                                                                                       ACCEPTED
                                                                                   14-15-00377-CV
                                                                   FOURTEENTH COURT OF APPEALS
                                                                                HOUSTON, TEXAS
                                                                              11/9/2015 3:17:48 PM
                                                                             CHRISTOPHER PRINE
                                                                                            CLERK

                       No:    14-15-00377-CV

                                                              FILED IN
                                        14th COURT OF APPEALS
       BEFORE THE FOURTEENTH COURT OF APPEALS
                                           HOUSTON, TEXAS
               FOR THE STATE OF TEXAS
                                        11/9/2015 3:17:48 PM
                   HOUSTON, TEXAS
                                                         CHRISTOPHER A. PRINE
                                                                Clerk
             ELMER H. LOPEZ INDIVIDUALLY & D/B/A
              E.H.L. CONSTRUCTION AND PAINTING
                           Appellant

                                  vs.

                      ROC TX LAKESIDE, LLC.
                             Appellee



                    APPELLANT REPLY BRIEF




     Arising from Cause No. 1056480, Roc TX Lakeside, LLC verses
Elmer H. Lopez, Individually and DBA as E.H.L. Construction and Painting
 Before the County Civil Court at Law Number 1 of Harris County, Texas




                                        Joel D. Mallory
                                        Attorney for Appellant
                                        P.O. Box 230156
                                        Houston, Texas 77223
                                        (713) 429-0350 Telephone
                                        (713) 429-0350 Facsimile
                                        TBN: 00786082
                                        malloryassoc@yahoo.com
                   THE PARTIES AND THEIR COUNSEL


Appellant:

Elmer H. Lopez, Individually and
DBA as E.H.L. Construction
by and through his counsel:
Joel D. Mallory, Jr.
P.O. Box 230156
Houston, Texas 77223

Appellee:

ROC TX Lakeside, LLC
by and through counsel of record:
O’Conor, Mason, & Bone, PC
1616 S. Voss Street, Suite 200
Houston, Texas 77057


Trial Judge:

Hon. Debra Ibarra Mayfield
Harris County Court at Law
Number 1
Harris County Courthouse
201 Caroline
Houston, Texas 77002
                                         TABLE OF CONTENTS

TABLE OF AUTHORITIES. .................................................................................... i

ISSUES ON REPLY................................................................................................. 1

REBUTTAL ARGUMENT. ..................................................................................... 1

         A.       The Non-Suit of Appellant’s Counterclaim Resulted in a Final
                  Judgment for Purposes of Appeal and Appellate Jurisdiction. ............ 1

         B.       ROC’s Assertion That Lopez Waived all his Rights as a Result of not
                  Posting a $77,989.63 Bond has no Legal Support and is Simply
                  Untenable. ............................................................................................ 3

         C.       ROC Failed to Rebut EHL’s Contentions on Appeal........................... 5

                  1.       ROC Failed to Demonstrate EHL’s So-Called Sub-Contractor
                           Status ......................................................................................... 5

                  2.       ROC failed to Refute “Want of Due Process” Contentions. ...... 7

CONCLUSION......................................................................................................... 8

CERTIFICATE OF SERVICE. ................................................................................ 9

CERTIFICATE OF COMPLIANCE...................................................................... 10
                                     TABLE OF AUTHORITIES

Texas Supreme Court

CVN Group, Inc. v. Delgado, 95 S.W.3d 234 (Tex.2002) ...................................... 5

First Nat'l Bank of Wichita Falls v. Fite, 131 Tex. 523,
115 S.W.2d 1105, 1109-10 (1938). .......................................................................... 6

Latch v.Gratty, 107 S.W.3d 543 (Tex.2003). ........................................................... 6

Lehmannn v. Har-Con Corp., 39 S.W.3d 191 (Tex.2001). ................................... 2-3

Martinez v. Humble Sand & Gravel, Inc., 875 S.W.2d 311 (Tex.1994)................... 3

Strang v. Pray, 89 Tex. 525,
35 S.W. 1054 (1896). ................................................................................................ 5


Texas Court of Appeals

Big H Construction, Inc. v. Hensley, No. 01-10-00379-CV
(Tex.App. [1 st] 3/31/2011.......................................................................................... 8

