IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-10149

_____________________

ASTRAEA AVIATION SERVICES, INC., doing

business as Dalfort Aviation,

Plaintiff - Appellant-Cross-Appellee,

versus

NATIONS AIR INC., ET AL.,

Defendants,

9 LIVES HOLDING, INC.,

Defendant - Appellee-Cross-Appellant.

_________________________________________________________________

Appeals from the United States District Court for the

Northern District of Texas

_________________________________________________________________

April 27, 1999

Before KING, Chief Judge, REYNALDO G. GARZA and JOLLY, Circuit

Judges.

E. GRADY JOLLY, Circuit Judge:

The main issue presented by this appeal is whether § 70.301 of

the Texas Property Code requires a mechanic to obtain the consent

of an aircraft’s owner to perform work before the mechanic can

secure a lien on the aircraft. Astraea Aviation Services, Inc.

d/b/a Dalfort Aviation (“Dalfort”)--a company that provides

aircraft maintenance and repair services--asserted a lien on an
 

1Viscount filed for bankruptcy while this appeal was pending,

but Viscount is not a party in this appeal. The district court

dismissed all claims against Viscount without prejudice.

2

aircraft and brought a foreclosure suit against the owner of the

aircraft. Dalfort now appeals from a judgment denying the

existence of a lien. Dalfort also appeals the decision to assess

attorney’s fees against, rather than in favor of, Dalfort under

Tex. Prop. Code Ann. § 70.306 (West 1995). The owner of an

aircraft serviced by Dalfort, 9 Lives Holding, Inc. (“9 Lives”),

cross-appeals the magistrate judge’s denial of recovery on two of

9 Lives’ counterclaims. We conclude that the magistrate judge

correctly interpreted § 70.301 to require an owner’s consent, and

we also agree that the judge granted appropriate relief to 9 Lives

on its counterclaims. We therefore affirm the judgment in all

respects.

I

We review a trial court’s findings of fact for clear error.

Fed. R. Civ. P. 52(a). After reviewing the record, we conclude

that the district court did not clearly err in any of its relevant

findings of fact. We will therefore state the facts (some of which

remain disputed) according to the findings of the district court.

9 Lives owns an aircraft described as a Boeing 737-200 bearing

tail number N308VA. 9 Lives leased this aircraft to Viscount Air

Services, Inc. (“Viscount”),1 who in turn entered a sublease
 

2Dalfort charged $166,804.17 for maintenance and inspection

services and charged $25,099.65 for fuel, telephone costs, and

other miscellaneous expenses.

 

3The district court entered judgment against Nations Air for

the full $191,903.82. Nations Air is not, however, a party in this

appeal.

3

agreement with Nations Air, Inc. (“Nations Air”). The lease

agreement placed certain maintenance responsibilities on the lessee

(Viscount), and the sublease agreement passed those

responsibilities on to the sublessee (Nations Air). 

In August 1995, during the term of the sublease, Nations Air

entered an agreement with Dalfort in which Dalfort agreed to

perform maintenance and inspection work on the aircraft. After

learning of this arrangement, but before Dalfort began any of its

work, 9 Lives expressed to both Nations Air and Dalfort its

disapproval of having Dalfort perform the work. 9 Lives told

Dalfort that it would not consent to having Dalfort perform any

work on the aircraft. After 9 Lives refused to give its consent

(as owner), Dalfort nevertheless performed maintenance and

inspection work. Upon completing the work, Dalfort sent Nations

Air an invoice for $191,903.82.2 Although Nations Air conceded

that it was liable for the full cost of the repairs, neither

Nations Air nor 9 Lives paid Dalfort for any of its services or

expenses.3
 

4The parties brought various other claims and counterclaims in

the district court, but the parties have only appealed those

mentioned.

