author: JOHN CAYCE, Chief Justice.

text:
    In re Burk COLLINS, Fountain Mall, Inc., and Mall Group, Ltd., Relators.
    No. 2-05-192-CV.
    Court of Appeals of Texas, Fort Worth.
    Aug. 26, 2005.

      Kelly, Hart and Hallman, P.C., Dee J. Kelly, Jr., Brian S. Stagner, John T. Wilson, IV, Fort Worth, for Relators.
    Thompson & Knight, L.L.P., Debora B. Alsup, Austin, Jennifer P. Henry, Fort Worth, for Real Party In Interest.
    Panel A: CAYCE, C.J.; GARDNER and WALKER, JJ.
   OPINION

JOHN CAYCE, Chief Justice.

Introduction

In this original proceeding challenging the trial court’s grant of a motion to void a lis pendens, the primary issue we must resolve is whether, in deciding the motion, the trial court was required to look solely to the pleadings of the party who filed the notice of lis pendens to determine whether the party is claiming a direct or collateral interest in the real property at issue, or whether the trial court could look beyond the pleadings and consider evidence relevant to the question of whether the party’s alleged property interest is direct or collateral. Because we hold that the trial court could consider such evidence and was, in fact, required to do so in this case, but that the trial court should have denied the motion because the evidence raises a fact issue regarding the nature of the alleged property interest, we conditionally grant the writ of mandamus.

Background Facts and Procedural History

Relators Burk Collins (an individual), Fountain Mall, Inc., and Mall Group, Ltd. (collectively, the Collins parties) are defendants and third-party plaintiffs in the underlying lawsuit. Michael Kest and the real party in interest, Tex Mall, L.P., are third-party defendants below.

Collins and Kest are former business partners. Together, they and entities owned or controlled by them, including Fountain Mall and Mall Group, formed a partnership known as North Hills Creek Mall, L.P. (Creek Mall). Creek Mall owned and operated a shopping center in North Richland Hills, Texas known as North Hills Mall (the Mall).

In 2003, Creek Mall breached certain loan covenants with its lender, and the lender foreclosed on the Mall property. Several months before the foreclosure, on March 28, 2003, Kest and Collins entered into a Memorandum of Understanding (MOU) under which KCT Richland, a Kest affiliate, agreed to provide short-term capital for Creek Mall in exchange for promises from Collins. Among those promises was an agreement that the Collins parties would not oppose the foreclosure, if it occurred, that Kest could do “whatever [he] wish[ed] regarding the Mall,” and that the parties would arbitrate any disputes over the terras of the MOU before the American Arbitration Association (AAA) in Los Angeles, California.

The Collins parties assert that, in further consideration for Collins’s promises in the MOU, Kest agreed to convey a 50 percent interest in the Mall property back to him if the property went into foreclosure. The Collins parties concede, however, that the MOU does not contain this term. Collins acknowledges that he signed the MOU knowing that it lacked this term, but he contends his signature was subject to a separate memorandum, also dated March 28, 2003, in which he informed Kest that the MOU was “null and void” unless Kest agreed to the above-stated reconveyance in the event of foreclosure.

The Mall property was foreclosed in Tarrant County in October 2003, and Tex Mall, a company Kest had formed, purchased the property. After the foreclosure, Kest did not give Collins an interest in the Mall property. The Collins parties contend that, since the foreclosure, Kest, through Tex Mall, has owned and operated the Mall.

In January 2004, Kest sought and obtained an order from the trial court compelling arbitration of the parties’ disputes. Although arbitration was initiated, numerous related disputes and problems apparently arose.

In June 2004, Fountain Mall and Mall Group filed a third-party petition in the trial court against Tex Mall and Kest. The third-party petition asserts claims of fraud, conspiracy to commit fraud, breach of fiduciary duty, and conspiracy to breach fiduciary duty. The third-party plaintiffs also seek a declaratory judgment that they own a 50 percent interest in the Mall property or Tex Mall. In addition, they seek money damages and a constructive trust on 50 percent of the Mall property.

In conjunction with the third-party petition, the Collins parties filed a notice of lis pendens in the Tarrant County Real Property Records. Tex Mall and Kest both filed pleas in abatement, asking the trial court to abate the third-party suit until completion of the arbitration proceeding in Los Angeles. Nothing further happened in the trial court or the arbitration proceeding until April 29, 2005, when Tex Mall moved to void the Collins parties’ lis pendens.

Meanwhile, Tex Mall had begun efforts to develop the Mall property. In anticipation of completing certain real estate transactions, Tex Mall discovered the Collins parties’ lis pendens. In its motion, Tex Mall contends that the lis pendens is improper because title to land is not disputed in the third-party lawsuit and the suit does not seek to enforce an encumbrance on land. In support of its motion, Tex Mall asked the trial court to take judicial notice of certain documents.

After a hearing, on May 25, 2005, the trial court granted both the motion to void the lis pendens and the request for judicial notice. The Collins parties seek an order directing the trial court to vacate the May 25 order voiding the lis pendens. We have stayed that order pending the outcome of this original proceeding.

Issues

The Collins parties complain of the trial court’s granting of Tex Mall’s motion to void lis pendens on two grounds:

1. The trial court abused its discretion by looking beyond the pleadings and hearing evidence on the nature of the Collins parties’ claimed interest in the Mall property.
2. Alternatively, the trial court abused its discretion by refusing to refer the motion to void the lis pendens to arbitration in Los Angeles.

Standard of Review

In deciding whether a writ of mandamus is appropriate, we recognize that mandamus will issue only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy at law. Absent extraordinary circumstances, mandamus will not issue unless the relator lacks an adequate appellate remedy.

A trial court clearly abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. With respect to the resolution of factual issues or matters committed to the trial court’s discretion, we may not substitute our judgment for that of the trial court unless the relator establishes that the trial court reasonably could have reached only one decision and that the trial court’s decision is arbitrary and unreasonable. This burden is a heavy one. Our review is much less deferential with respect to a trial court’s determination of the legal principles controlling its ruling because a trial court has no discretion in determining what the law is or in applying the law to the facts, even when the law is unsettled. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion and may result in mandamus.

Lis Pendens

The lis pendens statute gives litigants a method to constructively notify anyone taking an interest in real property that a claim is being litigated against the property. A notice of lis pendens may be filed 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. “A recorded lis pendens is notice to the world of its contents,” regardless of whether service has been made on the parties to the proceeding.

If a notice of lis pendens satisfies the requirements of section 12.007, the trial court may not cancel it except as provided in section 12.008. The trial court in this case did not cancel the lis pendens in accordance with section 12.008; therefore, if the lis pendens complies with section 12.007, the trial court’s order granting Tex Mall’s motion is improper.

To satisfy section 12.007, the suit on which the lis pendens is based must claim a direct interest in real property, not a collateral one. In other words, the property against which the lis pendens is filed must be the subject matter of the underlying lawsuit. If the suit seeks a property interest only to secure the recovery of damages or other relief that the plaintiff may be awarded, the interest is merely collateral and will not support a lis pendens.

The parties disagree over what a trial court may consider in determining whether a suit involves a claim to a direct interest in property and, therefore, complies with section 12.007. The Collins parties assert that the trial court must limit its review to the pleadings of the party who filed the lis pendens. Tex Mall, on the other hand, contends that the trial court may look beyond the pleadings and consider evidence relevant to the question of whether the party’s alleged interest in the property is direct or collateral.

