                                                                                   ACCEPTED
                                                                               14-15-00207-CV
                                                               FOURTEENTH COURT OF APPEALS
                                                                            HOUSTON, TEXAS
                                                                           7/6/2015 3:38:48 PM
                                                                         CHRISTOPHER PRINE
                                                                                        CLERK

                       NO. 14-15-00207-CV

                                                               FILED IN
                                                        14th COURT OF APPEALS
                IN THE COURT OF APPEALS                    HOUSTON, TEXAS
              FOR THE FOURTEENTH DISTRICT                7/6/2015 3:38:48 PM
                   AT HOUSTON, TEXAS                    CHRISTOPHER A. PRINE
                                                                 Clerk



               COUNTY INVESTMENT, LP,
                       Appellant,
                          v.
ROYAL WEST INVESTMENT, LLC, SERIES E AND SHAWN SHABAZI,
                       Appellee


               Original Proceeding Arising Out of the
         189th Judicial District Court, Harris County, Texas
                       Cause No. 2014-34978
                        Honorable Bill Burke


                    BRIEF OF APPELLANT


                                     Jeremy D. Saenz
                                     State Bar No. 24033028
                                     jsaenz@wsdllp.com
                                     Jason T. Wagner
                                     State Bar No. 00795704
                                     jwagner@wsdllp.com
                                     1010 Lamar, Suite 425
                                     Houston, Texas 77002
                                     Telephone: (713) 554-8450
                                     Facsimile: (713) 554-8451



               ORAL ARGUMENT REQUESTED
                     IDENTITY OF PARTIES AND COUNSEL

Parties To The Trial Court’s Judgment:

       Plaintiff: County Investment, LP

       Defendants: Royal West Investment, LLC, Series E and Shawn Shahbazi

The Names and Addresses of Trial and Appellate Counsel for County Investment,
LP

Attorney of Record at Trial and on Appeal:
Jeremy D. Saenz
Wagner Saenz Dority, LLP
1010 Lamar, Suite 425
Houston, Texas 77002

The Names and Addresses of Trial and Appellate Counsel for Royal West
Investments, LLC, Series E and Shawn Shahbazi

Attorney of Record at Trial and on Appeal:
Robert G. Miller
O’Donnell, Ferebee & Frazer, P.C.
450 Gears Road, Suite 800
Houston, Texas 77067




_________________________________
Brief of Appellant                                                      Page ii
                                          TABLE OF CONTENTS

Identity of Parties and Counsel ................................................................................. ii

Table of Contents ..................................................................................................... iii

Index of Authorities .................................................................................................. v

Statement of Case ................................................................................................... vii

Statement Regarding Oral Argument ..................................................................... vii

Issues Presented ..................................................................................................... viii

Statement of Facts..................................................................................................... 1

Summary of the Arguments ...................................................................................... 5

Arguments................................................................................................................. 6

I.       Standard of Review ........................................................................................ 6

II.      An Absolute Privilege Does Not Apply In This Case .................................... 7

         A.        The Lis Pendens was Filed Against a Property
                   Owned by a Person That was Not Part of Any Judicial Proceeding .... 7

         B.        The Lis Pendens Affected Real Property Collaterally,
                   not Directly, and does not come within the
                   Provisions of Texas Property Code Section 12.007 ........................... 10

                   i. The Lis Pendens was Void Ab Initio .............................................. 10

                   ii. The Remedies Available in Texas Property Code
                       Section 12.0071 and Section 12.008 are not Required, Nor
                       are they Feasible in Purchase Transactions ................................... 13


_________________________________
Brief of Appellant                                                                                                 Page iii
         C.       The Notice of Lis Pendens is a Court Record and
                  Governed by Civil Practice and Remedies Code Section 12.002 ...... 14

         D.       The Question of Fraud Should Go to the Jury ................................... 16

III.     Holding that an Absolute Privilege Applies Even When
         the Affected Party or Property is Not Involved or
         Even a Part of a Judicial Proceeding Will Have a Deleterious Effect.......... 16

IV.      Conclusion and Prayer .................................................................................. 18

Certificate of Compliance ....................................................................................... 19

Certificate of Service .............................................................................................. 19




_________________________________
Brief of Appellant                                                                                              Page iv
                                    INDEX OF AUTHORITIES

