                          In the
                     Court of Appeals
             Second Appellate District of Texas
                      at Fort Worth
                  ___________________________
                       No. 02-17-00359-CV
                  ___________________________

EDGEFIELD HOLDINGS, LLC AS ASSIGNEE OF REGIONS BANK, Appellant


                                  V.

KENNETH J. GILBERT, HELEN K. GILBERT, CHANDLER ESTATES, LTD.,
 AND PARKER COUNTY REAL ESTATE INVESTMENTS, INC., Appellees




                On Appeal from the 43rd District Court
                       Parker County, Texas
                    Trial Court No. CV16-0784


                Before Meier, Gabriel, and Pittman, JJ.
                     Opinion by Justice Pittman
                             MEMORANDUM OPINION

                                   INTRODUCTION

       Twenty-one years ago, the United States Supreme Court made it abundantly

clear that “ERISA’s[1] pension plan anti-alienation provision is mandatory and

contains only two explicit exceptions, . . . which are not subject to judicial

expansion.” Boggs v. Boggs, 520 U.S. 833, 851, 117 S. Ct. 1754, 1765 (1997) (citing

29 U.S.C. § 1056(d)(2), (d)(3)(A)) (emphasis added). Here, the trial court granted

summary judgment on that issue in favor of Appellees Kenneth J. Gilbert; Helen K.

Gilbert (Kay); Chandler Estates, Ltd.; and Parker County Real Estate Investments,

Inc. (collectively, the Gilbert parties).

       Despite the Supreme Court’s holding, in this appeal, Appellant Edgefield

Holdings, LLC, as assignee of Regions Bank, argues that the trial court erred by

concluding that the pension plan at issue is not subject to execution. As part of its

appeal, Edgefield challenges the trial court’s subject-matter jurisdiction, the court’s

evidentiary rulings, and the court’s granting of summary judgment. Because we hold

that the trial court had jurisdiction to render summary judgment, that Edgefield did

not show harm from the trial court’s evidentiary rulings, and that Edgefield has not

shown that the trial court erred by granting summary judgment, we affirm.


       ERISA is the federal “Employee Retirement Income Security Act,” the
       1

purposes of which includes protecting “the interests of participants in private pension
plans and their beneficiaries.” 29 U.S.C.A. § 1001 (West 2008).


                                            2
                                 BACKGROUND

I.    Edgefield Sues the Gilbert Parties as Judgment Creditor and the Gilbert
      Parties Counterclaim.

      In June 2016, Edgefield filed this suit against the Gilbert parties in the 43rd

district court of Parker County, Texas to recover funds Kenneth had transferred to

and from accounts at EECU Credit Union (EECU). Edgefield claimed entitlement to

those assets as a judgment creditor. In its petition, Edgefield alleged that in 2010,

Regions Bank obtained a judgment against Kenneth for $1,972,645.58, plus attorney’s

fees and post-judgment interest, and that in March 2016, Regions Bank assigned that

judgment to Edgefield.

      Edgefield further alleged that in January 2016, for no value in return, Kenneth

transferred $250,000, his earned commissions from his employer, to an account held

in the name of Chandler Estates. The petition also stated that on April 28, 2016,

Edgefield served EECU with a notice of subpoena requesting documents relating to

Kenneth’s account, and it served Kenneth’s attorney with a copy of that notice on

May 2, 2016. In addition, Edgefield alleged that after service of that subpoena on

Kenneth through his attorney, Kenneth then made the following transfers:

      (1)    a May 4, 2016 transfer of $25,000 to Kay by Kenneth out of
             Chandler Estates’s account—for which Kenneth is a signatory—
             at EECU; and

      (2)    a May 5, 2016 wire transfer of $225,000 by Kenneth out of
             Chandler Estates’s EECU account.




                                         3
In the lawsuit, Edgefield sought, among other relief, declarations that the transfers

were void, avoidance of the transfers, and attachment and execution of the transferred

assets. Finally, Edgefield asserted that Parker County Real Estate Investments was

the general partner of Chandler Estates and was therefore also liable.

      The Gilbert parties answered, and by amended answer, Kenneth filed a

counterclaim for wrongful garnishment. Kenneth based the counterclaim on an

application for writ of garnishment that Edgefield had earlier filed in a different trial

court in Parker County, Texas, the 415th district court of Parker County, against UBS

AG and UBS Financial Services, Inc. as garnishees (collectively, UBS) and against

Kenneth as judgment debtor. In his wrongful garnishment counterclaim, Kenneth

claimed that Edgefield had garnished funds held by UBS despite knowing the funds

were exempt from execution under Texas Property Code Section 42.0021. See Tex.

