Opinion issued June 7, 2016

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 1 5
- 00 6 2 4
- CV

——————————— IN RE RESCUE CONCEPTS, INC
. , Relator

Original Proceeding o n Petition f or Writ of Mandamus

O P I N I O N R eal party in interest HouReal Corporation (“HouReal”) filed a lis pendens in conjunction with its original petition in the underlying suit. 1 T he relator, Rescue Concepts, Inc. (“R escue ”) , filed a motion to expunge the lis pendens pursuant to
Texa s Property Code section 12.0071 and asked the trial court to tax costs against

1 The underlying case is The HouReal Corporation v. Rescue Concepts, Inc. , Cause No. 2014

- 71749 , in the 27 0th District Court of Harris County, Texas, the Honorable Brent Gamble presiding

.2

HouReal in the underlying proceeding. The trial court denied the motion to expunge, and Rescue filed this petition for a writ of mandamus seeking to vacate the respondent trial judge’s order denying the motion to expunge

. We conditionally grant the petition. Background
Rescue and HouReal entered into a con tr a ct for the sa le of a parcel of real

pr o p e r ty in L i b e r ty Co u n t y (t h e “P r o p e r ty ” ). Un d er the con tr a ct, H o u Re a l w a s t o buy the P r o p e r ty from Re s c u e for $1 2 m illi o n b y the c l o s ing d a t e of J a n ua r y 7 , 20 1 5 , but t he s a le never clo s e d

. On December 10, 2014, H o u Re a l s u ed Rescue in Harris County . HouReal’s

o riginal p etition listed the following three cause s of action : (1) breach of contract

s eeking m on e t a r y d a m a g e s for the attempted purchase of the Property ; (2) attorney’s fees; and (3) an application for a t e mp o r a r y r e s t r a in i ng o rd e r a nd a

te mp o r a r y in

j u nct i on to prohibit Rescue from selling the Property or, alternatively,
an order that R escue pay the funds from any sale of the Property in to the court registry. H o u R e a l neither sought s p ecific p e r f o rm a nce of the sale contract nor
claimed that it owned the Property in its o riginal p etition. On April 20, 2015, HouReal recorded a notice of lis pendens for the Property in the Liberty County clerk’s records. A properly filed lis pendens operates as constructive notice that a specific piece of real property i s subject t o a3

pending l awsuit and that any interest acquired by a prospective buyer is subject to the outcome of the pending litigation

. See T EX

. P ROP

. C ODE A NN

. § 13.004 (a) (West 201 4 )

. On April 29, 2015, Rescue m oved to e x p u nge the lis p en d en s u n d er a

s t a t u te m a n d a ting e xp u nction w hen ei t her : ( 1 ) the “ p l e a d ing on w hich t he notice [of l i s p en d en s ] is b a s e d ” d oes not con t a in a r e a l pr o p e r ty cl a im or ( 2 ) “ the [ p a r ty filing lis p en d en s ] f

a ils to e s t a

b li s h b y a pr e p on d e r a nce of the evi d ence the

pr o b a b le v a li d ity of the r e a l pr o p e r ty c l a i m .” Id. § 12

. 0 07 1 (c)(1)

– (2) (West 2014 )

. Sp ecific a lly, Rescue a r g u ed th a t H o uR ea l ’ s p etition did not c o n t a in a re a l p r o pe r ty
cl a im b e c a u s e it s ought o n ly mo n e tary d a m a g e s f o r b r e a ch of co n t r a ct for the
failed sale

. See id. § 1 2 .00 71 ( c) ( 1 ). Alternatively, Rescue argued that , e v e n if
H o uRe a l ’s o riginal p etition asserted a re a l p r o pe r ty cl a i m, HouReal did not satisfy s ection 12.0071(c)(2) because it failed to establish the probable validity of
this claim by a preponderance of the evidence

. See id. § 12 .00 7 1 (c) ( 2 ). HouReal subsequently amended its petition to request that the trial court reinstate the sale
contract and order Rescue to sell the Property to HouReal . HouReal still requested, in the alternative, that Rescue pay the sale proceeds of the Property to the court and monetary damages for breach of contract and attorney’s fees to
HouReal