Statutes and Rules

TEX. CIV. PRAC. & REM. CODE § 12.002..................................................... 14, 15, 17

TEX. PROP. CODE § 12.007 .............................................................. 10, 11, 12, 13, 15

TEX. PROP. CODE § 12.0071 ........................................................................ 13, 14, 17

TEX. PROP. CODE § 12.008 .................................................................... 12, 13, 14, 17

TEX. R. CIV. PROC. 76a(2)(a) .................................................................................. 14

TEX. R. CIV. PROC. 166a(c) ....................................................................................... 6

Cases

Bayou Terrace Inv. Corp. v. Lyles,
  881 S.W.2d 810 (Tex. App.—Houston [1st Dist.] 1994, no writ) ...................... 9

Cullins v. Foster,
  171 S.W.3d 521, 530 (Tex.App.-Houston [14th Dist] 2005, pet. denied) .......... 6

Duke v. Power Electric and Hardware Co.,
  674 S.W.2d 400 (Tex. App.—Corpus Christi 1984, no writ)............................ 16

Griffin v. Rowden,
   702 S.W.2d 692 (Tex. App.—Dallas 1985, writ ref’d n.r.e.) .............................. 9

Helmsley-Spear of Texas, Inc. v. Blanton,
  699 S.W.2d 643, 645 (Tex. App.—Houston [14th Dist.] 1985, no writ) 11, 12, 13

Kropp v. Prather,
  526 S.W.2d 283 (Tex. Civ. App.—Tyler 1975, writ ref’d n.r.e.) ........................ 9

Moss v. Tennant,
  722 S.W.2d 762 (Tex. App.—Houston [14th Dist.]
  1986, no writ) ............................................................................ 10, 11, 12, 13, 15

_________________________________
Brief of Appellant                                                                                           Page v
Nixon v. Mr. Prop. Management Co.,
   690 S.W.2d 546, 549 (Tex.1985) ........................................................................ 6

Olbrich v. Touchy,
   780 S.W.2d 6 (Tex. App.—Houston [14th Dist.] 1989, no writ) ....................... 12

Prappas v. Meyerland Comm. Improvement Ass’n.,
   795 S.W.2d 794 (Tex. App.—Houston [14th Dist.] 1990, writ denied) .... 7, 9, 15

Provident Life & Accident Ins. Co. v. Knott,
   128 S.W.3d 211, 215-16 (Tex. 2003) ................................................................. 6

Sci. Spectrum, Inc. v. Martinez,
   941 S.W.2d 910, 911 (Tex.1997) ........................................................................ 6

Valence Operating Co. v. Dorsett,
   164 S.W.3d 656, 661 (Tex. 2005) ....................................................................... 6

Virginia Indonesia Co. v. Harris County Appraisal Dist.,
   910 S.W.2d 905, 907 (Tex.1995) ........................................................................ 6




_________________________________
Brief of Appellant                                                                                   Page vi
                            STATEMENT OF THE CASE

       On June 17, 2014, County Investment, LP (“Appellant” or “County

Investment”) filed a lawsuit for violations of Chapter 12 of the Texas Civil Practice

and Remedies Code for a fraudulent lien or claim filed against real property,

tortious interference with a contract, and slander of title against Appellees Royal

West Investment, LLC, Series E, and Shawn Shahbazi (“Appellee Royal West,”

“Appellee Shahbazi,” or collectively “Appellees”) (C.R. 6). On October 2, 2014,

Appellees filed a Motion for Summary Judgment on County Investment’s claims

arguing that County Investment was not entitled to relief because its causes of

action were barred by the defense of Absolute Privilege (C.R. 18-19). Appellee’s

Motion for Summary Judgment was granted on December 5, 2014 (C.R. 106).

County Investment’s Motion for Reconsideration and Motion for New Trial were

denied as a matter of law on February 18, 2015. Appellant filed a Notice of

Appeal on March 4, 2015 (C.R. 135).

               STATEMENT REGARDING ORAL ARGUMENT

       Appellant requests oral argument because it believes it will aid the Court in

its decision process.




_________________________________
Brief of Appellant                                                             Page vii
                                    ISSUES PRESENTED

   I.     The trial court erred in holding that the filing of a lis pendens, even on a
          collateral property unrelated to any pending litigation, is protected by an
          absolute privilege in the due course of a judicial proceeding.

