### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 22
- 00726
- CV

In re Calvin Walling McGowan, Individually and as trustee of the Elizabeth M. Blount 2012 Trust, Trustee of the Jane M. Brigman 2012 Trust, Trustee of the Anne M. Schooler

2012 Trust, and as Executor of the Estate of Calvin B. McGowan, deceased: McGowan Ranch, LLC; Calvin Ogden McGowan, Individually and as Trustee of the Calvin Ogden

McGowan 2020 Trust; Cora Caleene M. Kothmann, Individually and as Trustee of the Cora McGowan Kothmann 2020 Trust; Dorothy McGowan DiOrio, Individually and as Trustee of the Dorothy McGowan 2020 Trust; and Rock Base, LLC

OR I GINAL PROCEEDING FROM TOM GREEN COUNTY

M E M O R A N D U M O P I N I O N

Relators Calvin Walling McGowan , individually and a s t rustee of the Elizabeth M. Blount 2012 Trust, t rustee of the Jane M. Brigman 2012 Trust, truste e of the Anne M. Schooler 2012 Trust, and as e xecutor of the Estate of Calvin B. McGowan, d eceased ; McGowan Ranch, LLC; Calvin Ogden McGowan, i ndividually and as t rustee of the Calvin Ogden McGowan 2020 Trust; Cora Caleene M. Kothmann, i ndividually and as t rustee of the Cora McGowan Kothmann 2020 Trust; Dorothy McGowan DiOrio, i ndividually and as t rustee of the Dorothy McGowan 2020 Trust ; and Rock Base, LLC hav e f iled this petition for writ of mandamus seeking relief from the presiding judge’s denial of two pleas in abatement and from the consolidation of two lawsuits for purposes of trial. For the reasons explained below, we conditionally grant mandamus relief

.2 B AC KGROUND This jurisdictional disput e arises out of a complex, long

- running family proper ty disput e. Ca lv in “ Cal ” McGowan ( Father or Decedent) and Anne Walling McGowan (Mother) owned several pieces of property in Tom Green, Concho , and Menard Count ies

. They also had four children: Relator Calvin Walling “ Wally ” McGow an (Wally ), and real pa rties in interest Elizabeth McGowan Blount, Jane McGowan Brigman, and Anne McGowan Schooler ( RPIs or the “ McGowan Sisters ” ). Mother passed awa y in 2002

. In 2012, Fathe r established a n irrevocable trust for each of the McGowan Sisters (th e “ 2012 Trusts ” ) , w ith W ally named as trustee for all of the 2012 Trusts. 1 However, the McGowan Sisters and W ally now dispute w hat property was placed into the 2012 Trusts. The
M cGowan Sisters conten d that the 201 2 Trust s each received an undivided interest in Father ’ s portion s of property in Menar d County (the “ Menard P r operty ” ) and Concho County (the

“ Co ncho Proper ty ” ). The McGowan Sisters furthe r dispu te the partition agreemen t en te re d into by Wally , in his capacity as trustee of the 2012 Trusts, that reserved Fat her a n approxi ma tely 30% interest in the Menard Property , which they allege was for Wally ’ s own benefit

. Wally disputes those contention s, includin g asserting that no ne o f Fa ther ’ s interest in the Concho
Pro perty was transferred to the 2012 Trusts

. Regardless, the p ar ti es do not appear to dispute that the McGowan Sisters did not learn of the 2012 Trusts until after the probate proceeding w as filed in 2016. Father di ed i n 20 16, and his will was admitted to probate in the Tom Green County Court at Law under cause numbe r 16P0 69 L (the Probate Suit). Wally was appointed and

1 Father also contempor aneously established an irre vocable trust for Wally in 2012, but that trust is not involved i n the present appeal