The courts of appeals that have addressed this question appear to be split. The First Court of Appeals has held that the validity of a lis pendens must be determined based on the pleadings alone. At least two other courts of appeals have followed the First Court. Three of our sister courts, however, allow evidence to be considered in determining whether a lis pendens is improper.

In resolving this issue, we find the supreme court’s analysis in cases involving pleas to the jurisdiction instructive. The supreme court has held that when a plea to the jurisdiction challenges the pleadings, the trial court looks to the pleadings to determine if facts have been alleged that affirmatively demonstrate the court’s jurisdiction to hear the case. If, however, a plea to the jurisdiction challenges the existence of jurisdictional facts, the trial court considers relevant evidence submitted by the parties to resolve the jurisdictional issues raised. The trial court must not weigh the merits of the plaintiffs claims, but must confine itself to the evidence relevant to the jurisdictional issue.

When the jurisdictional challenge implicates the merits of the plaintiffs’ cause of action, the court reviews the evidence relevant to the jurisdictional issue to determine if a fact issue exists. If the evidence raises a fact question regarding the jurisdictional issue, the trial court must deny the plea to the jurisdiction, and the fact issue must be resolved by the fact finder. If, however, the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law.

Applying these principles to the determination of a motion seeking the removal of a lis pendens, we hold that when the motion challenges the pleadings supporting the lis pendens, the trial court should examine the pleadings to determine whether the pleader has alleged facts that affirmatively demonstrate that the lis pen-dens is proper. If, however, a motion seeking the removal of a lis pendens challenges the existence of facts supporting the pleader’s alleged interest in the property, the trial court should consider evidence relevant to the question of whether the alleged property interest is direct or collateral. In so doing, the trial court must not decide the merits of the parties’ claims, but must confine itself to the evidence relevant to the issue of whether the alleged property interest is direct or collateral.

If the evidence raises an issue of fact regarding whether the alleged property interest is a direct interest, the motion should be denied and the issue must be resolved by the fact finder. If, however, the relevant evidence is undisputed, or fails to raise a fact question concerning the true nature of the alleged property interest, the trial court should rule on the validity of the lis pendens as a matter of law. We believe this rule strikes the necessary balance between protecting the plaintiffs asserted interest in the property, on the one hand, and protecting the property owner from the adverse effects of a lis pendens that is based on a sham pleading, on the other, without depriving the parties of the right to present the merits of their case at trial.

We will now review the record in this case to determine whether the trial court abused its discretion in granting Tex Mali’s motion to void the Collins parties’ lis pendens under this standard.

The third-party petition contains the following allegations:

In furtherance of his plan to purchase the North Hills Mall property at foreclosure, Kest convinced Collins to sign a Memorandum of Understanding (“MOU”).
Kest has committed fraud against Third-Party Plaintiffs by making promises and assurances that, after the foreclosure sale, Burk Collins would own a 50% interest in TEX MALL and the North Hills Mall property. In reliance upon these representations, Collins entered into the MOU, expended substantial funds, and allowed his interest in [Creek Mall] to be sold at foreclosure sale. These representations have caused injury to Collins and the Third-Party Plaintiffs including a loss of a 50% interest in [Creek Mall] and the North Hills Mall property.
TEX MALL has committed fraud against Third-Party Plaintiffs through the representations of its agent, and alter ego, Michael Kest. Specifically, Kest made repeated promises and assurances to Burk Collins and Third-Party Plaintiffs, that after the foreclosure sale, Burk Collins would own a 50% interest in TEX MALL and the North Hills Mall property.
TEX MALL conspired with Third-Party Defendant Michael Kest, to commit fraud on Third-Party Plaintiffs. Specifically, by purchasing the North Hills Mall property at a much-reduced price, TEX MALL benefited from the fraud committed by Michael Kest on Third-Party Plaintiffs.
Subsequent to the foreclosure sale, Collins has been repeatedly denied any interest in TEX MALL or the North Hills Mall property.
Third-Party Plaintiffs seek money damages as well as a constructive trust on at least 50% of the North Hills Mall property.
[T]he Court should declare that Third-Party Plaintiffs shall own an interest equal to at least 50% in either the North Hills Mall property or TEX-MALL.

On the face of these pleadings, the Collins parties undoubtedly claim a direct interest in the Mall property. Tex Mali’s motion to void the lis pendens, however, challenges the existence of facts supporting the Collins parties’ alleged direct interest in the property. Specifically, Tex Mall asserts that the evidence conclusively shows the Collins parties have no valid claim to a direct interest in the Mall property, but -only an interest in the now-dissolved Creek Mall partnership. In addition, Tex Mall argues that the Collins parties lack standing to assert an interest in the Mall property because the property belonged to the Creek Mall partnership, not to the Collins parties.

As Tex Mall contends, there is evidence in the record that the Collins parties never owned a direct interest in the Mall property. For example, the Creek Mall limited partnership agreement provided that Creek Mall, not the Collins parties or the other partners, owned the Mall property. Creek Mali’s ownership was also evidenced by two deeds of conveyance. In addition, the MOU specifically granted Kest “the right to do whatever [he] wish[ed] regarding the Mall, including without limitation” to purchase the Mall property at a foreclosure sale, and expressly waived the Collins parties’ right to acquire an interest in the Mall property at a trustee’s sale. Moreover, the Collins parties concede that the MOU does not give them an ownership interest in the Mall property.

This evidence, however, is controverted by other evidence showing that the Collins parties may have owned a direct interest in 50 percent of the Mall property by virtue of their former interest in Creek Mall and the partnership agreement’s in-kind distribution provision. In addition, a March 25, 2003 memo from Collins to Kest, which predates the MOU by three days, states, in pertinent part,

Mike:
We need to draw up an Agreement today that reflects the understanding you and I have going forward with the North Hills Mall (“Mall”). The following is my understanding:
5. In the event Michael Kest or any of his entities purchase the Mall note or purchase the property at foreclosure then Burk Collins will retain all of his ownership in the Mall property. ... [Emphasis supplied.]

The word “NO” is handwritten next to paragraph 5. Kest testified that he made this notation because he interpreted the paragraph as Collins saying that “he [Collins] would retain 50 percent ownership of the Mall property going forward in case there was a foreclosure, and I said no.” [Emphasis supplied.] This is some evidence that Kest believed Collins had an interest in the Mall property when Collins signed the MOU.

Further, the Collins parties rely on the March 28 memorandum that Collins purportedly sent to Kest with the signed MOU, which states,

I [Collins] understand the problem you have with your family and do not want our understanding put in the base Agreement. However, I want an understanding that we have an agreement that if [events do not occur to keep the Mall property out of foreclosure] and you decide to foreclose or acquire the Mall property off the Courthouse steps that you will give me back my 50% interest after foreclosure. This Memo is a condition to my signature on the Memo of Understanding. If you do not agree then the document is null and void. [Emphasis supplied.]

In sum, we believe that the evidence presented to the trial court raises a fact issue on the question of whether the Collins parties have a direct interest in the Mall property, as they allege in their pleadings. Accordingly, we hold that the trial court clearly abused its discretion by granting Tex Mall’s motion to void the lis pendens.

Inadequate Remedy at Law

We must now consider whether the Collins parties have an adequate remedy by appeal.

It is well settled that mandamus is the appropriate remedy when issues arise concerning the propriety of a notice of lis pendens. In this case, the trial court’s order voiding the Collins parties’ lis pendens renders them unable to protect their alleged interest in the Mall property during the pendency of their third-party lawsuit. The trial court’s order is not conditioned on Tex Mali’s payment of a monetary deposit or the giving of an undertaking to protect the Collins parties, and given Tex Mall’s plans to develop the Mall property, an appeal of the lis pendens ruling following trial on the merits of the third-party claims would be wholly inadequate. Accordingly, we hold that the Collins parties lack an adequate remedy by appeal.

