IN RE: PBP (2026)

OPINION

This original proceeding arises from a commercial landlord-tenant dispute between relator PBP, Inc. (PBP) and real party in interest AX PBJ, L.P. (Artis). PBP sued Artis for breach of contract, seeking specific performance of an option to purchase real property contained in their lease. Artis counterclaimed for a declaration from the trial court that it is no longer obligated to sell the property to PBP under the lease. After PBP recorded a lis pendens against the property, Artis filed a combined motion to expunge the lis pendens and for partial summary judgment on its counterclaim. PBP seeks mandamus relief from the trial court's order expunging the lis pendens. We deny relief because PBP has not established the probable validity of a real property claim. Therefore, the trial court did not abuse its discretion in expunging the lis pendens.

Background

PBP is a company that offers plastic resin bagging, packaging, and storage services. Its facilities span 68 acres and include three buildings in Cedar Port Industrial Park in Baytown, Texas. This mandamus proceeding concerns one of those buildings and all related improvements (the Property).

Artis owns commercial real estate in Cedar Port Industrial Park, including the Property. In March 2018, PBP and Artis executed an agreement whereby Artis leased the Property to PBP (the Lease Agreement). It is undisputed that the Lease Agreement is valid and remains in effect.

The Lease Agreement contains a provision that gives PBP the option to purchase the Property under certain terms and conditions (the “Purchase Option”):

Option to Purchase. Notwithstanding any provision herein to the contrary, provided that there is then no Event of Default by Tenant, Tenant shall have the right to purchase the Property from Landlord (the “Purchase Option”) during the following periods (each a “Purchase Period”): (a) month 37 of this Lease (the “First Purchase Period”), (b) month 49 of this Lease (the “Second Purchase Period”), or (c) month 61 of this Lease (the “Third Purchase Period”), upon delivery of written notice at least 180 days in advance stating Tenant's unconditional and unqualified exercise of this Purchase Option (a “Purchase Option Notice”).

The parties agree that, after considering applicable extensions, the three purchase periods are: (1) from December 1 to December 31, 2023; (2) from December 1 to December 31, 2024; and (3) from December 1 to December 31, 2025.

The Lease Agreement further states “[t]he terms of the Purchase Option shall otherwise be on those terms specified in Exhibit Q.” One of those terms is that “[b]y giving such notice of its exercise of the Purchase Option, Tenant shall become irrevocably obligated to purchase the Property on the terms herein by the applicable Option Closing Date.” Another term is that “[t]ime is specifically of the essence in Tenant's exercise of the Purchase Option, and strict compliance by Tenant with all of the time deadlines in this Lease ․ will be required.”

In December 2023, PBP notified Artis that it intended to exercise the Purchase Option during the second purchase period. But, PBP could not secure financing by the December 31, 2024 closing deadline, and Artis denied PBP's request for a 90-day extension. After failing to close during the second purchase period, PBP notified Artis that it intended to exercise the Purchase Option during the third purchase period. But Artis informed PBP that it did not have a right to purchase the Property during the third purchase period because its failure to close during the second purchase period “rendered the Purchase Option null, void, and of no further force or effect.”

While the parties disputed PBP's right to exercise the Purchase Option, Artis began marketing the Property for sale to third parties. PBP thus filed suit against Artis for breach of contract, seeking specific performance of the Purchase Option for the third purchase period and, alternatively, damages.¹ PBP also sought declaratory relief regarding the parties' rights and obligations under the Lease Agreement, including declarations that (1) “PBP properly and validly exercised the Purchase Option under the Lease”; (2) “Because of PBP's valid exercise of the Purchase Option, Artis is contractually obligated to sell the Property to PBP under the Lease”; and (3) “Artis has breached the Lease by repudiating its contractual obligation to sell the Property to PBP.”² PBP then recorded a notice of lis pendens against the Property to protect its alleged interest while the lawsuit was pending.