.4

On May 26, 2015, H o u R e a l filed its r e s p on se to Rescue ’ s m otion to

e xp u nge the lis pendens. HouReal’s response did not attach any evi d ence other
th a n its notice of lis p en d ens and its o r igi n a l a n d a m en d ed p etitions . HouReal did

not present any evidence or argument that established the probable validity of a real property claim . It argued only that it had alleged a real property claim. Although the T e xa s P r o p e r ty C o d e e xpr e ss ly p e rm i ts an evidentiary hearing in response to a motion to expunge a lis pendens, H o u R e a l did not request such a hearing. S e e id. § 12

. 0 07 1 ( b )( 1 ) (“The court may: (1) permit evidence on the motion to be received in the form of oral testimony [.] ”). On June 12, 2015, the trial court held a hearing on the motion to expunge lis pendens at which no evidence was submitted. On July 13 , 2015, the trial c o u r t signed an order denying Rescue ’ s m otion to e xp u n g e lis p en d ens.
Rescue then filed this mandamus petition seeking to have the t r i a l c o u r t

v a c a te i ts July 13, 2015 o rd er denying its motion to expunge lis pendens a nd to

enter a n o rd er e xpu nging H o u R e a l ’ s l i s p en d en s and taxing costs against
HouReal

. Rescue ’ s petition claimed that the trial court’s July 13, 2015 o rder denying Rescue ’s motion to expunge the lis pendens was an abuse of discretion primarily because H o u R e a l f a iled to int r o du ce evi d ence of the pr o b a b le v a li d ity
of its cl a im a nd its p le a d ing d id not c o n t a in a r e a l pr o p e r t y cl a i m
.5

HouReal responded that : (1) t he trial court did not abuse its discretion by denying Rescue ’s motion to expunge ; (2) Rescue misinterprets s ection 12.0071(c)(2) ; and (3) t he live pleadings supported the trial court’s denial of
Rescue ’s motion to expunge lis pendens

. Standard of Review Mandamus is an extraordinary remedy, available only when t he relator can
show both that: (1) the trial court clearly abused its discretion or violated a duty imposed by law; and (2) there is no adequate remedy by way of 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 t r i al

c o u rt c o m m

it s a c l e a

r a b u s e o f d i s c r e t i o n w h en i t s r u li n g i s “ s o a r

b i t rary a n d

u n r ea s o n a

b l e as t o a m

o u n t t o a c l ear a nd p re

jud i c i al er r o r o f l a w. ” In r e C S X
C o rp
. , 1 2 4 S

. W

. 3 d 14 9 , 15 1 ( T e x
. 2 00 3 ) (per curiam) ( o r ig. p r o ce e d in g ) (quoting
CSR Ltd. v. Link , 925 S.W.2d 591, 596 (Tex. 1996))

.

“ M andamus has been recognized as the appropriate remedy when issues have arisen concerning the issuance of notices of lis pendens.” In re Cohen , 340 S.W.3d 889, 900 (Tex. App.

— Houston [1 st Dist.] 2011, orig. proceeding) ( internal
quot ation marks and citatio ns omitted) . Thus, there is no need for a relator to show that it lacks an adequate appellate remedy in the context of a dispute involving a lis6

pendens. S ee Flores v. Haberman , 915 S.W.2d 477, 478 (Tex. 1995 ) (per curiam) ( orig. proceeding )

. Lis Pendens

“ A lis pendens is a notice of litigation, placed in the real property records, asserting an interest in the property, and notifying third parties that ownership of the property is disputed. ” In re Miller , 433 S.W.3d 82, 84 (Tex. App.

— Houston [1st Dist.] 2 014, orig. proceeding)

. The doctrine is codified in Property Code section 12.007(a) : [D]uring the pendency of an action involving title to real property, the establishment of an interest in real property, or the enforcement of an encumbrance against real p roperty, a party to the action who is seeking affirmative relief may file for record with the county clerk of each county where a part of the property is located a notice that the action is pending.
T EX

. P ROP

. C ODE A NN

. § 12.007(a) (West 2014) ; see In re Miller , 433 S.W.3d at
84

. The notice must contain certain information, including the style and cause number of the proceedings, the court in which it is pending, the names of the parties, identification of the kind of proceedings, and a description of th e property
affected. T EX

. P ROP

. C ODE A NN

. § 12.007(b); see In re Cohen , 340 S.W.3d at 892

. A properly filed lis pendens is not itself a lien, but rather it operates as constructive
notice “to the world of its contents.” T EX

. P ROP

. C ODE A NN

. § 13.004(a) ; see also B & T Distribs., Inc. v. White , 325 S.W.3d 786, 789 (Tex. App.

