In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-15-00244-CV
IN RE MAKE READY CONTRACTORS, INC., RELATOR
ORIGINAL PROCEEDING
August 28, 2015
MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Relator Make Ready Contractors, Inc., filed this original proceeding seeking a
writ of mandamus compelling respondent, the Honorable Dan Schaap, judge of the 47th
District Court of Potter County, to enter an order removing specified mechanic’s liens.
At our request, a real party in interest, ASAP Air of Amarillo, LLC, filed a response to
Make Ready’s petition. Finding Make Ready has an adequate remedy by appeal, we
will deny the petition. We do not consider, and express no opinion, whether the trial
court clearly abused its discretion by reaching the challenged determination. Make Ready and ASAP are in litigation arising from work performed by ASAP.
ASAP filed lien affidavits asserting liens on several properties.1 As permitted by Texas
Property Code section 53.160, Make Ready filed a motion seeking to remove ASAP’s
liens, through the summary procedure created by that section. TEX. PROP. CODE ANN. §
53.160 (West 2014). It is undisputed that ASAP failed to timely file its lien affidavits
according to the requirement for a statutory mechanic’s lien under Chapter 53 of the
Property Code. ASAP maintains, however, that under section 53.026, concerning sham
contracts, it was properly positioned as the claimant of a self-executing lien under article
16, § 37 of the Texas Constitution.2 Make Ready’s motion was submitted to the trial
court on stipulated facts, and was denied.
Make Ready now seeks review of the order through this original proceeding. In
three issues it argues mandamus is appropriate and the writ should issue because it
lacks an adequate remedy by appeal; section 53.026 does not elevate a subcontractor
1 The mandamus record contains a copy of Make Ready’s first amended original petition. It names ASAP and Michael Weatherford as defendants and seeks declaratory relief, as well as actual damages, statutory damages, punitive damages, and attorney’s fees. An allegation states the monetary relief claimed exceeds $200,000 but is less than $1,000,000. Also in the record is the first amended answer and counterclaim of ASAP and Weatherford. Through the counterclaim, ASAP alleges Make Ready breached the parties’ contract. It seeks damages and attorney’s fees. ASAP has also filed a third party action against thirteen entity defendants seeking an order foreclosing liens on properties where ASAP allegedly provided work. According to the pleading, Make Ready was agent for the third-party defendants and obligated for payment of sums due for work. 2 See TEX. CONST. art. XVI, § 37. Between the original contractor and the owner, a constitutional mechanic’s lien is self-executing. Contemporary Contrs., Inc. v. Centerpoint Apt., Ltd., No. 05-13-00614-CV, 2014 Tex. App. LEXIS 7251, at *15 (Tex. App.—Dallas July 3, 2014, no pet.) (mem. op.). The lien exists even if the lienholder fails to comply with the legislative requirements for a statutory mechanic’s lien. Terraces at Cedar Hill, LLC v. Gartex Masonry & Supply, Inc., No. 05-10-00226-CV, 2011 Tex. App. LEXIS 2114, at *6 (Tex. App.—Dallas Mar. 24, 2011, pet denied) (mem. op.).
2 to constitutional lien-holder status; and the trial court abused its discretion by not
removing the challenged liens.
A relator seeking relief by mandamus has the burden of establishing the trial
court clearly abused its discretion and it has no adequate remedy by appeal. In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004). “An appellate remedy
is ‘adequate’ when any benefits to mandamus review are outweighed by the
detriments.” Id. at 136.
Section 53.160 provides a summary procedure permitting a trial court to remove
a “claim or lien” if the motion demonstrates one of the grounds for invalidity listed in the
section. The section requires the court to determine the motion “promptly,” and to issue
an order either denying relief or removing the claimed lien. The statute expressly
forbids an interlocutory appeal of the court’s order. TEX. PROP. CODE ANN. § 53.160(e)
(West 2014) (“A party to the proceeding may not file an interlocutory appeal from the
court’s order”).
The Texas Supreme Court denied mandamus in In re Watkins, 279 S.W.3d 633
(Tex. 2009) (orig. proceeding), a health care liability expert report case. Statute did not
permit interlocutory appeal of orders granting an extension of time to correct deficient
reports. The court said that granting mandamus to review a trial court action as to which
the Legislature had prohibited interlocutory appeal “would subvert the Legislature’s limit
on such review.” Id. at 634. We find the court’s reasoning applicable here. In our view,
the Legislature has weighed the benefits and detriments of immediate review of trial
court rulings on motions for summary removal of liens under section 153.160, and its
3 preclusion of interlocutory appeal should not be subverted. Cf. In re Budget Car Wash,
No. 14-10-00518-CV, 2010 Tex. App. LEXIS 4963, at *2-3 (Tex. App.—Houston [14th
Dist.] June 1, 2010, orig. proceeding) (per curiam, mem. op.) (finding relator had
adequate remedy by appeal from order requiring payment of certain attorney’s fees as
discovery abuse sanction because TEX. R. CIV. P. 215.1(d) provides “[s]uch an order
shall be subject to review on appeal from the final judgment”).