Artis subsequently filed an answer and counterclaims. Its amended answer alleged that PBP's “claims are barred in whole or in part for failure to satisfy a condition(s) precedent, in that Plaintiff failed to close the Purchase Option Transaction.” It specifically alleged that “PBP's failure to close was due to ․ PBP's inability to fund the Option Purchase Price.” Artis also counterclaimed for declaratory relief regarding the Lease Agreement, including declarations that (1) “PBP's failure to close the Purchase Option Transaction by December 31, 2024, rendered the Purchase Option null, void, and of no further force or effect”; and that (2) “Artis no longer has any obligation pursuant to the Lease to offer the Property to PBP for sale.” Artis's pleading included an application to expunge the lis pendens against the Property “because PBP cannot establish probable validity to the Property under the Lease or under Texas law.”

Artis then filed a Motion to Expunge Notice of Lis Pendens & Traditional Motion for Partial Summary Judgment. Artis asked the trial court to “expunge the Lis Pendens because the Lis Pendens unlawfully encumbers land for which PBP cannot show by a preponderance of the evidence that it has a legitimate claim.” It also asked the trial court to grant partial summary judgment in its favor on its claim for declaratory relief. PBP opposed the motion, arguing that it still retained the right to purchase the Property during the third purchase period, despite failing to successfully exercise the Purchase Option during the second purchase period. PBP thus asserted it established a legitimate claim to the Property.

Following two hearings, the trial court signed an order expunging PBP's lis pendens against the Property. In the same order, it granted a partial summary judgment on Artis's claim for declaratory relief. It declared, among other things, that (1) the Lease Agreement provided PBP a Purchase Option “during one ․ of three ․ separate, specific time periods outlined in the Lease, as elected by PBP”; (2) “PBP's failure to close the Purchase Option [during the second purchase period] rendered the Purchase Option null, void, and of no further force or effect”; and (3) “Artis no longer has any obligation pursuant to the Lease to offer the Property to PBP for sale.” PBP seeks mandamus relief from this order.³

Standard of Review

Mandamus “ ‘is an extraordinary remedy, not issued as a matter of right, but at the discretion of the court.’ ” In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 138 (Tex. 2004) (orig. proceeding) (quoting Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (orig. proceeding)). “A court of appeals may issue a writ of mandamus only if the trial court abused its discretion and there is no adequate remedy by appeal.” In re Christianson Air Conditioning & Plumbing, LLC, 639 S.W.3d 671, 681 (Tex. 2022) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A trial court has no discretion in determining what the law is or in applying the law to the facts; thus, a clear failure by the trial court to analyze or apply the law correctly constitutes an abuse of discretion. Id. at 840.

“It is well settled that mandamus is the appropriate remedy when issues arise concerning the propriety of a notice of lis pendens.” In re Gaudet, 625 S.W.3d 887, 891 (Tex. App.—El Paso 2021, orig. proceeding). This court has held that when a trial court abuses its discretion in ruling on a motion to expunge a lis pendens, the relator is not required to show that it has an adequate remedy by appeal. In re Calhoun, No. 14-23-00704-CV, 2024 WL 3648406, at *1 (Tex. App.—Houston [14th Dist.] Aug. 5, 2024, orig. proceeding) (per curiam) (mem. op.) (availability of other remedies does not preclude issuance of mandamus for improper lis pendens).

Applicable Law

“A lis pendens is a notice of litigation, placed in the real property records, asserting an interest in the property and notifying third parties that ownership of the property is disputed.” Walker v. Walker, 631 S.W.3d 259, 267 (Tex. App.—Houston [14th Dist.] 2020, no pet.). The doctrine is codified in Texas Property Code section 12.007, which provides that:

[D]uring the pendency of an action involving title to real property, the establishment of an interest in real property, or the enforcement of an encumbrance against real property, a party to the action who is seeking affirmative relief may file for record with the county clerk of each county where a part of the property is located a notice that the action is pending.

