in Re I-10 Poorman Investments, Inc.

Opinion issued August 3, 2017

In The

Court of Appeals

For The

First District of Texas

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NO. 01-17-00284-CV

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

Original Proceeding on Petition for Writ of Mandamus

OPINION

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.

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The underlying case is Woodcreek Reserve Community Association, Inc. v. I-10

Poorman Investments, Inc., cause number 14-DCV-218365, pending in the 268th

District Court of Fort Bend County, Texas, the Honorable Brady G. Elliott

presiding.

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

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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

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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

§ 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 either by expunction or cancellation. See TEX.

PROP. CODE §§ 12.0071, 12.008. A trial court “shall” expunge the lis pendens if:

(1) the pleading on which the notice is based does not

contain a real property claim;

(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 copy of the notice on each party entitled to a copy under

Section 12.007(d).

Id. § 12.0071(c). The court is required to rule on the motion to expunge based on

affidavits and courteraffidavits on file and on any other proof the court permits. Id.

§ 12.0071(e).

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The Association admits that no evidence was presented at the hearing, but it

argues that no abuse of discretion is shown because the trial court made its

determination based on the parties’ pleadings, which is allowed under the first prong

of section 12.0071(c). Poorman sought expunction based on the “preponderance of

the evidence” ground, but the Association nevertheless contends the trial court could

have denied expunction on the first statutory ground—the pleading of a real property

claim. In support of this argument, the Association cites to In re Cohen, 340 S.W.3d

889 (Tex. App.—Houston [1st Dist.] 2011, orig. proceeding), in which this Court

determined that the trial court abused its discretion in granting a motion to expunge

because the relator had adequately pleaded a real property claim.

But In re Cohen does not support the Association’s argument. In Cohen, we

upheld the trial court’s order on the pleading of a real property claim ground because

the trial court specifically limited its order to a consideration of Cohen’s pleadings

under Section 12.0071(c)(1). Id. at 893. Here, Poorman sought to expunge the lien

on the second ground of Section 12.0071(c). Because a party may seek expunction

of the lis pendens on any of the enumerated grounds, the Association was charged

with providing the probable validity of its claim by a preponderance of the evidence.

See TEX. PROP. CODE § 12.0071(c) (enumerating bases for expunction in the

disjunctive).

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Because Poorman argued in the trial court that the preponderance of the

evidence did not support the probable validity of the lis pendens, the trial court could

not deny the motion to expunge unless the Association met its evidentiary burden of

proving by a preponderance of the evidence the probable validity of its real property

claim. See Rescue Concepts, 498 S.W.3d at 194. In Rescue Concepts, the real party

in interest filed a lis pendens and Rescue Concepts filed a motion to expunge raising

two grounds under Section 12.0071(c): that the pleading did not contain a real

property claim and the real party failed to establish by a preponderance of the

evidence the probable validity of the real property claim. Id. at 192. In response to

the motion to expunge, the real party did not present any evidence and argued only

that it had alleged a real property claim. The trial court denied the motion. This Court

granted mandamus relief because the real party had presented no evidence in its

response to the motion to expunge and therefore, failed to meet its evidentiary

burden of establishing by a preponderance of the evidence the probable validity of

its real property claim. Id. at 194.

The Association failed to meet its evidentiary burden. The only evidence

offered by the Association was the affidavit of its attorney, William S. Chesney III.

Chesney stated in his affidavit that the Association’s lawsuit was “one involving title

to real property” and “[seeking] the establishment of an interest in real property.”

Although the attorney’s affidavit reiterates the Association’s claim that Poorman had

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represented it would convey certain properties to the Association, it does not set

forth facts proving the probable validity of its real property claim.

The Association countered that Chesney’s affidavit is conclusory because it

does not contain facts to support the contention that the Association has a valid real

property claim. The affidavit does not address the elements of the Association’s

claim, nor does it adduce fact in support of the claim. Conclusory statements

contained in an affidavit “are insufficient to establish the existence of a fact.” Lenoir

v. Marino, 469 S.W.3d 669, 686 (Tex. App.—Houston [1st Dist.] 2015), aff’d,

Marino v. Lenoir, No. 15–0610, 2017 WL 1553095 (Tex. Apr. 28, 2017). A

statement is conclusory if it provides no facts to support its conclusion. Lenoir, 469

S.W.3d at 686.

Chesney’s bare statements that the Association had a real property claim

without presenting any facts establishing the probable validity of that claim renders

the statements conclusory. See id. The affidavit, therefore, does not present any

evidence establishing the probable validity of the Association’s claims regarding the

property. See Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996);

Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Rescue Concepts, 498

S.W.3d at 194. Because the Association did not meet its evidentiary burden of

proving the probable validity of its real property claim, the trial court abused its

discretion in denying Poorman’s motion to expunge the lis pendens.

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Accordingly, we conditionally grant the petition and direct the trial court to

vacate its order denying Poorman’s motion to expunge the lis pendens and to grant

the motion. We are confident the trial court will comply with this opinion and the

writ will issue only if it does not. See TEX. R. APP. P. 52.8.

Harvey Brown

Justice

Panel consists of Justices Higley, Bland, and Brown.

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