Prop. Code Ann. § 42.0021 (West 2014).

      The Gilbert parties then filed a second amended answer and counterclaim,

adding a claim for declaratory judgment on behalf of all the Gilbert parties. They

alleged that Edgefield had attempted to garnish an Individual Retirement Account

(IRA) and a defined benefit pension plan (which, in later pleadings, they identified as

an account held in the name of the Gilbert Real Estate Brokers Defined Benefit

Pension Plan (the Pension Plan)), both held at UBS and both of which they alleged

were exempt from execution.



                                           4
II.   The Gilbert Parties File Motions for Summary Judgment and Edgefield
      Responds with Various Filings.

      On August 3, 2017, Kenneth filed a traditional motion for partial summary

judgment2 seeking a declaration that (1) the IRA and (2) the Pension Plan were

protected by ERISA. Kenneth attached to his motion the answer UBS had filed in

Edgefield’s garnishment suit in the 415th district court. UBS stated in the answer that

it held an IRA in Kenneth’s name with a balance of $181,840.76 and a resource

management account in the name of Kenneth and Kay W. Gilbert in the amount of

$667.98. In the answer, UBS warned Edgefield that the IRA account may be exempt

from garnishment.

      A few days after Kenneth filed his August 3, 2017 motion for summary

judgment, Edgefield attempted to remove this case to the United States District Court

for the Northern District of Texas, Fort Worth Division, based on the Gilbert parties’

counterclaim for a declaration that ERISA exempted the Pension Plan from

execution. On August 24, 2017, the federal district court granted the parties’ agreed

motion to remand the case back to the 43rd district court.

      On August 29, 2017—five days after the federal court remanded the case back

to the 43rd district court—Edgefield filed a plea to the jurisdiction and a motion to




      The various Gilbert parties filed a total of three summary judgment motions,
      2

which we refer to collectively as the Motions for Summary Judgment.


                                          5
dismiss under Rule 91a3 arguing that federal courts had exclusive jurisdiction over

Kenneth’s requested declaratory relief. See Tex. R. Civ. P. 91a. Thus, it argued,

because the allegations in the Gilbert parties’ petition, taken as true, did not entitle

them to the relief they sought in state court, their counterclaim had no arguable basis

in law.

          On the same date, the Gilbert parties filed a third amended answer and

counterclaim. In that pleading, they “sue[d Edgefield] for the wrongful garnishment

of UBS as the holder of the assets of both an [IRA] Account and the Pension Plan.”

They alleged that UBS held funds for the benefit of Kenneth and Kay in the Pension

Plan account and that the assets in the account were exempt from execution under

Texas Property Code section 42.0021 and ERISA. They further sought a declaration

that the Pension Plan is exempt from execution under ERISA and the Texas Property

Code, “notwithstanding [Edgefield’s] assertion that transfers into the Pension Plan

account are recoverable as fraudulent transfers.”4


       Though styled as two separate motions combined into one document, the
          3

motion had only one arguments section and did not distinguish between Rule 91a
grounds for dismissal and plea to the jurisdiction grounds for dismissal, except for a
request at the end for attorney’s fees under Rule 91a. We refer to this combined
motion as the Motion to Dismiss.

       While Kenneth’s wrongful garnishment claim still challenged the alleged
          4

attempted garnishment of both the IRA and the Pension Plan, in this amended
pleading the Gilbert parties no longer asked for declaratory relief relating to the IRA.
This omission may have been a drafting error, given that the Gilbert parties still
challenged the garnishment of the IRA account and that when they pled for
declaratory relief, they asked twice for essentially the same declaration regarding the

                                           6
       On August 31, 2017, Kenneth filed another motion for partial summary

judgment seeking a declaration that the IRA and Pension Plan were exempt from

execution under ERISA. That same day, the Gilbert parties filed a joint motion for

traditional and no-evidence summary judgment.          In the traditional motion, they

asserted that Edgefield had filed its garnishment action to illegally garnish the IRA

and the Pension Plan. In the no-evidence motion, the Gilbert parties asserted that

they were entitled to summary judgment on Edgefield’s claims because Edgefield had

no evidence of several elements of its claims.

       On September 18, 2017, Edgefield nonsuited its claims against the Gilbert

parties.

