NO. 07-09-0018-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C APRIL 13, 2011

MARK ADAMS BROWN, APPELLANT

v. CLAY CROOKS, INDIVIDUALL Y AND DOING BUSINESS AS CLAY CROOKS ROOFIN G AND INSULATION, APPELLEE

FROM THE 340 TH DISTRICT COURT OF TOM GREEN COUNTY; NO. C-07-1039-C; HONORABLE BARBARA L. WALTHER, JUDGE

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION Appellant, Mark Adams Brown, appeals from a judgment entered in favor of Appellee, Clay Crooks, Individu ally and d/b/a Clay Crooks R oofing and Insulation, in a suit to enforce a mechanic's and materialman's lien following a bench tr ial. In support, Brown asserts the trial court erred by (1) fa iling to specify in its Judgment and Findings of Fact and Conclusions of Law whether Crooks's lien was a subcontractor’s lien or an2 original contractor's lien, (2) finding Crook s has any lien other than a subcontractor's lien, (3) basing its judgment on a subcontractor's lien, (4) referring to Crooks's lien in its Judgment as a recorded mechanic's lien, (5) failing to quantify the full amount of the lien in its Findings of Fact and Conclusions of Law, (6) failing to specify the amount of damages in its Findings of Fact and Conc lusions of Law, (7 ) awarding damages recoverable on a subcontractor's lien, (8) finding legally sufficient evidence to award $5,200 as damages to enforce a subcontrac tor's lien, (9) awarding any damages recoverable on a subcontractor's lien because Crooks did not plead such damages, (10) rendering judgment in personam against Brown because of insufficient evidence he contracted with Crooks, and ( 11-13) finding legally sufficient evidence to justify a damages award based on quantum meruit . We reverse and render in part and affirm in part. Background In July 2007, Crooks filed his Original Petition seeking to enforce a mechanic's and materialman's lien on property purchas ed by Brown located at 518 Pope, San Angelo, Texas (the Property). 1 In addition to seeking enforcement of the lien, Crooks sought a judgment based on quantum meruit

.

1 The property was described as follows: The South 60 feet of Lots 6 and 7, Block 24, Ellis Addition to the City of San Angelo, Tom Green County, Texas, according to the map or plat of said Addition of record in the office of the County Clerk, Tom Green County, Texas. Said property more commonly known as 518 Pope, San Angelo, Texas.3 The following evidence was adduced at a bench trial held in July 2008. 2 Victor Samaniego, Sr., owned the Property from October 1992 through January 2007. In January 2006, Samaniego execut ed a Durable Power of Atto rney and appointed Emily R. McDonald as his agent and attorney-in-fac t. The Durable Power of Attorney was recorded with the County Clerk of Tom Green County, Texas on January 7, 2006. On July 6, 2006, McDonald signed a cont ract with Clay Crooks to repair the roof of a building on Samaniego's Property. Under the cont ract, Crooks agreed to remove a composition roof an d wood shingles, redeck, and reshin gle the roof with twenty year shingles. In return, McDonald agreed to pay Crooks $5,200. Crooks performed the work but neither McDonald nor Samaniego m ade any payment on the contract price. On August 7, 2006, Crooks filed an affi davit with the County Clerk of Tom Green County, claiming a mechanic's an d materialman's lien on the Pr operty in the amount of the unpaid claim, $5,200. 3 The affidavit stated, in pertinent part, as follows:

2. The last name and the last kn own address of the owner or reputed owner ("Owner") of the real property and improvements on which this claim is made is Victor Samaniego . . . . * * * 5. Claimant [Crooks] furnished the above-described labor and materials under a contract with Emily R. McDonald, whose last known address is 2530 North US Hwy. 277, Bronte, Texas 76933. 6. The name and last know n address of the origin al contractor on the above-referenced project are (sic) Emily R. McDonald, 2530 North US Hwy. 277, Bronte, Texas 76933.

