Opinion

Reliance National Indemnity Company, L&T, J v. and Lamar Construction, Inc. v. Advance'd Temporaries, Inc.

Court
Texas Supreme Court
Filed
Jun 8, 2007
Status
Published
Cited by
0 cases
Authority
More cited than 40.0%

The opinion

IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

════════════

No. 05-0558

════════════

Reliance National Indemnity

Company, L&T, J.V.,

And Lamar Construction, Inc.,

Petitioners,

v.

Advance’d Temporaries, Inc.,

Respondent

════════════════════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Thirteenth District of

Texas

════════════════════════════════════════════════════

Argued October 18,

2006

Justice Medina delivered the opinion of

the Court.

In this case,

we decide whether a temporary employment agency, which places workers at a

construction project under a contract with a subcontractor, “furnishes labor”

within the meaning of Chapter 53 of the Texas Property Code, thus qualifying for

a mechanic’s lien. The trial court denied the temporary agency’s lien,

concluding that it had not “furnish[ed] labor” within the statute’s meaning.

See Tex. Prop. Code §

53.021 The court of appeals, however, reversed the

trial court’s judgment and remanded the case for further proceedings. 165 S.W.3d 1 . Although we do not agree with the court of

appeals’ analysis in all respects, we do agree that the temporary employment

agency furnished labor within the statute’s meaning and therefore affirm.

I

L & T,

J.V. (“Lamar”) agreed to serve as general contractor during construction of the

Corpus Christi Crosswinds Apartments and obtained a performance bond as its

contract with the project’s owner required. Thereafter, Lamar subcontracted with

Cesar Gonzalez, doing business as Gonzalez Construction, who agreed to frame,

drywall, and roof the apartment project. Gonzalez, however, did not have an

adequate work force for the job, and therefore sought additional workers from

Advance’d Temporaries, Inc.

The agreement

between Gonzalez and Advance’d identified these

temporary workers as Advance’d’s employees and

obligated Advance’d to obtain workers’ compensation

and general liability insurance for them. Advance’d

further offered a limited guarantee of its employees’ work. Advance’d agreed to promptly replace any temporary worker,

upon notification within the first two hours of work, if Gonzalez was not

satisfied with the worker’s performance. The contract further provided that

temporary workers were not to operate machinery, automotive equipment, or work

on ladders or scaffolds without Advance’d’s prior

written approval. Finally, Gonzalez agreed to pay Advance’d $2500 in liquidated damages if he hired any

temporary worker within three months of the agreement.

Advance’d recruited and supplied more than 100 workers for

Gonzalez, qualified the legal status of each worker, and completed the necessary

paper work and insurance requirements. Advance’d also

paid the temporary workers and their payroll taxes, invoicing Gonzalez weekly

for its services. This relationship was only a few months old when Lamar

abruptly terminated Gonzalez’s work.

Lamar

apparently paid Gonzalez all that was owed for his work, but Gonzalez failed to

pay the full amount owed to Advance’d . Advance’d nevertheless took care of

the temporary workers, paying them for their labor. Advance’d then gave notice of its

claim under the mechanic’s lien statute, which Lamar disputed. Advance’d thereupon filed an affidavit claiming a mechanic’s

lien. Advance’d sued Gonzalez for the balance owed

under its contract after it was unable to collect from Gonzalez’s or Lamar’s

surety bond. The Crosswinds Apartments, Lamar, and the surety were also joined

in the litigation.

Following a

bench trial, the judge rendered judgment against Gonzalez, but denied Advance’d recovery against the other parties. The judge

concluded that Advance’d was not entitled to recover

against Lamar’s surety bond because Advance’d had not

furnished labor as the mechanic’s statute requires, but had simply extended

credit to Gonzalez for its payroll.

Advance’d appealed, complaining that it had furnished labor

at the Crosswinds project under a contract with a subcontractor and was thus

entitled to the benefits of the mechanic’s lien statute, including a judgment

against the general contractor’s bond. The court of appeals agreed, reversed the

trial court’s judgment, and remanded the case for the trial court to determine

the remaining issues regarding the validity and amount of Advance’d’s claim. 165 S.W.3d

1 .

II

Lamar and its surety, Reliance National Indemnity Co. (hereafter

“Reliance”), appeal, asserting three errors. First, Reliance argues that,

contrary to the court of appeals’ analysis, Advance’d

did not “furnish labor” on the Crosswinds project and

thus was not entitled to a mechanic’s lien. In a related issue, Reliance argues

that the court of appeals applied an erroneous standard of review by mistakenly

viewing the question of whether Advance’d “furnished

labor” as a legal question rather than a fact question. Finally, Reliance

complains that even if Advance ’d might have been entitled

to a lien, it did not timely perfect its rights, and the court erroneously

failed to consider that as an alternative basis for affirming the trial court’s

judgment.

