Opinion issued February 6, 2020




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-18-00909-CV
                            ———————————
         C. LUGRAND DAWKINS ENTERPRISES, LLC, Appellant
                                        V.
WANDERSTAY HOTEL, LLC D/B/A WANDERLUST HOUSTON, Appellee


                    On Appeal from the 189th District Court
                             Harris County, Texas
                       Trial Court Case No. 2018-39075


                          MEMORANDUM OPINION

      In this interlocutory appeal,1 appellant, C. Lugrand Dawkins Enterprises, LLC

(“Lugrand Dawkins”), challenges the trial court’s order, titled “Judicial Finding of

Fact and Conclusion of Law Regarding a Documentation or Instrument Purporting


1
      See TEX. GOV’T CODE ANN. § 51.903(c).
to Create a Lien or Claim,” declaring that there was no valid lien or claim created by

Lugrand Dawkins’s affidavit claiming a mechanic’s lien against appellee,

Wanderstay Hotel, LLC, doing business as Wanderlust Houston (“Wanderlust”). In

five issues, Lugrand Dawkins contends that the trial court erred in granting

Wanderlust’s “1st Amended Motion for Judicial Review of Lien.”2

      We reverse and remand.

                                    Background

      In its second amended petition, Wanderlust, a hotel, alleged that it executed

an agreement with Lugrand Dawkins, a general contractor, to provide general

contractor services related to the renovation of Wanderlust’s hotel property.

Throughout the renovation process Lugrand Dawkins failed to make progress

according to the parties’ agreed-upon schedule, although Wanderlust “faithfully

made payments” to Lugrand Dawkins. Eventually, the parties reached an impasse,

and Wanderlust “had to hire the services of an additional contractor to correct the

work already done and [to] finish the work that ha[d] not been completed.” And

although Lugrand Dawkins failed to complete its work, it “expect[ed] additional

payments” from Wanderlust.




2
      See id.

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      Wanderlust asserted claims against Lugrand Dawkins for breach of contract,

negligence, violations of the Texas Deceptive Trade Practices Act, 3 and fraudulent

lien.4 Related to its fraudulent lien claim, Wanderlust challenged the validity of

Lugrand Dawkins’s “Affidavit Claiming a Statutory and Constitutional Lien,” which

it had filed with the Harris County Clerk’s Office. Wanderlust attached to its second

amended petition, among other things, the “Affidavit Claiming a Statutory and

Constitutional Lien.”

      Lugrand Dawkins answered, generally denying Wanderlust’s allegations and

asserting certain defenses and counterclaims.

      Wanderlust then filed its “1st Amended Motion for Judicial Review of Lien.”5

In its motion, Wanderlust asserted that on June 15, 2018, Lugrand Dawkins filed its

“Affidavit Claiming a Statutory and Constitutional Lien” with the Harris County

Clerk’s Office; the representations made in the “Affidavit Claiming a Statutory and

Constitutional Lien” were false; Wanderlust had paid Lugrand Dawkins $82,000

under the parties’ agreement; Lugrand Dawkins only completed around $30,000

worth of work under the parties’ agreement; Wanderlust did not owe Lugrand

Dawkins any money; and Lugrand Dawkins “clearly knew or should have known



3
      See TEX. BUS. & COM. CODE ANN. § 17.46.
4
      See TEX, CIV. PRAC. & REM. CODE ANN. § 12.002.
5
      See TEX. GOV’T CODE ANN. § 51.903.

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[that] the document [it] recorded was fraudulent and not based upon any facts.” Thus,

Wanderlust sought, among other things, judicial review of Lugrand Dawkins’s

purported lien, under section 51.903 of the Texas Government Code.6 Wanderlust

attached to its motion Lugard Dawkins’s “Affidavit Claiming a Statutory and

Constitutional Lien.”

      In its response to Wanderlust’s motion, Lugrand Dawkins asserted that its lien

was not fraudulent because it was filed in the form of a mechanic’s lien as authorized

by Texas law and that the question of the lien’s validity was improper, as it exceeded

the scope of Texas Government Code Chapter 51.

      After a hearing on Wanderlust’s motion, the trial court entered an order, titled

“Judicial Finding of Fact and Conclusion of Law Regarding a Documentation or

Instrument Purporting to Create a Lien or Claim,” declaring that there was no valid

lien or claim created by Lugrand Dawkins’s “Affidavit Claiming a Statutory and

Constitutional Lien.” The trial court’s findings of fact and conclusions of law

invoked its authority under Texas Government Code Chapter 51 and declare that

Lugrand Dawkins’s “Affidavit Claiming a Statutory and Constitutional Lien”

      (1) [WAS] NOT provided for by specific state or federal statutes or
          constitutional provisions;
      (2) [WAS] NOT created by implied or express consent or agreement of
          the obligor, debtor, or the owner of the real or personal property or
          an interest in the real or personal property, if required under the law

6
      See id.
                                          4
           of this state or by implied or express consent or agreement of an
           agent, fiduciary, or other representative of that person;
      (3) [WAS] NOT an equitable, constructive, or other lien imposed by a
          court of competent jurisdiction created by or established under the
          constitution or laws of this state or the United States; or
      (4) [WAS] NOT asserted against real or personal property or an interest
          in real or personal property.
      There [was] no valid lien or claim created by this documentation or
      instrument.

                                        Lien

      In its first and second issues, Lugrand Dawkins argues that the trial court erred

in granting Wanderlust’s “1st Amended Motion for Judicial Review of Lien”

because Lugrand Dawkins’s lien was “a Texas Property Code Chapter 53

Mechanic’s Lien and Texas Constitutional Lien” and Wanderlust “sought . . . relief

beyond the permissible scope of Texas Government Code [sections] 51.901

and . . . 51.903.”