   II.    The trial court erred in holding that the fraudulent filing of a lis pendens
          under Civil Practice and Remedies Code 12.002 is protected by an
          absolute privilege in the due course of a judicial proceeding.




_________________________________
Brief of Appellant                                                             Page viii
                                    NO. 14-15-00207-CV

                          In the Court of Appeals for the 14th
                          District of Texas at Houston, Texas

                             COUNTY INVESTMENT, LP,
                                   Appellant,

                                            v.

  ROYAL WEST INVESTMENT, LLC, SERIES E AND SHAWN SHABAZI,
                         Appellee

                               BRIEF OF APPELLANT

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

       COUNTY INVESTMENT, LP, (hereinafter “County Investment”), submits

this brief in appeal of the trial court’s summary judgment rendered in favor of

Royal West Investment, LLC, Series E and Shawn Shabazi (hereinafter Appellee

Royal West, Appellee Shahbazi, and Appellees collectively).


                              STATEMENT OF FACTS

       County Investment is a Texas Limited Partnership (C.R. 4). Appellee Royal

West is a Delaware Limited Liability Company and is purported to be authorized

to do business in Texas and Appellee Shahbazi is an individual and sole member of

Royal West Investment, LLC, Series E (C.R. 4). Appellees were involved in

entirely unrelated litigation in Tarrant County involving Appellees, U.S. Capital

Investments, LLC (“USCI”) and Massood Pajooh, but not County Investment.

_________________________________
Brief of Appellant                                                          Page 1
(C.R. 12, 22-36). Neither USCI nor Massood Pajooh are named parties in the

present lawsuit, and neither are owners of the property concerning this lawsuit.

(C.R. 4-9, 56-57).

       On or about April 9, 2013, County Investment entered into a Real Estate

Purchase Agreement (“Purchase Agreement”) with a bona fide purchaser for the

sale of eight (8) acres out of a nine point six two seven (9.627) acre tract in

Reserve N3, of Northborough Section Three (3), in Houston, Harris County, Texas

(C.R. 5). The property, identified by the Harris County Appraisal District by

Number 114-586-000-0021 (“Property”) was owned by County Investment (C.R.

56). According to the terms of the Purchase Agreement, the purchaser was to pay

County Investment Nine Hundred Fifty-Six Thousand and no/100 dollars

($956,000.00) for the Property (C.R. 5).       Escrow was thereafter opened with

Stewart Title Company Id.

       On or about April 23, 2013, Stewart Title issued a Commitment for Title

Insurance on the Property (C.R. 5). In Schedule C of the Title Commitment

(which is the section listing those items that will be excluded from the policy

unless resolved prior to closing), Stewart Title noted the following:

              10. The Company requires a satisfactory dismissal with
              prejudice of that suit styled U.S. Capital Investments,
              LLC v. Shawn Shahbazi, et al under Cause No. 096-
              244268-10 in the 96th Judicial District Court of Tarrant
              County, Texas and release of that lis pendens recorded

_________________________________
Brief of Appellant                                                         Page 2
              in/under County Clerk’s File No. 20130021834 of Real
              Property Records of Harris County, Texas (C.R. 6).

        County Investment was not a party to the lawsuit that Appellees used for the

basis of their lis pendens, and was not listed on the face of the lis pendens (C.R.

39). Appellee Shahbazi acknowledged that fact in his deposition:

        Q.    Was that case in Fort Worth against County Investment, LP?
        A.    I don’t think so.
        Q.    Okay.
        A.    No.
        Q.    No.
        A.    No. No.

(C.R. 120-121). On or about April 27, 2013, County Investment, through its

representative, contacted Appellee Shahbazi regarding the lis pendens (C.R. 130-

131).     Appellee Shahbazi acknowledged receipt of correspondence stating

“basically he’s telling me to release that lis pendens, the property he’s trying to

sell” (C.R. 125-126). On or about May 7, 2013, County Investment’s attorney

contacted Appellee Shahbazi’s attorney, attaching a Release of Lis Pendens for

execution (C.R. 132).

