Opinion issued August 27, 2026
In The
Court of Appeals
For The
First District of Texas
NO. 01-24-00310-CV
TUSKER CAPITAL FUND LLC, Appellant
V.
SOUTHSIDE DEVELOPMENT PROJECT, LLC, Appellee
On Appeal from the 152nd District Court
Harris County, Texas
Trial Court Case No. 2023-30611
OPINION
This case involves a residential property on Houston’s west side. The
property, on Westview Drive, belonged to a builder named Bella Terra Custom
Homes, which found itself squeezed between two creditors: appellant Tusker Capital Fund and appellee Southside Development Project. The parties disagree about the
validity of a lis pendens, but nobody disagrees with Southside’s backward-looking
comment: “Both Southside and Tusker had the unfortunate experience of getting
involved with Bella Terra.”
Tusker loaned money to Bella Terra in exchange for a note and deed of trust
on the property, but Southside had recorded a lis pendens one day before. The parties
dispute whether the lis pendens charged Tusker with notice of Southside’s pending
case against Bella Terra. Southside says yes. It reasons that any interest acquired by
Tusker was taken subject to the outcome of Southside’s pending suit.
Tusker says no. It sees Southside’s suit as a debt collection effort, not a
property case, with Southside seeking a deed of trust but not the property itself.
Tusker calls the lis pendens invalid because, in its view, Southside’s suit against
Bella Terra involved neither “establishment of an interest in” nor “enforcement of
an encumbrance against” the property. See TEX. PROP. CODE § 12.007(a). Tusker
regards Southside as seeking merely a collateral interest in property, rather than a
direct interest.
Following cross-motions for summary judgment, the trial court granted
summary judgment for Southside, ordering that Southside had the superior interest
in the property and was entitled to “immediate and sole title and possession” of the
property.
2
On appeal, Tusker challenges the trial court’s summary judgment ruling in
five issues, arguing that the court erred by (1) ruling the lis pendens was valid rather
than void ab initio; (2) foreclosing on Southside’s alleged constructive trust and
granting it immediate possession; (3) entering judgment that Southside had a
superior interest in the property to Tusker; (4) granting summary judgment on
Southside’s trespass to try title claim because Southside did not seek that relief; and
(5) accepting Southside’s “unsound” legal positions in making its summary
judgment rulings.
We reverse and render judgment that the lis pendens is invalid.
Background
The pertinent events unfolded over a two-year period of time, running from
2021 to 2023.
A. The Events of 2021: Southside Does Business with Bella Terra.
Southside was formed in the middle of November 2021, and a few days later
it entered an agreement with Bella Terra “for the purpose of acquiring, developing,
rehabilitating, and selling real estate assets and interests for profit.” Their
collaboration resulted in the acquisition of several properties, including the
Westview property. For the Westview property, Southside invested $605,588.59 in
rehabilitation and improvements.
3
B. The Events of 2022: Bella Terra Promises a Deed of Trust to Southside
and Gives a Deed of Trust to Tusker.
The business relationship between Southside and Bella Terra went south in
the summer of 2022. First, Southside filed a “Notice of Interest” in the property in
June. According to this notice, Southside (1) “had an agreement” with Bella Terra
for the property’s purchase and renovation, (2) paid for improvements to the
property, and (3) “claims to be an equitable and beneficial owner” of the property.
Southside and Bella Terra then ended their deal in July. On July 13, 2022,
they signed a “Business Agreement Termination and Settlement and Release
Agreement.” This agreement recited that Southside had invested about $2.9 million,
including $1 million paid to Bella Terra for rehabilitation of the various properties.
As part of this agreement, Bella Terra acknowledged a Westview property debt of
$605,588.89 to Southside and promised to execute a deed of trust on the property in
favor of Southside.
This business divorce soon gave way to litigation. On August 17, 2022,
Southside filed suit against Bella Terra in the 295th District Court of Harris County.
Citing the settlement agreement, Southside alleged that Bella Terra had promised to
deliver a deed of trust on the Westview property but failed to do so. As a result,
Southside alleged breach of the agreement and asked for specific performance of
Bella Terra’s contractual obligations, including its promise to convey the Westview
property “according [to] the terms of the Agreement.”
4
The next day—August 18, 2022—Southside recorded the lis pendens, which
referenced Southside’s lawsuit against Bella Terra for specific performance and
breach of the settlement agreement “related to interests or deeds in certain
properties,” including the Westview property.
One day later—August 19, 2022—Tusker entered the picture. It loaned
$577,500 to Bella Terra, which in turn gave Tusker a promissory note and a deed of
trust on the Westview property. When Bella Terra defaulted on its obligation to
Tusker, Tusker purchased the Westview property at a non-judicial foreclosure sale
and obtained a Trustee’s Deed to the property dated and filed December 16, 2022.
