llCttUB                     08-14-00808-CV
                           NO. 08-14-00308CV
     M 23 im
D0IISE P^HECO, a&,rf.l<;

EIGHTH COUHT Or *» '              m THE
                                                                     FILED IN
                           COURT OF APPEALS
                 EIGHTH DISTRICT OF TEXAS
                                                                    JAN 2 3 2015
                             EL PASO, TEXAS
                                                                  DEN1SE PACHECO
                                                                   rt rRK 8th DISTRICT


              In Re Rosa Serrano, Individually
                          Relator,


         On Appeal from the County Court at Law Number Seven
                               of El Paso, Texas
                           Cause No. 2012-DCV-06341




         MOTION TO RECONSIDER SUPPLEMENT
             TO MOTION FOR REHEARING
              Petition For Writ Of Mandamus
            Emergency Extraordinary Relief


                                                   Rosa Serrano
                                                   1510 N. Zaragoza Ste. A-4
                                                   El Paso, TX 79936
                                                   915.443-3582
                                                   PROSE
           IDENTITY OF PARTIES AND COUNSEL


Relator/Defendant


Rosa Serrano


Counsel for Relator-Pro Se

Rosa Serrano
1510N.ZaragozaSte.A-4
El Paso, TX 79936
915-443-3582
PROSE



Real Party in Interest/Plaintiff

Pellicano Business Park, L.L.C. A Texas Corporation

Counsel for Real Party in Interest


Burton Cohen
501 Executive Blvd. Ste. 200,
El Paso, TX 79902

Respondents


Hon. Vigil Mulanax and Hon. Tom Spcienzy
County Court at Law Number Seven
501 E. San Antonio, Room 1203
El Paso, Texas 79901
                              Table of Contents


Issues Presented:

   1. Does finality of claims and issues initially filed in a cause of action to declare
         lien fraudulent conclusive and can such motion convert to a declaratory
      judgment?                                                                       ix
   2. Does trial court abuse its discretion when it claims to have plenary power when
         findings of fact and conclusions of law can conclusively determine the
         documentation validation only?                                              Ix
   3. Is the judgment of contempt void because the trial court had no personal
      jurisdiction over Relator with respect to the underlying motion to declare
         lien fraudulent cannot consider any other orders?
   4. Did the trial court's plenary jurisdiction related to the underlying orders

         expire, deprives trial court of jurisdiction and does any underlying orders

         granted exceeded the mandamus power of the trial court?

   5. Are appellate courts prohibited to hear moot controversies in appeal of

      judgment issued in motion to declare lien fraudulent under Tex. Gov't. Code

         51.903?


Mandamus Relief is Warranted                                                      vi-vii

Prayer                                                                                10

Certificate of Service                                                                11
                           Table of Authorities

Cases
Exparte Barlow,
899 S.W.2d at 798                                                         5

In re Brookshire Grocery Co.,
250S.W.3d 66, 68 (Tex. 2008)                                              4

Camarena v. Texas Employment Comm'n,
754 S.W.2d 149,151 (Tex. 1988)                                            7

Cascos
319S.W.3dat215                                                            8

Exparte Cardwell,
416 S.W.2d 382,384 (Tex. 1967)                                            5

Custom Corporates, Inc. v. Sec. Storage, Inc.,
207 S.W.3d 835, 838
(Tex. App.-Houston [14thDist] 2006, orig. proceeding)                     9

Firemen's Ins. Co. v. Burch,
442 S.W.2d 331, 333 (Tex. 1968)                                           7

Exparte Friedman,
808 S.W.2d 166, 168 (Tex. App.—El Paso 1991, orig. proceeding)            9
Hall,
433S.W.3dat207                                                            9

In re Hereweareagain, Inc.,
383 S.W.3d 703, 714
(Tex.App.-Houston [14th Dist] 2012, orig. proceeding)                     6

In re Long,
984 S.W.2d623, 626 (Tex.1999)                                        3, 5,9

Matz v. Bennion,
961 S.W.2d 445,449 (Tex.App.-Houston [1st Dist] 1997, pet. denied)        5



                                                                         IV
In re Norris,
371 S.W.3d 546, 548 (Tex. App.—Austin 2012, orig. proceeding)            5

In re PrudentialIns. Co. ofAm.,
148 S.W.3d 124,135-36 (Tex. 2004)                                        5

In reR.G., 388 S.W.3d 820, 822 (Tex. App.-
Houston [1 Dist], August 30,2012, no pet.)                               4

Exparte Salfen,
618 S.W.2d 766, 769 (Tex. Crim. App. 1981)                               9

Snodgrass v. Snodgrass,
332 S.W.3d 653, 660 (Tex. App. -Houston [14th Dist] 2010, no pet.)       8

