                                                                              ACCEPTED
                                                                           12-15-00169CV
                                                             TWELFTH COURT OF APPEALS
                                                                           TYLER, TEXAS
                                                                    8/10/2015 10:47:35 PM
                                                                            CATHY LUSK
                                                                                   CLERK



                     NO. 12-15-00169-CV
                                                        RECEIVED IN
                   IN THE COURT OF APPEALS        12th COURT OF APPEALS
                                                       TYLER, TEXAS
           TWELFTH APPELLATE DISTRICT OF     TEXAS8/10/2015 10:47:35 PM
                         AT TYLER                      CATHY S. LUSK
                                                           Clerk
   EARL ANDERSON, CARRIE BELL SCOTT, SHARON ANDERSON,
     EVANCE ANDERSON, BILL BURTON, WILLIE MAE ANDERSON
               AND JERRY J. ANDERSON (SMITH),
                        Appellants,
                                                                 8/10/2015
                            V.

     ROBERT LOUIS DURHAM AND FRANK L. ZELLERS, III,
                        Appellees
______________________________________________________________
             On appeal from the 173rd District Court
                    Henderson County, Texas
                  Trial Court No. 2012A-0662
______________________________________________________________
                       BRIEF OF APPELLANT
______________________________________________________________


               LANA JOHNSON
               State Bar number 10763650
               P. O. Box 816325
               Dallas, TX 75381-6325
               ATTORNEY FOR APPELLANTS



ORAL ARGUMENT IS NOT REQUESTED
  IDENTITY OF PARTIES AND COUNSEL
  The following is a complete list of all parties to the trial
court's final judgment, as well as the names and addresses of all
trial and appellate counsel.


 PARTIES                                       COUNSEL

Plaintiffs:
EARL ANDERSON, CARRIE BELL SCOTT           LANA JOHNSON
SHARON ANDERSON, EVANCE ANDERSON,          P. O. Box 816325
BILL BURTON, WILLIE MAE ANDERSON,          Dallas, TX 75381-6325
AND JERRY J. ANDERSON (SMITH)

Defendants:
ROBERT LOUIS DURHAM AND                JOHN J. COPE
                                       COPE LAW FIRM
                                       9284 Huntington Square, Ste 100
                                       North Richland Hills, TX 76182

FRANK L. ZELLERS, III                  No Counsel




                                -ii-
                            TABLE OF CONTENTS

                                                    Page

IDENTITY OF PARTIES AND COUNSEL _________________            ii

INDEX OF AUTHORITIES_________________                        iv

STATEMENT OF THE CASE_________________                           v

STATEMENT OF JURISDICTION_________________                   viii

ISSUES PRESENTED_________________                            ix

STATEMENT OF FACTS_________________                          1

SUMMARY OF THE ARGUMENT_________________                     4

ARGUMENT AND AUTHORITIES_________________                    4
  Point of Error Number One

     The Trial Court erred by granting the no evidence and   4
     traditional motions for summary judgment.

  Point of Error Number Two

     The trial court erred by striking the Andersons’
     affidavits and certified evidence.                              9

CONCLUSION_________________                                          10

CERTIFICATE OF SERVICE_________________                              10

APPENDIX_________________                                            11

Trial court's final judgment signed May 19, 2015
Trial court’s order granting motion to strike evidence




                                  -iii-
                        INDEX OF AUTHORITIES

CASES                                                     Page

Brown v. Ultramar Diamond Shamrock Corp., No. 13-02-535
(Tex.App.-Corpus Christi 2004)                                   6

Spivy v. March, 151 S. W. 1037 (Tex. 1912)                       5

Texas Integrated Conveyor Systems v Innovtive Conveyor,
300 S.W.3d 348 (Tex.App.–Dallas 2009)                            6

