                              NUMBER 13-10-463-CV

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

SHERMAN A. BROWN AND VIOLETTE M. BROWN,                                   Appellants,

                                           v.

JOHN S. MARTIN AND THE ESTATE OF ROBERT
LOUIS ANDERSON, DECEASED,                                                   Appellees.


                    On appeal from the 130th District Court
                        of Matagorda County, Texas.


                         MEMORANDUM OPINION
                  Before Justices Benavides, Vela, and Perkes
                     Memorandum Opinion by Justice Vela
      This is an appeal from a trial court judgment awarding appellees, John S. Martin

and the Estate of Robert Louis Anderson, Deceased (―Martin‖) damages, costs, and

attorney’s fees    against appellants, Violette M. Brown and Sherman A. Brown (the

―Browns‖) in an action for fraudulent lien brought under section 12.002 of the Texas Civil
Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN. § 12.002 (West Supp.

2010). By five issues, the Browns, acting pro se, complain that there is no evidence that

they did not have a right to a lis pendens against Martin.           They also argue that

compliance with section 51.901 of the Texas Government Code was a prerequisite to

filing an action pursuant to section 12.001 et. seq. of the Texas Civil Practice and

Remedies Code. See TEX. GOV’T CODE ANN. 51.901 (West Supp. 2010); TEX. CIV. PRAC.

& REM. CODE § 12.001 (West Supp. 2010). The Browns concentrate their arguments on

their assertion that there was no evidence that the lis pendens that were filed were

fraudulent or that the Browns knew they were fraudulent. While the Browns state five

issues in their brief, they make no attempt to separate the issues in the argument section.

We will treat their arguments together as a challenge to the trial court’s ruling that Martin

is entitled to judgment on his statutory claim. We affirm.

                                     I. BACKGROUND

       This case arose after the death of Robert Louis Anderson in 2000. The probate of

his estate began as an administration brought by Ruth Anderson, Robert’s second wife

and John Martin’s mother. After Ruth died, Martin intervened in the administration in

which Martin sought to probate the will. The main probate asset was a house that Ruth

and Robert Anderson occupied prior to their deaths. The district court admitted the will

to probate and remanded the case to the probate court. Sherman Brown intervened in

that case alleging fraud against Martin with regard to the purchase of the house.

Sherman alleged he had a contract to buy the house and he claimed that Martin refused

to honor it. The trial court granted summary judgment in Martin’s favor. This Court


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reversed the summary judgment, holding that the summary judgment was improperly

granted because Martin’s affidavit in support was conclusory. In re Estate of Anderson,

Nos. 13-07-00112-CV and 13-07-00131-CV, 2008 WL 3894653 (Tex. App.—Corpus

Christi Aug. 25, 2008, pet. denied).

       Subsequently, the Browns filed lis pendens on the property in question in June and

December of 2006, and in February of 2007. After the trial court dismissed all three lis

pendens, Martin filed suit against the Browns for their wrongful and fraudulent filing.

After a non-jury trial, the trial court awarded Martin and the Estate of Anderson $10,000,

jointly and severally, against Sherman and Violette Brown plus interest, attorney’s fees of

$7,620.00 and court costs. The trial court also awarded exemplary damages against

Violette and Sherman Brown of $10,000.00 each.

                                  II. STANDARD OF REVIEW

       This was a statutory cause of action tried to the court. Proposed findings of fact

were filed by Martin, but there is no indication in the clerk’s record that they were adopted

by the trial court, and there is no complaint in the Browns’ original brief regarding the

absence of fact findings. The Browns seem to argue that the proposed findings do not

support the judgment and we should review the case de novo. In their reply brief, for the

first time, they argue that they are entitled to a reversal of the trial court’s judgment

because the trial court did not file findings of fact and conclusions of law. A party cannot

raise a new issue in a reply brief. Dallas County v. Gonzales, 183 S.W.3d 94 (Tex.

App.—Dallas 2006, pet. denied). The Browns’ argument, filed in a reply brief, comes too

late and is waived. The Browns chose to represent themselves in the trial court and on


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appeal. There cannot be two sets of procedural rules, one for litigants with counsel and

the other for litigants representing themselves.        Mansfield State Bank v. Cohn, 573

S.W.2d 181, 184–85 (Tex. 1978). Litigants who represent themselves must comply with

the applicable rules of procedure, otherwise, they are given an unfair advantage over

litigants represented by counsel. Id. at 185. Because the trial court did not adopt the

findings proposed and because the Browns did not timely complain on appeal about the

trial court’s failure to file fact findings, we will review this case as if no findings were made.

