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

No. 06

- 21

- 00047

- CV

JEFFREY ALLEN ROGERS , Appellant

V. KIMBERLY ANNETTE COSLETT, RALPH MILTON SUDDATH

AND POINT BANK , Appellee s

On Appeal from the 462nd District Court Dento n County, Texas Trial Court No. 19

- 10983

- 362

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

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

### O P I N I O N
This fami ly disp ute out of Dento n County 1 involves how a tract of residential property

—

“ heirs ’ property ” subject primarily to Chapter 23A of the Texas Property Code

— is to be sold in

a partition sale and how the net proceeds are to be distributed to successors in in terest. From judgment o n competing motions for summary judgment, this appeal was brought

. The marriage between Linda and Ra y Rogers was her second marriage, into which she brought three children , Kimberly Annette Coslett, Ralph Milton Suddath, and Scott M itchell
Suddath. To th e new marriage was born another child, Jeffrey Allen Rogers. Linda died intestate in February 2016. Her survivors entered into a fam ily settlement agreement (Agreement) in June 2016, providing for the division of Linda ’ s estate, in cluding a tract of
resi d ential real property we will call Lot 4 9 , 2 the tract at the center of this dispute

. Under the Agreement, it was agreed that Lot 4 9 w ould at that point be owned 12/16 by Ray , 1 /16 by Kimberly, 1/16 by Scott , and 2/16 by Ralph

. Some time a f ter the Agreeme n t , Jeffrey obtained
deed s conveying to him the interests of Ray, Scott, and Ralph , leaving Lot 4 9 owned 15/16 by Jeffrey and 1/16 by K imberly. An additional complication was introduced by the procedural history of this matter. An

ea rlier l aws uit had bee n f iled by Ray, Scott, and Jeffrey in the 462nd Judicial District Court of Denton County (462 nd Court) , but late r had been dismissed before all parties had been jo ined.

1 Originally appealed to the Second Court of A ppeals, this case was transferred to this Court by t he Texas Supreme Court pursua nt to it s docket equalization efforts. See T EX

. G OV ’ T C ODE A NN

. § 73.001. We follow the precedent of the Second C our t of App ea l s in deciding this case. See T EX

. R. A PP

. P. 41. 3.

2 Lot 49 was described in the Agreement as “Lot 4 9 in Block 1 of Cypress Po int E sta t e, Phase V, an Addition to the City of Corinth, Denton Coun ty, Texas [,] according to the map thereof rec or ded i n Volu me P, Page 349 of the Map Records of Denton County, Texas.”3

After dism issal of the first suit , a second suit was filed in the 362 nd Judi cial District Court of Denton County ( 3 62 nd Court) , but then transferred to th e 462 nd Court , s ince th e 462nd Court
was familiar with the matter. Finally, the case was transferred to t he 431st Judicial District Court of Denton County (431 st Court) just days before the 462 nd Court granted the s u mmary judgment favoring Kimberly and awarding her attorney fees

. J effrey appeal s, contend ing that th e trial court erred by transferring the suit to the 462 nd
Court , by granting Kimberly ’ s motion for summary judgment , by failing t o order a further apprai s a l of Lot 49, by failing to order that the proceed s from the sale of Lot 49 be placed into
th e registry of th e court and thereafter distributed , by dismissing his fraudulent

- lien claim against Kimberly, and by awarding Kimberly att orney fees.
We affirm th e trial court ’ s order in part, reverse and render i n part, and reverse and remand in part be cause we hold th at (1) the 462 nd Court had authority to issue the instant judgment , (2) the judgment must account for post

- A greement transfe rs , (3) the trial court m u st receive a repo rt of a sale and distribute its net proceeds , ( 4) on rem and, Lo t 4 9 ’ s value must be
determined , and (5) on remand, the fraudulent

- lien claim should be resolved and attorney fees
reassessed

. In addition to seeking a partition sale of Lot 4 9 , which the pl aintiffs value d at $275,000 .00 , the second lawsuit as sert ed claims against Kimberly and Ralph for breach of fiduciary duty, the filing of a fraudulent lien , common
- law and statutory fraud, and breach of

contract. Po int Bank was a named defendant because it had a n acti v e judgment l ien against any

non
- ex empt rea l property owned by Ralph

. Ralph was served by publication and did not4

participate in the lawsuit. Ray died on February 14, 2020, and the suit proceeded with J effrey , Ray ’ s son, and sole heir, prosecuting the act i on in both Ray ’ s n ame and his own. Kimberly moved for no
- evidence and tra ditional summary judgment, arguing that she was entitled to judgment as a matter of law and that there were no issues of material fact regarding Lot 49 ’ s status as heirs ’ p rope r ty, the terms of the Agr eement, the Agreement ’ s stated
division of owners hip, and the valu e of Lot 49