Tex. Prop. Code § 12.007(a). A lis pendens does not prevent a subsequent sale of the property. In re Miller, 433 S.W.3d 82, 85 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding). But “[w]hen the notice is properly filed, even a subsequent purchaser for value does not take the property free and clear,” Sommers for Ala. & Dunlavy, Ltd. v. Sandcastle Homes, Inc., 521 S.W.3d 749, 753 (Tex. 2017), and any interest acquired by the subsequent purchaser is subject to the outcome of the pending litigation. World Sav. Bank, F.S.B. v. Gantt, 246 S.W.3d 299, 303 (Tex. App.—Houston [14th Dist.] 2008, no pet.); see Tex. Prop. Code § 13.004(b) (“A transfer or encumbrance of real property involved in a proceeding by a party to the proceeding to a third party who has paid a valuable consideration and who does not have actual or constructive notice of the proceeding is effective ․ unless a notice of the pendency of the proceeding has been recorded ․”).

Once a lis pendens has been filed, the Texas Property Code allows for its removal by either expunction or cancellation. See Tex. Prop. Code §§ 12.0071 (expunction), 12.008 (cancellation). Section 12.0071 provides that “[a] party to an action in connection with which a notice of lis pendens has been filed may: (1) apply to the court to expunge the notice; and (2) file evidence, including declarations, with the motion to expunge the notice.” Id. § 12.0071(a). It identifies three circumstances in which the trial court “shall order the notice of lis pendens expunged.” Id. § 12.0071(c) (emphasis added). Those circumstances include when (1) “the pleading on which the notice is based does not contain a real property claim”; or (2) “the claimant fails to establish by a preponderance of the evidence the probable validity of the real property claim.” Id. The trial court “shall rule on the motion for expunction based on the affidavits and counteraffidavits on file and on any other proof the court allows.” Id. § 12.0071(e) (emphasis added).

For purposes of section 12.0071, a “real property claim” is “ ‘an action involving title to real property, the establishment of an interest in real property, or the enforcement of an encumbrance against real property.’ ” In re Moreno, No. 14-14-00929-CV, 2015 WL 225049, at *2 (Tex. App.—Houston [14th Dist.] Jan. 15, 2015, orig. proceeding) (per curiam) (mem. op.) (quoting Tex. Prop. Code § 12.007(a)). A “real property claim” must “support the award of real property based on” the claims asserted. In re Chong, No. 14-19-00368-CV, 2019 WL 2589968, at *2 (Tex. App.—Houston [14th Dist.] June 25, 2019, orig. proceeding) (mem. op.) (breach of contract claim not real property claim because it would not result in title to property). Thus, the claimant's alleged interest in the real property must be direct and not collateral. Walker, 631 S.W.3d at 268.

Analysis

PBP challenges the portion of the trial court's order expunging its lis pendens against the Property. PBP argues that it established the probable validity of a real property claim by seeking specific performance of the Purchase Option as a remedy for Artis's alleged breach of its obligation to sell the Property to PBP. PBP therefore contends the trial court abused its discretion by expunging the lis pendens.

On this record, however, we cannot say the trial court abused its discretion. Once Artis moved to expunge the lis pendens on evidentiary grounds, the lis pendens statute required the trial court to expunge the lis pendens unless PBP met its burden of “establish[ing] by a preponderance of the evidence the probable validity of the real property claim.” Tex. Prop. Code § 12.0071(c); see In re I-10 Poorman Invs., Inc., 549 S.W.3d 614, 617 (Tex. App.—Houston [1st Dist.] 2017, orig. proceeding) (“Because [the movant] argued in the trial court that the preponderance of the evidence did not support the probable validity of the lis pendens, the trial court could not deny the motion to expunge unless [the claimant] met its evidentiary burden of proving by a preponderance of the evidence the probable validity of its real property claim.”). The statute placed no evidentiary burden on Artis, the party applying for expunction; it placed the evidentiary burden solely on PBP, the party asserting a real property claim. See generally Tex. Prop. Code § 12.0071.