        Despite the notices being sent to Appellees directly and through their

counsel, the lis pendens was not removed and on or about June 7, 2013, the

Purchase Agreement was cancelled (C.R. 131). As a result, Plaintiff lost out on

$956,000.00 (C.R. 88-89).



_________________________________
Brief of Appellant                                                             Page 3
       On or about April 4, 2014, nearly a year after the Appellees were notified of

the existence of the wrongfully filed lis pendens, Defendant, through their attorney,

released the lis pendens (C.R. 90-91).




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Brief of Appellant                                                              Page 4
                        SUMMARY OF THE ARGUMENTS

       The appellate record conclusively establishes that County Investment was

not a party in any judicial proceedings at the time that the lis pendens was filed on

its property. Applying an absolute privilege to protect Appellee that knew at the

time that the lis pendens was fraudulent, creates a deleterious bar to justice.

Furthermore, applying the privilege in an absolute fashion has the unforeseen

effect of allowing a lis pendens to be used as a sword to inhibit property

transactions throughout the State of Texas while simultaneously hiding behind a

shield of absolute privilege.       If any party is involved in any type of judicial

proceeding, it can seek out a completely unrelated property, and on a whim, file a

lis pendens to interfere with the rights of whomever they desire, even parties with

no relation to any judicial proceeding. The remedy available to the affected party

(suit to remove a lis pendens) is wholly insufficient considering the relatively short

period between execution of a property transaction and closing, leaving the party

without any recourse.

       Because an absolute privilege cannot and should not apply when the affected

party and property were not part of any judicial proceeding, and furthermore, when

the lis pendens itself was a fraudulent court filing, judgment in favor of Appellees

should be reversed and County Investment should be given the opportunity to

present its case to a jury.

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Brief of Appellant                                                               Page 5
                                    ARGUMENTS

I.     STANDARD OF REVIEW

       A trial court’s summary judgment is reviewed de novo. Valence Operating

Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). A defendant who seeks a

traditional summary judgment under Rule 166a(c) must demonstrate that the

plaintiff has no cause of action as a matter of law. Provident Life & Accident Ins.

Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex.2003); Cullins v. Foster, 171 S.W.3d

521, 530 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). A traditional

summary judgment is proper when the defendant either negates at least one

element of each of the plaintiff's theories of recovery or pleads and conclusively

establishes each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez,

941 S.W.2d 910, 911 (Tex.1997); Cullins, 171 S.W.3d at 530. When the defendant

has carried its summary judgment burden, the burden shifts to the nonmovant to

raise a material fact issue precluding summary judgment. Virginia Indonesia Co. v.

Harris County Appraisal Dist., 910 S.W.2d 905, 907 (Tex.1995). In reviewing a

summary judgment, Courts are to take as true all evidence favorable to the

nonmovant, indulging every reasonable inference, and are to resolve any doubts in

the nonmovant's favor. Nixon v. Mr. Prop. Management Co., 690 S.W.2d 546, 549

(Tex.1985).



_________________________________
Brief of Appellant                                                             Page 6
II.    AN ABSOLUTE PRIVILEGE DOES NOT APPLY IN THIS CASE

       A.     The Lis Pendens was Filed Against a Property Owned by a Person
              That Was Not Part of Any Judicial Proceeding.

       The appellate record conclusively establishes that County Investment was

not a party in any judicial proceedings at the time that the lis pendens was filed on

its property (C.R. 39, 120-121).

       County Investment does not contest the existence of a privilege for filing a

lis pendens when the filing of the lis pendens is part of a judicial proceeding

between the same parties. However, the privilege is not so broad and absolute as

to apply to a lis pendens on a property that is unrelated to any litigation, and in

which a legal action has not commenced affecting the property or its owner.

Despite assertions by Appellee to the contrary in its Motion for Summary

Judgment (C.R. 17-18), the facts in Prappas v. Meyerland Comm. Improvement

Ass’n., 795 S.W.2d 794 (Tex. App.—Houston [14th Dist.] 1990, writ denied) are

very different from the facts in the present matter. In Prappas, the parties were

involved in litigation with each other, and after judgment but during the pendency

of an appeal between all of the parties, Meyerland Community Improvement

Association filed a lis pendens to stop a sale by Prappas. Id. The Court in Prappas

found that the filing of the lis pendens was a part of a judicial proceeding, and

therefore the filing absolutely was privilege. Id.


