355 S.W.3d 327
Tex. App.2011Background
- DPH appeals the trial court’s denial of its Ex Parte Motion for Judicial Review under Tex. Gov’t Code § 51.903 to determine whether 37 affidavits filed by Fiberglass Insulators are fraudulent under § 51.901(c)(2).
- Fiberglass Insulators filed 37 affidavits of notice to potential transferees in Harris County real property records, describing properties allegedly involved in a TUFTA action.
- DPH is a judgment debtor of Fiberglass Insulators from a prior breach-of-contract judgment; the underlying litigation seeks to avoid transfers under TUFTA.
- The trial court conducted a ministerial, ex parte review of the affidavits based on the documents attached to the motion, holding they are provided for by state/federal law or constitutional provisions and therefore not fraudulent.
- DPH argues the affidavits are fraudulent because they include extra content beyond lis pendens notice; the trial court found they are not fraudulent for section 51.903 purposes.
- The appellate court affirms, holding the affidavits are “provided for by the laws of this state” and thus not fraudulent; it addresses standing, mootness, and the proper scope of § 51.903 review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DPH has standing to challenge the affidavits under §51.903. | DPH argues lack of ownership of the properties defeats standing and the action is moot. | Fiberglass Insulators contends DPH lacks standing under §51.903 and the issue is moot. | DPH has standing; the issue is not moot. |
| Whether the affidavits are fraudulent under §51.901(c)(2). | Affidavits are not provided for by law and include coercive content. | Affidavits contain lis pendens material required by statute and include additional information within allowable scope. | Affidavits are provided for by the laws of Texas and are not fraudulent. |
| Whether the court’s finding must identify the specific statute or constitutional provision. | The court should specify the exact authority underpinning the finding. | Not required to render advisory opinions; form compliance suffices. | Court need not specify the exact statute; issue dismissed as advisory. |
Key Cases Cited
- Samshi Homes v. De Leon, 321 S.W.3d 665 (Tex. App.—Houston [14th Dist.] 2010) (limits proceedings to whether instrument is fraudulent; cannot adjudicate underlying lien validity)
- In re Purported Liens or Claims Against Samshi Homes, L.L.C., 321 S.W.3d 665 (Tex. App.—Houston [14th Dist.] 2010) (same principles as Samshi Homes; instrument review under §51.903 is narrow)
- Texas Natural Resources Conservation Comm’n v. IT-Davy, 74 S.W.3d 849 (Tex. 2002) (standing is jurisdictional; de novo review of subject-matter jurisdiction)
- Patterson v. Planned Parenthood, 971 S.W.2d 439 (Tex. 1998) (standing requires a real controversy and personal stake)
- Williams v. Lara, 52 S.W.3d 171 (Tex. 2001) (standing analysis and statutory vs. common-law authority)