IN RE: PBP (2026)

DISSENTING OPINION

This case presents exactly the scenario that lis pendens are meant to address. PBP claims the parties' option contract entitles it to buy the property; Artis admits that it plans to sell the property to a third party if no lis pendens prevents it from doing so. A lis pendens would merely pause the sale to allow a court to decide the merits. 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' ultimate effect is to prevent either party to the litigation from alienating the property in dispute, so as to affect the rights of his opponent.”). But with the court's denial of mandamus today, even if PBP eventually wins on the merits, the win will be hollow because the property will be gone.

Worse, PBP is losing its lis pendens—and therefore its claimed right to buy the property—based on an evidentiary issue never litigated in or decided by the trial court. Artis's motion was “brought based solely on legal issues”—whether the option contract entitled PBP to buy the property as a matter of law. If it did, PBP was entitled to a lis pendens; if it didn't, it wasn't. The parties litigated only that question, and the trial court decided only that question—interpreting the contract after “reviewing the pleadings” and “hearing the argument of counsel.” Contract interpretation was also the question Artis briefed in our court. But the court today denies mandamus relief for a different reason—PBP “provided no evidence” that it had a firm financing commitment from a third party to purchase the property during the third purchase period.

Waiver is in the eye of the beholder, to some extent, and I understand why the court is hesitant to find it. But Artis did not bring an evidentiary challenge below, which would have allowed PBP to present its evidence in response. It is “premature” to deny mandamus based on evidentiary issues not raised or decided below, particularly when the trial court “specifically limited its consideration to the pleadings.” See In re Cohen, 340 S.W.3d 889, 899-900 (Tex. App.—Houston [1st Dist.] 2011, orig. proceeding) (refusing to deny mandamus and reinstating lis pendens).

This is not to say that PBP will eventually meet its burden to show it was ready, willing, and able to purchase the property at the relevant time—it may not. This is also not to say that Artis has lost its chance to challenge PBP's financing—to the contrary, Artis could do so on remand in a second motion to expunge, allowing PBP to respond fully. See id. at 900 (“This directive does not bar further evidentiary proceedings on this matter ․”). This is only to say that, at this point, PBP's financing is not a reason to deny mandamus.

I would instead do what the First Court of Appeals did in In re Cohen—reinstate the lis pendens based on the legal issue litigated by the parties and addressed by the trial court and save the factual arguments for another day. I therefore respectfully dissent.

I.

Texas Property Code section 12.0071(c) allows a party seeking to expunge a lis pendens to challenge the plaintiff's pleadings, proof, or procedure. Id. at 893. The first challenge asks whether the pleadings state a real property claim at all, Tex. Prop. Code § 12.0071(c)(1); the second asks whether the plaintiff has presented enough evidence to show that it can ultimately prevail on its real property claim, id. § 12.0071(c)(2); and the third asks whether the plaintiff properly served the notice of lis pendens, id. § 12.0071(c)(3); In re Cohen, 340 S.W.3d at 893. No case law suggests that simply filing a motion to expunge a lis pendens puts a plaintiff to its proof on all three grounds; rather, the moving party gets to choose which challenge to bring. See In re Cohen, 340 S.W.3d at 893.

Only the first two challenges are potentially relevant here. The first is a legal question, and the second is an evidentiary question. Id.

II.

First, PBP's pleading stated a real property claim as a matter of law because it asked the trial court to order the sale of the property. In re Mousa, No. 01-04-00485-CV, 2004 WL 2823172, at *2 (Tex. App.—Houston [1st Dist.] Dec. 9, 2004, orig. proceeding) (“A party's assertion that they are entitled to recover the property at issue in the lawsuit sufficiently states a claim coming within the provisions of the lis pendens statute.”) (emphasis in original); see In re Chong, No. 14-19-00368-CV, 2019 WL 2589968, at *2 (Tex. App.—Houston [14th Dist.] June 25, 2019, orig. proceeding). That is enough under section 12.0071(c)(1).

It is true that a plaintiff must both plead and prove it was ready, willing, and able to perform timely to prevail on the merits of its claim for specific performance. DiGiuseppe v. Lawler, 269 S.W.3d 588, 603 (Tex. 2008). But whether a party can ultimately prevail on its real property claim is a different question than whether its pleading is sufficient for a lis pendens. In re Cohen, 340 S.W.3d at 899. To that end, a pleading need not be very specific to support specific performance—it is enough to ask for specific performance and plead compliance with the contract and all of its conditions precedent. Jennings v. Jennings, 625 S.W.3d 854, 868 (Tex. App.—San Antonio 2021, pet. denied). No appellate court has required more than that from a party's pleading at the lis pendens stage. See In re Mousa, 2004 WL 2823172, at *2 (granting mandamus from expunction of lis pendens because specific performance is a real property claim, without discussing the party's pleading or proof of readiness to perform).