In re Sw. Bell Tel. Co.,
35 S.W.3d 602, 605 (Tex. 2000)                                           8

Strawderv. Thomas,
846 S.W.2d 51, 61 (Tex. App.-Corpus Christi 1992, no writ)               5

Tex. Animal Health Comm'n v. Nunley,
647 S.W.2d 951, 952 (Tex. 1983)                                          5

Texas Ass'n ofBus. v. Air Control Bd.,
852 S.W.2d 440,444 (Tex. 1993)                                           7

Trinity DrywallSys., LLCv. TOKA Gen. Contractors, Ltd.,
No. 08-12-00041-CV, 2013 WL 5936420
(Tex. App.—El Paso Nov. 6,20013, pet denied)                         vi,2,3

Statutes and Rules
Tex. Prop. Code § 53.160                                                  2
Tex. Gov't. Code § 51.903                                                 1
Tex. Const. Art. 2 § 1                                                    7
                     MANDAMUS RELIEF IS WARRANTED


Mandamus is warranted because this is a case where a final judgment had been issued

when findings of fact and conclusions of law were filed under Tex. Gov't. Code

51.903(e) on November 06,2012 (CR 99-102).

Where findings of fact and conclusions of law have been issued, it leaves this court

with a moot controversy to attain jurisdiction on appeal, thus mandamus will issue

grant relief sought by Relator. Where contempt orders can only be removed by

mandamus when trial court was left without subject matter jurisdiction, and where

motion to declare lien fraudulent could not attain jurisdiction of any other motion or

declaratory judgment. Therefore the opinion issued on August 27,2014 is an advisory

opinion, and trial court lacks jurisdiction in 2012-DCV-06341 to grant any contempt

order or restraint onto Relator to sell real property to foreclose on lien. Because Real

Party failed to file suit and issue of the lien was disposed and fully litigated, an

advisory opinion proves res judicata precludes any subsequent action to remove lien.

Furthermore constitutional liens cannot be removed under Chapter 53 of the Texas

Property Code, leaving a valid constitutional lien that can be foreclosed. By this

appellate court's opinion in Trinity Drywall Sys., LLC v. TOKA Gen. Contractors, Ltd.,

No. 08-12-00041-CV, 2013 WL 5936420 (Tex. App.—El Paso Nov. 6, 20013, pet

denied), trial court reversed its decision to vacate constitutional lien and revived lien to

foreclose on its Order Concerning a Constitutional Lien on August 27, 2014 (advisory



                                                                                          VI
opinion). Where resjudicata now leaves the matter disposed and no subsequent action

to determine lien amount can be heard. Where plenary power cannot be given when

jurisdiction was not attained, mandamus is proper to issue when appeal is not afforded

to Relator as of November 06, 2012 when trial court abuses its discretion by asserting

plenary power on a void order. Trial court continues to preside over a proceeding

when jurisdictionwas not granted by Tex. Gov't. Code 51.903 and abuses its discretion

that prejudices Relatorwhen no other available remedy is granted by appeal.

Hon. Vigil Mulanax and Hon. Tom Spcienzy failed to attain jurisdiction of cause

number 2012-DCV-06341 and both judges abused their discretion on any order issued

apart for findings of fact and conclusions of law.

Where contempt orders cannot be appealed, abuse of discretion by trial judges in

granting void order and moot controversy grants mandamus for Relator to receive

relief when appeal cannot be heard by appellate court. Appellate courts are strictly

prohibited by the constitution to hear moot controversies and cannot issue advisory

opinions, where mandamus is a proper vehicle to grantreliefsought by Relator.

This error of law cannot be remedied by appeal and the Court should grant mandamus

relief.




                                                                                    VII
                             ISSUES PRESENTED


   1. Does finality of claims and issues initially filed in a cause of action to declare
      lien fraudulent conclusive and can such motion convert to a declaratory
      judgment?
   2. Does trial court abuse its discretion when it claims to have plenary power when
      findings of fact and conclusions of law conclusively determine the
      documentation validation only?
   3. Is the judgment of contempt void because the trial court had no personal
      jurisdiction over Relator with respect to the underlying motion to declare
      lien fraudulent cannot consider any other orders?
   4. Did the trial court's plenary jurisdiction related to the underlying orders

      expire, deprives trial court of jurisdiction and does any underlying orders

      granted exceeded the mandamus power of the trial court?

   5. Are appellate courts prohibited to hear moot controversies in appeal of

      judgment issued in motion to declare lien fraudulent under Tex. Gov't. Code

      51.903?


