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CAUSE NO. 2020 53021
FRANK W. DONNELLY, III, IN THE DISTRICT COURT O
AS INDEPENDENT EXECUTOR
OF THE ESTATES OF STUART
ROBEN KENSINGER, DECEASED
and ANGELA WEBB KENSINGER,
DECEASED; OLLIE MILLER
KENSINGER, INDIVIDUALLY
and PHILIP RIPLEY KENSINGER,
INDIVIDUALLY
HARRIS COUNTY, TEXAS
BEAVER AIR SERVICES AND
EQUIPMENT, INC. JUDICIAL DISTRICT
PLAINTIFFS’ SUR REPLY TO DEFENDANT’S MOTION TO TRANSFER
Beaver Air Services and Equipment, Inc.’s Reply raises new arguments for the first time
and conflates the probate court’s concurrent jurisdiction with statutory authority for transfer.
Because no statutory authority exists in this case, Beaver’s motion must be denied.
INTRODUCTION
Accepting Beaver’s position would impermissibly expand the statutory authority of the
probate court to transfer to case over which the probate court has concurrent jurisdiction over
just one plaintiff. But that is not what the statute grants. The case must not only satisfy either
(1) “related to a probate proceeding” or the “personal representative is a party” prong, but to
consolidate into another probate proceeding it must also “relat[e] to that estate.” STATES
§ 34.001(a). There can be no dispute that this lawsuit does not (1) relate to the Weiss Estate
under the statute or (2) name the Weiss Estate as a party unlike the other three lawsuits in which
Beaver seeks to join this case. There are also no pending probate proceedings relating to the
Kensinger estate, as the Kensinger probate matter has been closed.
In any event, Beaver seeks to transfer this case to an unrelated matter not involving the Kensinger Estate.
Additionally, for the first time on reply, Beaver argues that the doctrine of “dominant
jurisdiction” provides the probate court with authority to transfer and receive this matter. Simply
put, that misstates the law. First, dominant jurisdiction is not a statutory basis for transfer under
Section 34.001(a). Second, this is not a dominant jurisdiction situation. Beaver’s cited cases all
deal with competing lawsuits filed by adversaries in separate forums, not merely multiple
plaintiffs with claims against one defendant. See, e.g., In re J.B. Hunt, Transp., Inc., 492 S.W.3d
287, 294; Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 246 (Tex. 1988).
ARGUMENT AND AUTHORITIES
I. Concurrent jurisdiction over one claim does not equate to statutory transfer
authority over all claims.
From Beaver’s Reply, it is apparent that Beaver is conflating and misapplying concurrent
jurisdiction under Section 32.007 and statutory transfer authority under Section 34.001(a). Beaver
contends that because one plaintiff is the personal representative of the Estates of Stuart and
Angela Kensinger, the probate court has concurrent jurisdiction over all plaintiffs. See Reply at p.
1. That is incorrect. First, there is no concurrent jurisdiction over the individual wrongful death
beneficiaries. Section 32.007 only applies to “personal injury, survival, or wrongful death
action[s] by or against a person in the person’s capacity as a personal representative.” The
individual Kensinger plaintiffs, Ollie and Philip Kensinger, are not “personal representatives” of
any estate at all and unlike the other three lawsuits, they are not suing a “personal representative”
as a defendant. Section 32.007 is simply inapplicable to these claims, and there is no concurrent
jurisdiction over these plaintiffs or their claims.
Second, while there may be concurrent jurisdiction over Plaintiff Frank Donnelly (as
personal representative of the Kensinger Estates), concurrent jurisdiction alone does not provide
the probate court statutory transfer authority. Instead, transfer is governed not by Section 32.007,
2
but by Section 34.001(a).2 And the circumstances for transfer are limited: “(1) the cause of action
relates to a probate proceeding, or (2) a personal representative of the pending estate is a party to
the suit.” Estate of Aguilar, 2014 WL 4438085 at *2 (Tex. App.—San Antonio Sept. 10, 2014, no
pet.) (emphasis added); TEX. ESTATES CODE 34.001(a).
None of the circumstances under Section 34.001(a) are satisfied here. First, as noted in
Plaintiffs’ Response, wrongful death lawsuits are not “related to a probate proceeding” as that
phrase is defined by statute. TEX. ESTATES CODE 31.002 (listing matters “related to a probate
proceeding”); In re Ford Motor Co., 965 S.W.2d 571, 575 (Tex. App.—Houston [14th Dist.] 1997,
mand. denied) (“[W]rongful death and survival actions are not causes of action appertaining to an
estate.”).
