## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 21

- 00042

- CV

A.H . FARMS, LLC, A TEXAS LIMITED LIABILITY CORPORATION , Appellant
V. STAR CREEK CO., A CALIFORNIA CORPORATION, ERIC H. FARLEY, INDIVIDUALLY AND AS THE SUCCES SOR INDEPENDENT EXECUTOR OF THE ESTATE OF PATRICIA FARLEY HERNANDEZ, DECEASED, GARY D. CORLEY, JOHN HENRY SKOTNIK, SUCCESSOR INDEPENDENT EXECUTOR OF THE ESTATE OF EFRIN ARTURO HERNANDEZ, DECEASED, AND W.M. DAVIS AND MARY H. DAVIS , Appellee s

On Appeal fr om the 336th District Court Fannin County, Texas Trial Court No. CV

- 20

- 44563

Before Morriss, C.J., Stevens and Carter , * JJ. Memorandum Opinion by Justice Stevens

_______________ *Jack Carter, Justice, Retired, Sitting by Assignment2 

### ME MORANDUM OPINION
A.H. Farms , LLC (Farms) , filed a trespass

- to

- try

- title action in the 336 th Judicial District Court in Fannin County over its right t o title in and possession of a 100

- acre tract in Fannin County ; defendants Eric H. Farley and John Henry Skotnik file d a pl ea in abatement and alleged that the County Court at Law of Fannin County had prior, dominant jurisdiction. After a hearing, the trial court granted the plea in abatement and dismisse d Farms’s claims against all defendants. Because Farley and S kotnik did not estab lish that there was a prior action that was pending when the trial court granted the plea in abatement, we reverse the trial court’s judgment and remand this case to the trial court. I. Background Farms’s live petition alleged that it wa s the owner of a 100

- a cre tract of land situated in the Joseph Mather Survey, abastract . No. 738, Fannin County , Texas, (the Property ) descr ibed in

a g eneral w arranty d eed from Efrin Arturo Hernandez (Arturo) , a widower and the g rantor , to Farms, g rantee , dated June 1 8, 2009

. 1 Arturo had inherited the Property from his wife, Patricia

. 2
In 2002 , Arturo, as i ndependent e xecutor of Patricia’s estate, conveyed the Property to himself, individually , by a general warranty deed. I n 2009, Arturo con veyed t h e property to Fa r ms by general warranty deed. Arturo died in 2013 , and David Pena was appointed the independent

1 Although the parties and different courts described the Property using differing descriptions, there is no disp ute that the varying descriptions desc ribe the Property.

2 After entry of its ju d gment, the trial court en tered findings of fact and c o nclusions of law. W e derive the background facts mainly from the unchallenged findings of fact that are supported by the record

.3

executor of his estate. At the time of his death , Artur o own e d 100% of the membership interest of Farms. After Arturo’s death, a con trovers y arose between F a rley, who was Patricia’s son from her first marriage , 3 and Pena, the independent executor of Arturo’s estate, over the ownership of the Prop erty, and a declaratory judgment action was filed by Farley in 2015 4 in the County Court
at Law # 1 of Grayson Coun t y (the Grayson County Lawsuit) , where Patricia’s will was probated

. The Grayson County Lawsuit was styled Estate of Patricia Ann H ernandez, Deceased and was assigned c ause number 2002

- 1

- 40P

. In 2016, a declaratory j ud gme nt was entered in the Grayson Co unt y Lawsuit that found Patricia intended to bequeath to Arturo a life estate in the Property, and a summary judgment was entered that found that , at the time of his death , Arturo possessed or had an interest in the Pro pe r ty and that Farley, as s uccessor i nde pendent executor of Patricia’s
estate , should recover the Property. 5 Pena appealed that judgment 6 to the Dallas C ourt of A ppeals. The court of appeals reversed the declaratory judgment and rendered judgment that Pat ri cia’s will devised Arturo the
Pr op ert y in fee simple determinable wit h an executory interest to Farley in fee simple absolute.
But because Pena did not challeng e the summary judgment order, the court of appeals affirmed

3 See In re Estate of Hernande z , No. 05

- 16

- 013 50

- CV, 2018 WL 525762, at * 2 (Tex. App.

