U.S. Bank National Association, in Its Capacities as Indenture Trustee and Collateral Trustee, Appellant/Cross-Appellee v. H & H Pipe & Steel and Maddux Building Materials, Inc., Joe Lane D/B/A Hallsville Woodyard, Good Times Wood Products, Inc., Terry Diffey D/B/A Charter Trucking, W.D. Townley and Son Lumber Company, Inc., D/B/A Townley Lumber, Wanner Enterprises, Inc., D/B/A Ewell Equipment Co., DP Solutions, Inc., and Prime Acres Management, Inc., Appellees/Cross-Appellants ( 2021 )

NO. 12-20-00142-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
U.S. BANK NATIONAL § APPEAL FROM THE 217TH
ASSOCIATION, IN ITS CAPACITIES
AS INDENTURE TRUSTEE AND
COLLATERAL TRUSTEE,
APPELLANTS/CROSS-APPELLEES,
APPELLANTS
V.
H & H PIPE & STEEL AND MADDUX
BUILDING MATERIALS, INC., JOE § JUDICIAL DISTRICT COURT
LANE D/B/A HALLSVILLE
WOODYARD, GOOD TIMES WOOD
PRODUCTS, INC., TERRY DIFFEY
D/B/A CHARTER TRUCKING, W.D.
TOWNLEY AND SON LUMBER
COMPANY, INC., D/B/A TOWNLEY
LUMBER, WANNER ENTERPRISES,
INC., D/B/A EWELL EQUIPMENT
CO., DP SOLUTIONS, INC., AND
PRIME ACRES MANAGEMENT, INC.,
APPELLEES/CROSS-APPELLANTS, § ANGELINA COUNTY, TEXAS
APPELLEES
MEMORANDUM OPINION
In this permissive appeal, U.S. Bank National Association (U.S. Bank) appeals the denial
of its motion for summary judgment and presents three issues. H&H Pipe & Steel, Maddux
Building Materials, Inc., Joe Lane d/b/a Hallsville Woodyard, Good Times Wood Products, Inc.,
Terry Diffey d/b/a Charter Trucking, W. D. Townley & Son Lumber Co., Inc. d/b/a Townley
Lumber, Wanner Enterprises Inc. d/b/a Ewell Equipment Co., DP Solutions, Inc., Prime Acres
Management, Inc. (collectively, Counter-Appellants) also appeal the denial of their motions for
summary judgment and present one issue. We affirm in part and reverse and remand in part.
1
BACKGROUND
U.S. Bank is the trustee for holders in more than $50,000,000 in bonds issued by the
Angelina and Neches River Authority Industrial Development Corporation (the Authority) in
2007 for the construction of a power plant in Lufkin, Texas. The Authority assigned its security
interests to the trustee, U.S. Bank. The bond proceeds were loaned to Aspen Power, the owner
of the power plant. Construction of the plant began in 2007 and was completed in 2012.
However, the power plant was generally a commercial failure, and Aspen Power abandoned the
plant to U.S. Bank as collateral trustee.
This suit arose when the Angelina County taxing authority brought two separate actions
in 2012 to collect ad valorem taxes due by Aspen Power and Angelina Fuels. Angelina Fuels is
a separate entity that processed wood waste used as fuel for the power plant. Counter-Appellants
provided goods or services in connection with construction of the power plant or processing of
wood waste used at the plant and intervened in the tax lien suit. U.S. Bank resolved the tax
claims by advancing funds to pay the ad valorem taxes due. In 2016, the trial court granted U.S.
Bank’s partial summary judgment and allowed U.S. Bank to foreclose the deeds of trust and tax
liens on the properties securing the debt. The trial court further ordered the proceeds of the sale
be placed in the registry of the court. The parties agreed that the only remaining issue was that
of lien priority following the foreclosure sale.
Aspen Power also owed more than $8.5 million in mechanic’s liens and judgment liens
when it abandoned the power plant. U.S. Bank resolved the majority of the lien claims against
the sale proceeds. Counter-Appellants are the remaining lien claimants. H&H Pipe and Maddux
Building Materials hold mechanic’s and materialman’s liens (the M&M liens). The remainder of
Counter-Appellants hold various judgment liens against Aspen Power. All of the Counter-
Appellants assert priority over the rights, liens, and interests assigned to U.S. Bank as security
for repayment of the bonds.