TEXAS CONSTITUTION, STATUTES, AND RULES

Texas Civil Practices and Remedies Code, Section 37.004          6

Tex. Estates Code 101.001                                        7

T.R.C.P, Rule 166A                                               6

Tex. Rules of Evidence, Rule 804                                 9




                                   -iv-
                         STATEMENT OF THE CASE

This is an action to set aside the Order Granting Defendant Robert

L. Durham’s Amended Motion for No Evidence and Traditional Summary

Judgment and to set aside the Order on Robert L. Durham’s Second

Motion to Strike Plaintiffs’ Summary Judgment Evidence. The Order

Granting Defendant Robert L. Durham’s Amended Motion for No

Evidence and Traditional Summary Judgment dismissed Appellants’

claims rather than granting judgment in favor of Appellee

(hereinafter Durham).   (Supp. CR 1)   Appellants (hereinafter

Andersons) alleged that they own real property located in Henderson

County, Texas and that Durham lacks properly executed documents

required to obtain title to the land in question and cannot not

claim adverse possession by peaceable means under the Texas

Property Code.   (CRII 111) Durham filed an original answer (CR 4)

and after Andersons filed a Notice of Trial Setting (CR 7) Durham

filed a motion for continuance (CR 9), and substitution of counsel

(CR 14).   Durham filed an unverified amended answer (CR 17) and

Robert Louis Durham’s Counterclaims and Request for Disclosures

alleging title from Frank L. Zellers, III and Gayle Zellers with

reference to an unattached Exhibit A without connection to the

recorded chain of title to the property in question and also

alleging adverse possession.   (CR 21) Durham filed Defendant Robert

L. Durham’s Motion for No Evidence Summary Judgment (CR 27) after



                                 -v-
Andersons agreed to the continuance.    Andersons filed Plaintiffs’

Response to Defendant’s No Evidence Motion for Summary Judgment (CR

32) objecting to Durham’s challenge to sufficiency of pleadings by

motion for summary judgment rather than special exceptions.     Durham

filed Robert L. Durham’s Motion to Strike Plaintiffs’ Incompetent

Summary Judgment Evidence (CR 63) and a second motion to strike (CR

74).   Andersons filed Plaintiffs’ First Amended Petition for

Declaratory Judgment (CR 83).   Durham filed a post hearing sur-

reply to Andersons’ response to his motion for summary judgment.

(CR 87) Durham filed Defendant Robert L. Durham’s Amended Motion

for No Evidence and Traditional Summary Judgment (CR 96) and notice

of hearing (CR 109).   Andersons filed Plaintiffs’ Second Amended

Petition for Declaratory Judgment and Answer to Counterclaim (111)

after only page 5 uploaded in the system (CR 94).   Andersons filed

Plaintiffs’ Motion for Continuance (CR 116) and notice of hearing

(119).   Durham filed a response in opposition to continuance (120).

Andersons filed Plaintiffs’ Response to Defendant Robert L.

Durham’s Amended Motion for No Evidence and Traditional Summary

Judgment.   (CR 133) Late Friday May 1, 2015 just prior to the

hearing on Monday May 4, 2015, Durham filed motions to strike

Plaintiffs’ affidavit of family history (CR 212) and Robert L.

Durham’s Second Motion to Strike Plaintiffs’ Summary Judgment

Evidence (CR 232) without notice of hearing.   The trial court

entered Order on Robert L. Durham’s Second Motion to Strike

                                 -vi-
Plaintiffs’ Summary Judgment Evidence (CR 240) and Order Granting

Defendant Robert L. Durham’s Amended Motion for No Evidence and

Traditional Summary Judgment disposing of all parties and all

claims.   (Supp. CR 1) No appearance or answer was ever filed for

Defendant Frank L. Zellers, III.      Andersons timely filed Notice of

Appeal on May 19, 2015.   (CR 243)




                                   -vii-
                     STATEMENT OF JURISDICTION

     This Court has jurisdiction over a final judgment entered by
the 173rd Judicial District Court pursuant to the Texas Rules of
Appellate Procedure.




