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Stolz v. Honeycutt3/22/2001
Mark Stolz, d/b/a Paradise Tanning Salon, appeals from a trial court award of $10,906.96 on a subcontractor's claim brought by Steve Honeycutt d/b/a Honeycutt Air Conditioning and Refrigeration. Stolz contends that the trial court erred in granting judgment for Honeycutt: (1) because the court lacked jurisdiction over the dispute, (2) because the indemnity bond filed by Stolz precluded recovery against him, and (3) because the claim was otherwise settled and released before the lien was filed. Stolz also appeals from the trial court's refusal to grant him judgment in his cross-claim against the original contractor, Bob Kyle d/b/a R.C. Kyle Construction Co. We reverse and render as to Honeycutt's claims against Stolz and affirm as to Stolz's claims against Kyle.
I. Background
On March 19, 1992, Mark Stolz entered into a written contract with R.C. Kyle for Kyle to undertake certain improvements to property leased by Stolz. The agreement was amended on April 20, 1992, to increase the capacity of air conditioning to be installed from seven tons to 10 tons. The total contract price to be paid by Stolz was $37,858.35. Kyle thereafter subcontracted with Steve Honeycutt for the installation of the air conditioning at a price of $7,900. The specified air conditioning improvements were completed on June 7, 1992.
By registered letter dated June 26, 1992, Honeycutt gave notice to Stolz that an account for $7,900, owed by Kyle to Honeycutt for the work done on Stolz's leasehold, was still unpaid. The letter demanded payment of the account and stated that " f this account remains unpaid you may be personallyliable and your property subjected to a lien unless you withhold payments from KYLE CONSTRUCTION CO. ... or unless it is otherwise paid or settled."
On June 30, 1992, Stolz met with R.C. Kyle and Wendy Honeycutt, who was representing Steve Honeycutt. During the course of this meeting, Wendy Honeycutt accepted a check from Kyle that was made out for $7,800 and post-dated to July 9, 1992. Wendy Honeycutt and Kyle then signed a document that purported to release all claims which either of them had against the other. Also at that meeting, Stolz gave a check to Kyle for $7,858.35, the final amount Stolz owed to Kyle for the leasehold improvements. On July 17, 1992, the check that Kyle had given to Honeycutt for $7,800 was returned for non-sufficient funds. On August 14, 1992, Honeycutt filed an affidavit for a Mechanic's and Materialman's Lien and forwarded a copy of the affidavit to Stolz and Kyle. On November 9, 1992, Honeycutt filed a lawsuit against Stolz in Harris County Court of Law No. 2. After incurring a sanction for failure to respond to discovery, Honeycutt filed a non-suit on July 19, 1993, the day on which trial was scheduled to begin. Two days later, Honeycutt filed the present action in County Court of Law No. 3.
On or about November 10, 1993, Stolz sold the tanning business. To release the subcontractor's lien and facilitate the sale, he obtained a $17,000 indemnity bond with Universal Surety of America.
On August 25, 1997, the trial court entered an order dismissing Honeycutt's lawsuit for want of prosecution. Honeycutt then filed a motion to reinstate, which the trial court granted, conditioned on the payment of $750 as reasonable attorney's fees to Stolz's attorney by November 7, 1997. Although Stolz's attorney eventually received the check for $750, it is disputed whether the check was mailed on November 7th or 8th.
A trial to the court was held on November 25, 1997, and the court awarded judgment to Honeycutt in the amount of $7,858.35, plus prejudgment interest of $3,048.61, for a total of $10,906.96 plus post
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