Proceeding on Petition for Writ of Mandamus
consists of Justices Higley, Bland, and Brown.
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. We grant the
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.
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.
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.
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.
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.
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 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 § 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 ...