Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Theodore McCollum entered into an earnest-money contract with Bayport 47 Ltd. to purchase 53 acres in Seabrook. He then bought 14 of the 53 acres and conveyed them to Seabrook United Methodist Church. McCollum bought the remaining 39 acres the next month, in February 1999. In August 1999, McCollum, acting on behalf of McCollum Interests, entered into a joint venture agreement with John Boswell, on behalf of Pacific Ride Development Co. The agreement created a company called Venture tasked with developing McCollum’s 39 acres into a subdivision. McCollum thus conveyed the property to Venture. McCollum then contacted Thomas C. Knickerbocker, who was president of Centurion Planning Corp., to create a preliminary plat for the subdivision. Knickerbocker orally agreed to McCollum’s terms, and the pair met with several city officials to review the initial plat. The city officials found several problems with the plat, so McCollum instructed Knickerbocker to make the necessary changes. Knickerbocker never did. When McCollum learned of Knickerbocker’s failure, he obtained all relevant documents from the city and then wrote a letter to Centurion terminating its services because he had no confidence in the company and was “disgusted” at what Knickerbocker did. Knickerbocker responded by sending a demand letter to McCollum for more than $39,000 of work already performed. Knickerbocker, on behalf of Centurion, filed a notice of claim of lien and an affidavit of mechanic’s and materialman’s lien on the entire 53-acre parcel of land. Knickerbocker claimed labor and materials in the same amount as he demanded from McCollum. When Knickerbocker refused to release the 39 acres owned by Venture, Venture sued Centurion for a declaration that its lien was null and void. After a jury trial, the trial court declared that Centurion did not have any lien rights or lien claims against Venture and that Centurion’s lien against the 39 acre property was “null, void, invalid, unenforceable and of no effect” because: 1. there was no written contract between Venture and Centurion; 2. Centurion and Knickerbocker had violated the former Engineering Practice Act and were therefore not entitled to a lien under Property Code 53.021(c); and 3. Centurion and Knickerbocker had violated Civil Practice & Remedies Code 12.002 by making, presenting, and using the lien with the knowledge that it was a fraudulent lien. HOLDING:Affirmed. The court first considers whether the trial court erred in submitting a jury charge on whether Centurion and Knickerbocker made, presented or used a fraudulent lien with the intent to cause financial injury to Venture. The court rejects Centurion’s and Knickerbocker’s three arguments. First, the court disagrees that the question was immaterial. The appellants argue that 12.002, which prohibits the filing of fake liens, was not intended to apply to mechanic’s and materialman’s liens; instead, they say it is only supposed to apply to the anti-government groups who tried to file bogus liens against the state. The court finds nothing, however, in the plain language of 12.002 to indicate that this section applies exclusively to cases where members of anti-government groups file fake documents. The legislature could have chosen to limit the application of Chapter 12 to documents or records from sham courts, but it did not expressly do so, the court notes. “Section 12.002(a)(2) does not limit liability only to fraudulent court documents or records which are made, presented or used by anti-government groups. Rather, it expressly applies to any document or record that is”a fraudulent lien or claim’ against real or personal property and that is intended to be”given the same legal effect’ as a court record or document”evidencing a valid lien or claim against real property.’” The court further rejects the underlying assumption that fraudulent liens other than ones filed by anti-government groups are somehow less harmful to the state. The court then disagrees with Centurion’s and Knickerbocker’s second argument against the jury charge: that there was no evidence that they made, presented, or used a document with knowledge that the document was a fraudulent lien. Section 12.002 says that an instrument is presumed fraudulent if certain conditions are met, including that it is not a lien filed under Government Code 51.091(c), which, too, was passed in response to the anti-government groups’ filing of bogus liens. Like 12.002, 51.09 does not define the term “fraudulent,” but instead creates a presumption if certain conditions are met. The court finds those conditions met here. “Here, McCollum testified that he did not enter into a written contract on behalf of himself or Venture with either Knickerbocker or Centurion. Moreover, Knickerbocker testified that, after McCollum refused to pay for work that Centurion had done, Knickerbocker, on Centurion’s behalf, filed a mechanic’s and materialman’s lien against the entire 53-acre tract of land. Taken together, this testimony constituted more than a scintilla of evidence establishing that Knickerbocker had violated 12.002 when he “made, presented, or used the lien’ knowing, based on the lack of a written contract, that the lien was invalid and intending that it be given the same legal effect as a valid lien.” The court next rejects Centurion’s and Knickerbocker’s third argument against the jury charge � that the instruction accompanying the question was defective � because the objection raised on appeal is broader in scope than the one made at trial. The court says that there was enough evidence to support the declaratory judgment entered for McCollum because the jury expressly found that Knickerbocker personally made, presented or used a document with the knowledge that the document was a fraudulent lien or claim against real property or an interest in real property with the intent that the document be given the legal effect of evidencing a valid lien or claim against real property or an interest in real property and with the intent to cause Venture to suffer financial injury. The court also upholds the exclusion of certain evidence, as well as the jury’s finding on the employment status of an individual involved in the platting of the subdivision. OPINION:Jennings, J.; Radack, C.J., Jennings and Higley, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.