A

Relevant to

the first two issues is how one qualifies under the mechanic’s lien statute as a

person who “furnishes labor.” Tex. Prop.

Code §

53.021(a). The statute provides, in relevant part, that a

person has a lien if the person “labors . . . or furnishes labor or materials

for construction or repair in this state of [] a house, building, or

improvement” and “the person labors . . . or furnishes the labor or materials

under or by virtue of a contract with the owner or the owner’s agent [which

includes contractors and subcontractors among others].” Id . §

53.021(a )( 1),(2). Chapter 53 defines “labor” as “labor

used in the direct prosecution of the work” and defines “work” as “any part of

construction or repair performed under an original contract.” Id . §§ 53.001(3),

(14). An “original contract” is “an agreement to which an owner is a party

either directly or by implication of law.” Id . § 53.001(7). These provisions led

the court of appeals to conclude that Chapter 53 protects those who labor in

Texas as well

as those who furnish labor under contract for the benefit of an owner’s

construction project. 165 S.W.3d at 4-5 .

Reliance

argues, however, that Advance’d did not “furnish

labor” for the Crosswinds project because it did not control or supervise the

temporary workers and was not responsible for the quality of their work.

Reliance further submits that the temporary workers were Gonzalez’s employees

under the borrowed-employee doctrine. See St. Joseph Hosp. v. Wolff , 94

S.W.3d 513, 538 (Tex. 2003)(quoting Comm. on Pattern Jury

Charges, State Bar of Tex., Texas Pattern Jury Charges: Malpractice, Premises

& Products PJC 52.2 (1997)(“An employee ceases to be an employee of his

general employer if he becomes the ‘borrowed employee’ of another.”)). Reliance

then reasons that Advance’d did not furnish labor for

the project because it was not the employer of the temporary workers who

actually performed the work. The court of appeals concluded, however, that the

temporary workers were Advance’d’s employees, and we

agree.

The contract

clearly identifies the temporary workers as Advance’d’s employees and makes Advance’d the responsible party. Advance’d was responsible for recruiting and screening these

workers. Advance’d was responsible for hiring, firing,

paying and insuring them. Advance’d also had the final

word on whether these workers could be exposed to certain working

conditions.

Clearly,

Advance’d did not control the details of the work at

the construction site, but that does not mean it ceased to be their employer.

The borrowed-employee doctrine does not provide otherwise. See St. Joseph

Hosp. , 94 S.W.3d at 537-38 (discussing the borrowed-employee doctrine). That

tort doctrine is concerned with vicarious liability and apportionment of

responsibility for employees who have more than one master. Id . The doctrine

has no application here because this case is one of contract and the

responsibilities are spelled out in the parties’ agreement.

The nature of

the temporary employment business is that clients of the temporary employment

agency will direct and control the work that needs to be done; otherwise, the

agency’s service would have little value to the client. The contract indicated

that the temporary workers were, and continued to be, Advance’d’s employees and the responsibility Advance’d assumed for these workers confirms that

relationship. Moreover, Advance’d retained a degree of

control over these workers, requiring prior notice and agreement for certain

hazardous duties, immediate notification of any injury, paid time and one-half

for certain holidays, and a minimum work day of four hours per employee.

Gonzalez had the right to reject any temporary worker, but he could not dismiss

the worker or affect that worker’s continuing relationship, if any, with Advance’d . In sum, Advance’d did

not merely perform administrative services but rather assumed actual

responsibility as the employer of these workers.

Other courts

agree that a temporary employment agency’s claim to a mechanic’s lien is

ordinarily justified by its relationship to the temporary workers. See, e.g.,

Eastland Fin. Servs . v. Mendoza , 43 P.3d 375, 380 (N.M. App. 2002);

Contractors Labor Pool Inc., v. Westway

Contractors, Inc. , 53 Cal. App. 4th 152 , 61

Cal. Rptr . 2d 715, 722 (1997). The California court

identified employer status as the “crucial factor” for lien rights, writing:

The

designation of a person as the “employer” of another is not a mere label . . . .

Rather, such designation signifies a legal relationship in which the employer

has legal responsibilities to the employee and to third parties, which are

absent where a person merely supervises another’s employees or disburses to such

employees wages which are due from the other person to the employees . .

. .

Contractors

Labor Pool , 61 Cal. Rptr . 2d at 722

(emphasis in original).

