In The Fifth District Court Of Appeals At Dallas

No. 05-10-00831-CV ACCEPTED 225EFJ016379183 FIFTH COURT OF APPEALS DALLAS, TEXAS 11 June 29 P1:36 Lisa Matz CLERK In The Fifth District Court Of Appeals At Dallas DAVID SCOT LYND, Appellant, v. STATE FAIR OF TEXAS and CITY OF DALLAS, Appellees. Appealed from the 68 th District Court of Dallas County, Texas Cause No. DC-10-02288 APPELLEES BRIEF AND APPENDIX THOMAS P. PERKINS, JR. VINCENT LOPEZ SERAFINO Dallas City Attorney JENEVIEN, P.C. Scott E. Hayes Christopher J. Caso Texas Bar No. 09280050 Texas Bar No. 03969230 Kelly Fisher Barbara E. Rosenberg Texas Bar No. 00790686 (Texas Bar No. 17267700) Mark A. Rechner Assistant City Attorneys Texas Bar No. 24058064 Office of the City Attorney 1601 Elm Street, Suite 4100 1500 Marilla Street, Room 7B North Dallas, Texas 75201 Dallas, Texas 75201 Telephone: (214) 979-7400 Telephone: (214) 670-3519 Telecopier: (214) 979-7402 Telecopier: (214) 670-0622 Attorneys for the City of Dallas and ROBERT SMITH Attorney at Law

Texas Bar No. 00786248 3838 Oak Lawn Avenue, Suite 1222 Dallas, Texas 75219 214/522-5571 Telephone 214/522-5009 Telecopier Attorneys for State Fair of Texas ii

IDENTITY OF PARTIES AND COUNSEL In accordance with Texas Rule of Appellate Procedure 38.1(a)(1)(A), the following is a supplemental list of parties to the trial court s order from which this appeal is taken, and the names and addresses of all trial and appellate counsel: 1. Appellee/Intervenor: City of Dallas 2. Appellee s Counsel (City of Dallas): Barbara Rosenberg Christopher J. Caso Assistant City Attorneys Office of the City Attorney 1500 Marilla Street, Room 7BN Dallas, Texas 75201 Telephone: (214) 670-3519 Telecopier: (214) 670-0622 Appellate Trial and Appellate 3. Appellee/Plaintiff: State Fair of Texas 4. Appellee s Counsel (State Fair of Texas) Scott E. Hayes Kelly Fisher Mark A. Rechner Vincent Lopez Serafino Jenevein, P.C. 1601 Elm Street, Suite 4100 Dallas, Texas 75201 Telephone: (214) 979-7400 Telecopier: (214) 979-7402 Robert Smith Attorney at Law 3838 Oak Lawn Avenue, Suite 1222 Dallas, Texas 75219 Telephone: (214) 522-5571 Telecopier: (214) 522-5009 iii

STATEMENT REGARDING ORAL ARGUMENT Appellees State Fair of Texas and City of Dallas do not believe that oral argument would be beneficial to the Court in its determination. iv

TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL... iii STATEMENT REGARDING ORAL ARGUMENT... iv TABLE OF CONTENTS... v INDEX OF AUTHORITIES... vii STATEMENT OF THE CASE... xi RESPONSE TO ISSUES PRESENTED... xii STATEMENT OF FACTS... 1 SUMMARY OF ARGUMENT... 5 ARGUMENT... 6 I. Lynd waived his issues on appeal because he failed to file a brief in compliance with rule 38.1 of the Texas Rules of Appellate Procedure... 6 II. The trial court did not err in granting motions for summary judgment to declare that that the Notice of Claim of Lien and the Notice of Mechanics Lien Sale were invalid... 8 A. The Court reviews a motion for summary judgment de novo... 8 B. The trial court did not err in declaring the Notice of Claim of Lien invalid because it fails to meet the requirements of the Property Code.... 10 C. The trial court did not err in declaring the Notice of Claim of Lien unenforceable because it is barred by the statute of limitations.... 11 D. The trial court did not err in declaring the Notice of Mechanics Lien Sale unenforceable and invalid because it sought to foreclose property that is not listed within the Notice of Claim of Lien and is exempt from foreclosure.... 13 v

E. The trial court did not err in declaring the Notice of Claim of Lien unenforceable and invalid because Lynd did not present any evidence in defense of limitations or laches.... 14 III. The trial court did not abuse its discretion in entering a permanent injunction because Lynd waived any factual error in the issuance of the permanent injunction by failing to provide a reporter s record of the trial court proceedings... 15 IV. Injunctive relief is appropriate to prevent wrongful foreclosure.... 17 V. The trial court did not err in failing to set bond for the issuance of the injunction because no bond is required to be filed for a permanent injunction... 18 VI. The trial court did not abuse its discretion in awarding attorney fees pursuant to the Declaratory Judgments Act because the State Fair and the City were prevailing parties.... 18 PRAYER... 19 vi

