Dissenting opinion issued February 26, 2015




                                  In The

                            Court of Appeals
                                  For The

                        First District of Texas
                          ————————————
                           NOS. 01-13-00267-CV
                                01-13-00233-CV
                         ———————————
   JAY H. COHEN, INDIVIDUALLY AND AS TRUSTEE OF THE JHC
                   TRUSTS I AND II, Appellant
                                     V.
                  SANDCASTLE HOMES, INC., Appellee

                                  ****

   JAY H. COHEN, INDIVIDUALLY AND AS TRUSTEE OF THE JHC
                   TRUSTS I AND II, Appellant
                                     V.
                   NEWBISS PROPERTY, LP, Appellee


                  On Appeal from the 234th District Court
                           Harris County, Texas
             Trial Court Case Nos. 2010-20973A & 2010-20973B
                            DISSENTING OPINION

      By definition, a person who buys property with notice of another’s claims

affecting that property can’t claim the legal protections available to a bona fide

purchaser for value without notice. 1 A recently enacted statute adds a wrinkle. 2 To

the extent a purchaser has notice of a claim due to the recording of a notice of lis

pendens, 3 the expungement of the recorded notice erases the effect of any notice

that had resulted from the filing. See TEX. PROP. CODE § 12.0071(f)(1). The new

statute further provides that the expunged “notice of lis pendens”—along with “any

information derived from the notice”—“is not enforceable” against someone who

buys the property for value. Id. § 12.0071(f)(2). Notably absent is any reference in

the statute to the underlying claim becoming unenforceable.

      The statute simply doesn’t address the circumstance of a purchaser who

receives notice of a third-party claim by some means other than a recorded notice

1
      To qualify as a “bona fide purchaser,” “one must acquire property in good
      faith, for value, and without notice of any third-party claim or interest.”
      Madison v. Gordon, 39 S.W.3d 604, 606 (Tex. 2001).
2
      See Act of May 26, 2009, 81st Leg., R.S., Ch. 297, § 2, sec. 12.0071, 2009
      Tex. Gen. Laws 806 (current version at TEX. PROP. CODE § 12.0071).
3
      In the interest of clarity, this dissent deliberately distinguishes between a
      pending lawsuit relating to an interest in real property (referenced herein as a
      “lis pendens”) and a recorded notice of such a claim (referenced herein as a
      “notice of lis pendens”). I acknowledge that in other contexts the recorded
      notice is often referenced simply as a “lis pendens.” See generally BRYAN A.
      GARNER, GARNER’S DICTIONARY OF LEGAL USAGE 546 (3d ed. 2011).


                                          2
of lis pendens. For that reason, the judgments in both of these cases should be

reversed. Cohen demonstrated a genuine issue of material fact as to whether

Sandcastle and NewBiss had actual knowledge of his claims to the West Newcastle

property, separate and apart from any notice that could have resulted from the

recorded notice of lis pendens.

      Section 12.0071(f) of the Property Code provides:

            After a certified copy of an order expunging a notice of lis
      pendens has been recorded, the notice of lis pendens and any
      information derived from the notice:
             (1)    does not:

                    (A)    constitute constructive or actual notice of any
                           matter contained in the notice or of any matter
                           relating to the proceeding;

                    (B)    create any duty of inquiry in a person with respect
                           to the property described in the notice; or
                    (C)    affect the validity of a conveyance to a purchaser
                           for value or of a mortgage to a lender for value;
                           and

             (2)    is not enforceable against a purchaser or lender described
                    by Subdivision (1)(C), regardless of whether the
                    purchaser or lender knew of the lis pendens action.

Consistent with this statute, a purchaser of real estate still can be shown to have

actual notice of a claim that did not result from the filing of a notice of lis pendens.

Moreover, the law imputes other forms of constructive notice of a claim in some




                                           3
circumstances that don’t involve the filing of a notice of lis pendens.4 Thus, in my

view, an expungement doesn’t completely eradicate every form of actual or

constructive notice to a purchaser, just the forms of notice that result from the

recording of a notice of lis pendens.

