Frank Randolph Kelly, Individually and as the Trustee of the Family Trust Under Will of Mikie Leslene Kelly, and Lacy Paige Brooks v. Coby Todd Bausch

Opinion filed May 30, 2024

In The

Eleventh Court of Appeals
__________

No. 11-24-00031-CV
__________

FRANK RANDOLPH KELLY, INDIVIDUALLY AND AS THE
TRUSTEE OF THE FAMILY TRUST UNDER WILL OF MIKIE
LESLENE KELLY, AND LACY PAIGE BROOKS, Appellants
V.
COBY TODD BAUSCH, Appellee

On Appeal from the 244th District Court
Ector County, Texas
Trial Court Cause No. C-23-10-1140-CV

MEMORANDUM OPINION
In this appeal, Appellant, Frank Randolph Kelly (Randy), 1 complains that
the trial court abused its discretion when it refused to dissolve a temporary injunction
that was obtained by Appellee, Coby Todd Bausch (Todd). The injunction prohibits
Randy from taking certain actions as trustee of a testamentary trust that was created
by Mikie Leslene Kelly.

1
Randy and Appellant Lacy Page Brooks filed a joint notice of appeal.
We have today issued an opinion in Cause No. 11-24-00066-CV, In re Frank
Randolph Kelly and Lacy Paige Brooks, in which we conditionally grant mandamus
relief in the same underlying proceeding, concluding that the trial court abused its
discretion when it failed to abate the district court proceedings in deference to a
probate matter that is already pending in the Ector County Court at Law. If the trial
court would have properly abated the underlying proceeding, the court should have
suspended all proceedings therein, including the injunction, as a result of the
abatement. See In re Discovery Operating, Inc., 216 S.W.3d 898, 905 (Tex. App.—
Eastland 2007, no pet.) (abatement places a matter into a suspended state);
Trapnell v. Hunter, 785 S.W.2d 426, 429 (Tex. App.—Corpus Christi–Edinburg
1990, no writ) (same); see also In re Kimball Hill Homes Tex., Inc., 969 S.W.2d 522,
527 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (“An abatement is a present
suspension of all proceedings in a suit.”). Accordingly, the district court abused its
discretion when it failed to abate the temporary injunction.
We sustain the sole issue on appeal.
This Court’s Ruling
We reverse the order of the trial court and remand this cause to the district
court, where Todd’s claims for injunctive relief will be abated pending the resolution
of the parties’ disputes in the Ector County Court at Law.

JOHN M. BAILEY
CHIEF JUSTICE

May 30, 2024
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
2