IN THE
TENTH COURT OF APPEALS
No. 10-14-00232-CV
EMILY C. DYSON,
Appellant
v.
DRUE ANNELLE PARKER, INDIVIDUALLY
AND AS INDEPENDENT EXECUTOR OF THE
ESTATE OF JAMES PATRICK PORTER, DECEASED,
Appellee
From the County Court at Law No. 1
McLennan County, Texas
Trial Court No. 20130502-PR1
MEMORANDUM OPINION
Drue Annelle Parker, individually and as Independent Executor of the Estate of
James Patrick Porter, sued Emily C. Dyson for a declaratory judgment that changes in
beneficiary designations to certain accounts of Porter’s were improper and illegal. The
trial court granted Parker’s traditional and no-evidence motion for summary judgment
and ordered Dyson to pay Parker’s attorney’s fees. Because the trial court erred in
granting summary judgment in favor of Parker, we reverse the trial court’s judgment
and remand this case to the trial court for further proceedings.
BACKGROUND
Porter and Dyson had been in a relationship. About a year prior to Porter’s
death, the two broke up. At that time, Porter changed the beneficiary on three
investment accounts in Vanguard Group, Inc. from Dyson to Parker, Porter’s sister.
Sometime before Porter’s death, Porter and Dyson resumed their relationship. About a
week prior to his death, Dyson contends Porter instructed Dyson to change the
beneficiary on those three accounts back to Dyson and designate Dyson as the
beneficiary of a fourth Vanguard investment account on which Porter had not
previously designated anyone as the beneficiary. 1 Parker believed these designations
were improper, sued Dyson, and was granted summary judgment against Dyson.
SUMMARY JUDGMENT
We review a grant of a motion for summary judgment de novo. KCM Fin. LLC v.
Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015); Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013).
If the order granting the motion for summary judgment, such as the one in this case,
1There is some question as to whether or not the County Court at Law would have jurisdiction over the
accounts with previously designated beneficiaries because those accounts would not be part of the estate
administered by the County Court at Law acting as a probate court. Nevertheless, the trial court would
have had jurisdiction of the one account with no designated beneficiary before Dyson designated herself
the beneficiary. Because we decide that summary judgment was improper as to the account for which
there was no previously designated beneficiary, we need not decide this jurisdictional question as it may
relate to the other three accounts.
Dyson v. Parker Page 2
does not specify the grounds upon which judgment was rendered, we must affirm the
judgment if any of the grounds in the motion for summary judgment is meritorious.
FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000); Lotito v. Knife
River Corporation-South, 391 S.W.3d 226, 227 (Tex. App.—Waco 2012, no pet.).
The movant in a traditional summary judgment motion has the burden to show
that no genuine issues of material fact exist and that it is entitled to judgment as a
matter of law. See TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546,
548 (Tex. 1985). In determining whether there are disputed issues of material fact, we
take as true all evidence favorable to the nonmovant and indulge every reasonable
inference in the nonmovant's favor. Nixon, 690 S.W.2d at 548-49. Once the movant
establishes its right to summary judgment as a matter of law, the burden then shifts to
the nonmovant to present evidence raising a genuine issue of material fact which
precludes the summary judgment. See City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 678 (Tex. 1979); Talford v. Columbia Med. Ctr. at Lancaster Subsidiary, L.P., 198
S.W.3d 462, 464 (Tex. App.—Dallas 2006, no pet.). In a no-evidence motion for
summary judgment, the movant contends that no evidence supports one or more
essential elements of a claim for which the nonmovant would bear the burden of proof
at trial. TEX. R. CIV. P. 166a(i); KCM Fin. LLC, 457 S.W.3d at 79. The trial court must
grant the no-evidence motion unless the nonmovant raises a genuine issue of material
fact on each challenged element. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008)
Dyson v. Parker Page 3
(citing TEX. R. CIV. P. 166a(i)). If a no-evidence motion for summary judgment and a
traditional motion for summary judgment are filed which respectively asserts the
nonmovant has no evidence of an element of its claim and alternatively asserts that the
movant has conclusively negated that same element of the claim, we address the no-
evidence motion for summary judgment first. See Ford Motor Co. v. Ridgway, 135 S.W.3d
598, 600 (Tex. 2004); Lotito, 391 S.W.3d at 227.
In her motion for summary judgment, Parker first argued that Dyson had no
evidence that Dyson had authority to change the beneficiary designations, a burden
Parker alleged was Dyson’s to prove. She also argued that because Dyson’s testimony
regarding Porter’s request to Dyson to change the beneficiaries would be barred by the
Dead Man’s Rule, Parker had shown that no genuine issue of material fact existed and
she was entitled to judgment as a matter of law. Because Dyson does not argue
summary judgment on the same element, we discuss the traditional motion first.
DEAD MAN’S RULE
Texas Rule of Evidence 601, otherwise known as the Dead Man’s Rule, generally
provides that a party may not testify against another party about an oral statement by a
decedent. See TEX. R. EVID. 601(b)(2).2 Whereas its predecessor, the Dead Man’s Statute,
2 The full text of the rule in effect at the time the issue in this case arose is as follows.
(b) “Dead Man’s Rule” in Civil Actions. In civil actions by or against executors,
administrators, or guardians, in which judgment may be rendered for or against them as
such, neither party shall be allowed to testify against the others as to any oral statement
by the testator, intestate or ward, unless that testimony to the oral statement is
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TEX. REV. CIV. STAT. ANN. art. 3716 (Vernon 1926) (repealed as to civil actions, effective
September 1, 1983), extended its exclusion of evidence "to any transaction with or
statement by, the testator," the Dead Man’s Rule does not require such exclusion of
evidence of transactions with the deceased. Tramel v. Estate of Billings, 699 S.W.2d 259,
261 (Tex. App.—San Antonio 1985, no pet.).