— Da llas Jan. 28 , 2018, no pe t. ) (mem. op. )

.
4 Id

. at * 3.

5 At the hearing on the plea in abatement , Farms contended and on appeal it con tends th at the summary judgment order is vo id because the County Court at Law #1 of Grayson County lacked subject

- matter jurisd i cti on over th e Property. See , e.g . , T EX
. E ST
. C OD E A NN
. § 31.002(a) (5)

– (6), (b). Because another issue is dispositive of this appeal, we do n ot reach this issue.

6 The Dallas C ourt of A ppeals deemed the de claratory judgment and the summary judgment to compr ise one final ju dgment. In re Estate of He rnan d ez , 2018 WL 525762, at *1 n. 1.4

tha t order. On January 24 , 20 1 8, the court of appeals enter ed its ju dgm ent in accord ance with its opini on. On July 11, 2019, the County Court at Law of Fannin County, the court in which Arturo’s will was probated , entered an order in reliance on the opinion of the Dallas C ourt of
A ppeals that require d John Skotnik, the su cc e ssor independent executor of Arturo’s estate , to execute a deed conveying the Property to Farley on behalf of Arturo’s estate and Farms

. On January 20, 2020 , Farms filed this trespass to try title suit against Farle y, his successors in interest to t he P r operty, and other parties that were involved in transferring the Property based on the opini on of the Dallas C ourt of A ppeals

. Farms alleg e s that Arturo’s membership interest in Farms has vested in Pena , as Arturo’s devi see. T he trial cou rt found th at

ow ner ship of the Property was also placed at issue in the Grayson County Lawsuit. After a hearing, the trial court granted the plea in abatement , dismissed Farm s’ s causes of action against all parties , and concluded that the County Court at L aw # 1 of Gr ay s on County had dominant jur isdiction

. On app eal, Farms asserts that the trial court erred in granting the plea in abatement because (1) the judgment in the Grayson County Lawsuit was not effective as to Farms because the court lac ked person al juris dicti o n ov er Farms , (2) the Co unty Court at L aw #1 of Grayson County lacked subject

- matter jurisdiction over the property , (3) A rturo did not own the Property when he died , (4) the actions of the County Court at Law of Fannin County wer e without basis in law , ( 5 ) t h e Gra ys on C ounty Lawsuit was not a pending suit , a nd (6) Farms was
not a party to the Grayson County Lawsuit

.5

II. Standard of Review A trial court’s ruling on a plea in abatement is reviewed under an abuse of discretion standard. Gober v. Bulkley Prop s . , LLC , N o. 06

- 1 8

- 000 31

- CV , 2019 WL 321326 , at *4 (Tex. App

. — Texarkana Jan. 25, 2019, pet. denied) ( mem. op. )

. “A court abuses its discretion if it acts in an arbitrary or unreasonable man ner without reference to any guiding rules or principles.” Id

. (quoting R ea gan v . NPOT Partners I, L.P

. , No. 06

- 08

- 00071

- CV, 2009 WL 763565, at *5 (Tex. App.

— Texarkana Mar. 25, 2009, pet. denied) ( mem. op.) )

. “ With regard to factual questions, the abuse

- of

- discretion standard is more akin to a cl ear - error standard. ” In re J.B . H unt Tr anspor t, Inc

. , 492 S. W .3d 287, 294 (Tex. 201 6) (orig. proceeding) (citing Goode v. Shoukfeh , 943 S.W.2d 441, 446 (Tex. 1997) )

. “ But with regard to questions of law, ‘ [a] trial court has no

“ discretion ” in determin ing what the law is or applying t he law to the f acts. ’ ” Id

. (quoting Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding) )

. Consequently, “ [a] n error in analyzing or applying the law is an abuse of discretion.” Gober , 2019 WL 321326 , at *4 (quoting Reagan , 2009 WL 76356 5 , at * 5 )

