Full opinion text
MAJORITY OPINION J. BRETT BUSBY, Justice. This lien priority case comes to us on appeal from the trial court’s rulings on cross-motions for final summary judgment. The appeal presents two issues involving two special types of real property liens. We first address the scope of a builder’s release of its mechanic’s lien. See generally Tex. Prop.Code Ann. Ch. 53 (West 2007 & Supp.2012). We conclude that the release at issue here did exactly what it purported to do: it released a previous mechanic’s hen on one of the tracts of land at issue. The release did not mention the underlying debt or the filing of future liens, so we conclude that with one exception, it did not affect the builder’s entitlement to the unpaid portion of its debt or its ability to file new hens. Nonetheless, there are fact questions regarding whether the hens that the builder filed after releasing its initial hen comply with the applicable statutes. These fact questions largely preclude summary judgment on the validity of the post-release hens. Next, we apply subrogation doctrines to a tax hen. Subrogation gives someone who pays a debt the hen priority of the creditor paid. Normally, subrogation is permissible because it does not alter the rights of junior lienholders; it merely alters the party to whom they are junior. When a party satisfies a tax hen, however, allowing subrogation to the taxing authority’s priority position may inequitably circumvent notice and foreclosure requirements that would otherwise apply. Fact issues preclude us from resolving the equities on this record. Therefore, with one exception described below, we reverse the trial court’s summary judgment and remand the case for further proceedings. Background Lyda Swinerton Builders, Inc. (the builder) agreed to improve real property owned by Park 8 Place, L.P. (the developer), but the improvements never progressed very far. This case began when the builder sued the developer, but the developer filed for bankruptcy protection and is no longer a party. The only parties remaining are two of the developer’s unpaid creditors: the builder and Cathay Bank. Both claim a priority interest in portions of the property that the developer planned to develop. We refer to these disputed tracts as “Parcel A” and “Parcel B.” Our task is to determine priority as between the builder (which claims priority based upon its mechanic’s liens) and the bank (which claims priority based upon deeds of trust and a tax lien that it satisfied). The builder began work on the project in February 2007. Over the next several months, the builder completed “dirt,” utility, and foundation work. During the same period, the bank lent the developer approximately $800,000 secured by a deed of trust on Parcel B and approximately $500,000 secured by a deed of trust encumbering the entire property. In October 2007, work ceased due to “payment issues” and never resumed. That month, the builder filed its first mechanic’s lien affidavit. The affidavit reflected a lien of approximately $8.2 million and only encumbered Parcel A. Generally, mechanic’s liens like this one relate back to the start of work for priority purposes, regardless of when the mechanic files its lien affidavit. See Diversified Mortg. Investors v. Lloyd D. Blaylock Gen. Contractor, Inc., 576 S.W.2d 794, 800 (Tex.1978). Thus, although the builder filed its affidavit after the bank had obtained its deed of trust liens, the builder’s lien nonetheless had priority because it related back to the start of work in February 2007. On October 81, 2007, shortly after the builder filed its first lien affidavit, the bank lent the developer approximately $1.9 million. A deed of trust encumbering both Parcels A and B secured the bank’s loan. The builder was paid $1.5 million of the loan proceeds against the developer’s outstanding debt. The builder then filed a lien release. We will discuss the release in detail later, but for now it suffices to say that the document recited the receipt of $1.5 million and purported to release the builder’s $3.2 million lien. On the same day that the builder signed its release, the bank used a portion of the loan to satisfy outstanding tax liens against the property. By statute, these tax liens are automatically senior to most other real property liens. See Tex. Tax Code Ann. § 32.05(b). The bank later claimed that the principle of subrogation entitled it to the taxing authority’s lien position for the portion of the loan used to pay taxes. See generally Smart v. Tower Land & Inv. Co., 597 S.W.2d 333 (Tex.1980). On November 13, 2007, soon after filing its release, the builder filed an “[a]mended” lien affidavit reciting a debt of approximately $2.9 million. This sum included both the unpaid portion of the developer’s pre-release debt (approximately $1.7 million) and amounts for post-release expenses that the builder had since incurred. Like the builder’s first lien affidavit, this one covered only Parcel A. The builder contends this post-release affidavit, as a mechanic’s lien, related back to the start of work in February 2007. As a result, according to the builder, it now had a $2.9 million lien that was senior to the bank’s deeds of trust, notwithstanding the lien release it had just filed. Although the builder stated in its hen affidavit that it had incurred post-release expenses, no post-release work had occurred on the property. The builder contends that even though it had stopped working, it remained on the site at the developer’s request. The post-release expenses reflected in the affidavit were “administrative and equipment rental costs related to maintaining the site at an estimated $200,000 per month.” Over the ensuing months, the developer made at least one partial payment, but the developer’s payment did not keep pace with the builder’s continually accruing expenses. In May 2008, the builder sent the developer a letter stating that if the developer failed to cure its debt, the builder would leave the project site and terminate the contract. The developer did not cure its debt, but the builder nonetheless remained on the site. Indeed, after sending this termination letter, the builder “continued to maintain its office facilities at the Project, continued to store materials and equipment at the Project, and maintained water, sewer, power, phones and data connections at the office complex.” It also continued to bill the developer for these expenses and to file lien affidavits to secure payment. Each new amended affidavit reflected the current total owed and each encumbered both Parcel A and Parcel B. While still on the property accruing expenses (allegedly still at the developer’s request), the builder sued the developer in October 2008. The bank intervened shortly thereafter, claiming a superior interest in the property. The trial court eventually severed this lien priority dispute from the builder’s action against the developer. With all this litigation pending, the builder filed its final lien affidavit in January 2009. This was over a year after the builder’s last work on the project, six months after its termination letter, and three months after filing its lawsuit. The final amended affidavit reflected a lien on Parcels A and B in the amount of $6.75 million, representing the builder’s total expenses. As a mechanic’s lien, the builder contends this lien related back to the start of work — almost two years earlier — and was therefore senior to the bank’s deed of trust liens on Parcels A and B. After filing this final lien, the builder remained on the property for another thirteen months. Shortly after the builder finally decamped from the property in March 2010, the bank foreclosed on its October 31, 2007 deed of trust. The builder received notice of the trustee’s sale, but contends it was unaware that the bank intended to foreclose on a senior tax lien. The builder contends that, “had [it] known that [the bank] was foreclosing ... transferred tax liens, [it] could have ... bid on the property at the foreclosure sale to preserve its interest.” But the builder did not bid at the foreclosure sale. Instead, the bank purchased the property for $10,000. Because this amount was less than the bank’s alleged senior tax lien, the bank contends its foreclosure extinguished all junior hens — including the builder’s. See 1-10 Colony, Inc. v. Chao Kuan Lee, 393 S.W.3d 467, 472 (Tex.App.