                                -viii-
                         ISSUES PRESENTED

  Issue Number One
     Did the trial court err by granting summary judgment? Does
limitations apply to fundamental deed errors? Are all named
parties necessary for final disposition of a civil case? Is no
evidence summary evidence the proper procedure for attacking
pleadings for failure to allege a claim rather than by special
exception? Does due process require granting continuance of the
hearing on motion for summary judgment to resolve conflicting
evidence and inferences?

Issue Number Two
     Did the trial court err by granting Durham’s motion to strike
evidence?




                                -ix-
                          STATEMENT OF FACTS

     On June 20, 2012 the Andersons filed an Original Petition for

Declaratory Judgment seeking declaratory judgment quieting title to

real property inherited from their ancestors that Durham had

encroached and may have claimed outside the chain of title

requesting citation and service on two defendants. (CR 1) Durham

filed Defendant’s Original Answer with a general denial. (CR 5) No

answer or appearance was made by Defendant Frank L. Zellers, III.

The Andersons conducted discovery and attempted to resolve the

case.   On August 26, 2014 the Andersons filed a notice of trial

setting for October 20, 2014.   (CR 7) On September 17, 2014 Durham

filed a motion for continuance (CR 9) and on September 19, 2014

Durham filed a motion for substitution of counsel.   (CR 14) On

October 6, 2014 Durham filed an unverified amended answer,

affirmative defenses and request for disclosures (CR 17) and the

unverified Robert Louis Durham’s Counterclaims and Request for

Disclosures (CR 21).   The Andersons agreed to continuance in a

spirit of cooperation and justice.

     On December 30, 2014 with new counsel, Durham filed Defendant

Robert L. Durham’s Motion for No Evidence Summary Judgment (CR 27)

alleging that the case had been languishing without prosecution and

that the Andersons had no standing or could not substantively

prevail.   The Andersons filed a response to the motion with

supporting affidavits showing standing and objecting to use of

                                 -1-
summary judgment to attack pleadings rather than special exception.

(CR 32) On February 6, 2015 Durham filed a motion to strike

alleging that the Anderson’s opposition evidence was incompetent.

(CR 63) On February 9, 2015 the Andersons filed an Affidavit in

Opposition to No Evidence Motion for Summary Judgment setting forth

family history and providing deed references to show title to the

property in question.   (CR 71) On February 11, 2015, Durham filed a

second motion to strike (CR 74), a motion to strike affidavit of

family history (CR 212), and on May 1, 2015 a second motion to

strike the Andersons’ summary judgment evidence(CR 232).

     On April 8, 2015 Durham filed his amended motion for no

evidence and traditional summary judgment.   (CR 96) On April 10,

2015 the Andersons filed their second amended petition and answer

to counterclaim.    (CR 111) On April 17, 2015 the Andersons filed a

motion for continuance requesting postponement of the hearing set

on May 4, 2015 to allow time for responses to their discovery

requests in order to allow proper response to Durham’s motion for

summary judgment.   (CR 116) Durham filed a response opposing

continuance (CR 120) On April 24, 2015 Durham filed a Certificate

of Written Discovery signed on September 24, 2014 purporting

service of said discovery.   (CR 129)

     On April 30, 2015 the Andersons filed their response to

Durham’s amended motion for no evidence and traditional motion for

summary judgment.   The Andersons traced the title to the property


                                  -2-
in question and showed that Durham had no record title because he

claimed that he acquired the property from Frank L. Zellers and the

Henderson County Deed Records shows that the deed to Frank L.

Zellers was illegible and could not be published (CR 175)

and is invalid for transfer to Durham from an individual who was

not a representative of Anderson County Land & Cattle Co. to Frank

L. Zellers, III.   No reference to change of ownership from Anderson

County Land & Cattle Co. to the individual or Foresight Investment

nor to proper agency for transfer to Frank L. Zellers.    The

Andersons owned the brand or cattle in Henderson County, Texas.