So when 2022 ended, Tusker and Southside occupied different positions: (1) Tusker
had a Trustee’s Deed to the property; (2) Southside did not have a deed of trust but
did have the promise of one, plus a pending lawsuit to enforce that promise and a lis
pendens identifying the lawsuit as pending.
C. The Events of 2023: Tusker Takes Southside to Court.
In May 2023, rather than intervening in the existing lawsuit between
Southside and Bella Terra, Tusker sued Southside in a separate action and sought
declaratory relief. This lawsuit was assigned to the 152nd District Court of Harris
County.
Tusker alleged that “Southside does not have title to, an interest in, or an
encumbrance against the Property. Instead, it merely has an alleged promise to be
5
given an interest in the Property in the future, which does not entitle it to a lis
pendens on the Property.” It therefore sought a declaration that Southside’s lis
pendens against the Westview property is invalid, improper, and should be
expunged.1 Southside asserted counterclaims against Tusker, including a claim
seeking a declaration that Southside’s interest in the Westview property was superior
to Tusker’s interest and a claim for trespass to try title.
Meanwhile, Southside kept moving forward with its case against Bella Terra
for specific performance of the promise to provide a deed of trust. On October 28,
2022, Southside expanded its pleadings to allege that not only had Bella Terra
breached the settlement agreement but that it had also committed common-law and
statutory fraud against Southside, entitling it to “its full and dominant interest” in the
Westview property “over and against” Bella Terra “and any other liens filed
subsequent to [its] Lis Pendens.” Southside requested that the court grant it a
constructive trust over the Westview property.
The Southside-Bella Terra lawsuit came to a negotiated conclusion in June
2023—while the Tusker-Southside suit remained pending. Pursuant to another
settlement agreement between the parties, the 295th District Court signed an agreed
1
After the parties moved for summary judgment, Tusker amended its petition and
requested a declaration that “any alleged interest claimed by Southside against the
Property arising from or relating to the lis pendens and/or the Bella Terra Lawsuit
is invalid, improper and that it should be expunged.” Tusker also requested
attorney’s fees under the Declaratory Judgments Act.
6
judgment granting “a constructive trust which is hereby recognized and established”
in favor of Southside on the Westview property. The court ruled in its agreed
judgment—signed on June 14, 2023—that the constructive trust arose almost a year
earlier, namely “on or before July 13, 2022,” the date Southside and Bella Terra
signed the settlement agreement dissolving their business relationship. The court
further ordered that the agreed judgment superseded Southside’s lis pendens.
Armed with this agreed judgment from the 295th District Court, Southside
then asked the 152nd District Court for relief against Tusker. It amended its counterpetition to seek foreclosure of its constructive trust on the Westview property.
Southside pointed to the first-filed lis pendens and urged that Tusker took the
Westview property subject to Southside’s claim, whereas Tusker responded that the
lis pendens is invalid because it did not pertain to a property dispute or a direct
interest in the Westview property.
The parties filed cross-motions for summary judgment. The court granted
Southside’s motion and denied Tusker’s. It ordered that Southside “has a superior
interest, superior to the interest claimed by Tusker” in the Westview property. It
ruled that Southside is the true legal owner and awarded Southside “immediate and
sole title and possession of the Property as against all other title owners, lien or
interest holders, or occupiers of the Property.”
This appeal ensued.
7
Validity of Lis Pendens
The threshold question in this appeal involves the validity of Southside’s
notice of lis pendens.
A. Standard of Review.
When parties file cross-motions for summary judgment, a party must establish
that it is entitled to judgment as a matter of law to prevail. Hotze v. Turner, 672
S.W.3d 380, 385 (Tex. 2023); TEX. R. CIV. P. 166a(h)(2). We consider both parties’
summary judgment evidence and review the trial court’s rulings on the motions de
novo. Mitchell v. MAP Res., Inc., 649 S.W.3d 180, 188 (Tex. 2022). When the trial
court grants one motion and denies the other, we determine all questions presented
and render the judgment the trial court should have rendered. Jordan v. Parker, 659
S.W.3d 680, 684 (Tex. 2022).
B. Lis Pendens Is Now a Statutory Concept.
In the early years of Texas property law, lis pendens existed as a common-law
concept, which was known for being harsh. See Herbert A. Janzen, Comment, Texas
Statutory Notice of Lis Pendens: A Deprivation of Property Interest Without Due
Process?, 19 ST. MARY’S L.J. 377, 381 (1987); Recent Case, Lis Pendens—Effect of
Notice of Suit, 7 TEX. L. REV. 481, 482 (1929) (“While at common law mere
pendency of the suit was notice, our statute must be strictly complied with to make
the pendency of the suit operate as does lis pendens at common law.”); JAMES W.