.3 continues to serve as the independent executor of the estate , whi ch rem a i ns open and pending.
T he M cG owan Sisters challenged the characterization of Father ’ s interest in two properties , the
Co ncho Prop erty and another property not at issue here , listed on the filed inve ntory . In January 2018, the county court at l a w determined that Father separately owned an undivided inter est in a port ion of the east and west halves of the Concho Property. T he McGowan Sisters ultimate ly brought causes of action in the Probate Suit against Wally in his capacity as the independent executor of Father ’ s Estate , alleging that Wa lly had breached his fid u ciar y duties and committed frau d relating to th e Concho Property and the Menard Property.
O ne mo nth after the findings by the county court at law , the McGowan Sisters separately f iled su it in the 34 0th District Court in Tom Green C ounty, cause number C180031C,

ass erti ng breach of fiduciary duty and fraud claims against Wally individually and in his ca pac ity

as trustee of the 2012 Trusts (the Tr ust Suit)

. The party co mposition changed in subsequent amended petitions , but rel evant he re, starting in t heir secon d amen ded petition the McGowan Sisters named Wa lly individually and in his capacity as independent exe cutor of Father ’s estate (as well as his capacity as trustee of the 2012 Trust s ). Moreover, their causes of action are premise d on Wally ’s purportedly improper char act e rization of the Concho Property as Father ’s separate property and Wally ’s entering in to the ag reed par tition of the Menard Property to give Father portions of that prope rty as his sole and separate property

. In th eir most recent live pleading, the M cG owan Sisters added the 2020 Trust Parties 2 bec ause of those parties ’ partial

owne rship of the disputed Menard Property

. The M cGowan Sisters also make clear that their

2 Those parties include Calvin Ogden M cGowan, individually and as trustee of the Calvin Ogden McGowan 2020 T rust; Cora Caleene M. Kot hmann, individually and as trus tee of the Cora McGowan Kothmann 2020 Trust; Dorothy McGowan DiOrio, individually and as a trustee of the Dorothy McGowan DiOrio 2 020 Trust; and Rock Base, LLC

.4 claim s in the Trust Suit concern the same property at issue in the Probate Suit : t he Concho Property and the disputed partition of the Menard Property. Similarly, the M cGow an Sister s in the Probate Suit point to Wally ’s action s as to the Concho P roperty and Me nard Property and assert claim s for f raud and constructive fraud premised on Wa lly ’s allege d “taking for himself property and income that rightfully bel ong to the co

- ow ners of t he real property. ” According to the McGowan Sisters , the P r obate Suit and Trus t Suit “ were so intermingled ” bec ause of Wall y ’ s actions as to the disputed propertie s
. The M cGowan S ist ers fi led a motion to transfer in th e Probate Suit and a motion for c onsolidation in the Trust Suit , requesting that the presiding judge transfer the Probate Suit to the district court or consoli da te the two proceedings in the di strict court. In those filings, the
McGow an Sisters reiter ated that “ the real property to be distributed in t he [Probate Suit]

concern [s] the same property at issue in the [Trust Sui t] ” and that the cases “ arise f rom the ch aract er ization of property commonly owned by [Father] and [from] Wally ’ s conduct ” as to those propert ies. In response, Wal ly file d a p lea in abatement in the Trust Suit , originally requesting that the district court abate the portion s of the Tru st Suit th at asserted claims against
him in h is capacity as executor of the estate. The presiding judge held a join t hearing on all o f the mot ions pending before both courts, 3 and ultimately the presiding judge entered an omnibus order on August 19, 2022 , that foun d “ common issues of law, fact and par ties in the [ Trust] Suit and the Probate Suit ” and made the following ru lings: (1) denied the McGow an Sisters ’ motion to consolidate the two lawsuits; (2) denied their motion to transfer contested matters in t he Probat e Suit to the district court; ( 3) denied Wally ’ s plea in abatement before the district court;

3 The same senior distri ct judge was ap pointed to preside over both th e Probate Suit and the Tr ust Suit.5 and (4) o rdered th e Probat e Suit an d Tru st Suit be consolidated for purposes of trial (the