-Houston [14th Dist.] 2012, pet. filed) (“It is well settled in Texas that a valid foreclosure on a senior hen ... extinguishes a junior hen ... if there are not sufficient excess proceeds from the foreclosure sale to satisfy the junior lien.”). The bank thus argues that, as a result of this sale, it owned the property outright. In the severed lien priority litigation, the parties filed cross-motions for final summary judgment. The builder argued that because its lien related back to February 2007, it was senior to the bank’s. Thus, the builder argued that the bank’s purchase of the property at its own foreclosure sale was subject to the builder’s senior lien. The bank contended that it was entitled to the property for two reasons. First, the bank argued that the builder’s release fully terminated any interest it had in the property and prevented it from filing new liens. Second, the bank contended that its foreclosure of a senior tax lien extinguished the builder’s interest in the property. The trial court granted the bank’s motion and denied the builder’s. It held that the bank owned the property “free and clear” of the builder’s claims. This appeal followed. Analysis I. Standard of review We review a trial court’s order granting traditional summary judgment de novo. Olmstead v. Napoli, 383 S.W.3d 650, 652 (Tex.App.-Houston [14th Dist.] 2012, no pet.). To be entitled to summary judgment, the movant must demonstrate that no genuine issues of material fact exist and that he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). If the movant does so, the burden shifts to the non-movant to produce evidence sufficient to raise a fact issue. Olmstead, 383 S.W.3d at 652. When reviewing a summary judgment motion, we cannot read between the lines or infer from the pleadings or evidence any grounds for summary judgment other than those expressly set forth before the trial court. Id. The builder presents two issues on appeal, which we address together: whether the trial court erred in granting the bank’s motion for summary judgment, and whether it erred in denying the builder’s motion. When both sides move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review both sides’ summary judgment evidence and determine all questions presented. Id. When, as here, the trial court’s order granting summary judgment does not specify the grounds on which it relied, the summary judgment will be affirmed if any of the theories advanced are meritorious. Id. Here, the two grounds advanced for summary judgment in the bank’s favor are (1) the builder’s release and (2) the bank’s alleged foreclosure of tax liens. We address these grounds in turn. II. Although the builder fully released its initial lien on Parcel A, it did not waive its right to file new liens covering other property or securing payment for post-release expenses, and there are fact questions concerning the validity of those new liens. One of the parties’ principal disputes concerns the builder’s mechanic’s lien. Specifically, the parties dispute (1) the effect of the builder’s release upon its initial lien and upon its ability to file subsequent liens, and (2) the validity of the builder’s post-release liens. We begin with some undisputed general principles. “As a general rule, a properly perfected mechanic’s lien ‘relates back’ to a time referred to as the inception of the lien for the purpose of determining lien priorities.” Diversified Mortg. Investors, 576 S.W.2d at 800. In most cases, “the time of inception of a mechanic’s lien is the commencement of construction of improvements or delivery of materials to the land on which the improvements are to be located and on which the materials are to be used.” Tex. Prop.Code Ann. § 53.124(a). Here, neither party disputes that the relevant date for inception of the builder’s liens is February 2007. Thus, if the builder’s lien affidavits are effective, they all relate back to February 2007, and the bank’s relevant deeds of trust are junior to them. The bank argues these liens are ineffective, however, because of (1) the builder’s release and (2) flaws in the post-release liens themselves. As explained below, we hold that with one exception, the bank is incorrect regarding the release and that fact issues regarding the validity of the post-release liens preclude summary judgment for either party. A. The release did exactly what it said: it released the builder’s initial lien and nothing more. Omitting the formal parts, the builder’s October 2007 release reads as follows: RELEASE OF LIEN The [builder] is a holder of a lien (“the lien”) in the amount of $3,228,444.50 (“the indebtedness”) filed originally on or about October 10, 2007 [in the] Real Property Records of Harris County, Texas regarding the real property and improvements thereon (“the property”) generally described as Park 8, Tower B, [the property’s address] and more particularly described as follows: [Description of Parcel A]. FOR AND IN CONSIDERATION of $1,500,000.00 and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the [builder] does hereby release and discharge the property from this lien. A release is a writing that provides that a duty or obligation owed to one party to the release is discharged, either immediately or upon the occurrence of a condition. See Port of Houston Auth. of Harris Cnty. v. Zachry Const. Corp., 377 S.W.3d 841, 854 (Tex.App.-Houston [14th Dist.] 2012, pet. filed). Releases are subject to the usual rules of contract construction. Id. As in other instances of contract construction, our primary concern is to ascertain the intent of the parties at the time of the execution of the alleged release as expressed in the release. Id. To construe the release, we may examine evidence of the circumstances surrounding its negotiation and execution. Id. We may also consider the title of the document, but it is not dispositive. Id. Here, the parties present multiple alternative interpretations of the two-sentence release. They dispute the release’s effect on the builder’s initial October 2007 lien, on the underlying debt, and on the builder’s ability to file subsequent liens. Below, we discuss in detail what the release does and why it does not do all of the work that the parties assign to it. The short answer is that the release only says that the builder is releasing the full amount of its initial lien against Parcel A. The builder argues that notwithstanding the release, it could “re-file” a lien for the unpaid portion of the same debt against the same parcel of land. We disagree because allowing the builder to do so would render the release meaningless. Thus, the release extinguished the builder’s initial lien and prevented it from reasserting the same lien against Parcel A for the unpaid portion of the pre-release debt. The bank argues that the release also did other things, but the document in front of us does not mention them. For example, the bank argues that the release not only released the lien, but also forgave the unpaid portion of the initial debt. The release does not say that. The bank also argues that the release prevented the builder from filing liens for subsequent expenses. The release does not say that either. Finally, the bank contends that the release prevented the builder from securing the unpaid portion of its initial debt with a lien on Parcel B. The release also does not say that — it only mentions Parcel A. Accordingly, the release does not entitle the bank to the final summary judgment it received below. 