The Andersons were denied due process and the trial court erred by

not allowing them time to obtain and present evidence of their

cattle brand and by granting summary judgment when the record

showed Durham’s lack of title.

     The trial court entered Order on Robert L. Durham’s Second

Motion to Strike Plaintiffs’ Summary Judgment Evidence (CR 240) and

Order Granting Defendant Robert L. Durham’s Amended Motion for No

Evidence and Traditional Summary Judgment disposing of all parties

and all claims.    (Supp. CR 1) Andersons timely filed Notice of

Appeal on May 19, 2015.   (CR 243)




                                  -3-
                       SUMMARY OF THE ARGUMENT

Point of Error Number One

     The trial court erred by granting the Durham’s motion for
summary judgment and dismissing the Andersons’ claims against
Durham. Fact questions existed that required resolution by
trial. All inferences must be resolved against the Movant in
a summary judgment proceeding and the trial court erred by
resolving all inferences in favor of the Movant Durham.
Therefore, summary judgment was inappropriate in the instant
case and the judgment must be set aside. Further, the trial
court entered no evidence summary judgment rather than
ordering Durham to file special exceptions. The trial court
abused its discretion by denying the Andersons’ motion for
continuance to develop the evidence concerning Durham’s title.

Point of Error Number Two

     The trial court erred by striking the Andersons’
affidavits and certified evidence.

                       ARGUMENT AND AUTHORITIES


                             POINTS OF ERROR
                      Point of Error Number One

     The Trial Court erred by granting the no evidence and

traditional motions for summary judgment.

     A.     TRADITIONAL MOTION

     It is well settled under Texas Law that when a movant

files a motion for summary judgment based on summary judgment

evidence,    the   court   can   grant   the   motion   only   when   the

movant's evidence proves, as a matter of law, all the elements

of the movant's cause of action or defense, or disproves the

facts of at least one element in the non-movant's cause or


                                 -4-
     defense.

             When evaluating a motion for summary judgment, the court

     must:

             1.   Assume all the non-movant's proof is true;

             2.   Indulge every reasonable inference in favor of the

     non-movant; and

             3.   Resolve all doubts about the existence of a genuine

issue of material fact against the movant.

     Fact questions existed that defeated the summary judgment in

favor of Durham.    Durham’s traditional motion for summary judgment

is based upon limitations and the validity of the deed purportedly

signed by B. A. Anderson and Martha Anderson.     The controversy

revolves around a document recorded in the Deed Records of

Henderson County on March 6, 1935 purportedly executed on May 11,

1932 by B. A. Anderson by “X” mark and from his wife Martha

Anderson to T. B. Wofford and Bush Wofford. (CR 108) Said deed has

been altered and contains several strikes through undecipherable

sentences under the section for approval by a wife.     Without a

properly executed deed, title does not pass under Texas law.     (See

Spivy v. March, 151 S. W. 1037 (Tex. 1912)) The alterations in the

deed prevent a reasonable determination of the certificate

necessary for approval by Martha Anderson, as wife of B. A.

Anderson.     The delay in recording confirms the suspicion that the

deed was not properly executed.


                                   -5-
     The Andersons presented affidavits and certified copies of

public record documents which showed defects in Durham’s chain of

title.    (CR 175 - 193)         The Court made inferences from its findings

in favor of the Movant and not against the Movant as required by

Rule 166A.     The Court made the inference that Durham’s defect in

title was insignificant and the Andersons could not show that the

Anderson County Cattle Company was connected to their family.

Therefore, the trial erred by granting Durham’s motions.                           The

Andersons have been denied due process of law and request their day

in court.

     B.   NO EVIDENCE MOTION FOR SUMMARY JUDGMENT

     Durham’s motion was based upon his allegation that the

Andersons have no evidence under 3 points.

          1.1 The Andersons can submit their claim for declaratory

judgment and trespass to try title is not required.

