### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00809- CV
Charles R. Nic kle and Debra Nic kle, Appellan ts

v. F ernando Diaz, Appellee

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 26TH JUDICI AL DISTRICT NO. 10- 831- C26, H ONO RAB LE B ILLY RAY STUB B LEF IELD, JUDGE P RESIDING &

NO. 03-10-00810- CV

Charles R. Nic kle and Debra Nic kle, Appellan ts

v. Jose Her nand ez, A ppellee

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 26TH JUDICI AL DISTRICT NO. 10- 832- C26, H ONO RAB LE B ILLY RAY STUB B LEF IELD, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellants Charles R. Nickle an d De b ra Nickle, repr esenting themselves pro se, filed two proce eding s asking the trial court to re view docume nts filed by appellee s Fe rnando Diazand J ose Her nandez that purported to cre ate mecha nic’s l i en s on the Nickles’ proper ty
. I n their 1 Motion For J udicial Review, the Nickles asser ted that the documents filed by Diaz a nd Her nandez did not cre ate valid liens beca use they did not comply with the proper ty code. See Tex. Prop. Code Ann. § 53.054(a) (West 2007) (listing require d contents of aff idavit claiming mecha

nic’s lien). Diaz and Her nandez responde d, claiming that they had n o t b ee n p aid for all of the work they had perf ormed for the Nickles. They asser ted that their liens wer e not f raudule nt a

nd that the Nickles’ complaint should have been “ra ised in a Summary Motion to Remove an I nvalid or Unenf orce able L ien, pursuant to section 53.160 of the Texas Property Code.” See id. § 53.160(a) (West 2007) (“In
a s u i t b rought to fore close a lien or to decla re a claim or lien invalid or unenfor cea ble, a party objecting to the validity or enfor cea bility of the claim or lien may file a m otion to remove the claim or lien.”). The trial court denied the Nickles’ motions and signe d orde rs i n ea ch ca u se entitled, “Judi cial Finding of Fa ct and Conclusion of L aw Reg arding a Document or I ns t ru m ent Purporting to Create a L ien or Claim.” The orde rs s t at ed that the liens wer e asser ted ag ainst
rea l property

and provide d for by

statute or constitution, created by implied or express ag ree ment,
or jud i ci al l y i m p o s ed. See Tex. Gov’t Code Ann. § 51.901(c) (2) (West Supp. 2010). The court stated that it was not ruling on the validity of or any defe cts in the liens. The Nickles appea led from the trial cour

t’s finding s. The Nickles arg ue that the purported liens are fra udulent and that the trial court
s hould have signe d order s invalidating them. They asser t that the liens are fra

udulent b ec au s e neither aff

idavit includes the phy sical, mailing, or business addre ss of the claimant. I nstead, the liens
Trial co u rt cause number 10-831-C26 addre ssed Diaz’s claim, and cause 10-832-C26 1 addre ssed Her

nandez’s cla im. 2provide the business addre ss for Diaz’s and Her nandez’s attorney
. See Tex. Prop. Code Ann. 2 § 53.054(a) (7). The Nickles also contend that the aff idavits contain misrepre sentations of materia l fac t and that the notary , who was als o Di az ’s an d Hernandez’s attorney , was awa re of the false statement. Aside from their arg ument about the use of the attorney ’s addre ss instead of Diaz’s and Her nandez’s per sonal addre sses, howeve r, the Nickles do not e x plain what misrepr esenta tions the aff idavits include.

A person is en t i t l ed to a lien if he provides labor or materia ls to another ’s
rea l proper

ty under or pursuant to a contra ct with the owner or the owner ’s ag ent, trustee, rec eiver , contra ctor, or subcontrac tor. Id

. § 53.021(a) (West 2007). To perf ect a lien, a claimant must timely file an aff idavit with the county cler k. Id. § 53.052 (West 2007). I n a case wher e the claimant seeks pay me n t f o r w o r k h e p e r f o r me d , his aff

idavit must “conta in substantially ” the following information:

a sworn statement of the amount of the claim; the owner ’s name and last known addre ss; a g ener al statement of the work that was perf ormed, including, for a subcontrac tor, a statement of eac h month in whi ch t h e wo rk was perf ormed; the name and last known addre ss of the person who hired the claimant; the name and last known addre ss of the orig inal contra ctor; a descr iption of the proper ty ; the claimant’s name and mailing and phy sical addre sses; and a statement of the date on which notice of the c laim was sent to the owne r. Id. § 53.054(a)

.

