Preview
T-0077.1
CAUSE NO. 2017-66216
KELLY COLEMAN § IN THE DISTRICT COURT
§
VS. §
§
EMILE NASSAR, ROBERT §
CUMMINGS AND THE BOARD OF §
TRUSTEEES OF THE PINES § 157" JUDICIAL DISTRICT
CONDOMINIUM ASSOCIATION, INC. §
§
VS. §
§
§
ACTION PREMIER HAULING, L.L.C. HARRIS COUNTY, TEXAS
THE PINES CONDOMINIUM ASSOCIATION, INC.’S
SUMMARY MOTION TO REMOVE
M&M LIENS PURSUANT TO TEX. PROP. CODE § 53.160
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, THE PINES CONDOMINIUM ASSOCIATION, INC. (“Association”),
Defendant, and files this MOTION TO REMOVE M&M LIENS PURSUANT TO TEX. PROP. CODE
§53.160, and in support would show the Court as follows:
1, This Motion seeks the summary removal of one (1) Mechanic’s and Materialman’s
Lien filed by a contractor on property claimed to be owned by The Pines Condominium
Association, Inc., as allowed and provided by TEXAS PROPERTY CODE § 53.160. The Association
brings this Motion on its own behalf and on behalf of two or more unit owners regarding this
matter affecting the Association, as provided by TEX. PROP. CODE §82.102.
Factual Background
2, The Association is a Texas non-profit corporation, consisting of 24 buildings and
254 individually owned residential condominium units located upon that certain 15.378 acre tract
of land commonly known as 12633 Memorial Dr., Houston, Texas (“Property”). The Association
owns no real property or any portion of the Property.7-0077.2
3. In mid-September, 2017, without the authority, consent or knowledge of any of the
254 individual condominium owners, upon information and belief, the Association’s previous
board president, Emile Nasser, in his individual capacity, entered into a SERVICE AGREEMENT with
Action Premier Hauling, L.L.C. (“APH”) for removal of residential debris from the streets and
common areas of the Property accumulated from the effects of hurricane ‘Harvey’ in the Houston
metropolitan area.
4, APH, shortly after entry of the SERVICE AGREEMENT, began debris removal work,
including services, labor and materials at the Property. In turn, the Association apparently paid to
APH for its services, labor and materials sums totaling in excess of $270,000.00. Subsequently,
the Association learned that (i) the debris removal work performed by APH was not supplied and
performed pursuant to industry standards, and costs, and (ii) the work that was represented as
performed was not completed or performed.
5. Unknown and without written notice to any of the 254 individual residential
condominium unit owners, APH filed an AFFIDAVIT OF MECHANIC’S LIEN upon the Property
asserting an unpaid claim of $325,575.00, and failed to provide written notice of the Mechanic’s
& Materialman’s Lien Affidavit as required by TEX. Prop. CODE §§53.055.
M&M Lien Filed and Defective/Notice
6. A Mechanic’s and Materialman’s Lien has been filed against the Property as
follows:
CONTRACTOR Lien Amount Date Filed
Action Premier Hauling, L.L.C. $325,575.00 October 30, 2017!
ds APH is not owed money by any of the 254 individual residential condominium unit
| Exhibit “A” attached.T-0077.3
owners. Additionally, APH failed to provide written notice of the filed AFFIDAVIT OF MECHANIC’S
LIEN to any of the 254 individual residential condominium unit owners of the Property as required
by Tex. Prop. Code § 53.055. The Texas Property Code requires the Court enter an Order
removing those recorded contractor M&M Lien(s) listed in paragraph 6. above, based upon at least
the following applicable provisions:
TEX. Prop. CODE § 53.160(b):
(3) notice of the filed affidavit was not furnished to the owner or original
contractor as required by Section 33.055.
8. As a result of noncompliance with “notice” provisions required by the
Claimant/APH, the AFFIDAVIT OF MECHANIC’S LIEN is invalid and the Court is required to remove
the Affidavit of Lien filed against the 254 individual residential condominium unit owners
properties.