INDEX OF AUTHORITIES STATE CASES Anheuser-Busch Co., Inc. v. Summit Coffee Co., 858 S.W.2d 928 (Tex. App. Dallas 1993, writ denied)... 7 Audia v. Hannold, 328 S.W.3d 661 (Tex. App. Dallas 2010, no pet.)... 6 Canteen Corp. v. Republic of Tex. Props., Inc., 773 S.W.2d 398 (Tex. App. Dallas 1989, no writ)... 18 City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979)... 9, 14 Collins v. Williamson Printing Corp., 746 S.W.2d 489 (Tex. App. Dallas 1988, no writ)... 17 Cowling v. Colligan, 312 S.W.2d 943 (Tex. 1958)... 17 Dickey v. Club Corp. of Am., 12 S.W.3d 172 (Tex. App. Dallas 2000, pet. denied)... 10 Drum v. Calhoun, 299 S.W.3d 360 (Tex. App. Dallas 2009, pet. denied)... 6 Farahmand v. Thang Do, 153 S.W.3d 601 (Tex. App. Dallas 2004, pet. denied)... 16 Gibbs v. Gen. Motors Corp., 450 S.W.2d 827 (Tex. 1970)... 9 Gray v. Estell, No. 05-98-01785-CV, 2001 WL 279181 (Tex. App. Dallas Mar. 22, 2001, no pet.)... 16 Green v. Unauthorized Practice of Law Comm., 883 S.W.2d 293 (Tex. App. Dallas 1994, no writ)... 15 vii

Guthrie v. Nat l Homes Corp., 394 S.W.2d 494 (Tex. 1965)... 16 Hancock v. Bradshaw, 350 S.W.2d 955 (Tex. Civ. App. Amarillo 1961, no writ)... 17 Irving Bank & Trust Co. v. Second Land Corp., 544 S.W.2d 684 (Tex. Civ. App. Dallas 1976, writ ref d n.r.e.)... 17, 18 Jones v. Tex. Pac. Indem. Co., 853 S.W.2d 791 (Tex. App. Dallas 1993, no writ)... 10, 14 KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746 (Tex. 1999)... 9 Mansfield State Bank v. Cohn, 573 S.W.2d 181 (Tex. 1978)... 6 Minexa Az., Inc. v. Staubach, 667 S.W.2d 563 (Tex. App. Dallas 1984, no writ)... 17 Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986)... 15 Nawas v. R & S Vending, 920 S.W.2d 734 (Tex. App. Houston [1 st Dist.] 1996, no pet.)... 7 Nixon v. Mr. Prop. Mgt. Co., 690 S.W.2d 546 (Tex. 1985)... 9 Phan Son Van v. Pena, 990 S.W. 2d 751 (Tex. 1999)... 9 Rothrock v. Summer Hills Cmty. Improvement Ass n, Inc., 330 S.W.3d 923 (Tex. App. El Paso 2011, no pet.)... 7, 8 Shull v. United Parcel Serv., 4 S.W.3d 46 (Tex. App. San Antonio 1999, pet. denied)... 6 Sterner v. Marathon Oil Co., 767 S.W.2d 686 (Tex. 1989)... 6 viii

Swilley v. Hughes, 488 S.W.2d 64 (Tex. 1972)... 9 Thompson v. Chrysler First Bus. Credit Corp., 840 S.W.2d 25 (Tex. App. Dallas 1992, no writ)... 9 Wilms v. Americas Tire Co., Inc., 190 S.W.3d 796 (Tex. App. Dallas 2006, pet. denied)... 16 Waltenburg v. Waltenburg, 270 S.W.3d 308 (Tex. App. Dallas 2008, no pet.)... 16 Ward v. Lubojasky, 777 S.W.2d 156 (Tex. App. Houston [14 th Dist.] 1989, no writ)... 16 Wolfe v. C.S.P.H, Inc., 24 S.W.3d 641 (Tex. App. Dallas 2000, no pet.)... 6 Wright v. Wright, 699 S.W.2d 620 (Tex. App. San Antonio 1988, writ ref d n.r.e.)... 16 TEXAS STATUTES AND ADMINISTRATIVE RULES Tex. Civ. Prac. & Rem. Code 16.051... 14-15 Tex. Civ. Prac. & Rem. Code 16.061... 15 Tex. Civ. Prac. & Rem. Code 37.009... 6, 19 Tex. Prop. Code 43.002... 13, 18 Tex. Prop. Code 53.021... 10 Tex. Prop. Code 53.052(a)... 12 Tex. Prop. Code 53.054(a)(2)... 11 Tex. Prop. Code 53.054(a)(5)... 11 Tex. Prop. Code 53.154... 12 Tex. Prop. Code 53.158(a)... 11, 12 ix

TEX. R. APP. P 38... 6 TEX. R. APP. P. 38.1... ix, 5 TEX. R. APP. P. 38.1(f)... 7 TEX. R. APP. P. 38.1(g)... 2 TEX. R. APP. P. 38.1(h)... 6 TEX. R. APP. P. 38.2(a)(1)(B)... 2 TEX. R. APP. P. 38.9... 8 TEX. R. CIV. P. 93... 9 TEX. R. CIV. P. 94... 9 TEX. R. CIV. P. 166a(c)... 8 TEX. R. CIV. P. 684... 18 x