       Both the Gilbert parties and Edgefield filed briefing with the trial court arguing

the merits of Edgefield’s Motion to Dismiss, and Edgefield filed a response to the

Gilbert parties’ Motions for Summary Judgment and a supplemental Motion to

Dismiss. With its summary judgment response, Edgefield attached a copy of an

agreed judgment between Edgefield and UBS in the garnishment proceeding in the

415th district court, in which Edgefield took nothing on its claims against UBS and


Pension Plan. While Edgefield mentions several times in its brief that the Gilbert
parties omitted its claim for a declaration regarding the IRA from its third amended
petition, it does so in order to argue that the Gilbert parties cannot rely on the
garnishment proceeding and resulting freezing of the IRA to show a justiciable
controversy. At no point does it complain that the trial court granted summary
judgment on an unpled cause of action. We therefore do not consider whether it was
error for the trial court to do so.


                                           7
UBS recovered from Edgefield $667.98 in attorney’s fees from Kenneth’s non-IRA

account held by UBS and garnished by Edgefield.

       The Gilbert parties filed objections to all the evidence attached to Edgefield’s

response to their summary judgment motions.           The trial court sustained the

objections and struck the evidence.

       The trial court granted each of the Motions for Summary Judgment on each of

the grounds set out in the motions and found that the funds in the IRA and the

Pension Plan were exempt under ERISA’s anti-alienation provision from seizure by

any creditor. The Gilbert parties then nonsuited their claim for wrongful garnishment

and for attorney’s fees, the only remaining claims pending in the case. The trial court

signed a final judgment incorporating its previous orders granting the Motions for

Summary Judgment and declaring that the IRA and the Pension Plan were exempt

from execution under ERISA. Edgefield now appeals.

                                      DISCUSSION

I.     The Trial Court Correctly Denied Edgefield’s Motion to Dismiss.

       In Edgefield’s first issue, it argues that the trial court erred in denying its

Motion to Dismiss because (1) there was no justiciable issue before the trial court and

(2) only a federal court has subject-matter jurisdiction to render judgment in favor of

the Gilbert parties.




                                           8
      A.     We Apply De Novo Review to the Trial Court’s Ruling on the Rule
             91a Motion to Dismiss.

      A motion under Texas Rule of Civil Procedure 91a may seek dismissal of a

cause of action on the grounds that it has no basis in law or in fact. Tex. R. Civ. P.

91a. “A cause of action has no basis in law if the allegations, taken as true, together

with inferences reasonably drawn from them, do not entitle the claimant to the relief

sought.” Id. Like a plea to the jurisdiction challenging a plaintiff’s pleadings, a Rule

91a motion to dismiss may be based on a party’s failure to allege facts demonstrating

the trial court’s subject-matter jurisdiction over the party’s claim. See City of Dallas v.

Sanchez, 494 S.W.3d 722, 724–25 (Tex. 2016). “Whether a pleader has alleged facts

affirmatively demonstrating the existence of subject-matter jurisdiction is a question

of law reviewed de novo.” Id. at 725. Whether reviewing a plea to the jurisdiction

challenging the pleadings or a Rule 91a motion challenging the trial court’s subject-

matter jurisdiction, we liberally construe the pleadings to determine whether they

contain sufficient facts to demonstrate jurisdiction. Id.; see Tex. Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

       A plea to the jurisdiction may also challenge the existence of jurisdictional facts.

Mission Consol. I.S.D. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012). In that case, “a trial

court’s review of a plea to the jurisdiction mirrors that of a traditional summary

judgment motion.” Id. The party filing the plea has the burden to meet the summary

judgment standard of proof for its assertion that the trial court lacks jurisdiction. Id.


                                            9
If it does, the opposing party must then show that a disputed material fact exists

regarding the jurisdictional issue. Id. “[W]e take as true all evidence favorable to the

non-movant, indulging every reasonable inference and resolving any doubts in its

favor.” Tex. Dep’t of Criminal Justice-Cmty. Justice Assistance Div. v. Campos, 384 S.W.3d

810, 814 n.2 (Tex. 2012). “[W]hether undisputed evidence of jurisdictional facts

establishes a trial court’s jurisdiction is also a question of law.” Miranda, 133 S.W.3d at

226.

       B.    The Gilbert Parties Alleged a Justiciable Controversy.

       Edgefield first argues in this appeal that the trial court “erred by ruling on, let

alone granting, [the Gilbert parties’] three Motions for Summary Judgment because

there was no justiciable issue[] before the Court.” Specifically, Edgefield contends

that it has filed no action against the Pension Plan and that by the Gilbert parties

asking the trial court to issue a declaratory judgment that the Pension Plan funds are

exempt from execution, the Gilbert parties are seeking an impermissible advisory

opinion. This contention is erroneous.