. Specifically, Kimberly agreed with the plaintiffs ’ $275,000 .00 estimate of Lot 49 ’ s value, agreed that L ot 49 should be partitioned by sale, and

ar gued that she was enti tle d to judgmen t as a matter of law, because under the t erms of the Agreemen t, the parties ’ respective ownership rights to Lot 49 were that Jeffrey owned 12/16, she owned 1/16, Scott owned 1/ 16, and Ralph owned 2/16 (1/ 8). PointBank adop t ed Kimberly ’ s

mo tion. Jeffr ey and Scott responded to the motion and disputed Kimberly ’ s ownership claims. Jeffrey filed a competing motion for summary judgment. On January 15, 2021, the 462 nd Court transfer red the case to the 431 st Court

. However,
fou r days later, on January 19, 2021, Kimberly ’ s motion for summary judgment was granted b y the 462 nd Court , the Honorable Lee Ann Breading presiding. The motion for a new trial filed by Jeffrey and Scott was den ied by operation of law. Jeffrey appealed fro m the 462nd C ourt ’ s order. 3

3 Scott did not file a notice of a ppeal.5

(1) The 462nd Cour t Had Authority t o Issue t he Instant Judgment Jeffrey contends that (a) the 362nd Court abused its discretion by transferring the case to
the 462 nd Court and (b) t he 462nd Court erred by en tering the final jud gm ent in t he case after it
had been transferred to the 431st Co urt. Transfer number one hap pened this way. On February 27, 2020, the 362nd C ourt
transferred the case to the 462nd Court after finding that
the parties and cause of acti on in [the] case [we re ] the s ame or substant ially similar to those in cause 18

- 10743

- 211. Judge Breading of the 462nd [ Court] hel d various hearings in the previously filed case. Therefore , in the interest of judicial econo my and to avoid conflicting ruli ngs, judgme nts, or o rd ers, the Court [transferre d the] case from the 362nd Judicial District Court to the 462 nd Judicial Distri ct Court. Jeffrey contends that the trial court erred by transferring the case to the 462nd Cour t. B ut that contention by Jef

f rey was not pres erve d for our review. To preserve a complaint for our revi ew, a part y must first present to the trial court a timely request, objection, or motion stating the specific grounds for the desired ruling if not
apparen t from t he context. T EX

. R. A PP

. P. 33.1( a ) ( 1 ). Further, the trial court must have ruled on
the re quest, obj ection, or motion, eithe r expressly or implicitly, or the complaining party must have objected to the trial court ’ s refusal to rule. T EX

. R. A PP

. P . 33. 1(a ) ( 2). Here, the case was transf erre d to the 462nd Court in February 2020, and for the next year , Jeffrey filed multiple pleadings in that court, but he made no objection to the transfer until the motion for a new trial he filed in February 2021, af ter the court had g rant ed Kimberly ’ s mo tion f or summary judgment. An objection not o ccurrin g until a year after the tr ansfer and final disposition of the case is6

untimely, and therefore, this issue was not preserved for our review. See T EX

. R. A PP

. P. 33.1(a ) ( 1).
The other tr ansfer happened this w ay. On January 15, 2021, the 462 nd Court transferred

t he case to the 431st Court

. However, four days later, on January 19, 2021, Kimberly ’ s motion for summary judgment was granted b y the 462nd Court. Jeffr ey argues that , b ecause th e case had alrea dy b ee n transferred to the 431st C ourt, the 4 6 2nd C ourt erred by entering a fina l order
in the case. 4 Transferring a case does not require a form al assignment or written order because tr ial
courts have “ broad di scretion to excha nge bench es or transfer c ases
. ” In re Houston Lighting &
Power Co. , 976 S.W.2d 671, 673 ( Tex. 1 998) (ori g. proceeding) (quoting European Crossroads ’ Shopping Ctr. v. Criswell , 910 S.W. 2d 45, 52 (Tex. App.

— Dalla s 1995, writ denied) ) . Rule 330(e) of the Texas Rules of Civi l Procedu re p ro vides : Where in such county there are two or more district courts havin g civil jurisdiction, the judges of such court s may, in their discretion, exchange benche s or districts from time to time, and may trans fer cases and other procee dings fr om one co urt to another, and any of them may in his own courtroom try and determine an y case or proceeding pending in another court without having the case transferred, or may sit in any other of said courts and there hear and determine any case th ere pend ing, and ever y judgment and order shall be entered in the minutes of the court in whic h the case is pending and at the time the judg ment or order is rendered, and two (2) or m ore judges may try d ifferent cases in the same court at the same time, an d each m ay occupy his o wn courtroom or the room of any other court. The judge of any such cou rt may issue restraining orders and injunctions returnable to any other judge or court, an d any judge may tra nsfer any case or proceedin g pending in his court to any other of said cou rt s, and the judge of any court to which a case or proceeding is transfer red shall

4 A s with all of Jeffrey’s po ints of e rror, Kimberly summarily argues that Jeffrey failed to preserv e this argument for appeal. However, even i f p r e servat io n was needed, Jeff rey raised the issue in his motion for a new trial , which was overruled by operation of law

. See T EX

. R. A PP

. P. 33.1(a) , (b) . Therefore, this issue w as preserved for appella te review.7

receive and try the same, and in turn shall have power in his discretion to tran sfer any such case to any other of said courts and any other judge may i n his cou rtroom t ry a ny case pending in any other of such courts
T EX

. R. C IV

. P. 330(e). Acc ordingly, we review a trial court ’ s decision to transfer a case, exchange benches, or hold court for each oth er for an abuse of discreti on. See i d

. ; European
Cro s sroads ’ Shopping Ctr

. v. Criswell , 910 S.W. 2d 45, 5 1 (Tex. App.