“ Omnibus Order ” ). The presiding judge ent ered this partial co nsolidatio n e ven though, as the
M cGowan S isters concede, he left “ jur isdiction over the re spective ca ses in the
resp ectiv e Courts. ”
Contem poraneous with that ruling, Wally filed a second plea in abatement in the Trust Suit , seeking to also abate all cla ims brought a gainst him individually and in hi s capacity as trustee of the 2012 Trusts. Wally argued that the Trust Suit should be aba ted and a ny claims asserted against him should be liti g ated in t he Prob ate Suit

. A f ter a nother hearing, the presiding ju dge denied th e second plea in aba te ment on Octobe r 31, 2022. Relators the reafter sought mandamu s relief , contend in g that the tr ial court abused its discretion by denying the pleas in abatement and consolidating the Probate Suit and Trust Suit for purpose s of trial.

STA NDARD OF REVIEW
Ma ndamu s relief is an extraordinary remedy ge nerally only availab le when the
t r ia l court a buses its discret ion and relator has no adequate remedy by appeal. See In re K & L Auto Crushers, LLC , 627 S.W.3d 239, 247 (Te x. 2021) ( orig. proceedin g) ; In r e Prudential Ins. Co. of Am ., 148 S.W.3d 124, 135

– 36, 138 (Tex. 200 4) ( ori g. p roceed ing). We anal y z e do m inant jurisdiction issues under a deferential abuse of discretion standard. In re J.B. Hunt Tr ansp., Inc. , 492 S.W.3d 287, 29 3 (Tex. 2016) (or ig. proc eeding). A court “abuses its discretion if it acts without reference to guiding rules an d p rinc ip les su ch that the ruling is arbitrary or unreasonable.” Brewer v. Lennox Hearth Prods., LLC , 601 S.W.3d 704, 717 (Tex. 202 0). Altho ugh our analysis of factu al questions “ is more akin to a clear

- error standard , ” the trial court6 has no discretion in det ermin ing wha t the law is or applying the law to the facts. In re J.B. Hunt
Tr ansp. , 492 S.W.3d at 293

. When two pending suits are inher ently interr elate d, and venu e is proper in the court presiding over either suit, “ the court in which suit was first fil ed acquir e s d ominant juris dicti on. ” In re Red Dot Bldg. Sys. , 504 S.W.3d 320, 322

– 23 (Tex. 2016) (orig. proceeding)

.

“ In these circumst ances, the genera l rule is t hat the court in the second action must abate the suit. ” In re Volkswagen Clean Diesel Lit ig. , 557 S.W. 3d 73, 75 (Tex. App.

— Austin 2017, orig.
pro ceeding) (quoting In re Red Dot , 504 S.W.3d at 3 23 ). This first

- filed rule flows from “principles of comity , convenience, and the necessity for an orderly procedure in the trial of contested issu es. ” In re J.B. Hunt Transp ., 492 S.W.3d at 293

– 94 (quoting W yatt v. Shaw Plumbing Co ., 760 S.W.2d 245, 248 (Tex. 1988) ). If the trial cour t in the second ac tion abus es its discretion by not abating the action, no additional showing is required for manda mus relief. In re Volkswagen Clean Diesel Litig. , 557 S.W.3d at 75 (cit ing In re J.B. Hunt Transp

. , 492 S.W.3d at 294 )

.
ABUS E OF DISCRETIO N Relator s contends t hat the trial court abuse d its discretion in two ways: (1) d enying his pleas in abateme nt o f the Tru st S uit because he avers th at the county court at law has dominant jurisdiction through the Probate Suit, and (2) consolidating the Tr ust Suit and Probate S uit for purposes of trial because those proceedings are pending before different courts

. B ecause th e do minant jurisdiction issue decides this mandamus action , we begin with that issue

. The parties do not dispute that the Probate Sui t was filed first

. T he question is therefore whether the county court at law acquired dominant jurisdiction and the dist rict court7 was required to abate the lat er - filed Trust Suit. S e e In re Red Dot , 504 S.W.3d at 322

– 23

. D ominant juris diction only aris es when the two pendi ng lawsuits are “inherently interrelated

