                        NUMBER 13-12-00416-CV

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


BLUE WAVE CAPITAL, LLC,                                                Appellant,

                                         v.

BROWNSVILLE REGIONAL HOSPITAL, LLC
AND GALENO’S ENTERPRISES, LLC,                                         Appellees.


                  On appeal from the 445th District Court
                       of Cameron County, Texas.


                        MEMORANDUM OPINION

          Before Justices Rodriguez, Benavides, and Longoria
              Memorandum Opinion by Justice Rodriguez
      Appellant Blue Wave Capital, LLC (Blue Wave) appeals from a summary judgment

granted in favor of appellees Brownsville Regional Hospital, LLC (the Hospital) and

Galeno’s Enterprises, LLC (collectively, Galeno’s). By two issues, Blue Wave contends
that the trial court erred in (1) granting Galeno’s motion for summary judgment; and (2)

overruling Blue Wave’s motion for reconsideration and request for leave to file an

amended affidavit. We affirm in part and reverse and remand in part.

                                    I. BACKGROUND

      On October 12, 2006, M.H. 7 Ranch Properties, LLC and M.H. 7 Properties, LLC

(collectively, M.H. 7) entered into an agreement with Galeno’s to purchase forty-one

acres of real property that Galeno’s owned in Brownsville, Texas. The earnest money

agreement was extended many times during the following seven months. On May 16,

2007, Blue Wave and M.H. 7 entered into a brokerage agreement, providing that Blue

Wave would procure a loan commitment for M.H. 7 to purchase Galeno’s property. The

agreement also provided that M.H. 7 would pay a commission to Blue Wave upon delivery

of the loan commitment. Blue Wave apparently provided that commitment; however,

Galeno’s and M.H.7 were unable to agree on the terms of this financing, which involved

Galeno’s taking a second lien on the property. Instead, on July 20, 2007, Galeno’s and

M.H. 7 amended their agreement to provide for 100% owner financing, and they closed

on the property that month.      On December 26, 2007, seeking to secure unpaid

commission against M.H. 7, Blue Wave filed a broker’s lien against the property in the

deed records of Cameron County, Texas.

      In January 2008, M.H. 7 became delinquent in its payments, and Galeno’s posted

the property for foreclosure. But because M.H. 7 filed for bankruptcy, the foreclosure

was stayed until M.H. 7 filed an acceptable Chapter 11 plan of reorganization

approximately one year later. The bankruptcy court lifted the stay and allowed Galeno’s

to foreclose on the property and take it back.
                                             2
       Two months after the foreclosure of the forty-one acre tract, Blue Wave sued

Galeno’s for breach of contract and for tortious interference with an existing

contract—specifically, the brokerage agreement. Galeno’s filed general denials, specific

denials, and special exceptions. It also asserted the affirmative defense of privilege,

claiming that “the defendants[’] actions were privileged . . . because the [d]efendants[’]

right in the subject matter of the property was superior to that of the Plaintiff or any other

third party.” In addition, Galeno’s filed a counterclaim, seeking statutory damages and

attorney’s fees against Blue Wave for filing a fraudulent lien on the property. See TEX.

CIV. PRAC. & REM. CODE ANN. §§ 12.002 (West Supp. 2011), 37.009 (West 2008).

       Blue Wave also sued M.H. 7 for breach of contract, and Galeno’s cross-claimed

against M.H. 7 and Eduardo Huerta, M.H. 7’s managing partner, for breach of contract,

fraud, and misrepresentation. Blue Wave’s claims against M.H. 7 were later resolved by

an agreed judgment, and Galeno’s non-suited its claims against M.H.7 and Huerta.

Those matters are not before us in this appeal.

