In=20 The
For=20 The
SUNTEX =
FULLER=20
CORPORATION, Appellant FLINT =
MORTGAGE=20
GROUP, Appellee
On =
Appeal from the=20
149th District Court Brazoria =
County,=20
Texas Trial =
Court Cause=20
No. 18712*RM02
Appellant,=20
Suntex Fuller Corporation ("Suntex"), appeals the trial court's =
rendition=20
of summary judgment in favor of appellee, Flint Mortgage Group =
("Flint").=20
In two issues, Suntex argues that material issues of fact =
precluded=20
summary judgment in favor of Flint and that no material issues of =
fact=20
precluded summary judgment in favor of Suntex. We =
affirm.
This action=20
arises from a dispute regarding the relative priority between a =
mechanic's=20
and materialman's lien and a deed of trust lien. Suntex, a =
development=20
corporation, entered into a contract to purchase property for a=20
subdivision in Brazoria County ("Property"). To fund this =
purchase, Suntex=20
executed a promissory note payable to Merchants Mortgage & =
Trust=20
Corporation ("Merchants"). On January 13, 1999, Suntex secured the =
note by=20
executing and delivering to Merchants a deed of trust lien against =
the=20
Property in favor of Merchants. Beginning=20
in October 1998 and continuing until January 21, 1999, Suntex =
moved a=20
one-story sales office onto the Property, built a driveway to the =
sales=20
office, and erected wooden fencing around some of the Property. =
Suntex=20
contracted with several different laborers and suppliers to =
perform some=20
of this work. In October 1999, one of the suppliers, Nationsrent, =
began=20
delivering materials to Suntex for use on the Property. Suntex=20
executed a promissory note to Flint, using some of the proceeds to =
extinguish its note to Merchants. The parties to this appeal do =
not=20
dispute that, as a result of this payment, Flint became equitably=20
subrogated to the Merchants deed of trust lien against the =
Property.=20
Ultimately, Suntex defaulted on its note to Flint, and Flint =
foreclosed on=20
the deed of trust lien against the Property. After the =
foreclosure,=20
Nationsrent filed a "constitutional" mechanic's and materialman's =
lien=20
based on the materials it supplied to Suntex. Nationsrent=20
sued Suntex to recover monies owed for the materials it had =
delivered to=20
the Property, and it sought to enforce its mechanic's and =
materialman's=20
lien against the Property. Suntex filed a third party petition =
against=20
Flint, alleging that the Nationsrent lien had priority over the =
Flint deed=20
of trust lien and, pursuant to a contract between Suntex and =
Flint, Flint=20
was responsible to pay the monies owed by Suntex to Nationsrent. =
In its=20
answer, Flint asserted that its deed of trust lien was superior to =
the=20
Nationsrent lien and, therefore, Flint did not owe any payment =
under the=20
agreement. All parties filed motions for summary judgment =
concerning the=20
relative priorities of the liens. The trial granted Flint's =
motion, denied=20
Suntex's motion, and entered a judgment in favor of Flint. =
Flint=20
sought both a traditional and no-evidence summary judgment in the =
trial=20
court. Suntex sought only a traditional summary judgment. This is=20
significant because the two forms of summary judgment invoke =
different=20
standards of review. The movant for a traditional summary judgment =
must=20
show that there is no genuine issue of material fact and that it =
is=20
entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c);=20
Clarendon Nat. Ins. Co. v. Thompson, 199 S.W.3d 482, 486 =
(Tex.=20
App.--Houston [1st Dist.] 2006, no pet.). That is, a defendant =
movant must=20
conclusively negate at least one essential element of each of the=20
plaintiff's causes of action or, alternatively, must conclusively=20
establish each element of an affirmative defense. Sci. =
Spectrum, Inc.=20
v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); =
Thompson, 199=20
S.W.3d at 486. Evidence is conclusive only if reasonable persons =
could not=20
differ in their conclusions. City of Keller v. Wilson, =
168 S.W.3d=20
802, 816 (Tex. 2005). Where the defendant establishes its right to =
summary=20
judgment as a matter of law, the burden shifts to the plaintiff to =
present=20
evidence sufficient to raise a genuine issue of material fact.=20
Thompson, 199 S.W.3d at 486-87. If the plaintiff does so, =
summary=20
judgment is precluded. Id. In=20
contrast, a party moving for a no-evidence summary judgment under =
rule=20
166a(i), must assert only that, after adequate time for discovery, =
there=20
is no evidence of one or more essential elements of a claim or =
defense on=20
which the non-movant would have the burden of proof at trial. Tex. =
R. Civ.=20
P. 166a(i). Summary judgment is precluded if the non-movant then =
satisfies=20
its burden to produce more than a scintilla of evidence raising a =
fact=20
issue on the challenged elements. See id.; Forbes =
Inc. v.=20
Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). =