       “The stated purpose of the Declaratory Judgments Act is ‘to settle and afford

relief from uncertainty and insecurity with respect to rights, status, and other legal

relations.’” Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995) (quoting Tex.

Civ. Prac. & Rem. Code § 37.002(b) (Vernon 1986)). “A declaratory judgment is

appropriate only if a justiciable controversy exists as to the rights and status of the

parties and the controversy will be resolved by the declaration sought,” and therefore

                                            10
“there must exist a real and substantial controversy involving genuine conflict of

tangible interests and not merely a theoretical dispute.” Id. (citations and internal

quotation marks omitted).

      Although Edgefield contends the Gilbert parties are seeking an advisory

opinion because it has taken no action against the Pension Plan and concludes

therefore that there is no controversy over the Pension Plan’s exemption from

execution, it is incorrect. “A declaratory action need not concern a present lawsuit

but may include ‘threatened litigation in the immediate future that seems

unavoidable.’” Monk v. Pomberg, 263 S.W.3d 199, 207 (Tex. App.—Houston [1st Dist.]

2007, no pet.) (citation omitted). Here, Edgefield is actively attempting to execute on

Kenneth’s assets, and Kenneth’s assets include the Pension Plan. In its pursuit of

Kenneth’s assets, Edgefield filed an application for a writ of garnishment against

UBS—where the Pension Plan is held—and the fraudulent transfer claims in this case.

Indeed, Edgefield’s actions have already caused a different retirement account (the

IRA) to be frozen by UBS. Further, the Gilbert parties alleged that Edgefield has

expressed in conversations with the Gilbert parties its position that the Pension Plan

is not exempt (a position Edgefield subsequently took below in response to the

Gilbert parties’ counterclaims).

      Without question, the Gilbert parties alleged “a real and substantial controversy

involving genuine conflict of tangible interests” and thus alleged a justiciable

controversy, despite Edgefield’s not yet executing on funds in the Pension Plan. See

                                          11
id.; Bonham State Bank, 907 S.W.2d at 467. We overrule this part of Edgefield’s first

issue.

         C.    The Trial Court Has Jurisdiction over The Gilbert Parties’ ERISA-
               Based Counterclaims.

               1.     We apply different scopes of review to the Motion to
                      Dismiss.

         In the second part of its first issue, Edgefield asserts that only a federal court

has subject-matter jurisdiction to render judgment in favor of the Gilbert parties.

Importantly, before we address the merits of Edgefield’s contention, we must first

address the two different scopes of review applicable to Edgefield’s Motion to

Dismiss. In ruling on a Rule 91a motion, the trial court does not consider evidence

but “must decide the motion based solely on the pleading of the cause of action,

together with any pleading exhibits permitted by [Texas] Rule [of Civil Procedure]

59.” AC Interests, L.P. v. Tex. Comm’n on Envt’l Quality, 543 S.W.3d 703, 706 (Tex.

2018) (quoting Tex. R. Civ. P. 91a). Likewise, in ruling on a plea to the jurisdiction

challenging the pleadings, the trial court looks at the pleadings. Miranda, 133 S.W.3d

at 226. If, however, a movant challenges the existence of jurisdictional facts, the trial

court must consider relevant jurisdictional evidence provided by the movant and, if

the movant’s evidence negates jurisdiction, consider evidence produced by the

nonmovant. Garcia, 372 S.W.3d at 635.

         In this case, Edgefield’s Motion to Dismiss did not specify whether its plea to

the jurisdiction challenged a failure to plead jurisdictional facts or the existence of

                                             12
jurisdictional facts.    However, in its Motion to Dismiss, Edgefield attached and

referenced evidence other than what would be allowed under Rule 59, and argued that

its evidence established that only a federal court had jurisdiction over the Gilbert

parties’ claims. For the trial court to consider that evidence, Edgefield had to be

challenging the existence of jurisdictional facts. Id. Accordingly, for purposes of

reviewing the trial court’s ruling on the Rule 91a part of the motion, we look to see if

the Gilbert parties pled a cause of action with an arguable basis in law—specifically

here, whether they pled facts showing the trial court’s jurisdiction—and, for purposes

of reviewing the trial court’s ruling on the plea to the jurisdiction, we look to see if

Edgefield negated the existence of jurisdictional facts.