_________________________________
Brief of Appellant                                                              Page 7
       The facts in the present case are distinguishable from the typical case where

an absolute privilege applies. County Investment and Appellees were not engaged

in any litigation or judicial proceedings with each other at the time of the filing of

the lis pendens (C.R. 39, 120-121). The only litigation involved Appellees and

parties that were neither part of this suit nor owners of the real property that was

encumbered (C.R. 4-9, 12, 22-36, 56-57). Appellees represented in the Notice of

Lis Pendens that the Property was part of the judicial proceeding described as

“Cause No. 096-244268-10, styled U.S. Capital Investments, LLC v. Shawn

Shahabazi, et. al.,” and was commenced in the 96th Judicial District Court of

Tarrant County, Texas” (C.R. 114). Appellees conceded the fact that County

Investment was not part of any judicial proceeding:

       Q.     At the time that you – that your attorney filed the lis pendens
              against the property that affected the County Investment, LP,
              were you involved in any lawsuit with County Investment, LP,
              you or Royal West Investment, Series – LLC Series E?

       A.     No. I think you already asked me that. No. I didn’t.

       (C.R. 127-128, 120-122). Despite this obvious and important fact, County

Investment was the subject of a fraudulently filed lis pendens, and suffered the

consequences by losing out on the sale of its property (C.R. 88-89, 131).

Furthermore, the records of the Harris County Appraisal District show that the

property in question has never been owned by either USCI or Massood Pajooh, so

there was not colorable argument to the filing (C.R. 93-95).
_________________________________
Brief of Appellant                                                               Page 8
       Like Prappas, the facts in Griffin v. Rowden, 702 S.W.2d 692 (Tex. App.—

Dallas 1985, writ ref’d, n.r.e.), Kropp v. Prather, 526 S.W.2d 283 (Tex. Civ.

App.—Tyler 1975, writ ref’d, n.r.e.), and Bayou Terrace Inv. Corp. v. Lyles, 881

S.W.2d 810 (Tex. App.—Houston [1st Dist.] 1994, no writ), cited by Appellees in

their Motion for Summary Judgment (C.R. 18), are also distinguishable from the

facts surrounding County Investment. In those cases, judicial proceedings between

parties led to the filing of lis pendens by one party against the property of another

involved in the judicial proceeding. See Prappas, Griffin, Kropp, and Bayou

Terrace cite above. As illustrated above, however, there was not a prior or existing

judicial proceeding involving County Investment and Appellees at the time that the

lis pendens was filed, and Appellees acknowledged that fact (C.R. 39, 120-122,

122-128).

       Since the lis pendens case law in Texas deals with parties that are involved

in some type of judicial proceeding with each other, this is a case of first

impression. The distinguishing and deciding factor that makes this case unique is

that in this case the action was taken against a third party (and its wholly owned

property) that was not a party to any judicial proceeding, much less a judicial

proceeding with Appellees, yet County Investment was left without recourse.

(C.R. 39, 120-122, 122-128).



_________________________________
Brief of Appellant                                                              Page 9
       B.     The Lis Pendens Affected Real Property Collaterally, not
              Directly, and does not come within the provisions of Texas
              Property Code Section 12.007.

       i.     The Lis Pendens was Void Ab Initio.

       Appellees acknowledge that they filed a lis pendens against Plaintiff’s

property as a preemption to prevent the fraudulent transfer of Property (C.R. 13-

14). Despite not having evidence that USCI ever owned the property in question,

which it did not, Appellees moved forward with filing the lis pendens on a

collateral piece of property unrelated to any proceedings involving County

Investment (C.R. 39, 120-122, 122-128).           Appellees’ actions were wholly

independent of the rights granted by Section 12.007 of the Texas Property Code

and according to governing case law, the lis pendens was void ab initio.

Consequently, since Appellee did not act in accordance with the statute, their

actions do not fall within any absolute privilege and they should be made to answer

for damages for the causes of actions as pleaded by County Investment.

