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Trusts & Estates Click here for the full text of this decision FACTS:This case arises from a suit for accounting, damages and surcharge of the trustee of a testamentary trust. The appellant, John R. Schuele, filed suit in District Court against the appellee, Hunter Schuele, who was serving as the trustee of a testamentary trust created by their mother Roselyn’s will. Hunter filed a motion to dismiss for lack of jurisdiction. Following a hearing, the trial court dismissed the case, finding the Medina County Court at Law to have dominant jurisdiction over the suit and that the district court lacked subject matter jurisdiction. John now appeals in a single issue, claiming the district court erred in granting the motion to dismiss because that court has original and exclusive jurisdiction over the trust actions. HOLDINGReversed and remanded. John claims the district court erred in finding the Medina County Court at Law to have jurisdiction over his claim. John claims district courts and statutory probate courts have original and exclusive jurisdiction to require an accounting from a trustee, surcharge a trustee, and determine the liability of a trustee. Hunter argues the district court properly dismissed John’s suit because the court where the estates of Jake and Roselyn are pending, the Medina County Court at Law, has dominant jurisdiction of all matters “appertaining to and incident to” the estates, including John’s claims. As a general rule, the court in which a suit is first filed acquires dominant jurisdiction to the exclusion of other coordinating courts. Curtis v. Gibbs, 511 S.W.2d 263 (Tex. 1974). Dominant jurisdiction, however, is a concept that applies when separate suits are filed in courts with concurrent jurisdiction. Green v. Watson, 860 S.W.2d 238 (Tex. App. � Austin 1993, no writ). Where one court lacks the jurisdiction to hear a case, the doctrine has no application. Initially, the court notes the distinction between statutory county courts and statutory probate courts. Under the Texas Government Code sec. 25.0003(d), a statutory county court is vested with general jurisdiction over all civil and criminal matters and with probate jurisdiction as provided by general law for county courts. Statutory probate courts, on the other hand, are courts with jurisdiction limited to the general jurisdiction of a probate court as set forth in Texas Probate Code sec. 3(ii). Statutory county courts exercising probate jurisdiction are not statutory probate courts under the code unless their statutorily designated name includes the term “probate.” Section 5(d) of the Texas Probate Code gives county courts, including statutory county courts, the power to hear all matters “incident to an estate.” Section 5A(a) of the Texas Probate Code goes on to define what is included in the phrase “incident to an estate” in proceedings in the constitutional and statutory county courts, while section 5A(b) defines what matters are “incident to an estate” statutory probate courts and district courts. Qualia v. Qualia, 878 S.W.2d 339 (Tex. App. � San Antonio 1994, writ denied). It is apparent from the language used in section 5A that the interpretation and administration of testamentary trusts and the applying of constructive trusts applies only to statutory probate courts and district courts, not to county courts. In addition, Texas Property Code sec. 115.001 gives district courts and certain statutory probate courts exclusive jurisdiction in suits involving trusts. In the case at hand, the pleadings deal with a request for an accounting of a testamentary trust, as well as a request for a surcharge on and damages from the trustee. Although the trust was created by a will now in probate in the Medina County Court at Law, the Texas Probate and Property Codes clearly mandate any issues involving trusts be dealt with in the district court. Texas Probate Code Ann. Sec. 5, 5A; Tex. Prop. Code Ann.�115.001. The county court at law, then, does not have jurisdiction over this case. OPINION: Green, J.; L�pez, C.J., Stone and Green, JJ.

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