Conclusion

Having determined that the trial court clearly abused its discretion in granting Tex Mall’s motion to void the lis pendens, and that the Collins parties have no adequate remedy by appeal, we lift our stay of the trial court’s May 25, 2005 order granting Tex Mali’s motion to void the Collins parties’ lis pendens and conditionally grant a writ of mandamus directing the trial court to vacate that order. Because we are confident that the trial court will enter the appropriate order, our writ will issue only if the court fails to do so.

      . Collins owns Fountain Mall, Inc. and Mall Group, Ltd. Kest owns or controls Tex Mall, as well as KCT Richland, LP, a California limited partnership, and the Kest Children's Trust.

      .The MOU actually gives this right to the "Kest-Constituents,” which include Kest, individually and as trustee of the Kest Children’s Trust, KCT Richland, and several other companies, partnerships, and individuals. Because the identities or existence of these other individuals and entities do not affect our disposition of this original proceeding, we refer to them simply as "Kest.”

      . Initially, Tex Mall also indicated its willingness to participate in arbitration, despite its position that it was not bound by the MOU’s arbitration provision. Since this original proceeding was filed, however, Tex Mall has withdrawn its plea in abatement and stated that it is no longer willing to participate in arbitration.

      . Those documents include (1) the Creek Mall partnership agreement; (2) two deeds conveying the Mall property to Creek Mall; (3) a March 25, 2003 memo from Collins to Kest (not to be confused with the March 28 memo from Collins to Kest); (4) the MOU; (5) the third-party petition; and (6) the notice of lis pendens.

      . In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.2004); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig.proceeding).

      . In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 210-11 (Tex.2004).

      . Walker, 827 S.W.2d at 839.

      . Id. at 839-40.

      . Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex.1994) (orig.proceeding).

      . Prudential Ins. Co., 148 S.W.3d at 135; Walker, 827 S.W.2d at 840.

      . Walker, 827 S.W.2d at 840.

      . Garza v. Pope, 949 S.W.2d 7, 8 (Tex.App.San Antonio 1997, orig. proceeding); King v. Tubb, 551 S.W.2d 436, 444 (Tex.Civ.App.-Cor-pus Christi 1977, no writ).

      . Tex. Prop.Code Ann. § 12.007(a) (Vernon 2004).

      . Id. § 13.004.

      . A properly filed lis pendens can only be cancelled conditioned on the payment of a monetary deposit or the giving of an undertaking that will adequately protect the party who filed the lis pendens. Id. § 12.008(a); see also In re Kroupa-Williams, No. 05-05-00375-CV, 2005 WL 1367950, at *4 (Tex. App.-Dallas June 10, 2005, orig. proceeding)(mem.op); Hughes v. Houston Northwest Med. Ctr., 647 S.W.2d 5, 7 (Tex.App.-Houston [1st Dist.] 1982, writ dism’d) (the latter applying predecessor to sections 12.007-008).

      . See Tex. Prop.Code Ann. § 12.007(a); see also Kroupa-Williams, 2005 WL 1367950, at ⅜3 (holding that claim of community property interest in real property in divorce proceeding was sufficient to support lis pendens); In re Fitzmaurice, 141 S.W.3d 802, 805 (Tex.App.Beaumont 2004, orig. proceeding) ("Those cases in which lis pendens has been disallowed are those in which the subject property is collateral to the litigation.”).

      . See Moss v. Tennant, 722 S.W.2d 762, 763 (Tex.App.-Houston [14th Dist.] 1986, orig. proceeding); see also Hughes, 647 S.W.2d at 7 (holding that lis pendens was proper when filed against partnership-owned property in suit by partner that alleged contract for sale of property had been procured by fraud).

      . See, e.g., Flores v. Haberman, 915 S.W.2d 477, 478 (Tex.1995) (orig.proceeding) (holding that if the plaintiffs seek a constructive trust only to satisfy a judgment that they might obtain against the defendant, "the interest is no more than a collateral interest in the property,” and the lis pendens is void); In re Med Plus Equity Inv., LP, No. 05-05-00404-CV, 2005 WL 1385238, at *1 (Tex. App.-Dallas June 13, 2005, orig. proceeding) (mem.op.) (holding that suit for interest in partnership will not support lis pendens); Moss, 722 S.W.2d at 763; Helmsley-Spear of Tex., Inc. v. Blanton, 699 S.W.2d 643, 645 (Tex.App.-Houston [14th Dist.] 1985, orig. proceeding) (both holding that suits seeking lien against real property to secure recovery of damages for fraud and breach of lease, respectively, will not support lis pendens).

      . See In re Mousa, No. 01-04-00485-CV, 2004 WL 2823172, at *1-2 (Tex.App.-Houston [1st Dist.] Dec. 9, 2004, orig. proceeding) (mem.op.); First Nat’l Petro. Corp. v. Lloyd, 908 S.W.2d 23, 25 (Tex.App.-Houston [1st Dist.] 1995, orig. proceeding); Hughes, 647 S.W.2d at 6.

      . See In re Med Plus Equity Inv., 2005 WL 1385238, at *1; In relamail, 156 S.W.3d 104, 107 (Tex.App.-Austin 2004, orig. proceeding)(mem.op.).

      . See In re Wolf, 65 S.W.3d 804, 805 (Tex.App.-Beaumont 2002, orig. proceeding) (rejecting plaintiffs’ argument that expressly requesting and praying for an interest in real property was sufficient to support lis pen-dens); Francis v. Sterling, 45 S.W.3d 194, 196 (Tex.App.-Tyler 2001, no pet.) (holding that plaintiff lacked statutory authority to file lis pendens in case in which title to subject property had been litigated to final judgment seven months before lis pendens was filed); Khraish v. Hamed, 762 S.W.2d 906, 909 (Tex.App.-Dallas 1988, writ denied) (holding that lis pendens filed against property that was not subject of loan agreement at issue in suit was improper). We note that decisions from the Dallas court have come down on both sides of this issue. Compare Med Plus Equity Inv., 2005 WL 1385238, at *1 (limiting scope of review to pleadings) with Khraish, 762 S.W.2d at 909 (considering pleadings and evidence).

      . Tex. Dep’t of Parles & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004); Tex Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993).

      . Bland ISD v. Blue, 34 S.W.3d 547, 555 (Tex.2000).

      . County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002); Bland ISD, 34 S.W.3d at 555.

      . Miranda, 133 S.W.3d at 227.

      . Id. at 227-28.

      . Id. at 228.

      . In conducting this examination, the trial court should construe the pleadings liberally in favor of the plaintiff and look to the pleader's intent. See id. at 226. If the pleadings do not contain sufficient facts to affirmatively demonstrate the propriety of the lis pendens, the plaintiffs should be afforded the opportunity to amend before the court rules on the motion. See id. at 223-27. If the pleadings affirmatively negate the existence of facts supporting the lis pendens, then the motion to remove the lis pendens may be granted without allowing the plaintiffs an opportunity to amend. See id. at 227; see also Flores, 915 S.W.2d at 478 (lis pendens declared void as a matter of law because plaintiffs alleged in their pleadings "no more than a collateral interest in the property”).