              2.        ERISA authorizes the Gilbert parties’ declaratory judgment
                        claim.

       Despite Edgefield’s protests that only a federal court has jurisdiction to decide

this controversy, state courts routinely consider whether a creditor may garnish funds

held by a plan arising under ERISA. See, e.g., Shah v. Baloch, 418 P.3d 902, 903–

04 (Ariz. Ct. App. 2017). And assuming that the Gilbert parties’ declaratory judgment

action is a “civil action[] under [ERISA]”—as both sides do in their briefs—it is

authorized under Section 1132. In their competing arguments as to whether the state

court has jurisdiction, the subsection of ERISA that both parties rely on is 29 U.S.C.

§ 1132(e)(1), which reads

       Except for actions under subsection (a)(1)(B) of this section, the
       district courts of the United States shall have exclusive jurisdiction of

                                           13
      civil actions under this subchapter brought by the Secretary or by a
      participant, beneficiary, fiduciary, or any person referred to in section
      1021(f)(1) of this title. State courts of competent jurisdiction and
      district courts of the United States shall have concurrent jurisdiction
      of actions under paragraphs [(a)](1)(B) and (7). 5

29 U.S.C.A. § 1132(e)(1) (West 2009) (emphasis added).

      The action authorized under subsection (a)(1)(B), for which state courts have

concurrent jurisdiction, is one brought by a participant or beneficiary of a plan “[1] to

recover benefits due to [the participant or beneficiary] under the terms of [the] plan,

[2] to enforce [the participant or beneficiary’s] rights under the terms of the plan, or

[3] to clarify [the participant or beneficiary’s] rights to future benefits under the terms

of the plan.” 29 U.S.C.A. § 1132(a)(1)(B); cf. Conn. Nat’l Bank v. Germain, 503 U.S. 249,

254, 112 S. Ct. 1146, 1149 (1992) (“When the words of a statute are unambiguous,

then, the first canon is the last; judicial inquiry is complete.” (citations and internal

quotation marks omitted)).

      Thus, for purposes of determining whether the Gilbert parties alleged sufficient

facts to show the trial court’s jurisdiction, the question is whether the Gilbert parties

alleged facts showing that their declaratory judgment action is authorized by

subsection (a)(1)(B). Edgefield does not contend that the Gilbert parties failed to

plead facts showing that Kenneth is a participant or beneficiary or that the Pension


      5
        Subsection (a)(7) authorizes an action by a state to enforce compliance with a
“qualified medical child support order,” and thus is inapplicable to the Gilbert parties’
counterclaims. See 29 U.S.C.A. § 1132(a)(7).


                                            14
Plan is a “plan” for purposes of subsection (a)(1)(B).          By the Gilbert parties’

declaratory judgment counterclaim, they seek to enforce Kenneth’s rights under the

terms of the Pension Plan or clarify his rights to future benefits. The Gilbert parties

therefore pled sufficient facts to show that the declaratory judgment action is a civil

action under subsection (a)(1)(B).

      Edgefield counters that the declaratory judgment action was not one authorized

under Section 1132(a)(1)(B) and is instead the kind of action authorized under Section

1132(a)(3), and therefore the declaratory judgment must be brought in federal court.

See id. § 1132(a)(3) (authorizing an action by a participant to enjoin any act violating

the subchapter or terms of a plan and “to obtain other appropriate equitable relief

(i) to redress such violations or (ii) to enforce any provisions of this subchapter or the

terms of the plan”). But by bringing this declaratory judgment action, the Gilbert

parties asked for “a declaration of rights, status, or other legal relations” under the

Pension Plan and ERISA, and they thereby sought to enforce Kenneth’s rights under

the plan and clarify Kenneth’s rights to future benefits under the plan.           See id.

§ 1132(a)(1)(B); Tex. Civ. Prac. & Rem. Code Ann. § 37.004 (West 2014).

      Edgefield argues, however, that the Gilbert parties are not seeking to enforce

or clarify Kenneth’s rights under the terms of the Pension Plan because they have not

sued the trustee or administrator. Other than the text of Section 1132(a)(1)(B),

Edgefield cited no law in its Motion to Dismiss or on appeal for the proposition that

a claim to enforce or clarify rights under Section 1132(a)(1)(B) that does not seek to

                                           15
recover benefits owed under a plan, may be brought only against a plan’s trustee or

administrator. See Tex. R. App. P. 38.1(i) (briefs must contain relevant cites to

authority for arguments made).          The statute’s plain language contains no such

restriction. Cf. Knapp v. Cardinale, 963 F. Supp. 2d 928, 933 (N.D. Cal. 2013) (holding

that a state court had the power to determine claim brought by plan participant to

determine whether plan at issue was an ERISA plan and whether an account levied

upon contained funds exempt from execution by creditor).

