ACCEPTED
03-14-00267-CV
4890613
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/14/2015 9:03:23 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00267-CV
FILED IN
In the Third Court of Appeals 3rd COURT OF APPEALS
AUSTIN, TEXAS
4/14/2015 9:03:23 PM
Austin, Texas
JEFFREY D. KYLE
Clerk
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 Stephen Casey
Texas Bar No. 07289000 Texas Bar No. 24065015
FOSTER RAMSEY CASEY LAW OFFICE, P.C.
812 San Antonio Street 595 Round Rock West Drive
Suite 400 Suite 102
Austin, Texas 78701 Round Rock, Texas 78681
512-476-4473 Telephone: 512-257-1324
512-474-1606 (Fax) Fax: 512-853-4098
jfoster@fosterramsey.com info@caseylawoffice.us
Lead Counsel
Counsel for Appellant
Daisy Wanda Garcia
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
Page 4 of 4
EXHIBIT 1
EXHIBIT 2
EXHIBIT 3