4

Without having received any payment, Dalfort released the

aircraft to Nations Air on August 25, 1995. Viscount terminated

its contract with Nations Air in October, 1995, and took possession

of the aircraft. A little later in the same month, Dalfort

asserted its right to a lien on the aircraft by filing an affidavit

with the Federal Aviation Administration (“FAA”). Then, in

November 1995, Dalfort sued 9 Lives, seeking to force foreclosure

on Dalfort’s claimed mechanic’s lien for the amount owed due to

maintenance performed on the aircraft. 9 Lives asserted several

counterclaims based on theories of conversion and Dalfort’s alleged

creation of a cloud on 9 Lives title to the aircraft.4

II

The district court asserted subject matter jurisdiction over

the case under 28 U.S.C. § 1332. In September 1996, the parties

tried their case before a magistrate judge. Dalfort argued that

Texas law created a mechanic’s lien on the aircraft under the

following property code section:

A person who repairs or performs maintenance work

on an aircraft has a lien on the aircraft for:

(1) the amount due under a contract for

the repairs or maintenance work; or

(2) if no amount is specified by

contract, the reasonable and usual
 

5The Texas legislature has since modified this statute and

made the modifications effective as of August 28, 1995. See Tex.

Prop. Code Ann. § 70.301 (West Supp. 1999). The modifications,

however, would not play any relevant role in the issues of this

case.

 

6Section 70.306 states the following:

The court in a suit brought under this subchapter

may award reasonable attorney’s fees to the prevailing

party.

5

compensation for the repairs or

maintenance work.

Tex. Prop. Code Ann. § 70.301 (West 1995).5 9 Lives did not

challenge the application of Texas law to this case. 

The magistrate judge concluded that § 70.301 does not create

a lien without proof of the aircraft owner’s consent to the

services supporting the lien. Acknowledging that no Texas court

has ruled on this precise point of law, the magistrate judge

reasoned that Texas courts would require the owner’s consent

because they have required such consent when interpreting similar

mechanic’s lien statutes. Therefore, the magistrate judge

concluded that Dalfort had no lien. Furthermore, the magistrate

judge awarded to 9 Lives reasonable attorney’s fees under § 70.306

because it was a prevailing party.6 

With respect to 9 Lives’s counterclaims for conversion and

creating a cloud on the aircraft’s title, the magistrate judge

noted that 9 Lives only claimed as damages lost rentals (allegedly

caused by the cloud on the aircraft’s title) and the attorney’s
 

7While this appeal was pending, 9 Lives filed a petition for

bankruptcy under Chapter 11 of the Bankruptcy Code. The filing of

this petition had the effect of staying the appeal. See 11 U.S.C.

§ 362(a). The bankruptcy court has since modified the stay so that

6

fees incurred by defending against Dalfort’s lawsuit. After noting

that it would award 9 Lives its attorney’s fees under § 70.306

(thus, making it unnecessary to award those fees as relief for 9

Lives’s counterclaims), the district court refused to allow 9 Lives

any further monetary recovery. The court concluded that 9 Lives

did not make a sufficient showing that, but for the cloud on the

title, it would have earned rentals by leasing the aircraft.

Although it did not allow for recovery, the magistrate judge did

grant some relief to 9 Lives in the cloud of title claim: The

court’s judgment declared “invalid the lien clam [sic] filed by

Dalfort with the records of the Federal Aviation Administration.”

The judgment also provided that “9 Lives’ title to the aircraft is

quieted and cleared of any such lien claim by Dalfort.”

Dalfort appeals from the judgment and contends that the

magistrate judge erred in finding that Texas law did not create a

lien. Dalfort also appeals the award of attorney’s fees to 9 Lives

because, if Dalfort prevails on this appeal as to the allowance of

a mechanic’s lien, then Dalfort is the prevailing party under §

70.306. 9 Lives cross-appeals the judgment and contends that the

magistrate judge erred in failing to find that it sustained damages

other than attorney’s fees.7
our court can rule in the instant appeal.

7

III

A

The issue presented is whether the district court erred in its

interpretation of § 70.301 that a lien does not arise from § 70.301

unless the owner has given its consent to the work performed. We

will review this question of law de novo. See Branson v. Greyhound

Lines, Inc., 126 F.3d 747, 753 (5th Cir. 1997).

B

Dalfort first argues that the plain language of the statute

does not indicate that the owner must give its consent before a

lien will be established. Section 70.301 states that “[a] person

who . . . performs maintenance work on an aircraft has a lien on

the aircraft . . . .” We should not, Dalfort argues, read

additional terms into this plain language. 

Dalfort acknowledges that other Texas cases have found a

consent requirement in other mechanic’s lien statutes. Dalfort

points out, however, that the law governing mechanic’s liens on

aircraft has its own subchapter in Texas’ Property Code.