      As for Edgefield’s plea to the jurisdiction, it produced (1) the Gilbert parties

request for admissions in which they asked Edgefield to admit that the Pension Plan is

subject to ERISA and (2) a document showing that Kenneth is an active participant in

the Pension Plan. By supplemental plea, Edgefield also attached an affidavit from

Donald Stark of the Loren D. Stark Company, which drafted the plan document

creating and governing the Pension Plan. Edgefield asserted that with this affidavit,

the Gilbert parties “admit[ed] that the [Pension Plan] is subject to ERISA.” None of

this evidence shows that the Gilbert parties’ claim is not a claim to clarify or enforce

Kenneth’s rights under the Pension Plan. Accordingly, the trial court did not err by

denying the plea to the jurisdiction. See Garcia, 372 S.W.3d at 635. We overrule the

remainder of Edgefield’s first issue.

II.   The Trial Court Had Jurisdiction to Grant Summary Judgment.

      Edgefield’s second issue challenges the trial court’s grant of summary judgment

for the Gilbert parties on the same grounds that it challenged the trial court’s denial of

                                            16
its Motion to Dismiss, asserting that the trial court lacked jurisdiction to grant

summary judgment for the Gilbert parties because: (1) there was no justiciable

controversy and (2) federal courts have exclusive jurisdiction over a declaratory

judgment action addressing the Pension Plan. For the reasons discussed herein,

because a justiciable controversy exists and the 43rd district court had jurisdiction

over the declaratory judgment action, we overrule Edgefield’s second issue.

III.   The Trial Court Did Not Err in Granting Summary Judgment for the
       Gilbert Parties on the Basis that the Pension Plan Is Exempt.

       In its fourth issue, Edgefield argues that the trial court erred in granting the

Gilbert parties’ three motions for summary judgment and declaring that the Pension

Plan was exempt from execution because Edgefield raised a genuine issue of material

fact as to whether the Pension Plan was exempt.

       Edgefield makes two main arguments under this issue. First, the Pension Plan

is a separate and distinct legal entity under federal law but is not a party to this suit,

and therefore this court does not have the ability to adjudicate issues regarding its

legal status. Second, the Gilbert parties did not comply with the terms of the Pension

Plan, creating a genuine issue of material fact as to its exempt status. Both of these

arguments are without merit.

       A.    Edgefield Did Not Preserve its Complaint that the Pension Plan is
             a Necessary Party.

       Edgefield argues that “for this Court to enter an order regarding the rights of a

separate entity, that entity must be made a party t[o] this suit.” Edgefield cites no

                                           17
authority for its proposition that the Pension Plan must be a party to the declaratory

judgment action. See Tex. R. App. P. 38.1(i). However, Edgefield’s argument fails for

two reasons. First, a trial court’s declaration “does not prejudice the rights of a

person not a party to the proceeding.” Tex. Civ. Prac. & Rem. Code Ann. § 37.006(a)

(West 2014); Brooks v. Northglen Ass’n, 141 S.W.3d 158, 163 (Tex. 2004). Thus, a

declaration regarding the Pension Plan as between the Gilbert parties and Edgefield

does not prejudice any rights of the Pension Plan. Second, even if the Pension Plan

were a necessary party, Edgefield did not properly object to the Pension Plan’s

absence in the trial court, raising the issue only in its response to the Gilbert parties’

Motions for Summary Judgment. See Khalilnia v. Fed. Home Loan Mortg. Corp., No. 01-

12-00573-CV, 2013 WL 1183311, at *4 (Tex. App.—Houston [1st Dist.] Mar. 21,

2013, pet. denied) (mem. op.) (noting that “[a] party must object to the absence of a

necessary party either by a verified plea in abatement, or, if the error is apparent on

the face of the petition, by special exception” and that “[f]ailure to do so waives any

defect in the parties”); see also Feuerbacher v. Fed. Nat’l Mortgage Ass’n, No. 05-16-01117-

CV, 2017 WL 5589601, at *2 (Tex. App.—Dallas Nov. 21, 2017, no pet.) (mem. op.)

(holding that raising the failure to join an indispensable party only in a response to a

motion for summary judgment does not preserve the issue for review). It therefore

failed to preserve its complaint for review, and we overrule this part of Edgefield’s

fourth issue.



                                            18
      B.     Edgefield Did Not Raise a Genuine Issue of Material Fact About
             Whether the Pension Plan Funds Are Exempt from Execution.

      Edgefield makes several arguments for why the evidence raised a genuine

question of material fact precluding summary judgment, each without merit.