M&M Lien Filed and Defective/Homesteads
A. APH did not have a contract with any of the 254 individual residential
condominium unit owners necessary to affix an affidavit of lien.
9. To fix alien on a homestead, Section 53.254(a) requires that “the person who
is to furnish material or perform labor and the owner must execute a written contract setting
forth the terms of the agreement.” Jd, § 53.254(a). Furthermore, that contract “must be filed
with the county clerk of the county in which the homestead is located. Id. $§ 53.254(e).
10. Section 53.160 of the Texas Property Code provides several grounds upon which
a party may seek the summary removal of an invalid lien from a homestead. Among them.
the following two (2) grounds are relevant to ACH’s lien claim and this Motion and show
? Read together, subsection 53.254(c) and subsection 53.160(b)(6) seemingly require that the written contract
for work and materials be executed and filed before the lien affidavit is filed. Here, APH did not attach any contract
it had with Nasser to its lien affidavit filing and has never previously filed the purported agreement with the Harris
County Clerk. [see Exhibit A, attached]T-0077.4
how ACH’s lien affidavit invalid:
1, When the lien affidavit was filed on the homestead property. no written
contract was executed between the property owner and the lien claimant. See
id. §$$53.160(a)(6)(A), 4(a).
2. The lien affidavit was filed on the homestead property and the affidavit
failed to contain the statutory notice as required by Section 53.254(1). See
id. §§53.160(a)(6)(13).
11. Here, APH was the party that purportedly furnished material and labor. However,
APH never executed any contract with any of the 254 individual residential condominium
owners; the only contract, if any, was a single one-page document titled “SERVICE AGREEMENT.”
Consequently, ACH failed to comply with Tex. Prop. Code §53.254(a).
12. As a result, ACH’s Affidavit of Mechanic’s Lien against each of the 254
individual condominium owner’s homesteads is invalid as to the individual condominium
owners.
B. ACH does not have a CONSTITUTIONAL mechanic’s lien upon any of the 254
individual residential condominium units.
13. The Texas Constitution affords mechanics and materialmen liens for the material
and labor they provide to property owners. see Tex. Const. Art. XV §37. To fix a Hen ona
homestead, a contractor must comply with both the consti tutional and statutory requirements*
found respectively in Article X VI. Section 50(5)(A)-(D)of the Texas Constitution’ and Section
3 Section 53.160(b)(6) state
(A) no contract was executed or filed as required b:
to contain the notice as required by Section 53.25
as follows: “When the lien affidavit was filed on a homestead property:
Section 53.254; [or] (B) the affidavit claiming a lien failed
4 “Encumbrances may be properly fixed on homestead property for . . . work and material used in
constructing improvements on the property if contracted for in writing as provided by Sections 53.254(a), (b), and
(c).” Tex. Prop. Code § 41.00 | (b)(3).”
5 See Stewart v. Clark, 677 S.W.2d 246, 249 (Tex. App.-Corpus Christi, no writ) (“Appellant argues that this
section, as amended, simply sought to afford single people relief from forced sale, but did not change the law to require
a contract in writing before a lien for improvements could be asserted against a single adult homestead. We must
disagree.”).T-0077.5
53.254 of the Texas Property Code. see Kendall Builders, Inc. v. Chesson, 149 S.W.3d 796, 807
(Tex. App.—Austin 2004, pet. denied) (“[Laborers may secure valid mechanic's and
materialman's liens against the homestead on which the work was performed, but only by
following certain constitutional and statutory procedures.”)
14. Here, APH made no attempt to comply with the constitutional or statutory
requirements for asserting a lien against the 254 individual condominium unit owners’
homesteads at the Association. Again, ACH did not execute a written agreement with any of the
254 individual condominium unit owners’ homesteads at the Association. APH cannot claim
a constitutional lien against any of the 254 individual condominium unit owners’ homesteads
within the Association’s condominium regime.