Throughout the pendency of the lawsuit, both U.S. Bank and Counter-Appellants filed
motions for traditional summary judgment alleging that no issues of material fact remained.
Essentially, U.S. Bank urged that its right to the sale proceeds is first in priority to the remaining
liens. And Counter-Appellants argued that their respective liens should be prioritized under the
terms of the deed of trust. The trial court denied the motions for summary judgment and
2
determined that the loan documents are ambiguous but permitted the parties to appeal five
issues. 1
STANDARD OF REVIEW
Unless a statute specifically authorizes an interlocutory appeal, appellate courts have
jurisdiction only over final judgments. Cherokee Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex.
1985). Generally, a party may not appeal from a trial court’s denial of a motion for summary
judgment or grant of a partial summary judgment because such rulings do not constitute a final
judgment. Frias v. Atl. Richfield Co., 999 S.W.2d 97, 101 (Tex. App.—Houston [14th Dist.]
1999, pet. denied). Section 51.014 of the Texas Civil Practice and Remedies Code designates
civil orders that may be appealed on an interlocutory basis, and it is strictly construed. See TEX.
CIV. PRAC. & REM. CODE ANN. § 51.014 (West Supp. 2020); Bally Total Fitness Corp. v.
Jackson, 53 S.W.3d 352, 355 (Tex. 2001). Section 51.014(d) permits an interlocutory appeal of
an otherwise unappealable order, including the denial of a summary judgment motion, upon the
trial court’s certification of the statutory requirements, that is, the order involves a controlling
question of law on which there is substantial ground for disagreement and an immediate appeal
may materially advance the ultimate resolution of the case. See TEX. CIV. PRAC. & REM. CODE
ANN. § 51.014(d). A court of appeals has discretion to accept or refuse to hear a permissive
appeal. Id. § 51.014(f). This Court previously entered an order accepting the permissive appeal,
and we have jurisdiction over this appeal pursuant to Texas Civil Practice and Remedies Code
Sections 51.014(d) and 51.014(f). The scope of the permissive appeal is limited to consideration
of the controlling issues identified in the trial court’s order. See Tex. Windstorm Ins. Ass’n v.
Jones, 512 S.W.3d 545, 552 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (citing CMH
Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011)).
We review a summary judgment de novo. See HCBeck, Ltd. v. Rice, 284 S.W.3d 349,
352 (Tex. 2009) (citing Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005));
Mid-Century Ins. Co. of Tex. v. Ademaj, 243 S.W.3d 618, 621 (Tex. 2007). When we review a
traditional summary judgment, we determine whether the defendant conclusively disproved an
element of the plaintiff’s claim or conclusively proved every element of an affirmative defense.
Counter-Appellants abandoned the interlocutory appeal of their motion for summary judgment regarding
1
the lack of consideration for the Angelina Fuels deed of trust. As a result, we only address four issues.
3
Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Smith v. Deneve, 285 S.W.3d
904, 909 (Tex. App.—Dallas 2009, no pet.); see also TEX. R. CIV. P. 166a(c). We take evidence
favorable to the nonmovant in a motion for summary judgment as true, and we indulge every
reasonable inference and resolve every doubt in favor of the nonmovant. Sysco Food Servs., Inc.
v. Trapnell, 890 S.W.2d 796, 800 (Tex. 1994). The trial court may consider all competent
evidence on file at the time of the summary judgment hearing. See TEX. R. CIV. P. 166a; Lance v.
Robinson, 543 S.W.3d 723, 732 (Tex. 2018) (explaining that a trial court does not err by relying
on summary judgment evidence on file prior to the summary judgment hearing even though filed
prior to the instant summary judgment record).
AMBIGUITY
In its second issue, U.S. Bank urges the trial court erred in finding the loan documents
ambiguous. Counter-Appellants agree that the loan documents are not ambiguous; however, the
parties disagree on what the documents mean.
Applicable Law
In construing the meaning of a deed, our primary duty is to ascertain the intent of the
parties as provided in the four corners of the document. Luckel v. White, 819 S.W.2d 459, 461
(Tex. 1991). To do this, we must examine and consider the entire writing in an effort to
harmonize and give effect to all the provisions of the agreement, even if different parts of the
deed appear inconsistent or contradictory. Id. at 462; Coker v. Coker, 650 S.W.2d 391, 393 (Tex.
