In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-17-00359-CV

___________________________

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

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
2

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.

 1

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

purposes of which includes protecting “the interests of participants in private pension 

plans and their beneficiaries.” 29 U.S.C.A. § 1001 (West 2008).
3

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.
4

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.
5

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 

 2

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

which we refer to collectively as the Motions for Summary Judgment.
6

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

 3

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

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.

4

While Kenneth’s wrongful garnishment claim still challenged the alleged 

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 
7

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.
8

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.
9

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 subjectmatter 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. 
10

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 
11

“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 
12

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’ ERISABased 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 
13

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 
14

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).
15

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 
16

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 
17

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 
18

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.
19

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, 
20

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.
21

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 exceptions7 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) (antialienation 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.
22

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 ERISA8 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.

 8

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

other than alleged violations of the plan document, it does not say how.
23

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 
24

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.
25

/s/ Mark T. Pittman

Mark T. Pittman

Justice

Delivered: September 20, 2018