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In re I-10 Poorman Investments, Inc.

Court of Appeals of Texas, First District

August 3, 2017

IN RE I-10 POORMAN INVESTMENTS, INC., Relator

         Original Proceeding on Petition for Writ of Mandamus

          Panel consists of Justices Higley, Bland, and Brown.

          OPINION

          Harvey Brown Justice

         Relator, I-10 Poorman Investments, Inc. has filed a petition for writ of mandamus challenging the trial court's order denying Poorman's motion to expunge lis pendens filed by Woodcreek Reserve Community Association.[1] We grant the petition.

         Background

         Poorman is the real estate developer of the Woodcreek Reserve subdivision and development in Katy, Texas. In connection with developing this subdivision, Poorman filed the Declaration of Covenants, Conditions and Restrictions for the subdivision that established restrictive covenants and created the Association.

         The Association filed suit against Poorman for misrepresentation, negligent misrepresentation, promissory estoppel, fraud, statutory fraud, and violations of the Texas DTPA, contending that Poorman represented and marketed to the public and prospective purchasers that the development included "an extensive amenity package" including a pool, clubhouse, cabanas, tennis courts, playgrounds, stocked lakes, and other amenities. The Association complained that despite representations to the contrary, Poorman had not conveyed certain common area amenities and recreational tracts to it. The Association also filed notices of lis pendens under Section 12.007 of the Texas Property Code.

         Poorman filed a motion to expunge the lis pendens under Section 12.0071(c)(2) of the Property Code, which provides for expunction if "the claimant fails to establish by a preponderance of the evidence the probable validity of the real property claim." See Tex. Prop. Code § 12.0071(c)(2). After a hearing, the trial court denied the motion. Poorman challenges this order, claiming the trial court abused its discretion in denying the motion because the Association failed to meet its evidentiary burden of proving the probable validity of its real property claim.

         Standard of Review

         To be entitled to the extraordinary remedy of mandamus, a relator must show both that the trial court abused its discretion and that there is no adequate remedy by appeal. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (per curiam) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). A clear abuse of discretion occurs when the trial court issues a ruling "so arbitrary and unreasonable" that it amounts to "a clear and prejudicial error of law." See In re CSX, 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding).

         In disputes concerning notices of lis pendens, mandamus is the appropriate remedy and a showing of adequate remedy by appeal is unnecessary. In re Rescue Concepts, Inc., 498 S.W.3d 190, 193 (Tex. App.-Houston [1st Dist.] 2016, orig. proceeding).

         Analysis

         In its motion, Poorman asserted one ground for expunging the lis pendens filed by the Association: that the Association had failed to establish by a preponderance of the evidence the probable validity of its real property claim. See Tex. Prop. Code § 12.0071(c)(2). The Association responded, claiming its pleadings indicate it was claiming an interest in real property and its counsel had submitted an affidavit supporting the lis pendens notices. The only evidence attached to the Association's response was its attorney's affidavit and an amended notice of lis pendens.

         A lis pendens placed in the property records is notice to third parties of a dispute concerning ownership of the property. See In re Miller, 433 S.W.3d 82, 84 (Tex. App.-Houston [1st Dist.] 2014, orig. proceeding); see also Tex. Prop. Code ยง 12.007(a) (permitting party to action involving title to property, enforcing encumbrance, or establishing interest in property to file notice of pending action with county clerk where property is located). Once a lis pendens has been filed, the statute allows removal of the lis pendens ...


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