       It is well established that when no findings of fact or conclusions of law are

requested or filed, we must uphold the trial court's judgment on any legal theory

supported by the record. See, e.g., Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978);

Seaman v. Seaman, 425 S.W.2d 339, 341 (Tex. 1968). We imply all necessary findings

in support of the trial court's judgment. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d

80, 83 (Tex. 1992). However, when a reporter's record is included in the record on

appeal, the implied findings may be challenged for legal and factual sufficiency.

Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989) (per curiam).

                                      III. APPLICABLE LAW

       Lis pendens is a mechanism to give constructive notice to all those taking title to

the property that a claimant is litigating a claim against the property. Garza v. Pope, 949

S.W.2d 7, 8 (Tex. App.—San Antonio 1997, orig. proceeding); Khraish v. Hamed, 762

S.W.2d 906, 913 (Tex. App.—Corpus Christi 1988, no writ). A lis pendens is a notice,

recorded in the chain of title to real property warning all persons that certain property is

the subject matter of litigation. B.F.F. Distributors v. White, 325 S.W.3d 786, 789 (Tex.


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App.—El Paso 2010, no pet.). A properly filed lis pendens is not itself a lien, but

operates as constructive notice to the world of its contents. Id. at 789. It is proper to file

a lis pendens when the litigation involves the establishment of an interest in real property.

See TEX. PROP. CODE ANN. § 12.007(a) (West Supp. 2010). However, only a party to the

action seeking affirmative relief may file a lis pendens. Id. If only collateral questions

are involved that might ultimately affect the interest of the parties to property, lis pendens

is not available. Garza, 949 S.W.2d at 8; Khraish, 762 S.W.2d at 909; Lane v. Fritz, 404

S.W.2d 110, 111–12 (Tex. Civ. App.—Corpus Christi 1966, no writ). For instance, if a

party seeks a property interest only to secure recovery of damages or other relief, the

interest is collateral and will not support a lis pendens. Countrywide Home Loans v.

Howard, 240 S.W.3d 1, 7 (Tex. App.—Austin 2007, pet. denied).

       In reviewing a lis pendens, courts look only to the petition to determine if the action

comes within the provision of the lis pendens statute. In re Jamail, 156 S.W.3d 104, 107

(Tex. App.—Austin 2004, orig. proceeding). In Jamail, the court said that an attempt to

void an obligation to purchase could not be considered an action to establish an interest

in real property. Id. at 107.

                                        IV. ANALYSIS

       The Browns initially suggest that there is no evidence that they do not have a lis

pendens claim against Martin. They urge that Martin ―cannot overcome the element of

―Fraudulent‖ under C.P.R.C. § 12.006(a)(2).‖ In other words, the Browns argument

appears to be that there is no evidence that the lis pendens they filed were fraudulent.




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      This action was filed by Martin pursuant to section 12.002 of the Texas Civil

Practice and Remedies Code, which provides:

      (a) A person may not make, present, or use a document or other record
      with:

             (1) knowledge that the document or other record is a fraudulent court
      record or a fraudulent lien or claim against real or personal property or an
      interest in real or personal property;

              (2) intent that the document or other record be given the same legal
      effect as a court record or document of a court created by or established
      under the constitution or laws of this state or the United States or another
      entity listed in Section 37.01, Penal Code, evidencing a valid lien or claim
      against real or personal property or an interest in real or personal property;
      and

             (3) intent to cause another person to suffer:
                 (A) physical injury;
                 (B) financial injury; or
                 (C) mental anguish or emotional distress.

      (a-1) Except as provided by Subsection (a-2), a person may not file an
      abstract of a judgment or an instrument concerning real or personal
      property with a court or county clerk, or a financing statement with a filing
      office, if the person:

             (1) is an inmate; or

             (2) is not licensed or regulated under Title 11, Insurance Code, and
             is filing on behalf of another person who the person knows is an
             inmate.

      (a-2) A person described by Subsection (a-1) may file an abstract,
      instrument, or financing statement described by that subsection if the
      document being filed includes a statement indicating that:

            (1) the person filing the document is an inmate; or

            (2) the person is filing the document on behalf of a person who is an
            inmate.



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       (b) A person who violates Subsection (a) or (a-1) is liable to each injured
       person for:

          (1) the greater of:
              (A) $10,000; or
              (B) the actual damages caused by the violation;

          (2) court costs;

          (3) reasonable attorney's fees; and

          (4) exemplary damages in an amount determined by the court.

       (c) A person claiming a lien under Chapter 53, Property Code, is not liable
       under this section for the making, presentation, or use of a document or
       other record in connection with the assertion of the claim unless the person
       acts with intent to defraud.