Clerk's record had been requested in appeal cause number 08-13-0020ICV which

should be reference in this mandamus proceeding. The clerk's record has also

been supplemented as requested by Relator on January 21, 2015.             Affidavit is

attached of any subsequent orders that were issued for this Court to consider. This

motion to reconsider is supplemental to the motion for rehearing to show

mandamus shall issue on cause number 2012-DCV-06341 and 2014-DCV-2758.




                                                                                     VIII
Motion for rehearing on Writ of Mandamus was granted but the petition was

denied. (See opinion issued on 01-15-2015, 08-14-00308CV) The opinion

reads that for failure to show that no adequate remedy exists by appeal and

failure to show trial abused its discretion, it will not grant mandamus.

Although this is Relator's third attempt for mandamus to issue to vacate

orders but if not granted to clarify the motion for rehearing for the relief

requested is granted although the mandamus will not issue.          For these

reasons Relator submits this motion to reconsider mandamus or clarification


of granting motion for rehearing with the relief sought.

Relator asks this for clarity when it has shown that a moot controversy

currently exists within cause number 2012-DCV-06341 which prohibits

appellate court to consider. Therefore it is not clear if it can issue mandamus

but grant motion for rehearing when jurisdiction is not attained by a

controversy that is now moot.       Relator respectfully asks clerk's record

requested in 2013-DCV-00201CV is used in this original proceeding to

reference this motion to reconsider mandamus (08-14-00308CV).

                    1. Tex. Govt. Code 51.903(a)

The primary reason trial court abuses its discretion when it fails to attain

plenary power and assumes to have a "live" controversy although indicative

that Texas Government Code 51.903 does not grant court with jurisdiction
when it is derived to be a motion not a suit. The only procedure that can be

held in this motion is determination of the lien as valid or fraudulent and


findings of fact and conclusion are filed to either grant or deny the relief.

Because untimely filing of lien by Relator under Tex. Prop. Code 53.160 is

not permitted in this proceeding as reason to have lien declared fraudulent,

especially when statute to vacate lien prescribes a suit to remove lien, a

motion cannot be converted into a declaratory judgment to see if a lien was

timely filed. Since a prerequisite of filing a suit, {Tex. Prop. Code 53.160) is

required, a motion to declare lien fraudulent is not equivalent to the

procedural duty of vacating a lien is therefore denied when no suit is filed

along with motion. Unless Real Party of Interest had a suit filed under 2012-

DCV-06341 for removal of lien, the issue was determined to be valid and res

judicata precludes any subsequent action to file suit. Without affirming that

a suit can be filed in ignoring res judicata, Trinity 416 S.W. at 201

determined by this same appellate court that constitutional liens cannot be

removed by Chapter 53 of the Texas Property Code. In reaffirming case law

again as have      other appellate    courts   previously ruled concerning

constitutional liens, Real Party of Interest is left without an affirmative

defense even if res judicata was not applied (without affirming), but since
this doctrine affords Relator a speedy and end to futile litigation by Real

Party of Interest, the lien issue is again settled.

Where Relator holds a constitutional lien and subject matter jurisdiction is

lacking to Respondent (Hon. Vigil Mulanax) to hold plenary power when

declaration of document as valid concluded proceeding, trial court abuses its

discretion therefore meeting one of the elementary requirements to issue

mandamus. "A trial court also abuses its discretion by entering a contempt

judgment that is not supported by evidence, and such a judgment is void."

See In re Long, 984 S.W.2d 623, 626 (Tex. 1999).

Evidenced by Trinity, 416 S.W. 3d, at 209, Relator was elevated to original

contractor and granted a constitutional lien (Exhibit B") under the authority

given by the constitution. Primarily the only issue remaining is one in tort,

when lien issue was disposed in motion to declare lien fraudulent and

motion cannot entertain any other declaratory judgment when statute limits

its authority of what action can be taken. Thence lacking a supplemental

suit along with this motion to declare lien fraudulent state statute limits its

authority to no other proceeding than prescribed.

      2. Abuse of Discretion- Lacking Plenary Power

Clearly trial court abuses its discretion when it lacks plenary power to issue

contempt orders, because contempt orders cannot be appealed, mandamus
will issue to vacate contempt orders. Plenary power had been expired since

November 06, 2012, it is clear statute only grants trial court limited powers

to determine lien fraudulent or valid. (CR 99-102) Lien was determined

valid in findings of fact and conclusions of law, wherefore this concludes

cause number 2012-DCV-06341 and preclusive of any other lien issue that

could be supplemented when filing deadlines for appeal have passed and res

judicata precludes litigation.

