as it was waived. The Juhls sued the Trust in May 1999, alleging a breach of lease. More than three years later, on the day trial began, the Trust filed a verified answer stating for the first time that “Defendant, The Ray Malooly Trust does not have capacity to be sued.” The trial court denied leave to file the amended pleading on grounds of surprise. See TEX. R. CIV. P. 63. The court of appeals stated that “a number of Texas cases indicate a trust may be named as a party -without inclusion of a trustee.” But a number of cases from this Court indicate the opposite. As we said in Huie v. DeShazo, “[t]he term ‘trust’ refers not to a separate legal entity but rather to the fiduciary relationship governing the trustee with respect to the trust property.” 922 S.W.2d 920, 926 (Tex.1996) (<HOLDING>). The general rule in Texas (and elsewhere) has
holding that the trustee of a nominee trust functions more as an agent than as a true trustee holding that treating trust rather than trustee as attorneys client is inconsistent with the law of trusts holding that a trustee properly withheld trust payments owed to a prior trustee who had misappropriated trust funds holding that trust beneficiaries have no authority to maintain an action as third party beneficiaries of contracts between the trustee and agents of the trustee concerning the internal affairs of the trust holding that the united states bears the fiduciary trust duty to make trust property productive and relying at least primarily on the common law of trusts