A person ag ainst whose proper ty a lien is filed may file a motion for judicial revie w asking the trial court to deter mine whether the lien is fra udulent. Tex. Gov’t Code Ann. § 51.903(a)

3

Diaz and Her

nandez ar e re prese nted by the same a ttorney
. 2 Property owner s have an alterna tive way to attack the validity of a lien. I n a suit to 3 fore close on a lien or to decla re a lien invalid or unenfor cea ble, the owner may file a verifie d motion 3(West 2005). A docum en t o r i n s t ru ment that purports to cre ate a lien or asser t a claim ag ainst
rea l proper

ty is presumed to be fra

udulent if it is not “provide d for by the constitution or laws of this state or of the United States,” cr eate d by consent or a g ree ment of the proper ty owner , or judicially imposed. Id

. § 51.901(c) (2). I n a suit for judicial revie w of a lien under the g overnme nt c ode, the trial court mu st make its deter mination based solely on its revie w of the documents attache d to the motion and without hear ing testimony

. Id

. § 51.903(c) , (e)

. The court’s revie w is very limit ed, and it may only decide whether the instrument is fra udulent under section 51.901(c)

. In re Purported Liens or Claims Against Samshi Homes, L.L.C

. , 321 S.W .3d 665, 667 (Tex. Ap p . —Houston [14t h Dist.] 2010, no pet.).

Diaz’s and Her

nandez’s aff

idavits list the claimants’ names, their “busin es s addre ss[ es],” the addre ss and leg al descr iption of the proper ty , the Nickles’ names and addre ss, the d at e o n which Diaz and Her nandez sent notice of their claims to the Nickles, the amount of th e claims, and a brief descr iption of the work Di az and Her nandez alleg e they perf

ormed for the Nickles. The Nickles attache d Charles Nickle’ s aff idavit to their motion for judicial revie w. I n his aff idavit, Nickle aver

red that he and Diaz had a contra ct, he never had an ag ree ment with Her nandez, and he unde rstood that Her nandez worke d for Dia z. Nickle stated that his contra ct with Diaz was for $1,750, that he had paid $1,500 o n t h at co n t ra ct , and that he was claiming a $250 offse t for “dama g es incurre d in completing the work” and beca use he had to re p ai r an d repla ce some equipment that Diaz had used. He also aver red that Diaz’s and Her

nandez’s notices of claim did not

to remove the l ien, s tating his leg al and factua l basis for objec ting to the validity or enforce ability of the lien. Te x . Prop. Code Ann. § 53.160(a ) (West 2007). 4contain their addre sses other than that of their attorney and that the attorney had not assure d Nickle

in writing tha t he was a

uthorized to acce pt service on behalf of Diaz and He rnande z. Although this case prese nts a differ ent proce dural pos t u re than the circ umstances fac ed by the court in Samshi Homes , the underly ing issue is the s ame. See id. The Nickles asked the trial court to do more than just deter mine whether the li ens wer e fra udulent. See id. Their motion i n s t ea d s oug ht to deter mine the validity of the liens based on their merits, arg uing about whether alleg ed defe cts in the aff idavits rende red ineffe ctive the aff idavits ’ att empt to impose mecha nic’s liens ag ainst the proper ty
. See id. The aff

idavits wer e Diaz’s and Her nandez’s attempts to impose mecha

nic’s liens pursuant to chapte r 53 of the proper ty code , s t at u tes which provide a leg al means for those who perf orm work improving another ’s proper ty to se cure pay

ment for their work. See Tex. Prop. Code Ann. §§ 53.021-.058 (West 2007). As in Samshi Homes , the aff idavits “ar e filed in the form of m echa nic’s li ens ” and thus “ar e ins truments ‘provided by the .

. . laws of this state’ and are there fore not presumed to be fra udulent.” 321 S.W .3d at 667-68. The trial court d i d n o t er r i n deter

mining that the liens wer e not fra udulent under sections 51.901 and 51.903
o f t h e go vernme nt code and in deny ing the Nickles’ motion for judicial revie w. See id. ; see a l s o Tex. Gov’t Code Ann. §§ 51.901, .903. We aff irm the trial cour

t’s order s.

__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Pemberton and Rose Affir med Filed: Aug ust 31, 2011 5