8
EATON, HANDBOOK OF EQUITY JURISPRUDENCE 133 (Archibald H. Throckmorton,
ed., 2d ed. 1923) (“The rule is a hard one, and not a favorite with the courts, and a
party claiming the benefit of it must clearly bring his case within it.”).
The Legislature abrogated this common-law regime by statute in 1905. Kuehn
v. Kuehn, 242 S.W. 719, 721 (Tex. Comm’n App. 1922, judgm’t adopted); see
Burke-Simmons Co. v. Konz, 178 S.W. 587, 589–90 (Tex. Civ. App.—Fort Worth
1915, writ ref’d); Dwight A. Olds, Lis Pendens, 4 HOUS. L. REV. 221, 223 & n.8
(1966); see also Janzen, 19 ST. MARY’S L.J. at 382 (“Responding to potentially
unjust effects of the common law doctrine, many states enacted statutes seeking to
limit the imposition of constructive notice as it existed under the common law
rule.”). The 1905 statute has changed very little through the years, becoming article
6837 of the 1911 Revised Civil Statutes2 and article 6640 of the 1925 Revised Civil
Statutes,3 before ending up in Property Code section 12.007.
2
Article 6837 of the 1911 statutes provided: “Suit for land; notice to be filed.—
During the pendency of any suit or action, legal or equitable, involving the title to
real estate, or seeking to establish any legal or equitable estate, interest or right,
present or future, vested or contingent, therein, or to enforce any lien, charge or
encumbrance against the same, any party plaintiff, as also any party defendant
seeking affirmative relief therein, may file with the county clerk of each county
where such real estate, or any part thereof, is situated a notice of the pendency of
such suit, to be signed by the party filing the same, or his agent or attorney, setting
forth the number and style of the cause, the court in which pending, the names of
the party thereto, the kind of suit and a description of the land affected.” TEX. REV.
CIV. STAT. art. 6837 (1911).
3
Article 6640 of the 1925 statutes provided: “Suit for land; notice to be filed.—
During the pendency of any suit or action, involving the title to real estate, or
9
Start with how courts have defined lis pendens. A lis pendens has been
described as a “notice, recorded in the chain of title to real property” that serves to
“warn all persons that certain property is the subject matter of litigation.”
Countrywide Home Loans, Inc. v. Howard, 240 S.W.3d 1, 4 (Tex. App.—Austin
2007, pet. denied) (quoting Lis Pendens, BLACK’S LAW DICTIONARY (7th ed. 1999));
see Sommers for Ala. & Dunlavy, Ltd. v. Sandcastle Homes, Inc., 521 S.W.3d 749,
753 (Tex. 2017) (“A notice of lis pendens broadcasts ‘to the world’ the existence of
ongoing litigation regarding ownership of the property.”); In re Miller, 433 S.W.3d
82, 84 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding) (stating that lis
pendens serves two purposes: (1) to protect filing party’s alleged rights to disputed
property, and (2) to put those interested in property on notice of lawsuit).
A properly filed lis pendens is not itself a lien but rather operates as
constructive notice “to the world of its contents.” TEX. PROP. CODE § 13.004(a).
When a lis pendens is properly filed, even a subsequent purchaser for value will not
take the property free and clear. Sommers for Ala. & Dunlavy, 521 S.W.3d at 753;
TEX. PROP. CODE § 13.004(b); see also Countrywide Home Loans, 240 S.W.3d at 4
seeking to establish any interest or right therein, or to enforce any lien, charge or
encumbrance against the same, any party seeking affirmative relief therein, may file
a notice of the pendency of such suit with the county clerk of each county where
such real estate, or any part thereof, is situated. Such notice shall be signed by the
party filing the same, his agent or attorney, setting forth the number and style of the
cause, the court in which pending, the names of the party thereto, the kind of suit
and description of the land affected.” TEX. REV. CIV. STAT. art. 6640 (1925).
10
(“The purposes of a notice of lis pendens are to put those interested in a particular
tract of land on inquiry about the facts and issues involved in the suit and to put
prospective buyers on notice that they acquire any interest subject to the outcome of
the pending litigation.”). A notice of lis pendens is effective at the time it is filed for
record and indexed. TEX. PROP. CODE § 13.004(a).
Section 12.007(a) spells out the circumstances that justify the recording of a
lis pendens:
After the plaintiff’s statement in an eminent domain proceeding is filed
or during 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.