      “In construing statutes, we ascertain and give effect to the Legislature’s

intent as expressed by the language of the statute.”5 The text of the statute at issue

tells us that an expungement takes effect “[a]fter a certified copy of an order

expunging a notice of lis pendens has been recorded.” TEX. PROP. CODE

§ 12.0071(f). There are four distinct results of recording the expungement order:

         • “the notice of lis pendens and any information derived from the
           notice . . . does not . . . constitute constructive or actual notice of any
           matter contained in the notice or of any matter relating to the
           proceeding,” id. § 12.0071(f)(1)(A);

         • “the notice of lis pendens and any information derived from the
           notice . . . does not . . . create any duty of inquiry in a person with
           respect to the property described in the notice,” id. § 12.0071(f)(1)(B);

         • “the notice of lis pendens and any information derived from the
           notice . . . does not . . . affect the validity of a conveyance to a
           purchaser for value or of a mortgage to a lender for value,” id.
           § 12.0071(f)(1)(C); and

         • “the notice of lis pendens and any information derived from the
           notice . . . is not enforceable against a purchaser or lender described

4
      See, e.g., Flack v. First Nat. Bank of Dalhart, 226 S.W.2d 628, 632 (Tex.
      1950).
5
      City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008).


                                          4
            by Subdivision (1)(C), regardless of whether the purchaser or lender
            knew of the lis pendens action,” id. § 12.0071(f)(2).

Each of these results relates to the effects, after expunction, which no longer flow

from “the notice of lis pendens and any information derived from the notice.” Id.

§ 12.0071(f). Thus by negative implication,6 expunction is given no effect with

respect to the universe of other information, not included in the scope of

section 12.0071(f), that is neither (a) the “notice of lis pendens” itself nor

(b) “information derived from the notice” of lis pendens.

      The notice arising from a notice of lis pendens, which is eradicated by an

expungement pursuant to section 12.0071(f), is conceptually distinct from actual

notice and constructive notice attained by other means, as courts have long

acknowledged.7 Distinguishing notice that results from the recording of a notice of


6
      See, e.g., United Servs. Auto. Ass’n v. Brite, 215 S.W.3d 400, 403 (Tex.
      2007) (invoking interpretive tool of expressio unius est exclusio alterius).
7
      See, e.g., Hexter v. Pratt, 10 S.W.2d 692, 693–94 (Tex. Comm’n App. 1928,
      judgm’t adopted) (distinguishing actual from constructive notice); see also
      Madison, 39 S.W.3d at 606; Flack, 226 S.W.2d at 632. For example, before
      the enactment of section 12.0071 the cancelation of a notice of lis pendens
      based on the non-viability of the underlying claim did not vitiate actual
      notice of other facts that, through reasonable diligence, would inform a
      pendente lite purchaser of an equitable party’s claims. See World Savs.
      Bank, F.S.B. v. Gantt, 246 S.W.3d 299, 303–305 (Tex. App.—Houston
      [14th Dist.] 2008, no pet.) (determining that fact issue existed regarding
      mortgagee’s actual notice of court of appeals judgment reversing trial
      court’s dismissal of claims on which canceled notice of lis pendens was
      based); Hexter v. Pratt, 283 S.W. 653, 658–59 (Tex. Civ. App.—Dallas
      1926) aff’d 10 S.W.2d 692 (Tex. Comm’n App. 1928, judgm’t

                                         5
lis pendens from other forms of notice that don’t therefore is entirely consistent

with the new expungement procedure established by section 12.0071.

       In contrast, to resolve this appeal the court emphasizes the much broader

supposed statutory “aims” of section 12.0071:

           • to forbid “a party to burden title to property even when that party
             cannot meet the threshold requirement of adequately pleading and
             establishing the probable validity of an alleged real-property claim,”
             Maj. Op. at 20; and

           • to “curtail burdening of real property pretrial, for lengthy periods,
             without evidentiary support,” id. at 23.
But these supposed “aims” have no anchor in the text of the statute. As such they

don’t justify the court’s “bright-line rule,” which in its objective of promoting the

“aims,” appears to indulge the “false notion that the spirit of a statute should

prevail over its letter.” 8

       In our task of interpreting a statute, we are also called to be mindful that “if a

statute . . . deprives a person of a common law right, the statute will be strictly


       adopted) (holding that canceled, but later reinstated, notice of lis pendens did
       not constitute constructive notice, but actual notice of facts contained in
       abstracts of title, including and beyond the notice of lis pendens itself,
       precluded bona fide purchaser status).
8
       See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE
       INTERPRETATION OF LEGAL TEXTS 343–46 (2012); see also Entergy Gulf
       States, Inc. v. Summers, 282 S.W.3d 433, 445 (Tex. 2009) (Hecht, J.,
       concurring) (“It matters not what someone thinks the text may have meant to
       say or now hopes or wishes it said. To look beyond the plain language risks
       usurping authorship in the name of interpretation.”).


