The Dallas Court of Appeals has affirmed a trial court order granting summery judgment to a concrete supplier who allegedly filed a fraudulent lien against a builder.
EarnhartBuilt, LLC v. Preferred Materials, LLC, Procore Technologies, Inc., Express Lien, Inc. d/b/a Levelset, Michael Mann, and J. Earnhart, Inc. (No. 05-24-00804-CV; February 5, 2026) arose from a dispute over a materialman’s lien. EarnhartBuilt, a property owner in Denison County, hired J. Earnhart to build a structure on the property. In May 2022 Preferred delivered $17,742.18 in ready-mix concrete materials to the property and invoiced J. Earnhart. J. Earnhart turned around and billed EarnhartBuilt, which tendered a check to J. Earnhart for $49,800. Preferred, however, never received payment for the concrete, so it billed EarnhartBuilt for it, stating that it would file a lien if it didn’t get paid. EarnhartBuilt emailed Preferred stating that it had already paid J. Earnhart in full and that any attempt to file a lien on the property would be considered fraudulent because notice of the lien was untimely. Preferred filed the lien anyway. EarnhartBuilt subsequently sued Preferred for violation § 12.002(a), CPRC, negligence, gross negligence, negligence per se, and business disparagement. Preferred responded with a traditional motion for summary judgment, which the trial court granted. EarnhartBuilt appealed.
In an opinion by Justice Barbare, the court of appeals affirmed. EarnhartBuilt first argued that the trial court erred by granting summary judgment on its fraudulent lien claim. Preferred countered that EarnhartBuilt failed to produce any evidence of the requisite statutory intent to cause injury or knowledge that the lien was fraudulent when filed. In support of its position, Preferred presented evidence from its corporate representative, who explained that Preferred filed the lien because they hadn’t been paid for the concrete. Preferred’s evidence also established that it didn’t file the lien with “a knowing misrepresentation of the truth or concealment of a material fact” (citation omitted). Instead, it “followed its usual business practice for collecting debts.”
The burden shifted to EarnhartBuilt to raise a genuine issue of material fact, which it argued existed “because the lien did not comply with the statutory notice requirements. § 53.052, Property Code. At most, this argument might render the lien unenforceable or invalid, not fraudulent. The court concluded that EarnhartBuilt’s email to Preferred warning about filing the lien “did not create a genuine issue ot material fact as to whether Preferred made, presented, or used a document with knowledge that it was a fraudulent lien” (citations omitted). The court further rejected EarnhartBuilt’s argument that the three-month delay in removing the lien after Preferred received its email created a genuine issue of material fact that Preferred knew the lien was fraudulent. Since Preferred had already exclusively established that it had no knowledge of a fraudulent lien, the court found it unnecessary to wade into the “intent” issue. “At best,” the court concluded, “EarnhartBuilt’s evidence does no more than ‘create a mere surmise or suspicion’ and is not ‘significantly probative’ to create a genuine issue of material fact” (citations omitted). The trial court did not err in granting Preferred’s MSJ on this issue.
Turning to the remainder of EarnhartBuilt’s causes of action, the court observed that “Preferred needed to show that EarnhartBuilt suffered no damages from the lien” in order to prevail on the negligence claim. EarnhartBuilt argued that the lien damages its banking relations, causing a loss of business. When its banks found out about the lien, they demanded updated financials, which EarnhartBuilt alleged took it two or three months to produce. But there was no evidence that EarnhartBuilt “lost” their banking relations, and EarnhartBuilt’s witness admitted that the property’s value did not decrease because of the lien. Instead, EarnhartBuilt leased three units as soon as Preferred pulled the lien and then sold the property for an $11,800 profit. EarnhartBuilt thus failed to produce any evidence of the damages element of a negligence claim. With no underlying negligence issue, the gross negligence and negligence per se claims went away as well. And with no evidence of special damages (or any damages), the business disparagement claim failed as well. The trial court was right again to dismiss them.