STATEMENT OF THE CASE Nature of the Case: The State Fair of Texas ( SFOT ) requested declaratory and injunctive relief to prevent David Scott Lynd from proceeding with a nonjudicial sale of City of Dallas-owned property. (CR 7-15.) The City of Dallas filed a plea in intervention. (CR 27-31.) The City requested a declaration that Lynd s asserted debt and lien were barred and the notice of sale was defective. (CR 29.) The City also requested a permanent injunction preventing the sale of City property. (CR 30.) Lynd had served a notice of mechanics lien on the State Fair of Texas and the City of Dallas for alleged payments owed. (CR 18.) The notice stated that Lynd would sell Fair Park, the property on which the State Fair of Texas is held, in satisfaction of the alleged debt. (CR 129 [Appellees App x Tab 1.]) The underlying notice of claim of lien was for money owed by David Yates, Home of the Year, Inc. and AT&T, Inc. (CR 127 [Appellees App x Tab 2].) Course of Proceedings: SFOT and the City filed motions for summary judgment seeking to declare that the Notice of Claim of Lien and the Notice of Mechanics Lien Sale were invalid. (CR 51-59; 136-44.) After a determination of the motions for summary judgment, the trial court held a trial to determine whether the SFOT and the City were entitled to a permanent injunction. (CR 175 [Appellees App x Tab 3].) Trial Court s Disposition: The trial court granted SFOT s motion for summary judgment and the City s motion for partial summary judgment. (Appellees App x Tab 3, at 175, 176.) After the trial on the merits, the court granted the request for a permanent injunction preventing the sale of the Fair Park and any foreclosure on property owned or leased by the State Fair or the City. (Appellees App x Tab 3, at 176-77.) xi

RESPONSE TO ISSUES PRESENTED 1. Lynd waived his issues on appeal because he failed to file a brief in compliance with rule 38.1 of the Texas Rules of Appellate Procedure. 2. The trial court did not err in granting motions for summary judgment to declare that that the Notice of Claim of Lien and the Notice of Mechanics Lien Sale were invalid. 3. Lynd waived any factual error in the issuance of the permanent injunction because he did not provide a reporter s record of the trial court proceedings. 4. The trial court did not abuse its discretion in issuing the permanent injunction. 5. Injunctive relief is appropriate to prevent wrongful foreclosure. 6. The trial court did not err in failing to set bond for the issuance of the injunction because no bond is required to be filed for a permanent injunction. 7. The trial court did not abuse its discretion in awarding attorney fees pursuant to the Declaratory Judgments Act because the State Fair and the City were prevailing parties. xii

No. 05-10-00831-CV In The Fifth District Court Of Appeals At Dallas DAVID SCOT LYND, Appellant, v. STATE FAIR OF TEXAS and CITY OF DALLAS, Appellees. Appealed from the 68 th District Court of Dallas County, Texas Cause No. DC-10-02288 APPELLEES BRIEF TO THE HONORABLE COURT OF APPEALS: State Fair of Texas ( SFOT ) and the City of Dallas file this brief to demonstrate that the trial court did not abuse its discretion in entering a permanent injunction to prevent David Scot Lynd from foreclosing on City property and enforcing his purported lien against either SFOT or the City. The court properly declared that Lynd does not have a valid lien or claim against either SFOT or the City. STATEMENT OF FACTS Lynd s purported statement of facts does not present any facts, does not cite to the record, and is merely a legal argument. (Lynd s Brief [5/31/11] at 7-21.) Lynd s 1

statement of facts should be disregarded because it does not conform to the Rules of Appellate Procedure. See Tex. R. App. P. 38.1(g). Because Appellees are dissatisfied with Lynd s purported statement of facts, Appellees present their own statement of facts. See Tex. R. App. P. 38.2(a)(1)(B). From September 29, 2000, through October 22, 2000, SFOT, a nonprofit corporation, hosted the event known as the State Fair of Texas (the State Fair ), in Fair Park pursuant to a lease agreement. (CR 64.) The City is the owner of Fair Park, which is located in Dallas, Dallas County, Texas, and of the property that is located within Fair Park. (CR 160.) The property located at the State Fair of Texas Fair Grounds, between the Women s (sic) Museum and the DAR House, as that phrase appears in the Notice of Claim of Lien, is located at Fair Park and owned by the City of Dallas. (Id.) In 2000, SFOT contracted with Home of the Year, Inc. ( HOTY ) to furnish and equip a manufactured home display for the 2000 State Fair. (CR 64.) SFOT never entered into a contract with Lynd. (CR 65.) The City never entered into a contractual relationship with Lynd in connection with the construction, all or part, of home exhibit displayed at and during The State Fair of Texas, to include framing, decking, roofing, skirting, railing, siding, trimming, ramping, etc. (CR 160.) On November 17, 2000, Lynd filed a Notice of Claim of Lien for construction of a home exhibit displayed at the 2000 State Fair. (CR 127 [Appellees App x Tab 2].) Lynd asserted that the parties that owed him $25,000.00 were David Yates, HOTY and AT&T, Inc. (Id.) The property sought to be charged with the lien was a Champion trailer home. (Id.) The notice was to repossess the trailer. (Id.) 2