       In Moss v. Tennant, 722 S.W.2d 762 (Tex. App.—Houston [14th Dist.] 1986,

no writ), the Court ruled that a lis pendens was void. In that case, the Guises sold a

home on Bluebonnet Street in Houston to Hoffman, and then bought a house on

Nodaway Street in Spring. Hoffman later filed suit against the Guises, and then

amended to argue that the Guises purchased the Nodaway property with proceeds

of the sale of the Bluebonnet property. Hoffman then filed a notice of lis pendens

_________________________________
Brief of Appellant                                                              Page 10
on the Nodaway property. The Nodaway property was later sold to the relators,

Douglas and Katherine Moss, who intervened and filed a motion to quash the

notice of lis pendens. Hoffman argued that the notice was valid and that the

Mosses had an adequate legal remedy under Texas Property Code Section 12.007.

The Court ruled that since the lis pendens was essentially a prayer for a judgment

lien and it affected real property collaterally, and not directly, it did not come

within the provisions of 12.007. Moss at 763. The Court stated:

              Hoffman’s suit … does not seek recovery to the title to
              relator’s property nor to establish an interest in the home
              except as security for the recovery of any damages he
              may be awarded against the Guises on his fraud
              allegation and only to the extent he can trace the
              proceeds from the Bluebonnet sale to the Nodaway
              purchase. His pleading that a lien be imposed against the
              Nodaway property is essentially a prayer for a judgment
              lien, affects the property only collaterally, and does not
              come within the provisions of §12.007.

       The Court ruled that the lis pendens was void as a matter of law. Id.

       In Helmsley-Spear of Texas, Inc. v. Blanton, 699 S.W.2d 643, 645 (Tex.

App.—Houston [14th Dist.] 1985, no writ), the Court reached a similar conclusion

to Moss stating that the plaintiff “pleading that a lien be imposed against the

property is essentially a prayer for a judgment lien to assure any monetary damages

which may be ultimately awarded are paid. The lien sought affects real property

collaterally, not directly, and does not come within the provisions of 12.007, …

accordingly the lis pendens is void.” Helmsley-Spear at 645. Because the Court
_________________________________
Brief of Appellant                                                             Page 11
held that the lis pendens did not fall within the provisions of Section 12.007, then

the party did not have to utilize Section 12.008 to nullify, remove, or cancel the lis

pendens.

       Similarly, in Olbrich v. Touchy, 780 S.W.2d 6 (Tex. App.—Houston [14th

Dist.] 1989, no writ), the Court analyzed the lis pendens statute in Texas Property

Code Section 12.007 and stated that the parties did not establish any of the

requirements in the statute, and as such the lis pendens was improper. In Olbrich,

the court noted that the claims in the property were unsupported by title, interest,

or encumbrance. As in Moss and Helmsley-Spear, the court noted that the targeted

property was only collateral.       As such, there was no standing to employ the

restrictions of Section 12.007(a) and they had no right to bind the property with a

lis pendens. Olbrich at 8.

       Moss, Helmsley-Spear, and Olbrich are all similar to the case at hand.

Appellees’ interest in the property was at most, purely collateral, and nothing more

than a “prayer for a judgment lien.” Appellees alleged to be trying to prevent a

fraudulent transfer without any real proof that the property was owned by the

defendants in their Tarrant County case (C.R. 13-14). As such, the lis pendens

was void ab initio as a matter of law, and Appellees are unable to take advantage

of the immunity provided for non-void lis pendens.



_________________________________
Brief of Appellant                                                              Page 12
       ii.    The Remedies Available in Texas Property Code Section 12.0071 and
              Section 12.008 are not Required, Nor are they Feasible in Purchase
              Transactions.

       Helmsley-Spear, discussed above, made it clear that when a lis pendens does

not fall within the provisions of Section 12.007, then the affected party does not

have to utilize Section 12.008 to nullify, remove, or cancel the lis pendens. Texas

Property Code Section 12.0071 was enacted in 2009 and enables a party to file a

motion to expunge a lis pendens. See Act of May 21, 2009, 81st Leg., R.S., ch.

297, 2009 Tex. Gen. Laws 806, 806 (codified at Tex. Prop. Code Ann. § 12.0071

(West 2013)). While it was enacted twenty-six years after the Helmsley-Spear

decision, it can be surmised that the result would be the same as Section 12.008,

and a party would not be required to utilize the remedy.