— Dallas 1995, writ denied)

. A trial court abu ses its discretion when it does not follow g uiding rules and principles
and reaches an arbitrary and unreasonable decisi on. Walker v. Packer , 827 S.W.2d 833, 839 (T ex
. 1992) (orig. proceeding); Flores v. Fourth Court of Appeals , 777 S.W.2d 38, 41

– 42 (Tex. 1989) (orig. proceeding). Jeffrey contends that the 4 6 2nd Court abused its discretion because there is no transfer
orde r noting a tran sfer of t he case back to t he 4 6 2 n d Court, and even if Judge Breading could
hear the case and enter a final or der, error occurred because the final order was not “ entered into the minutes of the [431st Court ] in which the case [was ] pending a t the time the

. . . ord er [was]
rende red

. ” Se e T EX

. R. C IV

. P. 330(e). Here, Denton County has two or mor e district courts with civil jurisdiction , and therefore, under Rule 330(e), Judge Breading was free to sit i n her own courtroom, hear the case even though it was pending i n the 431st Court , an d e nter a final order in
the case. See T EX

. R. C IV

. P. 3 30(e). Jeffrey also argues that the order was not entered into the

m inutes of the 431st Court, but this a rgume nt lacks merit because the record does not contain the
minutes of t he 431st Court or the c o urt ’ s docket sheet for this case. See i d. Therefore, this point
of error is overruled.8

(2) The Judgment Must Account f or Post

- Agreement Transfers
The parties disagreed on how the Agreement divided the owner s h ip interests in Lot 49 and how the proce eds of Lot 49 ’ s sa le should be distributed. To resolve that disagreement, the parties filed competing motions for no

- evidence and traditional summary j udgmen t, asking the trial court to affirm their respective int e rpretations. The trial court granted Kim berl y ’ s motion
fo r summary judgment and , although it is not explicitly stated, necessarily overruled Jeffrey ’ s motion. The trial court found that the A greeme nt was “ clear and unambiguous ” and that it
divided Lot 4 9 ’ s ownership as follows:
1. Ray Allen Rog ers (n o w Jeffrey Allen Rogers as a result of a deed) owns 12/16.
2. Kimberly Annette Coslett owns 1/16.
3. Scot t Mitchell Suddath owns 1/16.
4. Ralp h Milton S uddath owns 2/16. In its ruling, the court ordered that L o t 49 be sold and the pr oceeds distribute d as p e r the terms of the Agreement above. Jeffrey contends that Kimberly ’ s motion for summary judgment was granted in error and his motion was den i ed in err or
. A traditional motion for summary judgment is grante d only when the movant es tablishes
that th ere ar e no genuine issues of material fact and that the movant is entitled to judgment as a
matter of law. Mann Frankfort Stein & Lipp Advisors , In c. v. Fielding , 289 S.W. 3d 844, 848 (Tex. 2009). An appellate cou r t reviews de no vo t he gr ant or denial of a mo ti o n for summary judgme nt. Id

. Where, as here, both parties file motions for summary judgment and the court grants one and overrules the other , we consider both sides ’ summary judgment evidence and9

determine a ll questions pr esen ted, and if the trial cour t e rred, we render the judgment the trial
court should have rendered. Tex. Mun. Power Agency v. Pub. Util. Comm ’ n of Tex

. , 253 S.W.3d 184, 192 (Tex. 2007); Comm ’ rs Cou rt v. Agan , 940 S.W.2d 77, 81 (Tex. 1997); Peterson , Goldm an & Vill ani v. Ancor Hold ings , L P , 584 S.W.3d 556, 5 62 (Tex. App.

— Fort Worth 2019 , pet. denied )

. A no

- evidence summary judgment is essentially a pretrial directed verdict, a nd we apply the same legal sufficienc y standard in reviewing a no

- e vidence summary judgment that we apply
in rev ie w ing a directed verdi ct. Marts ex rel. v. Transp. Inc . Co. , 111 S.W.3 d 699, 703 (Tex. App.

— Fort Worth 2003, pet. denied)

. We review the evidence in the light most favorable to the party against who m t he no

- e vidence summary judgment was rendered. J ohns on v. Brewer &
Pritchard , P.C. , 73 S.W.3d 193 , 208 (Tex. 2002) ; Morga n v. Anthony , 27 S. W.3d 928, 929 (Tex. 2000). If the nonmovant brings forward mor e than a scintilla of probative evidence that rais es a
genu i ne issue of material fac t, then a no

- evid ence s u mmary judgment is not proper. Moore v.
K Mart Corp. , 981 S.W.2d 266, 269 (Tex. App.