Accordingly, Dalfort contends that unique policy considerations

support a decision to interpret § 70.301 differently from other

mechanic’s lien statutes. Dalfort’s most prominent policy argument

for a unique interpretation of § 70.301 is based upon the federal
 

8Under some situations, the sublease required Nations Air to

obtain the owner’s approval before allowing a particular mechanic

to perform work on the aircraft. The specifics of these contract

provisions, as well as the parties’ disagreement over how we should

interpret them, are ultimately irrelevant to our disposition of

this appeal.

8

government’s extensive regulation of aviation maintenance. Dalfort

argues that this heavy federal regulation is important because the

states could frustrate the goals of federal regulation by

engrafting owner-consent as a condition to enforcement of their

mechanic’s lien statutes. The owner-consent requirement would,

according to Dalfort, discourage required maintenance work by

lessees. Dalfort further contends that the owner-consent would

limit “the [aircraft] operator’s ability to choose which shop to

use for what work.” In sum, Dalfort argues that to adopt an

interpretation of § 70.301 that incorporates an owner-consent

requirement would effectively permit Texas statutes to preempt FAA

regulations (although no particular FAA regulation actually

conflicts with a owner-consent requirement).

Finally, Dalfort presents an argument that owner consent was

given, based on the lease and sublease contracts. According to

this argument, 9 Lives gave consent--through the two agreements--to

Nations Air to have maintenance performed.8 Dalfort maintains that
 

9The parties also disagree over whether the sublease remained

in effect. (9 Lives maintains that Nations Air had defaulted on

the sublease.) This fact is also irrelevant to our disposition of

this appeal.

9

after giving this consent to Nations Air, 9 Lives could not

withdraw its consent as to Dalfort.9

C

(1)

We begin our analysis of § 70.301 by noting that Texas courts

have long interpreted Texas law to require an owner’s consent

before a mechanic can establish a lien against his property. See,

e.g., Hydra-Rig, Inc. v. ETF Corp., 707 S.W.2d 288, 290 (Tex. Civ.

App. 1986, writ refused n.r.e.) (interpreting Tex. Rev. Civ. Stat.

Ann. art. 5503 (since repealed) and stating that “[r]epairs or

improvements must have been authorized by the owners of a piece of

property in order to give validity to a lien”); Southwestern

Investment Co. v. Gilbreath, 380 S.W.2d 196, 197 (Tex. Civ. App.

1964, no writ) (an artisan must obtain an owner’s consent to work

before the artisan can establish a valid lien on an automobile);

Drake Ins. Co. v. King, 606 S.W.2d 812, 818 (Tex. 1980) (citing

Southwestern Investment Co. with approval).

This requirement applies not only to statutory liens, but to

liens created by the Texas Constitution. The Texas Constitution

provides the following:
 

10For a general discussion of the distinction between liens

created by statute and liens created by the Texas constitutional

provision, see A&M Operating Co. v. South Coast Supply Co., Inc.,

182 B.R. 997, 1000-02 (E.D. Tex. 1995), aff’d, 84 F.3d 433 (5th

Cir. 1996). The A&M Operating Co. court summarized a century of

Texas law surrounding the requirements to establishing a

constitutional lien and notes that the constitutional lien exists

independently and apart from any legislative act. Id. at 1000; see

also First Nat’l Bank in Dallas v. Whirlpool Corp., 517 S.W.2d 262,

267 (Tex. 1974). Although the constitutional provision is selfexecuting (and the liens it creates are automatic), the

constitutional lien “is ineffective against a subsequent bona fide

good faith purchaser for value without notice.” A&M Operating Co.,

182 B.R. at 1001. The statutory lien provisions, in contrast,

create a recordation system that shores up the lienholder’s

interest against all others. Dalfort has not directed us to any

legislative intent to drop the owner-consent requirement from the

constitutional lien when the legislature enacted § 70.301.

10

Mechanics, artisans and material men, of every class,

shall have a lien upon the buildings and articles made or

repaired by them for the value of their labor done

thereon, or material furnished therefor; and the

Legislature shall provide by law for the speedy and

efficient enforcement of said liens.

Tex. Const. art. XVI, § 37.10 Like § 70.301, this provision in the

Texas Constitution does not expressly provide that an owner’s

consent is required for the establishment of the lien. Compare

Tex. Const. art. XVI, § 37 (“Mechanics . . . shall have a

lien . . . .”); with § 70.301 (“A person . . . has a

lien . . . .”). Even so, Texas courts have interpreted the

constitutional provision to require an owner’s consent. See, e.g.,

Sumrall v. Russell, 255 S.W. 239, 240 (Tex. Civ. App. 1923, writ

dism’d w.o.j.).
 