       On February 2, 2012, approximately three years after suit was filed, Galeno’s filed

a no-evidence and traditional motion for summary judgment. In its no-evidence motion,

Galeno’s argued that Blue Wave brought forth no evidence of Galeno’s willful and

intentional tortious interference with any existing contract. 1               Through its traditional

motion, Galeno’s asserted the following: (1) regarding Blue Wave’s tortious interference

claim, the summary judgment evidence conclusively established its affirmative defense of

privilege; and (2) relevant to its counterclaim, the summary judgment evidence

       1
           Galeno’s did not challenge Blue Wave’s breach of contract claim.


                                                    3
conclusively established that Blue Wave filed a fraudulent lien against the property to

cause financial injury. In support of its motion, Galeno’s filed, among other things, the

various agreements discussed above and excerpts of the deposition testimony of Ramon

Gerardo “Jerry” Rios, managing member and authorized agent for Blue Wave.

        On February 28, 2012, Blue Wave filed the following response to Galeno’s

tortious-interference-with-a-contract challenge and Galeno’s claimed affirmative defense

of privilege:

                While [Galeno’s] assertion that it has a privilege as to its real estate
        sales contract with MH7/Huerta is generally true, [Blue Wave’s] claim
        against defendants MH7 and [the Hospital] are [sic] not about interference
        with the real estate contract. [Blue Wave] has two written, enforceable
        contracts with defendant MH7 that obligate MH7 to pay [Blue Wave] a
        commission for obtaining a loan commitment for MH7. The two contracts
        are substantially similar except for the loan amounts anticipated under the
        contracts. . . . [Blue Wave’s] assertion is that [Galeno’s] knew or should
        have known about the contract between [Blue Wave] and MH7 because
        [Blue Wave’s] representative, Jerry Rios, specifically discussed the
        financing terms and the existence of a contract for financing between [Blue
        Wave] as a broker and MH7 as the client to representative for [Galeno’s].
        In addition, MH7 and [Galeno’s] amended their existing real estate
        purchase contract in order to comply with the terms of financing set forth by
        the lender that provided the loan commitment for [Blue Wave] under the
        contract between [Blue Wave] and MH7. By simply inducing MH7 to not
        use the financing provided by [Blue Wave] via its loan commitment,
        [Galeno’s] was instructing MH7 to breach its contract with [Blue Wave], thus
        interfering with [Blue Wave’s] contract with MH7. John Paul Mitchell Sys.
        v. Randalls Food Mkts., Inc., 17 S.W.3d 730. Further [Galeno’s] induced
        MH7 by intimidation, forcing MH7 to act under duress. In a tortious
        interference with contract suit, if a plaintiff pleads and proves methods of
        interference that are tortious in themselves, then the issue of privilege or
        justification never arises. Prudential Ins. Co. of Am. v. Financial Review
        Servs., Inc., 29 S.W.3d 74. (Tex. 2000). See Exhibit “A”, Affidavit of Jerry
        Rios.[2]
        2
           Rios’s affidavit set out the following in support of Blue Wave’s claim of tortious interference with
an existing contract:

                 2.      I personally arranged for financing through Blue Wave Capital, LLC for
                         M.H. 7’s acquisition of the subject property, or “Tract 1” which was owned
                                                      4
        In response to Galeno’s traditional summary-judgment argument on its

counterclaim for filing a fraudulent lien, Blue Wave agreed that it was not a broker but

claimed that it hired a lawyer to represent it and to file the notice of lien. It also asserted

that Galeno’s did not have standing because M.H. 7 was the property owner of record, not

Galeno’s, when the lien was filed. Blue Wave further claimed that the counterclaim

became moot when the lien was “cut off” by Galeno’s foreclosure on M.H. 7’s interest in

the property. Blue Wave offered the following portion of Rios’s affidavit to support this

argument:

        In regards to the fraudulent lien claim set forth as a counterclaim by
        defendants Galeno[‘]s and [the Hospital], I filed the notice of lien through my