Lynd brought suit against David Yates and HOTY in David A. Yates and Home of the Year, Inc. v. David S. Lynd and Norbert Hall d/b/a Hall Construction, No. 00-10214 in 68th Judicial District Court, Dallas County, Texas. (CR 131.) On July 24, 2001, Lynd did not appear at trial and his claim was dismissed. (CR 131-32.) Neither the City nor SFOT was a party to this lawsuit. (Id.) On or about February 17, 2010, Lynd, through his counsel of record Robert Fitzgerald, filed a Notice of Mechanics Lien Sale ( 2010 Notice ). (CR 129 [Appellees App x Tab 1.]) The Notice purports to provide notice of a non-judicial sale of certain City of Dallas-owned property on Tuesday, March 2, 2010. (Id.) The 2010 Notice references the Notice of Claim of Lien filed by Lynd against David Yates, HOTY and AT&T, Inc. on November 17, 2000. (Id.) The 2010 Notice asserts for the first time that SFOT and the City, along with David Yates, ATT Inc., and HOTY, are indebted to Lynd. (Id.) The City s counsel notified Lynd s counsel twice that Lynd s attempt to foreclose on City property was wrongful, in bad faith, and grossly negligent. (CR 149-52.) Counsel for SFOT also informed Lynd s counsel that SFOT was not indebted to Lynd. (CR 156-57.) In order to prevent a foreclosure on the City s park property, SFOT filed a suit for declaratory and injunctive relief. (CR 7-15.) The City then intervened seeking declaratory and injunctive relief to protect the City s property. (CR 27-31.) On February 26, 2010, the trial court entered a temporary restraining order preventing Lynd from foreclosing on the Notice of Mechanics Lien Sale. (CR 25-6.) After a hearing the trial 3

court entered a temporary injunction preventing foreclosure because Lynd had not met the requirements to conduct the requested sale and City property for which he sought foreclosure is not subject to such foreclosure. (CR 39-40.) SFOT and the City filed motions for summary judgment seeking to declare that the Notice of Claim of Lien and the Notice of Mechanics Lien Sale were invalid. (CR 51-59; 136-44.) They asserted the statute of limitations on the claim. (CR 56, 141.) Both presented evidence that each had no contractual relationship with Lynd. (CR 65, 160.) Both presented evidence that Lynd had not claimed a debt owed by SFOT or the City until 2010. (Compare Appellees App x Tab 2 with Appellees App x Tab 3.) The City presented evidence that the real property that Lynd was seeking to foreclose was City park property. (CR 160.) Lynd, through his counsel of record, responded to both motions without attaching any evidence. (CR 166-68; 173-74.) Lynd claimed the SFOT had no standing to prevent the foreclosure, because the real property belonged to the City. (CR 166) Without explanation he claimed that the City and SOFT were barred by the four-year statute of limitations and that the City and SFOT had failed to exhaust their remedies. (CR 166, 173.) On May 21, 2010, the trial court announced that it was granting SFOT s motion for summary judgment. (Appellees App x Tab 3, at 176.) On June 1, 2010, the trial court heard the City s motion for partial summary judgment and granted the motion. (Id. at 175). On the same day the case came to trial to determine whether SFOT and the City were entitled to a permanent injunction. (Id.) After considering the pleadings, evidence 4

presented, and arguments of counsel, the court entered a permanent injunction against Lynd and awarded attorneys fees. (Id.) Lynd appeals this judgment. SUMMARY OF ARGUMENT Lynd has waived all issues on appeal by failing to comply with rule 38.1 of the Texas Rules of Appellate Procedure after being given notice of his alleged deficiencies by this Court. However, even if this Court is to construe Lynd s brief as meeting the requirements of rule 38.1, the trial court did not err in granting the State Fair of Texas and City of Dallas motions for summary judgment. Lynd s alleged Notice of Claim of Lien failed to meet the necessary requirements of the Texas Property Code and any action to enforce Lynd s alleged lien was barred by the statute of limitations. Lynd s Notice of Mechanics Lien Sale failed to identify the alleged property described in the Notice of Claim of Lien. Additionally, the property listed within the Notice of Mechanics Lien Sale, commonly known as Fair Park, is owned by the City of Dallas and exempt from forced sale. Furthermore, the trial court did not abuse its discretion in entering a permanent injunction preventing Lynd s continued wrongful attempts to foreclose on City owned property. Lynd has waived any factual error regarding the trial court s discretion in issuing the permanent injunction by failing to provide this Court with the reporter s record of the trial proceeding. Additionally, the SFOT and the City are not required to post a bond for a permanent injunction. Finally, the trial court did not abuse its discretion 5

in awarding attorney fees to the SFOT and the City pursuant to section 37.009 of the Texas Civil Practice and Remedies Code. ARGUMENT I. Lynd waived his issues on appeal because he failed to file a brief in compliance with rule 38.1 of the Texas Rules of Appellate Procedure. Texas Rule of Appellate Procedure 38 provides that a brief to this Court shall contain, among other things, a clear and concise argument for contentions made with appropriate citations to authorities and the record. Tex. R. App. P. 38.1(h). Failure to cite authority or support in the record constitutes waiver. Wolfe v. C.S.P.H., Inc., 24 S.W.3d 641, 647 (Tex. App. Dallas 2000, no pet.). Lynd did not cite to the record in his brief. (See Lynd s Brief [5/31/11].) The courts recognize that they must construe pro se briefs liberally. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). However, pro se litigants are held to the same standards as licensed attorneys, and they must comply with applicable rules of procedure. Audia v. Hannold, 328 S.W.3d 661, 663 (Tex. App. Dallas 2010, no pet.) (citing Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184 85 (Tex. 1978)); Drum v. Calhoun, 299 S.W.3d 360, 364 (Tex. App. Dallas 2009, pet. denied). To do otherwise would give a pro se litigant an unfair advantage over a litigant who is represented by counsel. Shull v. United Parcel Serv., 4 S.W.3d 46, 53 (Tex. App. San Antonio 1999, pet. denied). 6

