision of their general contractor, Healy. Fenn also relates that he had problems with Healy because of repairs he had to do as a result of Healy's employees' negligent or willful acts. Fenn told Holly Young of these problems and expressed his apprehension that he would not be able to finish the job or would not be paid. Fenn maintains that Holly Young assured him that she would resolve the problem and that she wished him to continue his work.         As a general rule, a plaintiff may recover the reasonable value of services rendered or materials supplied in quantum meruit only when no express contract exists covering those services or materials. Truly v. Austin, 744 S.W.2d 934, 937 (Tex. 1988). However, there are instances when quantum meruit is allowed despite the existence of an express contract. One such situation occurs when a plaintiff has partially performed an express contract, but because of the defendant's breach, plaintiff was prevented from completing the contract. Id.
        Fenn urges that he had an express oral contract with Holly Young, which was breached when the Youngs allowed Healy to fire him, thus precluding Fenn's performance. The Youngs counter that Fenn never alleged that they prevented him from performing the contract or that his work was for their benefit. It may have been Healy who terminated Fenn's employment, but the Youngs acquiesced in this decision. Fenn is arguing that by this act the Youngs did prevent his performance. He further argues that the Youngs were unjustly enriched and that the work performed was for the Youngs' benefit because the work was performed on their home. This would, if believed, allow him to recover on his quantum meruit claim; therefore, the factual issue of whether an oral contract was entered into by Holly Young and Fenn is material. Summary judgment proof is inadequate if the controverting affidavits or other evidence raise an issue of material fact. See Menchaca v. Menchaca, 679 S.W.2d 176, 178 (Tex. App.--El Paso 1984, no writ). Therefore, summary judgment was improper as to Fenn's counterclaim. We sustain point two.
        We affirm the trial court's granting of summary judgment for the Youngs as to the mechanic's and materialmen's lien; however, we reverse and remand the counterclaim to the trial court for proceedings in accordance herewith.
 
                                                  
                                                  LINDA THOMAS
                                                  JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90.
 
88-01006.2F
 
FN:1 Fenn relies on Mathews Constr. Co. v. Jasper Housing Constr., 528 S.W.2d 323, 328-29 (Tex. Civ. App.--Beaumont 1975, writ ref'd n.r.e.) for the proposition that his description met the general description requirement of section 53.054 of the Texas Property Code. However, this case is distinguishable from Mathews because Fenn failed to attach the contract to the lien affidavit.
 
File Date[01-02-89]
File Name[881006]