— San Antonio 1998, pet. denied). The parties do not dispute that Lot 49 is heirs ’ property under Chapter 23A of th e Propert y Code ; that , at the time of the Agreement , it h a d been the community property of Ray
and Linda ; that the Agreem ent divided the ownership of Lot 49 ; or that Lot 49 should be partitioned by sale. The parties primarily disagree on the meaning and ef fect of t he Agreement.
Under th e terms of the Ag reem en t , (1) Ray received an “ [u]ndivided one
- half (1/2) community property share ” of Lot 49 and “ [a]n additional undivided one

- fourth (1/4) community prop erty
share ” of Lot 49 , (2) Kimberly receive d “ [a]n undivided one
- eighth (1/8) share of Decedent ’ s10

one
- hal f ( 1/2) community property share ” of Lot 49 , and (3) Scot t received “ [a]n undivided one

eighth (1/8) share of Decedent ’ s one
- half (1/2) community prope rty share ” of Lot 49

. The Agreement did no t speci fically aw a rd any share of Lot 49 to Ralph , but it did aw a rd him “ the
residue of D ecedent ’ s estate after all the bequest and distributions ha [d] been made. ”
We affirm the trial court ’ s order regarding the Agreement ’ s division of ownership. The Agr eement ’ s pertine n t language is plain and unambiguous, and it s ta t es that Ray owned 12/16, Kimberly owned 1/16, and Scot t owned 1/16. Because the Agreement distributed only 14/16 of the ownership of Lot 49 , the re maining 2/16 interest passed to Ralph with t he residue of t h e
estate. The pa rties do not dispu te t ha t Ray had co nveyed his ownership interests to Jeffrey o r that, on Ray ’ s passing on February 14, 2020, Jeffrey was fully vested in Ray ’ s 12/16 ownersh ip
of Lot 49

. However, the trial court erre d in or dering that the p roceeds of the s ale be distributed as
pe r the terms of t he Agreement because the summary judgm ent evidence showed that the various ownership interests in Lot 49 had changed since the execution of the Agreement. 5 Jeffrey ’ s first
amend ed motio n for summar y judgment refere nced, and had attac hed to it, several deeds, and Kimberly did not object to th at summary judgment evidence. In a deed dated September 8, 2020, Scott conveyed his 1/16 ownership interest in Lot 49 to Jeffrey. Also atta ched to the
motion w e r e deeds and ple adings showing that Jef fr e y essentially purchased Ralph ’ s 1/8 ownership intere st in Lot 49 from PointBank , the holder of the judgment lien against Ralph ’ s

5 Kimberly summarily contends that Jef fre y failed to preserve this argument for review. Howev er , this issue was raised in Jeffrey’s amend ed motion for summary judgment

. See T EX

. R. C IV

. P. 166 a
. The trial court necessaril y rejected this argument by granting Kim berly ’s motion for summary jud gme nt.11

interest . The attachments included (a) an orde r from the County Cou rt at Law No. 2 o f De nton
Cou nty ordering that, in p arti al satisfaction of his debt to PointBank, Ralph ’ s 1/8 interest in Lot
49 “ be sei zed by and turned over to the Turnover Receiver, James N. Richards ” and (b) a Special Warranty Deed f

rom that receiver conv eying Ralph ’ s 1 /8 in terest in Lot 49 to Jeffrey. As pe r the conveyances, Jeffrey acquired Scott ’ s 1/16 ownership interest and Ralph ’ s 1/8, which, in addition to his 12/16 interest from Ray, vested him with 15/16 ownership interest in L ot 49

. Therefore, the trial cour t err ed in i ts distribution of t he sa le p roceeds. Accordingly, we partially sustain this point of error, reverse this portion of the trial court ’ s order, and render an order that the proceeds of Lot 49 ’ s sale, after cl osin g fees and commissions are paid, s h oul d be di st ributed
15/16 to J effre y a n d 1/16 to Kimberly. (3) The Trial Court Must Receive a Report o f Sale a nd D istribute Its Net Proceeds Jeffrey also contends 6 t hat the trial court erred by failing to order tha t ( a ) the appointed
real estate broker c o m ply with Chapter 23A ’ s requir ement s t o file a report with the court and ( b ) the proceeds of sale be deposited in the registry of the court for distribution. 7

6 Ki mbe rly cont ends tha t Jeffrey failed to preserve his fourth point of error for appe al. However, Jeffrey requ ested in his motion for summary j udgment that the partition comply with Chapter 23A , and his req u est w as necessarily denie d by the tria l c our t ’s fin al order. Furthermore, Jeffrey also raised the issue in his responsive pleading to t he j udgment, i.e., the motion for a new trial. See T EX

. R. A PP

. P. 33. 1(a) , (b) . Therefore, this issue was pre s erved for appellate review.

