Khraish v. Hamed

762 S.W.2d 906, 1988 Tex. App. LEXIS 3378, 1988 WL 146293

• Court: Court of Appeals of Texas
• Decided: November 23, 1988
• Docket: 05-87-00897-CV
• Status: Published

Opinions

OPINION ON REHEARING

LAGARDE, Justice.

Appellant Hanna E. Khraish’s Motion for Rehearing is granted. We withdraw our original opinion, and the following is now our opinion.

Plaintiff, Hanna E. Khraish, appeals from the district court’s order “removing” four notices of lis pendens filed by Khraish on property owned by Ghassan Hamed (Hamed), a home builder. Khraish raises three points of error, which remain undecided because we conclude that this court is without jurisdiction to hear this interlocutory appeal. Accordingly, we dismiss for lack of jurisdiction.

Khraish sued Hamed for fraud and sought to recover money damages; Khraish further sought to impose a constructive trust on certain realty, allegedly the subject of the fraud, and to trace the proceeds of the fraud into other real property. Hamed’s brother, Samir Hamed (Samir), and Texas American Bank/Plano (the bank) were also named as parties. Khraish asserted that Hamed fraudulently procured money from Khraish, used the money to purchase various pieces of realty, and subsequently transferred one of the pieces of realty to his brother, Samir. Khraish sought to set aside the transfer to Samir and to void the lien of the bank with respect to the transfer. Khraish filed a notice of lis pendens on each of the properties.

Hamed moved for removal of four of the notices of lis pendens filed on property located in Collin County, Texas, because Khraish’s pleadings demonstrated no right to title, or to a security interest, in real property located outside of Dallas County, Texas; therefore, says Hamed, Khraish improperly filed notices of lis pendens on those four properties that were only collaterally linked to the lawsuit. The remaining lis pendens notices were not included in either Hamed’s motion or the trial court’s order; therefore, they are not before this Court on appeal.

The trial court granted Hamed’s motion and ordered that the notices of lis pendens on the four Collin County properties be removed and further ordered that Khraish refrain from filing “any notices of Lis Pen-dens on any property which was the subject of the Notices of Lis Pendens as set forth in Defendant, Ghassan Hamed’s, ‘Motion for Removal of Lis Pendens’, or in [Khraish’s] ‘Response to Motion for Removal of Lis Pendens’ presently before” the trial court. The underlying cause of action is still pending in the trial court. The only matter before us is an appeal from the interlocutory order of the trial court “removing”¹ the lis pendens notices.²

Our threshold inquiry is whether this appeal is properly before this Court as an interlocutory appeal. Pursuant to section 51.014 of the Texas Civil Practice & Remedies Code, a person may appeal an interlocutory order from a district court, county court at law, or county court only if the order falls into one of the following categories:

(1) appoints a receiver or trustee;

(2) overrules a motion to vacate an order that appoints a receiver or trustee;

(3) certifies or refuses to certify a class in a suit brought under Rule 42 of the Texas Rules of Civil Procedure; or

(4) grants or refuses a temporary injunction or grants or overrules a motion to dissolve a temporary injunction as provided by Chapter 65.

TEX.CIV.PRAC. & REM.CODE ANN. § 51.014 (Vernon Supp.1988). In this instance, it is obvious that the first three categories are inapplicable. Thus, in order to be appealable as an interlocutory order, the order from which Khraish appeals must be characterized as a temporary injunction.

Citing Hughes v. Houston Northwest Medical Center, 647 S.W.2d 5, 8 (Tex.App.—Houston [1st Dist.] 1982, writ dism’d w.o. j.), Khraish contends that the trial court’s order, which removes the four Collin County notices of lis pendens and prohibits refiling of those notices, contains elements of a temporary injunction and is, therefore, appealable as an interlocutory appeal. We assume that Khraish complains of being enjoined from placing a cloud on the title of real property. See TEX.CIV.PRAC. & REM.CODE ANN. § 65.011(4) (Vernon 1986). Normally, an order cancelling notice of lis pendens cannot be construed as a temporary injunction. Werneke v. Seaburg, 720 S.W.2d 886, 887 (Tex.App.—Fort Worth 1986, no writ). The court in Wer-neke stated, in relevant part:

Temporary injunctions are issued by court orders which contain mandatory safeguards. TEX.CIV.PRAC. & REM. CODE ANN. sec. 65.021 (Vernon 1986). In marked contrast to the procedural complexities of the injunction statute, lis pendens is a fairly simple device enacted as part of the property code. Specifically, lis pendens is a signed statement by an attorney stating the particulars of the underlying cause of action. The court is not involved in either the filing or the issuance of the notice of lis pendens. In fact, the county clerk with whom the notice is filed, must file the notice of lis pendens without further inquiry. TEX. PROP.CODE ANN. sec. 12.007 (Vernon 1984).

sjc * * * * *

An order granting or cancelling a notice of lis pendens is not in the form of an injunction. We recognize that the injunction and lis pendens statutes are coequal, designed by the legislature to accomplish differing purposes. Lis pen-dens is designed merely to protect innocent buyers from purchasing land subject to litigation. Kropp v. Prather, 526 S.W.2d 283, 287 (Tex.Civ.App.— Tyler 1975, writ ref’d n.r.e.).