Make Ready points out Texas cases permit mandamus to correct a trial court’s
erroneous refusal to cancel a lis pendens. See, e.g., Flores v. Haberman, 915 S.W.2d
477 (Tex. 1995) (orig. proceeding) (per curiam) (mandamus directing trial court to
cancel lis pendens and vacate prior order refusing cancellation). But the rationale
expressed in In re Watkins, 279 S.W.3d at 634, does not apply to the procedures for
cancellation of lis pendens notices, which do not contain the prohibition of interlocutory
appeal that the Legislature chose to include in section 53.160. See TEX. PROP. CODE
ANN. § 12.071 (“motion to expunge lis pendens), § 12.008 (procedure for canceling lis
pendens during a proceeding) (West 2014).
Exceptional circumstances may make remedy by appeal inadequate even of trial
court actions not normally reviewable by mandamus. See In re Prudential, 148 S.W.3d
at 136. The determination whether an appeal remedy is adequate “is not an abstract or
formulaic one; it is practical and prudential. It resists categorization . . . . [R]igid rules
are necessarily inconsistent with the flexibility that is the remedy’s principal virtue.” Id.
In other words, whether an appellate remedy is adequate, thus precluding mandamus
review, “depends heavily on the circumstances presented and is better guided by
general principles than by simple rules.” Id. at 137; In re Masonite Corp., 997 S.W. 2d
4 194, 197 (Tex. 1999) (orig. proceeding) (“But on rare occasions an appellate remedy,
generally adequate, may become inadequate because the circumstances are
exceptional”); but see id. at 202 (Baker, J., dissenting) (discussing public policy
considerations and arguing majority opinion permits the interlocutory review otherwise
prohibited by statute and rule).
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-15-00244-CV
IN RE MAKE READY CONTRACTORS, INC., RELATOR
ORIGINAL PROCEEDING
August 28, 2015
MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Relator Make Ready Contractors, Inc., filed this original proceeding seeking a
writ of mandamus compelling respondent, the Honorable Dan Schaap, judge of the 47th
District Court of Potter County, to enter an order removing specified mechanic’s liens.
At our request, a real party in interest, ASAP Air of Amarillo, LLC, filed a response to
Make Ready’s petition. Finding Make Ready has an adequate remedy by appeal, we
will deny the petition. We do not consider, and express no opinion, whether the trial
court clearly abused its discretion by reaching the challenged determination. Make Ready and ASAP are in litigation arising from work performed by ASAP.
ASAP filed lien affidavits asserting liens on several properties.1 As permitted by Texas
Property Code section 53.160, Make Ready filed a motion seeking to remove ASAP’s
liens, through the summary procedure created by that section. TEX. PROP. CODE ANN. §
53.160 (West 2014). It is undisputed that ASAP failed to timely file its lien affidavits
according to the requirement for a statutory mechanic’s lien under Chapter 53 of the
Property Code. ASAP maintains, however, that under section 53.026, concerning sham
contracts, it was properly positioned as the claimant of a self-executing lien under article
16, § 37 of the Texas Constitution.2 Make Ready’s motion was submitted to the trial
court on stipulated facts, and was denied.
Make Ready now seeks review of the order through this original proceeding. In
three issues it argues mandamus is appropriate and the writ should issue because it
lacks an adequate remedy by appeal; section 53.026 does not elevate a subcontractor
1 The mandamus record contains a copy of Make Ready’s first amended original petition. It names ASAP and Michael Weatherford as defendants and seeks declaratory relief, as well as actual damages, statutory damages, punitive damages, and attorney’s fees. An allegation states the monetary relief claimed exceeds $200,000 but is less than $1,000,000. Also in the record is the first amended answer and counterclaim of ASAP and Weatherford. Through the counterclaim, ASAP alleges Make Ready breached the parties’ contract. It seeks damages and attorney’s fees. ASAP has also filed a third party action against thirteen entity defendants seeking an order foreclosing liens on properties where ASAP allegedly provided work. According to the pleading, Make Ready was agent for the third-party defendants and obligated for payment of sums due for work. 2 See TEX. CONST. art. XVI, § 37. Between the original contractor and the owner, a constitutional mechanic’s lien is self-executing. Contemporary Contrs., Inc. v. Centerpoint Apt., Ltd., No. 05-13-00614-CV, 2014 Tex. App. LEXIS 7251, at *15 (Tex. App.—Dallas July 3, 2014, no pet.) (mem. op.). The lien exists even if the lienholder fails to comply with the legislative requirements for a statutory mechanic’s lien. Terraces at Cedar Hill, LLC v. Gartex Masonry & Supply, Inc., No. 05-10-00226-CV, 2011 Tex. App. LEXIS 2114, at *6 (Tex. App.—Dallas Mar. 24, 2011, pet denied) (mem. op.).
