Opinion issued March 11, 2014




                                        In The

                                Court of Appeals
                                       For The

                            First District of Texas
                              ————————————
                                NO. 01-13-00973-CV
                             ———————————
                         IN RE PAULA MILLER, Relator



             Original Proceeding on Petition for Writ of Prohibition


                                    OPINION

       In this proceeding ancillary to a common-law marriage determination, Paula

Miller, the relator, has filed a petition for writ of prohibition, asking that we enjoin

the trial court from ruling upon a request to cancel a lis pendens filed on a tract of

commercial property located in Brazoria County.1 We deny the petition.



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    The underlying case is JAS Family Limited Partnership #4 Ltd. v. Paula Miller, cause
    number 65767, pending in the 149th District Court of Brazoria County, Texas, the
    Honorable Terri Holder presiding.
                                    Background

      Miller has filed for a divorce against James Prince in Harris County, seeking

dissolution of a common-law marriage and distribution of the community estate.

Miller claims that the Brazoria County property belongs to the alleged community

estate. To protect her interest, she placed a lis pendens on the Brazoria County

property, which constructively discloses the pendency of the Harris County suit in

the real property records. The Harris County trial court ruled that no common-law

marriage existed between Miller and Prince. It severed the parties’ remaining

claims and set them for trial. Miller appealed the trial court’s order; her appeal

from the Harris County trial court’s order is pending before us in

Cause No. 01-13-00243-CV.

      Meanwhile, the JAS Family Limited Partnership #4, Ltd., the real party in

interest and record owner of the disputed property, sued Miller in Brazoria County,

seeking a declaratory judgment cancelling Miller’s lis pendens. In this proceeding,

Miller asks that we enjoin the Brazoria County Court from conducting a hearing or

ruling on JAS’s request for declaratory relief until our Court determines Miller’s

appeal of the Harris County Court’s informal marriage determination. Miller

contends that Brazoria County Court lacks “subject-matter jurisdiction to cancel

the lis pendens and to permit the sale of the real property until this Court fully

adjudicates the divorce issues on appeal.” (Pet. at 4).


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                                     Discussion

       Standard of review

       A writ of prohibition is a limited-purpose remedy. In re Lewis, 223 S.W.3d

756, 761 (Tex. App.—Texarkana 2007, orig. proceeding); TEX. GOV’T CODE ANN.

§ 22.221(a) (West 2004). It is available to protect the subject matter of an appeal or

to prohibit unlawful interference with enforcement of an appellate court’s

judgment. See Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 683 (Tex.

1989) (orig. proceeding); Sivley v. Sivley, 972 S.W.2d 850, 862–63 (Tex. App.—

Tyler 1998, orig. proceeding). But prohibition is not appropriate relief when other

remedies, like an appeal, are available and adequate. See In re Castle Tex. Prod.

Ltd. P’ship, 189 S.W.3d 400, 404 (Tex. App.—Tyler 2006, orig. proceeding). Its

extraordinary nature requires caution in its use. See In re State, 180 S.W.3d 423,

425 (Tex. App.—Tyler 2005, orig. proceeding). The writ will not issue to protect

an appellate court’s jurisdiction from the mere possibility of interference by a trial

court; rather, the threat of jurisdictional interference must be imminent. In re

Barbee, No. 12-09-00165-CV, 2010 WL 3341518, at *3 (Tex. App.—Tyler Aug.

25, 2010, orig. proceeding) (mem. op.); In re Castle Tex. Prod., 189 S.W.3d at

403.




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      Applicable law

      A lis pendens is a notice of litigation, placed in the real property records,

asserting an interest in the property, and notifying third parties that ownership of

the property is disputed. The doctrine is codified in Section 12.007(a) of the Texas

Property Code:

      [D]uring 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, a party to the action who is
      seeking affirmative relief may file for record with the county clerk of
      each county where a part of the property is located a notice that the
      action is pending.
TEX. PROP. CODE ANN. § 12.007(a) (West Supp. 2013). “Generally speaking, the

purpose of lis pendens notice is two-fold: (1) to protect the filing party’s alleged

rights to the property that is in dispute in the lawsuit and (2) to put those interested

in the property on notice of the lawsuit.” David Powers Homes, Inc. v. M.L.

Rendleman Co., Inc., 355 S.W.3d 327, 336 (Tex. App.—Houston [1st Dist.] 2011,

no pet.) (citing World Sav. Bank, F.S.B. v. Gantt, 246 S.W.3d 299, 303 (Tex.

App.—Houston [14th Dist.] 2008, no pet.)).

      A lis pendens is not an independent claim; it has no existence separate from

the litigation of which it notifies. See Collins v. Tex Mall, L.P., 297 S.W.3d 409,

418 (Tex. App.—Fort Worth 2009, no pet.); Taliaferro v. Smith, 804 S.W.2d 548,

550 (Tex. App.—Houston [14th Dist.] 1991, no writ). “A properly filed lis pendens

is not itself a lien; rather it operates as constructive notice ‘to the world of its

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contents.’” David Powers Homes, Inc., 355 S.W.3d at 336 (quoting TEX. PROP.