Brown v. Crooks, No. 07-09-0018-CV
(Tex.App.- Amarillo 4/13/2011)............................................................................... 5

Brown v. Crooks, No. 07-09-0018-CV
(Tex.App.- Amarillo 4/13/2011)............................................................................... 5

Dallas Nat’l Bank v. Peaslee-Gaulbert Co.,
35 S.W.2d 221 (Tex.Civ.App. -Dallas 1931 writ den’d). ......................................... 6

Lyda Swinerton Bldrs., Inc. v. Cathay Bank,
409 SW.3d 22 (Tex.App. - Houston [14 th] 2013 pet. den’d). ............................... 7, 8

Odak v. Arlington Mem’l Hosp. Found., 934 S.W.2d 868
(Tex. App.- Fort Worth 1996, writ denied). ............................................................. 4

Truss World, Inc. v. ERJS Inc., 284 S.W.3d 393
(Tex.App.-Beaumont 2009, pet. denied)................................................................... 5

                                                           i
Statutes

Art. I, §13, T EX. C ONST.. .......................................................................................... 4

Art. I, §19, T EX. C ONST.. .......................................................................................... 4

Art. XVI, §37, T EX. C ONST.. .................................................................................... 5

Rule 166a, TRCP. ..................................................................................................... 7

§53.001(13), Tex. Prop. Code .................................................................................. 6

§53.001(6), Tex. Prop. Code..................................................................................... 6

§53.001(7), Tex. Prop. Code..................................................................................... 6

§53.026, Tex. Prop. Code . ....................................................................................... 6

§53.160, Texas Prop. Code. .................................................................................. 1, 8

§53.161(g), Tex. Prop. Code..................................................................................... 4

§53.162, Tex. Prop. Code . ....................................................................................... 4

Texas Declaratory Judgment Act
§37.001 et seq., Tex. Civ. Prac. & Rem. Code. ............................................ 1, 3, 5, 7




                                                           ii
                              ISSUES ON REPLY

      CONTRARY TO ROC’S SUGGESTION, THERE ARE NO
      OUTSTANDING ISSUES OR CLAIMS RELATING TO ROC’S
      DECLARATORY JUDGMENT THAT DISSOLVED LOPEZ’
      CONSTRUCTION LIEN

      ROC’S CONTENTION THAT APPELLANT WAIVED HIS LEGAL
      RIGHTS AS A RESULT OF A PUTATIVE FAILURE TO FILE A BOND
      HAS ABSOLUTELY NO LEGAL SUPPORT WHATSOEVER

      ROC DID NOT RESPOND TO APPELLANT’S CONTENTIONS - LOPEZ
      WAS AT ALL TIMES AN ORIGINAL CONTRACTOR WHOSE LIEN
      WAS SELF-ENFORCING UNDER THE TEXAS CONSTITUTION; IN
      ADDITION TO ENFORCEMENT UNDER THE TEXAS PROPERTY
      CODE

      APPELLANT’S DUE PROCESS CONTENTIONS REMAINS
      UNCHALLENGED

                           REBUTTAL ARGUMENT

A.    The Non-Suit of Appellant’s Counterclaim Resulted in a Final
      Judgment for Purposes of Appeal and Appellate Jurisdiction

      Notwithstanding due process and procedural improprieties, the trial court

awarded ROC a declaratory judgment under Texas Declaratory Judgment Act,

§37.001, Tex. Civ. Prac. & Rem. Code. Declaratory relief that was granted is

inclusive of relief sought pursuant to §53.160, Texas Prop. Code. (R.234, R.11).

       ROC suggests it has live claims before the lower court because there is no

mention of Lopez’ counterclaim in the judgments rendered in its favor. (Appellee

Brief, p.11). Moreover, ROC impermissibly goes outside of the record to suggest that

the trial court’s docket sheet and trial setting is demonstrative of live claims.


                                         1
(Appellee Brief, pp.10-11). On the other hand, ROC readily acknowledges the lack

of live claims for Lopez. (Id., Suppl. R.6).

       Simply put, no controversy, claim, or issue remained before the trial court either

for ROC or Lopez.1 ROC certainly does not identify any controversy, claim, or issue

outside of the declaratory judgment. Notwithstanding, if the trial court set the matter

for trial after the lapse of plenary jurisdiction, it was done so mistakenly and without

authority.