11The court also found that nothing in the “lease contract

between [the lessor and the lessee] constituted the latter the

agent of the former.” Sumrall, 255 S.W. at 240.

11

The Sumrall case is particularly informative because there, as

in the instant case, the party asserting the lien had not

contracted with the owner, but with the lessee of the property. In

Sumrall, a land lease agreement called for a twenty year lease

during which the lessee was required to have a building constructed

according to stated specifications. To fulfill the requirements of

the lease agreement, the lessee contracted with the plaintiff to

construct the building (as Nations Air similarly contracted with

Dalfort to fulfill maintenance requirements on leased property).

When the lessee failed to pay the plaintiff, the plaintiff brought

a foreclosure action against the lessor-owner. The court held,

however, that the Texas Constitution only provided for a lien on

the lessee’s leasehold estate; the plaintiff had no lien against

the owner’s property because the plaintiff did not contract with

the owner. Sumrall, 255 S.W. at 240.11

Given the similarity between the language in § 37 and

§ 70.301, and the manner in which Texas courts interpret the

former, we cannot accept Dalfort’s “plain language” arguments.

Indeed, we have been unable to locate any case in which a Texas

court has found the existence of a lien without first concluding
 

12In this case, Dalfort cannot argue that the lease and

sublease agreements created an apparent agency relationship between

9 Lives and Nations Air. 9 Lives explicitly told Dalfort--before

Dalfort began servicing the aircraft--that it did not consent to

Dalfort performing any work on the aircraft. This explicit denial

of consent by the owner would destroy any apparent agency

relationship that the leasing agreements might otherwise have

created.

 

13The source of preemption is not limited to federal statutory

law. Federal regulations can also preempt state law. See, e.g.,

In re Cajun Electric Power Coop., Inc., 109 F.3d 248, 254 (5th Cir.

1997).

12

that the owner himself (or his agent12) gave consent to the

performance of the services. Thus, Dalfort’s argument cannot

succeed by focusing on statutory text and other Texas authority

alone.

(2)

Next, we turn to Dalfort’s preemption argument. To persuade

us that federal law13 would preempt Texas law governing the

establishment of aircraft liens (when that state law contains an

owner-consent requirement), Dalfort must overcome the presumption

against preemption. See, e.g., Exxon Corp. v. Governor of

Maryland, 437 U.S. 117, 132 (1978). With this presumption guiding

our approach, we recount our own recent summary of federal

preemption:

Pre-emption may be either express or implied, and is

compelled whether Congress' command is explicitly stated

in the statute's language or implicitly contained in its

structure and purpose. Without explicit pre-emptive

language in the relevant statute, congressional intent to

displace state law may be inferred because the scheme of
13

federal regulation may be so pervasive as to make

reasonable the inference that Congress left no room for

the States to supplement it, because the Act of Congress

may touch a field in which the federal interest is so

dominant that the federal system will be assumed to

preclude enforcement of state laws on the same subject,

or because the object sought to be obtained by federal

law and the character of obligations imposed by it may

reveal the same purpose. Even where Congress has not

totally supplanted a state law, the state law is voided

to the extent that it directly conflicts with federal

law. This type of conflict arises when compliance with

both federal and state regulations is a physical

impossibility or when state law stands as an obstacle to

the accomplishment and execution of the full purposes and

objectives of Congress.

In re Cajun Electric Power Coop., Inc., 109 F.3d 248, 253-54 (5th

Cir. 1997) (citations and quotation marks omitted).

Dalfort has pointed to no statute or regulation that directly

conflicts with an owner-consent requirement in mechanic’s lien

statutes. Nor has Dalfort found, in either statutes or legislative

history, any expressly stated congressional intent to preempt state

law. Instead, Dalfort bases its argument on the notion that an

owner-consent requirement will thwart the policy behind federal

regulation of aircraft maintenance.

