In In re Kelly, a former executor and the trustee of a testamentary trust initiated a probate proceeding in a county court at law. No. 11-24-00066-CV, 2024 Tex. App. LEXIS 3735 (Tex. App.—Eastland May 30, 2024, original proc.). An opposing party filed claims against him in the probate proceeding and also filed a suit in district court to remove him as trustee. The former executor filed a motion to abate in the district court, alleging that the county court at law had dominate jurisdiction over the dispute. After the district court denied the motion to abate, the former executor filed a petition for writ of mandamus.

The court of appeals noted that as a general matter, the court in which suit is first filed acquires dominant jurisdiction to the exclusion of other coordinate courts. “As a result, when two suits are inherently interrelated, ‘a plea in abatement in the second action must be granted.'” Id. The court stated that it must determine whether the county court at law’s probate jurisdiction extends to the issues raised by in the district court. The court noted that “Texas probate jurisdiction is, to say the least, somewhat complex.” Probate proceedings must be filed and heard in a court that exercises original probate jurisdiction, which was the county court at law in this particular case. When it exercises its original probate jurisdiction, the county court at law has jurisdiction over “all matters relat[ing] to the probate proceeding[s]” as specified in section 31.002 of the Estates Code. The court stated:

Section 31.002(b), in turn, indicates that the jurisdiction of a probate court extends to “the interpretation and administration of a testamentary trust if the will creating the trust has been admitted to probate in the court.” The parties clash over the meaning of “administration” in Section 31.002(b).…

In this case, we are called on to ascertain the meaning of the term “administration,” or the act of administering, which is defined as “to manage the affairs of” or “to direct or superintend the execution, use, or conduct of.” As such, a probate court’s “administration” of a trust under Section 31.002(b) would include any action that directs or superintends the execution, use, or conduct of the testamentary trust. The removal of trustees is one of the ways that Texas courts are called on to “direct” and “conduct” a trust. We also note that Chapter 113 of the Property Code, which contains the requirements for the removal of trustees, is entitled “Administration.” While this title does not inform the otherwise unambiguous meaning of the provisions that follow, it indicates a legislative desire that the “administration” of a trust includes the appointment and removal of trustees. Based on the common and ordinary meaning of the word “administration,” as well as the use of the same term in the Property Code, we conclude that the meaning of “administration” in Section 31.002(b)(2) of the Estates Code unambiguously extends to the removal of trustees. However, even if we were to conclude that Section 31.002(b)(2) does not extend the county court at law’s jurisdiction to the removal of trustees that are created under a testamentary trust, the jurisdiction of the county court at law is not strictly limited to Section 31.002. Rather, when sitting as a probate court, the county court at law may also exercise “pendent and ancillary jurisdiction as necessary to promote judicial efficiency and economy.” … “Typically, probate courts exercise pendant or ancillary jurisdiction when a close relationship exists between the nonprobate claims and the matter pending in the probate court.” That is, probate courts will exercise pendant or ancillary jurisdiction when doing so “will aid in the efficient administration of a matter pending in the probate court.” We conclude that, even if the removal of a trustee were a nonprobate matter for purposes of the county court at law’s jurisdiction under Section 31.002, the county court at law would still have jurisdiction over the removal of Randy as trustee as a result of its pendant and ancillary jurisdiction under Section 32.001. Additionally, Todd’s remaining claims, which involve the alleged mishandling of trust funds, clearly fall within the “administration” of the trust for purposes of Section 31.002(b)(2). Accordingly, the county court at law could properly exercise jurisdiction over all of the claims that Todd has asserted in the district court.

Id. The court held that the district court abused its discretion in denying the motion to abate because the county court at law court has jurisdiction over the appointment and removal of trustees under the testamentary trust and it was the first-filed court and had dominate jurisdiction.

Photo of David Fowler Johnson David Fowler Johnson

dfjohnson@winstead.com
817.420.8223

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 The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary…

dfjohnson@winstead.com
817.420.8223

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 The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More

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 action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.

David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David’s recent trial experience includes:

  • Representing a bank in federal class action suit where trust beneficiaries challenged whether the bank was the authorized trustee of over 220 trusts;
  • Representing a bank in state court regarding claims that it mismanaged oil and gas assets;
  • Representing a bank who filed suit in probate court to modify three trusts to remove a charitable beneficiary that had substantially changed operations;
  • Represented an individual executor of an estate against claims raised by a beneficiary for breach of fiduciary duty and an accounting; and
  • Represented an individual trustee against claims raised by a beneficiary for breach of fiduciary duty, mental competence of the settlor, and undue influence.

David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.

Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.

David maintains an active appellate practice, which includes:

  • Appeals from final judgments after pre-trial orders such as summary judgments or after jury trials;
  • Interlocutory appeals dealing with temporary injunctions, arbitration, special appearances, sealing the record, and receiverships;
  • Original proceedings such as seeking and defending against mandamus relief; and
  • Seeking emergency relief staying trial court’s orders pending appeal or mandamus.

For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.

David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David’s articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law ReviewSt. Mary’s Law JournalSouth Texas Law Review and Tennessee Law Review.

Representative Experience

  • Civil Litigation and Appellate Law