1. The release unambiguously released the full amount of the initial lien, but it did not forgive or cancel the unpaid portion of the pre-release debt. To explain these conclusions, we begin with the release’s effect on the builder’s pre-release lien and debt. The builder argues that it only released its initial October 2007 lien to the extent of the payment it received. More specifically, because it only received $1.5 million of the $3.2 million it was owed, the builder contends it only released $1.5 million of the initial lien. We disagree. The release contains just two sentences. The first describes the lien and the property, stating that the lien secures a debt of $3.2 million. The second “release[s] and discharged the property from this lien” “for and in consideration of $1,500,000.00” (emphasis added and capitalization omitted). This language does precisely what it says: it releases the whole lien. The builder’s contrary interpretation is inconsistent with the unambiguous language of the release and therefore unreasonable. Notwithstanding this plain language, the builder argues that section 53.152(a) of the Property Code required it to release its lien “to the extent of the indebtedness paid,” so we should construe its release to have only this effect. Although “[sjection 53.152 delineates the minimal obligation of a contractor to release a lien upon receiving payment, ... nothing in the statute suggests that broader releases may not be executed.” Addicks Servs., Inc. v. GGP-Bridgeland, LP, 596 F.3d 286, 297 (5th Cir.2010). Here, in exchange for immediate payment, the builder executed a broader release and thereby fully released its initial lien. But the release itself does not forgive the unpaid portion of the developer’s underlying debt. Thus, although the release extinguished the lien, nothing in the document suggests the builder intended to forgive the remaining $1.7 million debt that had not been paid. To the contrary, the release distinguishes the “indebtedness” from the “lien” and releases only the lien. The document’s first sentence is definitional: it defines “the lien,” “the indebtedness,” and “the property.” The use of separate terms to describe “the lien” and “the indebtedness” demonstrates a desire to distinguish one from the other. The release’s second sentence is operative: it “release[s] and discharge^] the property from this lien.” The second sentence does not mention the indebtedness. In this way, the builder unambiguously demonstrated its intent to release only “the lien” without forgiving the unpaid portion of the separately defined “indebtedness.” Moreover, the circumstances of the transaction support this construction of the release. Sun Oil Co. (Del.) v. Madeley, 626 S.W.2d 726, 731 (Tex.1981) (“If, in the light of surrounding circumstances, the language of the contract appears to be capable of only a single meaning, the court can then confine itself to the writing.”). To the extent the release evidences a contract (see n. 6, infra), the parties to that contract are the bank and the builder. The bank sought a priority interest in the property, while the builder sought partial payment. There is no evidence, however, that either party sought to reduce the developer’s debt. As for the builder, it had no reason to forgive the developer’s debt because it wanted payment for its work. In any event, there is no evidence that the builder agreed to — or was even asked to— forgive the unpaid portion of the underlying debt. As for the bank, nothing in the record suggests that the bank had any interest in reducing the developer’s indebtedness to the builder. The bank wanted to get the builder’s previously filed lien out of the priority line, not to protect the developer. We must also “keep in mind that lien waivers, as their name implies, pertain to lien rights and not to the more general right to payment.” 3 Philip L. BRUNER & Patrick J. O’Connor, Jr., Construction Law § 8:151 (2002). Here, neither the release’s text nor the context of the transaction establishes that the parties intended to forgive the developer’s underlying debt. We therefore reject the bank’s contention that the release had this effect. Thus, following the release of its initial October 2007 lien, the builder held no lien against Parcel A or any other tracts. The developer remained indebted to the builder, however, for the $1.7 million unpaid portion of the pre-release debt. 2, The release prohibited the builder from re-filing a lien against the same property for the remaining pre-release debt. The builder next argues the release did not prohibit it from re-filing a lien against the same property for the unpaid portion of the same debt. This construction is unreasonable because it would essentially render the release meaningless. The release’s plain language and the context of the transaction demonstrate that the parties intended for the builder to release its previously filed lien, thereby ensuring the bank’s priority position on Parcel A. For this reason, the bank paid the builder $1.5 million, and in exchange the builder fully released its lien. Once released, the lien could not be revived. See Apex Fin. Corp. v. Brown, 7 S.W.3d 820, 830 (Tex.App.-Texarkana 1999, no pet.). Although a release may be rescinded for failure of consideration, see Murray v. Crest Const, Inc., 900 S.W.2d 342, 344 (Tex.1995), in this case the consideration was paid, the release was filed, and the builder presents no argument that would permit it to rescind the release in part. Allowing the builder to re-file a lien for a portion of the same debt against the same property, however, would effectively allow a rescission. Nothing in the record suggests that the parties intended for the builder to retain such unilateral authority. To the contrary, for the bank to obtain the security it bargained for, the pre-release lien had to stay fully released. We therefore reject the builder’s argument that the release permitted it to re-file liens against Parcel A to secure the unpaid portion of the pre-release debt. 3. The release did not prohibit the builder from filing new liens on other tracts for the unpaid debt or liens on any tracts for post-release expenses. Having determined the release’s effect on the builder’s October 2007 lien and the developer’s pre-release debt, we turn to the release’s effect on the builder’s post-release hens. After filing the release, the builder filed four amended lien