Blue Wave Capital, Llc v. Galeno's Enterprises, LLC and the Brownsville Regional Hospital, Llc ( 2013 )

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.
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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
16
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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