In Tramel, a lawyer’s testimony regarding a change to the beneficiaries of two life
insurance policies was held to relate to a transaction with the deceased and not subject
to the Dead Man’s Rule. It is unclear in the opinion what the testimony of the lawyer
encompassed: whether it was only about the change of beneficiaries or whether it
included a statement that the deceased wanted the lawyer to change the beneficiaries.
This distinction makes no difference. The change of beneficiaries and the authorization
of the change are all part of the transaction in changing beneficiaries. In this case,
Dyson made the change in beneficiaries to three accounts and designated a beneficiary
corroborated or unless the witness is called at the trial to testify thereto by the opposite
party; and, the provisions of this article shall extend to and include all actions by or
against the heirs or legal representatives of a decedent based in whole or in part on such
oral statement. Except for the foregoing, a witness is not precluded from giving evidence
of or concerning any transaction with, any conversations with, any admissions of, or
statement by, a deceased or insane party or person merely because the witness is a party
to the action or a person interested in the event thereof. The trial court shall, in a proper
case, where this rule prohibits an interested party or witness from testifying, instruct the
jury that such person is not permitted by the law to give evidence relating to any oral
statement by the deceased or ward unless the oral statement is corroborated or unless the
party or witness is called at the trial by the opposite party.
The rule has been newly amended in 2015. All references to Rule 601(b) or the Dead Man’s Rule refer to
the rule set out herein.
Dyson v. Parker Page 5
in a fourth account at the instruction of Porter. This is all a part of a transaction with
Porter to change beneficiaries and is not subject to the Dead Man’s Rule. See id.
Even if Dyson’s testimony was subject to the Dead Man’s Rule because it was not
testimony of a transaction but rather testimony of an oral statement by Porter, Parker
waived the benefits, if any, of the Rule. When the party entitled to the protection of the
Rule calls the adverse party to the stand and asks about a statement by the decedent,
the Dead Man’s Rule is waived as to that statement. Lewis v. Foster, 621 S.W.2d 400, 403
(Tex. 1981). This is likewise true when the matters are inquired about in a deposition,
written interrogatories, or requests for admissions. Id. Specifically, when a party by
those types of pre-trial procedures initiates an inquiry and requires testimony by the
other party relative to a statement with a decedent which is covered by Rule 601(b), the
statute is waived by the inquiring party, and at trial, the other party may testify fully
regarding such statement. Fleming v. Baylor University Medical Center, 554 S.W.2d 263,
266 (Tex. Civ. App.—Waco 1977, writ ref’d n.r.e.); see Lewis, 621 S.W.2d at 403 n. 3
(waiver language expressly approved by Texas Supreme Court).
Parker attached Dyson’s answers to Parker’s first set of interrogatories as
evidence in support of Parker’s motion for summary judgment. Parker had asked
Dyson in Parker’s interrogatories to “Identify the date on which you changed the any
(sic) beneficiary designations of the Decedent’s in the year preceding his death and the
computer you used to do so.” Dyson answered, “I changed the beneficiary
Dyson v. Parker Page 6
designations on Pat’s Vanguard accounts at his request and instruction on Sunday,
October 13, 2013 and used my laptop at home to do so.” This response includes the
testimony that Parker asserts is barred by the Dead Man’s Rule. However, this is also
an inquiry by Parker, to which Dyson testified, regarding statements by Porter that he
requested and instructed Dyson to change the beneficiaries. There was no objection to
the response and the response was used by Parker as summary judgment evidence. By
Parker’s use of Dyson’s testimony, Parker waived the benefit, if any, of the Dead Man’s
Rule, and Dyson’s response to the interrogatory was evidence of her authorization to
make the changes.
Thus, because Dyson’s interrogatory testimony about the statements was either
not subject to the Dead Man’s Rule or not precluded by the Rule due to waiver, Parker
has not conclusively established that the changes to the beneficiary designations of the
Vanguard accounts were improper or illegal and has not shown she is entitled to
judgment as a matter of law. Accordingly, the trial court erred in granting Parker’s
traditional motion for summary judgment.3
As to Parker’s no-evidence motion for summary judgment, Parker based her
entitlement to summary judgment on her conclusion that the Dead Man’s Rule
precluded Dyson’s testimony that Porter authorized her to make the changes to the
3Because of our holding as to waiver and the transactional exception to the application of the Dead Man’s
Rule, we need not address Dyson’s arguments regarding the corroboration of the statements.
Dyson v. Parker Page 7
accounts. Because we have decided otherwise, the trial court also erred in granting
Parker’s no-evidence motion for summary judgment.
CONCLUSION
Because the trial court erred in granting summary judgment on any ground
asserted, Dyson’s first issue on appeal is sustained. The trial court’s judgment is
reversed, and this case is remanded to the trial court for further proceedings.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Reversed and remanded
Opinion delivered and filed August 27, 2015
[CV06]
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