            Tex. Civ. Prac. & Rem. Code provides in part:

            § 37.004. Subject Matter Of Relief
            (a)
             A person interested under a deed, will, written contract, or other
     writings constituting a contract or whose rights, status, or other legal relations
     are affected by a statute, municipal ordinance, contract, or franchise may have
     determined any question of construction or validity arising under the
     instrument, statute, ordinance, contract, or franchise and obtain a declaration
     of rights, status, or other legal relations thereunder.

Durham relied on Subsection c of 37.0004 to mandate trespass to try

title except boundary disputes.               However, he acknowledged that the

Court can recharacterize the Andersons’ pleadings to trespass to



                                             -6-
try title.       Therefore, the trial court could not base its order on

this contention.          It is without merit.

       2.    Durham’s second point for no evidence summary judgment was

that the Andersons lack standing to bring this lawsuit.

       2.1 Durham challenged the Andersons’ standing and raised the

       defect of parties issue that is required to be verified.

       Therefore, the trial court could not base its order granting

       summary judgment on this issue. The Andersons are the direct

       descendants of B. A. (Barrel or Bass) Anderson and his only

       wife Martha Anderson.             The family history proves standing (CR

       71 - 73).         Affidavit of Facts (CR 195- 197) provides that

       they had twelve children and provides notice to the public of

       their claim to the property in question filed on August 1,

       2006.       The trial court improperly struck this affidavit that

       was a matter of public record.

       2.2 It is well settled under Texas law that title passes to

the Decedents heirs at the time of death.                       The Texas Estates Code

provides:

              § 101.001. Passage Of Estate On Decedent's Death
       (a)
        Subject to Section 101.051, if a person dies leaving a lawful will:
       (1)
        all of the person's estate that is devised by the will vests immediately in the devisees;
       (2)
        all powers of appointment granted in the will vest immediately in the donees of those
powers; and
       (3)
        all of the person's estate that is not devised by the will vests immediately in the
person's heirs at law.

                                                -7-
        (b)
         Subject to Section 101.051, the estate of a person who dies intestate vests immediately
in the person's heirs at law.

       The Andersons showed that both B. A. Anderson and his wife

Martha Anderson are dead and that they are their direct descendants

and heirs.       Therefore, Durham’s citation of law fails to disprove

their claim. Property passes to decedent’s heirs at law at death.

       The Andersons showed that Durham’s deed from Frank Zellers,

III is a cloud on their title because it stems from the Anderson

County Cattle Company and in part from the contested deed from B.

A. Anderson to two of the Woffords.

       3.    Durham asserted that the Andersons had no case or

controversy.

       Durham’s amended answer places the case in dispute otherwise

the Andersons’ claim to the land is established.                          Durham alleged

that his title derived from Frank L. Zellers.                       The Andersons

submitted uncontroverted evidence that the conveyance to Frank L.

Zellers is defective and the Andersons have a claim through the

Anderson County Cattle Company as their cattle brand.                           The trial

court erred by refusing to grant continuance to establish this

evidence.       Therefore, the trial court erred by granting the no

evidence motion for summary judgment.

       The Andersons were required to produce only a scintilla of

probative evidence to defeat Durham’s no evidence motion for

summary judgment.          The foregoing deeds more than meet that


                                               -8-
requirement.   See Brown v. Ultramar Diamond Shamrock Corp., No. 13-

02-535 (Tex.App.-Corpus Christi 2004)and Texas Integrated Conveyor

Systems v Innovtive Conveyor, 300 S.W.3d 348 (Tex.App.–Dallas

2009).   Therefore, the trial court erred by granting the no

evidence motion for summary judgment.

                      Point of Error Number Two

     The trial court erred by striking the Andersons’ affidavits

and certified evidence.

     Durham filed various motions to strike affidavits for lack of

personal knowledge.   It is well settled under Texas law that family

history may be provided on information and belief and therefore is

not hearsay if the issue in the case does not involve parentage.