1983). We must assume the parties to the instrument intended every clause to have some effect;
therefore, the language of the deed should be interpreted so that no provision is rendered
meaningless. See Luckel, 819 S.W.2d at 461; Coker, 650 S.W.2d at 393. Each word and phrase
should be given its plain, grammatical meaning unless doing so would clearly defeat the parties’
intent. Moon Royalty LLC v. Boldrick Partners, 244 S.W.3d 391, 394 (Tex. App.—Eastland
2007, no pet.). No provision of the deed should be struck unless an irreconcilable conflict exists
which causes one part of the deed to destroy another part. Id.
A deed may be either ambiguous or unambiguous, and this determination is a question of
law. Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex. 1996). To make this
determination, the trial court must examine the deed as a whole in light of the circumstances
present at the time of its execution. Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd.,
4
940 S.W.2d 587, 589 (Tex. 1996); Derwen Res., LLC v. Carrizo Oil & Gas, Inc., No. 09–07–
00597–CV, 2008 WL 6141597, at *4 (Tex. App.—Beaumont May 21, 2009, pet. denied) (mem.
op.); Savage v. Doyle, 153 S.W.3d 231, 234 (Tex. App.—Beaumont 2004, no pet.). If after
applying the pertinent rules of construction, a deed is subject to two or more reasonable
interpretations, then the deed is ambiguous, and a fact issue exists as to the parties’ intent.
Columbia Gas Transmission Corp., 940 S.W.2d at 589; Derwen Res., 2008 WL 6141597, at *4.
However, an ambiguity does not arise merely because the parties advance conflicting
interpretations of the deed’s language; instead, for an ambiguity to exist, both interpretations
must be reasonable. Id.
A deed is unambiguous when it is so worded that it can be given “a certain or definite
legal meaning or interpretation.” Coker, 650 S.W.2d at 393. The interpretation of an
unambiguous deed is a question of law, and we conduct a de novo review of the trial court’s
construction. Altman v. Blake, 712 S.W.2d 117, 118 (Tex. 1986); Range Res. Corp. v.
Bradshaw, 266 S.W.3d 490, 493 (Tex. App.—Fort Worth 2008, pet. denied). When conducting a
de novo review, we exercise our own judgment and redetermine each issue affording no
deference to the trial court’s decision. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998);
Range Res. Corp., 266 S.W.3d at 493.
Analysis
U.S. Bank and Counter-Appellants all urge that the loan documents are unambiguous.
However, they disagree as to what the loan documents actually mean. At issue is the following
provision in the deeds of trust:
2.1 Grant. To secure the full and timely payment, performance, and discharge of the Secured
Covenants, Grantor has GRANTED, BARGAINED, SOLD, and CONVEYED, and by these
presents does GRANT, BARGAIN, SELL and CONVEY, unto Trustee, in Trust, the Mortgaged
Property, subject, however, to the Permitted Liens . . .
U.S. Bank urges that the evidence establishes that it has a first-filed deed of trust, which takes
priority over all other liens created afterwards. It further argues that if Counter-Appellants’ liens
are “permitted liens” under the loan documents, the liens do not take priority over the deed of
5
trust. 2 Counter-Appellants posit that the granting clause makes the deed of trust secondary to
any “permitted liens” as defined in the loan documents. We agree with Counter-Appellants.
The terms of a deed of trust are strictly construed. As such, the terms and conditions
create and measure the rights of the parties; and we may neither add to nor take from what is
provided. Murchison v. Freeman, 127 S.W.2d 369, 372 (Tex. Civ. App.—El Paso 1939, writ
ref’d). With respect to a conveyance of an interest in real property, the term “subject to” is a
term of qualification, meaning “subordinate to,” “subservient to,” or “limited by.” Kokernot v.
Caldwell, 231 S.W.2d 528, 531 (Tex. Civ. App.—Dallas 1950, writ ref’d); EOG Res., Inc. v.
Hanson Prod. Co., 94 S.W.3d 697, 702 n.2 (Tex. App.—San Antonio 2002, no pet.); Bradshaw
v. Lower Colo. River Auth., 573 S.W.2d 880, 883 (Tex. Civ. App.—Beaumont 1978, no writ).
