Elmer H. Lopez, Individually and D/B/A EHL Construction and Painting v. ROC TX Lakeside, LLC
14-15-00377-CV
| Tex. App. | Nov 9, 2015Background
- Appellant Elmer H. Lopez (doing business as E.H.L. Construction) recorded a construction lien against property owned/controlled by ROC TX Lakeside, LLC; ROC sought and obtained a court order dissolving/striking the lien.
- The trial court entered a declaratory judgment under the Texas Declaratory Judgment Act and an executory order removing Lopez’s lien; Lopez nonsuited his counterclaim afterward.
- ROC argued Lopez lost rights by failing to post a supersedeas/stay bond under the Property Code; Lopez contends the Code and constitutional protections prevent wholesale waiver.
- Lopez argues he was an original contractor (contracted with owner through owner’s agent) and thus entitled to constitutional/self-executing lien protections; ROC contends he was a subcontractor and subject to different statutory requirements.
- Lopez asserts the trial court deprived him of due process by disposing of the matter summarily (declaratory judgment/removal) without proper procedural mechanism, despite alleged corrections to his lien affidavit before disposition.
Issues
| Issue | Plaintiff's Argument (Lopez) | Defendant's Argument (ROC) | Held/Disposition (as argued by Lopez on appeal) |
|---|---|---|---|
| Finality/appellate jurisdiction after nonsuit | Nonsuit of counterclaim produced a final judgment for appeal; declaratory judgment disposed of all claims | ROC contends appeal is untimely or claims remain live | Lopez relies on Lehmann: judgment disposing all claims is final; appellate timetable runs from final disposition |
| Effect of failing to post bond/supersedeas | Failure to post the bond did not waive all substantive rights; Property Code allows revival and preserves liability | ROC argues Lopez waived rights by not posting ~$77,989.63 bond to stay dissolution | Lopez points to §§53.161(g) and 53.162: removal does not release owner liability and lien may be revived upon later judgment; waiver argument unsupported and raises due process concerns |
| Status as original contractor vs. subcontractor | Lopez was an original contractor because he contracted with owner's authorized agent (Bridge Management); thus lien is constitutional/self-executing | ROC asserts Lopez was a subcontractor lacking direct privity with owner and must meet statutory notice/affidavit requirements | Lopez cites Property Code definitions and cases (Truss World, Cathay Bank) to show agent-principal relationship establishes original contractor status; ROC’s privity argument is untenable (per appellant) |
| Due process in lien dissolution procedure | Trial court entered declaratory judgment and removed lien without proper procedural basis; special exceptions ignored; lien affidavit corrected before disposition | ROC treats dissolution as authorized under §53.160 and related pleadings | Lopez argues declaratory judgment mechanism was improper, no Rule 166a motion or other procedural basis; summary disposition deprived him of due process and was abuse of discretion |
Key Cases Cited
- Lehmann v. Har‑Con Corp., 39 S.W.3d 191 (Tex. 2001) (a judgment that disposes of all parties and claims is final for appeal regardless of language)
- Martinez v. Humble Sand & Gravel, Inc., 875 S.W.2d 311 (Tex. 1994) (appellate timetable runs from signing of judgment disposing remaining claims/parties)
- CVN Group, Inc. v. Delgado, 95 S.W.3d 234 (Tex. 2002) (discussion of constitutional mechanic’s lien principles)
- Truss World, Inc. v. ERJS Inc., 284 S.W.3d 393 (Tex. App.—Beaumont 2009) (party’s self-labeling in lien affidavit does not necessarily determine contractor status)
- Lyda Swinerton Bldrs., Inc. v. Cathay Bank, 409 S.W.3d 221 (Tex. App.—Houston [14th] 2013) (liens construed liberally; amendments/corrections to lien affidavits may be proper)
- Latch v. Gratty, 107 S.W.3d 543 (Tex. 2003) (agency and contract principles relevant to lien/privity analysis)