A.    Jurisdiction

      Initially, we consider whether we have jurisdiction to review Lugrand

Dawkins’s challenge to the trial court’s interlocutory order, declaring that there was

no valid lien or claim created by Lugrand Dawkins’s “Affidavit Claiming a Statutory

and Constitutional Lien.” Texas Government Code section 51.903 confers appellate

jurisdiction to review a trial court’s finding about whether a document purporting to

create the lien is presumed to be fraudulent. Cardenas v. Wilson, 428 S.W.3d 130,

132 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (holding “we have appellate

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jurisdiction to review a trial court’s interlocutory orders under section 51.903 of the

Texas Government Code”); see also TEX. GOV’T CODE ANN. § 51.903(c) (“An

appellate court shall expedite review of a court’s finding under this section.”). We

therefore conclude that we have jurisdiction to review Lugrand Dawkins’s challenge

to the propriety of the trial court’s ruling under Texas Government Code section

51.903.

B.    Texas Government Code Chapter 51

      We next address Lugrand Dawkins’s contention that the trial court erred in

finding that its affidavit did not create a valid statutory lien. Whether an affidavit

purporting to create a lien is fraudulent, as defined by statute, is a question of law

that we review de novo. David Powers Homes v. M.L. Rendleman Co., 355 S.W.3d

327, 335 (Tex. App.—Houston [1st Dist.] 2011, no pet.).

      A document is “presumed” to be fraudulent if:
      the document or instrument purports to create a lien or assert a claim
      against real or personal property or an interest in real or personal
      property and:
             (A) is not a document or instrument provided for by the
      constitution or law of this state or of the United States;
             (B) is not created by implied or express consent or agreement of
      the obligor, debtor, or the owner of the real or personal property or an
      interest in the real or personal property, if required under the laws of
      this state, or by implied or express consent or agreement of an agent,
      fiduciary, or other representative of that person; or
            (C) is not an equitable, constructive, or other lien imposed by a
      court with jurisdiction created or established under the constitution or
      laws of this state or of the United States.

                                          6
TEX. GOV’T CODE ANN. § 51.901(c)(2). To find that a document purporting to create

a lien is presumed fraudulent, the court must determine that it is not one of the above

three types of legitimate liens or claims. See id. § 51.903(a); see also Cardenas, 428

S.W.3d at 132.

      Lugrand Dawkins argues that the trial court erred in granting Wanderlust’s

“1st Amended Motion for Judicial Review of Lien” because Lugrand Dawkins’s lien

was “a Texas Property Code Chapter 53 Mechanic’s Lien and Texas Constitutional

Lien” and Wanderlust “sought . . . relief beyond the permissible scope of Texas

Government Code [sections] 51.901 and . . . 51.903.” Lugrand Dawkins correctly

observes that both the Texas Constitution and the Property Code provide a basis for

a mechanic’s lien. See TEX. CONST. art. XVI, § 37; TEX. PROP. CODE ANN. Ch. 53;

Cardenas, 428 S.W.3d at 132–33. Because the laws of Texas authorize a document

filed in the form of a mechanic’s lien, it cannot be presumed to be fraudulent under

51.901(c)(2)(A) of the Texas Government Code. See TEX. GOV’T CODE ANN.

§ 51.903(a); Cardenas, 428 S.W.3d at 132–33. Wanderlust, in its “1st Amended

Motion for Judicial Review of Lien,” asserted that the representations Lugrand

Dawkins made in its “Affidavit Claiming a Statutory and Constitutional Lien” were

false; Wanderlust paid Lugrand Dawkins $82,000 under the parties’ agreement;

Lugrand Dawkins only completed around $30,000 worth of work under the parties’

agreement; Wanderlust did not owe Lugrand Dawkins any money; and Lugrand


                                          7
Dawkins “clearly knew or should have known [that] the document [it] recorded was

fraudulent and not based upon any facts.”          Wanderlust’s assertions, and its

corresponding evidence, relate to whether Lugrand Dawkins received payment

related to its work performed under the parties’ agreement. This goes not to the legal

authorization for the mechanic’s lien, but to whether it is valid, a question that was

not before the trial court in determining Wanderlust’s “1st Amended Motion for

Judicial Review of Lien” under Texas Government Code section 51.093. See

Cardenas, 428 S.W.3d at 133 (“Under the fraudulent lien statute, the trial court does

not rule on the validity of the underlying claim creating the lien or rule on any

substantive evidentiary claim.”). Accordingly, we hold that the trial court erred in

granting Wanderlust’s “1st Amended Motion for Judicial Review of Lien” and

declaring that there was no valid lien or claim created by Lugrand Dawkins’s

“Affidavit Claiming a Statutory and Constitutional Lien.”

      We sustain Lugrand Dawkins’s first and second issues. 7

                                    Conclusion

      We reverse the trial court’s order, entitled “Judicial Finding of Fact and

Conclusion of Law Regarding a Documentation or Instrument Purporting to Create




7
      Our disposition of Lugrand Dawkins’s first and second issues makes it unnecessary
      to address his third, fourth, and fifth issues. See TEX. R. APP. P. 47.1.

                                          8
a Lien or Claim,” and remand the case for further proceedings consistent with this

opinion. We dismiss all pending motions as moot.




                                             Julie Countiss
                                             Justice

Panel consists of Justices Kelly, Hightower, and Countiss.




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