. III. Domi nant Jurisdiction “The general common law rule in Texas is that the court in which suit is first filed acquires dominant jurisdiction to the exclusion of other coordinate courts.” In re J.B. Hunt Transport , Inc

. , 492 S.W.3d at 294 (quotin g Cur ti s v. Gibbs , 511 S.W.2d 263, 267 (Tex. 1974) (ori g. proceeding) )

. “In instances where inherently interrelated suits are pending in two counties, and venue is proper in either county, the court in which suit was first filed acquires dominant jurisdic tion. ” I

n re Red Dot Bldg. Sys., Inc

. , 504 S.W.3d 320, 32 2 (Tex. 2016) (per curiam)6

( orig

. proceeding )

. “ In these circumstances, the general rule is that the court in the second action

must abate the suit. ” Id

. (citing I n re J.B. Hunt , 492 S.W.3d at 294 ). “ Th is first

- f iled rule flows from ‘ principles of co mity, convenience, and the necessity for an orderly procedure in the trial of contested issues. ’ ” In re J.B. Hunt , 492 S.W.3d at 294 (quoting Wyatt v. Shaw Plumbing Co

. , 760 S.W.2d 245, 248 (Tex. 1988 ) ).
T ha t said, if the first

- filed su it is no longer pen ding, “a plea in abatement based on that action must be overruled.” Guy v. Damson Oil Corp

. , No. 13

- 91

- 028

- CV , 1997 WL 33760709 , at *3 (Tex. App.

— Corpus Christi Mar

. 2 7, 1997, no writ) (citing Trapnel l v. Hu nt er , 78 5 S.W.2d 426, 42 8 (Tex. App.

— Corpus Chri sti 1990, orig

. proceeding) ; Munson, Munson & Porter, P.C. v. Robinson , 634 S.W.2d 32, 34 (Tex. App.

— Tyler 1982, no writ) )

. When an action has been effectively dismiss ed, discontinued, or otherwise te rmina te d, it is no longer a pending action for th e purp oses of abatement. Id

. Further, “ an action which has been prosecuted to final judgment with all right to appeal exhausted is no longer ‘ pending ’ for purposes of an ab atement of a subsequently filed s uit. ” Id

. (cit ing Zarsky v. Moss , 193 S.W.2d 245 (Tex. App.

— San Antonio 1946, no writ) )

. IV. Analysis When a claim or cause of action is abated , it is abated only “until some obstacle to its further prosecution [is] removed.” Tex

. Highway Dep ’ t v. Jarrell , 4 18 S

. W. 2d 486 , 488 ( Tex. 1967) (citing Life Ass’n of Am

. v. Goode , 8 S.W. 639, 640 (Tex. 1888) )

. Thus, in an abatement based on a prior

- filed sui t , when judgment in the prior suit becomes final because all appeals h ave been exhausted , the purpose of the a bate m en t ( i.e., the preservation of the dominant7

jurisdi ction of the first

- filed suit ) has been fulfilled , so there remains no obstacle to the
prosec ution of the second suit. Obviously, then , i f the judgment in the first

- filed suit had become final and it was no l o nger p ending before the plea in abatement was decided , abatement would serve no purpose. For that reason , granting a plea in abatement when the first

- filed suit is no longer pending is an abuse of discreti on. See Zarsky v. Moss , 193 S.W.2d 245, 245

– 46 ( T ex. Ap p.

— San Antonio 1946, no writ)

. On appeal , Farms has challenged the trial court’s implied finding that the Grayson County Lawsuit was a pending suit. T he trial court concluded that the Grayson Count y Lawsuit and this suit were inherently in te r rela t e d , th at ownership of the Property was decided by the Grayson County Lawsuit , and that that decision was affirmed on appeal. The evidence also showed that the affirmance by the Dallas C ourt of A ppeals ha d become a final judgment long before this s u it was f

iled. Thus, the Grayson County Lawsuit was n o longer pending when the order granting the plea in abatement was entered in this suit