In this case,

Advance’d hired construction workers as its employees,

who then labored on a construction of an improvement in this state, by virtue of

a contract with an owner, contractor, or subcontractor, thus satisfying the

statutory requirement of the mechanic’s lien statute. Tex. Prop. Code § 53.021(a). Under

these circumstances, Advance’d is no different from a

supplier who furnishes lumber, pipe, or shingles. Instead of materials, however,

Advance’d furnished labor, paying the workers for

their services, just as a hardware supplier might pay for the hinges, doorknobs,

and fixtures it provides to a construction project. We therefore conclude that,

because the temporary workers here were Advance’d’s

employees, Advance’d furnished labor by providing

these workers to Gonzalez for work at the Crosswinds construction project.

B

Reliance also

attacks the court of appeals’ decision from a procedural perspective, arguing

that the court applied the wrong standard of review. Among the trial court’s

findings of fact and conclusions of law was the conclusion that Advance’d was not entitled to recover under the surety bond

because it “did not perform ‘labor’ as that term is defined in the mechanic’s

lien statutes.” The court of appeals reviewed this conclusion of law as a legal

question, ultimately disagreeing with the trial court. Reliance submits that the

question is actually one of fact that should have been reviewed under a

sufficiency of the evidence standard rather than the court of appeals’ de novo

approach.

Appellate

courts review legal determinations de novo, whereas factual determinations

receive more deferential review based on the sufficiency of the evidence. What

might otherwise be a question of fact becomes one of law when the fact is not in

dispute or is conclusively established. See Tenneco Inc. v. Enter. Products

Co. , 925 S.W.2d 640, 643 (Tex. 1996). The relevant legal question here

is whether the mechanic’s lien statute applies to this temporary employment

agency, but that determination rests on the existence of the factual basis

required by the statute; i.e., whether Advance’d

furnished labor to a Texas construction project under a contract with the owner

or its agent.

Reliance

contends that some of these facts were at issue and that the court of appeals

improperly substituted its view of the evidence for that of the trial court. For

example, Reliance submits that Advance’d’s contract

was inadequate because it did not identify the Crosswinds project as the

workplace for the temporary workers. As a legal matter, the mechanic’s lien

statute does not require this, but more importantly, the temporary workers

undisputedly did labor for the owner’s agent, under contract, at the Crosswinds

project. Reliance’s factual dispute is therefore immaterial. Similarly, Reliance

reprises its argument that Advance’d did not control

the temporary workers at the construction site and thus did not furnish labor.

In the parlance of this procedural attack, Reliance’s argument is that this lack

of control at the work site is some evidence that Advance’d did not furnish labor. But again the factual

dispute is immaterial. Gonzalez’s control over the work site does not contradict

or supplant the terms of the contract and is not evidence material to the

employment question or to the relationship between Advance’d and its employees.

The court of

appeals, however, proposed a seven-factor test, gleaned from other

jurisdictions, that it submits as a generic aid for determining when a party has

“furnished labor.” 165 S.W.3d at 5-6 . [1] We do not adopt that test. The court

applied some of these factors to conclude that Advance’d “furnished labor.” Id . at 6. Although these

“factors” might be relevant for determining employee status in general,

balancing them against one another is not the answer to the legal question posed

here. Whether Advance’d “furnished labor” and is

therefore entitled to a mechanic’s lien depends on its relationship to the

workers. Because the evidence conclusively establishes that Advance’d was the employer, and was the party responsible

for the worker’s pay and related benefits, the court of appeals did not err in

its legal conclusion that Advance’d was entitled to a

mechanic’s lien.

C

Finally,

Reliance argues that the court of appeals erred in not addressing other

independent grounds supporting the trial court’s judgment. Reliance’s complaint,

however, focuses on the value of Advance’d’s claim

rather than its validity. For example, Reliance contends that Advance’d’s claim under the bond should be reduced because

it failed to timely perfect its claims for part of its services. Advance’d responds that the court of appeals properly

remanded the valuation issue for the trial court to determine, and we agree.

See Tex. R. App. P. 43.3

(court of appeals should render judgment except when remand is necessary for

further proceedings).

The court of

appeals’ judgment is affirmed.

__________________________________________

David M.

Medina

Justice

Opinion

delivered: June 8, 2007

[1] “Those factors

include: (1) the temporary employment agency’s involvement in selecting and

screening the workers for hire; (2) the use by the agency of its own criteria

for hiring the workers; (3) affirmative representations by the agency to the

workers that it is their employer; (4) the nature of documentation exchanged

between the workers and the agency at the start of the working relationship; (5)

the agency’s involvement in training, supervising, and disciplining the workers

and otherwise retaining control over the workers or directing their behavior;

(6) whether the agency rather than the contractor determined which workers could

be terminated; and (7) whether the agency withheld workers rather than services

on nonpayment by the contractor.”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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