      . See, e.g., Prappas v. Meyerland Cmty. Improvement Ass’n, 795 S.W.2d 794, 795 (Tex.App.-Houston [14th Dist.] 1990, writ denied) (noting that filing of lis pendens resulted in failure of real estate transaction); Ransopher v. Deer Trails, Ltd., 647 S.W.2d 106, 108 (Tex.App.-Houston [1st Dist.] 1983, no writ) (stating that lis pendens notice may prevent party from selling or using the property while underlying suit is pending); King, 551 S.W.2d at 443-44; Black v. Burd, 255 S.W.2d 553, 555 (Tex.Civ.App.-Fort Worth 1953, writ ref’d n.r.e.) (both stating that ultimate effect of lis pendens is to prevent either party to litigation from alienating property that is in dispute).

      . The Creek Mall limited partnership agreement contained the following provision:

        Partnership Property shall he deemed to be owned by the Partnership as an entity, and no Partner, individually or collectively, shall have any ownership interest in such Partnership Property or any portion thereof. Title to any or all Partnership Property may be held in the name of the Partnership. [Emphasis supplied.]

      . Although Tex Mall contends that the Creek Mall partnership agreement "grant[ed] no ... right” to anything except a cash distribution, the partnership agreement contained an in-kind distribution provision. This provision states:

        Section 13.4. Distribution of Partnership Property and Proceeds of Sale Thereof.

      A. Order of Distribution. Upon completion of all desired sales of Partnership Property, and after payment of all selling costs and expenses, the Liquidator shall distribute the proceeds of such sales, and any Partnership Property that is to be distributed in kind. ... [Emphasis supplied.]

      . Tex Mall contends that the parole evidence rule, the statute of frauds, and the merger doctrine "render ineffectual” any claim that the Collins parties have based on this memo, because the memo predates the signing of the MOU. The parole evidence challenge is not preserved for our review because the trial court did not rule on the admissibility of the memo at the lis pendens hearing. See Tex R.App. P. 33.1(a)(2) (providing complaint is not preserved unless both objection and ruling appear in record). We decline to address Tex Mali’s statute of frauds and merger arguments because they would require us to decide the merits of the parties’ claims. Our determination of whether facts exist to support the Collins parties’ claim to a direct interest in the Mall property is confined to the evidence relevant to this issue.

      . See Flores, 915 S.W.2d at 477-78; First Nat’l Petro. Corp., 908 S.W.2d at 24-25.

      . See Tex. Prop.Code Ann. § 12.008(a).

      . See Prudential Ins. Co., 148 S.W.3d at 135—36; Van Waters & Rogers, 145 S.W.3d at 210-11; Walker, 827 S.W.2d at 839.

      . In light of our disposition of the Collins parties' first issue, we need not consider their alternative issue based on arbitration. See TexJR.App. P. 47.1.


source: Caselaw Access Project

author: Opinion by Chief Justice MORRISS.

license: Public Domain

text:
    Daniel ALVAREZ and Wife, Fern Alvarez, Appellants, v. Michael P. THOMAS, M. D., Michael P. Thomas, M.D., P.A., and Gulf Coast Infectious Disease Associates, P.C., Appellees.
    No. 06-05-00006-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted May 24, 2005.
    Decided Aug. 26, 2005.

      Thomas J. Sibley, Thomas J. Sibley, PC, Beaumont, for appellants.
    J. Gregory Myers, Rebecca E. Passman, Kroger, Myers, Frisby & Hirsch, Houston, for appellees.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by Chief Justice MORRISS.

More than 180 days had passed since Daniel Alvarez originally filed his healthcare liability lawsuit against Michael P. Thomas, M.D., and Alvarez had neither filed an expert report — as required by Article 4590i, Section 13, of the Texas Revised Civil Statutes — addressing Thomas’ actions, nor sought or received any extension of time to file such a report. So, on March 22, 2004, Thomas mailed to the district clerk a motion to dismiss Alvarez’s petition for failure to file the expert report. That would have entitled Thomas to a dismissal, with prejudice, of Alvarez’s suit against him, unless Alvarez effectively nonsuited his claims against Thomas before Thomas filed his motion to dismiss.

In fact, on March 23, Alvarez hand filed his fourth amended petition — which, because it dropped Thomas from the list of defendants, was effectively a nonsuit of Thomas. Thomas’ motion to dismiss, mailed March 22, was not received and file marked by the clerk until March 25. The trial court ultimately granted Thomas’ motion and dismissed Alvarez’s claim with prejudice. This appeal followed. We affirm.

The parties in their briefs to this Court, and to the trial court, have based their motion-to-dismiss dispute entirely on the “mailbox rule.” See Tex.R. Civ. P. 5. Thomas contends that, under Rule 5, his motion to dismiss is deemed filed March 22, because he proved it was “deposited in the mail ... before” Alvarez’s fourth amended petition was filed, and that the motion was received by the appropriate clerk’s office no later than ten days after Alvarez’s pleading. Thomas successfully argued to the trial court, and argues to this Court, that, therefore, he is entitled to a dismissal with prejudice of Alvarez’s suit. Alvarez responds that Thomas did not adequately prove when Thomas mailed his motion, so the dismissal was filed March 25, two days after his nonsuit. Alvarez argued to the trial court, and argues to us, that the dismissal was filed after the fourth amended petition, and that, therefore, Alvarez should be free of the dismissal with prejudice ordered by the trial court.

We hold that Rule 5’s “mailbox rule” does not apply where there is no preset deadline for filing a document, so Alvarez actually filed his nonsuit before Thomas filed his motion to dismiss. But, because Alvarez did not present Rule 5’s nonap-plicability to the trial court, he did not preserve error. Therefore, we affirm the trial court’s dismissal of Alvarez’s action with prejudice.

Rule 5 is titled “Enlargement of Time.” It applies “[w]hen by [the rules of civil procedure] or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time,” and the portion of the rule argued here provides:

If any document is sent to the proper clerk by first-class United States mail ... properly addressed and stamped and is deposited in the mail on or before the last day for filing same, the same, if received by the clerk not more than ten days tardily, shall be filed by the clerk and deemed filed in time. A legible postmark affixed by the United States Postal Service shall be prima facie evidence of the date of mailing.

Tex.R. Civ. P. 5 (emphasis added). Therefore, Rule 5 explicitly allows a party to meet a specified fifing deadline by mailing a document for fifing “on or before the last day for fifing same”; and, if the document is received by the clerk within ten days, it is “deemed filed in time.” Id. The plain wording of the rule makes it applicable to filings for which there is a time limitation or a deadline. In other words, a litigant can meet the timeliness requirement by mailing the pleading in a timely manner, rather than delivering it to the appropriate clerk’s office.

Not only does the rule clearly indicate that it applies only to filings that have deadlines, this Court has previously held that the “mailbox rule” does not enlarge the time for fifing a document unless a deadline has been imposed. Smith v. Tex. Dep’t of Criminal Justice—Inst. Div., 33 S.W.3d 338, 341 (Tex.App.-Texarkana 2000, pet. denied). In Smith, this Court held that the “mailbox rule” did not apply to an inmate’s document mailed three days before the entry of an order of dismissal, since no deadline was imposed for fifing the document. Id.

The San Antonio Court of Appeals has similarly held that “Rule 5 does not deem a motion filed on the date it is placed in the mail when no filing deadline is involved.” In re Hearn, 137 S.W.3d 681, 687 (Tex.App.-San Antonio 2004, no pet.). There it was determined that an order to pay costs was not void even though it was entered after a motion to recuse the judge was mailed. The motion to recuse was not deemed filed when mailed because there was no deadline for filing the motion.