. ” In re J.B. Hunt Transp ., 492 S.W.3d at 292

. Ba sed on th e br iefing and the record before us, the Probat e Suit and the Trust Suit are inherently interrelated (and the parties concede that the suits

are interrelate d )

. This is unsurp rising , given t hat t he P robate Suit and the Trust Suit are functiona lly two sides of the same coin: determining whether the same disputed propert ies

— the Concho Property and the Mena rd Property

— should be properly char acterized as either t rust or
estat e assets , and th e corresponding legal implica tions of that characterizati on o n Wally ’ s conduct individual ly and in his capacities as executor and trustee

. The McGowan Sisters contend that the county court at law lacks ju r isdiction over the c auses of action brought in the Tr ust Suit becaus e those c laims relate to the 2012 Trus t s
. See In re Puig , 351 S.W.3d 301, 305 (Tex. 2011) ( explaining that dominant jurisdiction issue s arise when the jurisdictio n of two courts is “ conc urrent ” ); cf. In re R ed Dot , 504 S.W.3d at 323 ( analy zing whe ther ven ue was proper in both courts for p urposes of dominant jurisdiction analys is)

. But those 2012 Trusts were created by the Decedent during his life, and therefore the county court at law in Tom Green County ha s jurisdiction over the “ interpre tati on a nd adminis tration of ” the 2012 T rusts bec ause they were “ created by a decedent wh ose will has been admitted to probate in the court. ” See Tex. Est

. Code § 3 1.002(b)(2)

– (3); see also id. § § 32.00 1(a), 32. 002(b). The McGowan Sisters also complain th at the 2 020 Trust P a rties are not

“ necessary parties ” to the Probate Suit, but “ [i] t is n ot necessary to have identical parties and claims to conclude that the rule of dominant jurisdiction applies. ” C omp - E

- Ware Tech. Asso c s. , Inc. v. Mushkin, Inc. , 629 S .W.3d 549, 555 (Tex. App.

— Fort Worth 2021, p et. denied) (citing
In re Volkswagen Clean Di esel Litig ., 557 S.W.3 d at 77 ). Nor have the McGowan Sisters8 demonstrate d that those parties could not be added to the Proba te Suit. S e e In re Volkswagen Clean Diesel Li tig ., 557 S.W.3 d at 77 ; see also Comp

- E

- Ware Tech. , 629 S.W.3d at 555 ( “ It is sufficient if the claims in the first filed suit may be amended to bring in all necessary and proper
par ties and issues. ” ). 4 Finally, the McG owan Sisters contend that the purposes of abat ement are satisfied by the pres iding judge ’s consolidation or der , citing In re Houst on N orthwest Partners, Ltd ., 98 S.W.3d 777, 780 (Tex. App.

— Austin 2003, orig. proceeding )

. But Houston N ort hwest
Partners i s inapplicable because it concern s a transf er involvi ng a statutory probate cou rt , which is governed by its own unique statutory pro vision. See Tex. Est

. Code § 34.001(a) ( transfer r i n g involving a statutory probate court). Tom Green Co unty has no statutory probate court, and the purported tran sfer instead involves a statutory c ounty court at l aw
. See Tex. Gov’t Code § 25 .2281(1)

. Even assuming arguendo that a valid transfer obviates the need f or a dominant jurisdiction analys is , there was no valid transf e r supporting the consolidation of the Probate Suit and the Trust Suit. G iven the evidence in the record and that the presiding jud g e’s Omnibus Order expressly denied the McGowan Sisters’ mot ions to co nsolidate and transfer, the Probat e Suit and the Trust Suit remain two separate proceedings pending befor e two different courts. See Tex. R. Civ. P. 174(a) (authorizing consolidation “[w]hen ac tions involving a common question of law or fact are pen ding befor e the court ” (emphasis added)) ; In re J.V.O ., No. 0 4

