GEORGE E. BAYLESS,FROM A DISTRICT COURT APPELLANT, v. SECURITY SAVINGS ASSOCIATION, FSA, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-01243-CV
 
GEORGE E. BAYLESS,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
SECURITY SAVINGS ASSOCIATION, FSA,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES HOWELL, BAKER, AND OVARD
OPINION BY JUSTICE BAKER
JUNE 19, 1989
        This is an action to determine the validity and priority of certain mechanic's and materialman's liens. George E. Bayless appeals from a summary judgment granted in favor of Security Savings Association, FSA. We find no merit in the points of error asserted by Bayless and affirm the trial court's judgment.
        The summary judgment evidence reflects that Security loaned money to Western Sunbelt Corporation for construction of a residential project on property in Tarrant County, Texas. Security filed a deed of trust to secure the loan in December 1985. This deed of trust was in fact a renewal and extension of a prior deed of trust between these parties which was recorded in January 1985. In 1986, Western defaulted on the loan, and on November 4, 1986, Security foreclosed and acquired title to the property. On May 23, 1986, Bayless filed an affidavit claiming an implied mechanic's and materialman's lien for not less than one million dollars. He claimed the sum was due for funds advanced and for services rendered, based upon a contract he held with Western. Bayless also became the assignee of two additional mechanic's liens. The first of these was filed by L. D. Kemp Excavating on January 21, 1987. The second was filed by Bil-Milk, Inc. on February 23, 1987.
        Security filed a declaratory judgment suit seeking judgment that the three liens claimed by Bayless were invalid. Bayless answered this suit with a general denial. Security subsequently filed its motion for summary judgment and supported that motion with affidavits and other summary judgment evidence. Bayless did not respond to this motion, nor did he file any separate controverting summary judgment evidence. The trial court granted Security's motion.
        We consider Bayless's first two points of error together. In his first point of error, Bayless contends that the trial court erred in granting Security a summary judgment because there were many issues of material fact in controversy. Bayless asserts that he has put all issues of material fact in controversy by the general denial he filed. Bayless asserts that these material fact issues are: (1) validity of the implied lien based upon the advancement of funds or expenditure of time and energy with respect to the property; (2) facts concerning priority of the implied lien and assigned mechanic's and materialman's liens with respect to removable improvements; and (3) facts showing the "inception" of the mechanic's and materialman's liens as being prior to Security's deed of trust. In his second point of error, Bayless contends that the trial court erred in granting Security's summary judgment because Security's summary judgment evidence is insufficient as a matter of law to entitle Security to judgment.
        In ruling on a motion for summary judgment, all conflicts in the evidence must be disregarded and the evidence which tends to support the nonmovant accepted as true. See Gonzalez v. Global Truck & Equip., Inc., 625 S.W.2d 348, 350 (Tex. Civ. App.--Houston [1st Dist.] 1981, no writ). The movant has the burden of showing that it is entitled to judgment as a matter of law by conclusively establishing all elements of its cause of action. See Hill v. Milani, 678 S.W.2d 203, 204 (Tex. App.--Austin 1984), aff'd, 686 S.W.2d 610 (Tex. 1985).
        The record in this case reflects that Security had two valid deeds of trust on the property in question which were filed in January and December 1985, that default on the loan occurred, and that Security foreclosed on the property and became the record owner in November 1986. The uncontroverted evidence also shows that all of the liens asserted by Bayless were filed long after Security's deeds of trust, and that the two liens that Bayless secured by assignment were filed three or four months after Security's foreclosure on the property.         We recognize that mechanic's liens take priority from the commencement of work and not from the date of filing. However, with respect to the implied lien asserted by Bayless, Security's summary judgment evidence reflects its initial deed of trust was filed far in advance of the contract that Bayless signed with Western. Security's deed of trust was initially filed in January 1985. Bayless entered into the contract with Western in July 1985. This contract provided that any interest Bayless acquired was to be subject to Security's indebtedness. The evidence established that Bayless did not advance any funds for the project and that he did not expend any time or energy with respect to the project prior to the time he signed the contract with Western. Bayless's implied lien reflects that his claim was for labor and management services rendered on and for the property in question. The two assigned liens were filed long after Security's first deed of trust, and the statutory periods to file affidavits expired long before the affidavits were filed. Security proved that it had priority over all liens asserted by Bayless.
        Bayless also contends that the mechanic's liens took priority because they involve removable improvements. Security's summary judgment evidence included sworn copies of the Kemp and Hampton liens. The Kemp lien reflects that the work done was the excavating of streets, use of equipment and labor to remove a fence, grading of a bar ditch along a road, and lot excavation. The Hampton lien reflects that the work done was off-site water construction. None of this work would have resulted in the installation of removable improvements. There could have been no priority on these two liens on such basis.
        We hold that Security has established all elements of its cause of action and has met its summary judgment burden. We overrule the first and second points of error.
        In his third point of error, Bayless contends that the trial court erred in shifting the burden of proof to him to disprove the allegations of Security's motion for summary judgment and that the trial court should have ruled that Security failed to carry its summary judgment burden. However, Bayless has failed to argue the point or support it by authorities, and the point is waived. See Golden Villa Nursing Home, Inc. v. Smith, 674 S.W.2d 343, 351 (Tex. App.--Houston [14th Dist.] 1984, writ ref'd n.r.e.); TEX. R. APP. P. 74(f). We overrule point number three.
        We affirm the trial court's judgment.
 
                                                                                                                    __________________________
                                                          JAMES A. BAKER
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-01243.F
 
 
File Date[09-06-89]
File Name[881243F]