affidavits to secure payment for the unpaid portion of the pre-release debt and for expenses that the builder continued to incur. The first of these documents, filed shortly after the release in November 2007, asserted a lien only against Parcel A. The builder filed a second amended affidavit in June 2008, a third in October, and a fourth in January 2009. These three subsequent affidavits placed liens on the entire property, including Parcels A and B. Each affidavit updates the total amount owed by the developer at the time of filing. The final affidavit states that approximately $6.75 million is owed. The bank argues that summary judgment in its favor was proper because the builder’s release prevented it from filing any further liens on any tracts to secure any of the developer’s debt. As discussed above, the bank is right insofar as the release prohibited the builder from re-filing a lien on Parcel A for the unpaid portion of the pre-release debt, and it is entitled to partial summary judgment to that extent. As to the bank’s other contentions, we disagree. Neither the release itself nor any summary judgment evidence suggests that the builder agreed to refrain from filing new hens if it incurred additional expenses. By its terms, the release affected only the builder’s pre-release lien. It said nothing about the builder’s ability to file future hens for post-release expenses. In this way, the release differs from that in Apex Financial Corporation v. Brown, upon which the bank rehes. In that case, the waiver released hen rights based not only upon “labor or materials furnished,” but also upon labor and materials “to be furnished in the future.” 7 S.W.3d at 830. The court held that this language allowed the party challenging the subsequently filed hens to “rely on the fact that the ... property would not be burdened by a statutory mechanic’s hen.” Id. The release here, by contrast, does not purport to waive the builder’s right to file new hens. Instead, it refers only to the hen already filed and the indebtedness already incurred. We therefore do not construe the release as barring hens for post-release expenses. Similarly, neither the release itself nor any summary judgment evidence suggests the builder agreed to refrain from filing a hen against tracts other than Parcel A to secure the unpaid portion of the pre-re-lease debt. The builder’s initial October 2007 lien only encumbered Parcel A, and its release purported to release only this lien. The release did not mention Parcel B or the property’s other tracts, so we do not construe it to prevent the filing of liens against those tracts to secure the unpaid portion of the developer’s pre-release debt. This construction is consistent with the release’s plain meaning and the context of the transaction. The builder released Parcel A from its initial lien, and it cannot avoid this consequence by simply re-filing. But there is no evidence that the parties intended the release to prevent the builder from securing the remaining pre-release debt — or any other debt for that matter— with a lien on Parcel B. Nor is there any contention that Parcel B is outside the “[property to [w]hich [the] [l]ien [e]x-tends” under Texas Property Code section 53.022. Thus, on the record before us, nothing prevented the builder from filing a lien against Parcel B to secure the unpaid portion of the developer’s pre-release debt. The bank makes additional arguments to avoid this result, but they do not change our conclusion that the release does not entitle the bank to final summary judgment. The bank contends that we must construe the release to waive additional rights because the release’s language differs from language in other “partial releases” that the builder filed. Although the relevant release does differ from others in the record, its language still does not waive the builder’s right to file future liens for post-release expenses or forgive the developer’s unpaid debt. The bank also contends that the builder could not “amend” its October 2007 lien because it fully released this lien and therefore had nothing to amend. This contention must be evaluated under the mechanic’s hen statute because the liens at issue here are creatures of statute. Indeed, “ ‘[a] subcontractor’s lien rights are totally dependent on its compliance with the statutes authorizing the lien.’ ” K & N Builder Sales, Inc. v. Baldwin, No. 14-12-00012-CV, 2013 WL 1279292, at *3 (Tex.App.-Houston [14th Dist.] Mar. 28, 2013, no pet.) (mem. op.) (quoting First Nat’l Bank in Graham v. Sledge, 653 S.W.2d 283, 285 (Tex.1983)). Although a general contractor may have common law, contractual, and constitutional lien rights as well, the builder has not relied upon such rights in this appeal. Thus, to determine whether the builder has a statutory lien based upon its amended affidavits, we need only “compare the steps the [builder] took to perfect [its] liens with the statutory requirements.” First Nat’l Bank in Graham, 653 S.W.2d at 286. The required contents of a lien affidavit are prescribed in section 53.054(a) of the Texas Property Code. We conclude that each post-release affidavit complies with these requirements, and the bank does not argue otherwise. Nothing in the statute suggests that the builder sacrificed its entitlement to a lien in its November 2007 affidavit by adding a statement that this affidavit “amends” the original October 2007 affidavit, which perfected a lien that had been released in the interim. To the contrary, the supreme court has made clear that “substantial compliance with the statutes is sufficient to perfect a lien.” Id. at 285. Our dissenting colleague disagrees with this conclusion, relying on the affidavits’ form rather than their substance. In her view, the first post-release affidavit in November 2007 is ineffectual because it purports to amend the October 2007 affidavit, but there was nothing to amend because the lien perfected by that affidavit had been released. Moreover, because the post-release affidavits amend one another, she contends those affidavits are ineffectual as well. We disagree with this analysis because it is contrary to the language, established interpretation, and purpose of the mechanic’s lien statutes. Nothing in the language of the statutes suggests that a lien’s effectiveness hinges upon whether affidavits filed after a release describe themselves as “amending” or “replacing” the pre-release affidavit. This omission is telling because the statutes not only contemplate, but require, releases whenever payment is received. See Tex. Prop.Code Ann. § 53.152(a). Release documents are “an intended and customary part of the payment process” in construction transactions. 3 BRuner & O’Connor, supra. Given the prevalence and necessity of releases, one would expect that if the Legislature intended “amended” post-release affidavits to be entirely ineffective, it would have expressed that intent. Certainly some statutory warning would be appropriate if, as the dissent argues, a mechanic who proceeds by amendment loses all security for expenses incurred after filing a statutorily required release. Because there is no such warning or expression of legislative intent, we adhere to the requirements the Legislature did establish in section 53.054(a), which are met here as explained above. Cases interpreting the mechanic’s lien statutes also counsel against invalidating a lien on a purely technical basis. For example, “[i]t is well settled that the mechanic’s and materialman’s lien statutes are to be liberally construed for the purpose of protecting laborers and material-men.” Ready Cable, Inc. v. RJP S. Comfort Homes, Inc., 295 S.W.3d 763, 765 (Tex.App.