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NO.
THE WOODLANDS IN THE DISTRICT COURT
MEDICAL SURGERY
CENTER, LLC
Plaintiff
MONTGOMERY COUNTY, TEXAS
E.E. REED
ONSTRUCTION, LP
JUDICIAL DISTRICT
Defendant
ORIGINAL PETITION REMOVE INVALID LIEN
TO THE HONORABLE JUDGE OF SAID COURT:
Comes now Plaintiff THE WOODLANDS MEDICAL SURGERY
CENTER, LLC and file this Suit for a Judicial Declaration removing
Defendant’s Invalid Lien under The Texas Constitution and Tex. Prop.
§53.160, and in support of same, would respectfully show this Honorable
Court as follows:
I. Selection of Discovery Level
Plaintiff seeks damages only monetary relief of $250,000 or less, and
monetary relief excluding interest, statutory or punitive damages and
penalties, and attorney’s fees and costs. Therefore, in accordance with Texas
Rules of Civil Procedure 190.1 and 190.3, Plaintiff requests a discovery
control plan under Level Two.
II. Parties and Service of Citation
Plaintiff THE WOODLANDS MEDICAL SURGERY CENTER,
LLC is a Texas limited liability company doing business in The Woodlands,
Texas.
Defendant E.E. REED CONSTRUCTION, LP is a Texas Limited
Partnership headquartered in Sugarland, Texas. It may be served with
citation by serving its agent and attorney, Timothy C Ross, at his business
address located at 1885 St. James Place, 15th Floor, Houston, TX 77056 or
wherever else he may be found.
III. Jurisdiction and Venue
The court has jurisdiction over Defendant because it does business in
Texas and the amount in controversy is within the jurisdictional limits of this
court. Venue for this cause of action is proper in Montgomery County because
the property that Defendant placed the lien on is located in Montgomery
County.
IV. Nature of Action
This is a suit for a judicial declaration to remove an invalid,
unenforceable lien from the property that tenants’ rent space. Specifically,
that lien recorded on March 15, 2024 at RP-2024025086 in the Real
Property Records of Montgomery County, Texas. Plaintiff asks this Court to
remove the invalid lien on the grounds detailed below.
V. Lien Removal Procedure under Texas Law
A procedure is available under Texas law for a property owner to have
the validity of a lien adjudicated on an expedited basis. See Tex. Prop. Code
Ann. §53.160 (Vernon Supp. 2005). The procedure is similar to a motion for
summary judgment as permitted under the Texas Rules of Civil Procedure.
See Tex. R. Civ. P. 166a. Unlike most pretrial orders, however, the court’s
order can be used to remove the lien and clear title to the owner’s property
before a full trial of merits is conducted and before a lengthy appeal process
is exhausted. Lien claimants are not denied due process because they are
given a full hearing as to the validity of the lien and are provided with the
means of staying the order by positing a reasonable bond or similar security
See Tex. Prop. Code Ann. §53.160 (Vernon Supp. 2005). Following a
hearing, the court is to promptly determine whether the movant is entitled
to have the lien removed. See Tex. Prop. Code Ann. §53.160(e) (Vernon
Supp. 2005). If the court determines that the movant is entitled to remove
the lien, the court shall enter an order removing the lien claimed in the lien
affidavit. Id.
VI. Defendant’s Lien Is Invalid As a Matter of Law
A. Plaintiff’s Lien Affidavit Fails to State when the Work was
Performed - a Fatal Deficiency Under Texas Law
A lien affidavit that does not include the months in which the work was
completed, does not substantially comply with the statute, and is therefore
invalid as a matter of law. See LTF Real Estate Co., Inc. v. D&D Utility
Supply, L.L.C., 2013 WL 1183300 (2013). As discussed above, in Texas, a
lien claimant must file its lien as follows:
FILING OF AFFIDAVIT. (a) An original contractor
claiming the lien must file its affidavit with the
county clerk:
(1) for projects other than residential construction
projects, not later than the 15th day of the fourth
month after the month in which the original
contractor's work was completed, terminated, or
abandoned. Tex. Prop. Code §53.052(a).
Here, it’s undisputed that Defendant’s Lien Affidavit fails to state when
the work was performed. This is a necessary component because, without it,
there’s no way of knowing when the statutory deadline expires to file the lien.