2 Our recitation of the facts mirrors those established in the trial court's Findings of Fact.

3 Crooks also mailed a copy of the Affidavit by certified mail return receipt requested to Samaniego and McDonald.4 In January 2007, Brown pur chased the Property. Prio r to purchasing, he examined the title and, in hi s examination, discovered Croo ks's lien affidavit filed with the County Clerk. In February, Crooks s ent Brown a letter advising Brown of his claimed lien and attached a copy of his affidavi t. When subsequent efforts to collect the contract price proved to be unsuccessful, Cr ooks filed suit on July 31, 2007. During a bench trial, Brown testified that he believed Crooks's affi davit sought to enforce a subcontractor's lien rather than an original contractor's lien.
At the trial's conclusion, the trial c ourt awarded Crooks a judgment against Brown for $5,200, the full amount of the lien, and granted foreclos ure on the Property. Per Brown's request, the trial court subsequently issued Findings of Fact and Conclusions of Law that affirmed its judgmen t. This appeal followed.

Discussion Essentially, at trial, Brown disputed t he nature of Crooks's lien, i.e., whether Crooks's Affidavit noticed an original contract or's lien or a subcontra ctor's lien. Brown did not file any cross-claim or challenge whether Crook complie d with the statutory requirements for claiming a mechanic's and materialman's lien under Texas Property Law. See Tex. Prop. Code Ann. §§ 53.001-53.260 (West 2007). 4 On appeal, nearly all of his thirteen issues st em from this dispute.

4 For convenience, references to provisions of the Texas Property Code throughout the remainder of this opinion will be cited as "section ___" or "§ ___."5 Issue One Brown does not cite any case law or ot her authority in suppor t of his contention that the trial court was required to state in its Findings of Fact and Conclusions of Law whether Crooks's lien was an or iginal contractor's lien or s ubcontractor's lien. Neither did Brown object to the findings and conclusions entered or seek clarification of the language in the Findings of Fact and Conclusions of Law. See Tex. R. Civ. P. 298. Texas Rule of Appellate Procedure 38. 1(i) requires that an appellant's brief "contain a clear and concise argument fo r the contentions m ade, with appropriate citations to authorities and to the record." To comply, an appellant must "provide us with such discussion of the facts and authorities relied upon as may be requisite to maintain the point at issue"; Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 129 (Tex.App.--Houston [1st Dist.] 2002, pet. denied) (citing Franklin v. Enserch, Inc . 961 S.W.2d 704, 711 (Tex.App.--Amarillo 1998, no pet.)), and "[i]ssues on appeal are waived if an appellant fails to support his contention by citations to appropriate authority or cites only to a single non-controlling case." Abelnour v. Mid Nat'l Holdings, Inc., 190 S.W.3d 237, 241 (Tex.App.--Hous ton [1st Dist.] 2006, no pet.) (citing Wolfe v. C.S.P.H. , 24 S.W.3d 641, 647 (Tex.App.--Da llas 2000, no pet.)). Hence, Brown's first issue was insufficiently br iefed, and therefore, waived.
That said, however, the clear implication from the trial court' s Findings of Fact and Conclusions of Law is that the trial court determined Crooks's lien to be an original contractor's lien and gr anted Crooks complete relief with the exception of his prayer for6 attorney’s fees. Although we find issue on e was waived, we will c onsider Brown's legal arguments regarding the statutor y differences between an orig inal contractor's lien and a subcontractor's lien in our consi deration of Brown's second issue.