       In support, ROC cites Lehmannn v. Har-Con Corp., 39 S.W.3d 191 (Tex.2001).

In that case, the Supreme Court held that a judgment issued without a conventional

trial is final for purposes of appeal if and only if either (1) it actually disposes of all

claims and parties then before the court, regardless of its language, or (2) it states with

unmistakable clarity that it is a final judgment as to all claims and all parties. Id., 192-

93. However, ROC did not cited Lehmann’s holding in its entirety:

       A judgment that finally disposes of all remaining parties and claims, based on
       the record in the case, is final, regardless of its language. A judgment that
       actually disposes of every remaining issue in a case is not interlocutory merely
       because it recites that it is partial or refers to only some of the parties or claims.
       Thus, if a court has dismissed all of the claims in a case but one, an order
       determining the last claim is final. This is settled law in Texas, and while there
       have been proposals to change it by rule, proposals that are currently pending
       consideration by this Court's Advisory Committee, we are not inclined to depart


       1
          ROC did not obtain two judgments. After obtaining the declaratory judgment that
dissolved Lopez’ lien, the trial court essentially granted an “executory order” for the lien to be
stricken or removed by the County Clerk’s Office pursuant to ROC’s emergency motion.
(R.239-43, 260-62). According to Opposing Counsel, he filed his emergency motion on behalf
of ROC when he discovered the amended lien, which was filed prior to the February 18, 2015
dissolution hearing. (R.240-41).

                                                 2
       from it here. The language of an order or judgment cannot make it interlocutory
       when, in fact, on the record, it is a final disposition of the case.

Id., at 200.

       Accordingly, the trial court granted ROC a declaratory judgment pursuant to

§37.001, Tex. Civ. Prac. & Rem. Code pursuant to ROC’s request for declaratory

relief. (R.234, R.11). When the trial court granted the non-suit, it resulted in a final

judgment for purposes of appeal. It is entirely inconsequential that ROC’s declaratory

judgment and its concomitant executive order made no mention of Lopez’

counterclaim.

       Furthermore, ROC’s “want of timeliness” assertion is specious. “When a

judgment is interlocutory because unadjudicated parties or claims remain before the

court, and when one moves to have such unadjudicated claims or parties removed by

severance, dismissal, or nonsuit, the appellate timetable runs from the signing of a

judgment or order disposing of those claims or parties.” See, e.g., Martinez v. Humble

Sand & Gravel, Inc., 875 S.W.2d 311, 313 (Tex.1994).             Needless to say, the

underlying notice of appeal was timely filed.

       In conclusion on this point, ROC’s“lack of jurisdiction” contention is

unsustainable.

B.     ROC’s Assertion That Lopez Waived all his Rights as a Result of not
       Posting a $77,989.63 Bond has no Legal Support and is Simply Untenable

       In the alternative, ROC asserts Lopez waived all rights and remaining remedies

under Texas law when he failed “to follow the clear language of the Texas Property

                                           3
Code” by obtaining a stay of ROC’s declaratory judgment. (Appellee Brief, pp.11-

12). Interestingly, ROC did not provide legal citation for its position.

      Notwithstanding the want of legal support of any kind, ROC’s position is belied

by the Code. Section 53.161(g), Tex. Prop. Code expressly states that “the removal

of the lien does not constitute a release of the liability of the owner, if any, to the

claimant.” Also, a removed lien that is not stayed is subject to revival. Section

53.162 provides “[i]f an order removing the lien is not stayed as provided by §53.161

and the claimant later obtains a final judgment in the suit establishing the validity and

ordering the foreclosure of the lien, the claimant may file a certified copy of the final

judgment with the county clerk.”

      ROC’s position does not appear to be well conceived. If the failure to post a

bond could result in the waiver, not just of the right of appeal, but all conceivable

substantive and procedural rights conceivable right, this would patently raise matters

of constitutional dimensions. Asides from due process concerns, it would result in

undue deprivations of due course and open courts rights under the Texas Constitution.