                        by defendants Galeno[‘]s and [the Hospital]. As part of the financing
                        terms, the sellers were asked to take a second lien position and allow for
                        seller financing as a portion of the sales price. The sellers agreed to this
                        and we subsequently had a conference call between the representatives
                        of all of the parties of this lawsuit whereby everything was explained in
                        detail by me to all of the parties. The representative for Galenos and [the
                        Hospital] was Dr. Villalobos and possibly one other doctor. I don’t
                        remember if there was anyone else present for those defendants.
                        Galenos’ and [the Hospital’s] primary concern was the security of the
                        financing as this transaction had been on-going with false promises in the
                        recent past by other lenders. I assured the representatives of Galenos
                        and [the Hospital], and all parties, that I 1) had a source and a back up
                        source for financing on this transaction as well as the transaction for the
                        purchase of the adjacent tract of land, and 2) that I had a contract with
                        MH7 for the loan commitment [and] would not have entered into such a
                        contract if I did not think that I could obtain the financing that MH7 needed.
                        I also discussed the general terms of the financing for the second
                        (adjacent) tract of land and discussed how MH7 would obtain cash at
                        closing to help fund the purchase of the second (adjacent) tract of land.

                3.      The closing documents were prepared by the title company and the loan
                        was ready to fund when defendants Galenos and [the Hospital] decided
                        that they would not close the transaction. I did not know at the time, but I
                        found out later, during MH7’s bankruptcy proceedings that Galenos and
                        [the Hospital] forced MH7 to take their seller financed deal and specifically
                        told MH7 not to take Blue Wave Capital’s or “Jerry’s deal.”

(Italics added.) Galeno’s objected to the italicized portions of Rios’s affidavit on the basis that each
statement either lacked foundation or was hearsay or both, and the trial court granted Galeno’s objections.

                                                     5
       attorney at the time, against defendant MH7 while MH7 owned the subject
       property. I was not licensed as a lawyer until May 2, 2008. It is my belief
       that the broker’s lien filed was terminated when Galenos and [the Hospital]
       foreclosed on MH7, wiping out all inferior liens.

       On March 20, 2012, after considering the motion, reviewing the evidence, and

hearing arguments, the trial court entered an order generally granting Galeno’s motion for

no evidence and traditional summary judgment. The judgment disposed of Blue Wave’s

tortious interference claim against Galeno’s and Galeno’s fraudulent lien claim against

Blue Wave.

       On March 29, 2012, the trial court entered a second judgment again granting

Galeno’s summary judgment against Blue Wave. In its March 29 judgment, the trial

court found that Blue Wave should take nothing by its suit against Galeno’s. The trial

court also found that the broker’s lien filed by Blue Wave in the deed records was null and

void and that the lien filed by Blue Wave against real property in which Galeno’s held an

interest was in violation of section 12.002 of the civil practice and remedies code. See

TEX. CIV. PRAC. & REM. CODE ANN. § 12.002.            It awarded $10,000.00 in statutory

damages and $4,525.00 in attorney’s fees against Blue Wave and in favor of Galeno’s.

The judgment set out that “[a]ll other relief not expressly granted is denied.”

       On March 30, 2012, Blue Wave filed a motion for reconsideration, which we

construe as a motion for new trial. In support of its motion, Blue Wave attached, among

other things, M.H. 7’s responses to Blue Wave’s request for admissions. Blue Wave

claimed that M.H. 7 filed its responses after the summary judgment hearing. It also

asserted that this summary judgment evidence was sufficient to raise a fact issue as to

Galeno’s intentional interference with the contract between Blue Wave and M.H. 7,

                                             6
specifically whether Galeno’s intentionally interfered in an existing contract between Blue

Wave and MH7 by entering into the Commercial Contract Financing Addendum on July

29, 2007. Blue Wave’s motion for reconsideration requested that the trial court vacate

the summary judgment and grant it a new trial. The trial court did not grant Blue Wave’s

motion for reconsideration, and it was overruled by operation of law. See TEX. R. CIV. P.

329b(c).