7 Jeffrey also argue s t h a t t h e tr ial court erred by failing to issue two separate, final orders as is customary in pa r tit ion sales. We disagree. Unlike the general partition sale provisi ons of Ch apter 23 where the commissione r s’ valuation of the property must be approved by th e cou r t pr ior to sale, a broker’s sale under S ection 23A.010 can be completed without court ap p ro val , when the price meets the court’s valuation. H ere, the court ha d alread y determined the property’s val u e, ownership, and the necessity of partition by sal e , th e r eby eliminating the necessity of separate orders . Neither Chapter 23A in general, nor S e ctions 23A.010

– 011 in particular, require the broker’s report to be a pproved by the court before the sale is completed. T EX

. P ROP

. C ODE A NN . § § 23A.001

– . 0 13 (S u p p.)

. In fact, S ection 23A.010(c) states that , when t he broker receives an offer to purchase the prop erty for at least the determ ined value, the broker shall issue a report to the court under 23A.011, a n d “ the sale may b e completed in accordanc e with sta t e la w oth er than this chapter.” T EX

. P ROP

. C ODE A NN

. § 23A. 010(c) (2).12

The broker should file a report of sale. When an appoi nted broker receives an offer to purchas e the prope r ty for at least the court ’ s p reviously determined value, the broker is required to file a report in acco rdance with S ection 23 A

. 011. Section 23A.011 sta tes: (a) Unless required to do so earlier by other law governing the partition of real prop e r ty, a bro k er appointed under S ectio n 2 3 A.010(b) to offer heirs ’ property for open

- market sale shall file a repo rt with the court not later than the seventh day aft er the date an offer is received to purchase the p roperty for at least the value determined u nder Sect i on 23A.006 or 23A.01 0.

( b) T he report required by Subsection (a) must contain the following informa tion: (1) a description of the property to be sold to each buyer; (2) the name of each buyer; (3) the pr oposed purchase price; (4) the t erms and c onditions o f the proposed sale , inc lud i ng the terms of any owner financing; (5) the amounts to be pai d to lienholders; (6) a statement of contractual or other arrangements or conditions of the broker ’ s commission; and (7) other material fac ts relevant t o the sal e.
T EX

. P ROP

. C ODE A NN

. § 2 3A.011

. Jeffrey contends that the order fails to r equire the broker to comply with S ections 23A.010 and 23A.011. Here, the or der does not specify that the broker compl y with the provisions of Chapter 23A. Specifi c a lly, the order neit her require s the br o ker to file a report with the court nor specifies what the report is to contain as is required under S ection 23A.011 , subsections (a) and13

(b)

. T EX

. P ROP

. C ODE A NN

. § 23A.011. Ther efore , we sustain this p oint of er r o r, revers e this portion of the orde r, a nd render an order that requires the broker to c omply with the provisions of
S ection s 23A.010 and 23A.011. Additionally, the net proceeds of sale are to be paid into the registry o f the trial court.
Gene rally, the p r ovisions of Chapter 23 of the Texas Pr o perty Code and the Texas Rules of Civil
Procedu re govern partition actions. See T EX

. P ROP

. C ODE A NN

. § 23.001. However, if the court
determines that the property to be partitioned i s heirs ’ property, it “ m ust be p a r titioned under ” Chapter 23A. T EX

. P RO P

. C ODE A NN

. § 23A.003(a)

. Chapter 2 3A “ supplements Chapter 23 and the Texas Rules of Civil Procedure governing partition of real property. ” T EX

. P RO P

. C ODE A NN

. § 2 3A.003 (b)

. To the e xtent any provision of Chapt e r 23A is i nconsistent with thos e of Cha p ter
23 and/or the Texas Ru les of Civil Procedure, Chapter 23A governs. T EX

. P ROP

. C ODE A NN

. § 23A.003(b); see S w. Bank v. I nfo

. Support Concepts , 85 S.W.3d 462, 464 (Tex. App.

— Fort
Worth 2002 ) , aff ’ d by 149 S.W. 3d 1 0 4 (Tex. 2 004) (citing T EX

. G OV ’ T C O DE A NN . § 311.026(b)). Because neither Chapter 23 nor Chapter 23 A contain specific instructions as to where the proceeds of sale should be deposited before distribution, the pr o visions of the Tex as Rules of Civil Proce d u re that a ddress partition of r ea l e sta t e govern the issue. T EX

. P ROP

. C ODE
A NN

. § 23A.003(b) Under Rule 770 , “ the proceeds [of a partition sale] shall be returned into the court and be partitioned among the persons entitled thereto, accordin g to their r e spect ive
interests. ” T EX

. R. C IV

. P. 770 (emphasis added)

. He re, th e order states only that , “ after closing fees and commissions are paid , ” “ any remaining proceeds from the sale of the property [ are to be] distributed ” to the heirs in the shares14

sta t ed in t h e order. There is no requirement that the sale p roceeds be “ retur ned into the court ” for distribution as is required by Rule 770. See T EX