"When a trial court issues an order after its plenary power has expired, that

order is void." See In re Brookshire Grocery Co., 250 S.W.3d 66, 68-69

(Tex.2008) (orig. proceeding); In re R.G., 388 S.W.3d 820, 822 (Tex. App.-

Houston [1 Dist.], August 30, 2012, no pet.).

Accordingly, the plenary jurisdiction of the trial court expired on or about

November 06, 2012. The jurisdiction of the trial court to hold Relator, in

Cause No. 2012-DCV-06341, in contempt for violating orders entered in

that litigation where beyond the authority granted under the motion to

declare lien fraudulent. Plus the contempt order issued after plenary power

had been lost on August 26, 2013 whereby the contempt order exists but is

void of any enforcement when the motion to declare lien fraudulent cannot

execute any authority to issue contempt order.        (CR 420-422)      Again
contempt order was issued on November 2014 although plenary power had

expired, trial court continues to abuse its discretion by issuing a void order.

"If the trial court had no personal jurisdiction over the Relator in the

litigation forming the basis for the contempt proceeding, the judgment of

contempt and commitment order are void." See Ex parte Barlow, 899

S.W.2d at 798. "A trial court does not have jurisdiction to enter orders or

render a judgment for or against a person unless a controversy exists

between individuals and the          controversy is legally presented for

determination." Matz v. Bennion, 961 S.W.2d 445, 449 (Tex.App.-Houston

[1st Dist.] 1997, pet. denied); Strawder v. Thomas, 846 S.W.2d 51, 61 (Tex.

App.-Corpus Christi 1992, no writ). "A relator is entitled to mandamus

relief "when a trial court clearly abuses its discretion and there is no

adequate remedy by appeal." In re Norris, 371 S.W.3d 546, 548 (Tex.

App.—Austin 2012, orig. proceeding) (citing In re Prudential Ins. Co. of

Am., 148 S.W.3d 124, 135-36 (Tex. 2004)).

"Contempt orders are not reviewable by appeal; therefore, if a trial court

abuses its discretion by holding someone in contempt, there is no adequate

remedy by appeal, and the second prong of mandamus review is satisfied."

In re Long, 984 S .W.2d 623, 625 (Tex. 1999); Tex. Animal Health Comm'n

v. Nunley, 647 S.W.2d 951, 952 (Tex. 1983); Ex parte Cardwell, 416
S.W.2d 382, 384 (Tex. 1967) ("In contempt proceedings, however, there is

no remedy by appeal.").

In the event that Respondent's intent might suggest that the Order was not an

Order of Contempt, but a separate sanction, this suggestion would fail for

two reasons. First, the record is clear that the Order of Contempt was entered

pursuant to the Motion to Restrain Sale. Second, there is no adequate

remedy on appeal for a sanction order, because that order was not an

appealable judgment. See In re Hereweareagain, Inc., 383 S.W.3d 703, 714

(Tex.App.-Houston [14th Dist.] 2012, orig. proceeding) (holding that

because a sanctions order is not a final, appealable judgment, no adequate

remedy was available on appeal).

When trial court asserts plenary power over a proceeding that is clearly

conclusive by statute, it abuses its discretion by claiming authority to rule

other than findings of fact and conclusions of law as prescribed by statute.

Therefore the elemental mandate of this proceeding having been met,

mandamus shall issue when trial court abuses its discretion when it claims


plenary power although expired. Secondly contempt orders issued in this

cause number cannot be appealed and are reviewable by mandamus. Having

no authority on an issue disposed in cause number 2012-DCV-06341 by way
of motion to declare lien fraudulent, clearly sets for mandamus to issue

where an adequate remedy by appeal is not evident.


                          3. Moot Controversies

Furthermore since motion to declare lien fraudulent was disposed on

November 06, 2012 and conclusive of lien issue where it cannot consider

any declaratory action, it became moot when no appeal was taken after

November 06, 2012 by Real Party of Interest. Since this establishes that an

appeal cannot be done, mootness prohibits this appellate court with

jurisdiction by appeal.

"Appellate courts are prohibited from deciding moot controversies. This

prohibition is rooted in the separation of powers doctrine in the Texas and

United States Constitutions that prohibits courts from rendering advisory

opinions." See TEX. CONST, art. II, § 1; see also Texas Ass'n ofBus. v. Air

ControlBd., 852 S.W.2d 440, 444 (Tex. 1993); Firemen's Ins. Co. v. Burch,

442 S.W.2d 331, 333 (Tex. 1968). "A case becomes moot if at any stage

there ceases to be an actual controversy between the parties. Appellate courts

are prohibited from deciding moot controversies." See Camarena v. Texas

Employment Comm'n, 754 S.W.2d 149, 151 (Tex. 1988). "A case becomes

moot if at any stage there ceases to be an actual controversy between the

parties." Id. at 151.
Where moot controversies are strictly prohibited by the constitution, this