More than=20
a scintilla of evidence exists if the evidence would allow =
reasonable and=20
fair-minded people to differ in their conclusions. Id. =
Less than=20
a scintilla of evidence exists when the evidence is so weak as to =
do no=20
more than create a mere surmise or suspicion of a fact. Id.=20
Under both=20
the traditional and no-evidence standards of review, we take as =
true all=20
evidence favorable to the non-movant, indulging every reasonable =
inference=20
and resolving any doubts in the non-movant's favor. Joe v. Two =
Thirty=20
Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004) =
(traditional=20
summary judgment); King Ranch, Inc. v. Chapman, 118 =
S.W.3d 742,=20
751 (Tex. 2003) (no-evidence summary judgment). When, as here, a =
summary=20
judgment does not specify the grounds on which it was granted, we =
will=20
affirm the judgment if any one of the theories advanced in the =
motion is=20
meritorious. Joe, 145 S.W.3d at 157. When both =
sides=20
move for summary judgment and the trial court grants one motion =
and denies=20
the other, we review the summary judgment proof presented by both =
sides=20
and determine all questions presented. See Comm'rs =
Court v.=20
Agan, 940 S.W.2d 77, 81 (Tex. 1997); Admiral Ins. Co. v. =
Trident=20
NGL, Inc., 988 S.W.2d 451, 453 (Tex. App.--Houston [1st =
Dist.] 1999,=20
pet. denied). If we find error, we must render the judgment the =
trial=20
court should have entered. Agan, 940 S.W.2d at =
81. The=20
dispositive issue central to both motions for summary judgment is =
the=20
order of priority of the Nationsrent mechanic's and materialman's =
lien and=20
Flint's deed of trust lien. A properly perfected mechanic's and=20
materialman's lien has priority over all other liens, =
encumbrances, or=20
mortgages upon the property. Tex. Prop. Code Ann. =A7 53.123(a) =
(Vernon=20
1995). However, a mechanic's and materialman's lien will not have =
priority=20
over liens existing on land at the time of the inception of the =
mechanic's=20
lien. Id. =A7 53.123(b). Accordingly, to determine the =
priority of=20
liens, we must first examine the summary judgment evidence to =
determine=20
the time of the inception of the Nationsrent mechanic's and =
materialman's=20
lien. See Diversified Mortg. Investors v. Lloyd D. Blaylock =
Gen.=20
Contractor, Inc., 576 S.W.2d 794, 800 (Tex. 1978).=20
If there is=20
a general contract regarding the construction of improvements to =
the=20
property, the courts apply the "relation back doctrine" to =
determine the=20
time of a lien's inception. Oriental Hotel v. Griffiths, =
33 S.W.=20
652, 653 (Tex. 1895). Under the "relation back" doctrine, if there =
is a=20
general construction contract between the owner and a contractor, =
the time=20
of inception of all mechanic's and materialman's liens created by =
the=20
construction will be the date that the contract was executed.=20
McConnell v. Mortgage Investment Co. of El Paso, 305 =
S.W.2d 280,=20
283 (Tex. 1957). In other words, regardless of when the materials =
were=20
delivered or the work was performed by the mechanics and =
materialmen, the=20
time of the inception of their liens "relates back" to the =
execution date=20
of the general construction contract. See id.=20
In this=20
case, there was no general construction contract or general =
contractor for=20
making improvements to the Property. The summary judgment evidence =
establishes that the work and materials were furnished directly to =
Suntex=20
by the various mechanics and materialmen, individually, and, =
therefore,=20
the relation back doctrine does not apply. See id. =
Accordingly,=20
the summary judgment evidence establishes that the time of the =
inception=20
of the Nationsrent lien is October 1999, the date that Nationsrent =
began=20
delivering materials to the property. See Tex. Prop. Code =
Ann.=20
=A7 Having=20
determined the time of inception of the Nationsrent lien, we next=20
determine the relative priority of the liens. The Merchants deed =
of trust=20
lien was recorded on January 21, 1999. It is undisputed that some =
of the=20
proceeds of the Flint note were paid to Merchants to extinguish =
the=20
Merchants promissory note. It is also undisputed that, as a result =
of this=20
payment, Flint became equitably subrogated to In this=20
case, prior to the entry of summary judgment in favor of Flint,=20
Nationsrent and Flint announced an agreement to take nothing =
against each=20
other, and Nationsrent is not pursuing any excess proceeds in this =
action.=20
Accordingly, the trial court did not err by excluding from its =
judgment=20
Nationsrent's right to any excess proceeds in this action. =
We overrule appellant's first =
and second=20
issues. We affirm the judgment of the =
trial=20
court. George C. Hanks, Jr. Justice Panel consists of Justices =
Jennings,=20
Hanks, and Higley. 1. As discussed in detail below, Suntex does =
however=20
dispute the extent of the equitable=20
subrogation.