Id. § 12.007(a). The supreme court has paraphrased three of these grounds as
follows: “A party may file a lis pendens during the pendency of an action involving:
1) title to real property, 2) the establishment of an interest in real property, or 3) the
enforcement of an encumbrance against real property.” Flores v. Haberman, 915
S.W.2d 477, 478 (Tex. 1995) (orig. proceeding) (per curiam). A lis pendens filed for
record without statutory authorization does not provide constructive notice to third
parties. Countrywide Home Loans, 240 S.W.3d at 4.
Southside relies on two of the scenarios described in section 12.007(a),
namely “the establishment of an interest in real property” and “the enforcement of
11
an encumbrance against real property.” It claims to fit both. Tusker argues it fits
neither.
1. The lis pendens depends on the pleadings at the time of its filing.
To decide whether the Southside-Bella Terra suit falls within the statute, we
examine the pleadings on file at the time of the lis pendens. Id. at 5 (“[T]he validity
of a filing of a notice of lis pendens is judged by the pleadings on file at the time the
transaction with respect to the property occurred.”); Alolabi v. Chretien, No. 01-20-00761-CV, 2022 WL 2976377, at *6 (Tex. App.—Houston [1st Dist.] July 28, 2022,
pet. denied) (mem. op.) (examining pleadings as of “the time [appellant] filed the
notice of lis pendens”); see also Wortham v. Boyd, 66 Tex. 401, 404, 1 S.W. 109,
110 (1886) (taking same approach prior to statute: “Of what may appear upon a
different state of pleadings, when different matters requiring a different judgment
are subsequently alleged, or parties seeking relief upon other titles and states of facts
are subsequently introduced, they are not chargeable with notice.”).
2. The pleadings at the time sought specific performance of a promise
to deliver a deed of trust.
When Southside filed the lis pendens, the pleadings in the lawsuit that the lis
pendens referenced asked for a deed of trust:
8. As a part of the Settlement Agreement, BELLA TERRA was
required to do certain things, including:
12
b. Clear liens on, and deliver to SOUTHSIDE a Deed of
Trust in favor of SOUTHSIDE in the amount of
$605,588.89 to the WESTVIEW property . . . .
9. With respect to the WESTVIEW property, the Settlement
Agreement provided the following:
BELLA TERRA acknowledges a debt owed to SOUTHSIDE in
the amount of $605,588.59 for costs paid for the rehab of and
investment in the WESTVIEW PROPERTY plus 18% annual
compounded interest, and accordingly, within 10 days of the
execution of this SETTLEMENT AGREEMENT by the
PARTIES, BELLA TERRA shall execute a Deed of Trust, in a
form prepared and approved by SOUTHSIDE or its counsel, on
the WESTVIEW PROPERTY securing $605,588.59 in debt at
18% annual compounded interest accruing from the date of
January 1, 2022 in favor of SOUTHSIDE, said Deed of Trust to
be a second lien on the WESTVIEW PROPERTY standing
behind only the lien of Groundfloor Real Estate 1, LLC. . . .
As evidenced by this provision, SOUTHSIDE’s Deed of Trust was to
be second only to the first lien Deed of Trust of Groundfloor Real Estate
1, LLC of June 30, 2021 in an original amount of $362,190. BELLA
TERRA has indicated it intends to refinance that note in an amount
much greater than $362,000. Such an act would be a violation of the
Settlement Agreement entered into by the parties.
12. SOUTHSIDE seeks specific performance of the contractual
obligations BELLA TERRA promised to provide, including . . . the
conveyance of the interest in WESTVIEW property according [to] the
terms of the Agreement.
Southside later amended its pleadings to add a claim seeking imposition of a
constructive trust, but the later pleadings are not relevant to validity of the lis
pendens. See Alolabi, 2022 WL 2976377, at *6.
13
3. A suit to obtain a deed of trust is not a suit to establish an interest
in real property.
The question thus arises whether a suit for a deed of trust qualifies as a suit to
establish an interest in real property. Tusker says that Southside does not have a deed
of trust but only a collateral interest in the property. Southside disagrees.
The cases draw a line between a “direct” interest and a “collateral” interest in
the property. A lis pendens is appropriate if the lawsuit supporting it concerns a
direct interest in the property. See In re Collins, 172 S.W.3d 287, 293 (Tex. App.—
Fort Worth 2005, orig. proceeding) (citing TEX. PROP. CODE § 12.007(a)). If a
lawsuit only concerns a collateral interest in the property, a lis pendens is not
appropriate. See Flores, 915 S.W.2d at 478; Countrywide Home Loans, 240 S.W.3d
at 4 (“[T]he property against which the lis pendens is filed must be the subject matter
of the underlying lawsuit.”).
