Opinion filed June 10, 2010




                                             In The


   Eleventh Court of Appeals
                                           __________

                                      No. 11-09-00161-CV
                                          __________

                          TERESA WAY ET AL, Appellants

                                                V.

                               TOMMY W. HOUSE, Appellee


                              On Appeal from the 266th District Court

                                       Erath County, Texas

                                  Trial Court Cause No. CV29289


                                           OPINION

       This is a declaratory judgment proceeding. The trial court found that a trust, as amended,
was valid, that Tommy W. House was the current trustee, and that he was entitled to distribute
the trust’s corpus in accordance with its terms. We affirm.
                                           I. Background Facts
       Richard H. Gilbert and A. Deloris Gilbert created the Gilbert Family Revocable Living
Trust. Deloris passed away, and Richard subsequently amended the Trust twice. The second
amendment named House the successor trustee.          Richard died in 2007.    House filed this
declaratory judgment proceeding seeking a determination of the Trust’s validity and his authority
as trustee.
          Teresa Way, Charlene Gorrell, Karen Gilbert, and Christopher Lynn Gilbert are
Richard’s daughters and grandson from a prior marriage. They were named as parties, and they
filed a general denial. On the day of trial, their attorney filed a motion for nonsuit and a plea in
intervention on behalf of the Trust.1 The plea contended that House had been removed as
trustee, and the motion for nonsuit requested the dismissal of House’s declaratory judgment
proceeding. The trial court denied the motion for nonsuit, conducted a bench trial, and entered a
declaratory judgment. The court found that Richard had properly amended the trust instrument,
that House became the successor trustee when Richard died, that House was the qualified and
current trustee, and that House was authorized to conclude the Trust’s affairs and to distribute its
assets.
                                                      II. Issues Presented
          Appellants2 challenge the trial court’s judgment with two issues. Appellants contend first
that the trial court erred by denying the motion for nonsuit without a hearing and second that it
erred by entering a final judgment.
                                                           III. Nonsuit
          The Trust’s motion for nonsuit asked the trial court to ―enter a non-suit against
Tommy W. House, without prejudice to refile same with costs of suit taxed against Applicant
Tommy W. House.‖ The trial court denied the motion without specifying the reason for its
decision. The text of appellants’ first issue raises a procedural challenge, contending that the
trial court erred by denying their motion without holding a hearing, but the body of their brief
complains about the trial court’s substantive ruling.3 In the interest of justice, we will address
both complaints.


          1
            Appellants have represented to this court that these pleadings were filed under the authority of Way as the newly
elected trustee. The pleadings themselves were filed in the name of the Trust and not in Way’s name as substitute trustee. We
note this distinction for purposes of our capacity discussion in Sections III and IV of this opinion.
          2
           The notice of appeal was filed on behalf of Teresa Way, Charlene Gorrell, Christopher Lynn Gilbert, Karen Gilbert,
and the Gilbert Family Revocable Living Trust.
          3
           Appellants’ first issue reads: ―Whether the trial court erred by denying Intervenor’s Motion for Non-Suit without a
hearing of any kind whatsoever.‖
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       Appellants have not preserved their procedural challenge. The Trust did not request a
hearing in its motion, there is nothing in the record indicating that the Trust or any other
appellant otherwise requested a hearing or complained about the lack of one, and appellants
made no offer of proof to establish what evidence the Trust would have offered at a hearing. See
In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (to preserve issue for appellate review, including
constitutional error, party must present to trial court a timely request, motion, or objection; state
the specific grounds therefor; and obtain a ruling); see also In re J.(B.B.) M., 955 S.W.2d 405,
410 (Tex. App.—San Antonio 1997, no pet.) (party failed to preserve error by failing to object to
the premature conclusion of the trial or by making an offer of proof).
       Even if appellants have preserved their procedural issue, they have failed to show any
substantive error. We generally review procedural and trial management determinations under
an abuse of discretion standard. In re Doe, 19 S.W.3d 249, 253 (Tex. 2000). To establish an
abuse of discretion, appellants must attack all independent bases or grounds that fully support the
trial court’s ruling. Britton v. Tex. Dep’t of Crim. Justice, 95 S.W.3d 676, 681 (Tex. App.—
Houston [1st Dist.] 2002, no pet.).
       Appellants assume that the trial court denied the motion for nonsuit because it found that
the Trust lacked standing. The record does not indicate whether the trial court addressed the
Trust’s standing, and we need not do so ourselves because the trial court’s ruling can be
supported on two other independent grounds. First, TEX. R. CIV. P. 162 allows a party to nonsuit
its own cause of action; it does not authorize dismissing another party’s claims. See Tex. Mut.
Ins. Co. v. Ledbetter, 251 S.W.3d 31, 37 (Tex. 2008) (parties have an absolute right to nonsuit
their own claims, but not someone else’s claims they are trying to avoid). Second, the Trust
lacked capacity. See Ray Malooly Trust v. Juhl, 186 S.W.3d 568, 570 (Tex. 2006) (the term
―trust‖ does not refer to a separate legal entity but to the fiduciary relationship governing the
trustee with respect to the trust property). Because a trust does not have capacity, any suits
involving the trust must be brought by or against the trustee. Id.
       The trial court could have appropriately concluded that the Trust’s motion was not
authorized by Rule 162 or that the Trust lacked capacity. Therefore, the trial court did not abuse
its discretion by denying the motion for nonsuit. Issue One is overruled.