2 to constitutional lien-holder status; and the trial court abused its discretion by not
removing the challenged liens.
A relator seeking relief by mandamus has the burden of establishing the trial
court clearly abused its discretion and it has no adequate remedy by appeal. In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004). “An appellate remedy
is ‘adequate’ when any benefits to mandamus review are outweighed by the
detriments.” Id. at 136.
Section 53.160 provides a summary procedure permitting a trial court to remove
a “claim or lien” if the motion demonstrates one of the grounds for invalidity listed in the
section. The section requires the court to determine the motion “promptly,” and to issue
an order either denying relief or removing the claimed lien. The statute expressly
forbids an interlocutory appeal of the court’s order. TEX. PROP. CODE ANN. § 53.160(e)
(West 2014) (“A party to the proceeding may not file an interlocutory appeal from the
court’s order”).
The Texas Supreme Court denied mandamus in In re Watkins, 279 S.W.3d 633
(Tex. 2009) (orig. proceeding), a health care liability expert report case. Statute did not
permit interlocutory appeal of orders granting an extension of time to correct deficient
reports. The court said that granting mandamus to review a trial court action as to which
the Legislature had prohibited interlocutory appeal “would subvert the Legislature’s limit
on such review.” Id. at 634. We find the court’s reasoning applicable here. In our view,
the Legislature has weighed the benefits and detriments of immediate review of trial
court rulings on motions for summary removal of liens under section 153.160, and its
3 preclusion of interlocutory appeal should not be subverted. Cf. In re Budget Car Wash,
No. 14-10-00518-CV, 2010 Tex. App. LEXIS 4963, at *2-3 (Tex. App.—Houston [14th
Dist.] June 1, 2010, orig. proceeding) (per curiam, mem. op.) (finding relator had
adequate remedy by appeal from order requiring payment of certain attorney’s fees as
discovery abuse sanction because TEX. R. CIV. P. 215.1(d) provides “[s]uch an order
shall be subject to review on appeal from the final judgment”).
Make Ready points out Texas cases permit mandamus to correct a trial court’s
erroneous refusal to cancel a lis pendens. See, e.g., Flores v. Haberman, 915 S.W.2d
477 (Tex. 1995) (orig. proceeding) (per curiam) (mandamus directing trial court to
cancel lis pendens and vacate prior order refusing cancellation). But the rationale
expressed in In re Watkins, 279 S.W.3d at 634, does not apply to the procedures for
cancellation of lis pendens notices, which do not contain the prohibition of interlocutory
appeal that the Legislature chose to include in section 53.160. See TEX. PROP. CODE
ANN. § 12.071 (“motion to expunge lis pendens), § 12.008 (procedure for canceling lis
pendens during a proceeding) (West 2014).
Exceptional circumstances may make remedy by appeal inadequate even of trial
court actions not normally reviewable by mandamus. See In re Prudential, 148 S.W.3d
at 136. The determination whether an appeal remedy is adequate “is not an abstract or
formulaic one; it is practical and prudential. It resists categorization . . . . [R]igid rules
are necessarily inconsistent with the flexibility that is the remedy’s principal virtue.” Id.
In other words, whether an appellate remedy is adequate, thus precluding mandamus
review, “depends heavily on the circumstances presented and is better guided by
general principles than by simple rules.” Id. at 137; In re Masonite Corp., 997 S.W. 2d
4 194, 197 (Tex. 1999) (orig. proceeding) (“But on rare occasions an appellate remedy,
generally adequate, may become inadequate because the circumstances are
exceptional”); but see id. at 202 (Baker, J., dissenting) (discussing public policy
considerations and arguing majority opinion permits the interlocutory review otherwise
prohibited by statute and rule).
The stipulated facts presented to the trial court relate to the issue whether
section 53.026 has application to ASAP’s asserted liens. Neither the stipulated facts
nor the remaining mandamus record depict some undisputed, exceptional circumstance
showing Make Ready lacks an adequate remedy by appeal. Make Ready does not
contend, for instance, that leaving the disputed issue for ordinary appeal means a trial
amounting to a nullity, its loss of a valuable contractual right, a waste of the parties’ time
and resources, or a needless burden on judicial resources or the jury system. See In re
McAllen Med. Ctr., Inc., 275 S.W.3d 458, 465 (Tex. 2008) (orig. proceeding)
(concerning the adequacy of an appellate remedy, relief by mandamus is most often
applied in cases “in which the very act of proceeding to trial—regardless of the
outcome—would defeat the substantive right involved”); In re Prudential, 148 S.W.3d at
136-37 (discussing cases).
We believe the Legislature’s prohibition of interlocutory appeals in summary lien-
removal proceedings means a party may not otherwise slip in the back door and obtain
immediate review by mandamus. If, nevertheless, there might be an order arising from
a summary lien-removal proceeding of such exceptional substance that review by
mandamus is appropriate, the record before us does not establish this is such a case.
5 Make Ready’s petition for writ of mandamus is denied.
James T. Campbell Justice