The Texas Rules of Appellate Procedure require that an appellate brief include a fair, condensed statement of facts pertinent to the points of error raised, with references to the pages in the record where those facts may be found. Nawas v. R & S Vending, 920 S.W.2d 734, 737 (Tex. App. Houston [1st Dist.] 1996, no pet.). An appellate court is not required to search a record without guidance from an appellant to determine whether assertions regarding the facts of the case are valid. Anheuser-Busch Co., Inc. v. Summit Coffee Co., 858 S.W.2d 928 (Tex. App. Dallas 1993, writ denied). If the appellate issue is not supported by argument or fails to cite to the record or legal authority, nothing is presented for review. Rothrock v. Summer Hills Cmty. Improvement Ass n, Inc., 330 S.W.3d 923, 924 (Tex. App. El Paso 2011, no pet.). The Court notified Lynd of this deficiency in the original brief, ordering him to comply or face dismissal. (Appellees App x Tab 4.) He subsequently filed a brief that does not cite to the record as requested by this Court. (See Lynd s Brief [5/31/11].) Thus, his brief should be struck and his appeal dismissed. Moreover, his brief does not have a concise statement of the case. (See Lynd s Brief [5/31/11] at 5.) He only makes arguments and does not state the course of the proceedings or disposition of the trial court. (See id. at 5-6.) The brief does not have a statement of facts supported by record references. See Tex. R. App. P 38.1(f). The brief does not contain a succinct, clear, and accurate statement of the arguments made nor does it contain appropriate citations to the record. See id. The Court also gave Lynd notice of these deficiencies, ordering him to comply or face dismissal. (Appellees App x Tab 4.) His subsequently filed brief did not cure these deficiencies. 7

Because of Lynd s briefing defects and his failure to cure after notice by the Court, the Court should strike Lynd s brief, prohibit Lynd from filing another brief, and proceed as if the Lynd had not filed a brief. See Tex. R. App. P 38.9. Next, in accordance with the appellate rule, the Court should dismiss this appeal because Lynd has waived his points on appeal. Lynd has presented nothing for this Court to review. See Rothrock, 330 S.W.3d at 924. II. The trial court did not err in granting motions for summary judgment to declare that that the Notice of Claim of Lien and the Notice of Mechanics Lien Sale were invalid. Lynd makes numerous complaints about the declaration that he does not have a valid lien. He claims the SFOT and the City cannot invalidate the lien because of the statute of limitations or laches. However, Lynd would have had to show that he had a lien against the City and SFOT property for more than 4 years. He would also have had to show that a lien against public property was authorized. He did not. The City and SFOT challenged a contractual relationship with Lynd, the validity of a notice of lien filed ten years after the work was complete, the applicability of the first lien to either SFOT or the City and the authority to foreclose on City property. The summary judgment evidence conclusively proved, as a matter of law, that Lynd had no valid claim against SFOT and the City and that Lynd was prohibited from foreclosing on City property. A. The Court reviews a motion for summary judgment de novo. Under Texas Rule of Civil Procedure 166a(c), summary judgment on an issue is proper if the discovery materials, pleadings, and other summary-judgment evidence on 8

file with the court show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Nixon v. Mr. Prop. Mgt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). The question on appeal is not whether the summary-judgment evidence raises fact issues but rather whether the evidence establishes as a matter of law that there is no genuine issue of material fact. Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). In reviewing the motion, the court takes as true all evidence favorable to the nonmovant, and makes all reasonable inferences in the nonmovant s favor. KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A plaintiff moving for summary judgment must conclusively prove its entitlement to prevail on each element of its cause of action as a matter of law. Thompson v. Chrysler First Bus. Credit Corp., 840 S.W.2d 25, 28 (Tex. App. Dallas 1992, no writ) (citing Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972)). If the plaintiff has produced evidence entitling it to summary judgment, then the burden shifts to the defendant as the nonmovant to present evidence that raises a material fact issue. E.g., Phan Son Van v. Pena, 990 S.W.2d 751, 752 (Tex. 1999). The defendant need respond only with reasons that avoid the plaintiff s entitlement to summary judgment on the plaintiff s causes of action (such as those set out in Texas Rules of Civil Procedure 93 and 94) or with presentation of additional summary judgment evidence that is necessary to raise a genuine fact issue. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). When a respondent to a motion for summary judgment is relying upon an affirmative defense to defeat the motion, it is not enough merely to allege that defense in 9

the response. Jones v. Tex. Pac. Indem. Co., 853 S.W.2d 791, 795 (Tex. App. Dallas 1993, no writ). The respondent must also present competent summary judgment evidence which raises a fact issue on each element of that defense. Id. This Court reviews a summary judgment de novo to determine whether a party s right to prevail is established as a matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex. App. Dallas 2000, pet. denied). B. The trial court did not err in declaring the Notice of Claim of Lien invalid because it failed to meet the requirements of the Property Code. Lynd was not entitled to perfect a lien against SFOT s leasehold interest or the City s real property. Section 53.021 of the Texas Property Code identifies which persons are entitled to a lien. It states: PERSONS ENTITLED TO LIEN. (a) A person has a lien if: (1) the person labors, specially fabricates material, or furnishes labor or materials for construction or repair in this state of: (A) a house, building, or improvement; Tex. Prop. Code 53.021. The work allegedly performed by Lynd for HOTY was not for improvement to real property owned by SFOT or the City. (CR 65.) The work, if any, was to a mobile home apparently owned by David Yates and/or HOTY. (CR 127.) The mobile home was, at most, a temporary exhibit placed on the fairgrounds during the State Fair of Texas in 2000. (CR 65.) Consequently, Lynd was not entitled to file a lien against the real property of the City of Dallas in which SFOT has a leasehold interest. 10