This Court previously permitted a lis pendens where the claimant sought
restoration of a property interest: “[A] pleading requesting the restoration of a prior
ownership interest in a particularly identified property—through actual title or a
constructive trust—is sufficient.” In re Cohen, 340 S.W.3d 889, 898 (Tex. App.—
Houston [1st Dist.] 2011, orig. proceeding). We have also upheld the validity of a
lis pendens “filed on specifically identified property alleged to have been purchased
with the fruits of the defendant’s fraud on the plaintiff.” Id. at 899 (quotation
omitted). However, cases in which the plaintiff requests title to property or a
14
constructive trust “only to satisfy a money judgment against the defendant” do not
involve a sufficiently direct interest in real property, and cancellation of the lis
pendens is proper. Id.; see Flores, 915 S.W.2d at 478 (concluding that lis pendens
was improper when plaintiffs asserted conversion claim and sought imposition of
constructive trust against properties allegedly purchased with converted funds
because plaintiffs sought constructive trust “only to satisfy the judgment they seek
against Flores,” and interest was “no more than a collateral interest in the property”).
This distinction between direct and collateral interests goes back for decades.
See, e.g., Neyland v. Brammer, 146 S.W.2d 261, 263–64 (Tex. Civ. App.—
Galveston 1940, writ dism’d judgm’t cor.) (agreeing that lis pendens was ineffective
when defendant in related but separate suit allegedly converted shares of stock and
used proceeds to purchase real property because although final judgment against
defendant “would have had the collateral effect of establishing a lien upon the
property of the estate,” that lien “would have been merely incidental” to issue
involved in case); see also Bowen v. Kirkland, 44 S.W. 189, 194 (Tex. Civ. App.—
Dallas 1897, writ ref’d) (op. on reh’g) (“The property so purchased must be the
subject of the controversy to be settled by the suit, and it will not do that a collateral
question only is involved, which may ultimately affect the title of the party litigant
to the property purchased.”). But distinguishing direct from collateral can become
tricky.
15
Tusker argues that the property against which the lis pendens was filed must
be the subject of the underlying lawsuit. See Moss v. Tennant, 722 S.W.2d 762, 763
(Tex. App.—Houston [14th Dist.] 1986, orig. proceeding) (invalidating lis pendens
because plaintiff’s suit seeking constructive trust on property allegedly purchased
with proceeds from sale of house to plaintiff did not seek to establish interest in
property but was “security for the recovery of any damages he may be awarded,”
was “essentially a prayer for a judgment lien,” and affected property “only
collaterally”). But the Westview property was not the subject of the lawsuit between
Southside and Bella Terra. Instead, Tusker argues, Southside was “trying to secure
payment of a debt, not an award of real property, and, thus, its claim is a collateral
and not a direct claim.” Because Southside’s suit for an alleged interest in the
Westview property “was only for breach of contract to enforce payment of a debt,”
it asserted a collateral interest that will not support a lis pendens.
Southside recognizes the direct-collateral distinction but argues it can satisfy
it. In doing so, it contrasts this case with Flores, in which the properties affected by
the lis pendens “were purchased with proceeds from a converted property.”
Southside argues that the notice of lis pendens on the new property in Flores “was
invalid because the plaintiffs only sought a constructive trust to ‘satisfy the
judgment’ against the defendant.” But that is not the situation present here. Instead,
“Southside sought its interest in the properties that were specifically identified in the
16
Settlement Agreement as Southside having an interest in, including the Westview
Property.” Southside argues that the settlement agreement gave it “a direct interest
in the Westview Property,” and therefore the lis pendens was proper.
We conclude that Southside’s lawsuit to obtain a deed of trust on the
Westview property from Bella Terra does not constitute a suit to establish an interest
in real property. See TEX. PROP. CODE § 12.007(a). Our cases recognize a direct
interest in property when the plaintiff seeks “restoration of a prior ownership interest
in a particularly identified property.” In re Cohen, 340 S.W.3d at 898. Nothing of
that sort exists here. Southside’s original petition against Bella Terra sought a deed
of trust on the Westview property, not restoration of a prior ownership interest. In
Cohen, we explained that cancellation of a lis pendens is proper in cases where “the
plaintiff requests title to the property, or a constructive trust, only to satisfy a money
judgment.” Id. at 899. We distinguished cases such as Flores and Moss, observing
that “Cohen [was] not seek[ing] a judgment lien.” Id. (concluding that trial court
erred by expunging lis pendens because Cohen “request[ed] that real property liens
and title transfers be set aside, and that a constructive trust be placed on properties
he allege[d] were fraudulently transferred”).4 Yet Southside essentially did seek such
4
The Fourteenth Court of Appeals has criticized our opinion in Cohen, which relied
on a pre-Flores opinion from this Court allowing a lis pendens when the plaintiff
seeks an award of an interest in real property purchased with funds wrongfully
obtained from the plaintiff through unjust enrichment or fraud. See In re Chong, No.