        Blue Wave also requested the trial court’s leave to file Rios’s amended affidavit,

which added the following in support of its tortious interference claim: (1) “The sellers

[Galeno’s] agreed to take a second lien position and allow for seller financing on a portion

of the sales price as evidenced by their signatures (both are by Dr. Jose Villalobos) on the

Commercial Contract Financing Addendum that is incorporated into Plaintiff’s Second

Amended Petition”; and (2) “I did not know at the time, but I spoke to Eduardo Huerta,

member of MH 7. [sic] at one of MH7’s bankruptcy hearings and was told that he was

forced to take the 100% seller financed deal and that he acted out of duress in closing the

100% seller financed transaction.” No ruling on Blue Wave’s motion for leave to file

Rios’s amended affidavit appears in the record.

        The trial court disposed of all remaining claims and parties either by an agreed

judgment on April 16, 2012 or by a non-suit on May 16, 2012. Blue Wave filed its notice

of appeal.3

                                    II. APPELLATE JURISDICTION

        As a preliminary matter, we address Galeno’s argument that Blue Wave did not


        3
          Because the trial court’s judgment denied all relief not expressly granted, it denied Blue Wave’s
breach of contract claim. Blue Wave does not challenge that ruling on appeal.
                                                    7
properly invoke this Court’s jurisdiction because it failed to timely file its notice of appeal.

       A motion for new trial "shall be filed prior to or within thirty days after the judgment

or other order complained of is signed."         TEX. R. CIV. P. 329b(a).       This "prior to"

language is supplemented and clarified by rule 306c, which provides that "[n]o motion for

new trial . . . shall be held ineffective because prematurely filed,” and a motion for new trial

filed before judgment "shall be deemed to have been filed on the date of but subsequent

to the time of signing of the judgment the motion assails . . . ." Id. at R. 306c. An

appellate court may treat actions taken before an appealable order is signed as relating to

an appeal of that order and give them effect as if they had been taken after the order was

signed. TEX. R. APP. P. 27.2. So a premature motion for new trial will extend the

appellate timetable. S. Tex. GMAC Real Estate v. Cohyco, Inc., 124 S.W.3d 321, 325

(Tex. App.—Corpus Christi 2003, no pet.); see Nuchia v. Woodruff, 956 S.W.2d 612,

614–15 (Tex. App.—Houston [14th Dist.] 1997, pet. denied) (op. on reh’g) (holding that a

motion for new trial extended the appellate timetable even though directed at an

interlocutory judgment that did not become final until the court dismissed the remaining

counterclaims five months later).

       Galeno’s contends that Blue Wave’s motion for new trial filed on March 30, 2012,

assailed neither the April 16, 2012 agreed judgment nor the May 16, 2012 non-suit, and

so it did not trigger the extended ninety-day deadline to file its notice of appeal.

According to Galeno’s, Blue Wave was required to file a notice of appeal by June 15,

2012, within thirty days of the May 16, 2012 non-suit that disposed of all parties and all

issues. See TEX. R. APP. P. 26.1. Galeno’s argues that because Blue Wave untimely

filed its notice of appeal on June 20, 2012, it failed to properly invoke this Court’s
                                         8
jurisdiction, and this appeal should be dismissed. See id.; see also id. at R. 25.1(b).

We disagree.

       Blue Wave filed its motion for reconsideration or motion for new trial on March 30,

2012, specifically challenging the March 20 summary judgment order. It filed the motion

after the March 29, 2012 judgment, which again granted Galeno’s motion for partial

summary judgment and, this time, denied all other relief not expressly granted. It is

apparent from the record that the trial court did not sever the claims filed by Blue Wave

and Galeno’s against each other from the remaining claims and other parties, so the

March judgments were interlocutory, and the motion was premature.           Blue Wave’s

motion for new trial also applied to the April 16, 2012 agreed judgment, which disposed of

Blue Wave’s claims against M.H. 7, and the May 16, 2012 order, which non-suited

Galeno’s cross-claims against M.H. 7 and which also made the previous March 20 and 29

interlocutory summary judgments final.

       We conclude that Blue Wave’s challenge to the trial court’s summary judgment,

though raised in its prematurely filed March 30, 2012 motion for new trial, certainly

assailed the judgment that was eventually signed on May 16, 2012; a judgment that finally

resolved all claims filed by Blue Wave and Galeno’s against each other. See TEX. R. CIV.