Specifically, section 53.054(a)(2) of the Texas Property Code states that a lien affidavit must identify the name and last known address of the owner or reputed owner of the property. See Tex. Prop. Code 53.054(a)(2). Lynd s Notice of Claim of Lien specifically listed David A. Yates, HOTY and AT&T, Inc. as the owners or reputed owners of the property in which Lynd was attempting to place his lien. (CR 127.) Lynd s Notice of Claim of Lien failed to identify either the City or SFOT as the proper owners of said property. Furthermore, section 53.054(a)(5) requires that the name and last known address of the original contractor be listed within the affidavit of lien. See Tex. Prop. Code 53.054(a)(5). However, once again, Lynd listed David A. Yates, HOTY and AT&T, Inc. as the persons whom claimant was employed. (CR 127.) Lynd s Notice of Claim of Lien failed to identify either SFOT or the City as the original contractor in which the work was performed. Therefore, Lynd s Notice of Claim of Lien was invalid as to SFOT and the City as it did not meet the requirements of sections 53.054(a)(2) or (5) of the Texas Property Code. C. The trial court did not err in declaring the Notice of Claim of Lien unenforceable because it is barred by the statute of limitations. Section 53.158(a) of the Texas Property Code provides: LIEN. (a) Except as provided by Subsection (b), suit must be brought to foreclose the lien within two years after the last day a claimant may file the lien affidavit under Section 53.052 or within one year after completion, termination, or abandonment of the work under the original contract under which the lien is claimed, whichever is later. Tex. Prop. Code 53.158(a). 11

Section 53.052(a) of the Texas Property Code states: FILING OF AFFIDAVIT. (a) Except as provided by Subsection (b), the person claiming the lien must file an affidavit with the county clerk of the county in which the property is located or into which the railroad extends not later than the 15th day of the fourth calendar month after the day on which the indebtedness accrues. Tex. Prop. Code 53.052(a). The Notice of Claim of Lien was filed on or about November 17, 2000. (CR 127.) Assuming, for argument sake, that Lynd properly complied with Section 53.052(a), Lynd nevertheless failed to timely file suit within the two years required by Section 53.158(a). Additionally, section 53.154 of the Texas Property Code states: [a] Mechanics lien may be foreclosed only on judgment of a court of competent jurisdiction foreclosing the lien and ordering the sale of the property subject to the lien. Tex. Prop. Code 53.154. There is no contractual agreement between SFOT, the City, and Lynd which would have allowed Lynd to proceed with a non-judicial foreclosure. (CR 65-66.) Lynd did not file suit against SFOT or the City within the two years from the date of filing as required by section 53.158(a). Rather, Lynd attempted to foreclose on his alleged Mechanics lien nine years after it was filed and without a judicial order as required by section 53.154 of the Property Code. Therefore, even if Lynd s Notice of Claim of Lien complied with the Texas Property Code, Lynd is barred by the statute of limitations from taking any action on his alleged Mechanics lien, and the trial court did not err in declaring the Notice of Claim of Lien invalid. 12

D. The trial court did not err in declaring the Notice of Mechanics Lien Sale unenforceable and invalid because it sought to foreclose property that was not listed within the Notice of Claim of Lien and is exempt from foreclosure. The property described in the Notice of Claim of Lien does not match the property described in the Notice of Mechanics Lien Sale. The property described in the Notice of Claim of Lien was a CHAMPION TRAILER HOME NO. AE1167, BE1167, CE1167, LOCATED AT 919 S. WASHINGTON AT THE STATE FAIR OF TEXAS FAIR GROUNDS, BETWEEN THE WOMWNS [sic] MUSEUM AND THE DAR HOUSE. (CR 127.) The property described in the Notice of Mechanics Lien Sale was 2 tracts of land commonly known as the Fair Park, State Fair of Texas, described in the Dallas County records as: Abstract 495 the John Grigsby League abstract, and the Thomas Lagow League, C/812/itla. (CR 129.) Lynd was clearly attempting to foreclose on property in which he did not have a valid lien. Furthermore, even assuming that Lynd s Notice of Lien Claim somehow managed to attach to the property described in the Notice of Mechanics Lien Sale, the property sought to be foreclosed upon was exempt under section 43.002 of the Texas Property Code. Section 43.002 states that [t]he real property of the state, including the real property held in the name of the state agencies and funds, and the real property of a political subdivision of the state are exempt from attachment, execution, and forced sale. Tex. Prop. Code 43.002. The City owns the property listed within Lynd s alleged Notice of Mechanics Lien. (CR 66.) Therefore, even if Lynd had filed a valid Notice of Lien Claim that actually referenced the property in which he was attempting to foreclose 13