- 20

- 00346

- CV ,

4 The McGow a n Sisters als o contend that t he inequitable conduct exception applies to estop Wally from asserting dominant juris diction here. See In re J.B. Hunt Transp., Inc. , 492 S.W.3d 287, 29 4 (Tex. 2016) (orig. proc eeding) (explain ing that i nequitable

- conduct exception applies if filer of fi rst suit is “guilty of such inequita ble conduct as will estop him from relying on that suit to abate a subsequent proceed ing brought by his adversary” (quoting Curtis v. Gibbs , 51 1 S.W.2d 263 , 267 (Tex . 19 74)). But the record reflects that the McGowan Sis ters did not raise this argument bel ow, and we therefore do not consider it here. See In re Am erican Optical Corp ., 988 S.W.2 d 711, 714 (Tex. 1998) (orig. proceeding).9 2021 WL 3742678, at *3 (Tex. App.

— S an Antonio Aug. 25, 202 1, no pet.) (mem. op. ) (explaining that “[t]ransfer was a necessar y condition precedent to consolidation”). Without a valid transfer of one pr oceeding to the oth er court, the presi di ng judge abused his discretion by consolidating two cou rt proceedin gs pending before d ifferent courts

. See In re J.V.O ., 2021 WL 3742678, at *3 (explai ning that Rule 174(a) co nsolidation only applies “when two or

more cases are pendi n g before a single cou rt”); Flores v. Peschel , 927 S.W.2d 209, 213 (Tex. App.

— Corpus Chri sti

– Edinburg 1996, n o writ) (“Absent specific authority, a trial court in one county has no power to order a matter pending before the trial court in another county
tr a nsferred out of the l atter court and into the former.”); Goodman v. Summit at W. Rim, Lt d ., 952 S.W.2d 930, 935 (Tex. App.

— Austin 1997, no pet.) (explaining that cir cuit courts “have held that a co urt may not transfer a cause in the absence of a statute s o authorizing”). 5
In s um , the county court at law acquired dominant jurisdiction when W ally filed the Pr oba te Suit in that court. Based on the choices presented to him , t he presiding judge , sitting in the dis trict court, abused his discret ion by denying Wally ’ s pleas in abatem ent and not aba t ing the Tr u st Suit until t he first

- filed Probate Suit is resolved. See In re Volkswagen Clean Diesel Litig. , 557 S.W.3d at 75

. 6 Furthermore, no additional showing of a lack of adequate r emedy by appeal is required f or mandamus relief when the trial court abuses its discretion by i mproperly

5 W e need not address wheth er R elato r s have demonstrated they lack an adequate remedy by appeal when a presiding judge improperl y consolidates two proceedings pendi ng before the same judg e in two separate courts b ecause Wally has demonstrated entitle ment to mandamus relief on the s eparate do mina nt jurisdiction issue. See, e.g. , In re Gulf Coast Bus. D ev. Corp ., 247 S.W.3d 787, 796 (Tex. App.

— Dallas 2008, orig. proceeding) (stating that ma ndamus relief for improper consolidation also requires showing there is no adeq uate remedy by ap peal).

6 Although the Tru st Suit may be abated, we note that the McGowan Sisters aver in their briefing that they can amend their pleadings to add the acti ons and parties to the Probate Sui t if the county court at l aw has do minant jurisd iction

.10 denying a p lea in abatement. See In re Red Dot , 504 S.W.3d at 322 ; accord In r e Volkswagen Clean Diesel Litig. , 557 S.W.3d at 77

.
CONCL USION
We con ditionally grant Relator s ’ peti tion for writ of mandamu s and direct the presiding judge to v acate the portion of his August 19, 2022 ord er and his October 31, 2022 Omnibus Orde r denying the plea s in abatement filed in the Trust Suit , and to gra nt Wally ’ s p leas in abatement in the Trust Su it

. T he writ will iss u e onl y if the presiding jud ge f a il s to comp ly

.

____________ ______________________________ Darlene Byrne , Chief Justice
Be fore Chief Justice Byrne, Justices Triana and Smith Filed: January 11 , 202 3