Financial Center, Inc. v. The State of Texas, The Teachers Retirement System of Texas, TRST Corpus, Inc., and Charles Dunlap--Appeal from 334th District Court of Harris County

Affirmedand Opinion filed September 26, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00553-CV

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FINANCIAL CENTER, INC., Appellant

V.

THE STATE OF TEXAS, THE TEACHER RETIREMENT SYSTEM OF TEXAS, TRST CORPUS, INC., and CHARLES DUNLAP, Appellees

On Appeal from the 334th District Court

Harris County, Texas

Trial Court Cause No. 94-61597

O P I N I O N

Financial Center, Incorporated ( FCI ), appeals the entry of judgment dismissing its claims against the State of Texas ( State ), the Teacher Retirement System of Texas ( TRS ), TRST Corpus, Incorporated ( TRST ), and Charles L. Dunlap. We affirm.

This appeal concerns events occurring in the trial court following our November 18, 1999 decision in TRST Corpus, Inc. v. Financial Center, Inc., 9 S.W.3d 316 (Tex. App.CHouston [14th Dist.] 1999, pet. denied). In that judgment, we reversed the trial court s order denying TRST s plea to the jurisdiction and remanded with instructions to enter an order dismissing FCI s claims against TRST for lack of jurisdiction. FCI filed a petition for review to the Texas Supreme Court which was denied on February 1, 2001. Our mandate of reversal issued March 2, 2001.[1]

Subsequently, on March 23, 2001, FCI filed a Seventh Amended Original Petition wherein, amongst other claims, it alleged State, TRS, TRST, and Dunlap had acted with the specific intent to take its property for public use. Shortly thereafter, the trial court entered an order dismissing FCI s claims against appellees. The State, TRS, TRST, and Dunlap then moved to dismiss the claims made by FCI in its Seventh Amended Original Petition. That motion was granted on April 20, 2001.

On appeal, FCI contends its Seventh Amended Original Petition corrected a purported pleading defect we identified in our November 18, 1999 opinion, and thus it was error for the trial court to dismiss the claim. Further, FCI avers sections of our prior opinion were erroneous, and urges reconsideration.

When an appellate court renders the judgment the trial court should have rendered, upon issuance of its mandate, the trial court must carry out the mandate of the appellate court. Cook v. Cameron, 733 S.W.2d 137, 139 (Tex. 1987); Dallas County v. Sweitzer, 971 S.W.2d 629, 630 (Tex. App.CDallas 1998, no pet.). The trial court has the limited ministerial duty to execute any orders that may be necessary to give effect to our mandate. Tex. R. App. P. 51.1; Sweitzer, 971 S.W.2d at 630 (recognizing [t]he district court has no jurisdiction to review or interpret . . . the judgment as it was framed by the appellate court ).

Our judgment of November 18, 1999 dismissed the cause for lack of jurisdiction and our mandate of March 2, 2001 commanded the trial court to observe that judgment. Nonetheless, despite being filed thereafter, FCI avers the trial court was permitted to consider its Seventh Amended Original Petition. After our mandate issued dismissing the cause, however, the trial court could only enforce our judgment and follow our mandate. Id. Accordingly, the trial court did not err in dismissing FCI s cause of action.

Shortly after filing notice of appeal FCI, also filed a notice of lis pendens in Nueces County. The appellee requests that we cancel the lis pendens. The lis pendens statute provides persons litigating title to property with a mechanism to give constructive notice to all those taking title to the property that the claimant is litigating a claim against the property. Mangione v. Jaffe, 61 S.W.3d 591, 592 (Tex. App.CSan Antonio 2001, pet. dism d). A lis pendens has no existence separate and apart from the litigation of which it gives notice. Taliaferro v. Smith, 804 S.W.2d 548, 550 (Tex. App.CHouston [14th Dist.] 1991, no pet.). Because no pending cause of action exists now, or at any time since the issuance of our mandate, the lis pendens filed by appellant is void.

The trial court s order of dismissal is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Opinion filed September 26, 2002.

Panel consists of Chief Justice Brister and Justices Hudson and Fowler.

Do Not Publish C Tex. R. App. P. 47.3(b).

[1] The trial court had earlier dismissed TRS and the State from the suit on the basis of sovereign immunity B that determination was not appealed.