upon in accordance with his Notice of Mechanics Lien Sale, Lynd would still not be able to foreclose on said property. As such, the trial court did not err in declaring the Notice of Mechanics Lien Sale unenforceable and invalid. E. The trial court did not err in declaring the Notice of Claim of Lien unenforceable and invalid because Lynd did not present any evidence in defense of limitations or laches. Lynd claims that Appellees were not entitled to summary judgments because their claim for removal of the lien or declaring the lien invalid was barred by limitations or laches. (Lynd s Brief [5/31/11] at 11.) Lynd had not pleaded the defense of limitations or laches in his answer. (CR 42.) Nevertheless, in his response to the motions for summary judgment he pleaded limitations but not laches. (CR 166, 173.) Because Lynd did not raise laches in the trial court, he cannot raise the issue in this Court. See Clear Creek Basin Auth., 589 S.W.2d at 678. Lynd did claim in his response that section 16.051 of the Texas Civil Practices and Remedies Code bars the action. (CR 166, 173.) Nevertheless, because Lynd is relying upon an affirmative defense to defeat the Appellees motions, his mere allegation of limitations in the response is not sufficient. See Jones, 853 S.W.2d at 795. Lynd was required to also present competent summary judgment evidence to raise a fact issue on each element of that defense. See id. Lynd did not present any summary judgment evidence for the limitations defense that he pleaded. (CR 166-68; 173-74.) In fact, the evidence in the record demonstrated that the notice of foreclosure against the City and SFOT was filed in 2010. (Appellees App x Tab 2.) The original lien filing in 2000 did not give notice of a lien to SFOT or the City. (Appellees App x Tab 3.) Additionally, 14

the statute of limitations does not apply to the City at all. Tex. Civ. Prac. & Rem. Code. 16.061 (an incorporated city is not barred from bringing an action by section 16.051). Because the statute of limitations does not bar the City, and because Lynd did not produce evidence to create a fact issue for his affirmative defense of limitations and did not plead or produce evidence to create a fact issue for the affirmative defense of laches, the trial court correctly granted the motions for summary judgment. This Court should affirm the judgment. III. The trial court did not abuse its discretion in entering a permanent injunction because Lynd waived any factual error in the issuance of the permanent injunction by failing to provide a reporter s record of the trial court proceedings. Lynd complains that Appellees did not provide evidence to support an injunction. (Lynd s Brief [5/31/11] at 6.) He claims that there was no evidence of ownership of the property until the day of trial. (Id.) The court held a trial to determine the issues surrounding the issuance of a permanent injunction. (Appellees App x Tab 3.) The grant or refusal of a permanent or temporary injunction is ordinarily within the trial court s sound discretion, and appellate review of the trial court s action is limited to the question of whether the action constituted a clear abuse of discretion. Green v. Unauthorized Practice of Law Comm., 883 S.W.2d 293, 296 (Tex. App. Dallas 1994, no writ). A trial court abuses its discretion if it acts without reference to any guiding rules or principles. See Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex. 1986). No reporter s record from the injunction hearing was requested or filed. (Docketing Statement at 3 [Appellees App x Tab 5].) A complaining party bears the 15

burden of presenting a sufficient record to show error. Gray v. Estell, No. 05-98-01785- CV, 2001 WL 279181, at *2 (Tex. App. Dallas Mar. 22, 2001, no pet.) (not designated for publication). When an appellant fails to file a reporter s record, an appellate court must presume the evidence presented was sufficient to support the trial court s order. Wilms v. Americas Tire Co., Inc., 190 S.W.3d 796, 804 (Tex. App. Dallas 2006, pet. denied). Without a reporter s record the Court cannot reverse a judgment based on arguments that depend on the evidence admitted at a hearing. Farahmand v. Thang Do, 153 S.W.3d 601, 602 (Tex. App. Dallas 2004, pet. denied). In the absence of a reporter s record from an injunction hearing, the Court must presume the evidence supported the trial court s findings. See Ward v. Lubojasky, 777 S.W.2d 156, 157 (Tex. App. Houston [14th Dist.] 1989, no writ) (temporary injunction); Wright v. Wright, 699 S.W.2d 620, 622 (Tex. App. San Antonio 1988, writ ref d n.r.e.) (same). The trial court s order is supported by (1) the pleadings filed, and (2) the trial court s findings that SFOT and the City would be irreparably harmed and did not have an adequate remedy at law. When, as here, there is no reporter s record and findings of fact and conclusions of law are neither properly requested nor filed, the judgment of the trial court implies all necessary findings of fact to sustain its judgment. See Waltenburg v. Waltenburg, 270 S.W.3d 308, 312 (Tex. App. Dallas 2008, no pet.). Without a reporter s record it is impossible to find that the trial court abused its discretion based on factual matters. Estell, 2001 WL 279181, at *2 (citing Guthrie v. Nat'l Homes Corp., 394 S.W.2d 494, 495 (Tex. 1965) (noting that in the absence of a statement of facts, the reviewing court must presume that that the evidence supports the 16

finding); Cowling v. Colligan, 312 S.W.2d 943, 946 (Tex. 1958) (same)). Because there is no reporter s record, the Court must affirm the permanent injunction because all necessary findings are implied to sustain the judgment. IV. Injunctive relief is appropriate to prevent wrongful foreclosure. Without the reporter s record, the Court reviews only whether the trial court was required to deny the injunction under any set of facts. See Collins v. Williamson Printing Corp., 746 S.W.2d 489, 491 (Tex. App. Dallas 1988, no writ). Lynd appears to argue that it is not legally proper to enjoin a wrongful foreclosure of a lien. He seems to claim that the City and SFOT had an adequate remedy at law to prevent the foreclosure and that was to pay an invalid debt. (Lynd s Brief [5/31/11] at 8, 9.) Lynd ignores the fact that the trial court held that he did not have a valid lien. Neither the City nor SFOT owed a debt to Lynd. An adequate remedy at law preventing relief by injunction means a remedy which is plain and complete, and as practical and efficient to the end of justice and its prompt administration as a remedy in equity. Minexa Az., Inc. v. Staubach, 667 S.W.2d 563, 567 (Tex. App. Dallas 1984, no writ); Hancock v. Bradshaw, 350 S.W.2d 955, 957 (Tex. Civ. App. Amarillo 1961, no writ). Paying an alleged debt that is not owed is not a remedy for SFOT and the City. To pay an invalid lien is not practical or efficient to the end of justice. What is just in paying an invalid debt secured by an invalid lien? Moreover, injunctive relief is proper to prevent the wrongful foreclosure. See e.g., Irving Bank & Trust Co. v. Second Land Corp., 544 S.W.2d 684, 688 (Tex. Civ. App. Dallas 1976, writ ref'd n.r.e.). It is well established that real property is unique. Id. Accordingly, debtors seeking to restrain foreclosure sales of real property generally have 17