But even if PBP was required to plead at this stage that it had the requisite financing, Artis was required to point out its failure to do so in its motion to expunge. See Walker v. Walker, 631 S.W.3d 259, 268-69 (Tex. App.—Houston [14th Dist.] 2020, no pet.). In fact, our court has required that a motion to expunge be specific: arguing in the trial court that the plaintiffs have “no claim on real property,” for example, is not enough to argue on appeal that they do not have a real property claim “because they seek only monetary damages.” Id. The challenge is waived if it was not brought below in the motion to expunge. See id.

So too here. Artis's motion was focused only on the contract's terms—PBP's lis pendens “should be expunged” because “the express language of the lease” dictated that PBP's purchase option was “null, void, and of no further force or effect” after PBP failed to close during the second purchase period. It didn't ask the court to weigh the sufficiency of PBP's evidence; it was “brought based solely on legal issues.” It was brought in the same document as a traditional motion for summary judgment, not a no evidence one, and cited cases construing contracts as a matter of law, not cases weighing the sufficiency of evidence. Put simply, never did Artis's written documents—either in its motion to expunge or by filing special exceptions—challenge PBP's evidence of its ability to finance the purchase during the third purchase period.¹

PBP's response likewise focused on the contract's terms—Artis's motion to expunge “misinterprets the contractual language at issue,” it said. Unsurprisingly, contract interpretation was also the basis of the trial court's order—it made eight declarations, all of which interpreted the contract, and none of which addressed PBP's financing. It considered the pleadings and arguments of counsel, not evidence, because no evidence was required to interpret the contract.

Artis's motion did briefly address the (undisputed) fact that PBP failed to close during the second purchase period because it lacked financing, but only as a reason to interpret the contract as foreclosing PBP from buying the property during the third purchase period. To be clear, the parties' contract gave PBP the right to purchase the property during three distinct periods. Artis argued in its motion that PBP could choose only one; its choice of the second purchase period meant as a matter of law that PBP couldn't then purchase the property during the third period.² That is a different question than the one decided by the court today—whether as a factual matter PBP had financing to purchase the property during the third period.³

I do not think we should deny mandamus—and almost certainly deny PBP the right to buy the property if it wins on the merits—because PBP did not present evidence in response to a legal argument. See Walker, 631 S.W.3d at 268-69.

III.

Second, I would decline to decide whether PBP's financing proof was sufficient under section 12.0071(c)(2) because Artis didn't challenge it and the trial court didn't decide it. That renders our review of Artis's evidentiary arguments “premature.” In re Cohen, 340 S.W.3d at 893 (declining to consider evidentiary arguments because “the trial court specifically limited its consideration to the pleadings”); Hughes v. Houston Nw. Med. Ctr., 647 S.W.2d 5, 8 (Tex. App.—Houston [1st Dist.] 1982, writ dism'd) (same).

Indeed, the record suggests that PBP may have had the proof it needed had it been given notice that Artis challenged its financing. Its counsel told the court at the expunction hearing that PBP had “secured” financing terms from four banks, which it could demonstrate by a letter of intent to purchase the property. PBP's counsel said he was happy to share the financing terms with the trial court or opposing counsel. He assured the court, “We'll have the financing, Your Honor.”⁴

PBP's burden is lower at this preliminary stage than it will be at trial. At trial, PBP will have to show the validity of its claim by a preponderance of the evidence, including that it was ready, willing, and able to purchase the property. The expunction statute provides a different standard: at this point, PBP is required to show only the probable validity of its claim and still only by a preponderance of the evidence. Tex. Prop. Code § 12.0071(c)(2).

That is a distinction with a difference. We can't impose the same standard at the lis pendens stage and on the merits without improperly reading language— “probable validity”—out of the statute. Instead, a party at the lis pendens stage should be required to present some evidence that tends to show its financing, in line with what we expect a party seeking a temporary injunction to present to show a probable right of recovery. See Intercontinental Terminals Co., LLC v. Vopak N. Am., Inc., 354 S.W.3d 887, 897 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (“[T]o show a probable right of recovery, the applicant must plead a cause of action and present some evidence that tends to sustain it.”). Like a temporary injunction, a lis pendens isn't just “a mini trial” where the trial court grants or denies expunction based on a prediction of “the applicant's chances of success at the real trial.” See id. The lis pendens standard is lower than the one at trial.