Because “subject to” language implies a limitation, it should not be interpreted to give a grantee
rights in addition to an already stated scope of conveyance. Smith v. Huston, 251 S.W.3d 808,
823 (Tex. App.—Fort Worth 2008, pet. denied). Rather, when property is granted “subject to”
certain conditions—including conditions requiring performance by the grantee— it is burdened
by those conditions. See Rutten v. Cazey, 734 S.W.2d 752, 755 (Tex. App.—Waco 1987, writ
denied) (holding that easement grantee was required to build and maintain fence over easement
when easement grant was expressly made subject to affirmative obligation of grantee to build
and maintain fence); see also Kuo v. Greenview Townhomes Ass’n, Inc., No. B14–88–00066–
CV, 1989 WL 6925, at *1–2 (Tex. App.—Houston [14th Dist.] Feb. 2, 1989, no writ) (not
designated for publication) (holding, in accordance with cases construing “subject to” language
as language of limitation, that grantee of deed made subject to “maintenance charges not now
due and the leans [sic] securing said charges” was personally liable for payment of such
maintenance charges).
Each deed of trust explicitly states that the security interest is being granted subject to
permitted liens. We must give contract language its plain, grammatical meaning unless it would
clearly defeat the parties’ intentions. Barrow-Shaver Res. Co. v. Carrizo Oil & Gas, Inc., 590
S.W.3d 471, 479 (Tex. 2019). As such, under the express terms of the deed of trust, the security
interest granted to U.S. Bank is “subservient to” any permitted liens. This interpretation does not
2
At oral argument, U.S. Bank argued for the first time on appeal that the “permitted lien” language meant
that any permitted lien in existence at the time of the execution of the loan documents would take priority and that
any permitted lien executed afterwards would not be given priority. However, U.S. Bank has cited no authority for
this position and did not make this argument in its brief. As such, we do not consider it.
6
defeat the parties’ intentions because the “subject to permitted liens” language also appears later
when defining lien status:
4.4. First Lien Status. Grantor will protect the first lien and security interest status of the Deed of
Trust and the other Security Documents subject to Permitted Liens.
As a result, we conclude that the granting language can be construed with only one certain and
definite interpretation: that “permitted liens” take priority over the deed of trust. Having
determined that the trial court erred by finding the loan documents ambiguous, we sustain U.S.
Bank’s second issue.
PERMITTED LIENS
In its first issue, U.S. Bank argues that its deed of trust has priority over the M&M liens
and judgment liens. Counter-Appellants argue that their respective liens are “permitted liens”
under the terms of the loan documents and therefore have priority over U.S. Bank’s security
interest.
The deeds of trust define “permitted liens” as having “the definitions ascribed thereto in
the Master Agreement.” The Master Agreement defines “permitted liens,” in pertinent part, as
follows:
(5) Liens imposed by law, such as carriers’, warehousemen’s, landlord’s and mechanic’s Liens, in
each case, incurred in the ordinary course of business;
...
(11) Liens incurred in the ordinary course of business of the Company of the Company [sic]
securing obligations that in the aggregate at any one time outstanding do not exceed the Asset
Percentage;
Counter-Appellants urge that each of their liens qualify as “permitted liens” under the Master
Agreement. We address the M&M liens and the judgment liens in turn.
M&M Liens
H&H Pipe and Maddux each filed a mechanic and materialman’s lien. H&H Pipe filed
its lien in August 2012, and Maddux filed in October 2011. Each company furnished material
7
for the construction of the power plant: H&H provided steel and Maddux furnished lumber.
None of the parties dispute that H&H and Maddux possess valid and enforceable M&M liens.
U.S. Bank simply claims that the M&M liens do not take priority over the deeds of trust security
interests and, in the alternative, the M&M liens do not qualify as “permitted liens” under the
Master Agreement.
The definition of “permitted liens” in the Master Agreement specifically includes
mechanic’s liens. As a general rule, M&M liens whose inception is subsequent to a deed-of-trust
lien will be subordinate to the deed-of-trust lien. Sanchez v. Schroeck, 406 S.W.3d 307, 311
(Tex. App.—San Antonio 2013, no pet.) However, priority can be controlled by contract
between the parties. See Hargrove v. Cornett Estate, 292 S.W.2d 666, 667-68 (Tex. Civ.