no difficulty in establishing the inadequacy of their available legal remedies. See id. And in this case, section 43.002 of the Texas Property Code clearly prohibits a foreclosure on the City s property: The real property of the state, including the real property held in the name of the state agencies and funds, and the real property of a political subdivision of the state are exempt from attachment, execution, and forced sale. Tex. Prop. Code 43.002. Accordingly, in this case the permanent injunction was proper and necessary to protect public property. Accordingly, the Court should affirm the trial court s judgment. V. The trial court did not err in failing to set bond for the issuance of the injunction because no bond is required to be filed for a permanent injunction. Lynd appears to assert that the Appellees were required to post bond for the permanent injunction. (Lynd s Brief [5/31/11] at 7.) Because a permanent injunction is entered after a trial before the court, the lack of a bond urged by Lynd is not fatal to the injunction granted by the trial court. Canteen Corp. v. Republic of Tex. Props., Inc., 773 S.W.2d 398, 400 (Tex. App. Dallas 1989, no writ). No bond is required for a permanent injunction. See Tex. R. Civ. P. 684. Accordingly, the Court should affirm the trial court s judgment. VI. The trial court did not abuse its discretion in awarding attorney fees pursuant to the Declaratory Judgments Act because the State Fair and the City were prevailing parties. Lynd argues that the trial court erred in awarding the SFOT and City their reasonable and necessary attorney s fees. (Lynd s Brief [5/31/11] at 2 and 17.) However, both the SFOT and the City specifically requested relief pursuant to the 18

Declaratory Judgments Act, section 37 of the Texas Civil Practice and Remedies Code, seeking a declaration that the Notice of Claim of Lien dated November 17, 2000 and Notice of Mechanics Lien Sale dated February 17, 2010 were invalid and unenforceable as to the SFOT and City. (CR 7-24; CR 27-38.) Pursuant to section 37.009 of the Texas Civil Practice and Remedies Code the trial court, may award costs and reasonable and necessary attorney s fees as are equitable and just. Tex. Civ. Prac. & Rem. Code 37.009. As such, the trial court did not error in awarding the SFOT and City their reasonable and necessary attorney s fees incurred in seeking and obtaining the relief requested pursuant to the Declaratory Judgments Act. PRAYER Appellees State Fair of Texas and City of Dallas pray that the trial court s judgments and permanent injunction be affirmed. Additionally, evidence was presented supporting the attorney s fees awarded. (CR 134-135; CR 146-148). 19

Respectfully submitted, THOMAS P. PERKINS, JR. Dallas City Attorney /s/ Thomas P. Perkins, Jr. Barbara E. Rosenberg Texas Bar No. 17267700 Barbara.Rosenberg@dallascityhall.com Christopher J. Caso Texas Bar No. 03969230 Chris.Caso@dallascityhall.com Assistant City Attorneys City Attorney s Office 1500 Marilla Street, Room 7B North Dallas, Texas 75201 Telephone: 214-670-3519 Telecopier: 214-670-0622 ATTORNEYS FOR CITY OF DALLAS VINCENT LOPEZ SERAFINO JENEVEIN, P.C. Thanksgiving Tower 1601 Elm Street, Suite 4100 Dallas, Texas 75201 Telephone: (214) 979-7400 Telecopier: (214) 979-7402 /s/ Scott E. Hayes Scott E. Hayes Texas Bar No. 09280050 SHayes@vilolaw.com Kelly Fisher Texas Bar No. 00790686 KFisher@vilolaw.com Mark A. Rechner Texas Bar No. 24058064 MRechner@vilolaw.com 20

and ROBERT SMITH Attorney at Law /s/ Robert Smith Texas Bar No. 00786248 Robert@Smith-Firm.com 3838 Oak Lawn Avenue, Suite 1222 Dallas, Texas 75219 214/522-5571 Telephone 214/522-5009 Telecopier ATTORNEYS FOR STATE FAIR OF TEXAS CERTIFICATE OF SERVICE On this the 29 th day of June, 2011, a true and correct copy of the foregoing document was mailed via certified mail/return receipt requested to pro se Appellant: David Scot Lynd 2605 Rustown Drive Mesquite, Texas 75150 /s/ Mark A. Rechner Mark A. Rechner 21

APPENDIX Tab Document 1 Notice of Mechanics Lien Sale 2 Notice of Claim of Lien 3 Final Judgment and Permanent Injunction 4 May 18, 2011 Fifth District Court of Appeals Chief Deputy Clerk Claudia McCoy s letter to Appellee 5 Docketing Statement Solo Page