appellate court does not hold jurisdiction of appeal in 2012-DCV-06341, if

appealable had the timetable not expire, yet it has occurred and closed any

opportunity to appeal. Given that motion can only entertain a declaration of

the documentation, and on November 06, 2012, it was conclusive of the

issue, where no appeal was taken, the controversy is moot. No adequate

remedy by appeal can be afforded to any party, thus mandamus is an

adequate vehicle.   Disposing of the two critical requirements to grant

mandamus, Relator prays that this will persuade this appellate court to

revisit petition for Writ of Mandamus and grant the relief sought. Or if not

able to grant relief by Mandamus, that motion for rehearing grants relief

sought as pled on December 31, 2014.

"The relator need not show the absence of an adequate remedy if the trial

court's "order was void." In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex.

2000, orig. proceeding) (per curium). "In an original proceeding regarding a

contempt order, the court will grant relief if a relator shows that the order

underlying the contempt is void, or if the relator shows that the contempt

order itself is void." Snodgrass v. Snodgrass, 332 S.W.3d 653, 660 (Tex.

App. -Houston [14th Dist.] 2010, no pet.). "An order is void if "the trial

court had no power or jurisdiction to render" it." Cascos, 319 S.W.3d at
215; Ex parte Friedman, 808 S.W.2d 166, 168 (Tex. App.—El Paso 1991,

orig. proceeding). "An order is beyond the power of the court if the court

lacks: (1) jurisdiction of the subject matter; (2) jurisdiction of the person; or

(3) authority to render the particular judgment." Ex parte Salfen, 618

S.W.2d 766, 769 (Tex. Crim. App. 1981). "Further, where there is no

evidence of contempt, the order is void." See In re Long, 984 S.W.2d at

626.


Because the underlying orders were void for exceeding the trial court's

subject matter jurisdiction in declaration of documentation under statute and

the Order of Contempt was issued long after the plenary jurisdiction expired,

the Order of Contempt is void. (CR 420-422) Mandamus relief is therefore

warranted for this additional independent reason. Accordingly, the Order of

Contempt, is void and a Writ of Mandamus directing the trial court to vacate

its judgment of contempt is warranted.

"In a mandamus or habeas proceeding challenging a trial court's contempt

order, the relator is entitled to relief if he demonstrates that the challenged

order is void."     See, e.g., Hall, 433 S.W.3d at 207 ("In an original

proceeding regarding a contempt order, this court will grant relief if a relator

shows that the order underlying the contempt is void, or if the relator shows

that the contempt order itself is void."); see also Custom Corporates, Inc. v.
Sec. Storage, Inc., 207 S.W.3d 835, 838 (Tex. App.-Houston [14th Dist]

2006, orig. proceeding)      ("Cases involving void orders present a

circumstance warranting mandamus relief")

Where Relator has met the two prong test to grant Writ of Mandamus in

addition a moot controversy has now transpired by evident case law

authority not previously cited or adjudged by this appellate court, therefore

mandamus is warranted. Relator again seeks to have Writ of Mandamus

issue and proceed forward with collection of judgment when res judicata

precludes and ends litigation on the lien issue. No one negates Relator holds

a constitutional lien and lien amount has no bearing to be heard by trial court

when a suit can only determine the lien issue not a motion. Relator asks

motion to reconsider is joined with motion for rehearing to affirm Writ of

Mandamus will be granted.

                                  Prayer


FOR THESE REASONS, Serrano requests that this Court grant the

petition for Writ of Mandamus. Direct the court that it no longer has plenary

power over a constitutional lien, and with instruction to judicially foreclose

lien with lien amount set at $50,000 with interest as of December 31, 2014,

of $29, 516.41 in cause number 2013-DCV-3139. Mandate res judicata

denies plenary power to Respondent to assess value on lien and lien amount


                                                                            10
is set as filed. Res judicata grants a constitutional lien to Relator.   Vacate

all contempt orders under 2012-DCV-06341 and 2013-DCV-3139 and

restraining orders are dissolved and set aside. Sanctions of not less than

$10,000 is granted to Relator against Real Party of Interest where frivolous

pleadings are shown by Tex. Gov't. Code 51.903(a). Writ of Garnishment is

issued for collection of $50,000 plus interest of $29,516.41 in cause number

2104-DCV-2758. And for any other relief that Serrano is justly entitled.