14-19-00368-CV, 2019 WL 2589968, at *4 (Tex. App.—Houston [14th Dist.] June
17
a judgment lien. Such an action does not seek to establish an interest in real property.
Id.; see Neyland, 146 S.W.2d at 264 (“If appellant had succeeded in obtaining a final
judgment [for conversion] against [the defendant in a related suit], the judgment
would have had the collateral effect of establishing a lien upon the property of the
estate; however, the establishment of such a lien would have been merely incidental
to the issue involved in the case [for conversion].”). The Southside-Bella Terra suit
for the deed of trust thus falls on the Neyland side of the line, not the Cohen side of
the line.
4. A suit to obtain a deed of trust is not a suit to enforce an
encumbrance against real property.
This leaves the question whether the lis pendens comes within the statutory
language about enforcing an encumbrance against real property. We conclude that
the answer is no. Although a deed of trust plainly qualifies as an encumbrance
25, 2019, orig. proceeding) (mem. op.) (declining to follow Cohen and Teve
Holdings, Ltd. v. Jackson, 763 S.W.2d 905, 908 (Tex. App.—Houston [1st Dist.]
1988, no writ), on basis that these cases were inconsistent with Flores and
Fourteenth Court’s opinion in Moss v. Tennant). The court stated that it sees no
“material difference between seeking equitable ownership and seeking legal
ownership of real property; they both are means by which the plaintiff seeks to
recover judgment against the defendant for fraud or conversion.” Id.; see also In re
Jackson, No. 14-23-00753-CV, 2024 WL 1102888, at *3 (Tex. App.—Houston
[14th Dist.] Mar. 14, 2024, orig. proceeding) (mem. op.) (per curiam) (concluding
that lis pendens was improper because plaintiff asserted interest in properties as
means to recover judgment against defendant for fraud or conversion after defendant
allegedly sold properties and used proceeds for other purposes, and this was “a
collateral claim”).
18
against property, a lawsuit to obtain a deed of the trust does not seek to enforce that
encumbrance.
Southside maintains that a deed of trust “puts an encumbrance on the subject
property.” We agree. An existing deed of trust plainly puts an encumbrance on the
property. See In re City Nat’l Bank, 257 S.W.3d 452, 455 (Tex. App.—Tyler 2008,
orig. proceeding [mand. denied]) (“The lien created by a deed of trust is an
encumbrance on the title to real property.”); Dorfman Dev. Co. v. Am.
Commonwealth Dev. Co., 523 S.W.2d 268, 270 (Tex. Civ. App.—Houston [1st
Dist.] 1975, no writ) (concluding that “primary object” of suit to cancel deed of trust
lien was “the removal of an encumbrance from the property”). A “deed of trust is in
legal effect a mortgage with power to sell on default.” Johnson v. Snell, 504 S.W.2d
397, 399 (Tex. 1973).
This does not mean, however, that a suit to obtain a deed of trust constitutes a
suit to enforce the resulting encumbrance. If anything, our decision in Neyland
indicates the contrary. See Neyland, 146 S.W.2d at 263–64. Neyland filed suit
against the executor of a decedent’s estate, alleging that the executor converted
shares of stock belonging to the plaintiff following the death of the decedent. Id. at
262. Neyland claimed that he had a statutory lien upon all property belonging to the
decedent’s estate, including a piece of real property that the executor had conveyed
to a third party after the decedent’s death, and he filed a lis pendens. Id. After a bench
19
trial, the trial court awarded the third-party title to the real property and removed the
cloud on title created by the lis pendens. Id. On appeal, this Court held that while a
creditor of a decedent’s estate may file suit to establish a claim against the estate, the
creditor cannot assert a lien against the estate’s assets until the debt is established.
Id. at 263. Because Neyland had not secured a judgment against the executor in his
favor, he did not have a lien against the estate’s assets, and the trial court properly
removed the cloud on title created by the lis pendens. Id.
Neyland led to Lane v. Fritz, a case from the Corpus Christi Court of Appeals.
404 S.W.2d 110 (Tex. Civ. App.—Corpus Christi 1966, no writ). There, Lane, in a
prior suit, had “sought adjudication establishing in her favor a lien on all realty
owned by” the defendant in various Texas counties “to secure payment of the amount
of a judgment which she, as plaintiff in that suit, may recover therein.” Id. at 111.
She also filed a lis pendens relating to the prior suit, which the trial court invalidated.