-Austin 2009, no pet.). And courts have been more willing to excuse a mistake or omission in cases where no party is prejudiced by the defect. Id. (citing cases). Indeed, “[t]he Legislature did not intend that the materialman should lose his hen through the technicalities of a warning, where the owner was not misled to his prejudice.” Hunt Developers, Inc. v. W. Steel Co., 409 S.W.2d 443, 449 (Tex.Civ.App.-Corpus Christi 1966, no writ). Here, there is no contention that the bank, the developer, or anyone else relied upon or was misled by the references to amendment in the post-release affidavits. Each affidavit was properly filed in the real property records, each clearly identifies the encumbered property, and each states the amount of the lien. Moreover, the purpose of these affidavits was to give notice of the builder’s interest in the property. See Arias v. Brookstone, L.P., 265 S.W.3d 459, 464-65 (Tex.App.-Houston [1st Dist.] 2007, pet. denied) (purpose of serving lien affidavits on property owner is to give notice). If anything, filing the post-release affidavits as amendments furthered this purpose. The use of the amendment format ensured that all of the amendments were filed together, thus clarifying that each affidavit superseded the previous one and that the most recent stated the full extent of the builder’s interest. At bottom, the dissent rests on the rule that “[i]f there is nothing for an amended instrument to amend, then such an amended instrument is itself ineffectual nullity.” Post, at 255. The dissent cites no authority for applying this rule to mechanic’s lien affidavits, but would apparently apply it to instruments of every kind. Of course, we agree that this rule may apply in some situations. See, e.g., Lazo v. RSI Int’l, Inc., No. 14-06-00432-CV, 2007 WL 2447299, at *4 (Tex.App.-Houston [14th Dist.] Aug. 30, 2007, no pet.) (mem. op.) (endorsement to cancelled insurance policy ineffective). But it does not apply to amended pleadings, for example. Because an amended pleading replaces the original pleading, see Tex.R. Civ. P. 65, no one would argue that a fatal defect in the original pleading that is absent from the amended pleading vitiates the latter simply because it states that it amends the original pleading. We decline to apply the dissent’s rule to defeat otherwise valid instruments that effectively serve the purpose for which they were created. Here, the amended affidavits gave notice of the builder’s interest in the property in compliance with the applicable statutes. Accordingly, they perfected the builder’s lien. B. Whether the builder timely filed its post-release lien affidavits and whether its post-release expenses were for “materials” as defined in the mechanic’s lien statute involve fact questions that preclude final summary judgment for either party. The bank next contends that even if the builder’s release allowed it to file subsequent lien affidavits, its post-release affidavits were nonetheless ineffective because (1) they were untimely and (2) the expenses referenced in the affidavits could not give rise to mechanic’s liens because they were not for “materials furnished for construction” as required by the mechanic’s lien statute. We address each argument in turn. Because there are fact questions regarding both arguments, neither party is entitled to final summary judgment regarding the validity of the post-release mechanic’s liens. 1. The timeliness of the builder’s post-release liens presents questions of fact. Because mechanic’s liens attach on the day work begins, but need not be recorded until after work concludes, there can be notice problems. That is, a party relying solely upon the real property records will be unaware of a mechanic’s senior lien until after the mechanic files its affidavit. See Diversified Mortg. Investors, 576 S.W.2d at 801. The mechanic’s visible construction activity on the property fills this potential notice gap. Id. at 801-02. Thus, mechanic’s hens first attach at “the commencement of construction ... or delivery of materials,” that is “visible from inspection of the land.” Tex. Prop.Code Ann. § 58.124. Mechanic’s lien statutes also protect third parties by requiring mechanics to file their affidavits within a fixed period after their presence on the property ceases. See id. § 58.052. In this way, when work is ongoing, third parties can observe the mechanic’s presence and assume that hens may be forthcoming. See Diversified Mortg. Investors, 576 S.W.2d at 801. After work concludes, a party can avoid mechanic’s hens by waiting for the lien-filing period to expire. See id. The clock on the filing period starts ticking when “indebtedness accrues.” Here, the builder had to file its hen affidavit “not later than the 15th day of the fourth calendar month after the day on which the indebtedness acerue[d].” Tex. Prop.Code Ann. § 53.052. Several events can trigger the accrual of indebtedness, but each stands in for the cessation of work. For example, indebtedness to an original contractor accrues on the last day of a month during which either the contractor or the property owner receives a written declaration from the other party terminating the contract. Id. § 53.053(b)(1). Absent termination, indebtedness accrues “on the last day of the month in which the original contract has been completed, finally settled, or abandoned.” Id. § 53.053(b)(2). For our purposes, the only relevant accrual triggers are abandonment and termination. The builder argues it never abandoned or terminated the project until it left the site in March 2010, so its post-release hen affidavits filed between November 2007 and January 2009 were all timely. For its part, the bank argues that the builder abandoned the project when it stopped working in October 2007, and thus ah but the first of the builder’s post-release lien affidavits were untimely because they were filed after February 15, 2008. We cannot agree with either party because the summary judgment evidence fails to conclusively establish when the builder abandoned or terminated the contract. Fact questions regarding abandonment. Chapter 53 of the Property Code does not define “abandoned.” See Tex. Prop.Code Ann. § 53.001. Moreover, neither party has cited, and our research has not revealed, a Texas authority exploring the meaning of “abandoned” as applied to mechanic’s liens. We therefore use the word’s ordinary meaning. See TGS-NO-PEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex.2011). “Abandon,” as used in this context, means “to turn from or relinquish.” Webster’s Third New International Dictionary 2 (1993). Courts across the country disagree about whether the objective appearance of abandonment triggers a mechanic’s filing obligation or whether the parties must actually intend to abandon the project. See Superior Constr. Servs., Inc. v. Belton, 749 N.W.2d 388, 391 (Minn.Ct.App.2008) (discussing the two approaches). The courts that focus upon the notice-giving purpose of ongoing work believe that the parties’ “secret purposes” have no place in the analysis. Allison v. Schuler, 38 N.M. 506, 36 P.2d 519, 522 (1934). These courts consider only the objective appearance of abandonment. See id. Other courts