Second, the Weiss Estate is not a party to this lawsuit. And no pending estate is a party to
this lawsuit—the Kensinger Estate is closed. See Ex. 1. When an estate is “closed” it is no longer
“pending” under the statutory transfer statute.3 See Valdez v. Hollenbeck, 465 S.W.3d 217, 223
n.8 (“[A] probate proceeding must be pending for a probate court to exercise jurisdiction over
matters related to that proceeding under [previous transfer statute].”).
Beaver’s suggestion that the Weiss Estate “could be added” is irrelevant—Wyatt dealt with
necessary parties and the compulsory counterclaim rule. See Wyatt, 760 S.W.2d at 247. Beaver
has not claimed that the Weiss Estate is a necessary party, and under the Rules, it is not. See Tex.
2
Beaver again fails to address this statute and explain how the statute grants transfer authority in this case, even
after Plaintiffs pointed out in their Response that Beaver did not address the statute in its original Motion.
3
Not to mention, to transfer a case into the “other proceedings” as set forth in Section 34.001(a), the transferred cause
of action must “relat[e] to that estate”—that is, to the estate for which probate proceedings are pending.At most, if
the Kensinger Estate were still open, the matter might be properly transferable to that proceeding. But because it is
closed, the probate court does not have transfer power over this case. See In re John G. Kenedy Mem’l Found., 159
S.W.3d 133, 144 (Tex. App.—Corpus Christi 2004, no pet.) (concluding that an estate must be pending to trigger a
probate court’s transfer power under former probate transfer statute).
3
R. Civ. P. 39(a).4 This is all the more true when the Weiss Estate, where Beaver seeks to transfer
this case, is not a party to this case at all. There is simply no statutory authority on which to base
a transfer of this case.5
II. The “dominant jurisdiction” doctrine is inapplicable to this case.
For the first time on Reply, Beaver argues that the “dominant jurisdiction” doctrine requires
transfer. Beaver misapplies the doctrine, for at least two reasons. First, dominant jurisdiction has
nothing to do with the relevant inquiry—whether a transfer is authorized under the probate transfer
statute. See TEX. ESTATES CODE 34.001(a). Nothing in Section 34.001(a) authorizes transfer based
on dominant jurisdiction. And as explained above, this case simply does not fall within the statute
and thus cannot be transferred.
Second, and in any event, this case does not present a dominant jurisdiction scenario.
Beaver’s own cases, J.B. Hunt and Wyatt, contemplate mirror image lawsuits in different venues.
J.B. Hunt involved competing lawsuits in different venues between adversaries in the dispute—
occupants of a vehicle and a trucking company. 492 S.W.3d at 289. Likewise, Wyatt v. Shaw
Plumbing Co. involved competing lawsuits in different venues between a plumbing contractor and
home builder. 760 S.W.2d 245, 246 (Tex. 1988).
The analogous situation would be if Beaver sued the plaintiffs in this case in another
venue—but that is not this case. Regardless, even if dominant jurisdiction applied, it would apply
to the Kensinger Estate proceeding (which has since been closed), not proceedings involving the
Weiss Estate. As noted above, the Weiss Estate is not a party to this lawsuit, nor are they are a
4
The Kensingers are not required to sue the Weiss Estate and have chosen not to do so. That does not affect the
claims against Beaver.
5
Though transfer is inappropriate, Plaintiffs have previously offered to consolidate discovery in all of the cases to
alleviate any inefficiencies created by these jurisdictional restrictions.
Plaintiffs again renew that offer.
4
necessary party in this matter.
Dominant jurisdiction does not apply to this case. The motion should be denied.
WHEREFORE, Plaintiffs Frank W. Donnelly, III, as Independent Executor of the Estates
of Stuart Roben Kensinger, Deceased and Angela Webb Kensinger, Deceased, Ollie Miller
Kensinger, Individually, and Philip Ripley Kensiger, Individually, request that this Court deny the
motion to transfer and award any such other and further relief to which they may be entitled.
Respectfully submitted,
MITHOFF LAW
/s/ Richard Warren Mithoff
RICHARD WARREN MITHOFF
State Bar No. 14228500
rmithoff@mithofflaw.com
WARNER V. HOCKER, OF COUNSEL
State Bar No. 24074422
whocker@mithofflaw.com
One Allen Center
500 Dallas, Suite 3450
Houston, Texas 77002
Telephone: (713) 654-1122
Facsimile: (713) 739-8085
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument is being served
upon all counsel of record pursuant to Rule 21a of the Texas Rules of Civil Procedure via the
Court's electronic filing service system on this the 15th day of October, 2020.
