                                                                                          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


                                  Page 2 of 4
         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.


                                  Page 3 of 4
                                       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