Dalfort correctly points out that the law governing interests

in aircraft is undoubtedly an area of coincident federal and state

regulation. In fact, federal law specifically contemplates this

coincidence. For example, the U.S. Code section governing the

“validity of conveyances, leases, and security instruments”

involving aircraft contains the following choice of law provision:
14

The validity of a conveyance, lease, or instrument that

may be recorded under section 44107 of this title [which

governs the recordation of security interests] is subject

to the laws of the State . . . at which the conveyance,

lease, or instrument is delivered . . . .

49 U.S.C.A. § 44108 (West 1997); see also Philko Aviation, Inc. v.

Shacket, 462 U.S. 406, (1983) (stating that although federal law

requires recordation of interests in aircraft before those

interests can affect innocent third parties, state law determines

the priority of those interests). Given the express recognition of

state law in this area, it is clear that congressional intent

cannot be inferred on grounds that the federal regulation is so

pervasive that Congress left no room for the States to supplement

it. Nor is the federal interest “so dominant that the federal

system will be assumed to preclude enforcement of state laws on the

same subject.” Although the Supremacy Clause of the U.S.

Constitution requires us to make the preemption inquiry in cases

involving areas where federal and state regulation coincide, we

must also pay heed to the Supreme Court’s admonishment that in

“areas of coincident federal and state regulation, the teaching of

[the Supreme Court’s] decisions . . . enjoins seeking out conflicts

between state and federal regulation where none clearly exists.”

Exxon Corp., 437 U.S. at 130 (citation and quotation marks omitted;

ellipses in original).

Although requiring an owner’s consent may place some

additional burden upon a lessee seeking maintenance services for an
15

aircraft, the requirement does not (in and of itself) restrict the

lessee’s choice of mechanics. If the owner refuses to consent to

having the work performed, the mechanic will simply be unable to

secure a lien on the aircraft. The mechanic may still agree to

perform the maintenance work, but he can only look to the lessee

for payment. Thus, because the risk of nonpayment is greater, the

owner-consent rule might effectively increase the cost of

maintenance for lessees, but such a possibility, even if it were

sure to occur, is too tenuous to support preemption. In sum, we

are confident that no clear conflict exists between FAA regulations

and an owner-consent requirement for the establishment of

mechanic’s liens. In the absence of a clear conflict, we will not

strain to find one. See Exxon, 437 U.S. at 130.

Finally, we find no merit in Dalfort’s argument that 9 Lives

could not withdraw its consent that Dalfort contends was exhibited

in the lease agreements. Any consent 9 Lives may or may not have

given to Nations Air through the lease and sublease agreements

cannot support the conclusion that Dalfort received consent from

the aircraft’s owner to perform maintenance work. 9 Lives

expressly refused to give Dalfort consent. Although 9 Lives may

have committed a breach of its lease agreement when it refused to

give consent to Dalfort, that alleged breach injured Nations Air,

not Dalfort. Dalfort was not a party to any contract with 9 Lives.

IV
16

We now turn to 9 Lives’ cross-appeal. The magistrate judge

found that 9 Lives did not sufficiently establish any damages

resulting from conversion or from any cloud placed on the

aircraft’s title. After reviewing the testimony presented at

trial, we conclude that the magistrate judge did not clearly err in

finding that 9 Lives failed to establish damages (other than the

attorney’s fees already awarded under § 70.306). In his testimony,

a director of 9 Lives stated that another party agreed to lease its

aircraft, but that Dalfort’s recordation of the lien delayed this

agreement. According to this testimony, the delay caused 9 Lives

to lose $125,000 in foregone rental payments. On crossexamination, however, Dalfort’s attorney brought to the court’s

attention the conspicuous absence of any contract evidencing the

new leasing agreement. Furthermore, 9 Lives did not present any

other witnesses to testify to the existence of this agreement. We

do not think the magistrate judge clearly erred in finding that 9

Lives failed to establish damages.

Finally, we will affirm the court’s award of attorney’s fees

because 9 Lives clearly remains the prevailing party under

§ 70.306.

V

In summary, we conclude that Texas law did not create a lien

on the aircraft under § 70.301. The magistrate judge did not

clearly err in failing to find any damages, other than attorney’s
 

14We hereby GRANT the parties’ joint motion to waive oral

argument and have a decision entered. 

17

fees, caused by wrongful conversion or a cloud on the aircraft’s

title. Furthermore, the magistrate judge did not err in awarding

attorney’s fees to 9 Lives as the prevailing party. For the

foregoing reasons, the judgment is

A F F I R M E D.14