       While County Investment was not required to pursue the remedies outlined

in Texas Property Code Sections 12.0071 and 12.008, the short duration of time,

the fraudulent nature of the lis pendens, and Appellees’ fraudulent representations,

nevertheless would have prevented such action. Upon being informed of the lis

pendens County Investment made multiple attempts at having Appellees remove

the lis pendens and Appellee Shahbazi even represented that he would have the lis

pendens removed (C.R. 125, 130-132). Furthermore, Section 12.0071 requires at

least a 20 day notice prior to a motion to expunge being heard, an infeasible short

duration when dealing with a property transaction, and when County Investment
_________________________________
Brief of Appellant                                                            Page 13
was relying on Appellees representations that it would be removed. TEX. PROP.

CODE ANN. § 12.0071 (West 2013). Section 12.008 is equally infeasible in that it

implies a valid lis pendens and calls for adequate protection and the payment of

money or giving of an undertaking to the Court. TEX. PROP. CODE ANN. § 12.008

(West 2013).


       C.     The Notice of Lis Pendens is a Court Record and Governed by
              Civil Practice and Remedies Code Section 12.002.

       A Notice of Lis Pendens is governed by Section 12.002 of the Texas Civil

Practice and Remedies Code as a court record. TEX. CIV. PRAC. & REM. CODE

ANN. § 12.002 (West 2002). By its very nature, a Notice of Lis Pendens is a court

record. “Court Record” is defined for purposes of Texas Rule of Civil Procedure

76a as “all documents of any nature filed in connection with any matter before any

civil court …” See T.R.C.P. 76a (2)(a). Since the Notice of Lis Pendens was filed

in connection with a matter in Tarrant County (unrelated to County Investment), it

is a court record, and subject to the provisions in Civil Practice and Remedies Code

12.002 against fraudulent court records (C.R. 39, 120-122, 122-128). Appellees

had knowledge that the Notice of Lis Pendens was fraudulent when they filed it

(C.R. 39, 120-122, 122-128). Appellee Shahbazi represented that he was filing the

lis pendens with the purpose of causing problems for Mr. Massood Danesh

(representative of County Investment) (C.R. 129). Despite several attempts to get

_________________________________
Brief of Appellant                                                            Page 14
Appellees to remove the lis pendens, they refused to do so (C.R. 130, 132).

Appellees should be answerable for their acts of fraud, and should not be allowed

to hide behind an immunity that does not apply on a collateral piece of property.

Based on governing case law, the lis pendens should be void ab initio. See Moss v.

Tennant, 722 S.W.2d 762 (Tex. App.—Houston [14th Dist.] 1986, no writ), stating

that the “pleading that a lien be imposed against the Nodaway property is

essentially a prayer for a judgment lien, affects the property only collaterally, and

does not come within the provisions of §12.007.”

       Appellees note that the Texas courts have not yet ruled on the issue of

whether the judicial privilege applies to Texas Civil Practice and Remedies Code

Section 12.002(a) (C.R. 19-21). Appellees argue that the decisions in Prappas and

Lyles imply that the Court would rule that the privilege applies Id. As described

above, the arguments fail because the lis pendens was not filed as part of a judicial

proceeding involving County Investment (C.R. 39, 120-122, 122-128). The lis

pendens was filed on a collateral property not related to any judicial proceeding

and as such was not within the purview of Texas Property Code Section 12.007.

According to the cases cited above, the lis pendens was void. Since the lis pendens

is void, any claim for absolute privilege for a void act cannot exist. County

Investment should be allowed to proceed with its claim for damages based on a

fraudulent court filing. Furthermore, Appellants acted fraudulently by filing a lis

_________________________________
Brief of Appellant                                                             Page 15
pendens on the property both knowing that Plaintiff was not a party to a lawsuit,

and without doing any investigation into the ownership of the properties in

question. (C.R. 80, 84-85). When notified to release the lis pendens, despite

knowledge that the lis pendens was wrongful, Appellees took zero action until over

a year later, costing County Investment the sale of its property (C.R. 88-90).

         D.    The Question of Fraud Should Go to the Jury

         In Duke v. Power Electric and Hardware Co., 674 S.W.2d 400 (Tex. App.—

Corpus Christi 1984, no writ), the district court allowed a slander of title cause of

action (based on the allegedly wrongful filing of a lis pendens) to go to the jury.