P. 306c. Blue Wave’s motion for new trial triggered the extended ninety-day deadline to

file its notice of appeal even though directed at an interlocutory judgment that did not

become final until the trial court disposed of the remaining claims and parties months

later. See S. Tex. GMAC Real Estate, 124 S.W.3d at 325; Nuchia, 956 S.W.2d at

614–15; see also TEX. R. APP. P. 26.1. So we conclude that Blue Wave filed its notice of

appeal timely on June 20, 2012, invoking this Court’s jurisdiction.
                                           9
                                 III. SUMMARY JUDGMENT

       By its first issue, Blue Wave challenges the trial court’s granting of Galeno’s motion

for summary judgment.        Blue Wave contends that:          (1) the trial court erred in

disregarding Jerry Rios’s affidavit and refusing to provide Blue Wave with an opportunity

to argue for or amend that affidavit; (2) if the trial court overruled Galeno’s objections to

Rios’s affidavit, it erred in granting Galeno’s summary judgment because the evidence

raised a genuine issue of material fact related to Galeno’s assertions that (a) there was no

evidence of willful and intentional tortious interference and (b) the summary judgment

evidence conclusively established that Blue Wave filed a fraudulent lien against the

forty-one acre tract; and (3) alternately, if the trial court sustained Galeno’s objections to

portions of Blue Wave’s response affidavit, it erred in granting Galeno’s summary

judgment on its fraudulent lien counterclaim because the remaining portions of the

affidavit created a fact issue and, therefore, Galeno’s did not conclusively establish that

Blue Wave filed a fraudulent lien against the forty-one acre tract. In sum, through these

contentions and its supporting appellate argument and authority, Blue Wave addresses

why the trial court erred in granting a no-evidence summary judgment on its tortious

interference claim and a traditional summary judgment on Galeno’s fraudulent lien claim.

A. Standard of Review

       We review de novo the trial court's granting of a summary judgment. Valence Op.

Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A no-evidence summary-judgment

motion should be granted if there is no evidence of at least one essential element of the

plaintiff's claim. See Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per curiam).

“To obtain a traditional summary judgment, a defendant must either negate at least one
                                         10
element of the plaintiff's theory of recovery or plead and conclusively establish each

element of an affirmative defense.” Affordable Motor Co. v. LNA, LLC, 351 S.W.3d 515,

519 (Tex. App.—Dallas 2011, pet. denied) (citing TEX. R. CIV. P. 166a(c); Centeq Realty,

Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995)).          When a defendant moves for

summary judgment on its counterclaim, the defendant’s burden is the same as for a

plaintiff moving for summary judgment on its cause of action; “it has the burden to

conclusively establish all elements of its claim as a matter of law.” Id. (citing TEX. R. CIV.

P. 166a(c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986) (per curiam)); see Tex.

Commerce Bank v. Correa, 28 S.W.3d 723, 726 (Tex. App.—Corpus Christi 2000, pet.

denied). “A matter is conclusively established if ordinary minds cannot differ as to the

conclusion to be drawn from the evidence.” Affordable Motor Co., 351 S.W.3d at 519

(citing Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446

(Tex. 1982)). Once the movant produces sufficient evidence to establish the right to

summary judgment, the non-movant must present evidence sufficient to raise a fact

issue. Centeq Realty, Inc., 899 S.W.2d at 197. When deciding whether a disputed,

material fact issue precludes summary judgment, we take as true evidence favorable to

the non-movant, indulge every reasonable inference in favor of the non-movant, and

resolve any doubts favor of the non-movant. City of Keller v. Wilson, 168 S.W.3d 802,

825 & 827 (Tex. 2005); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex.

1985).

