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Actions Involving Same Property Right or Title

The mere fact that the same property is in controversy in two different actions or that the same right or title is involved is not sufficient ground for abatement.  In Old Nat’l Fin. Servs. v. Seibert, 194 Cal. App. 3d 460, 465 (Cal. App. 1st Dist. 1987), the court held that pendency of another action concerning title is immaterial to the resolution of an unlawful detainer proceeding.  In Fegaro v. South Central Bell, 287 Ala. 407 (Ala. 1971), the court held that a plea in abatement based on the pendency of a prior action is available only where a judgment in the prior suit will conclude the parties with respect to the matters raised in the second suit.

In a plea of abatement grounded upon the pendency of a previous suit, a party has the burden to prove that the issues in the previous suit were the same as the issues in the instant suit. The usual test for determining if the same issues are involved in the two suits is if a judgment in the first case would dispose of all of the issues in the second case. [Reiter v. Reiter, 788 S.W.2d 201 (Tex. App. Fort Worth 1990)].

According to Tex. Rev. Civ. Stat. art. 3994 the proceedings under a forcible entry, or forcible detainer, shall not bar an action for trespass, damages, waste, rent or mesne profits.  The action of forcible entry and detainer and the action of trespass to try title or other possessory action in the district court provide cumulative remedies and is prosecuted concurrently.  [Slay v. Fugitt, 302 S.W.2d 698, 701 (Tex. Civ. App. Dallas 1957)]

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