In a medical malpractice case, the healthcare provider may move for a dismissal if the plaintiff does not timely file the required expert report. The Texas Supreme Court has specifically held there is no statutory deadline to file such a motion to dismiss. See Jemigan v. Langley, 111 S.W.3d 153, 156 (Tex.2003). In Jemigan, the defendant waited almost two years to move to dismiss the case and, during that time, participated in discovery, filed a motion for summary judgment on other grounds, and filed other pleadings. None of that constituted a waiver of the right to move for a dismissal for plaintiffs failure to comply with the medical report requirement. Id. It is clear that no deadline applied to Thomas’ right to move for a dismissal.

If this issue had been properly presented, we would hold that Rule 5 does not apply to the motion to dismiss, as there was no preset deadline for its filing. Therefore, Alvarez’s filing of his nonsuit predated Thomas’ filing his motion to dismiss, and the dismissal would have been error. But the parties did not argue this point to the trial court or to this Court. It would be improper to conclude the trial court erred on an issue that was not presented to it. See Tex.R.App. P. 33.1. Alvarez waived the nonapplicability of Rule 5 by not presenting it to the trial court. Therefore, we must affirm the dismissal.

Even if Rule 5 were applicable, as the parties presented this matter to the trial court, the dismissal should be affirmed. Applying Rule 5, the trial court did not abuse its discretion in dismissing Alvarez’s suit; indeed, in light of the un-controverted evidence that Thomas mailed his motion to dismiss March 22, the clear language of Article 4590i would have compelled such dismissal. See Tex.Rev.Civ. Stat. art. 4590i, § 13 (repealed 2003).

Alvarez argues that the envelope in which Thomas’ pleading was mailed does not bear a postmark of the United States Postal Service. Regardless of the truth of that assertion, there is no contention Thomas’ pleading was delivered via private carrier. Counsel for Thomas represented at the hearing in the trial court, and reiterated in her affidavit, that the motion to dismiss was placed in the United States mail March 22, 2004, postage prepaid. Likewise, the certificate of service on the motion to dismiss states the motion was sent to Alvarez’s attorney via certified mail and to three other attorneys by regular mail. In the absence of a legible postmark, an attorney’s uncontroverted affidavit establishing the date of mailing may be sufficient evidence of the mailing date and, therefore, of the filing date. Lofton v. Allstate Ins. Co., 895 S.W.2d 693, 693-94 (Tex.1995); see Arnold v. Shuck, 24 S.W.3d 470, 472 (Tex.App.-Texarkana 2000, pet. denied) (testimony of legal assistant sufficient as evidence of timely mailing); Hodges v. State, 539 S.W.2d 394, 396 (Tex.Civ.App.-Austin 1976, no writ) (counsel’s sworn motion, uncontroverted by opposing party, sufficient to demonstrate compliance with Rule 5 where envelope not produced).

Alvarez claims that the file mark on Thomas’ motion to dismiss (March 25, 2004) should control in determining the date of filing. But there are multiple forms of prima facie evidence by which a court may determine the filing date under the “mailbox rule.” Thomas’ certificate of service and his attorney’s affidavit are both prima facie evidence of the date of mailing. Alvarez offered nothing to controvert either the certificate of service or the attorney’s affidavit.

Alvarez directs us to Texas Beef Cattle Co. v. Green, 862 S.W.2d 812 (Tex.App.Beaumont 1993), rev’d on other grounds, 921 S.W.2d 203 (Tex.1996), as authority that an attorney’s affidavit and a postage meter stamp fail to overcome the presumption of date of mailing established by a United States Postal Service postmark. Id. at 814. While that is the holding there, such a comparison is inapposite here, where there is no United States postmark to be considered.

True, Rule 5 provides, as Alvarez argues, that a United States postmark is prima facie evidence of the date of mailing. But the rules and caselaw provide for other forms of prima facie evidence which may be considered. See Tex.R. Civ. P. 21a. An attorney’s certificate of service constitutes prima facie evidence of service. Meek v. Bishop Peterson & Sharp, P.C., 919 S.W.2d 805, 809 (Tex.App.-Houston [14th Dist.] 1996, writ denied); Havens v. Ayers, 886 S.W.2d 506, 509 (Tex.App.Houston [1st Dist.] 1994, no writ).

Thomas provided prima facie evidence of having placed the motion to dismiss in the United States mail, postage prepaid, by way of the certificate of service and the attorney’s affidavit. Alvarez offered no evidence controverting the affidavit of Thomas’ counsel or the certificate of service attached to the motion to dismiss. The trial court had ample evidence to find that Thomas’ motion for dismissal was mailed March 22, 2004. If Rule 5 applied, as was argued by the parties, the motion would have been filed March 22, before the nonsuit.

Article 4590i is explicit. If a plaintiff fails to provide the required expert report within 180 days of the filing of his or her suit, on motion by the defendant, a trial court shall dismiss with prejudice the plaintiffs cause of action. Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01. Once a case matures as did this one, without the filing of a qualifying expert report, if thereafter the defendant’s motion to dismiss is filed before the plaintiffs nonsuit, the trial court must dismiss with prejudice the plaintiffs suit. Am. Transitional Care Ctr. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001).

We affirm the trial court’s judgment.

      . Alvarez filed his original petition August 29, 2003, naming numerous healthcare providers as defendants, including Thomas. At issue was the level of care, and significant complications and serious injuries suffered by Alvarez following knee replacement surgery. After 180 days had passed from the filing of the original petition, with no expert report filed (see Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 884, recodified at Tex. Civ. Prac. & Rem.Code Ann. § 74.351 (Vernon 2005)), Thomas filed a motion to dismiss, alleging Alvarez's failure to comply with Article 4590L The motion to dismiss bears a file-mark stamp of March 25, 2004, and the certificate of service states it was placed in the United States mail March 22, 2004. On March 23, 2004, Alvarez filed a fourth amended petition in which he excluded all defendants except the Beaumont Bone and Joint Institute, P.A., effectively nonsuiting Thomas.

      . The original petition and the first, second, and third amended petitions were all in the name of Daniel Alvarez as the sole plaintiff versus various defendants, including Thomas. Alvarez’s fourth amended petition added Fern Alvarez as a plaintiff but dropped Thomas as a defendant. Thomas asserts in his brief that Fern Alvarez was improperly added to the suit, lacks standing to participate in this appeal, and is not a proper party to the appeal. As this matter does not appear to have been addressed in the trial court and is not germane to the issues presented in this appeal, we do not address it.


author: JOHN T. BOYD, Senior Justice (Retired).

text:
    In the Interest of D.N., K.N. and C.N., Minor Children.
    No. 07-04-0289-CV.
    Court of Appeals of Texas, Amarillo.
    Aug. 29, 2005.

      Earl Griffin, Jr., Childress, TX, for Appellant.
    Dale A. Rabe, Jr., Bird, Bird & Rabe, Childress, TX, for Ad litem.
    Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J.

      . John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. § 75.002(a)(1) (Vernon Supp.2004).

   OPINION

JOHN T. BOYD, Senior Justice (Retired).

In this appeal, appellants Ginger Karol Harmon Neeley and John Neeley challenge a trial court order terminating their parental rights to their minor children D. N., K. N., and C.N. Finding no reversible order in the order, we affirm the judgment of the trial court.