/s/ Richard W. Mithoff
RICHARD WARREN MITHOFF
5
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CAUSE NO. 2020 53021 FRANK W. DONNELLY, III, IN THE DISTRICT COURT O AS INDEPENDENT EXECUTOR OF THE ESTATES OF STUART ROBEN KENSINGER, DECEASED and ANGELA WEBB KENSINGER, DECEASED; OLLIE MILLER KENSINGER, INDIVIDUALLY and PHILIP RIPLEY KENSINGER, INDIVIDUALLY HARRIS COUNTY, TEXAS BEAVER AIR SERVICES AND EQUIPMENT, INC. JUDICIAL DISTRICT PLAINTIFFS’ SUR REPLY TO DEFENDANT’S MOTION TO TRANSFER Beaver Air Services and Equipment, Inc.’s Reply raises new arguments for the first time and conflates the probate court’s concurrent jurisdiction with statutory authority for transfer. Because no statutory authority exists in this case, Beaver’s motion must be denied. INTRODUCTION Accepting Beaver’s position would impermissibly expand the statutory authority of the probate court to transfer to case over which the probate court has concurrent jurisdiction over just one plaintiff. But that is not what the statute grants. The case must not only satisfy either (1) “related to a probate proceeding” or the “personal representative is a party” prong, but to consolidate into another probate proceeding it must also “relat[e] to that estate.” STATES § 34.001(a). There can be no dispute that this lawsuit does not (1) relate to the Weiss Estate under the statute or (2) name the Weiss Estate as a party unlike the other three lawsuits in which Beaver seeks to join this case. There are also no pending probate proceedings relating to the Kensinger estate, as the Kensinger probate matter has been closed. In any event, Beaver seeks to transfer this case to an unrelated matter not involving the Kensinger Estate. Additionally, for the first time on reply, Beaver argues that the doctrine of “dominant jurisdiction” provides the probate court with authority to transfer and receive this matter. Simply put, that misstates the law. First, dominant jurisdiction is not a statutory basis for transfer under Section 34.001(a). Second, this is not a dominant jurisdiction situation. Beaver’s cited cases all deal with competing lawsuits filed by adversaries in separate forums, not merely multiple plaintiffs with claims against one defendant. See, e.g., In re J.B. Hunt, Transp., Inc., 492 S.W.3d 287, 294; Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 246 (Tex. 1988). ARGUMENT AND AUTHORITIES I. Concurrent jurisdiction over one claim does not equate to statutory transfer authority over all claims. From Beaver’s Reply, it is apparent that Beaver is conflating and misapplying concurrent jurisdiction under Section 32.007 and statutory transfer authority under Section 34.001(a). Beaver contends that because one plaintiff is the personal representative of the Estates of Stuart and Angela Kensinger, the probate court has concurrent jurisdiction over all plaintiffs. See Reply at p. 1. That is incorrect. First, there is no concurrent jurisdiction over the individual wrongful death beneficiaries. Section 32.007 only applies to “personal injury, survival, or wrongful death action[s] by or against a person in the person’s capacity as a personal representative.” The individual Kensinger plaintiffs, Ollie and Philip Kensinger, are not “personal representatives” of any estate at all and unlike the other three lawsuits, they are not suing a “personal representative” as a defendant. Section 32.007 is simply inapplicable to these claims, and there is no concurrent jurisdiction over these plaintiffs or their claims. Second, while there may be concurrent jurisdiction over Plaintiff Frank Donnelly (as personal representative of the Kensinger Estates), concurrent jurisdiction alone does not provide the probate court statutory transfer authority. Instead, transfer is governed not by Section 32.007, 2 but by Section 34.001(a).2 And the circumstances for transfer are limited: “(1) the cause of action relates to a probate proceeding, or (2) a personal representative of the pending estate is a party to the suit.” Estate of Aguilar, 2014 WL 4438085 at *2 (Tex. App.—San Antonio Sept. 10, 2014, no pet.) (emphasis added); TEX. ESTATES CODE 34.001(a). None of the circumstances under Section 34.001(a) are satisfied here. First, as noted in Plaintiffs’ Response, wrongful death lawsuits are not “related to a probate proceeding” as that phrase is defined by statute. TEX. ESTATES CODE 31.002 (listing matters “related to a probate proceeding”); In re Ford Motor Co., 965 S.W.2d 571, 575 (Tex. App.