Release of Lien
15. Inasmuch, the Association does not own the subject Property, or any real property,
and (i) APH not having provided written notice of the filing of the Affidavit of Mechanic’s Lien
to any of the 254 individual residential condominium unit owners, the lien of APH is invalid as
provided by Tex. Prop. Code § 53.055, (ii) APH having no written agreement with any of the 254
individual unit owners setting forth the terms of the agreement, the lien of APH is invalid as
provided by Tex. Prop. Code §53.254(a), (iii) the work and material are not contracted for in
writing, with the consent of both spouses, the lien of APH is invalid as provided by Tex.
Constitution Art. XVI (5)(A), and (iv) APH not having filed the purported agreement with the
Harris County Clerk prior to commencement of work as it relates to homesteads, the Association
requests this Court enter an Order removing the claims and that certain AFFIDAVIT OF MECHANIC’S
LIEN set forth in paragraph 6 above.
Attorneys’ Fees
16. As a result of the actions and conduct asserted herein, the Association was requiredT-0077.6
to obtain the services of the undersigned counsel. Pursuant to TEXAS PROPERTY CODE §53.156,
the Association is entitled to recover reasonable and necessary attorneys’ fees from APH. A
reasonable and necessary attorneys’ fee is in the initial prosecution of this Motion and evidentiary
hearing is a sum of at least $2,507.50, together with additional reasonable and necessary attorney’s
fees in the amount of at least $10,000.00 in the event that APH shall appeal any adverse ruling on
this Motion to a court of appeals, together with additional reasonable and necessary attorney’s fees
in the amount of at least $7,500.00 in the event that APH shall further appeal any adverse ruling
of an appellate court to the Texas Supreme Court, for which THE ASSOCIATION hereby seeks
recovery. [see Exhibit “B”, Chesney Affidavit attached]
WHEREFORE, PREMISES CONSIDERED, The Pines Condominium Association,
Inc., Defendant, prays that this Court grant this Motion, order Release of the M&M Lien as
requested above, award attorneys’ fees and costs to Defendant, set bond in amount required by
Tex. Prop. Code, together with other and further relief, both general or special, at law or in equity,
to which they may show themselves justly entitled to receive.
SIGNED this 20"" day of December, 2017.
Respectfully submitted,
FRANK, ELMORE, LIEVENS,
CHESNEY & TURET, L.L.P.
William S. Chesney, III
State Bar No. 04186550
9225 Katy Freeway, Ste. 250
Houston, Texas 77024-1564
Telephone: 713.224.9400
Facsimile: 713.224.0609
wehesney@felct.com
ATTORNEYS FOR THE PINES CONDOMINIUM
ASSOCIATION, INC.T-0077,7
VERIFICATION
THE STATE OF TEXAS
nunun
COUNTY OF HARRIS
BEFORE ME, the undersigned Notary Public, on this day personally appeared ZOE
GHARAGOZLOU, who being by me duly sworn on his oath deposed and said that she is the President
of The Pines Condominium Association, Inc,, and authorized representative of The Pines
Condominium Association, Inc., in the above-entitled and numbered cause; that she has read the
above and foregoing Plaintiff's Summary Motion to Remove M&M Liens Pursuant to Tex.
Prop. Code §53.160; and that every statement contained in J 2-8 are within her personal
knowledge and true and correct.
SIGNED this _[X_ day of December, 2017.
DJGILTNER H Bhopal
+4) NOYARY PUBLIC STATE OF TEXAS Zoe Gharagozlov, Président
MY COMM. EXP. 9/12/19
NOTARY ID 12873771-3
os RETESTED ood Als
SUBSCRIBED AND SWORN TO BEFORE ME, on this ¢ 4 day of December,
2017, to certify which witness my hand and official seal,T-0077.8
CERTIFICATE OF SERVICE
1, the undersigned attorney, hereby certify that a true and correct copy of the foregoing
Defendant’s Summary Motion to Remove M&M Liens Pursuant to Tex. Prop. Code §53.160
has been forwarded to the Intervenor by eService and first class mail:
Via: eService and First Class Mail
Travis Owens
Owens Law Group, P.L.L.C.
P.O. Box 8605
The Woodlands, Texas 77387
Via: eService
Robert C.E. Wolfe
Law Offices of Robert C.E. Wolfe, P.C.