       Thus, under the statute, in order to recover, Martin was required to prove that the

Browns:    (1) made, presented, or used a document with knowledge that it was a

fraudulent lien; (2) intended the document to be given legal effect; and (3) intended to

cause Martin financial injury. Id.

       Violette Brown, Sherman Brown’s wife, was the individual who filed the lis pendens

and represented the couple at trial and on appeal. She is not an attorney. Violette

testified at trial that she was an experienced realtor who had learned to do extensive legal

research. In fact, she has represented her husband and herself in other matters that

have been before this Court. At trial, Violette testified that in June of 2006, she filed a lis

pendens regarding the property in question. She agreed that it was her intent at the time

to have the lis pendens be perceived as a legal lien against the real property of Martin and

the estate of Anderson. While legally a lis pendens does not create a lien, it is clear from

title of the documents filed by the Browns, as well as her testimony, that she intended to


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create a lien.

       Violette also testified that after she filed the lis pendens, she received a letter from

Martin's counsel asking her to voluntarily withdraw the lis pendens, but she did not. The

letter outlined a portion of the property code that allows only a person seeking affirmative

relief to file a lis pendens. While Violette explained that it was her position that she was a

party to the case because she "had talked to everyone about it," she admitted on

cross-examination that she was not in fact an actual party. She confirmed that she was

"miffed" with Martin and filed a lis pendens to prevent the sale of the property to anyone

else, because Martin would receive a financial benefit when he sold the property. She

stated that she had a right to file a lien because "he was trying to get out of the contract

with them." While she did not admit that she knew the lis pendens were fraudulent, she

nevertheless filed two additional lis pendens after the trial court cancelled them.

       Sherman Brown agreed in his testimony that the purpose of placing a lis pendens

on the property was to stop it from being sold, and that he intended that the lis pendens be

given legal effect. He wanted to buy the house himself and to stop the sale of the house

to anyone else. He explained that after the trial court cancelled the first lis pendens, he

filed a second one because it was his intent to try to keep a lien on the property.

       Martin testified that, to the best of his knowledge, Sherman did not seek title to the

property. He said the documents that were filed by the Browns ―stopped everything.‖

He explained that he suffered out of pocket expenses to take care of the legal matters

associated with attempting to cancel the liens.




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       The three lis pendens were admitted into evidence at the trial. In the first, neither

of the Browns were parties to the action. Likewise, the second lis pendens states that

there was a ―dispute regarding the conveyance of the property.‖ Violette, who filed the

second lis pendens, was not a party to any litigation that would have supported a lis

pendens. The second one was filed immediately after the trial court cancelled the first

one. Violette also testified that she assisted her husband in filing a third lis pendens on

the property in February 2007. In his affidavit, Sherman stated that ―this lis pendens

does not constitute actual interference with any property involved, and does not result in

actual seizure of the property, and only protects my grantee and prevents a grantee from

being an innocent purchaser.‖      He further indicated that he was seeking monetary

damages for fraud from Martin. The third lis pendens states that there is a legal dispute

regarding the conveyance of the property.

       We conclude that there was evidence from which the trial court could have

reasonably concluded that the Browns knew the documents were fraudulent, that they

intended for them to have legal effect and they intended to cause Martin both financial

injury, mental anguish or emotional distress. We overrule the Brown’s issues as they

relate to the statutory claim.

       The Browns also appear to contend that Martin was required to pursue a judicial

determination under section 51.903 of the Texas Government Code and a prerequisite to

seeking relief in section 12.002 of the Texas Civil Practice and Remedies Code. Section

51.903 provides, in part:

       (a) A person who is the purported debtor or obligor or who owns real or
       personal property or an interest in real or personal property and who has

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       reason to believe that the document purporting to create a lien or a claim
       against the real or personal property or an interest in the real or personal
       property previously filed or submitted for filing and recording is fraudulent
       may complete and file with the district clerk a motion, verified by affidavit by
       a completed form for ordinary certificate of acknowledgment, of the same
       type described by section 121.007, Civil Practice and Remedies Code . . .

Id. § 51.903.

       We note, however, that the statute specifically says that the individual who has

reason to believe a document is fraudulent may file a motion with the district clerk.

Section 12.002 of the Texas Civil Practice and Remedies Code, on the other hand,

provides a statutory cause of action for a civil remedy in damages for someone who has

recorded a fraudulent court record, fraudulent lien or claim against real or personal

property or an interest in real or personal property, a lien in violation of law. Id. §

12.002(a)(1). It does not require prior compliance with section 51.903 of the government

code prior to filing. We overrule issue five.

                                      V. CONCLUSION

       Having overruled all of the Brown’s issues, we affirm the judgment of the trial court.




                                                  ROSE VELA
                                                  Justice

Delivered and filed the
4th day of August, 2011.




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