in Re Make Ready Contractors, Inc., Relator
07-15-00244-CV
| Tex. App. | Aug 28, 2015Background
- Make Ready Contractors, Inc. filed an original mandamus petition asking the trial judge to remove mechanic’s liens asserted by ASAP Air of Amarillo, LLC.
- ASAP filed lien affidavits on multiple properties but did not timely comply with Chapter 53 statutory filing requirements.
- ASAP asserted its liens were nonetheless valid under the constitutional, self-executing mechanic’s lien provision (Tex. Const. art. XVI, § 37) as applied through Tex. Prop. Code § 53.026 (sham-contract doctrine).
- Make Ready used the summary removal procedure under Tex. Prop. Code § 53.160; the trial court denied the motion on stipulated facts.
- Make Ready sought mandamus review, arguing: (1) it has no adequate appellate remedy; (2) § 53.026 does not convert a subcontractor into a constitutional lienholder; and (3) the trial court abused its discretion by not removing the liens.
- The court denied mandamus, finding Make Ready had an adequate remedy by appeal and declining to reach whether the trial court abused its discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of appellate remedy for mandamus | Immediate mandamus is required because interlocutory review is the only way to avoid harm from wrongful liens | Interlocutory appeal is statutorily barred; ordinary appeal from final judgment is adequate | Mandamus denied: appellate remedy is adequate; interlocutory review via mandamus would subvert statute’s bar on interlocutory appeals |
| Effect of Tex. Prop. Code § 53.026 on constitutional lien status | § 53.026 cannot elevate a subcontractor to constitutional, self-executing lienholder status | ASAP: sham-contract doctrine under § 53.026 places it in position of a constitutional lien claimant despite statutory noncompliance | Court declined to decide the substantive question on mandamus review (no opinion on whether trial court abused discretion) |
| Trial court abuse of discretion in denying summary removal under § 53.160 | Denial was a clear abuse because ASAP failed statutory filing requirements and summary removal was warranted | Trial court acted within discretion based on stipulated facts and arguments about constitutional status | Court did not rule on abuse of discretion; refusal to grant mandamus based on adequacy of appeal |
Key Cases Cited
- In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (mandamus burden; adequacy-of-appeal analysis)
- In re Watkins, 279 S.W.3d 633 (Tex. 2009) (statutory bar on interlocutory appeal limits mandamus review)
- Flores v. Haberman, 915 S.W.2d 477 (Tex. 1995) (mandamus to cancel lis pendens is available)
- In re Masonite Corp., 997 S.W.2d 194 (Tex. 1999) (rare exceptions where appeal is inadequate)
- In re McAllen Med. Ctr., Inc., 275 S.W.3d 458 (Tex. 2008) (mandamus when proceeding to trial would defeat substantive right)