7001 Corporate Dr., Ste 216
Houston, Texas 77036
SIGNED this 20" day of December, 2017.
William S. Chesney, II]
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T-0077.1 CAUSE NO. 2017-66216 KELLY COLEMAN § IN THE DISTRICT COURT § VS. § § EMILE NASSAR, ROBERT § CUMMINGS AND THE BOARD OF § TRUSTEEES OF THE PINES § 157" JUDICIAL DISTRICT CONDOMINIUM ASSOCIATION, INC. § § VS. § § § ACTION PREMIER HAULING, L.L.C. HARRIS COUNTY, TEXAS THE PINES CONDOMINIUM ASSOCIATION, INC.’S SUMMARY MOTION TO REMOVE M&M LIENS PURSUANT TO TEX. PROP. CODE § 53.160 TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, THE PINES CONDOMINIUM ASSOCIATION, INC. (“Association”), Defendant, and files this MOTION TO REMOVE M&M LIENS PURSUANT TO TEX. PROP. CODE §53.160, and in support would show the Court as follows: 1, This Motion seeks the summary removal of one (1) Mechanic’s and Materialman’s Lien filed by a contractor on property claimed to be owned by The Pines Condominium Association, Inc., as allowed and provided by TEXAS PROPERTY CODE § 53.160. The Association brings this Motion on its own behalf and on behalf of two or more unit owners regarding this matter affecting the Association, as provided by TEX. PROP. CODE §82.102. Factual Background 2, The Association is a Texas non-profit corporation, consisting of 24 buildings and 254 individually owned residential condominium units located upon that certain 15.378 acre tract of land commonly known as 12633 Memorial Dr., Houston, Texas (“Property”). The Association owns no real property or any portion of the Property.7-0077.2 3. In mid-September, 2017, without the authority, consent or knowledge of any of the 254 individual condominium owners, upon information and belief, the Association’s previous board president, Emile Nasser, in his individual capacity, entered into a SERVICE AGREEMENT with Action Premier Hauling, L.L.C. (“APH”) for removal of residential debris from the streets and common areas of the Property accumulated from the effects of hurricane ‘Harvey’ in the Houston metropolitan area. 4, APH, shortly after entry of the SERVICE AGREEMENT, began debris removal work, including services, labor and materials at the Property. In turn, the Association apparently paid to APH for its services, labor and materials sums totaling in excess of $270,000.00. Subsequently, the Association learned that (i) the debris removal work performed by APH was not supplied and performed pursuant to industry standards, and costs, and (ii) the work that was represented as performed was not completed or performed. 5. Unknown and without written notice to any of the 254 individual residential condominium unit owners, APH filed an AFFIDAVIT OF MECHANIC’S LIEN upon the Property asserting an unpaid claim of $325,575.00, and failed to provide written notice of the Mechanic’s & Materialman’s Lien Affidavit as required by TEX. Prop. CODE §§53.055. M&M Lien Filed and Defective/Notice 6. A Mechanic’s and Materialman’s Lien has been filed against the Property as follows: CONTRACTOR Lien Amount Date Filed Action Premier Hauling, L.L.C. $325,575.00 October 30, 2017! ds APH is not owed money by any of the 254 individual residential condominium unit | Exhibit “A” attached.T-0077.3 owners. Additionally, APH failed to provide written notice of the filed AFFIDAVIT OF MECHANIC’S LIEN to any of the 254 individual residential condominium unit owners of the Property as required by Tex. Prop. Code § 53.055. The Texas Property Code requires the Court enter an Order removing those recorded contractor M&M Lien(s) listed in paragraph 6. above, based upon at least the following applicable provisions: TEX. Prop. CODE § 53.160(b): (3) notice of the filed affidavit was not furnished to the owner or original contractor as required by Section 33.055. 