Opinion issued March 11, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00973-CV
———————————
IN RE PAULA MILLER, Relator
Original Proceeding on Petition for Writ of Prohibition
OPINION
In this proceeding ancillary to a common-law marriage determination, Paula
Miller, the relator, has filed a petition for writ of prohibition, asking that we enjoin
the trial court from ruling upon a request to cancel a lis pendens filed on a tract of
commercial property located in Brazoria County.1 We deny the petition.
1
The underlying case is JAS Family Limited Partnership #4 Ltd. v. Paula Miller, cause
number 65767, pending in the 149th District Court of Brazoria County, Texas, the
Honorable Terri Holder presiding.
Background
Miller has filed for a divorce against James Prince in Harris County, seeking
dissolution of a common-law marriage and distribution of the community estate.
Miller claims that the Brazoria County property belongs to the alleged community
estate. To protect her interest, she placed a lis pendens on the Brazoria County
property, which constructively discloses the pendency of the Harris County suit in
the real property records. The Harris County trial court ruled that no common-law
marriage existed between Miller and Prince. It severed the parties’ remaining
claims and set them for trial. Miller appealed the trial court’s order; her appeal
from the Harris County trial court’s order is pending before us in
Cause No. 01-13-00243-CV.
Meanwhile, the JAS Family Limited Partnership #4, Ltd., the real party in
interest and record owner of the disputed property, sued Miller in Brazoria County,
seeking a declaratory judgment cancelling Miller’s lis pendens. In this proceeding,
Miller asks that we enjoin the Brazoria County Court from conducting a hearing or
ruling on JAS’s request for declaratory relief until our Court determines Miller’s
appeal of the Harris County Court’s informal marriage determination. Miller
contends that Brazoria County Court lacks “subject-matter jurisdiction to cancel
the lis pendens and to permit the sale of the real property until this Court fully
adjudicates the divorce issues on appeal.” (Pet. at 4).
2
Discussion
Standard of review
A writ of prohibition is a limited-purpose remedy. In re Lewis, 223 S.W.3d
756, 761 (Tex. App.—Texarkana 2007, orig. proceeding); TEX. GOV’T CODE ANN.
§ 22.221(a) (West 2004). It is available to protect the subject matter of an appeal or
to prohibit unlawful interference with enforcement of an appellate court’s
judgment. See Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 683 (Tex.
1989) (orig. proceeding); Sivley v. Sivley, 972 S.W.2d 850, 862–63 (Tex. App.—
Tyler 1998, orig. proceeding). But prohibition is not appropriate relief when other
remedies, like an appeal, are available and adequate. See In re Castle Tex. Prod.
Ltd. P’ship, 189 S.W.3d 400, 404 (Tex. App.—Tyler 2006, orig. proceeding). Its
extraordinary nature requires caution in its use. See In re State, 180 S.W.3d 423,
425 (Tex. App.—Tyler 2005, orig. proceeding). The writ will not issue to protect
an appellate court’s jurisdiction from the mere possibility of interference by a trial
court; rather, the threat of jurisdictional interference must be imminent. In re
Barbee, No. 12-09-00165-CV, 2010 WL 3341518, at *3 (Tex. App.—Tyler Aug.
25, 2010, orig. proceeding) (mem. op.); In re Castle Tex. Prod., 189 S.W.3d at
403.
3
Applicable law
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. The doctrine is codified in Section 12.007(a) of the Texas
Property Code:
[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 property, 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.
TEX. PROP. CODE ANN. § 12.007(a) (West Supp. 2013). “Generally speaking, the
purpose of lis pendens notice is two-fold: (1) to protect the filing party’s alleged
rights to the property that is in dispute in the lawsuit and (2) to put those interested
in the property on notice of the lawsuit.” David Powers Homes, Inc. v. M.L.
Rendleman Co., Inc., 355 S.W.3d 327, 336 (Tex. App.—Houston [1st Dist.] 2011,
no pet.) (citing World Sav. Bank, F.S.B. v. Gantt, 246 S.W.3d 299, 303 (Tex.
App.—Houston [14th Dist.] 2008, no pet.)).
A lis pendens is not an independent claim; it has no existence separate from
the litigation of which it notifies. See Collins v. Tex Mall, L.P., 297 S.W.3d 409,
418 (Tex. App.—Fort Worth 2009, no pet.); Taliaferro v. Smith, 804 S.W.2d 548,
550 (Tex. App.—Houston [14th Dist.] 1991, no writ). “A properly filed lis pendens
is not itself a lien; rather it operates as constructive notice ‘to the world of its
4
contents.’” David Powers Homes, Inc., 355 S.W.3d at 336 (quoting TEX. PROP.
CODE ANN. § 13.004(a) (West Supp. 2013); see B&T Distribs., Inc. v. White, 325
S.W.3d 786, 789 (Tex. App.—El Paso 2010, no pet.)). Although it does not
prevent conveyance, it places a prospective purchaser on notice about the suit and
the disputed title to the land. See David Powers Homes, Inc., 355 S.W.3d at 336
(citing Collins, 297 S.W.3d at 418).