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                                                         IV. Final Judgment
          Appellants next complain that the trial court erred by entering a final judgment because it
failed to address the Trust’s plea in intervention. As noted above, the Trust lacks capacity.
Accordingly, the trial court did not err by denying the Trust any affirmative relief. Furthermore,
appellants can show no harm because the record does not establish that they were prevented from
litigating House’s current authority to act as trustee.
          House requested a declaratory judgment that he was the trustee and was entitled to
distribute the Trust’s corpus in accordance with the trust instrument’s terms. The Trust’s plea in
intervention challenged his ability to do so, contending that the adult beneficiaries had removed
him as trustee. Each of the appellants was a beneficiary and a party. If any beneficiary
contended that House was no longer the trustee, this would constitute a compulsory counterclaim
and the individual appellants were required to assert it in this action.4 See Ingersoll-Rand Co. v.
Valero Energy Corp., 997 S.W.2d 203, 207 (Tex. 1999) (a party’s failure to assert a compulsory
counterclaim precludes that party from asserting it in later lawsuits).
          The record indicates that this case had been set for trial at least four times and that no
motion for continuance was filed prior to the last trial setting. Appellants may have assumed that
the Trust’s plea in intervention would result in a further delay, but this does not establish that the
trial court erred by proceeding with the trial setting. Appellants contend that the trial court failed
to consider, rule upon, or receive any evidence regarding House’s removal.                                           Ordinarily,
appellants would need a reporter’s record – which was not requested – and an offer of proof to
preserve this issue.5           We can, however, address appellants’ contention because House has
provided this court with a limited reporter’s record that confirms appellants were able to
introduce evidence of House’s purported removal. The parties stipulated to the admissibility of



          4
            See TEX. R. CIV. P. 97(a). A claim is compulsory if it arises out of the transaction or occurrence that gives rise to the
opposing party’s claim, is mature and owned by the counterclaimant, is against an opposing party in the same capacity, does not
require third parties who cannot be brought into the suit, is within the court’s jurisdiction, and is not pending elsewhere. Wyatt v.
Shaw Plumbing Co., 760 S.W.2d 245, 247 (Tex. 1988).
          5
           To preserve error, the record must show that appellant made a timely request, objection, or motion and that the trial
court ruled on it. TEX. R. APP. P. 33.1. Without an offer of proof, reviewing courts cannot determine whether the exclusion of
evidence was harmful. Bobbora v. Unitrin Ins. Servs., 255 S.W.3d 331, 335 (Tex. App.—Dallas 2008, no pet.).
                                                                 4
several exhibits, including a letter from Way to House advising him that he had been removed as
trustee. House’s current authority was, therefore, before the trial court.
       Because the Trust lacked capacity to participate as a party and because appellants have
shown no harm, Issue Two is overruled.
                                              V. Conclusion
       The judgment of the trial court is affirmed.




                                                      RICK STRANGE
                                                      JUSTICE


June 10, 2010
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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