                                               Respectfully submitted,




                                               Rosa Serrano
                                               1510N. ZaragozaSte. A-4
                                               El Paso, Texas 79936
                                               915-443-3582
                                               ProSe


                      CERTIFICATE OF SERVICE


      On this day January /^/, 2015, Rosa Serrano, served notice to
Pellicano Business Park, L.L.C, counsel by mail, email and fax to its
attorney of record Burton Cohen, 501 Executive Blvd. Center, Suite 200 El
Paso, TX 79902.




                                                     yv—
                                               Rosa Serrano




                                                                             11
                         AFFIDAVIT OF ROSA SERRANO



STATE OF TEXAS


COUNTY OF EL PASO                            {

       BEFORE ME, the undersigned authority, on this day personally
appeared Rosa Serrano, known to me to be the person whose name is
subscribed to the following instrument, and having been by me duly sworn
upon oath deposes and states as follows:

       "My name is Rosa Serrano. I am over the age of 18 years old. Copies

of the Order Concerning a Constitutional Lien, Mechanic's Lien and Order

to hold in Contempt are true and accurate copies of the clerk's record and

county clerk's record.

All the information that I provided to the court was true and complete and

contained no false statements or material omissions at the time it was

provided to the court.             Upon oath and under penalty of perjury, the

statements made in this Affidavit are true.


Further Affiant sayeth not."



                                                      r>—
                                                 Rosa Serrano, Affiant

SUBSCRIBED AND SWORN TO this ,-JjJ day ofJanuary 2015.


  <$<"^        MONICA R. PEREZ
 /^X;H Notary Public, State of Texas
 I :- ysT.y My Commission Expires
 mm*             juiyai. aoia                    Jotary Public in and for(^y
                                            The State of Texas
               IN THE COUNTY COURT AT LAW NUMBER SEVENS'? Kfc) CUM
                            OFELPASO COUNTY,TEXAS                        ^^ ^                   g||
j$ ^g.                                        §                          EL PASS COUHIY, TEXAS'
PELLICANO BUSINESS PARK,                       §                          BY
LLC, ATEXAS CORPORATION                        §      CAUSE # 2012DCV063$fptjTY
                                               §
Movant                                         §

                 nRPKR CONCERNING CONSTITUTIONAL LIEN


         This case, and the case it was severed from, have acomplicated history in which
the parties have been refened to, at different stages, as Movant, Non-Movant, Plaintiff,
Defendant, Counter Claimant and Respondent For the sake ofsimplicity, they will be
referred to in this Order as Serrano and Pellicano.

         Serrano leased unimproved premises from Pellicano and, through her own work
and through contractors, completed major improvements, including the installation of
heating, air conditioning and ventilation systems, bathrooms, walls and ceilings. The
work was completed inthe late spring orearly summer of2011 and a certificate of
occupancy was issued in the summer of 2011.
         In Novemberof 2011, Serrano was evictedfor delinquentrent

         After extensive and unsuccessful challenges to that eviction, Serrano filed a

Mechanics Lien on the propertyon June 4,2012.

         Pellicano filedsuit to vacatethat lien and alleged that it was fraudulent, was filed

late, and was filed withoutpropernotice.

         OnNovember 6,2012,the Court rejected Pellicano's claim thatthe lien was
fraudulent. Based oncredible testimony from Serrano and others, the Court found that
Serrano did provide some materials and do some work onthe property. The Court did
not make any finding that $50,000.00 was or was not afair value for that work and
material.

       On December 10,2012, the Court vacated and set aside the lien because itwas
not timely filed, and notice was notproperly given, in accordance with Section 53.055 of
the Property Code. The Court again declined to make any finding as to whether
$50,000.00 was an appropriate valuation for Serrano's claim.
        Serrano then filed a constitutional lien.

        On July 25,2013, the Court vacated the constitutional lien because Serrano did
not comply with the statutory framework for perfecting and executing liens (i.e. the
Property Code provisions for timely filing and notice).
        On July 30,2013, the Court re-affirmed the Order vacating the constitutional lien
and severed that claim so that there might be anexpedited appeal. The Court ofAppeals
determined that vacating the lien was not anorder that could be appealed onan

interlocutory basis and denied reliefto Serrano on August 14,2013.
        On August 5,2013, this Court entered an Injunction prohibiting Serrano from
"taking any steps to effectuate asale ofthe property atissue or to otherwise seek to
enforce those purportedliens."

        Serrano did take some steps and onAugust 26,2013, was held in contempt
        She now comes before the Court asking that the constitutional lien berevived in
 light ofTrinitv Drvwall Svstems Inc. vTOKA General Contractors. 416 S.W.3d 201
 (Tex. App. ElPaso, 2013, pet. filed).
       Constitutional liens are authorized by Article 16, section 37 ofthe Texas
Constitution which states:

               Mechanics, artisans, and materialmen, ofevery class, shall have
                alien upon me building and articles made or repaired by them
               for the value oftheir labor done thereon or material furnished
                therefore; and the legislature shall provide by law for the speedy
               and efficient enforcement of said liens.