Id. at 110–11. In reviewing the trial court’s ruling, the Corpus Christi Court found
our holdings in Neyland “applicable here” and stated that the statutory language
allowing a lis pendens “to enforce any lien, charge or encumbrance” was not
applicable “where such lien does not exist prior to rendition of judgment under some
provision of a contract, statute or the constitution.” Id. at 112. The court held that
Lane’s “prior suit for damages against [Fritz] and the lis pendens notices filed in
connection with it [did] not come within the provisions of” the lis pendens statute.
20
Id. Thus, under Neyland and Lane, a party who at most seeks to establish a lien does
not thereby fit within the lis pendens statute.
The Fourteenth Court has agreed and held that a suit seeking to establish a
lien on real property does not fall within section 12.007. In In re Moreno, the plaintiff
asserted claims for DTPA violations, breach of contract, and fraud, and she
requested cancellation and rescission of a purported executory contract to purchase
real property. See No. 14-14-00929-CV, 2015 WL 225049, at *1 (Tex. App.—
Houston [14th Dist.] Jan. 15, 2015, orig. proceeding [mand. denied]) (mem. op.) (per
curiam). She also “pled for the establishment of ‘an equitable purchaser’s lien
against the Property to secure the judgment against Defendant and that the lien be
foreclosed to recover the judgment.’” Id. The plaintiff filed a notice of lis pendens,
which the trial court expunged at the request of the defendant. Id.
In seeking mandamus relief from the expungement order, the plaintiff relied
“on her plea for the establishment and foreclosure of an ‘equitable purchaser’s lien’
as the basis for the lis pendens.” Id. at *2. The Fourteenth Court concluded that the
plaintiff’s suit did not involve enforcement of an encumbrance against real property,
reasoning that “[a]lthough [the plaintiff] pled for the establishment and foreclosure
of an equitable lien on the subject property, the equitable lien she seeks does not yet
exist,” and section 12.007(a) does not apply “where such lien does not exist prior to
rendition of judgment . . . .” Id. at *3 (quoting Lane, 404 S.W.2d at 112).
21
Based on this authority, we conclude that Southside’s suit against Bella Terra
to obtain a deed of trust did not involve “the enforcement of an encumbrance against
real property.” See TEX. PROP. CODE § 12.007(a). Because the Southside-Bella Terra
suit did not involve the enforcement of an encumbrance against real property or the
establishment of an interest in real property, Southside’s lis pendens on the
Westview property was improper.
The parties have supplied helpful briefing on whether the validity of the lis
pendens can be challenged outside Property Code section 12.007. After reviewing
that briefing and the caselaw, we agree with the Fourteenth Court that a challenge
outside the purview of section 12.007 is not barred: “[S]tatutory methods for
nullifying a lis pendens are not exclusive.” Cnty. Inv., LP. v. Royal W. Inv., LLC,
513 S.W.3d 575, 581 (Tex. App.—Houston [14th Dist.] 2016, pet. denied); see also
Prappas v. Meyerland Cmty. Improvement Ass’n, 795 S.W.2d 794, 796 (Tex.
App.—Houston [14th Dist.] 1990, writ denied).
C. Invalidation of the Lis Pendens Requires Reversal.
Because we concluded the lis pendens was not properly filed, it follows that
the judgment cannot stand. The lis pendens supplied a vital link in the logic chain in
Southside’s argument. Southside premised its summary judgment papers on the
validity of that lis pendens. For instance, it contended:
• “The rule of ‘first in time is first in right’ is applicable to this case.”
22
• “This lis pendens notice was on file and available for TUSKER to view
on the date it entered into its transaction with BELLA TERRA. This
lawsuit ultimately resulted in a constructive trust awarded to
SOUTHSIDE in the WESTVIEW PROPERTY.”
• “In this case the lis pendens was filed prior to the TUSKER’s deed of
trust. The lis pendens was converted into, and the litigation resulted in,
a constructive trust in the Westview property as set forth in the
Judgment awarded to SOUTHSIDE on June 14, 2023 in the BELLA
TERRA LAWSUIT.”
• “TUSKER’s Deed of Trust was filed after SOUTHSIDE’S lis pendens.
Accordingly, as a matter of Texas law TUSKER’s interest is
subordinate to the prior filed lis pendens of SOUTHSIDE. This is the
very issue at the heart of this case, and as a matter of law, SOUTHSIDE
is entitled to judgment in its favor.”
Southside’s view about the “issue at the heart of this case” has support from Tusker,
which agrees that the lis pendens issue constitutes the case’s fulcrum. Likewise, we
agree that the lis pendens issue lies at the heart of the case. With summary judgment
having been sought on the premise that the lis pendens came first in time and then
“was converted into” a constructive trust, invalidation of the lis pendens necessarily
requires reversal.
