ORIGINAL PROCEEDING WRIT OF MANDAMUS 133rd District Court
Harris County, Texas Trial Court Cause No. 2016-46251
consists of Justices Christopher, Bourliot, and Zimmerer.
3, 2019, Howard Chong ("Intervenor") filed a
petition for writ of mandamus in this court. See
Tex. Gov't Code Ann. § 22.221 (Supp.); see
also Tex. R. App. P. 52. The real parties-in-interest
include SMDCHOI, LLC ("Plaintiff"), and Euro
General Construction, Inc., Hyung Kyu Yu, and Do Yeon Yu
petition, Intervenor asks this court to compel the Honorable
Jaclanel McFarland, presiding judge of the 133rd District
Court of Harris County, to vacate her order denying
Intervenor's amended motion to expunge lis pendens and to
grant such motion.
conditionally grant relief.
and Procedural Background
and Defendants entered into a Construction Agreement on or
about November 2013 to improve twenty-five (25) apartment
units of Plaintiff. Plaintiff agreed to pay Defendants $1.5
million and Defendants agreed to furnish all labor and
materials to improve the apartments by December 30, 2014.
paid the $1.5 million over the course of construction.
Defendant Euro General Construction, Inc. ("Euro"),
acting as the general contractor, hired subcontractors to
complete the project. Plaintiff alleges that Euro had a
contractual and fiduciary obligation to use the payments it
received from Plaintiff to pay the subcontractors.
the project was near completion, Plaintiff learned that there
were several subcontractors who had not been paid and had
asserted liens against the property totaling approximately
$330, 000. These liens prevented Plaintiff from obtaining a
certificate of occupancy from the county. To extinguish the
subcontractor liens, Plaintiff loaned Defendants $330, 000 to
pay the unpaid subcontractors. Defendants signed an agreement
acknowledging that they were responsible to pay the
subcontractors and agreed to repay the $330, 000 loan.
Defendants gave Plaintiff a post-dated check in the amount of
$330, 000 and an agreed judgment that Plaintiff could file if
the check did not clear.
subcontractors were paid, and they released their liens.
However, payment of the $330, 000 check was refused due to
filed suit on July 12, 2016, alleging Defendants failed to
complete the apartments by the due date and breached their
agreement to repay the $330, 000 loan. Plaintiff also filed a
notice of lis pendens on August 3, 2016 on the properties
that Defendants had purchased with funds which Plaintiff
contends should have instead been used to pay subcontractors.
about September 27, 2017, Intervenor filed a petition to
intervene in the underlying suit to assert rights as to six
real properties identified in the notice of the lis pendens.
Intervenor alleges he loaned Defendants funds memorialized by
promissory notes and secured by first-priority deeds of trust
on all six properties and has obtained title to two of these
properties through foreclosure.
filed an amended motion to expunge the lis pendens. On
September 10, 2018, after hearing, the trial court ...