In mounting their challenge, appellants raise four points of asserted trial court error. In those points, they raise the following issues for our decision: the trial court 1) committed reversible error in finding there was clear and convincing evidence that termination was in the best interest of the children, 2) committed reversible error in finding there was clear and convincing evidence that appellants knowingly placed or knowingly allowed their children to remain in conditions or surroundings that endangered the children’s physical or emotional well-being, 3) committed reversible error in finding there was clear and convincing evidence that appellants engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered their physical or emotional well-being, and 4) abused its discretion by ignoring the jury’s verdict that termination of appellants’ parental rights was not in the children’s best interest.

Background

Appellants are the biological parents of the minor children concerned in this proceeding. The Texas Department of Family and Protective Services (the DFPS) filed suit seeking termination of appellants’ parental rights. An attorney ad litem was appointed to represent the minor children in the proceeding and in this appeal. On April 17, 2003, after a three-day trial, a jury returned its verdict denying termination of appellants’ parental rights and refusing to appoint the DFPS as managing conservator of the minor children. On May 29, 2003, an associate judge of the trial court entered a judgment based upon the jury verdict. On June 2, 2003, appellants gave notice of appeal from the judgment and from certain findings contained in the judgment. On June 4, 2003, the attorney ad litem for the minor children also filed a notice of appeal from the judgment, specifically contending that the evidence before the jury established by clear and convincing evidence that appellants’ rights should be terminated and that the jury finding that their parental rights should not be terminated was against the weight of the evidence. After conducting a hearing at which, in addition to considering the record of the evidence produced at the jury trial, the trial judge also heard testimony, he rendered the judgment giving rise to this appeal.

Discussion

Because appellants’ first three points are so closely interrelated, we will discuss them together. As is evident from the nature of appellants’ points, the Texas Family Code provides that a parent’s rights may be terminated if they are guilty of the type of conduct described in their points. See Tex. Fam.Code Ann. § 161.001(D) & (E) (Vernon 2002). Because the termination of parental rights involves fundamental constitutional rights, Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed.2d 551 (1972), it is now axiomatic that the evidence supporting findings of such nature must be clear and convincing. See In the Interest of G.M., 596 S.W.2d 846, 847 (Tex.1980).

The clear and convincing standard is an intermediate standard falling between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. Id. It requires a degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be proved. Id. It requires more proof than the preponderance of the evidence standard required in civil cases but less than the reasonable doubt standard in criminal eases. Id. On the appeal of a fact finding made by clear and convincing evidence, we review the record to determine if the trial court could reasonably find that the fact was highly probable, ie., whether the evidence was sufficient to produce in the mind of the factfinder a firm belief or conviction as to the truth of the fact found by the judge. Amador v. Berrospe, 961 S.W.2d 205, 208 (Tex.App.-Houston [1st Dist.] 1996, writ denied).

A party may appeal an associate judge’s decision by filing a notice of appeal not later than the third day after the date the party receives notice of the substance of the associate judge’s report. Tex. Fam. Code Ann. § 201.015 (Vernon 2002). If an appeal to the referring court is filed by a party, any other party may file an appeal to the referring court not later than the seventh day after the date the initial appeal is filed. Id. In such an appeal, the reviewing judge may consider the record from the hearing before the associate judge, including the charge and jury verdict. In addition, the parties may present witnesses in a hearing de novo on the issues raised in the appeal.

In the proceeding reviewed by us, the trial judge elected to consider the record of the jury trial and, in addition, received the testimony of live witnesses. Because of the questions presented in this appeal, it is necessary to go into the pertinent testimony considered by the judge in some detail.

In the trial before the jury, the children had been removed from appellants’ home and they were seeking their return. At trial, Ginger admitted, albeit with a denial that she was doing so at the time of her testimony, that she abused drugs to the extent that it affected her ability to function in daily life and that she had done so while her minor children were in her care. She also admitted that while she was abusing drugs, their emotional well-being was endangered because of the lack of attention she gave her children and “just the danger of drugs being in the home.” Ginger further conceded that the children were aware that she and her husband were abusing alcohol. She stated that during a period when the children were temporarily removed by the court from her home, although ordered by the court to do so, she did not participate in an in-patient drug treatment program. Ginger and her husband had engaged in fights in the presence of the children, and she had taken refuge in a battered women’s shelter because of physical abuse by her husband. Furthermore, she admitted she had left the children in John’s care at a time when she knew he was abusing alcohol. However, she averred that at the time of her jury trial testimony, she and her husband were getting along, she was free of drugs and, although she had figured out that her priorities had been “really messed up,” she now knew her priorities.

John testified that he was an alcoholic. Although he averred that he was not doing so at the time of his testimony, he admitted that he had been under the influence of alcohol in the past while the children were in his care to the extent that it impaired his ability to take care of them and put them at risk. He also admitted there had been physical violence between him and his wife but, although the children had been present during verbal fights, they had never been present when there was physical violence between him and Ginger. He knew that during the period when Ginger abused prescription drugs, the children had been left with her. Additionally, he said that when he abused chemicals, he had put his needs above those of the children. He admitted that when the children witnessed their arguments, it made them feel insecure and “a little bit unstable.” There was also testimony produced at trial from various Child Protective Service (CPS) employees about appellants’ substance abuse periods and the failure to comply with CPS’s directives to attend abuse control and to conduct remedial and educational meetings.

At the appeal hearing before the presiding trial judge, he heard the live testimony of three witnesses, Diana Bartlett, James H. Reeves, and Susan Cummings. Bartlett was a CPS Specialist and the Neeley family case had been transferred to her to ensure that they were able to complete any services requested in the order issued by the associate judge, primarily the portion related to the drug screens. She offered to do a cheek swab drug screen, but the Neeleys were not comfortable with that, told her they thought they were only supposed to participate in a urinalysis, and wanted to contact their attorney. The maternal grandmother of the children advised them not to submit to tests until they talked to their attorney. She later learned that a drug screen had been completed on John at the Juvenile Probation Office in Gray County. The Neeleys never returned to her. She also averred that the children had been doing well in their relative placement with a maternal great-aunt and uncle.

James H. Reeves, a juvenile probation and TYC parole officer in Gray County, testified that as a part of his duties, he gave drug screens for jobs and “things like that” and identified the type of report form they used. He averred that John came in and requested a drug test, stating that he had a job interview coming up for which he would need a drug test certification. Reeves said John supplied a urine sample, which test result showed John had a “problem with meth and morphine.” He also stated that it was unusual for a test result to show positive for morphine. John asked for a test result form, which showed positive results for morphine and methamphetamine, and it was completed and signed by both of them. They did not test for alcohol. John left with the form. Bartlett later contacted Reeves and asked him if the test results were all negative and he told her they were not. When asked on cross-examination why he remembered John’s test, Reeves stated that John’s was the only outside test given in a three-week period and that the test was positive for morphine.

The next witness called was Susan Cummings, who was “Ginny’s friend and John’s cousin.” When asked if she had supplied morphine to either Ginger or John after the April 17, 2003 trial date, she was instructed about her right not to incriminate herself and after having been so instructed, she said she wanted to claim her right. She said that she saw the appellants on “almost a daily basis.” When queried if in her interaction with the Neeleys since the trial date she had made observations that it would not be in the best interest of the children to be placed with them, she answered “yes.” She had also observed appellants use drugs in her presence. She could not say exactly how many times, but it was more than five.

After reviewing the evidence considered by the judge, we are satisfied it is sufficient to produce in the mind of the trial judge a firm belief or conviction sufficient to justify his findings supporting his termination of appellants’ parental rights. Otherwise stated, the evidence before the judge was clear and convincing. Appellants’ first three points are overruled.

