In re Miller
433 S.W.3d 82
Tex. App.2014Background
- Miller seeks divorce in Harris County to dissolve a common-law marriage and distribute the community estate; Brazoria property is claimed as community property.
- Miller placed a lis pendens on the Brazoria property to protect her interest, which serves as constructive notice of the Harris County suit.
- Harris County trial court ruled no common-law marriage and severed remaining claims for trial; Miller’s appeal of that order is pending in Cause No. 01-13-00243-CV.
- JAS Family Limited Partnership #4 Ltd. sued Miller in Brazoria County seeking declaratory judgment cancelling Miller’s lis pendens.
- Miller moves for prohibition against Brazoria County Court hearing or ruling until the appeal is resolved, arguing lack of subject-matter jurisdiction to cancel the lis pendens.
- The issue is whether prohibition is appropriate to halt action on lis pendens while the related appeal proceeds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a writ of prohibition should issue to stop lis pendens cancellation | Miller argues lack of jurisdiction to cancel lis pendens | Brazoria Court has jurisdiction; Boniface is superseded by Sheshtawy; enforcement pending appeal allowed | Denied |
| Whether cancellation of lis pendens affects appellate jurisdiction or title | Lis pendens impacts property interests during appeal | Lis pendens is notice, not an enforceable title order; does not compel title quieting | Denied |
| Whether Miller has adequate alternative remedies | Mandamus or security options exist to protect interests | There are other remedies (security, mandamus) short of prohibition | Denied |
Key Cases Cited
- Boniface v. Boniface, 650 S.W.2d 776 (Tex. 1983) (trial court lacked jurisdiction to enforce judgment while on appeal (overruled later))
- In re Sheshtawy, 154 S.W.3d 114 (Tex. 2004) (trial or appellate enforcement allowed pending appeal when judgment not stayed)
- Collins v. Tex Mall, L.P., 297 S.W.3d 409 (Tex. App.-Fort Worth 2009) (lis pendens exists to notify; not independent of litigation)
- In re Cohen, 340 S.W.3d 889 (Tex. App.-Houston [1st Dist.] 2011) (mandamus appropriate for lis pendens issues)
- In re Castle Tex. Prod. Ltd. P'ship, 189 S.W.3d 400 (Tex. App.-Tyler 2006) (jurisdictional reach of writs when extraordinary relief is sought)