Acme Brick Company, a Division of Justin Industries, Inc. v. Temple Associates, Inc., et al--Appeal from County Court at Law No 1 of Brazos County

NO. 10-90-193-CV

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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ACME BRICK, A DIVISION OF

JUSTIN INDUSTRIES, INC.,

Appellant

v.

TEMPLE ASSOCIATES, INC., ET AL,

Appellees

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From the County Court at Law Number One

Brazos County, Texas

Trial Court # 33,721-CCL1

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O P I N I O N

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This appeal arises from the trial court's judgment granting Temple Associates' (Temple) and Federal Insurance Company's (Federal) motion for summary judgment and denying Acme Brick's (Acme) motion for summary judgment. The underlying suit is for recovery on a payment bond. We will reverse and render judgment for Acme.

The payment bond was acquired in order to comply with Article 5160 of the Texas Revised Civil Statutes, also known as the McGregor Act. See Act of March 20, 1913, 33rd Leg., R.S., ch. 99, 1913 Tex. Gen. Laws 185, 186, amended by Act of May 22, 1969, 61st Leg., R.S., ch. 422, Tex. Gen. Laws 1390, 1392, amended by Act of May 28, 1989, 71st Leg., R.S., ch. 1138, 38, 1989 Tex. Gen. Laws 4704, 4707 (current version at Tex. Rev. Civ. Stat. Ann. art 5160 (Vernon Supp. 1991)). The McGregor Act requires prime contractors on governmental construction projects in excess of $25,000 to execute performance and payment bonds. The payment bond ensures recovery for all who furnish labor or materials on the project and have not been paid in full. The claimant can sue the principal and the surety on the payment bond jointly or severally for the balance due. However, before filing suit the claimant must give written notice to the prime contractor and surety, accompanied by a sworn statement of account.

Acme complains that the trial court erred in granting Temple's and Federal's Motion for Summary Judgment because Acme had complied with the notice provisions of the McGregor Act and that the trial court erred in failing to grant its own Motion for Summary Judgment because there were no genuine issues of material fact. The court found Acme was not in substantial compliance with the notice provisions of the McGregor Act. The notice Acme sent to Temple and the surety, Federal, on April 5, 1989 is attached as exhibit A. This notice was sent to Temple and Federal again on May 11. Temple and Federal argue that the notices were insufficient under article 5160. Their position is based upon the fact that the Pamela E. Byas did not sign the document above the jurat on the blank line.

An affidavit is a "statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office." Tex. Gov't Code Ann. 312.011 (Vernon 1988); see also Perkins v. Crittenden, 462 S.W.2d 565, 567-68 (Tex. 1970). Typically, an affidavit includes the caption or title, the venue, the signature of the affiant, the jurat and the body of the instrument. See 2 Tex. Jur. 3d Affidavits (1979). The jurat of an affidavit is a "certificate by a competent officer that the writing was sworn to by the person who signed it." Hill v. Floating Decks of America, 590 S.W.2d 723, 729 (Tex. Civ. App.--San Antonio 1979, no writ). However, no particular terminology is required to render a document an affidavit because it is the substance and not the form of an affidavit that is significant. Norcross v. Conoco, 720 S.W.2d 627, 630 (Tex. App.--San Antonio 1986, no writ).

Here, the document contained a notice of claim which was followed by a factual statement that the amounts shown in the claim are just and correct and that all just offsets have been allowed. The document was signed by the person named in the statement; however, the signature did not appear below the statement but above. The notary then signed the document below the jurat certifying the sworn statement and the affiant's signature. The Texas Supreme Court in Kohn v. Washer decided that an affiant's signature which was placed below the jurat for the purpose of subscribing to the instrument meets fully the objects of the law. Kohn v. Washer, 69 Tex. 67, 6 S.W. 551, 552 (1887). Based on Kohn, we believe that when Pamela Byas placed her signature on the document she did so for the purpose of subscribing to the instrument. See id. The law does not direct or guide where the necessary signature is to be located. Id. Accordingly, we find the document constituted a valid affidavit.

Moreover, even if the statement was not an affidavit, the McGregor Act requires only substantial compliance with its notice provisions. See Featherlite Bldg. v. Constructors Unlimited, 714 S.W.2d 68, 69 (Tex.App.--Houston [14th Dist.] 1986, ref'd n.r.e.). The statute is to be given the most comprehensive and liberal construction possible. Id. We find the notices sent by Acme to Temple and Federal substantially complied with the notice provisions of the McGregor Act.

To be entitled to summary judgment the movant must conclusively prove all essential elements of his claim. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). The burden is on the movant to show there are no genuine issues of material fact and that as a matter of law movant is entitled to judgment. Id. All evidence favorable to the non-movant will be taken as true. Id. Additionally, every reasonable inference must be indulged and any doubts resolved in the non-movants favor. Id. Here the summary judgment evidence conclusively establishes each and every element of Acme's claim. See Featherlite, 714 S.W.2d at 69-70. Therefore we reverse and render judgment in favor of Acme. See Teledyne Isotopes, Inc. v. Bravenec, 640 S.W.2d 387, 389 (Tex.App.-- Houston [1st Dist.] 1982, ref'd n.r.e.).

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings and

Justice Vance

Reversed and rendered (Chief Justice Thomas dissenting)

Opinion delivered and filed May 16, 1991

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