In their fourth point, as we noted above, appellants contend that the trial court abused its discretion by “ignoring” the jury’s verdict that termination of their parental rights was not in the children’s best interest. As we understand it, the gist of appellants’ argument under this point is that in the guardian ad litem’s notice of appeal, he did not specifically include a challenge to the jury’s finding that termination of appellants’ parental rights was not in the children’s best interest.

Supporting this proposition, he points to the established rule that a notice of appeal restarts the process only “to the extent of the challenged findings” and reasons that being so, the trial judge erred in conducting a full blown hearing as to the underlying questions whether appellants had knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered the physical or emotional well-being of the children or engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered their physical or emotional well-being.

In the ad litem’s notice of appeal, he specifically argued that the evidence before the jury established by clear and convincing evidence that appellants’ parental rights should be terminated and that the jury verdict was against the weight of that evidence. That contention was sufficient to trigger the trial judge’s right to review that evidence and, as his review of that evidence was de novo under the statute, to hear additional evidence in order to determine whether the best interest of the children required termination of the parental rights. Moreover, in appellants’ notice of appeal, they specifically challenged all the factual findings entered by the associate judge in his order. Under this record, the trial judge acted within his authority to conduct the appeal hearing in the manner he did. Appellants’ fourth point in overruled.

In sum, all of appellants’ points are overruled and the judgment of the trial court is affirmed.


author: Opinion by Justice HINOJOSA.

text:
    In re MASON & COMPANY PROPERTY MANAGEMENT, Relator.
    No. 13-05-00402-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Aug. 30, 2005.

      Linda C. Breck, Thomas F. Nye, Brin & Brin, Corpus Christi, Michael Quintana, Brin & Brin, Brownsville, for relator.
    C. Frank Wood, Sanchez, Whittington, Zabarte & Wood, Horacio L. Barrera, Martinez & Barrera, Brownsville, Lance Alan Kirby, Rudy Salinas, Jr., Jones, Galli-gan, Key & Lozano, for real party interest.
    Before Chief Justice VALDEZ and Justices HINOJOSA and RODRIGUEZ.
   OPINION

Opinion by Justice HINOJOSA.

Relator, Mason & Company Property Management (“Mason”), seeks a writ of mandamus compelling respondent, the Honorable Benjamin Euresti, Jr., Presiding Judge of the 107th District Court of Cameron County, Texas, to vacate his order denying Mason the opportunity to depose attorneys C. Frank Wood and Julie Crockett Graham. The real parties in interest have filed a response. See Tex. R.App. P. 52.4. Without hearing oral argument, we conditionally grant the writ of mandamus as specified herein. See Tex. R.App. P. 52.8.

A. BACKGROUND

Dr. Sandra Garcia entered a written commercial lease agreement for a building owned by WIPF Family Limited Partnership (“WIPF”). On the lease, Mason is identified as the landlord and is expressly designated as an intermediary between landlord and tenant rather than as agent for either landlord or tenant. The lease was prepared and signed by Adriana Dwiggins, a Mason employee. The lease ran from January 20, 2003, to December 31, 2003. While most of the lease is a standard printed form, the lease contains specific typed-in provisions. The lease contains the following typed option to purchase the property at issue:

Tenant has the option to purchase the property (1100 W. Tyler, Harlingen, Cameron [County], Texas.) on or before the lease term. Owner will allow $1000.00 of each month’s rent towards purchase price of $675,000.00. If the Property [does] not appraise the purchase price will [be] adjusted by seller accordingly.

Prior to the termination of the lease, Garcia told WIPF that she wanted to exercise her option to purchase the property. On December 14, 2003, Garcia had the property appraised at $250,000 and offered that amount as the purchase price. Prior to the scheduled termination date of the lease, the parties agreed to extend the lease. The parties did not consummate the sale of the property. On December 31, 2003, C. Frank Wood, counsel for Garcia, sent Julie Crockett Graham, counsel for WIPF, the following letter:

As per our telephone conference of yesterday, this correspondence is being forwarded to you in order to confirm the agreement of the above named parties to extend the above referenced commercial lease for a period of three (3) months under the same terms as therein provided....

On February 27, 2004, Garcia obtained another appraisal of the property for $325,000. She again told WIPF that she wanted to purchase the property at the appraised value. WIPF refused to sell.

Garcia brought suit against WIPF for breach of contract and fraud, and brought suit against Mason for negligently drafting the lease, committing negligence per se, and the unauthorized practice of law. WIPF filed a cross-claim against Mason for negligence, negligence per se, breach of contract, and attorney’s fees. JNW Property Holdings, Inc. also cross-claimed against Mason for negligence and negligence per se. Mason’s answer includes, among others, the affirmative defenses of estoppel and ratification as against Garcia and its co-defendants.

During discovery, Garcia denied that there was a written lease extension. She testified that the term of the lease was extended by oral agreement in order for her to remain on the property in the hopes that the parties would come to an agreement on the sale of the property. Garcia said her attorney, C. Frank Wood, and Rudy Salinas, attorney for Nila Wipf, would have reached the agreement regarding the oral extension of the lease.

Nila Wipf testified that an extension was made to allow Garcia to stay on the property, but she did not know whether the extension to the lease was written. She deferred most questions about the extension and the contract to the attorneys and Mason. She did not know who negotiated the contract for the extension.

Mason sought to depose Graham and Wood. On April 13, 2005, respondent ruled that he would allow Wood to testify regarding attorney’s fees, but otherwise quashed the depositions. This original proceeding ensued.

Mason contends that the testimony of these witnesses is crucial to its affirmative defenses to the claim that it negligently drafted a commercial lease agreement. Mason argues that Garcia and WIPF adopted and ratified the terms of the original lease in that extension, as formally approved by their attorneys, effectively ratifying the allegedly defective clause on the option to purchase and estopping Garcia and WIPF from claiming that the lease was improperly drafted. Mason contends that it wants to discover the communications that occurred between the two attorneys themselves and not between the attorneys and clients.

B. STANDARD OF REVIEW

Mandamus is an extraordinary remedy, available only when a trial court clearly abuses its discretion and there is no adequate remedy on appeal. Walker v. Packer, 827 S.W.2d 833, 840-44 (Tex.1992); In re Kellogg Brown & Root, 7 S.W.3d 655, 657 (Tex.App.-Houston [1st Dist.] 1999, orig. proceeding). An appellate remedy may be adequate even though it involves more delay or cost than mandamus. Walker, 827 S.W.2d at 842. An appellate remedy is “adequate” when any benefits to mandamus review are outweighed by the detriments; when the benefits outweigh the detriments, appellate courts must consider whether the appellate remedy is adequate. In re Prudential Ins. Co., 148 S.W.3d 124, 136 (Tex.2004) (op. on reh’g).

The scope of discovery is largely within the trial court’s discretion. Dillard Dept. Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex.1995). However, mandamus will issue to correct a discovery order if the order constitutes a clear abuse of discretion and there is no adequate remedy by appeal. In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex.1998). A trial court abuses its discretion when it acts in an unreasonable or arbitrary manner or, stated differently, when it acts without reference to guiding rules and principles. See, e.g., Beaumont Bank, N.A. v. Butter, 806 S.W.2d 223, 226 (Tex.1991). A party does not have an adequate remedy by appeal when (1) an appellate court would not be able to cure the trial court’s discovery error, such as when privileged information or trade secrets would be revealed or production of patently irrelevant or du-plicative documents imposing a disproportionate burden on the producing party is ordered, (2) a party’s ability to present a viable claim or defense is severely compromised or vitiated by the erroneous discovery ruling to the extent that it is effectively denied the ability to develop the merits of its case, or (3) a trial court’s discovery order disallows discovery which cannot be made a part of the appellate record, thereby denying the reviewing court the ability to evaluate the effect of the trial court’s error. Walker, 827 S.W.2d at 843.

