                                 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

Dyson v. Parker                                                                                          Page 4
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]




Dyson v. Parker                                                                    Page 8
