In re Med Plus Equity Inv.

Full title: IN RE MED PLUS EQUITY INVESTMENTS, LP, Relator

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jun 13, 2005

No. 05-05-00404-CV (Tex. App. Jun. 13, 2005)

Opinion

No. 05-05-00404-CV

Opinion Issued June 13, 2005.

Original Proceeding from the 134th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 04-12439.

Writ of Mandamus Granted.

Before Justices WRIGHT, O'NEILL, and LANG.

MEMORANDUM OPINION

MICHAEL J. O'NEILL, Justice.

In this original proceeding, relator Med Plus Equity Investments, LP requests the Court issue a writ of mandamus ordering the trial court to vacate its order denying relator's emergency motion to cancel lis pendens and to issue an order granting the emergency motion to cancel lis pendens because the lis pendens is invalid. We agree the lis pendens is invalid and conditionally grant the writ.

Real parties in interest Dilip Sheth and OM Story, LLC (OM) sued Frank Sarabia, Roland Campos, Med Plus Equity Investments, LP,(Equity), Med Plus Commercial LLC (Commercial) alleging they prevented Sheth and OM from participating in a partnership to purchase real estate located in Irving Texas.¹ Sheth alleges that Sarabia convinced him to form OM and for OM to become a limited partner in a new partnership, Equity. Commercial, allegedly owned by Sarabia and Campos, would be general partner in Equity. Sheth alleges that Equity was to purchase the Irving property. Sheth alleges that, on behalf of OM, he signed the partnership agreement to form Equity and placed his contribution in escrow. But, Sarabia and Campos failed to complete their obligations to include OM as a member of the Equity partnership. He alleges they formed Equity and that it purchased the Irving property, without allowing OM to participate as promised. Sheth and OM's original petition seeks damages from Sarabia, Campos, Equity and Commercial for failing to allow Sheth and OM to participate in the Equity partnership and its purchase of the Irving property. They also seek specific performance, declaratory judgment, and constructive trust on the partnership and the Irving property. After filing suit, Sheth and OM filed a lis pendens on the Irving property. Equity filed a motion to cancel the lis pendens asserting it is improper because Sheth and OM are not claiming title to the property in their suit. The trial court denied Equity's motion to cancel the lis pendens. Equity then filed this original proceeding.

1 Only Equity has been served and answered.

VALIDITY OF LIS PENDENS

Section 12.007 of the property code permits a party, seeking affirmative relief, to file a lis pendens "during the pendency of an action involving title to real property, the establishment of an interest in real property, or the enforcement of an encumbrance against real property." Tex. Prop. Code Ann. § 12.007 (Vernon 1984). If a party files a lis pendens but has not filed an action seeking title to, an interest in, or an encumbrance against the real property, the lis pendens is void and must be cancelled by the court. Helmsley-Spear of Texas, Inc. v. Blanton, 699 S.W.2d 643, 645 (Tex.App.-Houston [14^th Dist.] 1985, orig. proceeding). To determine if the lis pendens is valid, we examine the claims made in the petition to determine if it seeks relief which falls under the provisions of section 12.007. Hughes v. Houston Northwest Med. Center, 647 S.W.2d 5, 6 (Tex.App.-Houston [1^st Dist.] 1982, writ dism'd) (construing article 6640a, now section 12.007). If the claims made only involve the real property collaterally, the lis pendens is void. Khraish v. Hamed, 762 S.W.2d 906, 909 (Tex.App.-Dallas 1988, writ denied). After reviewing Sheth and OM's live pleading at the time the trial court ruled on the motion to cancel the lis pendens, we conclude the real property is only collaterally involved in the claims made. Seth and OM's claim would only address an interest in the partnership. An interest in a partnership is distinct from an interest in rel estate which may be owned by the partnership. Therefore, the lis pendens is void and the trial court should have cancelled it.

CONCLUSION

We conclude the trial court abused its discretion in denying Med Plus Equity Investments, LP's motion to cancel lis pendens and that Med Plus does not have an adequate remedy at law. Moss v. Tennant, 722 S.W.2d 762, 763 (Tex.App.-Houston [14^th Dist.] 1986, orig. proceeding) (a party does not have an adequate remedy at law from the trial court's refusal to cancel a void lis pendens). Accordingly, we conditionally grant the writ of mandamus. We order the trial court to vacate its order signed March 21, 2005 denying Med Plus Equity Investments, LP's emergency motion to cancel lis pendens and to enter an order granting Med Plus Equity Investments, LP's emergency motion to cancel lis pendens. We order the trial court to file a certified copy of its order in compliance with this opinion and order within thirty days of the date of this opinion and order. Should the trial court fail to comply, the writ will issue.