emphasize the mechanic’s need for certainty in order to safeguard its rights and therefore include in their analysis the parties’ subjective intent regarding abandonment. See Superior Constr. Servs., 749 N.W.2d at 391. The parties here have not asked us to adopt one side of this split over the other, and we conclude that it is unnecessary to do so. Based upon the summary judgment evidence, both approaches raise fact questions. Accordingly, neither party is entitled to summary judgment under either approach. Regarding the parties’ subjective intent, the builder argues that a single fact conclusively establishes that it did not abandon the project until March 2010: the developer’s request that it remain on the site until that time. Given the unique facts of this case, we disagree. The project began deteriorating long before the builder’s March 2010 departure, and there is evidence that one or both of the parties may have abandoned the project prior to that time. Indeed, two and a half years passed between the day the builder stopped working and the day it left the project site. During that time, the builder did no work, received little payment, sent notice of its intent to terminate the contract, and sued the developer. The builder is correct that its continuing presence on the property supports an inference that it did not abandon the project, but these other developments support a contrary inference. This evidentiary conflict raises a fact question that cannot be resolved on summary judgment. We also reject the builder’s argument that its summary judgment evidence conclusively established that the parties actually intended to complete the project. The builder relies upon affidavits from its operations manager and a letter that it sent to the developer in May 2008. One affidavit says that “[the developer] repeatedly promised that it was in the process of securing additional financing, and that [the builder] should not demobilize.” The other states that the builder “did not terminate the contract, abandon the contract or demobilize the Project” when it stopped working in October 2007 “[b]ecause of [the developer’s] repeated promises that it was in the process of securing additional financing.” Neither affidavit reflects exactly when the developer made these promises or exactly what promises it made. Without this information, the mere existence of promises as early as October 2007 fails to establish conclusively the non-abandonment of the project prior to March 2010. The builder’s letter to the developer falls short for similar reasons. The May 2008 letter states that “[the builder] at the request of [the developer] has remained mobilized at the site.” Even if the developer made this request prior to May 2008, however, such a request would not conclusively establish that the intent to complete the project survived until March 2010. The summary judgment evidence fails to establish conclusively when the parties intended to abandon the project, so neither party is entitled to summary judgment based upon abandonment. Turning to the objective appearance of abandonment, the builder argues that its equipment remained on the property, signaling to third parties that it was working and that its liens could come at any time. The bank focuses upon the long period during which no work occurred, arguing that a third party would surmise the work was over. The parties’ arguments are both correct, as far as they go, and demonstrate the existence of a fact question on abandonment. Maintaining equipment on the property certainly suggests work may be ongoing. But the builder’s extended period of inactivity suggests that, at some point, the builder and the developer may have given up the project. Deciding if and when the parties abandoned the contract is therefore a fact question that cannot be resolved on summary judgment. Fact questions regarding termination. For purposes of a statutory mechanic’s lien, a contract terminates when one party receives a written notice of termination from the other. Tex. Prop.Code Ann. § 53.053(b)(1). The builder contends that “[i]t is undisputed” that it “never received any notice the Contract was terminated” (emphasis added). This appears to be correct. But the builder alleged in its original petition below that it “served notice of intent to terminate the Contract” “[b]y late May, 2008” (emphasis added). At this point, the builder contended it had “bec[o]me apparent that [the developer] was incapable of obtaining the financing necessary to complete the Project.” The builder’s termination letter stated that, if the developer failed to cure its default, the contract would terminate on May 27, 2008. Although this letter appears in the record, we do not believe it conclusively proves that the contract terminated in May or June of 2008. First, there is no evidence that the developer received this written notice, and section 53.053(b)(1) provides that receipt triggers the accrual of indebtedness, not dispatch. Moreover, neither party’s brief thoroughly addresses the termination letter’s effect. Thus, the issue of termination also cannot be resolved on summary judgment. 2. The builder’s filing of a single timely mechanic’s lien does not render its amended liens timely under the statute. The builder argues, however, that issues of termination and abandonment do not prevent final summary judgment in its favor. The builder points out that even if its later post-release affidavits were untimely, its first amended lien affidavit filed in November 2007 was still timely. The builder then contends that any late affidavits “relate] back” to this timely one. Under this theory, the builder’s single timely affidavit enabled it to more than double its lien on the property at any time regardless of when the statutory filing period expired. We disagree with this construction of the filing requirements. The builder’s construction disregards the language of the relevant statutes. To obtain a valid lien, a mechanic “must file an affidavit” within the statutory period. Tex. Prop.Code Ann. § 53.052. This affidavit “must contain substantially ... a sworn statement of the amount of the claim.” Id. § 53.054(a). Here, the first amended affidavit, assuming it was timely, did not contain a substantially correct statement of the amount the builder ultimately claimed. The first amended affidavit stated a claim for approximately $2.9 million, and the builder ultimately claimed approximately $6.75 million. Thus, the builder’s first amended affidavit satisfied both the timeliness requirement and the amount-of-the-claim requirement only to the extent of the $2.9 million claim it substantially recited. We therefore reject the builder’s argument that its first amended affidavit satisfied the timeliness requirement as to all subsequent affidavits. Although the bank does not dispute the timeliness of the first amended hen affidavit, we cannot grant a partial summary judgment that this affidavit imposed a valid mechanic’s lien. As an initial matter, approximately $1.7 million of the first amended lien was for pre-release expenses that we have held the builder could not reassert against Parcel A. Because the first amended affidavit only mentioned Parcel A, it was ineffective to re-impose a lien for the pre-release expenses, and the bank is entitled to partial summary judgment to that extent. The remaining $1.1 million in the first amended affidavit appears to have been for post-release expenses. As we discuss below, however, the record does not conclusively establish whether the builder could obtain a mechanic’s lien for those or other postrelease expenses. As a result, notwithstanding the apparent timeliness of the first amended affidavit, fact questions preclude summary judgment as to its effectiveness regarding post-release expenses. 