Art. I, §13, T EX. C ONST., Art. I, §13, Art. I, §19, T EX. C ONST.; Odak v. Arlington

Mem’l Hosp. Found., 934 S.W.2d 868, 871 (Tex. App.- Fort Worth 1996, writ

denied).

      In conclusion on this point, ROC’s“waiver of legal rights” contention is

unsustainable.



                                           4
C.    ROC Failed to Rebut EHL’s Contentions on Appeal

      1.     ROC Failed to Demonstrate EHL’s So-Called Sub-Contractor Status

      At the outset, ROC made no meaningful effort to rebut the contentions and

citation of authorities as set forth in the Appellant Brief. ROC continues to stress that

Lopez was not an original contractor because he was not in direct contractual privity

with it. ROC did not respond to EHL’s appellant arguments and supporting citations.

      ROC continues to go through drastic lengths to relegate EHL as a sub-

contractor because an original contractor may enforce a lien through. Art. XVI, §37,

T EX. C ONST. A constitutional lien is self-executing; that is, no notice or filing

requirements must be met for the lien to attach, and the lien exists independently and

apart from any legislative act. See Strang v. Pray, 89 Tex. 525, 35 S.W. 1054, 1056

(1896), CVN Group, Inc. v. Delgado, 95 S.W.3d 234, 246-47 (Tex.2002) (Hankinson,

J. -dissent). The gist of ROC’s dissolution pleadings alleged failure of the lien

affidavit to fully comply with §53.054, Tex. Prop. Code. (R.10-11). Hence, ROC has

every incentive to disavow EHL’s original contractor status.

      At all times, Bridge Property Management was ROC’s authorized agent. (R.6-

10, 15-18). If an original contractor enters into an agreement with an owner’s duly

authorized agent, does that transform or relegate the contractor’s status as a sub-

contractor? Of course not. See Truss World, Inc. v. ERJS Inc., 284 S.W.3d 393,

395-96 (Tex.App.-Beaumont 2009, pet. denied),                Brown v. Crooks, No.

07-09-0018-CV (Tex.App.- Amarillo 4/13/2011). If EHL was putatively ROC’s sub-

                                           5
contractor, then who was the original contractor?              It certainly was not Bridge

Management.       Logically, an agent who acts on behalf of an owner cannot be an

original contractor. See Dallas Nat’l Bank v. Peaslee-Gaulbert Co., 35 S.W.2d 221

(Tex.Civ.App. -Dallas 1931 writ den’d).

       ROC simply cannot rely upon matters of contractual privity, while disregarding

Appellant’s authorities. Section 53.001(7), Tex. Prop. Code stipulates “[f]or purposes

of mechanics or materialman liens, an “original contractor’ is "a person contracting

with an owner either directly or through the owner's agent.” Moreover, §53.026, Tex.

Prop. Code considers EHL to be in direct contractual privity with ROC (with an

original contractor’s lien) based upon principal-agency relationship between ROC and

Bridge Management. (R.6-11, 15-18). On the other hand, §53.001(13), Tex. Prop.

Code defines a subcontractor as one “who has furnished labor or materials to fulfill

an obligation to an original contractor or to a subcontractor to perform all or part of

the work required by an original contract.” 2 EHL clearly was not a sub-contractor.

       Then, ROC attempts to avail to the language of the liens as dispositive of

Lopez’ status as a sub-contractor. However, Texas law looks past labels and take into

considertion the actual relationship of the parties. In Truss World, the Court held the

self-reference of the original contractor as a subcontractor in his lien affidavit was not

       2
          To expound on this point further, §53.001(6), Tex. Prop. Code defines an original
contract as an agreement to which an owner is a party either directly or by implication of law.
ROC was bound to the contract due its principal-agency relationship with Bridge Management.
(R.11). See Latch v.Gratty, 107 S.W.3d 543, 546 (Tex.2003), First Nat'l Bank of Wichita Falls v.
Fite, 131 Tex. 523, 115 S.W.2d 1105, 1109-10 (1938).

                                               6
a judicial admission. Id., 284 S.W.3d 393, 395-96.