. R. C IV

. P. 770. Therefore, we sustain this point of error, reverse this portion of the ord er, and render an o rder t hat requires the sale proceeds “ be ret urned into the court ” for a ppr o priate distribution. (4) On Remand , Lot 4 9 ’ s Valu e Must Be Determined Jeffrey further contends that it was err or to order the sale of Lot 49 without first holding
an evidenti ary he arin g to determine its value. 8
When a cour t determi nes that the p roper ty t hat is the subject of a partition action is heirs ’ property as defined by S ection 23A. 002 ( 5) of the Property Code, the trial court must dete rmine the property ’ s value. 9 T EX

. P R OP

. C ODE A NN

. § 23A. 006 . If the parties agree on the value of the

8 Kimberly sum marily co ntends that Jeffrey failed to preserve this argument for review. Howev er, Jeffrey ’ s mo t i on for summary judgment argued that the trial court had to h o ld an evi den t iary h ear i ng regarding the p roperty’s value, and the trial court’s final or der

— entere d without having held such a hearing

— implicitly rejected his argument

. Therefore, Kimberly ’s contention is without mer it

. See T EX

. R. A PP

. P. 33.1(a) (1)

.
9 “ H eirs’ p rop e rty” i s d ef

ined as: (5)

. . . real property held in tenancy in com mon that satisfies all of the following requireme n ts as of the filing of a parti tion action: (A) there is no agreement in a record bind ing all the cotenants that gover ns th e p a rtition of the pr ope rty; (B) one or more of the cotenants acquired title from a relativ e, whet her living or deceased; and (C) a ny of the following applies: (i) 20 percent or more of the interests are held by cote nant s who are relatives; (ii) 20 perc ent or more of the i n ter ests are held by an individual who acquired title from a rel ative, w hethe r living or deceased; or (iii) 20 p ercent or more of the cotenant s are relatives.
T EX

. P ROP

. C ODE A NN . § 23A.002(5).15

pro perty , “ t he court shall adopt that value. ” T EX

. P ROP

. C ODE A NN

. § 23A.006(b). If the parties do not agree, the court “ shall

. . . order a n appraisal ” by a n appointed, disinterested real es tate

a ppraiser, who w ill file the appraisal with the court to be a dmitt ed a s evidence in an evidentiary hearing to determine the property ’ s value. T EX

. P ROP

. C ODE A NN

. § 23A.006(a), (d). However,
if the cour t determin e s that the “ evidentiary value of an appr a i sal is outwei ghed by the cost of the appraisal, the court, a fter an e videntiary hearing, shall determine the fair market value of the property and send notice to the parties of the value. ” T EX

. P ROP

. C O DE A NN

. § 23A.006(c). Here, the parties agree t hat ( a ) Lot 49 is subject to the provisions of Chapter 23A of the
Texas P r o perty C ode because it is heirs ’ property under S ection 23A.002(5) and (b) it cannot be partitioned in kind but should be partitioned by sale. The factor at issue is Lot 49 ’ s value. Wh e n Jeffrey ’ s suit was filed in November 2019, he asserted that Lot 49 w as worth approximately $275,000 .00

. Four months later, in Kimberly ’ s March 24, 2020, motion for summary judgm ent , she agreed to th e $275, 000 .00 valu ation

. However, in Jeffrey ’ s re spon s e to her motion, he complained that Ki mberly “ had [had] over a yea r a n d a half to agree to a fair market value of $275,000 .00 , ” asserted that his own previous estimate of $275,000 .00 was now “ baseless and
frivolo us , ” and claimed that the value of Lot 49 w a s again in dispute because he no longe r believed Lot 49 to be wort h $ 2 75,000 .00

. In his subsequent pleadings, Jeffrey argued that th e $275,000 .00 value estimate was “ stale, ” submitted with his motion for summary judgment an affidavit and an appraisal tha t valued Lot 49 at $303,000 .00 , and aga in asked the court to h old a16

h e a r ing to determine Lot 49 ’ s value. 10 No evidentiary hearing was held. In granting Kimberly ’ s motion for summary judgment without having held a n evidentiary hearing, the trial court impl i c itly found that the parties had agree d to the $275,000 .00 va lue , re j e cted Jeffrey ’ s argument, and as required under S ection 23A.010(b), orde red Lot 49 sold “ in a commercially reasonable manner at a pric e no lo wer ” than the value of $275,000.00. ( E mp hasi s added)

. Jeffrey contends that the tr ial court erred by fail ing t o h o ld an evidentiary hearing, as there was no agreement regarding Lot 49 ’ s v alue. We agree. Jeffrey ’ s previous estimate of $275,000 .00 is not b i nding on him as a judicial admission
be caus e that estimate was contained within a superseded pleading. 11 See S o sa v. Cent. Power & Light , 909 S.W.2d 893, 895 (Tex. 1995); Sanders v. Future C om. , Ltd

. , No. 02

- 15

- 00077

- CV

. 2017 WL 2180706, at *6 (T ex. App.