                                            6
construed in the sense that it will not be extended beyond its plain meaning or

applied to cases not clearly within its purview.” 9 Given this admonishment, the

court should not stretch the text of section 12.0071 to further erode the common-

law rule precluding equitable relief to a purchaser who had notice of a competing

claim. Yet under the court’s interpretation of the words “any information derived

from the notice,” an equitable claimant with an expunged notice of lis pendens

loses the right he had at common law to invalidate a property transfer based on the

purchaser’s actual or constructive notice of the claim, 10 even when such notice was

completely unrelated to the filing of a notice of lis pendens, as alleged by Cohen in

this case. It is a truism that the bona-fide-purchaser doctrine provides no relief to a


9
      Sw. Bell Telephone, L.P. v. Harris Cnty. Toll Rd. Auth., 282 S.W.3d 59
      (Tex. 2009) (quoting Satterfield v. Satterfield, 448 S.W.2d 456, 459 (Tex.
      1969)).
10
      The common-law doctrine of lis pendens historically applied in cases
      implicating interests in real property, binding a purchaser who acquired title
      during the pendency of a suit to a court’s decree entered against the
      purchaser’s predecessor in title. E.g., Latta v. Wiley, 92 S.W. 433, 436 (Tex.
      Civ. App. 1905, writ ref’d). Whether such a pendente lite purchaser had
      notice of the pending suit was immaterial to the doctrine. See generally 1
      JOSEPH STORY, COMMENTARIES ON EQUITY JURISPRUDENCE § 406 (6th ed.
      1853). In practice it was exceedingly difficult, if not impossible, for a
      pendente lite purchaser to learn of a lis pendens. See 2 DAVID A. THOMAS,
      THOMPSON ON REAL PROPERTY § 92.07(h) (2d ed. 2002). In response to the
      perceived harshness of this common-law doctrine on pendente lite
      purchasers, legislatures in most states enacted statutes requiring the
      recording of notice of pending litigation concerning real property. See LEWIS
      M. SIMES & CLARENCE B. TAYLOR, THE IMPROVEMENT OF CONVEYANCING
      BY LEGISLATION 114 (1960).


                                          7
purchaser with notice, regardless of whether any notice of lis pendens ever was

recorded. 11 Section 12.0071(f) does not change that common-law rule—it only

modifies the effect of an expungement of a recorded notice of lis pendens.

Considering the pedigree of the common-law rule, and the harsh procedural

implications of the court’s interpretation, it isn’t an absurd result to deny bona-

fide-purchaser status to a buyer who proceeds despite notice of the pending claim,

as the court seems to imply. 12



11
      The Texas Legislature ameliorated the common-law rule in 1905,
      establishing a procedure for recording a notice of lis pendens with the
      county clerk. Act of April 25, 1905, 29th Leg., R.S., ch. 128, 1905 Tex. Gen.
      Laws 316. The act eliminated the common-law rule that mere pendency of a
      suit implicating an interest in land was sufficient to invoke the lis pendens
      doctrine. See, e.g., Kuehn v. Kuehn, 242 S.W. 719, 721 (Tex. Comm’n App.
      1922, judgm’t adopted). Instead, it provided that a pendente lite purchaser
      without actual or constructive notice of a claim could take an interest in real
      property unencumbered by the outcome of the pending litigation, unless the
      notice of lis pendens had been properly filed with the county clerk. See Act
      of April 25, 1905, 29th Leg., R.S., ch. 128 § 3, 1905 Tex. Gen. Laws 316;
      Hexter, 283 S.W. at 656. Nevertheless, courts maintained that the act did not
      supplant the lis pendens doctrine in its entirety. A pendente lite purchaser
      with actual or constructive notice of the claim remained outside the
      protection of the statute, and therefore could not take an interest
      unencumbered by the outcome of the pending litigation. See, e.g., Texas Co.
      v. Dunlap, 41 S.W.2d 42, 44 (Tex. Comm’n App. 1931, judgm’t adopted).
      Later, the Legislature authorized the cancelation by the court of a filed lis
      pendens notice upon a deposit of money or bond. Act approved March 30,
      1925, 39th Leg., R.S., ch. 145, § 1, 1925 Tex. Gen. Laws 353.
12
      See Maj. Op. at 20 (citing TEX. GOV’T CODE § 311.021(3), to the effect that
      courts should presume that “a just and reasonable result is intended” when a
      law is enacted); see also Jaster v. Comet II Const., Inc., 438 S.W.3d 556,