. Guy , 1997 WL 33760709 , at *3. For that reason , the trial court erred when i t granted the plea in abatement and dismisse d Farms ’ s

caus es of action. Id

. As a result, w e sust ain this issue. 7 Still, Appellees argue in their brief that Farms is precluded from pursuing this case by the principles of res judicata and collat eral estoppel , without citation to the record o r to leg a l auth o r ity s upporting their argument s . Generally, a pa rty who does not support its argument with appropriate citatio ns to the record and legal authority forfeits the argument because of in adequa te

7 Because this issue is dispositive of this appeal, we do n ot address Farms’s remaining issues.8

briefing

. Delta C ty. Appraisal Dist

. v. PPF Gin & Warehous e , L LC , 632 S. W.3d 637 , 652 (Tex. App.

— Texarkana 2021, pet. filed).
Even so , in this case , the trial court entered fin dings of fact and conclusions of law that the issue of ownership of the Pr operty had been litigated and decided by the Grayso n County
La w sui t an d that the relief sought by Farms was fully and fairly litigated in that lawsuit. These findings may suppor t, in part, the trial court’s judgment on a theory of res judica ta

— also called claim preclusion

— or collateral estoppel

— also calle d i ssue p reclus io n. See Sysco Food Servs.,
Inc. v. Trapnell , 890 S.W.2d 796, 801 (Tex. 1994) (Issue preclusion requires, among other things , that “ the facts so ught to be litigated in t he second action were fully and fairly litigated in the first act i on .” ) ; RPI Denton C t r. , Ltd. v. Brown , No. 06

- 13

- 0003 5

- CV , 2013 WL 5459960 , at

* 2 (Tex. App.

— Texarkana Oct. 1, 2013, pet. denied) (mem. op.) ( Claim preclusion requires , among other things , p roof that the “ second action [is] based on the same claim s as wer e rais ed or could hav e been rais ed in the first action

. ” )

. Both claim preclusion and issue preclusion also require proof that the party against whom it is asserted in the second suit was either a party to or in privity with a party to the first suit. Trapnell , 890 S.W. 2 d at 80 2 ; RP I Denton C tr. , Ltd. , 2013 WL 5459960 , a t *2

. If we can infer findings of fact supported by the evidence, we will “ uphold the judgment on an y theory of law applicable t o the case.” Paragon Indus. Applications, I n c. v. Stan Exca vating , LLC , 432 S.W. 3d 542, 549 (Tex

. App.

— Texarkana 2014, no pet.) ( citing Giangrosso v. Crosley , 840 S.W.2d 765, 769 (Tex. App.

— Houston [1st Dist.] 1992, no writ) )

. In the trial court, Appell ees requested a finding that the part ies in t he Grayson Coun ty Law suit and the pa rt ies in this su it were the same or were in privity , but the trial court refused to9

make that finding. “Rule 299 allows presumed findings on [ u ] nrequested and omitted finding s. It does not permit a finding to be presu m ed when that fi nding was [ r ] eque sted a nd [ r ] efused b y the trial judge.” Stretcher v. Gregg , 542 S.W.2d 954, 958 (Tex. App.

— Texarkana 1976, no writ) ; see TPG (Post Oak) Acquisiti on, LLC v. Greystone Multi

- Family Builders, Inc

. , N o . 01

- 18

- 00396

- CV , 2021 WL 3870130 , at * 19 (Tex. App.

— Houston [ 1 s t Dist .] Aug. 31 , 2021, no pet. h

. ) (mem. op.); Davey v. Shaw , 225 S.W.3d 843 , 857 ( Tex. App.

— Dallas 2007, no pet.). Since we cannot presum e a finding on an essential elem ent of both claim preclusion and issue
pre c lusion, the tria l court’ s judgment cann ot be supporte d under those theories. V. Conclusion For the reasons stated, we reverse the trial court’s judgment and remand this case to the trial court for further procee ding s .

Scott E. Stevens Justice
Da t e Submitted: Dec ember 7, 2021 Date Deci de d: January 12 , 2022