8. As a result of noncompliance with “notice” provisions required by the Claimant/APH, the AFFIDAVIT OF MECHANIC’S LIEN is invalid and the Court is required to remove the Affidavit of Lien filed against the 254 individual residential condominium unit owners properties. M&M Lien Filed and Defective/Homesteads A. APH did not have a contract with any of the 254 individual residential condominium unit owners necessary to affix an affidavit of lien. 9. To fix alien on a homestead, Section 53.254(a) requires that “the person who is to furnish material or perform labor and the owner must execute a written contract setting forth the terms of the agreement.” Jd, § 53.254(a). Furthermore, that contract “must be filed with the county clerk of the county in which the homestead is located. Id. $§ 53.254(e). 10. Section 53.160 of the Texas Property Code provides several grounds upon which a party may seek the summary removal of an invalid lien from a homestead. Among them. the following two (2) grounds are relevant to ACH’s lien claim and this Motion and show ? Read together, subsection 53.254(c) and subsection 53.160(b)(6) seemingly require that the written contract for work and materials be executed and filed before the lien affidavit is filed. Here, APH did not attach any contract it had with Nasser to its lien affidavit filing and has never previously filed the purported agreement with the Harris County Clerk. [see Exhibit A, attached]T-0077.4 how ACH’s lien affidavit invalid: 1, When the lien affidavit was filed on the homestead property. no written contract was executed between the property owner and the lien claimant. See id. §$$53.160(a)(6)(A), 4(a). 2. The lien affidavit was filed on the homestead property and the affidavit failed to contain the statutory notice as required by Section 53.254(1). See id. §§53.160(a)(6)(13). 11. Here, APH was the party that purportedly furnished material and labor. However, APH never executed any contract with any of the 254 individual residential condominium owners; the only contract, if any, was a single one-page document titled “SERVICE AGREEMENT.” Consequently, ACH failed to comply with Tex. Prop. Code §53.254(a). 12. As a result, ACH’s Affidavit of Mechanic’s Lien against each of the 254 individual condominium owner’s homesteads is invalid as to the individual condominium owners. B. ACH does not have a CONSTITUTIONAL mechanic’s lien upon any of the 254 individual residential condominium units. 13. The Texas Constitution affords mechanics and materialmen liens for the material and labor they provide to property owners. see Tex. Const. Art. XV §37. To fix a Hen ona homestead, a contractor must comply with both the consti tutional and statutory requirements* found respectively in Article X VI. Section 50(5)(A)-(D)of the Texas Constitution’ and Section 3 Section 53.160(b)(6) state (A) no contract was executed or filed as required b: to contain the notice as required by Section 53.25 as follows: “When the lien affidavit was filed on a homestead property: Section 53.254; [or] (B) the affidavit claiming a lien failed 4 “Encumbrances may be properly fixed on homestead property for . . . work and material used in constructing improvements on the property if contracted for in writing as provided by Sections 53.254(a), (b), and (c).” Tex. Prop. Code § 41.00 | (b)(3).” 5 See Stewart v. Clark, 677 S.W.2d 246, 249 (Tex. App.-Corpus Christi, no writ) (“Appellant argues that this section, as amended, simply sought to afford single people relief from forced sale, but did not change the law to require a contract in writing before a lien for improvements could be asserted against a single adult homestead. We must disagree.”).T-0077.5 53.254 of the Texas Property Code. see Kendall Builders, Inc. v. Chesson, 149 S.W.3d 796, 807 (Tex. App.—Austin 2004, pet. denied) (“[Laborers may secure valid mechanic's and materialman's liens against the homestead on which the work was performed, but only by following certain constitutional and statutory procedures.”) 