in Re Moody National Kirby Houston S, LLC

Opinion

Opinion issued July 12, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-13-00204-CV ——————————— IN RE MOODY NATIONAL KIRBY HOUSTON S, LLC, Relator

Original Proceeding on Petitions for Writ of Mandamus

OPINION

In this original proceeding, relator, Moody National Kirby Houston S, LLC

seeks mandamus relief compelling the trial court to grant its motions to expunge the lis pendens filed by Capcor at KirbyMain, LLC on real property owned by

Moody. * We deny the petition.

Capcor sued Moody asserting various claims arising from a failed real estate

transaction. It also filed a notice of lis pendens with the Harris County Clerk.

Moody filed a motion to expunge the lis pendens, which the trial court denied.

The case proceeded to trial. The trial court directed a verdict in favor of

Moody on Capcor’s statutory fraud claim, and the jury rendered a verdict in favor

of Moody on Capcor’s remaining claims. Moody filed a second motion to

expunge, but the trial court never ruled on that motion. On October 17, 2012,

Moody filed its third Motion to Expunge and Cancel Lis Pendens.

The trial court entered a final judgment on October 26, 2012. Capcor timely

filed a motion for new trial. Following a hearing, the trial court denied Moody’s

third motion to expunge as moot. Then on January 9, 2013, the motion for new

trial was overruled by operation of law. TEX. R. CIV. P. 329b(c). Capcor timely

filed its notice of appeal, and that appeal is currently pending in this court as cause

no. 01-13-00068-CV.

* The underlying case was Capcor at KirbyMain, LLC v. Moody National Kirby Houston S, LLC and Moody National Title Company, LP, Cause No. 2011-32904, in the 215th District Court of Harris County, Texas, the Honorable Elaine Palmer, presiding.

2 On February 5, 2013, the trial court denied Moody’s Motion for

Reconsideration of its Third Motion to Expunge Capcor’s Lis Pendens. On

February 8, the trial court’s plenary power expired. TEX. R. CIV. P. 329b(e).

Moody subsequently filed this petition for writ of mandamus seeking relief from

the trial court’s order denying its third motion to expunge the lis pendens.

Mandamus relief is available only to correct a clear abuse of discretion when

there is no adequate remedy by appeal. See, e.g., Walker v. Packer, 827 S.W.2d

833, 839 (Tex. 1992). Mandamus has been recognized as an appropriate remedy

when interlocutory issues have arisen concerning the issuance of notices of lis

pendens. See, e.g., In re Cohen, 340 S.W.3d 889, 900 (Tex. App.—Houston [1st

Dist.] 2011, orig. proceeding); First Nat. Petroleum Corp. v. Lloyd, 908 S.W.2d

23, 24 (Tex. App.—Houston [1st Dist.] 1995, no writ) (orig. proceeding); see also

Flores v. Haberman, 915 S.W.2d 477, 478 (Tex. 1995) (per curiam, orig.

proceeding). However, in this case, final judgment had been entered, a notice of

appeal had been filed, and the trial court’s plenary power had expired by the time

Moody filed its mandamus petition. Accordingly, all of the trial court’s

interlocutory rulings, including its denials of the motions to expunge the lis

pendens, had merged into the final judgment and had become appealable. See,

e.g., Roccaforte v. Jefferson Cnty., 341 S.W.3d 919, 924 (Tex. 2011); Webb v.

Jorns, 488 S.W.2d 407, 408–09 (Tex. 1972) (holding that interlocutory judgment

3 merged into final judgment, which was then appealable); CenterPoint Energy

Hous. Elec. LLC v. Bluebonnet Drive, Ltd., 264 S.W.3d 381, 387 n.4 (Tex. App.—

Houston [1st Dist.] 2008, pet. denied).

“Mandamus will not issue where there is ‘a clear and adequate remedy at

law, such as a normal appeal.’” Walker, 827 S.W.2d at 840 (quoting State v.

Walker, 679 S.W.2d 484, 485 (Tex. 1984)). Accordingly, mandamus relief is not

appropriate in this proceeding because Moody had an adequate remedy by appeal,

and we deny the petition.

Michael Massengale Justice

Panel consists of Chief Justice Radack and Justices Sharp and Massengale.

Justice Sharp, dissenting.