      Edgefield asserts that one of its exhibits, struck (erroneously, it argues) by the

trial court, was a copy of a plan document for the Pension Plan that was different

from the plan document the Gilbert parties included with their summary judgment

motion. The copy of the plan document that created and governs the Pension Plan,

which the Gilbert parties attached to their summary judgment motion, had been

produced by Donald Stark of Loren D. Stark Company and was accompanied by his

affidavit. This plan document had been signed and adopted by Kay and Kenneth

Gilbert. On the other hand, the copy attached to Edgefield’s summary judgment

response is a copy of a proposed amended plan document, with changes made in

response to the federal Economic Growth and Tax Relief Reconciliation Act of 2001.

See Pub. L. No. 107-16, 115 Stat. 38. According to the affidavit of Edgefield’s

attorney accompanying this plan document, the copy was produced by Loren D. Stark

Company in response to a subpoena. This copy, apparently drafted in 2010, is

unexecuted and contains no indication it was ever adopted. Nevertheless, Edgefield

argues that the two versions of the plan document define “Employer” differently, and

that this difference creates a genuine issue of material fact. It does not, however, say

what that material fact issue is. It certainly does not explain how this unexecuted,


                                          19
unadopted plan document creates a genuine issue of material fact on the controlling

issue—whether the funds from Kenneth’s income, once deposited into the Pension

Plan, can be reached by creditors.

      Edgefield’s primary argument under this issue revolves around alleged

violations of the plan document. Edgefield contends that a claim under Section

1132(a)(1)(B) is the assertion of a contractual right, and therefore this court must look

to the plan documents. Edgefield then lists a number of ways that it contends that

the Gilbert parties violated the terms of both the plan document relied on by the

Gilbert parties and the subsequent unexecuted plan document. It asserts that its

summary judgment evidence showed that Kenneth’s employer deposited his income

into accounts held not in Kenneth’s name, but in the name of Chandler Estates and

another entity, and that Kenneth transferred the income from there into the Pension

Plan. Edgefield argues that this arrangement violated various parts of both versions

of the plan document, and it contends that it therefore raised a genuine issue of fact

as to whether the Pension Plan “constituted a retirement plan, the type of which [the

Gilbert parties] allege is exempt from execution.”6

      Even assuming that Edgefield is correct that the manner in which the funds

were transferred into the Pension Plan violated the terms of the plan document,

      6
        Edgefield does not argue that based on the terms of the plan document, the
Pension Plan is not a plan subject to ERISA and to which the anti-alienation
provision applies. It argues only that the Gilbert parties’ failure to comply with the
plan’s terms make the plan’s funds available to creditors.


                                           20
Edgefield failed to raise an issue of material fact about whether the funds are

protected from execution. Edgefield does not explain how a failure to comply with

the plan’s terms after creation of the plan means that no plan exists, nor does it cite

any authority for that proposition. Edgefield does not deny that a plan document was

drawn up and executed creating the Pension Plan. Edgefield does not deny that the

funds came from Kenneth’s income and ended up in the Pension Plan. Both versions

of the plan document contain an anti-alienation clause. Edgefield acknowledges that

under either version of the plan document, the Pension Plan is subject to ERISA.

Moreover, even for employee malfeasance or criminal activity, ERISA provides only

two exceptions 7 to its anti-alienation provision, neither of which is applicable here.

Boggs, 520 U.S. at 851, 117 S. Ct. at 1765; see also 29 U.S.C.A. § 1056(d)(2) (anti-

alienation provision does not apply to an assignment or alienation of benefits

executed before September 2, 1974); (d)(3)(A) (West 2009) (anti-alienation provision

does not apply to qualified domestic relations orders); Guidry v. Sheet Metal Workers

Nat’l Pension Fund, 493 U.S. 365, 376, 110 S. Ct. 680, 687 (1990) (declining to approve

of an equitable exception to ERISA’s prohibition on the assignment or alienation of

pension benefits); Matter of Baker, 114 F.3d 636, 640 (7th Cir. 1997) (holding violations

of the plan’s terms and violations of ERISA by plan trustee and participant did not

      7
       The Fifth Circuit and several other federal courts of appeals have held that the
Mandatory Victim Restitution Act of 1996 created another exception for a fine
imposed under that act. United States v. DeCay, 620 F.3d 534, 540–41 (5th Cir. 2010).
This exception also does not apply to Edgefield.


                                           21
make ERISA inapplicable to allow a creditor to reach the participant’s assets in the

plan because “[i]nequitable or not . . . the anti-alienation clause governs. There is no

‘equity’ exception to § 1056(d)(1) of ERISA”).

