In The

Court of Appeals

For The

First District of Texas

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NO. 01-00-01394-CV

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HELEN MILLER SAMPLE, THOMAS E. MILLER, & EUGENIA ANN (MILLER) HUNT, Appellants

V.

FIRST NATIONAL BANK OF BRYAN, Appellee

On Appeal from the 272nd District Court

Brazos County, Texas

Trial Court Cause No. 46,700-272

O P I N I O N

This appeal arises from a termination of a trust. Appellants, Helen Miller Sample, Thomas E. Miller, and Eugenia Ann (Miller) Hunt, appeal the trial court's order which denied them their right to receive an accounting and the severance of their counterclaims. We reverse and remand.

Appellee, First National Bank of Bryan (Bank), is the trustee of a trust known as the Travis Bryan Trust. In 1998, Bank filed suit to terminate the trust. Appellants filed an answer and counterclaimed that Bank needed to give a full and complete final accounting. On November 29, 1999, Bank filed special exceptions to appellants' counterclaims. On March 27, 2000, the trial court held a hearing and sustained Banks' special exceptions and denied the request for a final accounting. The trial court ordered appellants to replead their counterclaims. After appellants amended their counterclaims, Bank filed a motion for partial summary judgment. The trial court granted Bank's motion and severed appellants' counterclaims.

In four issues on appeal, appellants argue that the trial court erred in: (1) holding that they were not entitled to an accounting; (2) holding that they were not entitled to a jury trial on their counterclaims; and (3) severing their counterclaims.

In their fourth issue on appeal, appellants argue that the counterclaims were improperly severed.

Rule 41 of the Texas Rules of Civil Procedure provides that "[a]ny claim against a party may be severed and proceeded with separately." This rule grants the trial court broad discretion in the matter of severance and consolidation of causes. McGuire v. Commercial Union Ins. Co., 431 S.W.2d 347, 351 (Tex. 1968). The trial court's decision to grant a severance will not be reversed unless it has abused its discretion. Saxer v. Nash Phillips-Copus Co. Real Estate, 678 S.W.2d 736, 739 (Tex. App.--Tyler 1984, writ ref'd n.r.e.). A claim is properly severable if: (1) the controversy involves more than one cause of action; (2) the severed claim is one that would be the proper subject of a lawsuit if independently asserted; and (3) the severed claim is not so interwoven with the remaining action that they involve the same facts and issues. Id.; see also Weaver v. Jock, 717 S.W.2d 654 (Tex. App.--Waco 1986, writ ref'd n.r.e.).

Appellants argue that their counterclaims were compulsory, and therefore, severing them constituted an abuse of discretion. We agree.

An order that severs compulsory counterclaims from the primary suit constitutes an abuse of discretion. Ryland Group Inc. v. White, 723 S.W.2d 160, 161 (Tex. App.--Houston [1st Dist.] 1986, no writ). A counterclaim is compulsory if: (1) it is within the jurisdiction of the court; (2) it is not at the time of filing the answer the subject of a pending action; (3) the action is mature and owned by the pleader at the time of filing the answer; (4) it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; (5) it is against an opposing party in the same capacity; and (6) it does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 247 (Tex. 1988). In this case, appellants assert as a counterclaim that they were entitled to a final accounting. This claim meets all of the Wyatt factors. See id. Thus, we conclude that appellants' counterclaims were compulsory counterclaims, and therefore, the trial court abused its discretion in severing appellants' counterclaims.

We sustain appellants' fourth issue on appeal. Because we sustain this issue, we decline to address appellants' remaining issues on appeal.

We reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

Adele Hedges

Justice

Panel consists of Chief Justice Schneider and Justices Hedges and Nuchia.

Do not publish. Tex. R. App. P. 47.