PBP's claim to the Property is based solely on allegations that Artis breached the Purchase Option and that PBP is entitled to specific performance as a result. “Specific performance is an equitable remedy that may be awarded upon a showing of breach of contract.” Yazdani-Beioky v. Sharifan, 550 S.W.3d 808, 829 (Tex. App.—Houston [14th Dist.] 2018, pet. denied). It is not a separate cause of action, “but rather is an equitable remedy that is used as a substitute for monetary damages when such damages would not be adequate.” Id. A party seeking specific performance must plead and prove (1) compliance with the contract, including tender of performance, unless excused by the defendant's breach or repudiation; and (2) the readiness, willingness, and ability to perform at relevant times. DiGiuseppe v. Lawler, 269 S.W.3d 588, 593–94, 601 (Tex. 2008).

“[E]ven when pre-suit tender of performance is excused, a plaintiff still is obligated to plead and prove that he is ready, willing, and able to perform at all relevant times before specific performance may be awarded.” Baizer v. Shaw, 727 S.W.3d 554, 574 (Tex. App.—Houston [14th Dist.] 2025, no pet.) (citing DiGiuseppe, 269 S.W.3d at 595). “When, as in this case, a party alleges it is ready, willing, and able to perform under the terms of a contract, but is relying on third-party financing, the party must show it had a firm commitment for financing, or it will not be entitled to specific performance.” Heights Prop. Mgmt., LLC v. Scales, No. 01-22-00750-CV, 2024 WL 4536140, at *4 (Tex. App.—Houston [1st Dist.] Oct. 22, 2024, no pet.) (mem. op.) (citing Luccia v. Ross, 274 S.W.3d 140, 146–47 (Tex. App.—Houston [1st Dist.] 2008, pet. denied)).

We conclude the record does not support a finding that PBP is probably entitled to specific performance as it fails to show that PBP was able to perform its obligation to close on the Purchase Option during any relevant purchase period. In seeking specific performance, PBP pleaded that all condition precedents “have been performed or have occurred.” See Tex. R. Civ. P. 54 (“In pleading the performance or occurrence of conditions precedent, it shall be sufficient to aver generally that all conditions precedent have been performed or have occurred.”). Artis responded by asserting PBP's “claims are barred in whole or in part for failure to satisfy a condition(s) precedent, in that Plaintiff failed to close the Purchase Option Transaction.” Artis then specifically alleged that “PBP's failure to close was due to ․ PBP's inability to fund the Option Purchase Price.” See id. (requiring the opposing party to specifically deny the performance of condition precedents). Thus, Artis's live pleading denies PBP's claim that it was able to close the Purchase Option. See Tex. R. Civ. P. 45 (“All pleadings shall be construed so as to do substantial justice.”).

Artis reiterated PBP's inability to close in its motion to expunge the lis pendens, asserting that PBP did not have the necessary funds and that securing funding was a material condition for closing the Purchase Option. Artis claimed that, after PBP filed the underlying lawsuit, it “gave PBP another opportunity to make an offer to purchase the Property, after PBP again represented that it had secured funding for the purchase of the Property.” However, Artis noted that “[t]o date, PBP has failed to confirm funding.” Artis thus requested the trial court observe its “right to sell the Property to an able and willing third-party” and expunge the lis pendens on grounds that “PBP cannot establish probable validity to the Property under the Lease or under Texas law.” (emphasis added).

During the parties' first hearing on the motion to expunge, Artis's attorney argued that, in addition to Artis no longer being obligated to sell the Property to PBP, there was another problem with the lis pendens: PBP's inability to close on the Purchase Option due to a lack of financing. According to the attorney, “[PBP] already failed to close it once, so what's to say they're not going to do that again?” He stated his belief that the parties' dispute is not about “negotiating one way or the other” but about does PBP “have the money or not.” The trial court agreed, rhetorically asking the parties, “Why would you even be in court ․ if you don't have the resources to [purchase] it because I think you are wasting everybody's time then.” It continued, “If you don't have the money to actually purchase this, you might as well stay a lessee.” It believed the lis pendens was improperly recorded and stated its intention to expunge the lis pendens, regardless of its decision on Artis's motion for partial summary judgment.