App.—San Antonio 1956, writ ref’d n.r.e.); see generally Cont’l Radio Co. v. Cont’l Bank &
Trust Co., 369 S.W.2d 359 (Tex. Civ. App.—Houston 1963, writ ref’d n.r.e.). And, as discussed
above, the parties gave priority to “permitted liens.” Because M&M liens are specifically listed
as “permitted liens” under the definitions, the liens held by H&H Pipe and Maddux take priority
over the deed of trust security interests. 3 We overrule this portion of U.S. Bank’s first issue.
Judgment Liens
The remainder of Counter-Appellants have valid, abstracted judgment liens. Each lien
arose due to the nonpayment of debts incurred by both Aspen and Angelina Fuels. Wanner
Enterprises provided maintenance service work for Angelina Fuels’ equipment. DP Solutions
provided computer equipment and related services. Joe Lane d/b/a Hallsville Woodyard, Terry
Diffey d/b/a Charter Trucking, Good Times Wood Products, Inc., Townley and Son Lumber
Company, Inc., and Prime Acres Management, Inc., each provided biomass to fire the generator
boiler. Each of these judgment lien creditors alleges that their liens are “permitted liens” because
they were incurred in the ordinary course of business and, as a result, should take priority over
the deed of trust security interests. We disagree.
“Under Texas law, no lien is created by the mere rendition of a judgment.” Citicorp Real
Estate, Inc. v. Banque Arabe Internationale D’Investissement, 747 S.W.2d 926, 929 (Tex.
App.—Dallas 1988, writ denied). To create an enforceable judgment lien against real property
owned by the judgment debtor, the judgment creditor must comply with the requirements of
3
Because we hold that the M&M liens take priority per the terms of the loan documents, we need not
address H&H Pipe and Maddux’s argument that the M&M liens take priority under the “relation back doctrine.”
8
Chapter 52 of the Texas Property Code. Id.; see TEX. PROP. CODE ANN. §§ 52.001 et seq. (West
2014). “The judgment creditor’s first step in creating a judicial lien is to obtain an abstract of the
judgment.” Citicorp Real Estate, 747 S.W.2d at 929; see TEX. PROP. CODE ANN. § 52.002 (West
2014). The purpose of an abstract of judgment is to create a lien against the debtor’s property and
to provide notice to subsequent purchasers and encumbrancers of the existence of the judgment
and the lien. Olivares v. Nix Trust, 126 S.W.3d 242, 247 (Tex. App.—San Antonio 2003, pet.
denied). Therefore, by their express nature, judgment liens cannot be created in the “ordinary
course of business” as required by the definition of “permitted liens” in the Master Agreement.
See Tuscarora Corp. v. HJS Indus., Inc., 794 S.W.2d 435, 440 (Tex. App.—Corpus Christi
1990, writ denied) (holding that a breach of contract claim was not entered into in the ordinary
course of business). As a result, the judgment liens are not “permitted liens” and do not take
priority over the deed of trust security interests. We sustain this portion of U.S. Bank’s first
issue.
EQUITABLE DEFENSES
In its third issue, U.S. Bank urges that Counter-Appellants’ equitable defenses were
unsupported by sufficient evidence to create a fact issue precluding summary judgment.
Counter-Appellants failed to respond to U.S. Bank’s assertion.
Counter-Appellants’ summary judgment responses, as recognized by the trial court,
included “allegations of unclean hands and other equitable defenses relating to . . . the ITC
grant.” And the trial court rejected U.S. Bank’s contention that the allegations fail to raise
genuine issues of material fact to defeat U.S. Bank’s summary judgment.
As demonstrated above, U.S. Bank showed that its security interests take priority over the
judgment liens under the terms of the loan documents. When a party makes a traditional motion
for summary judgment and proves each element of its case, the burden shifts to the opposing
party to prove their defenses. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.
1997). And mere allegations in a summary judgment motion or response are not competent
summary judgment proof to create a genuine issue of material fact. See Keenan v. Gibraltar
Sav. Ass’n, 754 S.W.2d 392, 393 (Tex. App.—Houston [14th Dist.] 1988, no writ). A party who
opposes a summary judgment by asserting an affirmative defense must offer competent summary
judgment proof to support its allegations. Baxley v. PS Group, LLC, No. 2-09-217-CV, 2010
9
WL 1137039, at *2 (Tex. App.—Fort Worth Mar. 25, 2010, no pet.) (mem. op.). Counter-
Appellants failed to provide any such proof. As a result, the trial court erred in concluding
Counter-Appellants’ equitable defenses created genuine issues of material fact when it denied
U.S. Bank’s summary judgment. U.S. Bank’s third issue is sustained.