                                         8
      It’s also worth noting that the procedural standard for expunging a notice of

lis pendens is much lower than the standard that would apply to defeat the

underlying claim on the merits. A notice of lis pendens can be expunged based on

the nonmovant’s inability—without any right to ordinary discovery13—to

“establish the probable validity of the real property claim.” 14 The party seeking

expungement has no burden of proof. The expungement of a notice of lis pendens

under such circumstances is far from a judicial determination that the claimant

could not have ultimately prevailed on the merits of his claim with the benefit of

discovery. Yet the court’s holding has the effect of imbuing an expungement of a

notice of lis pendens with the claim-preclusive effect of a full-blown adverse

judgment on the merits. As such, Cohen would have been in a better position today

had he never availed himself of the recording act’s protections by recording the

notice of his lis pendens.

      In response, the court observes that a claimant who records a notice of lis

pendens “wields power not available to a plaintiff in any other context, i.e., the

      574 (Tex. 2014) (discussing the limited applicability of the absurdity
      doctrine).
13
      Discovery “may” be permitted, but the phrasing of the statute commits this
      to the discretion of the trial court. See TEX. PROP. CODE § 12.0071(b)(2)
      (“The court may . . . make any orders the court considers just to provide for
      discovery by a party affected by the motion.”).
14
      Id. § 12.0071(c)(2).


                                        9
ability to effectively completely encumber a defendant’s property before any right

to that property is litigated.” Maj. Op. at 25. But the prospect of litigation, whether

already in progress, threatened, or merely imagined, affects all aspects of life—

including real-estate transactions. To the extent real property is considered

“encumbered” in these circumstances, it is encumbered by the fact of the claim

itself, not by the separate act of recording of a notice of the claim. Texas law

encourages the filing of notices of lis pendens, which serves to avoid the harshness

of the common-law rule that a purchaser who acquired title during the pendency of

a suit would be bound by a court’s decree entered against the purchaser’s

predecessor in title, regardless of whether the subsequent purchaser had notice.15

The circumstance characterized by the court as a lamentable “complete”

encumbrance thus also could be recognized as the commercial reality that

purchasers are rightly cautious about buying real property with a cloud on its title.

Except for the limited circumstance actually described in section 12.0071(f) as the

consequence of an expungement, the common-law rule should not be altered: a

buyer of real property with notice of a pending claim takes title subject to the risk

of an adverse judgment on the claim. Recording statutes have the beneficial effect

15
      See supra note 10; see also Connecticut v. Doehr, 501 U.S. 1, 29, 111 S. Ct.
      2105, 2122 (1991) (Rehnquist, J., concurring) (“The lis pendens itself
      creates no additional right in the property on the part of the plaintiff, but
      simply allows third parties to know that a lawsuit is pending in which the
      plaintiff is seeking to establish such a right.”).


                                          10
of protecting buyers of real property by ensuring notice of competing claims to

title, yet the court’s interpretation of the effect of expunction could have the effect

of actually discouraging the filing of notices of lis pendens, and thereby increasing

litigation about whether the buyer had actual notice of the claim or facts sufficient

to prompt further inquiry. I do not read the statute to require or even to imply this

outcome.

      Cohen presented summary-judgment evidence that both Sandcastle and

NewBiss were on notice of his claims to the West Newcastle property, in a fashion

that could not be traced to the recording of his notice of lis pendens. Indeed, the

court doesn’t dispute that there is a genuine fact dispute in this regard. As such,

section 12.0071 does not apply, and Cohen’s claims should not have been

dismissed on that basis.

      I would reverse the judgments and remand for further proceedings. Because

the court holds otherwise, I respectfully dissent.




                                               Michael Massengale
                                               Justice

Panel consists of Chief Justice Radack and Justices Massengale and Huddle.

Justice Massengale, dissenting.




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