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Click here for the full text of this decision FACTS:John Joseph Jordan d/b/a Premier Construction Services was a general contractor who furnished materials and performed services for Burl and Brenda Hagler at their homestead property, including mold remediation and reconstruction work. Following a payment dispute, Jordan filed two mechanic’s liens on the property. When Jordan refused to remove the liens, the Haglers’ responded by filing suit against Jordan alleging shoddy work and seeking a declaratory judgment and removal of the liens. Due to defects in the perfection of the liens, the trial court entered an agreed order on the Haglers’ motion for summary removal of the invalid liens, thereby removing the liens and prohibiting Jordan from filing further liens or affidavits claiming liens, but allowing Jordan to stay the removal of the liens by posting a $10,000 bond pursuant to Texas Property Code �53.161. No bond was posted and Jordan thereafter filed a lis pendens regarding the property and counterclaimed for damages asserting various theories of recovery, including a request that a constructive trust be imposed on the property. The Haglers, in response, filed a motion for summary judgment. The trial court granted partial summary judgment in favor of the Haglers. As a result, Jordan took nothing under his request for a constructive trust, the lis pendens was declared invalid and void and was ordered removed and cancelled, and the Haglers were awarded attorney’s fees under the Uniform Declaratory Judgments Act. Jordan appealed. HOLDING:Affirmed in part, reversed and rendered in part. Jordan argues that a special exception, not a motion for summary judgment, was the correct procedural means to attack his assertion of a constructive trust, which he alleges is available to attach to homestead property under these facts. The court notes, however, that if a constructive trust is not available to Jordan as a matter of law, any error in the method of attacking the alleged pleading defect is harmless, because that pleading defect cannot be cured. The court points out that by statute a lien, not a constructive trust, is the encumbrance that may be placed on a homestead for labor and materials used so long as the person furnishing the material or performing labor executes a written contract with the owner. The court finds that the constructive trust is thus outside the parameters of ��41.001 and 53.254 of the property code. Accordingly, the court holds that Jordan is not entitled to a constructive trust as a matter of law. Therefore, the trial court did not err by granting the Haglers’ motion for partial summary judgment in this regard. Jordan next argues that summary judgment was not the proper procedural device to attack the filing of his lis pendens, that the agreed order regarding filing of liens was not violated by the filing of the lis pendens, and that Jordan’s claims are appropriate for a lis pendens filing. The court states that, under Texas Property Code �12.007(a), a party may file a lis pendens during the pendency of an action involving 1. title to real property, 2. the establishment of an interest in real property, or 3. the enforcement of an encumbrance against real property, and that the suit on which the lis pendens is based must claim a direct interest in the real property, not a collateral one. Jordan contends that the Haglers’ have been unjustly enriched by the addition of the materials to their property. Under the particular facts of this case, however, the court recognizes that the only means by which Jordan could have asserted an interest in the property was by obtaining a mechanic’s lien. Therefore, the court finds, the lis pendens is merely an attempt to circumvent the trial court’s agreed order prohibiting Jordan from filing any further liens against the Haglers’ property. Accordingly, the court holds that the lis pendens is voidable and capable of being cancelled by the trial court because it gives notice of claim that is unavailable to Jordan. Finally, Jordan argues that there is no legal basis to support the trial court’s award of attorney’s fees to the Haglers pursuant to Texas Civil Practice & Remedies Code ��37.004 and 37.009, part of the Uniform Declaratory Judgments Act. The court agrees and holds that lis pendens is not a “deed, will, written contract, or other writing constituting a contract,” the only writings or instruments for which declaratory relief � and accompanying attorney’s fees � are available under � 37.004. Therefore, the court concludes that the trial court erred by awarding the Haglers’ attorney’s fees pursuant to Chapter 37 of the Civil Practice & Remedies Code. OPINION:McCoy, J.; Holman, Gardner, and McCoy, JJ.

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