Opinion
No. 05-05-01310-CV
Opinion issued October 24, 2005.
Original Proceeding from the Probate Court No. 3, Dallas County, Texas, Trial Court Cause No. 05-375-P3.
Writ of Mandamus Denied.
Before Justices WHITTINGTON, FITZGERALD, and LANG-MIERS.
MEMORANDUM OPINION
In this original proceeding, relator Rupert M. Pollard contends the trial court abused its discretion in (1) cancelling the lis pendens he filed against property in which he claims a community property interest and (2) ordering him to sign and deliver a request for payoff of federal tax liens.
The underlying suit involves a probate action which followed a lengthy divorce proceeding between relator and Marie A. Merkel. This Court twice reversed the divorce judgment and remanded the cause for further proceedings in the trial court. See Pollard v. Merkel, No. 05-01-01244-CV (Tex.App.-Dallas Aug. 18, 2003, pet. denied); Pollard v. Merkel, No. 5-96-00795-CV (Tex.App.-Dallas Feb. 12, 1999, no pet.). Fourteen months after the second remand, Merkel died, and months later, the family court dismissed the case. By that time, a probate action had been instituted. When relator learned of Merkel's death, he filed a notice of lis pendens on the parties' marital residence. The executor of Merkel's will filed a motion for the relator to show cause, asking the probate court to order relator to appear and show cause why the lis pendens should not be cancelled. Two days before the hearing, on August 8, relator filed an amended notice of lis pendens in which he claimed an undivided one-half community property interest and a life estate in the property as surviving spouse. After hearing the evidence, the probate court ordered that any and all lis pendens filed on the property by relator be "released, cancelled, void, and of no effect." Additionally, the probate court ordered relator to deliver, within ten days, a request for payoff of the federal tax liens against relator. Relator then filed these petitions for writ of mandamus and writ of prohibition.
Relator had previously filed a notice of lis pendens on the property on March 5, 1996. The notice referenced his appeal of the divorce case in the 256th Judicial District Court.
At the hearing, the March 5, 1996 notice of lis pendens and the amended notice of lis pendens were admitted as evidence. The notice of lis pendens filed in March 2005 was not offered or admitted as evidence.
To be entitled to mandamus relief, relator must show that the trial court committed a clear abuse of discretion and that he has no adequate remedy by appeal. In re Ford Motor Co., 165 S.W3d 315, 317 (Tex. 2005) (orig. proceeding). A trial court abuses its discretion if "`it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law'" or if it clearly fails to correctly analyze or apply the law. Id. (quoting Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding)).
The lis pendens statute provides persons litigating title to property with a mechanism to give constructive notice to all those taking title to the property that the claimant is litigating a claim against the property. In re Wolf, 65 S.W.3d 804, 805 (Tex.App.-Beaumont 2002, original proceeding [mand. denied]) (per curiam). If a notice of lis pendens satisifes the requirements of section 12.007, the trial court may not cancel it except as provided in section 12.008. See In re Collins, 2005 WL 2044856, at (Tex.App.-Fort Worth Aug. 26, 2005, orig. proceeding). In this case, the trial court did not cancel the lis pendens in accordance with section 12.008; therefore, we must determine whether the lis pendens complies with section 12.007.
Section 12.007(b) of the Texas Property Code provides as follows:
The party filing a lis pendens or the party's agent or attorney shall sign the lis pendens, which must state:
(1) the style and number, if any, of the proceeding;n
(2) the court in which the proceeding is pending;
(3) the names of the parties;
(4) the kind of proceeding; and
(5) a description of the property affected.
Tex. Prop. Code Ann. § 12.007(b) (Vernon 1984).
Here, relator's amended notice of lis pendens provided a description of the property. It did not, however, include the style and number of the proceeding, the court in which the proceeding was pending, the names of the parties, or the kind of proceeding. Thus, the lis pendens did not meet the requirements of section 12.007; consequently, the trial court was not required to follow the provisions of section 12.008 before cancelling the lis pendens. Under these circumstances, we cannot say the trial court clearly abused its discretion in cancelling the lis pendens.
As for relator's complaint concerning the trial court's ordering him to sign and deliver a request for a payoff of the federal tax liens, we conclude relator has not shown he is entitled to relief. See Tex.R.App.P. 52.8(a); Walker, 827 S.W.2d at 839-44.
We DENY the petitions for writ of mandamus and writ of prohibition. Further, we lift the stay imposed by our order of September 23, 2005.