       The Trinity Drvwall case makes it clear that constitutional liens are available even
ifthe filing or notice requirements for statutory liens are not met The Court held
"However, when an original contractor fails to meet the requirements for astatutory lien,
the constitutional lien is still available to him.*' Trinity at 208.

        Although the Constitution explicitly applies to "material men ofevery class", the
Trinitv Drvwall case limits theavailability of constitutional liens to original contractors.

"Theconstitutional lien is onlyavailable to those whocontract directly withthe property

owner orhisagent" Trinitv at 208; "Itis well settled that a constitutional lien requires a
person to be inprivity ofcontract with the property owner and, therefore, that lien does
not apply to derivative claimants such assubcontractors." Trinitv at206.
        Being bound by that interpretation ofthe phrase "ofevery class", the Court must
determine whether Serrano was inprivity of contract with Pellicano concerning the
construction. She was. The COMMERCIAL LEASEHOLD CONSTRUCTION

ADDENDUM (attached) states explicitly that "landlord authorizes Tenant to construct
the improvements described inthis addendum provided that Tenant complies with all the
terms ofthis addendum" and allows Tenant to enter the property "for the purpose of
constructing the improvements described under this addendum." (par. A.)
       That contract does not give Serrano any contractual basis to assert alien, and
actually prohibits her from doing so. She was contractually obligated to obtain an
independent contractor (par E) and to guarantee no liens were filed (par H.) Therefore,
we have asituation where Serrano did work pursuant to acontract that guaranteed there
would be no liens.

        Trinitv Drvwall holds that doing construction work under a direct contract with a
property owner is enough to support aConstitutional lien. Serrano meets mat threshold.
        The question before the Court is whether the language ofthe contract whose
existence creates a constitutional lien can defeat aconstitutional lien. Put differently,
there isa Constitutional provision which gives rights and protections to people who
perform construction work and acontract which prohibits the exercise ofthose rights and
which protects the property owner. Which prevails?
        The Court believes that therights and protections toworkers conferred bythe
 Constitution should prevail over the protections to the property owner which are
 conferred by a contract. Therefore, the constitutional lien survives.
        However, the Court recognizes that theconstitutional lien may have little orno
 value because Serrano obligated herselfto assume the full cost ofconstruction, and to
 mdemnify Pellicano for any lien exposure, under paragraphs B,F, H, and Kofthe
ADDENDUM. Therefore, Serrano, as someone who did construction work under a
 direct contract with a property owner does have the status ofa constitutional lien holder.
 The Court makes nofinding concerning theworth ofthatlien.


                                              4
       Therefore thefollowing Order isEntered,
       The Order ofJuly 25,2013 VACATING the constitutional Hen and the Order of
July 30,2015reafflrinincthe ruling are hereby SET ASIDE. Under Irinity DrvwaU, the
constitutional lien survives.

        The Prelirninary Injunction ofAug. 5.2013 is hereby MODIFIED so that Serrano
is not enjoined from exercising her rights with regard to aconstitutional lien.
        The Court again makes no finding concerning the value ofany lien.
        The Contempt Order ofAugust 26,2013 is not VACATED or MODIFIED.

                Signed and entered this esLJday ofAugust, 2014.



                                              TOM SPIECZNY, JUDGE


cc:     Burton Cohen            Fax: 915/544-6712
        Rosa Serrano
                                                   .,          ,Dqp# £0120040866
                              Mechanical and Material man s hen
                                         CLAIM OF LIEN


State of Texas


County of El Paso

      Before me, the undersigned Notary Public, personally appeared Rosa
Serrano DBA The Lens Factory, who duly sworn says that she is (the lienor
herein) whose address in

1510 N. Zaragoza Ste. A-4, El Paso, TX 79936
And that in accordance with a contract with Golden Eagle Contractors.

Lienor furnished labor, services and materials.                 100% of work has been
completed of job contract. I received payment of $0.00, towards balance of
$ 50.000.00 (Fifty Thousand dollars and zero cents) leaving a balance of
$50.000.00(Fiftv Thousand dollars and zero cents).

I Rosa Serrano am filing an affidavit of mechanics lien on the following real
property in El Paso County, State of Texas.

11500 Pellicano Ste. B-l, El Paso, Texas 79936.

With legal description being as such noted in property records to be:

Property ID: 252705 GEOGRAPHIC ID: 334 VISTA DEL SOL #68 W
PT OF 1.
The owners' names are Pellicano Business Park

This instrument was acknowledged before me on                   (_ day of June 2012, by
Rosa Serrano, DBA The Lens Factory.