— El Paso 2010, no7

pet. ) (“The purpose of a notice of lis pendens is to put those interested in a particular tract of land o n inquiry about the facts and issues involved in the suit and to put prospective buyers on notice that they acquire any interest subject to the outcome of the pending litigation.”) (citing Countrywide Home Loans, Inc. v.
Howard , 240 S.W.3d 1, 4 (Tex. App.

— Austin 2007, pet. denied))

. A notice of lis pendens may be exp unged, however, if certain procedures are followed and the trial court determines that the party filing the notice either has not pleaded a real

- property claim or has not demonstrated the probable validity of the
claim: (a) A party to an action in connection with which a notice of lis

pendens has been filed may: (1) apply to the court to expunge the notice; and (2) file evidence, including declarations, with the motion to expunge the notice. (b) The court may: (1) permit evidence on the motion to be received in the form of oral testimony; and (2) make any orders the court considers just to provide for discovery by a party affected by the motion. (c) The court shall order the notice of lis pendens expunged if the court determines that: (1) the pleading on which the notice is based does not con tain a real property claim;8

(2) the claimant fails to establish by a preponderance of the evidence the probable validity of the real property claim; or (3) the person who filed the notice for record did not serve a c opy of the notice on each party entitled to a copy under Section 12.007(d).

. . . T EX

. P ROP

. C ODE A NN

. § 12.0071 (a)

– (c).
A t the hearing on the motion, the trial court may permit evidence in the form of oral testimony , and the trial court must then “rule on the motion for expunction based on the affidavits and counteraffidavits on file and on any other proof the
court allows.” Id. § 12.0071 (b)(1), (e). After considering the evidence, the trial court must grant the motion for expunction of a lis pendens notice if the claimant
failed “ to establish by a preponderance of the evidence the probable validity of the real property claim [

. ] ” Id. § 1 2.0071 (c)(2) ; Nat’l City Bank of Ind

. v. Ortiz , 401 S.W.3d 867, 887 (Tex. App.

— Houston [14th Dist.] 2013, pet. denied)

. Analysis
T he parties dispute whether HouReal properly pleaded a real property claim. Assuming without deciding that it did, HouReal failed to submit any evidence in its response to Rescue ’s motion to expunge in the trial court . Thus, it necessarily failed to establish by a preponderance of the evidence the probable validity of its real property claim. Because HouReal failed to meet its evidentiary burden under section 12.0071(c)(2), the trial court abused its discretion in den ying Rescue’s motion to expunge. See T EX

. P ROP

. C ODE A NN . § 12.0071(c)(2).9

M andamus re lief is “the appropriate remedy when issues have arisen concerning the issuance of notices of lis pendens.” In re Cohen , 340 S.W.3d at
900

. Thus, because we hold that the trial court abused its discretion by denying
Rescue ’s motion to expunge HouReal’s notice of lis pendens under s ection
12.0071 , Rescue need not demonstrate the inadequacy of an appellate remedy

. S ee In re Moody Nat ’l Kirby Houston S, LLC , 412 S.W.3d 570, 571 (Tex. App.

— Houston [1st Dist.] 2013, orig. proceeding) (“Mandamus has been recognized as an appropriate remedy when interlocutory issues have arisen concerning the issuance of notices of lis pendens.”)

. CONCLUSION Accordingly, we cond itionally grant Rescue’s mandamus petition and direct
the trial court to vacate its July 13, 2015 order denying Rescue ’s motion to expunge lis pendens and to order HouReal’s notice of lis pendens expunged

. We
remand the case to the trial court for further proceedings consistent with this opinion. We are confident that the trial court will promptly comply, and our writ will issue only if it does not comply within thirty days of the date of this opinion.

Evelyn V. Keyes J ustice

Panel consists of Justices Keyes , Brown, and H uddl e.