3. Whether the builder’s post-release expenses were for “material furnished for construction” presents fact questions. Mechanic’s liens secure payment for, among other things, “the labor done or material furnished for the construction or repair.” Tex. Prop.Code Ann. § 53.023. As to the post-release liens, there is no contention that the builder “d[id] labor.” Rather, the builder argues that its services after construction ceased were “material furnished.” “Material” means all or part of: (A) the material, machinery, fixtures, or tools incorporated into the work, consumed in the direct prosecution of the work, or ordered and delivered for incorporation or consumption; (B) rent at a reasonable rate and actual running repairs at a reasonable cost for construction equipment used or reasonably required and delivered for use in the direct prosecution of the work at the site of the construction or repair; or (C) power, water, fuel, and lubricants consumed or ordered and delivered for consumption in the direct prosecution of the work. Tex. Prop.Code Ann. § 53.001(4). The builder generally contends that its post-release expenses fall into these categories. The builder’s affidavit states that the expenses were for “maintain[ing] its office facilities at the Project, continu[ing] to store materials and equipment at the Project, and maintain[ing] water, sewer, power, phones and data connections at the office complex.” The bank contends that none of these post-work expenses are “materials” because, once work ceased, nothing was “used” or “consumed” in the “direct prosecution of the work.” See id. We disagree because the definition of materials does not always require actual use or consumption in the direct prosecution of the work. Instead, mechanic’s liens are also available when items are “delivered for” use or consumption. Id. In this way, the availability of a mechanic’s hen becomes a question of how the parties intended to use equipment and services delivered to the project, which is generally a question of fact. State ex rel. Perrin v. Hoard, 94 Tex. 527, 62 S.W. 1054, 1056 (1901). Here, we cannot determine conclusively from the summary judgment evidence exactly when the developer and builder ceased intending to prosecute the work. Therefore, we cannot tell the extent to which the builder’s expenses were for equipment or services delivered for that purpose. Standing alone, the fact that no work ultimately occurred does not answer these questions. Moreover, to obtain a mechanic’s lien for rental expenses, the equipment must be not only “delivered for use,” but also “reasonably required” for use in the direct prosecution of the work. Tex. Prop.Code Ann. § 5S.001(4)(B). In this case, the builder continued to incur rental expenses for several months after work had ceased even though the developer already owed over $1.7 million and the project had no apparent prospect of adequate financing. At some point, continuing to incur these expenses may have become unreasonable, regardless of the parties’ intent. Whether and at exactly what point these expenses stopped being “reasonably required” are questions of fact that cannot be answered conclusively on this record. Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 56 n. 6 (Tex.1997) (“[R]easonableness is ordinarily a question of fact.”). For these reasons, we affirm the trial court’s grant of summary judgment insofar as it held that the builder’s lien against Parcel A for the unpaid portion of the pre-release debt is junior to the bank’s deed of trust lien. Otherwise, to the extent the trial court’s granted summary judgment for the bank based on the release, the summary judgment cannot stand. III. Although the bank’s failure to comply with the tax lien transfer statutes does not prevent its subro-gation to a tax lien, there are fact questions regarding whether equity requires subrogation here. The parties’ other principal dispute concerns whether the bank became subrogat-ed to a senior tax lien that it satisfied with part of its loan proceeds. With a few exceptions that are not relevant here, tax liens are senior to other liens. See Tex. Tax Code Ann. § 32.05(b). Thus, if the bank became subrogated to tax hens, these liens would be senior to the builder’s mechanic’s liens. As a result, foreclosure of the subrogated tax hens would have extinguished the builder’s mechanic’s hen because the foreclosure sale proceeds were insufficient to satisfy both. See 1-10 Colony, Inc., 393 S.W.3d at 472. The bank would therefore own the property free of the builder’s hens, and it would be entitled to final summary judgment regardless of the issues discussed in Part II above. Subrogation is liberally applied and is broad enough to include every instance where one person, not acting voluntarily, pays another’s debt. Lancer Corp. v. Murillo, 909 S.W.2d 122, 127 (Tex.App.San Antonio 1995, no writ). As used here, subrogation “essentially allows a subsequent lienholder to take the lien-priority status of a prior lienholder” by satisfying the prior lien’s associated debt. Bank of Am. v. Babu, 340 S.W.3d 917, 925 (Tex.App.-Dallas 2011, pet. denied). One who pays another’s real property taxes often asserts a right to be subrogated to the taxing authority’s lien. E.g., Smart, 597 S.W.2d at 337-38. The bank’s subrogation arguments focus on a clause in its deed of trust signed by the developer. The deed states that the bank “is subrogated to all rights, liens or interests in any of the Mortgaged Property securing the payment of any obligation satisfied or paid off out of the proceeds of [its] loans.” A tax lien was “paid off out of the proceeds of’ the bank’s loan, so it contends this provision entitles it to subro-gation under a contractual subrogation theory. As we explain below, however, the bank’s right to subrogation also depends upon equitable considerations. The builder counters that the bank is not subrogated to the tax hen because (1) the bank failed to comply with a statutory procedure for transferring tax liens, and (2) equitable considerations make subrogation inappropriate here. We disagree with the builder’s first argument but conclude there are fact issues regarding the second that preclude summary judgment on this record. A. The tax lien transfer statutes do not eliminate contractual or equitable subrogation of tax liens. The builder first argues that the bank is not subrogated to the tax lien because it failed to comply with sections 32.06 and 32.065 of the Tax Code. The principle of subrogation is well established, however. LaSalle Bank Nat’l Ass’n v. White, 246 S.W.3d 616, 619 (Tex.2007). “Perhaps the courts of no state have gone further in applying the doctrine of subrogation than ha[ve] the court[s] of this state.” Faires v. Cockrill, 88 Tex. 428, 31 S.W. 190, 194 (1895) overruled in part on other grounds by Fox v. Kroeger, 119 Tex. 511, 35 S.W.2d 679, 680 (1931). Moreover, the doctrine has long been applied to tax liens. See Stone v. Tilley, 100 Tex. 487, 101 S.W. 201, 201 (1907). Thus, to address the builder’s argument, we must determine whether the tax lien transfer statutes provide an exclusive means for acquiring the taxing authority’s priority, thereby abrogating common law subrogation of tax liens. “Of course, statutes can modify common law rules, but before we construe one to do so, we must look carefully to be sure that was what the Legislature intended.” Energy Serv. Co. of Bowie, Inc. v. Superior Snubbing Servs., Inc., 236 S.W.3d 190, 194 (Tex.2007). When evaluating an argument that a statute deprives a person of a common law right, we will not extend the statute beyond its plain meaning or apply it to cases not clearly within its purview. Id. at 194 n. 17 (citing Cash Am. Int’l Inc. v. Bennett, 35 S.W.3d 12, 16 (Tex.2000)). With this rule in mind, we construe the tax lien statutes, looking first to the plain and common meaning of their words. See State ex rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002). 