No. 03-14-00267-CV

In the Third Court of Appeals

Austin, Texas

DAISY WANDA GARCIA, APPELLANT

v.

THOMAS LEE BAUMGARTEN, APPELLEE

APPEAL FROM CAUSE NO. D-1-GN-12-002429

201ST DISTRICT COURT OF TRAVIS COUNTY, TEXAS 

HON. CHARLES RAMSEY PRESIDING

APPELLANT’S EMERGENCY MOTION TO ABATE

John L. Foster

Texas Bar No. 07289000

FOSTER RAMSEY

812 San Antonio Street

Suite 400

Austin, Texas 78701

512-476-4473

512-474-1606 (Fax)

jfoster@fosterramsey.com

Lead Counsel

Stephen Casey

Texas Bar No. 24065015

CASEY LAW OFFICE, P.C.

595 Round Rock West Drive

Suite 102

Round Rock, Texas 78681

Telephone: 512-257-1324

Fax: 512-853-4098

info@caseylawoffice.us

Counsel for Appellant 

Daisy Wanda Garcia

ACCEPTED

03-14-00267-CV

4890613

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/14/2015 9:03:23 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/14/2015 9:03:23 PM JEFFREY D. KYLE Clerk
Page 2 of 4

Grounds

1. The primary issue in dispute of this case is a breach of property agreement 

between the parties.

2. During the pendency of this case, Appellee died, and a suggestion of death was 

filed.

3. The probate case for Appellee’s estate is Cause No. 435704, Estate of Thomas 

L. Baumgarten, Deceased. See Exh. 1.

4. In that case, the attached will, Exhibit 2, does not name the Exposition house, 

the subject of the breach of contract in this suit.

5. The Exposition house per the attached will is part of the residue of the estate.

6. A current will contest exists in Harris County Probate Court. This will contest 

was filed by Appellant, who had an informal marriage to Appellee since 1969.

See Exhbit 3 (will contest).

7. The effect of this case could be made wholly moot at best by a determination 

of the will contest.

8. The will contest is based upon the 40 year informal marriage between 

Appellant and Appellee. The parties lived together in an informal marriage for 

13 years, after which Appellant remained in the community property house, 

the subject of this breach of property agreement.

9. There are several possible outcomes to this will contest. 

a. The probate court in Harris County has jurisdiction to determine 

whether Appellant and Appellee had an informal marriage as it has

statutory jurisdiction (pendent and ancillary jurisdiction) under Texas 

Estates Code § 32.001(b). See TEX. EST. CODE § 32.001(b).

b. First, the probate court could determine that the informal marriage did 

exist. In that instance, the court could further find that the house, based 

on the agreement, was (1) separate property, or (2) community property.

c. Should the probate court determine the parties had an informal 
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marriage, and find that this house was separate property, the Appellant 

would be entitled to one-half the land and all of the personalty because 

the parties had no children together and the Appellee had no surviving 

children. See TEX. EST. CODE § 201.002(c)(3).

d. Should the probate court determine the parties had a formal marriage, 

and find that this house was community property, the Appellant would 

be entitled to all of the land because the parties had no children together

and the Appellee had no surviving children. See TEX. EST. CODE §

201.003(b), (c).

e. Second, if the probate court determines that there was no informal 

marriage, the Court should then lift the proposed stay on the appeal.

10.This factual posture presents a unique situation not readily apparent from case 

law discussing the intersection of probate cases, family law cases, and property 

suits in district court. Generally, the question is framed as one of dominant 

jurisdiction and the district court property suit, if filed first, should have 

dominant jurisdiction. See In re Puig, 351 S.W.3d 301, 306 (Tex. 2011). In Puig, 

however, the parties had already been divorced prior to one party’s death. Id.

at 303. Here, there is a question as to the status of the marriage.

11.This marriage status question, while intertwined with the property question, is 

not the same issue, but a separate issue, the determination of which will 

necessarily guide this Court, and the determination of which should be made 

prior to this Court’s decision. If the probate court finds an informal marriage, 

and finds the house is community property, then this case would be mooted. If 

the marriage is informal and the house is separate property, then the case 

could be mooted or remanded depending on whether this property falls into 

the percentage of the estate awarded the spouse of the informal marriage. If 

the probate court rejects the challenge, this case should then proceed. Either 

way, this case should be abated until that election challenge is complete.

12.Abatement serves judicial efficiency and economy, as identified in Texas 

Estates Code 32.001(b), as this case has been set for oral argument on June 3, 

2015, by designation this month. A delay in deciding the abatement would cost 

the parties time in preparation for oral argument that may be mooted. 

Abatement may very well save the parties time and expense at the appellate 

level that would result in a mooted decision on the underlying property, given 

the potential probate outcomes.
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Prayer

Appellant prays this Court grant this Motion to Abate.

/s/ Stephen Casey 

John L. Foster

Texas Bar No. 07289000

FOSTER RAMSEY

812 San Antonio Street

Suite 400

Austin, Texas 78701

512-476-4473

512-474-1606 (Fax)

jfoster@fosterramsey.com

Stephen Casey

Texas Bar No. 24065015

CASEY LAW OFFICE, P.C.

595 Round Rock West Drive

Suite 102

Round Rock, Texas 78681

Telephone: 512-257-1324

Fax: 512-853-4098

stephen@caseylawoffice.us

CERTIFICATE OF CONFERENCE

I hereby certify that on April 14, 2015, I conferenced with opposing counsel 

who is opposed to this motion.

/s/ Stephen Casey

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing motion was 

served upon counsel for Appellee on Tuesday, April 14, 2015, via electronic 

transmission: 

Nicholas Laurent, Counsel for Appellee

nlaurent@mcginnislaw.com

/s/ Stephen Casey