Under these circumstances, we reject PBP's contention that Artis waived PBP's inability to close on the Purchase Option as a ground for expunction and consider it in determining whether PBP is entitled to mandamus relief. Although this court cannot consider arguments not presented to the trial court in resolving a mandamus petition, we are not aware of any legal authority that prevents us from applying controlling law to arguments presented to the trial court, even though the parties and the trial court overlooked it. See In re Am. Optical Corp., 988 S.W.2d 711, 714 (Tex. 1998) (orig. proceeding) (per curiam) (holding arguments not presented to the trial court will not be considered in a petition for writ of mandamus); In re RH White Oak, LLC, No. 14-15-00789-CV, 2016 WL 3213411, at *9 (Tex. App.—Houston [14th Dist.] June 9, 2016, orig. proceeding) (mem. op.) (same). We also reject PBP's contention that Artis waived this issue by failing to raise it in response to its petition for writ of mandamus. Artis's response included an argument that “PBP still cannot fund the Purchase Option transaction, as evidenced by the fact that in May 2025, Artis gave PBP another opportunity to make an offer to purchase the Property but PBP failed to confirm funding or present an offer.” But even if it had not, “[m]andamus proceedings are original proceedings and are not subject to the same preservation and presentation requirements as appeals.” In re Illinois Nat'l Ins. Co., 685 S.W.3d 826, 840 n.12 (Tex. 2024) (orig. proceeding). Indeed, when PBP filed its petition for writ of mandamus, the Texas Rules of Appellate Procedure did not require a real party in interest to file a response to a petition for writ of mandamus. See Tex. R. App. P. 52.4 (“Any party may file a response to the petition, but it is not mandatory.”) See Order Amending Texas Rule of Appellate Procedure 52, Misc. Docket No. 25-9104 (Dec. 23, 2025). Thus, we decline to find briefing waiver.

At the second hearing on the motion, Artis's attorney explained that PBP “might be ready and willing to purchase the property, but as we stand here today, we still have nothing in hand showing that they've got the money.” The attorney informed the trial court that PBP has “never” provided Artis with “a letter of credit or anything from a lender saying ․ they have the money to close this.” The attorney noted this remains true even if the purchase price is determined by the terms of the Purchase Option. In response, PBP did not present evidence that it was able to close on the Purchase Option. Its attorney also did not object when opposing counsel mentioned PBP's inability to close as a reason for granting the motion. Instead, its attorney acknowledged that the company had not secured the necessary financing to close. He stated, “[W]e think we'll have our financing ready to go, and we'll close.” He then explained that PBP has secured “financing terms” but not a financing “commitment.”

We agree with the dissent that the Texas Supreme Court has rejected the idea that a party must produce “binding commitments for financing” to obtain specific performance. See DiGiuseppe, 269 S.W.3d at 602. But whether specific performance is an appropriate remedy must be determined by examining the facts and circumstances of each case. See American Hous. Res., Inc. v. Slaughter, 597 S.W.2d 13, 15 (Tex. Civ. App.—Dallas 1980, writ ref'd n.r.e.). In response to the motion to expunge, PBP produced no documents, affidavits, or testimony identifying financing terms from which the trial court could reasonably find that PBP was probably able to close the Purchase Option. Although the lis pendens statute does not define “probable validity,” the standard necessarily requires at least some evidence. Moreover, PBP repeatedly represented —both before filing the lawsuit and throughout the trial court proceedings — that it intended to close the Purchase Option using third-party financing. Thus, even if PBP produced some evidence that it secured financing terms to purchase the Property during the third purchase period, the trial court could have reasonably found “financing terms” without a “financing commitment” was insufficient to support a lis pendens on the Property, particularly given PBP's prior failure to close during the preceding purchase period due to financing issues. See Heights Prop. Mgmt., 2024 WL 4536140, at *4; Luccia, 274 S.W.3d at 146–47.