Analysis
We deny the request for a writ of prohibition because Miller has not
demonstrated its necessity and other adequate remedies exist.
First, Miller has not provided any indication that the Brazoria County
Court’s actions in adjudicating the declaratory judgment claim will disturb or
interfere with our jurisdiction over the pending appeal. Nor is there any indication
in the record that she has requested that the trial court abate the action. See In re
John M. O’Quinn & Assocs. PLLC, No. 01-13-00076-CV, 2013 WL 1739633, *2
(Tex. App.—Houston [1st Dist.] Apr. 23, 2013, orig. proceeding) (mem. op.)
(denying relief, noting trial court was not presented with abatement request).
Interference with the appeal is not imminent or even a given. The issue on
appeal—whether a common law marriage existed—does not adjudicate title, and
any title dispute is an ancillary determination. Even if title to the property were
implicated, a trial court may cancel a lis pendens if it determines that the deposit of
5
money into the court or other security adequately protects the plaintiff’s interests.
See TEX. PROP. CODE ANN. § 12.008 (West 2004).
Relying on Ex Parte Boniface, 650 S.W.2d 776 (Tex. 1983), Miller argues
that, once jurisdiction over the appeal vested in our court, the Brazoria County
Court “was prohibited from taking any further action concerning alleged
community property, including the canceling of the lis pendens.” In Boniface, the
Texas Supreme Court held that a trial court did not have jurisdiction to enforce a
final judgment directing a husband to make monthly retirement benefit payments
to his wife while the judgment was on appeal. See Boniface, 650 S.W.2d at 778.
But the Supreme Court has overruled Boniface on this issue. See In re Sheshtawy,
154 S.W.3d 114 (Tex. 2004). In Sheshtawy, the court held that “when a final
judgment has not been superseded or stayed pending an appeal, either the trial
court or the court of appeals may entertain a motion for contempt.” Id. at 124–25.
The Supreme Court observed:
In examining our decisions, particularly Boniface and Schultz, we are
unable to discern a compelling reason for withdrawing a trial court's
authority to enforce a final judgment pending appeal when that
judgment has not been superseded or stayed and no statute or rule of
procedure removes the trial court’s authority.
Id. at 124; see also In re Fischer-Stoker, 174 S.W.3d 268, 271 (Tex. App.—
Houston [1st Dist.] 2005, pet. denied) (citing Sheshtawy, 154 S.W.3d at 124–25).
Accordingly, the Brazoria County Court had jurisdiction to enter orders enforcing
6
a judgment while it is pending on appeal, unless we have issued a stayed of
proceedings, the judgment debtor has superseded it, or enforcement is
automatically stayed pending appeal.
None of those caveats are applicable here. Section 9.007 of the Texas
Family Code provides that enforcement of the property division in a divorce decree
is abated during the pendency of an appellate proceeding. See TEX. FAM. CODE
ANN. § 9.007(c) (West 2006). But the appeal here is not from an order dividing the
community estate. Even if it was, cancelling the lis pendens does not enforce a
property division ruling because a lis pendens merely notifies of the existence of
the dispute; its placement or removal does not quiet title. See Collins, 297 S.W.3d
at 418; Taliaferro, 804 S.W.2d at 550.
Second, Miller has other adequate remedies, among them, requesting
alternate security in the Brazoria County Court, and mandamus relief if the court’s
later orders in the declaratory judgment claim are infirm or interfere with the
appeal. See TEX. PROP. CODE ANN. § 12.008 (West 2004) (conditioning
cancellation of lis pendens upon providing security); In re Cohen, 340 S.W.3d 889,
900 (Tex. App.—Houston [1st Dist.] 2011, orig. proceeding) (“Mandamus has
been recognized as the appropriate remedy when issues have arisen concerning the
issuance of notices of lis pendens.”); In re Mousa, No. 01-04-00485-CV, 2004 WL
2823172, at *2 (Tex. App.—Houston [1st Dist.] Dec. 9, 2004, orig. proceeding)
7
(mem. op.) (“A writ of mandamus is the appropriate remedy when issues arise
concerning the propriety of a notice of lis pendens”); see also Nwangwu v. Dinkins,
No. 14-97-01100-CV, 1997 WL 688943, at *1 (Tex. App.—Houston [14th Dist.]
Nov. 6, 1997, orig. proceeding) (holding that appellate court had no jurisdiction in
appeal from order cancelling lis pendens, but noting that it could be subject of
mandamus proceeding).
Conclusion
This case does not demonstrate the extraordinary circumstances required for
issuance of a writ of prohibition; accordingly, we deny Miller’s petition. Any
pending motions are dismissed as moot.
Jane Bland
Justice
Panel consists of Justices Keyes, Bland, and Brown.
8
in Re Paula Miller
Combined Opinion