Issue Two
The mechanic's and materialman's lien statutes, as well as relevant case law, mandate that a lien affidavit should not be judged by a stri ct standard but by whether the claimant substantially complied with the statutory requirements. See § 53.054 (stating that lien affidavits "must contai n substantially" the required information); Occidental Neb. Fed. Sav. B ank v. East End Glass Co., 773 S.W.2d 687, 688 (Tex.App.--San Antonio 1989, no writ) ("For pur poses of perfection, only substantial compliance is required in or der to fulfill the requirements of the mechanic's and materialman's lien statutes.") This substa ntial compliance standar d is consistent with the liberal construction genera lly afforded to mechanic's and ma terialman's lien statutes. See, e.g., First Nat'l Bank in Dallas v. Whirlpool Corp. , 517 S.W.2d 262, 269 (Tex. 1974) ("It is well settled that the mechanic's and materi alman's lien statutes of this State will be liberally construed for the purpose of protecting laborers and materialmen.") For purposes of mechanic’s or materialm an’s liens, an "original contractor" is a "person contracting with an owner either directly or through the owner's agent ." § 53.001(7) (emphasis added). A s ubcontractor is "a person who has furnished labor or materials to fulfill an obligation to an original contractor or to a subcontractor to perform all or part of the work require d by an original contract." § 53.001(13). Because Crooks contracted directly with McDonald, an agent of the owner, Samaniego, to provide labor7 and materials to repair the roof of Sama niego's residence, Crooks was an original
contractor.
Brown asserts, nevertheless, that Crooks' s statement in the affidavit filed with the County Clerk identifying McDonald as the or iginal contractor and a reference to Crooks being a subcontractor in the notice letter sent to Samaniego and McDonald 5 constitute judicial admissions that Crooks was in fact a subcontractor. Form requirements for mechanic's and materialman' s lien affidavits are to be liberally construed and substantial compliance with the mechanic's and materialman's lien statute authorizing the lien is sufficient. See Whirlpool Corp. , 517 S.W.2d at 269; Occidental Neb. Fed. Sav. Bank., 773 S.W.2d at 688. Regardi ng the giving of notice of the claimed lien, there are no informational requirements other than r equiring that the person filing the affidavit "send a copy of the affidavit by registered mail." § 53.055. Accordingly, we decline to treat the statement in Crooks's affidavit, or the letter received by the prior owners accompanied by a copy of the affidavit, as bi nding judicial admissions, "but instead look at the actual relationship of the par ties and the purpose of the statute." Truss World, Inc. v. ERJS Inc., 284 S.W.3d 393, 395-96 (Tex.App. --Beaumont 2009, pet. denied) (where the actual relationship of the parties is that of owner and original contractor, the fact that the original contract or referred to himself as a subc ontractor in his lien affidavit was not a judicial admission an d the statutory requirements fo r an original contractor's lien affidavit were satisfied) . Issue two is overruled.

5 T he notice letter to Brown did not refer to Crooks as a subcontractor.8 Issues Three Through Nine

In no more than four sentences each in issues four and eight, three sentences in issue three, two sentences in issue nine, and one sentence each in issues five through seven, Brown asserts these issues without any substantive analysis or citation to applicable legal authority. As a re sult, these issues are waived. See Burnett Ranches, LTD v. Cano Petroleum, Inc. , 289 S.W.3d 862, 870-71 (Tex.App.--Amarillo 2009, pet. denied) (conclusory or unexplained arguments without substantive analysis result in waiver of the issues on appeal); Morrill v. Cisek , 226 S.W.3d 545, 548 (Tex.App.-- Houston [1st Dist.] 2006, no pet.) (brief c onclusory statements unsupported by legal citations on appeal result in waiver); Kosowska v. Kahn , 929 S.W.2d 505, 508-09 (Tex.App.--San Antonio 1996, wr it denied) (failure to cite any authority on an issue constitutes waiver of alleged error); Ralston Purina Co. v. McKendrick , 850 S.W.2d 629, 637 (Tex.App.--San Antonio 1993, writ denied ) (point of error not supported by argument or authorities is wa ived). Brown's issues th ree through nine are waived.

Issue Ten Although also lacking in substantive ana lysis or citation to applicable legal authority, in the interest of justice, we choose to address Brown's tenth issue wherein he avers that the trial court erred in rendering judgment agai nst him individually. The record establishes that Brown never had a c ontractual relationship with Crooks. The record further establishes that Brown purch ased the Property after the work the subject of Crooks's lien affidavit was performed and nev er assumed personal liability for that work. Because Crooks has failed to establis h a legal theory or fa ctual basis upon which9 Brown's personal liability can be established, we sustain issue ten and reverse the trial court's judgment as it pertain s to Brown's personal liability. Issues Eleven Through Thirteen Issues eleven through thirteen assert that, if the trial court based its order of foreclosure on quantum meruit , the trial court erred by findi ng legally sufficient evidence to justify a damages award based on Crooks's additional legal theory for recovery. In overruling issue two, we concluded that, as a matter of law, Crooks's affidavit was sufficient to place Brown on notice of Cr ooks's lien and that the trial court properly enforced the lien in it s judgment. As such, we prete rmit an analysis whether Crooks's additional legal theory may also provide a basi s for his recovery. Accordingly, Brown's issues eleven through thirteen are pretermitted. See Tex. R. App. P. 47.1.

Conclusion The trial court's judgment is revers ed as to Brown's personal liability and judgment is hereby rendered that Crooks take nothing as to Brown, individually. In all remaining respects, the judgment of the trial court is affirmed.

Patrick A. Pirtle Justice