                                                Rosa Serrano, Affiant

SUBSCRIBED AND SWORN TO this ^                           day ofJune 2012.

     tfwflk BELINDA MALTOS              If       /^ l      .    ^ ^ q,
     •'W* ! No,ary Pubiic'statoalKa* \l         {4--^tLM<J^- i ' UKJtfcfc?
     iW.:7 My Commission Expires        if           :
                    Sf^J&L-J!
        V***^-**™^ ;•*•*a';
                                               Notary Public in and for
                                '"""""*""""    The State of Texas
                 Doc# 20120040866
                 #PageS 1          #NFPages 1
                        6/4/2012 12:47:41 PM
                 Filed & Recorded in
                 Official Records of
                 El Paso County
                 Delia Briones
                 County Clerk              tf>
                 Fees il6.00


Ihereby certify that this instrument was filed on the date and time stamped
hereon by me and was duly recorded by document number in the Official
Public Records of Real Property in El Paso County.



                           QUL<&
EL PASO COUNTY. TEXAS
                IN THE COUNTY COURT AT LAW NUMBER SEVEN
                         OF EL PASO COUNTY, TEXAS

 ROSA SERRANO d/b/a                            §
 THE LENS FACTORY                              9
 PlaintifCCounterclaimant                      §       CAUSE*       2013DCV3139

                                                                                    I''i   r>»
 v.                                            §                                    r—     es»

                                                                                           fc-J

 PELLICANO BUSINESS PARK,                      §
                                                                                    O
 L.L.C., A TEXAS CORPORATION                   §                                    O
                                                                                    O
                                                                                    c=
                                               §
                                                                                           33     r—SO
Defendant/Respondent                           §                                    —t     00     3PP
                                                                                    >:     IN>    '   >
                                                                                    ••?    rs>

               IN THE COUNTY COURT AT LAW NUMBER SEVENr^
                        OF EL PASO COUNTY, TEXAS      \
IN RE:

PURPORTED MECHANICAL AND
MATERIALMAN'S LIEN CLAM OF
LEIN AGAINST PELLICANO                                CAUSE* 2012DCV06341
BUSINESS PARK, L.L.C.

                                ORDER OF CONTEMPT

         On July 30,2013, in cause # 2012DCV06341, this Court entered an ORDER re

affirming that all Hens were VACATED. At the request of Ms, Serrano, allclaims
concerning those liens were severed so that they could become immediately appealable.
       On August 5, 2013, prior to any appeal, this Court entered a Preliminary
Injunction which stated in relevant part:

                       "This Court has previously issued Orders VACATING all
               liens in this case. In addition to those Orders, the Court now
               ENJOINS RosaSerrano, both in herindividual capacity as a pr2SS
               litigant and in her capacity asa representative ofThe Lens Factory
               or as a representative of any subcontractors, from taking any steps to
               effectuate a sale ofthe property at issue or to otherwise seek to
                enforce those purported liens.

                       There shall be no sale of any property through those liens unless
                there is a subsequent order of this Court."

        On August 7,2013 a Notice of Appeal was filed by Ms. Serrano. The Court of

 Appeals has not vacated or modified the Preliminary Injunction.

        On August 16,2013, a Motion forContempt was filed under both the original
cause#2Q12DCV06341 and under the newly created cause number for the severed

claims, 2013DCV3139. Ms. Serrano was served withthat Motion and a hearing was held
on August 26,2013.

        The following facts have been established;

        1. Ms. Serrano was fully aware of the Preliminary Injunction when it was issued.
       2. Ms. Serrano contacted City Bank, the property owner's lender, and requested
           permission to act as a substitute trustee under their Deed ofTrust

       3. That request was denied.

       4. Ms. Serrano then contacted Ms. Mitrisin and arranged for herto post the
           property for sale.

       5. Ms. Serrano acted without anyauthority from City Bank and solely in her own
           interest.

       6. Ms. Serrano violated the Preliminary Injunction.
       Therefore, after due notice and a hearing, this Court finds Ms. Serrano in
contempt. This matter is governed by Art. 21.002(b) ofthe Texas Government Code

which provides that contempt is to bepunished bya fine of upto $500.00 and/or by ajail
commitment of not more than six (6) months.
•   ft




                The fine is hereby set at $400.00. Any further acts of contempt may require this

         Court to consider a jail commitment.


                Signed and entered thisCZS. day of August, 2013.



                                                     TOM SPIECZNY, JUDGE \^
         cc:    Burton Cohen          Fax:   915/544-6712
                Rosa Serrano          Fax:   915/856-1665