14. Here, APH made no attempt to comply with the constitutional or statutory requirements for asserting a lien against the 254 individual condominium unit owners’ homesteads at the Association. Again, ACH did not execute a written agreement with any of the 254 individual condominium unit owners’ homesteads at the Association. APH cannot claim a constitutional lien against any of the 254 individual condominium unit owners’ homesteads within the Association’s condominium regime. Release of Lien 15. Inasmuch, the Association does not own the subject Property, or any real property, and (i) APH not having provided written notice of the filing of the Affidavit of Mechanic’s Lien to any of the 254 individual residential condominium unit owners, the lien of APH is invalid as provided by Tex. Prop. Code § 53.055, (ii) APH having no written agreement with any of the 254 individual unit owners setting forth the terms of the agreement, the lien of APH is invalid as provided by Tex. Prop. Code §53.254(a), (iii) the work and material are not contracted for in writing, with the consent of both spouses, the lien of APH is invalid as provided by Tex. Constitution Art. XVI (5)(A), and (iv) APH not having filed the purported agreement with the Harris County Clerk prior to commencement of work as it relates to homesteads, the Association requests this Court enter an Order removing the claims and that certain AFFIDAVIT OF MECHANIC’S LIEN set forth in paragraph 6 above. Attorneys’ Fees 16. As a result of the actions and conduct asserted herein, the Association was requiredT-0077.6 to obtain the services of the undersigned counsel. Pursuant to TEXAS PROPERTY CODE §53.156, the Association is entitled to recover reasonable and necessary attorneys’ fees from APH. A reasonable and necessary attorneys’ fee is in the initial prosecution of this Motion and evidentiary hearing is a sum of at least $2,507.50, together with additional reasonable and necessary attorney’s fees in the amount of at least $10,000.00 in the event that APH shall appeal any adverse ruling on this Motion to a court of appeals, together with additional reasonable and necessary attorney’s fees in the amount of at least $7,500.00 in the event that APH shall further appeal any adverse ruling of an appellate court to the Texas Supreme Court, for which THE ASSOCIATION hereby seeks recovery. [see Exhibit “B”, Chesney Affidavit attached] WHEREFORE, PREMISES CONSIDERED, The Pines Condominium Association, Inc., Defendant, prays that this Court grant this Motion, order Release of the M&M Lien as requested above, award attorneys’ fees and costs to Defendant, set bond in amount required by Tex. Prop. Code, together with other and further relief, both general or special, at law or in equity, to which they may show themselves justly entitled to receive. SIGNED this 20"" day of December, 2017. Respectfully submitted, FRANK, ELMORE, LIEVENS, CHESNEY & TURET, L.L.P. William S. Chesney, III State Bar No. 04186550 9225 Katy Freeway, Ste. 250 Houston, Texas 77024-1564 Telephone: 713.224.9400 Facsimile: 713.224.0609 wehesney@felct.com ATTORNEYS FOR THE PINES CONDOMINIUM ASSOCIATION, INC.T-0077,7 VERIFICATION THE STATE OF TEXAS nunun COUNTY OF HARRIS BEFORE ME, the undersigned Notary Public, on this day personally appeared ZOE GHARAGOZLOU, who being by me duly sworn on his oath deposed and said that she is the President of The Pines Condominium Association, Inc,, and authorized representative of The Pines Condominium Association, Inc., in the above-entitled and numbered cause; that she has read the above and foregoing Plaintiff's Summary Motion to Remove M&M Liens Pursuant to Tex. Prop. Code §53.160; and that every statement contained in J 2-8 are within her personal knowledge and true and correct. SIGNED this _[X_ day of December, 2017. DJGILTNER H Bhopal +4) NOYARY PUBLIC STATE OF TEXAS Zoe Gharagozlov, Président MY COMM. EXP. 9/12/19 NOTARY ID 12873771-3 os RETESTED ood Als SUBSCRIBED AND SWORN TO BEFORE ME, on this ¢ 4 day of December, 2017, to certify which witness my hand and official seal,T-0077.8 CERTIFICATE OF SERVICE 1, the undersigned attorney, hereby certify that a true and correct copy of the foregoing Defendant’s Summary Motion to Remove M&M Liens Pursuant to Tex. Prop. Code §53.160 has been forwarded to the Intervenor by eService and first class mail: Via: eService and First Class Mail Travis Owens Owens Law Group, P.L.L.C. P.O. Box 8605 The Woodlands, Texas 77387 Via: eService Robert C.E. Wolfe Law Offices of Robert C.E. Wolfe, P.C. 7001 Corporate Dr., Ste 216 Houston, Texas 77036 SIGNED this 20" day of December, 2017. William S. Chesney, II]