—Houston [14th Dist.] 1997, mand. denied) (“[W]rongful death and survival actions are not causes of action appertaining to an estate.”). Second, the Weiss Estate is not a party to this lawsuit. And no pending estate is a party to this lawsuit—the Kensinger Estate is closed. See Ex. 1. When an estate is “closed” it is no longer “pending” under the statutory transfer statute.3 See Valdez v. Hollenbeck, 465 S.W.3d 217, 223 n.8 (“[A] probate proceeding must be pending for a probate court to exercise jurisdiction over matters related to that proceeding under [previous transfer statute].”). Beaver’s suggestion that the Weiss Estate “could be added” is irrelevant—Wyatt dealt with necessary parties and the compulsory counterclaim rule. See Wyatt, 760 S.W.2d at 247. Beaver has not claimed that the Weiss Estate is a necessary party, and under the Rules, it is not. See Tex. 2 Beaver again fails to address this statute and explain how the statute grants transfer authority in this case, even after Plaintiffs pointed out in their Response that Beaver did not address the statute in its original Motion. 3 Not to mention, to transfer a case into the “other proceedings” as set forth in Section 34.001(a), the transferred cause of action must “relat[e] to that estate”—that is, to the estate for which probate proceedings are pending.At most, if the Kensinger Estate were still open, the matter might be properly transferable to that proceeding. But because it is closed, the probate court does not have transfer power over this case. See In re John G. Kenedy Mem’l Found., 159 S.W.3d 133, 144 (Tex. App.—Corpus Christi 2004, no pet.) (concluding that an estate must be pending to trigger a probate court’s transfer power under former probate transfer statute). 3 R. Civ. P. 39(a).4 This is all the more true when the Weiss Estate, where Beaver seeks to transfer this case, is not a party to this case at all. There is simply no statutory authority on which to base a transfer of this case.5 II. The “dominant jurisdiction” doctrine is inapplicable to this case. For the first time on Reply, Beaver argues that the “dominant jurisdiction” doctrine requires transfer. Beaver misapplies the doctrine, for at least two reasons. First, dominant jurisdiction has nothing to do with the relevant inquiry—whether a transfer is authorized under the probate transfer statute. See TEX. ESTATES CODE 34.001(a). Nothing in Section 34.001(a) authorizes transfer based on dominant jurisdiction. And as explained above, this case simply does not fall within the statute and thus cannot be transferred. Second, and in any event, this case does not present a dominant jurisdiction scenario. Beaver’s own cases, J.B. Hunt and Wyatt, contemplate mirror image lawsuits in different venues. J.B. Hunt involved competing lawsuits in different venues between adversaries in the dispute— occupants of a vehicle and a trucking company. 492 S.W.3d at 289. Likewise, Wyatt v. Shaw Plumbing Co. involved competing lawsuits in different venues between a plumbing contractor and home builder. 760 S.W.2d 245, 246 (Tex. 1988). The analogous situation would be if Beaver sued the plaintiffs in this case in another venue—but that is not this case. Regardless, even if dominant jurisdiction applied, it would apply to the Kensinger Estate proceeding (which has since been closed), not proceedings involving the Weiss Estate. As noted above, the Weiss Estate is not a party to this lawsuit, nor are they are a 4 The Kensingers are not required to sue the Weiss Estate and have chosen not to do so. That does not affect the claims against Beaver. 5 Though transfer is inappropriate, Plaintiffs have previously offered to consolidate discovery in all of the cases to alleviate any inefficiencies created by these jurisdictional restrictions. Plaintiffs again renew that offer. 4 necessary party in this matter. Dominant jurisdiction does not apply to this case. The motion should be denied. WHEREFORE, Plaintiffs Frank W. Donnelly, III, as Independent Executor of the Estates of Stuart Roben Kensinger, Deceased and Angela Webb Kensinger, Deceased, Ollie Miller Kensinger, Individually, and Philip Ripley Kensiger, Individually, request that this Court deny the motion to transfer and award any such other and further relief to which they may be entitled. Respectfully submitted, MITHOFF LAW /s/ Richard Warren Mithoff RICHARD WARREN MITHOFF State Bar No. 14228500 rmithoff@mithofflaw.com WARNER V. HOCKER, OF COUNSEL State Bar No. 24074422 whocker@mithofflaw.com One Allen Center 500 Dallas, Suite 3450 Houston, Texas 77002 Telephone: (713) 654-1122 Facsimile: (713) 739-8085 ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument is being served upon all counsel of record pursuant to Rule 21a of the Texas Rules of Civil Procedure via the Court's electronic filing service system on this the 15th day of October, 2020. /s/ Richard W. Mithoff RICHARD WARREN MITHOFF 5