       Edgefield cites no case or other authority for its argument that the funds in the

Pension Plan are subject to execution because they were not deposited in the Pension

Plan in the manner called for under the plan document. Nor does it explain how (or

even argue that) the Gilbert parties’ alleged failures to comply with the plan

document’s terms or ERISA 8 mean that the Pension Plan was not created or that it is

not a plan subject to ERISA. See Guidry, 493 U.S. at 371, 110 S. Ct. at 685 (“ERISA

erects a general bar to the garnishment of pension benefits from plans covered by the

Act.”); Shah, 418 P.3d at 903–04 (“[E]ven a fraudulent transfer of funds by a

participant into his or her qualified plan may not be recovered unless a statutory

exception applies”). Edgefield acknowledges elsewhere in its brief that a plan subject

to ERISA exists. As for this court, we have no authority to expand ERISA to create a

new exception to its anti-alienation provision. Cf. U.S. Fleet Servs. v. City of Fort Worth,

141 F. Supp. 2d 631, 644 (N.D. Tex. 2001) (Mahon, J.) (refusing to engage in an

exercise of “legal jingoism” requiring the court to insert words into a law or rule to

arrive at a particular party’s interpretation).

       Therefore, we overrule the remainder of Edgefield’s fourth issue.

       Edgefield argues that the Gilbert parties failed to comply with ERISA, but
       8

other than alleged violations of the plan document, it does not say how.


                                              22
IV.    Edgefield Showed No Harm from the Exclusion of its Evidence.

       In its third issue, Edgefield contends that the trial court abused its discretion by

sustaining the Gilbert parties’ objections to its evidence.

       Edgefield acknowledges that an appellate court’s reversal of a trial court’s

evidentiary ruling turns on whether the ruling was harmful. Edgefield argues that the

trial court’s evidentiary rulings were harmful because the court excluded all of

Edgefield’s evidence. But, if none of the excluded evidence was controlling of a

material issue, the exclusion was not harmful. See Bedford v. Moore, 166 S.W.3d 454,

465 (Tex. App.—Fort Worth 2005, no pet.) (“Exclusion of evidence is harmful only if

the evidence is controlling on a material issue and is not cumulative.”). Save one

exhibit, discussed next, Edgefield does not argue how any of the excluded evidence,

such as copies of the Gilbert parties’ discovery requests, related to a material issue.

And based on our review of the evidence, we do not see how the exclusion of the

evidence caused the rendition of an improper judgment. See Tex. R. App. P. 44.1.

We therefore overrule Edgefield’s third issue as to all but one of the excluded

exhibits. See Manon v. Solis, 142 S.W.3d 380, 393 (Tex. App.—Houston [14th Dist.]

2004, pet. denied) (“Appellant fails to explain, however, how the excluded testimony

is controlling on a material issue in the case and would not have been cumulative of

other admitted evidence.”); Krell v. Smith, No. 02-02-00417-CV, 2003 WL 22147556, at

*1 (Tex. App.—Fort Worth Sept. 18, 2003, no pet.) (mem. op.) (holding that by

failing to argue that she suffered harm as a result of the trial court’s exclusion of

                                            23
evidence, the appellant failed to meet her burden of proof by presenting grounds for

reversal on appeal).

         The only evidence for which Edgefield makes a harm argument is the trial

court’s exclusion of the copy of the unexecuted plan document. Edgefield argues that

the trial court’s exclusion was harmful because it shows that the original, adopted plan

document included by the Gilbert parties with their summary judgment motion “may

not even be valid because another set of unique plan documents exist.” We do not

agree.

         As the Gilbert parties state in their brief, Edgefield never explains how an

unexecuted copy of a plan, with no evidence in the record that the version of the plan

was ever adopted, gives rise to an issue of material fact regarding the legal effect of

the anti-alienation clause contained in the adopted plan document. Edgefield does

not deny that, whichever plan is in effect, it is subject to ERISA. Both plans contain

an anti-alienation clause. In either case, Edgefield acknowledged below and on appeal

that (1) a plan exists and (2) the plan is subject to ERISA. These two facts were not

challenged by the existence of the second plan document, even if it had been

executed, which the record does not support. Edgefield has therefore not shown

harm by the trial court’s exclusion of the unexecuted plan document. See Tex. R.

App. P. 44.1. We overrule the remainder of Edgefield’s third issue.

                                     CONCLUSION

         Having overruled Edgefield’s four issues, we affirm the trial court’s judgment.

                                            24
                                     /s/ Mark T. Pittman
                                     Mark T. Pittman
                                     Justice

Delivered: September 20, 2018




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