         When an order granting summary judgment does not specify the grounds on which

summary judgment was granted, we may uphold the summary judgment on any ground

presented in the motion. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157
                                        11
(Tex. 2004). If an appellant does not challenge each possible ground on which summary

judgment could have been granted, we must uphold the summary judgment on the

unchallenged ground. Bever Props., L.L.C. v. Jerry Huffman Custom Builder, L.L.C.,

355 S.W.3d 878, 888 (Tex. App.—Dallas 2011, no pet.); Jarvis v. Rocanville Corp., 298

S.W.3d 305, 313 (Tex. App.—Dallas 2009, pet. denied); see Malooly Bros., Inc. v. Napier,

461 S.W.2d 119, 121 (Tex. 1970).

B. Blue Wave’s Tortious Interference With an Existing Contract Claim

       In its no-evidence motion, Galeno’s argued that Blue Wave brought forth no

evidence of Galeno’s willful and intentional tortious interference with any existing

contract. However, in its traditional motion for summary judgment, Galeno’s argued that

it was entitled to summary judgment on this claim because "[t]he summary judgment

evidence conclusively demonstrates that . . . Galeno[‘s]/[the Hospital] could not have

tortiously interfere[d] with any contract between Blue Wave and MH7 because it had a

financially superior right to protect its own legitimate business interests in modifying its

sales agreement with MH7/Huerta.” Galeno’s developed, with supporting authority and

argument, its argument that it had an absolute privilege to modify its contract with M.H. 7.

It argued that the summary judgment evidence conclusively established that Galeno’s,

       had a pre-existing sales contract with MH7 which had been in place for six
       months prior to Blue Wave entering into any agreement with MH7.
       [Galeno’s] had every legal right to modify its agreement with MH7/Huerta
       from a total cash price at closing, to partial financing and then to 100%
       financing as it ultimately did in this instance.

In support of its privilege affirmative defense argument, Galeno’s attached as exhibits:

(1) the October 12, 2006 real estate sales agreement between the buyer Huerta, for M.H.

7, and the seller Galeno’s; (2) the July 20, 2007 commercial contract addendum
                                        12
agreement between the seller Galeno’s and the buyer Huerta that provided Galeno’s

would finance the purchase price of the property; and (3) the affidavit of Dagoberto

Martinez, M.D. that stated the following:

       On July 2007 in discussions regarding the pending sale of 41 acres from
       [Galeno’s] to Eduardo Huerta, [Galeno’s] rejected a proposal to sell the
       property and take a second lien[,] which would not have been in the best
       interests of the company. Subsequently, an agreement was reached to
       sell the property to Huerta and MH7 and finance all of the purchase price.

       The trial court’s judgment did not identify the ground upon which it was based.

Instead, it referenced Galeno’s no evidence and traditional motions and stated that it was

“of the opinion that the motion be granted and that judgment be entered in favor of

[Galeno’s] . . . .” So the trial court’s general grant of summary judgment could have been

based on Galeno’s affirmative defense of privilege presented in its traditional motion for

summary judgment, and we could uphold it on that basis. See Joe, 145 S.W.3d at 157.

       However, on appeal, Blue Wave does not provide any argument negating

Galeno’s affirmative defense of privilege as a ground for summary judgment. Blue Wave

argues only that it brought “forth more than a scintilla of probative evidence to raise a

genuine issue of material fact related to [Galeno’s] assertion that . . . there was no

evidence of willful and intentional tortious interference.” This is a challenge to grounds

raised in Galeno’s no-evidence motion. This is not a challenge to grounds raised by

Galeno’s in its traditional motion—specifically, Galeno’s assertion that it established a

privilege. So because Blue Wave has not challenged each of the possible grounds for

summary judgment on appeal, we must affirm the summary judgment in favor of Galeno’s

on Blue Wave’s tortious interference with an existing claim. See Bever Props., 355

S.W.3d at 888; Jarvis, 298 S.W.3d at 313. We overrule Blue Wave’s first issue to the
                                        13
extent it challenges the trial court’s summary judgment granted in favor of Galeno’s on its

tortious interference of a contract claim.

