Dolenz v. Vail, 143 S.W.3d 515 (Tex. App.—Dallas 2004, pet. denied), cert. denied, 545 U.S. 1118 (2005).


In an earlier action, Beneficiary, who was also the successor trustee, brought suit in a statutory probate court to recover property belonging to the trust. The court determined that the trust did not own any property and thus ordered that Beneficiary take nothing. In this case, Beneficiary sued in a district court claiming that the statutory probate court had no jurisdiction to rule on the existence of trust property. Beneficiary asserted that only a district court under Trust Code § 115.001 could rule on trust disputes. Beneficiary also claimed that the judgment was defective because he was sued only in his individual capacity, not as a successor trustee. The district court dismissed Beneficiary’s claims for lack of jurisdiction. Beneficiary appealed.

The appellate court affirmed. The court explained that a statutory probate court has concurrent jurisdiction with the district court with regard to all actions involving an inter vivos trust and thus it had jurisdiction. [The court applied the 1998 version of Probate Code § 5(A)(c); the equivalent authority is now found in Probate Code § 5(e).] The court also found that Beneficiary’s failure to be served in a representative capacity to be irrelevant because Beneficiary waived the objection by making a general appearance before the court.

Moral: There may be unstated morals not reflected in the relatively simple legal points discussed in this case. Beneficiary was also the attorney who argued the appeal. State Bar of Texas records reflect that he was suspended from the practice of law in 1999 during the pendancy of the original case.