— F ort Worth, May 18, 2017 , no pet. ). Bot h wh e n Jeffrey requested the evide ntiary he aring and when the tria l cou r t g ranted Coslett’s motion for summary judgment, the parties differed as to L ot 49’s value . Therefore, beca use there was no meeting of
the minds between the parties as to value , th e t rial c ourt erred by failing to c onduct an

e videntiary hearing as r equir e d u nder Chapter 23A. See T EX

. P ROP

. C ODE A NN

. § 23A.006(a), (c), (d). Accordingly, we sustain this point of error and remand the c ase for an evidentiary hearing and further pro ceedin gs o n this issue

.

10 Je ffr ey fa iled to direct this Cour t to any legal a uth o rit y r equ iring the trial court to repeatedly determine the p roperty’ s value o nc e it has been accepted or established, and we are aware of none.

11 Th e facts alleged or admitted in the live pleadings of a p art y are accepted as true by the cour t a n d jury and ar e bi ndi ng on the pleader. Houston First Am

. Savs. v. Musick , 65 0 S .W.2d 76 4, 767 (Tex. 1983).17

(5) On Remand , t he Fraudu lent

- Lien Claim Should Be Re s ol v ed a nd Attorney Fees Reassessed Jeffrey also argues that the trial court erred in granting the summary jud gment as to h is
fraudu lent

- lien claim against Kimberly, b ecause Kimb erly ’ s mot i o n for summary judgment did not reques t judgment as to it

. We ag ree
. In June 2020, about three months after Kimberly filed her motion for summary judgment, Jeffrey filed am ended p leading s that

— i n addition to partition

- related claims regardi ng the Agr eeme n t , the ownership of Lot 49 , and dist ribution of its sale pro ceeds

— al s o raised a claim against Kimberly for filing a n allegedly fraudulent lien against Jeffrey ’ s real propert y. 12 A summary judgmen t movant m ay not be granted judgment on a clai m or cause of a c tion
not addressed in its motion. Black v. Victoria Lloyds Ins. Co

. , 797 S.W.2d 20, 27 (Tex. 1990);
see also Young v. H

odde , 682 S.W.2d 236, 237 ( Tex. 1 984) ( “ the tri al c ourt erred in renderin g the take

- nothing judgment against Hodde ’ s co unterclaim in t h e absence of a motion for summary judgment by Young seeking that re l ief ” )

. If a defendant moves for summary judgment on only one of four claims asserted by the plainti ff, but the trial court re nders judg ment that the plaintiff take nothing on all cla ims a sserted, the judgment is final

— err oneous, but final. Lehma nn v. Ha r Con Corp

. , 39 S.W.3d 191, 200 (Tex. 2001)

.

12 The amended peti tio n s r aised cl aims against Ralp h and /o r Kimberly for (1) breach of fiduciary duty , (2) filing a fraudulent lien or claim agai n st Lot 49 , (3) common
- la w fraud , (4) statutory fraud , (5) breach of contr act , and (6) filing a fraudulent lien against real prope rty

. H owever, Jeffrey’s app ella te pl ead i ngs only specifically challenged and briefed the dismissal of the latter claim for f ra udulent lie n

— t h e clai m t hat Kimberly filed a fraudulent lien against Jeff

rey’s real property . We do not address the dis missal of th e re maining five claims b ecau se Je ffr e y failed to adequately brief such complaints. Parties on appeal must file ad equate briefs. See T EX

. R. A P P

. P. 38 .1(i); ERI Consulting Eng ’ rs, Inc. v. Sw i nnea , 318 S.W.3d 867, 880 (Tex. 2010)

. Because he failed to cite to the reco rd a nd case law explaining how any of the remaining five claims were brought on his ow n b ehalf rather than that of Ray o r S c ott, t he argum ents, to the extent they were raised, ar e forfeit ed. See Fredonia State Bank v. Gen. A m. Life Ins. Co

. , 88 1 S.W. 2d 27 9, 2 84

– 85 (Tex. 1994) (recognizing long

- standing rule that error may be forfeit ed due to inadequate briefing).18

It is undisputed that Kimberly ’ s motion for summary judgmen t did not address th e fraudulent

- lien claim

. However, on June 11, 2020, Kimber ly r e sponded to Jeffrey ’ s amended petit ion by filing a motion to show au t hority, arguing (1) that the fraudulent

- li e n claim, along
with the other five non
- part ition causes of action raised in the amende d petitions , were “ claims on behalf of Ray Allen Roger s , ” a nd (2) that, b ecause the claims we re being brought on his
b ehalf a f t er his death and without the authority of his Estate, Jeffrey ’ s counsel lacked the authority to bring the claims and t he pleadings should b e str u ck. After a hearing, t he trial court
gra n t ed Kimberly ’ s motion to show autho rity, struck all pleading s and cl a ims made on behalf of Ray , and, having found that it was frivolous to bring the clai ms without authority, awarded
Kimb erly $1 , 710.00 in att orney fee s. On appeal, Kimber ly contends th at h e r motion for summary judgment did not have to
address the f

raudu len t

- lie n claim because the trial court ’ s order on authority had already
dismissed it as a claim made on behalf of Ray

