March 27, 2023

Volume XIII, Number 86


March 24, 2023

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Court Granted Mandamus Relief To Order District Court To Abate Trust Dispute Due To Earlier Filed Suit In Probate Court

In In re McGowan, a dispute arose regarding whether certain interests in real property were funded into a trust or whether the decedent still had those interests at the time of his death such that they were in his estate. No. 03-22-00726-CV, 2023 Tex. App. LEXIS 168 (Tex. App.—Austin January 11, 2023, original proceeding). The parties claiming that the interests were in a trust, the Sisters, filed claims in the probate case. Later suit was filed in district court regarding the same issues. The Sisters then filed a motion transfer the claims from the probate court to the district court and consolidate them. The trustee/executor filed a motion to abate in the district court due to the previously pending claims in probate court. The district court granted the motion to consolidate and denied the motion to abate. The trustee/executor filed a petition for writ of mandamus with the court of appeals challenging the denial of the motion to abate.

The court of appeals recognized that generally an earlier filed suit has dominant jurisdiction: “When two pending suits are inherently interrelated, and venue is proper in the court presiding over either suit, “the court in which suit was first filed acquires dominant jurisdiction. In these circumstances, the general rule is that the court in the second action must abate the suit. This first-filed rule flows from “principles of comity, convenience, and the necessity for an orderly procedure in the trial of contested issues.” Id. The court of appeals noted that the two suits were interrelated:

Dominant jurisdiction only arises when the two pending lawsuits are “inherently interrelated.” Based on the briefing and the record before us, the Probate Suit and the Trust Suit are inherently interrelated (and the parties concede that the suits are interrelated). This is unsurprising, given that the Probate Suit and the Trust Suit are functionally two sides of the same coin: determining whether the same disputed properties—the Concho Property and the Menard Property—should be properly characterized as either trust or estate assets, and the corresponding legal implications of that characterization on Wally’s conduct individually and in his capacities as executor and trustee.

Id. After rejecting contentions about the probate court not having jurisdiction over the trusts and whether the correct parties were before the probate court, the court of appeals granted the mandamus relief, ordering the district court to abate its later-filed case.

© 2023 Winstead PC.National Law Review, Volume XIII, Number 30

About this Author

David Johnson Financial Institution lLtigation Winstead Law Firm Fort Worth Texas
Managing Shareholder - Fort Worth

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the Texas Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. 

David's financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class...