Southside has argued that attacking the lis pendens in this case amounts to an
improper collateral attack on the Southside-Bella Terra suit agreed judgment. Based
on the premise that Tusker is pursuing a collateral attack, Southside says that such
an attack must fail for lack of a showing that the agreed judgment had a jurisdictional
flaw of the type that courts normally think of in connection with collateral attacks.
23
See, e.g., PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 272 (Tex. 2012) (stating that
void judgments can be collaterally attacked at any time).
We acknowledge the argument but ultimately find the premise unpersuasive.
Southside argues that Tusker did not intervene in the Southside-Bella Terra suit, but
equally true is the fact that Southside could have added Tusker to that suit and chose
not to. The parties in the Southside-Bella Terra suit instead filed an “agreed
judgment” that purported to create a constructive trust on the property. They filed
this agreed judgment months after Tusker foreclosed on the property and secured a
deed of trust.5 Tusker was not a party to the Southside-Bella Terra suit in which the
agreed judgment was entered. As such, even if the agreed judgment was final, it was
final only as to Bella Terra and Southside, and Southside could not use it as a sword
by seeking to enforce against Tusker—a stranger to the judgment. Tusker was thus
at liberty to challenge Southside’s claim of superior right to the property in this suit.
Contrary to Southside’s argument, such a challenge is not a collateral attack on the
agreed judgment.
As we stated in Herrera v. Sunbelt Rentals, Inc., “not every action implicating
a prior judgment is an attack on that judgment.” No. 01-22-00793-CV, 2024 WL
5
On the date the trial court entered the agreed judgment—June 14, 2023—Bella Terra
no longer had interest in the property because Tusker had already foreclosed on the
property and obtained a deed of trust. It is thus questionable whether Bella Terra
had a right to convey any interest in the property when the agreed judgment was
entered. In light of our disposition, we need not decide this issue.
24
1513879, at *9 (Tex. App.—Houston [1st Dist.] Apr. 9, 2024, pet. denied) (mem.
op.). A litigant’s assertion that it is not bound by a prior judgment because it was not
a party to the underlying action is not a collateral attack. Id. at *10. Although the
agreed judgment between Southside and Bella Terra may be perfectly valid as
between the two of them, their agreed judgment does not ipso facto bind one such
as Tusker, who was neither a party nor in privity with a party.6 Id. (“If, as Francisco
alleges, he was not a party to the 2018 Lawsuit, then the default judgment is not
binding on Francisco or enforceable against him.”); Avila v. St. Luke’s Lutheran
Hosp., 948 S.W.2d 841, 854 (Tex. App.—San Antonio 1997, pet. denied) (stating
that agreed judgment is contractual in nature and “in effect is a written agreement
between the parties as well as an adjudication,” but it is binding only on parties to
agreement and not on any other party unless other party is bound under doctrine of
virtual representation); see Perdido Props. LLC ex rel. Bremer v. Devon Energy
Prod. Co., 669 S.W.3d 535, 547 (Tex. App.—Eastland 2023, pet. denied) (“[O]ne
not before the court cannot be bound by any judgment entered.”) (quoting Avila, 948
S.W.2d at 855).
6
Similarly, equitable remedies bind only the parties to the suit. Braxton Mins. III,
LLC v. Bauer, 735 S.W.3d 688, 701 (Tex. 2026) (“Equitable remedies operate in
personam, meaning they bind only the parties to a suit, not the world.” (quotation
omitted)); KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 87 (Tex. 2015) (“A
constructive trust is an equitable, court-created remedy designed to prevent unjust
enrichment.”).
25
On cross-motions for summary judgment, when the trial court grants one
motion and denies the other, we determine all questions presented and render the
judgment the trial court should have rendered. Jordan, 659 S.W.3d at 684. The
summary judgment record includes evidence that Bella Terra gave Tusker a deed of
trust to the property on August 19, 2022, that Bella Terra defaulted on its contractual
obligations to Tusker, and that Tusker foreclosed on its deed of trust and obtained
and filed a Trustee’s Deed to the property on December 16, 2022. This evidence
establishes as a matter of law that Tusker had a superior interest in the property.
We therefore hold that the trial court erred by granting Southside’s motion for
summary judgment and denying Tusker’s motions.
Conclusion
We reverse the trial court’s final judgment and render judgment that Southside
take nothing on its claims. We further render judgment in favor of Tusker declaring
that the lis pendens on the Westview property is and was invalid.
David Gunn
Justice
Panel consists of Justices Rivas-Molloy, Gunn, and Caughey.
26