in Re Daniel W. Warren, Beneficiary of the Daniel Steven Weiner 1996 Trust
01-15-00471-CV
| Tex. App. | Jul 10, 2015Background
- Parents Andy Weiner and Katherine (Warren) are co‑trustees of several irrevocable children’s trusts (including trusts for David (1994) and Daniel (1996)); beneficiaries are the sons.
- Katherine (acting as next friend) and the sons sued Andy in Probate Court alleging trustee breaches; Andy filed cross‑claims against Katherine seeking contribution, accounting, removal, fees, and trust construction.
- Daniel intervened (after turning 18) and later—shortly before trial—filed a nonsuit in Probate Court and then filed a new, duplicative suit in district court.
- Andy had pending affirmative cross‑claims against Katherine in Probate Court when Daniel nonsuited; Andy then filed a Counter & Cross‑Petition (joining Daniel as a necessary party) and sought substituted service on Daniel.
- Daniel sought mandamus relief arguing the nonsuit stripped the Probate Court of jurisdiction and that post‑nonsuit hearings (substituted service and plea to jurisdiction) were improper. Real Party Andy responded that Rule 162 and Ledbetter preserve pending affirmative claims and that Judge Butts properly exercised jurisdiction.
Issues
| Issue | Plaintiff's Argument (Daniel) | Defendant's Argument (Weiner) | Held |
|---|---|---|---|
| Effect of plaintiff's nonsuit on pending co‑defendant cross‑claims | Daniel: his nonsuit dismissed the entire Probate Court action and thus nullified Andy’s cross‑claims against co‑defendant Katherine | Andy: Rule 162 (and Ledbetter) prevents dismissal where any pending claim for affirmative relief would be prejudiced; cross‑claims against a co‑defendant remain | Court: Rule 162 does not extinguish Andy’s pending affirmative cross‑claims; Probate Court did not abuse discretion in proceeding |
| Whether Probate Court lost jurisdiction after nonsuit and before Andy’s Counter & Cross‑Petition | Daniel: nonsuit ended the Probate Court action so subsequent Probate proceedings lacked jurisdiction | Andy: even if nonsuit terminated plaintiff’s claims, Probate Court retained or regained jurisdiction when Andy filed Counter & Cross‑Petition (viewed as an original petition) and joined necessary parties | Court: Probate Court properly concluded it retained jurisdiction; Andy’s filing re‑instituted matters and service/plea hearings were permissible |
| Properness of substituted service and re‑joining Daniel as a party after nonsuit | Daniel: after nonsuit he was no longer a party and could not be subjected to substituted service in Probate Court | Andy: Daniel is a necessary party (primary beneficiary under statute); he was evading service; Rule 106(b) substituted service and attachment were appropriate | Court: Judge Butts correctly authorized and held the substituted service hearing and later denied Daniel’s plea to the jurisdiction |
| Whether precedents like Greenberg/Ault require dismissal here | Daniel: relies on Greenberg/Ault to argue post‑nonsuit proceedings on counterclaims were improper | Andy: those cases are distinguishable (divorce context, different procedural posture); Ledbetter controls and rejects an overly broad reading of nonsuit effect | Court: Greenberg/Ault are distinguishable; Ledbetter and Rule 162 govern; Probate Court did not err |
Key Cases Cited
- Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31 (Tex. 2008) (Rule 162 bars nonsuit dismissal if effect would prejudice any pending claim for affirmative relief)
- In re Kuntz, 124 S.W.3d 179 (Tex. 2003) (mandamus standard; trial court has no legal discretion in applying the law)
- BHP Petroleum Co., Inc. v. Millard, 800 S.W.2d 838 (Tex. 1990) (defendant’s declaratory relief can be affirmative and independent)
- Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon, 195 S.W.3d 98 (Tex. 2006) (definition of claim for affirmative relief)
- Greenberg v. Brookshire, 640 S.W.2d 870 (Tex. 1982) (divorce‑context rule that nonsuit may preclude post‑nonsuit counterclaim hearing; distinguishable)
- Ault v. Mulanex, 724 S.W.2d 824 (Tex. App.—Texarkana 1986) (divorce/custody context; distinguishable)