      In the alternative, ROC attempts to do away with the distinctions of lien

enforcement by original contractors and subcontractors. In a rather conclusory

manner, it asserts that original contractors are required to give lien notice in the same

manner as a subcontractor -without addressing Appellant’s authorities. As recognized

by this Court, a contractor may assert a lien based upon principles of common law,

contractual, or constitutional rights. See Lynda Swinerton Bldrs., Inc. v. Cathay

Bank, 409 SW.3d 221, 234 (Tex.App. - Houston [14 th] 2013 pet. den’d) (emphasis

added).

      In conclusion on this point, ROC’s“contractual privity/subcontractor”

contention is untenable.

      2.     ROC failed to Refute “Want of Due Process” Contentions

       Appellant contends the trial court deprived him of due process. Instead of an

interlocutory order of lien removal, the trial court entered a declaratory judgment

pursuant to §37.001 et seq., Tex. Civ. Prac. & Rem. Code.               (R.234, R.11).

Furthermore, the trial court disregarded Lopez’s special exceptions. (R.59, 203). A

judgment was entered against Appellant a little over a month after filing of an answer.

Initially, it was presumed that a traditional summary judgment was entered. However,

upon closer review, Appellee’s declaratory judgment pleadings actually do not motion

for relief under Rule 166a, TRCP. (R.11-13). Likewise, the declaratory judgment

does not set forth any procedural mechanism for disposition. Outside the summary

                                           7
judgment or dismissal for want of process processes, there is no procedural

mechanism that permitted the summary manner of the trial court’s disposition.3

       Moreover, the alleged discrepancies of Lopez’ lien affidavit were corrected

prior the trial court’s disposition. This also amounted to a deprivation of due process

and an abuse of discretion. As discussed in the Appellant Brief, lien rights are to be

liberally construed; there is nothing in the Property Code that prevents a liens’s

amendment or correction. To contrary, such an amendment or correction is proper.

Cathay Bank, 409 S.W.3d at 235.

       Appellee does not deny the due process violations. Without elaboration, ROC

claims in its stipulation of issues that the due process denial was his fault. (Appellee

Brief, p.4). Thus, Appellant’s due process contentions remain unchallenged.

                                       CONCLUSION

       WHEREFORE,             Elmer H. Lopez, Individually and                DBA as E.H.L.

Construction prays for relief as requested in his Appellant Brief and for general relief

in law or equity to which he is justly entitled.




       3
           In addition, ROC’s pleadings traveled well outside the scope of that rule to complain
about the amount claimed, the work performed, lack of privity of contract, and the purported
inability to obtain verification as grounds for a dissolution. (R.6-8). Compare Big H
Construction, Inc. v. Hensley, No. 01-10-00379-CV, n.2 (Tex.App. [1st] 3/31/2011) (§53.160,
Tex. Prop. Code does not authorize the trial court to invalidate a contract and rule summarily on
other claims raised by the parties).

                                                8
                                             Respectfully submitted,

                                                /s/ Joel Mallory
                                             Joel D. Mallory, Jr.
                                             Attorney for Appellant
                                             TBN: 00786082
                                             P.O. Box 230156
                                             Houston, Texas 77223
                                             Tele: (713) 429-0350
                                             Fax: (713) 429-0350
                                             malloryassoc@yahoo.com


                         CERTIFICATE OF SERVICE

      I certify that a true and correct copy of this document has been served or will

be served upon the following in compliance with the Texas Rules of Appellate

Procedure on November 9, 2015 by facsimile, U.S. Mail, or by any means authorized

by the Rules:

ROC TX Lakeside, LLC
by and through counsel of record:
Robert Bone
O’Conor, Mason, & Bone, PC
1616 S. Voss Street, Suite 200
Houston, Texas 77057



                                              /s/ Joel Mallory
                                             Joel D. Mallory, Jr.




                                         9
                       CERTIFICATE OF COMPLIANCE

      The undersigned certifies that pursuant to Rule 9.4(e)(i)(1), Tex. R. App. Proc.,

this motion complies with the Rule’s font requirements (Wordperfect ® Times

Roman14 pt. for text, 12 pt. for footnotes.

      The word count as pertinent to this document is 2094, with exclusion of matters

consisting of caption, identities of parties and counsel, table of content, index of

authorities, signature, proof of service, certification, certificate of compliance, and

appendix.


                                                 /s/ Joel D. Mallory, Jr.
                                                Joel D. Mallory, Jr.




                                          10