B. Without a Direct Contract/Privity with the Owner,
Defendant’s Constitutional Lien Fails as a Matter of Law
as Against the Property Owner
In Paragraph 9, Defendant’s lien affidavit claims a Constitutional Lien
pursuant to Article XVI, Section 37 of the Texas Constitution. Id. And the
legal description is the real property – not just Plaintiff’s “leasehold interest”.
While The Texas Constitution does provide a self-executing lien for
improvements to property, its applicability is expressly limited to “original
contractor(s) who are in direct privity of contract with the owner.” See
Trinity Drywall v. Toka Gen. Contrs., 416 S.W. 3d 201 (Tex. App. – El Paso,
2013, pet. denied)(the constitutional mechanic’s lien is only available to
those who contract directly with the property owner so that the owner of the
property on which the lien is claimed will have notice of the lien)(emphasis
added). And this makes sense: Since Constitutional Liens are “self-
executing”, have no deadline or notice requirements to the property owner,
their application should be strict, narrow, and judicially scrutinized.
Here, Defendant has no evidence that it had any “direct privity”
whatsoever with the Owner of the real property, Woodlands Medical
Properties, LP. Defendant attaches no contract to its lien affidavit. In fact,
the Defendant doesn’t even have a contract with the Tenant. Defendant’s
own lien affidavit admits that there is no privity with the property owner and
Defendant fails to expressly limit the legal description attached as Exhibit
“A” to its lien affidavit to Plaintiff’s “leasehold interest only.”
C. Further, Under Texas law, the Burden is on the Contractor
to Confirm an Agent’s Authority to Enter Into a Contract
binding another Party
Certain limitations apply in determining whether apparent authority
exists. Humble Nat'l Bank v. DCV, Inc., 933 S.W.2d 224, 237 (Tex. App.--
Houston [14th Dist.] 1996, writ denied). First, apparent authority is
determined by looking at the acts of the principal and ascertaining whether
those acts would lead a reasonably prudent person using diligence and
discretion to suppose the agent had the authority to act on behalf of the
principal. Id. at 237. Only the actions of the principal may be considered;
representations of authority made by the agent have no legal
effect. Id. Second, the principal must have affirmatively held out the agent
as possessing authority. Id. Finally, a party dealing with an agent must
ascertain both the fact and the scope of the agent's authority, and if the party
deals with the agent without having made such a determination, he does so
at his own risk. Id.
This is exactly the case here. There is no evidence in the record at all
that EE Reed confirmed that Sawdust Capital, who signed their construction
contract, had the authority to bind Plaintiff (or the landowner). Under Texas
law, this burden is squarely on EE Reed and any representations by the
alleged agent have no legal effect. See Id.
VII. Cause of Action
REQUEST FOR DECLARATORY JUDGMENT
The allegations of the foregoing paragraphs above are realleged and
incorporated by reference herein. The purpose of the Uniform Declaratory
Judgment Act “is to settle and to afford relief from uncertainty and insecurity
with respect to rights, status, and other legal relations, and it is to be liberally
construed and administered.” § 37.002 TEX. CIV. PRAC. & REM CODE.
Plaintiff seeks declaratory judgment declaring that the Mechanic’s and
Constitutional Liens at issue in this case do not comply with the strict
provisions of The Texas Constitution and the Tex. Prop. Code, Chapter 53
and Plaintiff is entitled to a judicial order removing the lien.
VIII. Attorney’s Fees
In any proceeding to enforce a mechanic's lien or to declare one invalid
or unenforceable, either in whole or in part, the court must award costs and
reasonable attorney's fees as are equitable and just. Tex. Prop. Code §
53.156 (as amended by Acts 2011, 82d Leg., R.S., ch. 51). Though this statute
was once written in permissive terms, it was amended in 2011 to mandate an
award of attorney's fees. This amendment applies to actions commenced on
or after Sept. 1, 2011, so that the date of the contract or the underlying lien
claim is not controlling See Acts 2011, 82d Leg., R.S., ch. 51, §§ 2, 3.
Accordingly, if the Court grants a summary motion to remove this lien, it
must award attorney's fees to the Plaintiff. See Wesco Distrib., Inc. v.
Westport Grp, Inc., 150 S.W.3d 553, 562 (Tex. App.--Austin 2004, no pet.).
IX. Conclusion & Prayer
WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully
requests that the Court enter an order removing the lien claimed in the lien
affidavit, order payment of attorney’s fees and for such other and further
relief to which Plaintiff may show itself to be justly entitled.