. Jeffrey concedes th at the order on authority

“ struc k all claims an d p l e adings brought

. . . on behalf of Ray Allen Rogers or [his] Esta te, ” but he argues that the “ fraudulent lien or claim against real property ” cause of action was a claim
asserted on his own behalf and ther efore was no t dismissed by the c ourt ’ s order on au t h ority. 13 We agree with Jeffrey.
J effrey alleged that (a) K imber ly “ recovered an erroneous judgment ” against Ray, Scott , and Jeffrey, joint and severally , “ for the sum of $23,401.83 ” ; (b) Kimberly filed “ an abstract of

13 Scott di d n o t appe al from the trial court’s summary judgment order

. Therefore, to the extent they were rai sed, we do not address an y argum ent t hat Scott’s claims were erroneously dismissed. See T EX

. R. A PP

. P

. 25.1(c), 26.1 , 38. 1(f )

.19

judgment lien , ” attaching the li en t o all non
- exempt property of the ju dgment debtors; (c) Jeffr ey ’ s int e rest in Lot 49 was posted for foreclosure in March 2020 ; (d) Jeffrey paid the judgment in full; and (e) Kimberly ref used to provide him with a reco rdable release of the judgment lien and c ontinued to use the lien to “ force ” Jeff rey to pay addition al fu nds to avoid
foreclosure. While this claim might also be related to claims of others , it states a claim on Jeffrey ’ s behalf because it al leges that Kimber ly ’ s allege dly fraudulent action s c a u sed a foreclosure action against J effrey ’ s interest in Lot 49

. The r efore, the court ’ s order dismissing claims filed on Ray ’ s behalf did not dismiss those filed on Jeffrey ’ s interests . B e cause the clai m was not referen ced in Kimb erly ’ s motion for sum mar y judgment, summary judgment was

err oneous as to Jeffrey ’ s in teres ts

. See Black , 797 S.W.2d at 27. Accordingly, we sustain this point of error, reverse the summary judgment as to this clai m, and remand the claim for fur ther
procee dings on Jeffrey ’ s cl aim a gainst Kimberly alleging a fraudul ent lien

. The trial court awar ded Kimberly attorney fees , in addition to her previous award for
frivolous claims , but neither the record nor the order reflect s the legal basis for the subsequent
award. Because t his C our t ’ s opinion re verses portions o f the trial cour t ’ s final order, w e also remand the issue of attorney f ees so that the trial cour t may re c onsider any award in light of this opinion and further proc eedings. For the reasons stated above, we make these ru l in g s : (1) We hold that the 462n d Judicial District Court of Denton C ounty had authority to
issue the ins tant judgment, because (a) Jeff rey failed to preserve his challenge to the transfer of
the case from the 362nd Judicial District Court of Denton County to t he 462nd Court and (b) the20

furt her tr ansfer of the cas e to t he 4 31s t Judicial District Court of Dent on County did not, on this

reco rd, deny the 462nd Court the power to rule. (2) We hold that the judgment must account for post

- Agreement transfers, bec aus e , although th e trial court ’ s interpr etation of the Agreement ’ s al locatio n of o wnership in Lot 49 was correct, the order ’ s distr ibuti on o f the sale proceeds did not account for the post

- Agreement transfers that were established by the summary

- judgment e vid e n ce. (3) We hold that the trial cou rt must receive a report of a sale fr om t he appointed
broker in co mpliance with Sections 23A .010 and 23A.011 of the Texas Property Code , receive
the sale ’ s net proceeds into the registry of the court, and distribute t hos e net proceed s, under the law app licable to heirs ’ property suc h a s Lot 49, as set out above, by all oc at ing 15/16 of those net p rocee ds t o Jeffrey and 1/16 to Kimberly

. (4) We hold that, on remand, Lot 4 9 ’ s value must be determined by an evidentiary
hea rin g as set ou t above. (5) We hold t hat, on remand, the fraudul ent

- li en claim should be resolved , and

a tt o rney fees should be reass essed in light of this opinion and further proceedings. Based on the above rulings, we make the following dispositions in thi s c a s e: (1) We af

firm the trial court’s interpretation of the Agree ment’s allocation of ownership in Lot 49 , b ut , because the judgment must acc o unt for post

- Agreement transfers, we reverse the summary judgment as to the distribution of proceeds and render a ju dgm e n t that t he sale proceeds must b e distributed 15/16 to Jeff rey an d 1/16 to Kimberly ;21

(2) We further ren de r a judgment requiring the appo int e d broker to provide a report
to the trial court in compliance with Sections 23A.010 and 23A.011 and requiring that t he s a le’s

net proceeds be received i nto the registry of the tri al cou rt for distribution in accordance wi t h this opinion ; (3) We revers e the ju d gment as to the value it assigned to Lot 49 and remand the issue for an evidentiary hearing to determine Lot 49’s va lue ; and (4) We reverse and remand the summary judgment as to t he fra udulent

- lien claim
and as to attorne y f

ees for further proceed ings con s istent wi t h t h i s opinion

.

Josh R. Morriss, III Chief Justice
Date Submi tted: October 14, 2021 Date Decided: A pri l 6 , 202 2