Werneke, 720 S.W.2d at 887-88. Moreover, we would be loath to hold that the mere fact that a party was directed to do a certain thing pending trial makes the court’s order a temporary injunction. McQuade v. E.D. Systems Corp., 570 S.W.2d 33, 35 (Tex.Civ.App.— Dallas 1978, no writ).

An order cancelling or removing lis pen-dens, however, may, under certain circumstances, be an appealable injunctive order. Hughes, 647 S.W.2d at 7-8. In Hughes, the appellate court determined that the trial court had, in effect, granted a temporary injunction in favor of the defendants by ordering that the lis pendens be cancelled and that no further lis pendens be filed. It is important to note, however, that crucial to the court’s decision was its initial determination that the plaintiff’s notice of lis pendens did comply with section 12.007 of the Texas Property Code.³

Pursuant to section 12.007, a lis pendens may be filed during the pendency of an action involving the title to real property, the establishment of an interest in real property, or the enforcement of an encumbrance against real property. Here, Khraish seeks to establish an interest in the real property as security for the recovery of any damages he may be awarded against Hamed and Samir on his currently pending fraud allegation. This does not come within the provisions of section 12.007. See Moss v. Tennant, 722 S.W.2d 762, 763 (Tex.App.— Houston [14th Dist.] 1986, orig. proceeding).

In Hughes, the property upon which the lis pendens was filed was the subject matter of the litigation. In that instance, the plaintiffs were partners and shareholders in a partnership and corporation which had contracted to sell certain property to another entity. The plaintiffs filed suit to impose a constructive trust on the title to the property and to cancel the proposed sale of the property because the contract had been procured by fraud. The plaintiffs filed lis pendens to prevent the defendant from placing the property beyond the plaintiffs’ reach, pending the outcome of the litigation.

In contrast, it is evident from the record before us that Khraish’s notices on the Collin County property do not comply with section 12.007. Khraish, in his eighth amended petition, relies upon an alleged loan agreement between him and Hamed. The loan agreement, drafted by Khraish, states:

This will acknowledge our agreement that the undersigned, Hanna Khraish (“Khraish”) has loaned to [Hamed] a total amount of Two Hundred Eighty-Five Thousand One Hundred Seventy-Seven and 87/ioo Dollars ($285,177.87), as itemized on Exhibit A attached hereto, for the purpose of financing [Hamed’s] purchase of certain real property in Dallas County, Texas and [Hamed’s] construction thereon of a house or houses for resale, and our further agreement that additional sums for the same purposes may be loaned to [Hamed] in the future.

(Emphasis added.) Khraish alleges that loan money which he gave to Hamed, pursuant to the loan agreement, was used by Hamed to purchase certain pieces of property and to construct improvements on the property. Without deciding the merits of Khraish’s claims, and assuming, without deciding, that the loan agreement does indeed exist, the real property, intended by Khraish to secure the loan agreement, would be only that real property which is located in Dallas County, Texas. All of the real property made the subject of Hamed’s motion for removal of lis pendens was located in Collin County, Texas and, therefore, was not subject to the loan agreement.

Thus, the notices of lis pendens filed in Collin County affect Khraish’s cause of action collaterally, not directly, and do not come within the provisions of section 12.007. See Helmsley-Spear of Texas, Inc. v. Blanton, 699 S.W.2d 643, 645 (Tex.App.— Houston [14th Dist.] 1985, no writ). Where only a collateral question is involved, which might ultimately affect the parties’ title to the property, lis pendens does not apply. Lane v. Fritz, 404 S.W.2d 110, 112 (Tex.Civ.App.— Corpus Christi 1966, no writ). Moreover, these lis pen-dens notices are void. Moss, 722 S.W.2d at 763. Therefore, Hamed was neither required to comply with section 12.008 in order to nullify, remove, or cancel the notice, nor required to comply with procedural safeguards of a temporary injunction. The trial court acted properly when it ordered removal of those lis pendens notices that were improperly filed in Collin County. Without meeting the requirement of section 12.007, Khraish cannot complain that he has suffered the adverse effect of an improper removal or cancellation of his notices of lis pendens.

Because the notices of lis pendens filed on the Collin County property do not comply with section 12.007 and are, therefore, void, the trial court’s order cannot be said to contain elements of a temporary injunction. Thus, this appeal is dismissed for lack of jurisdiction.

1 . We note that section 12.008 of the Texas Property Code speaks in terms of cancellation, rather than removal, of lis pendens notices. TEX. PROP.CODE ANN. § 12.008.

2 . Even though the transcript before us contains the denial of the motion for summary judgment, Khraish states in his brief he does not seek to appeal that order.

3 . TEX.PROP.CODE ANN. § 12.007 (Vernon 1984).