Respectfully submitted,
THE KRAUS LAW FIRM
SBOT# 24058234
19500 State Hwy 249, Ste. 350
Houston, Texas 77070
281-781-8677 Telephone
281-840-5611 Facsimile
Email: jdk@krausattorneys.com
Attorney for Plaintiff
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NO. THE WOODLANDS IN THE DISTRICT COURT MEDICAL SURGERY CENTER, LLC Plaintiff MONTGOMERY COUNTY, TEXAS E.E. REED ONSTRUCTION, LP JUDICIAL DISTRICT Defendant ORIGINAL PETITION REMOVE INVALID LIEN TO THE HONORABLE JUDGE OF SAID COURT: Comes now Plaintiff THE WOODLANDS MEDICAL SURGERY CENTER, LLC and file this Suit for a Judicial Declaration removing Defendant’s Invalid Lien under The Texas Constitution and Tex. Prop. §53.160, and in support of same, would respectfully show this Honorable Court as follows: I. Selection of Discovery Level Plaintiff seeks damages only monetary relief of $250,000 or less, and monetary relief excluding interest, statutory or punitive damages and penalties, and attorney’s fees and costs. Therefore, in accordance with Texas Rules of Civil Procedure 190.1 and 190.3, Plaintiff requests a discovery control plan under Level Two. II. Parties and Service of Citation Plaintiff THE WOODLANDS MEDICAL SURGERY CENTER, LLC is a Texas limited liability company doing business in The Woodlands, Texas. Defendant E.E. REED CONSTRUCTION, LP is a Texas Limited Partnership headquartered in Sugarland, Texas. It may be served with citation by serving its agent and attorney, Timothy C Ross, at his business address located at 1885 St. James Place, 15th Floor, Houston, TX 77056 or wherever else he may be found. III. Jurisdiction and Venue The court has jurisdiction over Defendant because it does business in Texas and the amount in controversy is within the jurisdictional limits of this court. Venue for this cause of action is proper in Montgomery County because the property that Defendant placed the lien on is located in Montgomery County. IV. Nature of Action This is a suit for a judicial declaration to remove an invalid, unenforceable lien from the property that tenants’ rent space. Specifically, that lien recorded on March 15, 2024 at RP-2024025086 in the Real Property Records of Montgomery County, Texas. Plaintiff asks this Court to remove the invalid lien on the grounds detailed below. V. Lien Removal Procedure under Texas Law A procedure is available under Texas law for a property owner to have the validity of a lien adjudicated on an expedited basis. See Tex. Prop. Code Ann. §53.160 (Vernon Supp. 2005). The procedure is similar to a motion for summary judgment as permitted under the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 166a. Unlike most pretrial orders, however, the court’s order can be used to remove the lien and clear title to the owner’s property before a full trial of merits is conducted and before a lengthy appeal process is exhausted. Lien claimants are not denied due process because they are given a full hearing as to the validity of the lien and are provided with the means of staying the order by positing a reasonable bond or similar security See Tex. Prop. Code Ann. §53.160 (Vernon Supp. 2005). Following a hearing, the court is to promptly determine whether the movant is entitled to have the lien removed. See Tex. Prop. Code Ann. §53.160(e) (Vernon Supp. 2005). If the court determines that the movant is entitled to remove the lien, the court shall enter an order removing the lien claimed in the lien affidavit. Id. VI. Defendant’s Lien Is Invalid As a Matter of Law A. Plaintiff’s Lien Affidavit Fails to State when the Work was Performed - a Fatal Deficiency Under Texas Law A lien affidavit that does not include the months in which the work was completed, does not substantially comply with the statute, and is therefore invalid as a matter of law. See LTF Real Estate Co., Inc. v. D&D Utility Supply, L.L.C., 2013 WL 1183300 (2013). As discussed above, in Texas, a lien claimant must file its lien as follows: FILING OF AFFIDAVIT. (a) An original contractor claiming the lien must file its affidavit with the county clerk: (1) for projects other than residential construction projects, not later than the 15th day of the fourth month after the month in which the original contractor's work was completed, terminated, or abandoned. Tex. Prop. Code §53.052(a). Here, it’s undisputed that Defendant’s Lien Affidavit fails to state when the work was performed. This is a necessary component because, without it, there’s no way of knowing when the statutory deadline expires to file the lien. B. Without a Direct Contract/Privity with the Owner, Defendant’s Constitutional Lien Fails as a Matter of Law as Against the Property Owner In Paragraph 9, Defendant’s lien affidavit claims a Constitutional Lien pursuant