SUFFICIENCY OF PROPERTY DESCRIPTION
In their sole issue on appeal, Counter-Appellants contend the property description
contained in the Angelina Fuels deed of trust is insufficient to convey an interest. U.S. Bank
urges that this issue has already been resolved by the trial court and is now moot. We agree with
U.S. Bank.
The trial court authorized foreclosure of the Angelina Fuels property in February 2016.
When the judgment of this Court can have no effect on an existing controversy, a case becomes
moot. See F.D.I.C. v. Nueces Cty., 886 S.W.2d 766, 767 (Tex. 1994); Restrepo v. First Nat’l
Bank of Dona Ana Cty., N.M., 888 S.W.2d 606, 607 (Tex. App.—El Paso 1994, no writ).
Because the property which was the subject of this appeal has been sold, any judgment issued by
the Court would have no effect as there is no longer a controversy to resolve. See F.D.I.C., 886
S.W.2d at 767. Therefore, we overrule Counter-Appellants’ issue.
DISPOSITION
We sustain issue two, determining that the loan documents are not ambiguous. We
overrule U.S. Bank’s first issue as to the M&M liens held by H&H Pipe and Maddux, but we
sustain U.S. Bank’s first issue with regard to the judgment liens held by the remainder of
Counter-Appellants. We sustain U.S. Bank’s third issue and overrule Counter-Appellants’ sole
issue. We reverse the denial of U.S. Bank’s motion for summary judgment with regard to the
judgment liens, reverse the denial of H&H Pipe’s and Maddux’s motions for summary judgment,
and affirm the denial of the remainder of Counter-Appellants’ motions for summary judgment.
We remand this case to the trial court with instructions to distribute the foreclosure sale proceeds
in accordance with this opinion.
JAMES T. WORTHEN
Chief Justice
Opinion delivered March 10, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
10
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MARCH 10, 2021
NO. 12-20-00142-CV
U.S. BANK NATIONAL ASSOCIATION, IN ITS CAPACITIES AS INDENTURE
TRUSTEE AND COLLATERAL TRUSTEE, APPELLANT/CROSS-APPELLEE,
Appellants
V.
H & H PIPE & STEEL AND MADDUX BUILDING MATERIALS, INC., JOE LANE
D/B/A HALLSVILLE WOODYARD, GOOD TIMES WOOD PRODUCTS, INC., TERRY
DIFFEY D/B/A CHARTER TRUCKING, W.D. TOWNLEY AND SON LUMBER
COMPANY, INC., D/B/A TOWNLEY LUMBER, WANNER ENTERPRISES, INC.,
D/B/A EWELL EQUIPMENT CO., DP SOLUTIONS, INC., AND PRIME ACRES
MANAGEMENT, INC., APPELLEES/CROSS-APPELLANTS,
Appellees
Appeal from the 217th District Court
of Angelina County, Texas (Tr.Ct.No. TX-0186)
THIS CAUSE came to be heard on the oral arguments, appellate record and briefs
filed herein, and the same being considered, because it is the opinion of this Court that there was
error in judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this
Court that:
• the denial of U.S. Bank’s motion for summary judgment with
regard to the judgment liens be reversed;
11
• the denial of H&H Pipe’s and Maddux’s motions for summary
judgment be reversed;
• the denial of the remainder of Counter-Appellants’ motions for
summary judgment be affirmed;
• the cause be remanded to the trial court with instructions to
distribute the foreclosure sale proceeds in accordance with the
opinion of this Court;
• all costs of court are assessed against JOE LANE D/B/A
HALLSVILLE WOODYARD, GOOD TIMES WOOD
PRODUCTS, INC., TERRY DIFFEY D/B/A CHARTER
TRUCKING, W.D. TOWNLEY AND SON LUMBER
COMPANY, INC., D/B/A TOWNLEY LUMBER, WANNER
ENTERPRISES, INC., D/B/A EWELL EQUIPMENT CO.,
DP SOLUTIONS, INC., AND PRIME ACRES
MANAGEMENT, INC., as nonprevailing parties under Texas
Rule of Appellate Procedure 43.4;
• and that this decision be certified to the court below for
observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
12