C.     Galeno’s Fraudulent Lien Counterclaim

       By its first issue, Blue Wave also contends that the trial court should not have

granted Galeno’s traditional motion for summary judgment against Blue Wave on its

fraudulent   lien   counterclaim     because     the   summary      judgment     evidence     was

uncontroverted and set forth facts that were not challenged by Galeno’s. Blue Wave

specifically refers this court to Rios’s statement in his affidavit that Blue Wave filed the lien

during a time when Galeno’s was not the owner of the property. Blue Wave argues that,

based on this evidence, Galeno’s had no standing to sue for a fraudulent lien. Yet

section 12.003(a)(8) of the Texas Civil Practices and Remedies Code provides that a

person who owns an interest in the real property may bring an action to recover damages

in the case of a fraudulent lien against the real property. TEX. CIV. PRAC. & REM. CODE

ANN. § 12.003(a)(8) (West Supp. 2011). It is undisputed that at the time the purported

fraudulent lien was filed, Galeno’s held an interest in the property at issue in this case in

the form of a deed of trust. So we conclude that Galeno’s, as holder of a deed of trust on

the property, had standing to sue Blue Wave for a fraudulently filed lien. See id.

       Nevertheless, in a traditional motion for summary judgment, such as the one

Galeno’s filed on its counterclaim, the movant has the burden to conclusively establish all

elements of its fraudulent lien claim as a matter of law. See Correa, 28 S.W.3d at 726.

In order to establish its claim for the filing of a fraudulent lien affidavit against real property

in the deed records of Cameron County, Texas, Galeno’s had to conclusively prove as a

matter of law that Blue Wave (1) made, presented, or used a document with knowledge
                                         14
that it was a fraudulent claim against real property, (2) intended the document be given

legal effect, and (3) intended to cause financial injury. See TEX. CIV. PRAC. & REM. CODE

ANN. § 12.002(a); see also Brewer v. Green Lizard Holdings, L.L.C., No.

02-12-00421-CV, 2013 Tex. App. LEXIS 8919, at *9 (Tex. App.—Fort Worth July 18,

2013, no pet.) (mem. op.).

       On appeal, Galeno’s asserts that it is undisputed that neither Blue Wave nor its

owner, Jerry Rios, was a licensed broker and, therefore, not entitled to file a real estate

broker’s lien for Blue Wave. See TEX. OCC. CODE ANN. § 1101.002(1) (West Supp. 2011)

(defining “broker”); TEX. PROP. CODE ANN. § 62.021 (West 2007) (identifying persons

entitled to a lien). Galeno’s also claims that “Rio’s [sic] deposition testimony[, excerpts of

which Galeno’s filed in support of its traditional motion,] established that although [Rios]

was aware that he had no right to file such a lien, he took no steps to remove that

document that created a cloud on [Galeno’s] title to the property as a lien holder in 2007

and 2008, or after Galeno’s foreclosed in 2009.”

       In the excerpts of Rios’s deposition that Galeno’s attached as support for its

motion, Rios conceded that he was not a broker. However, the excerpts also included

testimony that Rios “had an attorney” file the broker’s lien. Rios explained that his

attorney advised him that he “believed [Blue Wave] could file a broker’s lien against this

property” and that Blue Wave “needed to file this broker’s lien” because M.H. 7 had

recently filed bankruptcy. Through his deposition testimony, Rios explained that he had

done no investigation to determine whether he was entitled to file the lien on the property

because he “figured it was a moot point since it had been knocked out by the bankruptcy

court”; he believed that because the bankruptcy court did not allow Blue Wave’s claim, it
                                          15
canceled everything—“the bankruptcy court actually wiped it out.”             Taking as true

evidence favorable to Blue Wave, indulging every reasonable inference in its favor, and

resolving any doubts in favor of Blue Wave, see City of Keller, 168 S.W.3d at 825 & 827;

Nixon, 690 S.W.2d at 548–49, we cannot conclude that Galeno’s produced sufficient

evidence to establish a right to its fraudulent lien claim, specifically to establish the first

two elements of its fraudulent lien claim. See Centeq Realty, Inc., 899 S.W.2d at 197;

see also TEX. CIV. PRAC. & REM. CODE ANN. § 12.002(a); Brewer, 2013 Tex. App. LEXIS

8919, at *9.