to Article XVI, Section 37 of the Texas Constitution. Id. And the legal description is the real property – not just Plaintiff’s “leasehold interest”. While The Texas Constitution does provide a self-executing lien for improvements to property, its applicability is expressly limited to “original contractor(s) who are in direct privity of contract with the owner.” See Trinity Drywall v. Toka Gen. Contrs., 416 S.W. 3d 201 (Tex. App. – El Paso, 2013, pet. denied)(the constitutional mechanic’s lien is only available to those who contract directly with the property owner so that the owner of the property on which the lien is claimed will have notice of the lien)(emphasis added). And this makes sense: Since Constitutional Liens are “self- executing”, have no deadline or notice requirements to the property owner, their application should be strict, narrow, and judicially scrutinized. Here, Defendant has no evidence that it had any “direct privity” whatsoever with the Owner of the real property, Woodlands Medical Properties, LP. Defendant attaches no contract to its lien affidavit. In fact, the Defendant doesn’t even have a contract with the Tenant. Defendant’s own lien affidavit admits that there is no privity with the property owner and Defendant fails to expressly limit the legal description attached as Exhibit “A” to its lien affidavit to Plaintiff’s “leasehold interest only.” C. Further, Under Texas law, the Burden is on the Contractor to Confirm an Agent’s Authority to Enter Into a Contract binding another Party Certain limitations apply in determining whether apparent authority exists. Humble Nat'l Bank v. DCV, Inc., 933 S.W.2d 224, 237 (Tex. App.-- Houston [14th Dist.] 1996, writ denied). First, apparent authority is determined by looking at the acts of the principal and ascertaining whether those acts would lead a reasonably prudent person using diligence and discretion to suppose the agent had the authority to act on behalf of the principal. Id. at 237. Only the actions of the principal may be considered; representations of authority made by the agent have no legal effect. Id. Second, the principal must have affirmatively held out the agent as possessing authority. Id. Finally, a party dealing with an agent must ascertain both the fact and the scope of the agent's authority, and if the party deals with the agent without having made such a determination, he does so at his own risk. Id. This is exactly the case here. There is no evidence in the record at all that EE Reed confirmed that Sawdust Capital, who signed their construction contract, had the authority to bind Plaintiff (or the landowner). Under Texas law, this burden is squarely on EE Reed and any representations by the alleged agent have no legal effect. See Id. VII. Cause of Action REQUEST FOR DECLARATORY JUDGMENT The allegations of the foregoing paragraphs above are realleged and incorporated by reference herein. The purpose of the Uniform Declaratory Judgment Act “is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and it is to be liberally construed and administered.” § 37.002 TEX. CIV. PRAC. & REM CODE. Plaintiff seeks declaratory judgment declaring that the Mechanic’s and Constitutional Liens at issue in this case do not comply with the strict provisions of The Texas Constitution and the Tex. Prop. Code, Chapter 53 and Plaintiff is entitled to a judicial order removing the lien. VIII. Attorney’s Fees In any proceeding to enforce a mechanic's lien or to declare one invalid or unenforceable, either in whole or in part, the court must award costs and reasonable attorney's fees as are equitable and just. Tex. Prop. Code § 53.156 (as amended by Acts 2011, 82d Leg., R.S., ch. 51). Though this statute was once written in permissive terms, it was amended in 2011 to mandate an award of attorney's fees. This amendment applies to actions commenced on or after Sept. 1, 2011, so that the date of the contract or the underlying lien claim is not controlling See Acts 2011, 82d Leg., R.S., ch. 51, §§ 2, 3. Accordingly, if the Court grants a summary motion to remove this lien, it must award attorney's fees to the Plaintiff. See Wesco Distrib., Inc. v. Westport Grp, Inc., 150 S.W.3d 553, 562 (Tex. App.--Austin 2004, no pet.). IX. Conclusion & Prayer WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully requests that the Court enter an order removing the lien claimed in the lien affidavit, order payment of attorney’s fees and for such other and further relief to which Plaintiff may show itself to be justly entitled. Respectfully submitted, THE KRAUS LAW FIRM SBOT# 24058234 19500 State Hwy 249, Ste. 350 Houston, Texas 77070 281-781-8677 Telephone 281-840-5611 Facsimile Email: jdk@krausattorneys.com Attorney for Plaintiff