We disagree, however, with the dissent's reliance on In re Cohen because that case is distinguishable from the case before us. See 340 S.W.3d 889 (Tex. App.—Houston [1st Dist.] 2011, orig. proceeding). There, the trial court expressly stated in its order on the plaintiff's motion for reconsideration that it expunged the lis pendens without considering evidence or making a determination on the sufficiency of the evidence. Id. 892. Our sister court thus limited its review to the pleadings and declined to consider the defendants' evidentiary challenges to the lis pendens as premature. Id. 893, 899–900. Here, the record does not suggest that the trial court expunged the lis pendens without considering evidence or assessing its sufficiency. Indeed, it is undisputed that the trial court considered evidence attached to Artis's motion and PBP's response, including the Lease Agreement.

We must uphold the trial court's decision to expunge the lis pendens on any ground supported by the record. See In re Vogel, 261 S.W.3d 917, 920 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding) (“Because a trial court cannot abuse its discretion if it reaches the correct result for the wrong reason, we will uphold the trial court's order on any ground supported by the mandamus record.”). And respectfully, we disagree with the dissent's view that our holding departs from that well-established principle. Here, the record demonstrates PBP did not satisfy its burden under the lis pendens statute to establish the probable validity of its claim to the Property. PBP provided no evidence that it is able to perform its obligation to close the Purchase Option if it prevails on its claim for breach of contract. Thus, even assuming Artis breached the Lease Agreement by repudiating its alleged obligation to sell the Property, specific performance would not be available as a remedy on the present record. See Hays St. Bridge Restoration Grp. v. City of San Antonio, 570 S.W.3d 697, 707 (Tex. 2019) (“Damages and specific performance are alternatives to one another.”); DiGiuseppe, 269 S.W.3d at 593 (“An essential element in obtaining the equitable remedy of specific performance is that the party seeking such relief must plead and prove he was ready, willing, and able to timely perform his obligations under the contract.”). We therefore hold that the trial court did not abuse its discretion in expunging the lis pendens. See Gaudet, 625 S.W.3d at 893–95 (denying mandamus relief from order expunging lis pendens when relator did not show “he will probably succeed in showing by a preponderance of the evidence that [real parties in interest] breached a contract for sale to the Property that would entitle him to the specific performance he seeks”).

Conclusion

We conclude the trial court did not abuse its discretion in expunging the lis pendens, and we reach that conclusion without addressing whether the trial court erred in granting partial summary judgment to Artis by declaring it no longer has any obligation under the Lease Agreement to offer the Property to PBP for sale. See Vogel, 261 S.W.3d at 920; see also Tex. R. App. P. 47.1 (requiring appellate court to hand down written opinion that addresses every issue raised and necessary to final disposition); 52.8(d) (providing that Rule 47 generally applies to orders and opinions in original proceedings).⁴ Accordingly, we deny PBP's petition for writ of mandamus but will not lift our stay order for ten days following issuance of this opinion to allow the parties an opportunity to file a motion for rehearing in this court or to seek relief from the Texas Supreme Court. Our previous stay order shall remain in effect until lifted by this court.

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.   PBP also sued Artis for breach of contract based on Artis's failure to lease another building to it in accordance with the Lease Agreement.

2.   PBP sought declaratory relief under the Uniform Declaratory Judgments Act, which allows an interested person under a written contract to request the trial court determine any question of construction or validity arising under the contract and to “obtain a declaration of rights, status, or other legal relations thereunder.” Tex. Civ. Prac. & Rem. Code § 37.004(a).

3.   This court granted PBP's motion for temporary relief, staying the trial court's order until we reached a final decision on the petition for writ of mandamus.

4.   We note that the third purchase period expired during the pendency of this mandamus proceeding on December 31, 2025. We therefore considered whether the expiration rendered this mandamus proceeding moot but conclude it did not. See Heckman v. Williamson Cnty., 369 S.W.3d 137, 162 (Tex. 2012) (courts cannot decide a case that has become moot).

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.

Maritza Antú, Justice

(Boatman, J., dissenting).