1. The statutes’ text shows that they supplement, rather than abrogate, common law subrogation doctrines for tax liens. We conclude that the statutes upon which the builder relies do not abrogate common law subrogation doctrines for several reasons. The statutes contain language permitting statutory transfers, but not requiring them. Moreover, the statutes expressly limit their foreclosure and notice requirements to statutory transfers; by their terms, the statutes do not apply to subrogated lienholders. Finally, the statutes make tax lien priority available to parties that could not acquire it at common law, suggesting an intent to supplement rather than abrogate pre-existing avenues for obtaining the taxing authority’s priority- We begin with the text of the statutes themselves. The Tax Code permits tax lien transfers by providing that “[a] person may authorize another person to pay the delinquent taxes imposed by a taxing unit,” and “[a] tax lien may be transferred to the person who pays the taxes.” Tex. Tax Code Ann. § 32.06(a-l), (a-2). Parties wishing to transfer a tax lien under this statute must substantially comply with several requirements. See Genesis Tax Loan Servs. Inc. v. Kothmann, 339 S.W.3d 104, 108-111 (Tex.2011). For example, the transferee — the party receiving the tax lien — must file “a sworn document” with “the collector for the [taxing] unit.” Tex. Tax Code Ann. § 32.06(a-l). The document must, among other things, authorize payment of taxes, and it must identify the transferee and the encumbered property. Id. The transferee’s compliance with the authorization section triggers obligations for the tax collector. “If a transferee authorized to pay a property owner’s taxes pursuant to [the statute’s authorization section] pays the taxes,” the tax collector must issue a receipt, certify that the taxes are paid, and “identify ... the date of the transfer” “in a discrete field in the applicable property owner’s account.” Id. § 32.06(b). After receiving this certification, the transferee must notify “any mortgage ser-vicer and ... each holder of a recorded first lien encumbering the property of the transfer. Id. § 32.06(b-l). In addition, the transferee must “record a tax lien transferred as provided by this section with the [tax collector’s certification] ... in the deed records of each county in which the property ... is located.” Id. § 32.06(d). There are also special requirements to foreclose tax liens transferred under the statute. For example, absent agreement to the contrary, “foreclosure of a tax lien transferred as provided by [section 32.06] may not be instituted within one year from the date on which the lien is recorded.” Id. § 32.06(i). Moreover, the foreclosure must be either “in the manner provided by law for foreclosure of tax liens” or by court order pursuant to Texas Rule of Civil Procedure 736, which governs expedited foreclosure proceedings. Tex. Tax Code Ann. § 32.06(c). When proceeding under Rule 736, the transferee must still comply with section 51.002 of the Property Code, concerning deed of trust foreclosures, and section 32.065 of the Tax Code. Tex. Tax Code Ann. § 32.06(c)(2). Section 32.065 requires, among other things, that any holder of a recorded lien on the property receive a notice that “THE FORECLOSURE SALE REFFERED TO IN THIS DOCUMENT IS A SUPERIOR TRANSFER TAX LIEN.” Id. § 32.065(b)(6). This statutory scheme makes the transfer of a tax lien an option and discusses the rules that apply if the lien is transferred. But nothing in the text of the statute addresses what happens if the lien is not transferred or suggests a legislative intent to prohibit common law subrogation if a party pays a tax lien without transferring it. For example, the statutes provide that parties “may authorize” payment of taxes, and with such authorization “[a] tax lien may be transferred,” but transfer is not required. Tex. Tax Code Ann. § 32.06(a-l), (a-2). The statutes also provide foreclosure requirements, but they specifically limit these requirements to “transferee^] [who] seek[] to foreclose a tax lien on the property under [the statute’s foreclosure subsection]”; they do not mention subrogated lienholders at all. Id. § 32.06(c-l). The statutes create recording requirements, but only for “tax lien[s] transferred as provided by [Section 32.06].” Id. § 32.06(d). The permissive language and narrowly defined scope of these statutory provisions demonstrates that the statutes do not provide the exclusive means of acquiring the taxing authority’s priority position. The statutes also broaden the ability of a party who pays a tax hen to protect itself, but this policy choice to supplement common law subrogation doctrines does not indicate an intent to supersede those doctrines. Specifically, the statutes enable tax hen transfers when common law subrogation would not apply if parties satisfy conditions that common law subrogation would not require. At common law, for example, a “mere volunteer” with no prior interest in the property could not obtain equitable subrogation. Smart, 597 S.W.2d at 337. Under the statute, anyone can obtain the taxing authority’s priority position by meeting the statutory requirements. At common law, the taxpayer’s authorization is unnecessary to obtain subrogation. See id. at 335, 338 (discussing subrogation where taxpayer did not authorize). Under the statute, it is required. See Tex. Tax Code Ann. § 32.06(a-2). At common law (as our next section details), the right to subrogation may depend partially upon equitable considerations, making entitlement to subro-gation unpredictable. The statute eliminates this uncertainty. These features make the transfer statutes a useful alternative to traditional subrogation doctrines and demonstrate that the statutes were intended to supplement, rather than eliminate, common law subrogation. 2. Most courts agree that the statutes do not eliminate common law subrogation. The Texas Supreme Court has endorsed the view that prior versions of the tax lien transfer statutes did not abrogate common law subrogation. In particular, it refused the writ in a case holding that a lender was equitably subrogated to a tax lien, as well as a case holding that such subrogation was not affected by the transfer statutes. See Chicago Title Ins. Co. v. Lawrence Invs., Inc., 782 S.W.2d 332 (Tex.App.-Fort Worth 1989, writ ref'd) (holding lender was equitably subrogated to tax liens, but not discussing transfer statutes); McDermott v. Steck Co., 138 S.W.2d 1106, 1109 (Tex.Civ.App.-Austin 1940, writ ref'd) (“It