The appellate court did not hold that the claim was barred by privilege; rather, it

analyzed the evidence in the record and affirmed the jury’s findings of no damages

for that cause of action. See Duke at 402. County Investment should get its day in

Court.

III.     HOLDING THAT AN ABSOLUTE PRIVILEGE APPLIES EVEN                 WHEN THE
         AFFECTED PARTY IS NOT INVOLVED OR EVEN A PART OF                A JUDICIAL
         PROCEEDING WILL HAVE A DELETERIOUS EFFECT.

         If the Court upholds the trial court’s finding that an absolute privilege

applies, even when the affected property and its owner were not involved in a

judicial proceeding, then anyone involved in any judicial proceeding, as a lawyer

or a party, could maliciously file a lis pendens without limits or consequences. By

filing an eviction proceeding in Justice Court, a party would be free to file a lis

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Brief of Appellant                                                               Page 16
pendens on any property owned by anyone in the State of Texas. Undersigned

counsel, with several lawsuits on file, could theoretically file a lis pendens

affecting the property of every home in The Woodlands, inconveniencing,

delaying, and possibly costing every homeowner involved in a property transaction

the ability to swiftly sell their property. A homeowner, who wishes to prevent the

sale of her neighbors house in order to make the offer on her own house more

lucrative, could file a lis pendens to prevent a deal from taking place, and would be

absolutely immune from claims of tortious interference with a contract, slander to

title, and fraudulent court filings under Section 12.002 of the Texas Civil Practice

and Remedies Code.

       The absolute right to file a lis pendens would allow a party to use the lis

pendens as a sword and effectively hamper any property transaction of their

choosing. While Texas Property Code 12.0071 provides a party with the right to

file a Motion to Expunge Lis Pendens, and 12.008 provides the right to move for

cancellation of a lis pendens, these remedies are useless when time is of the

essence (as it usually is) in the pending property transaction, and the absolute

privilege bars those affected from seeking any redress for their damages.

       This absurd result is exactly what occurred in this case. County Investment,

without any involvement in a judicial proceeding, and without any property subject

to valid liens or claims, became encumbered by a lis pendens, effectively costing it

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Brief of Appellant                                                             Page 17
a sale worth $956,000.00 (C.R. 5). Simply because Appellees had a pending

lawsuit against a third party, they were granted an impenetrable shield to protect

them from their maliciously used sword. Such a finding is the opposite of justice

and was surely not envisioned when broadly applying an absolute privilege.

IV.    CONCLUSION AND PRAYER

       For the reasons set forth above, County Investment requests that this Court

reverse the granting of Appellees’ Motion for Summary Judgment due to the fact

that there is not an absolute privilege to filing a lis pendens when the affected

party, and its property, was not a part of a judicial proceeding.

                                        Respectfully submitted,

                                        By:/s/Jeremy Saenz___________________
                                              Jeremy D. Saenz
                                              State Bar No. 24033028
                                              jsaenz@wsdllp.com
                                              Jason T. Wagner
                                              State Bar No. 00795704
                                              jwagner@wsdllp.com
                                              1010 Lamar, Suite 425
                                              Houston, Texas 77002
                                              Telephone: (713) 554-8450
                                              Facsimile: (713) 554-8451
                                              ATTORNEYS FOR APPELLANT
                                              COUNTY INVESTMENT, LP




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Brief of Appellant                                                           Page 18
                        CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing Brief of Appellant, filed on July 6, 2015, was
prepared with Microsoft Word for Mac 2011 and that, according to that program’s
word-count function, the sections covered by Texas Rule of Appellate Procedure
9.4(i)(1) contain 3,923 words.

                                              /s/Jeremy Saenz______________
                                              Jeremy Saenz

                            CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Brief of Appellant
was served, pursuant to Texas Rules of Civil Procedure 21 and 21a, and Texas
Rule of Appellate Procedure 9.5, on the 6th day of July, 2015, via electronic mail,
to:

                                     Robert G. Miller
                                450 Gears Road, Ste. 800
                                  Houston, Texas 77067
                                Telephone: 281.875.8200
                                Facsimile: 281.875.4961
                              e-mail: miller@ofmflaw.com
                                 (Attorney for Appellees)

                                              /s/Jeremy Saenz________________
                                              Jeremy Saenz




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Brief of Appellant                                                           Page 19