CODE ANN. § 13.004(a) (West Supp. 2013); see B&T Distribs., Inc. v. White, 325

S.W.3d 786, 789 (Tex. App.—El Paso 2010, no pet.)). Although it does not

prevent conveyance, it places a prospective purchaser on notice about the suit and

the disputed title to the land. See David Powers Homes, Inc., 355 S.W.3d at 336

(citing Collins, 297 S.W.3d at 418).

      Analysis

      We deny the request for a writ of prohibition because Miller has not

demonstrated its necessity and other adequate remedies exist.

      First, Miller has not provided any indication that the Brazoria County

Court’s actions in adjudicating the declaratory judgment claim will disturb or

interfere with our jurisdiction over the pending appeal. Nor is there any indication

in the record that she has requested that the trial court abate the action. See In re

John M. O’Quinn & Assocs. PLLC, No. 01-13-00076-CV, 2013 WL 1739633, *2

(Tex. App.—Houston [1st Dist.] Apr. 23, 2013, orig. proceeding) (mem. op.)

(denying relief, noting trial court was not presented with abatement request).

Interference with the appeal is not imminent or even a given. The issue on

appeal—whether a common law marriage existed—does not adjudicate title, and

any title dispute is an ancillary determination. Even if title to the property were

implicated, a trial court may cancel a lis pendens if it determines that the deposit of


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money into the court or other security adequately protects the plaintiff’s interests.

See TEX. PROP. CODE ANN. § 12.008 (West 2004).

      Relying on Ex Parte Boniface, 650 S.W.2d 776 (Tex. 1983), Miller argues

that, once jurisdiction over the appeal vested in our court, the Brazoria County

Court “was prohibited from taking any further action concerning alleged

community property, including the canceling of the lis pendens.” In Boniface, the

Texas Supreme Court held that a trial court did not have jurisdiction to enforce a

final judgment directing a husband to make monthly retirement benefit payments

to his wife while the judgment was on appeal. See Boniface, 650 S.W.2d at 778.

But the Supreme Court has overruled Boniface on this issue. See In re Sheshtawy,

154 S.W.3d 114 (Tex. 2004). In Sheshtawy, the court held that “when a final

judgment has not been superseded or stayed pending an appeal, either the trial

court or the court of appeals may entertain a motion for contempt.” Id. at 124–25.

The Supreme Court observed:

      In examining our decisions, particularly Boniface and Schultz, we are
      unable to discern a compelling reason for withdrawing a trial court's
      authority to enforce a final judgment pending appeal when that
      judgment has not been superseded or stayed and no statute or rule of
      procedure removes the trial court’s authority.

Id. at 124; see also In re Fischer-Stoker, 174 S.W.3d 268, 271 (Tex. App.—

Houston [1st Dist.] 2005, pet. denied) (citing Sheshtawy, 154 S.W.3d at 124–25).

Accordingly, the Brazoria County Court had jurisdiction to enter orders enforcing


                                         6
a judgment while it is pending on appeal, unless we have issued a stayed of

proceedings, the judgment debtor has superseded it, or enforcement is

automatically stayed pending appeal.

      None of those caveats are applicable here. Section 9.007 of the Texas

Family Code provides that enforcement of the property division in a divorce decree

is abated during the pendency of an appellate proceeding. See TEX. FAM. CODE

ANN. § 9.007(c) (West 2006). But the appeal here is not from an order dividing the

community estate. Even if it was, cancelling the lis pendens does not enforce a

property division ruling because a lis pendens merely notifies of the existence of

the dispute; its placement or removal does not quiet title. See Collins, 297 S.W.3d

at 418; Taliaferro, 804 S.W.2d at 550.

      Second, Miller has other adequate remedies, among them, requesting

alternate security in the Brazoria County Court, and mandamus relief if the court’s

later orders in the declaratory judgment claim are infirm or interfere with the

appeal. See TEX. PROP. CODE ANN. § 12.008 (West 2004) (conditioning

cancellation of lis pendens upon providing security); In re Cohen, 340 S.W.3d 889,

900 (Tex. App.—Houston [1st Dist.] 2011, orig. proceeding) (“Mandamus has

been recognized as the appropriate remedy when issues have arisen concerning the

issuance of notices of lis pendens.”); In re Mousa, No. 01-04-00485-CV, 2004 WL

2823172, at *2 (Tex. App.—Houston [1st Dist.] Dec. 9, 2004, orig. proceeding)


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(mem. op.) (“A writ of mandamus is the appropriate remedy when issues arise

concerning the propriety of a notice of lis pendens”); see also Nwangwu v. Dinkins,

No. 14-97-01100-CV, 1997 WL 688943, at *1 (Tex. App.—Houston [14th Dist.]

Nov. 6, 1997, orig. proceeding) (holding that appellate court had no jurisdiction in

appeal from order cancelling lis pendens, but noting that it could be subject of

mandamus proceeding).

                                    Conclusion

      This case does not demonstrate the extraordinary circumstances required for

issuance of a writ of prohibition; accordingly, we deny Miller’s petition. Any

pending motions are dismissed as moot.




                                             Jane Bland
                                             Justice

Panel consists of Justices Keyes, Bland, and Brown.




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