       Moreover, Blue Wave also filed Rios’s affidavit in support of its response to

Galeno’s motion for summary judgment. His affidavit provided, in relevant part, the

following:

              In regards to the fraudulent lien claim set forth as a counterclaim by
       defendants Galenos and [the Hospital], I filed the notice of lien through my
       attorney at the time, against defendant MH7 while MH7 owned the subject
       property. I was not licensed as a lawyer until May 2, 2008. It is my belief
       that the broker’s lien filed was terminated when Galenos and [the Hospital]
       foreclosed on MH7, wiping out all inferior liens.

Based on this evidence, even were we to conclude that Galeno’s produced sufficient

evidence to establish its right to summary judgment , we would further conclude that Blue

Wave raised a fact issue, see Centeq Realty, Inc., 899 S.W.2d at 197, regarding whether

it filed the broker’s lien affidavit with knowledge that it was a fraudulent claim against real

property. See TEX. CIV. PRAC. & REM. CODE ANN. § 12.002(a); see also Brewer, 2013

Tex. App. LEXIS 8919, at *9.

       Finally, as to the third element of its claim, Galeno’s also argues that it is

“undisputed that the filing of that lien was intended to cause financial injury or impairment

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to the property now owned by Galeno’s.” See TEX. CIV. PRAC. & REM. CODE ANN. §

12.002(a); see also Brewer, 2013 Tex. App. LEXIS 8919, at *9. The record citations

provided by Galeno’s offer no support for this argument.          Instead, the referenced

testimony sets out that Rios agreed that if the lien was still pending it creates a cloud on

the title and that he “would be happy to release it because it was definitely not against

Galeno’s. It was against M.H. 7.” And the remainder of the testimony on the referenced

pages relates only to Blue Wave’s tortious interference with a contract claim against

Galeno’s and not to Galeno’s fraudulent lien counterclaim against Blue Wave. We

cannot conclude that through this testimony, Galeno’s conclusively established that Blue

Wave intended to cause financial injury. See TEX. CIV. PRAC. & REM. CODE ANN. §

12.002(a); see also Brewer, 2013 Tex. App. LEXIS 8919, at *9. Ordinary minds could

differ as to the conclusion to be drawn from the evidence on this injury element.

Affordable Motor Co., 351 S.W.3d at 519 (citing Triton Oil & Gas Corp., 644 S.W.2d at

446).

        Based on our de novo review of the trial court’s summary judgment, we conclude

that Galeno’s did not establish its right to summary judgment on its fraudulent lien claim.

We sustain Blue Wave’s first issue to the extent it challenges the trial court’s summary

judgment granted in favor of Galeno’s on Galeno’s fraudulent lien claim.

                        IV. MOTION FOR RECONSIDERATION AND
                  REQUEST FOR LEAVE TO FILE RIOS’S AMENDED AFFIDAVIT

        By its second issue, Blue Wave contends that the trial court erred in overruling its

motion for reconsideration and request for leave to file Rios’s amended affidavit. It

asserts that the newly discovered evidence in the form of M.H. 7’s responses to requests

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for admissions helped further establish the elements of its claim against Galeno’s for

tortious interference with an existing contract. Because we have concluded that the trial

court’s summary judgment on this claim could have been based on Galeno’s asserted

defense of privilege and Blue Wave did not address that basis on appeal, this issue

regarding evidentiary support for the elements of this claim is not dispositive, and we do

not need to address it. See TEX. R. APP. P. 47.1.

                                    V. CONCLUSION

       We affirm the trial court’s judgment in part to the extent it grants summary

judgment in favor of Galeno’s on Blue Wave’s tortious interference with an existing

contract claim, and we reverse the judgment in part to the extent it grants summary

judgment in favor of Galeno’s on its fraudulent lien claim and remand for proceedings

consistent with this opinion.

                                                              NELDA V. RODRIGUEZ
                                                              Justice

Delivered and filed the 5th
day of September, 2013.




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