C. Analysis

The Texas Rules of Civil Procedure allow discovery of any matter that is not privileged and is relevant to the subject matter of the pending action, whether it relates to the claim or defense of a party seeking discovery, or the claim or defense of any other party, so long as it appears reasonably calculated to lead to the discovery of admissible evidence. Tex.R. Civ. P. 192.3(a); see Monsanto Co. v. May, 889 S.W.2d 274, 276 (Tex.1994). The real parties in interest argue that Graham and Wood should not be deposed because their testimony would relate to matters protected by the attorney-client privilege. The real parties in interest further argue that the attorney’s testimony is unnecessary and would be cumulative given available discovery from the parties.

The “rules recognize that our system of justice relies on a client’s privilege to speak frankly and candidly with his or her attorney.” Duncan v. Bd. of Disciplinary Appeals, 898 S.W.2d 759, 762 (Tex.1995). The attorney-client privilege protects information from disclosure if it was a confidential communication between a client and its attorney “made for the purpose of facilitating the rendition of legal services to the client.” Tex.R. Evid. 503(b)(1); see Huie v. DeShazo, 922 S.W.2d 920, 922 (Tex.1996); In re Exxon-Mobil Corp., 97 S.W.3d 353, 357 (Tex.App.-Houston [14th Dist.] 2003, orig. proceeding). The privilege attaches to the complete communication between attorney and client, including both legal advice and factual information. Huie, 922 S.W.2d at 923; ExxonMobil Corp., 97 S.W.3d at 357. The privilege extends to all matters concerning litigation or business transactions, regardless of whether the matters are pertinent to the matter for which the attorney was employed. Boales v. Brighton Build ers, Inc., 29 S.W.3d 159, 168 (Tex.App.Houston [14th Dist.] 2000, pet. denied).

The party resisting discovery bears the burden of proving any applicable privilege. Hide, 922 S.W.2d at 926. To make a prima facie showing of the applicability of a privilege, a party must plead the particular privilege and produce evidence to support the privilege through affidavits or testimony. In re Valero Energy Corp., 973 S.W.2d 453, 457 (Tex.App.-Houston [14th Dist.] 1998, orig. proceeding).

We conclude that respondent abused his discretion in refusing to allow the depositions of Graham and Wood. As an initial matter, the record before this Court does not indicate that the real parties in interest carried their burden to prove the privilege by producing evidence to support the privilege. As a more fundamental matter, however, a deposition may not be quashed in its entirety on grounds that some of the matters to be explored may be privileged. In short, an attorney may be deposed, even if he or she represents a party to the litigation in issue:

The attorney-client privilege was never intended to foreclose any opportunity to depose an attorney, but rather only precludes those questions which may somehow invade upon the attorney-client confidences. An attorney may not avoid a deposition in its entirety merely because some matters may be privileged, but must object when those inquiries are raised during the deposition. Other matters may exist which are not privileged and which an attorney may be called upon to answer.

Borden Inc. v. Valdez, 773 S.W.2d 718, 720 (Tex.App.-Corpus Christi 1989, orig. proceeding); see Smith, Wright & Weed, P.C. v. Stone, 818 S.W.2d 926, 928 (Tex.App.Houston [14th Dist.] 1991, orig. proceeding) (conditionally granting mandamus where trial court abused discretion in quashing attorney’s deposition); Hilliard v. Heard, 666 S.W.2d 584, 585 (Tex.App.Houston [1st Dist.] 1984, orig. proceeding) (same). The mere possibility that a deponent will assert a privilege against answering a specific deposition question does not justify the quashing of a deposition notice.

While there is no blanket immunity that exempts lawyers from being deposed, we recognize that such a practice has the potential to disrupt- the adversarial system and to increase the time and costs of litigation. Moreover, allowing the deposition of a party’s attorney offers the possibility that such discovery could be used strategically as an opportunity for harassment. Accordingly, the tactic of seeking discovery from opposing counsel should be disfavored, and we take a stringent view toward allowing depositions of opposing counsel.

In the instant case, however, both plaintiff and co-defendants have brought suit against Mason alleging negligence, negligence per se, breach of contract, and the unauthorized practice of law. Each of these claims is premised on Mason’s drafting of the option to purchase contained in the lease. Attorneys for plaintiff and co-defendants extended the lease by agreement “under the same terms as therein provided.” Mason argues that the plaintiff and co-defendants have adopted or ratified the option to purchase and should be es-topped from pursuing such claims.

According to the record, Garcia testified by deposition that there was not a written lease extension and any oral extension was made by her attorney, C. Frank Wood. She had no first hand information regarding the extension of the lease. Nila Wipf testified that she did not know whether Graham, her attorney, had extended the lease in question for three additional months under the same terms provided in the lease. Wipf testified that she did not know what the December 31, 2003 letter from Wood to Graham meant.

We believe that Mason has shown that it is seeking discovery that is relevant to the claims and defenses at issue in this lawsuit and that discovery is necessary to the presentation of its case. Mason has explored other methods to obtain the necessary discovery, that is, by deposing Garcia and Wipf, and it possesses no other means to obtain the necessary information. The discovery is not cumulative and does not appear available from any other source.

Moreover, we note that, to the extent that Mason seeks to discover communications between Graham and Wood, such communications would not be covered by the attorney-client privilege. Accordingly, Mason may depose Graham and Wood for facts relevant to Mason’s affirmative defenses of ratification and estoppel.

In handling these depositions, the parties may follow the procedure set out by the Texas Supreme Court in West v. Sóli-to, 563 S.W.2d 240 (Tex.1978). See id. at 246. At the depositions, the deponents may assert privilege and refuse to answer any questions violating the attorney-client privilege. Id. After completing the deposition as to all other matters, the examining party may apply to the trial court for an order to compel answers to the contested questions, at which time the trial court can determine whether the matter sought to be discovered is covered by privilege. Id. An order could then be issued compelling answers to those questions covering matters not within the privilege. Id.

D. Conclusion

Because respondent’s abuse of discretion prevents Mason from developing relevant evidence pertaining to its defenses, Mason has no adequate remedy at law. See Walker, 827 S.W.2d at 843. Accordingly, we conditionally grant Mason’s petition for writ of mandamus and order respondent to vacate his order of April 13, 2005, and to conduct further proceedings consistent with this opinion. We are confident that respondent will comply with our ruling. The writ will issue only if respondent fails to vacate his order denying the depositions.

      . In Plaintiff's Fourth Amended Petition, Garcia brought suit against Mason & Company Property Management, Nila Wipf, WIPF Family Limited Partnership, and JNW Property Holdings, Inc.

        . We express no opinion herein regarding the validity of any privilege that might be asserted at the depositions. We are prohibited from rendering advisory opinions and have no jurisdiction to do so. Tex. Const, art. II, § 1; Brown v. Todd, 53 S.W.3d 297, 302 (Tex. 2001). We trust the parties and the trial court will recognize the well-known parameters of the privilege as well as its exceptions. See, e.g., TexR. Evid. 503(d) (exceptions to attorney-client privilege); Republic Ins. Co. v. Davis, 856 S.W.2d 158, 163 (Tex.1993) (orig.proceeding) (waiver of attorney-client privilege by offensive use).