In any event, the supreme court has rejected the idea that a party must produce “binding commitments for financing” to obtain specific performance, even when the merits are ultimately decided. See DiGiuseppe, 269 S.W.3d at 602. The majority agrees—binding financing commitments aren't required—but holds that “financing terms” aren't enough unless they are accompanied by a “financing commitment.” I have a hard time seeing the daylight between the standard the court imposes today and the one rejected by the supreme court.

Indeed, courts have required much less. Testimony about a third party's willingness to lend money is enough—hardly a commitment. Id.; Corzelius v. Oliver, 220 S.W.2d 632, 635-36 (Tex. 1949). At least two other courts have held the same, affirming judgments awarding specific performance on much less evidence. Lac v. Nguyen, No. 02-24-00269-CV, 2025 WL 1349943, at *7 (Tex. App.—Fort Worth May 8, 2025, no pet.) (affirming specific performance based on testimony that a party was preapproved for a loan and an aunt agreed to cover a down payment); TLC Hosp., LLC v. Pillar Income Asset Mgmt., Inc., 570 S.W.3d 749, 769 (Tex. App.—Tyler 2018, pet. denied) (same, based on evidence of an engagement letter from a lender outlining proposed loan terms).

If that is the standard on the merits, then surely PBP could have met the even lower lis pendens standard if given the chance. After all, lis pendens do not adjudicate any rights; keeping this lis pendens in place would not award PBP the property or even place a lien on the property. In re Cohen, 340 S.W.3d at 900. It would simply give “notice to the world” that pending litigation “may” affect the property. Tex. Prop. Code § 13.004; State v. Silver Chevrolet Pickup, 140 S.W.3d 691, 692 (Tex. 2004) (per curiam). No court, until today, has required proof of a firm financing commitment at the lis pendens stage.

IV.

There are two additional reasons I would hold that Artis waived its challenge to the ready, willing, and able prong of specific performance.

First, our holding will encourage parties to flood the trial court with evidence of all elements at the get go, even the unchallenged ones, else risk ending up like PBP in this proceeding. That will increase the cost of litigation and the burden on trial courts.

Second, parties have the right to try cases in phases. If Artis wants to get an interpretation of the contract earlier in the proceedings, as it did here, it can do that. Our adversary system “depends on the parties to frame the issues for decision” and the court deciding only “matters the parties present.” Powell v. City of Houston, 628 S.W.3d 838, 843 (Tex. 2021). But that means we should not hold that PBP's lis pendens fails for briefing only the question that Artis raised.

V.

I would not deny mandamus based on PBP's financing. I would instead interpret the contract's terms, as the parties asked us and the trial court to do.

FOOTNOTES

1.   The fact that PBP's financing came up during the hearing is not enough. Robin Singh Educ. Servs., Inc. v. Test Masters Educ. Servs., Inc., 401 S.W.3d 95, 98 (Tex. App.—Houston [14th Dist.] 2011, no pet.); Sackett v. Jolly, No. 08-22-00072-CV, 2022 WL 17420798, at *7 (Tex. App.—El Paso Dec. 5, 2022, no pet.) (“an oral request cannot preserve the issue for our review”).

2.   For example, Artis argued that “the Purchase Option in the Lease has been rendered null and void by PBP's failure to close the Purchase Option Transaction by December 31, 2024”—the second purchase period—and therefore “the Lis Pendens should be expunged.”

3.   It is true that Artis included one vague sentence in the conclusion on the sixteenth page of its sixteen page motion: “to date, PBP has failed to confirm funding.” That might have been enough to challenge PBP's financing during the third purchase period if PBP had “responded thoroughly,” showing that it understood what Artis was challenging. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009). Here, however, PBP did not respond with evidence of its financing—because Artis only brought a legal challenge, and neither party understood that PBP's evidence was being challenged.

4.   The trial court also asked at the hearing why PBP would even be in court if it couldn't purchase the property; the court interprets this as an agreement from the trial court that PBP didn't have the financing, but I think it's not so clear. The trial court may have been recognizing that PBP did have the funds or it wouldn't be seeking specific performance.

Katy Boatman Justice