Further, Rule 166a(c) provides inter alia:

               A summary judgment may be based on
     uncontroverted testimonial evidence of an interested
     witness, or of an expert witness as to subject matter
     concerning which the trier of fact must be guided solely
     by the opinion testimony of experts, if the evidence is
     clear, positive and direct, otherwise credible and free
     from contradictions and inconsistencies, and could have
     been readily controverted.

     Clearly, the Andersons’ affidavits were made by interested

witnesses who can provide testimony about their lineal heritage.

See Tex. Rules of Evidence, Rule 804. No one is able to testify

about his/her birth based upon personal   knowledge.   Family bibles

and other hearsay documents are often relied upon to establish




                                 -9-
birth and lineage.    Resolution of this case does not resolve around

heirship, rather the focus is on title to real property.

     Durham contends that the Andersons’ affidavits are not readily

controverted, however, anyone with personal knowledge about the

family of B. A. Anderson could easily controvert the affidavits if

the statements are untrue.    Census data and other records could

provide family history dating back to 1940 when B. A. Anderson

died.    Durham cannot controvert the family history contained in the

Andersons’ affidavit because the facts provided are indeed true.

                                  CONCLUSION

        For these reasons, the Andersons, Appellants, request that

this court grant review in this case and vacate the trial court's

summary judgment. The Andersons also request any other relief to

which he may be entitled.

                                 Respectfully submitted,


                                      Lana Johnson
                                 __________________________________
                                 LANA JOHNSON
                                 Texas Bar No. 10763650
                                 P. O. Box 816325
                                 Dallas, TX 75381-6325
                                 Tel. (903) 646-0672
                                 Fax. (866) 447-7148
                                 Attorney for Appellants

                         CERTIFICATE OF SERVICE

      I certify that on August 10, 2015 a true and correct copy of
 the foregoing document was served to Appellee’s Attorney of
 Record, by e-mail.
                                          Lana Johnson
                                  LANA JOHNSON

                                   -10-
                             APPENDIX

1.   Trial court’s final judgment signed May 19, 2015

2.   Trial court’s order granting motion to strike evidence

3.   Tex. Civ. Prac. & Rem. Code §37.004

4.   T.R.C.P. Rule 166a

5.   Tex. Estates Code §101.001

6.   Tex. Rules of Evidence, Rule 804




                                  -11-
Texas Statutes

Civil Practice and Remedies Code

Title 2. Trial, Judgment, And Appeal

Subtitle C. Judgments

Chapter 37. Declaratory Judgments

Current through the 2013 Regular and Special Sessions

§ 37.004. Subject Matter Of Relief

(a)

 A person interested under a deed, will, written contract,
or other writings constituting a contract or whose rights,
status, or other legal relations are affected by a statute,
municipal ordinance, contract, or franchise may have
determined any question of construction or validity
arising under the instrument, statute, ordinance, contract,
or franchise and obtain a declaration of rights, status, or
other legal relations thereunder.

(b)

 A contract may be construed either before or after there
has been a breach.

(c)

  Notwithstanding Section 22.001 , Property Code, a
person described by Subsection (a) may obtain a
determination under this chapter when the sole issue
concerning title to real property is the determination of
the proper boundary line between adjoining properties.

Cite as Tex. Civ. Prac. and Rem. Code § 37.004

History. Amended by Acts 2007, 80th Leg., R.S., Ch.
305, Sec. 1, eff. June 15, 2007.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Texas Rules                                                   clear, positive and direct, otherwise credible and free
                                                              from contradictions and inconsistencies, and could have
TEXAS RULES OF CIVIL PROCEDURE                                been readily controverted.

Part II. RULES OF PRACTICE IN DISTRICT AND                    (d) Appendices, References and Other Use of
COUNTY COURTS                                                 Discovery Not Otherwise on File. Discovery products
                                                              not on file with the clerk may be used as summary
§ 8. PRE-TRIAL PROCEDURE.                                     judgment evidence if copies of the material, appendices
                                                              containing the evidence, or a notice containing specific
As amended through June 10, 2014
                                                              references to the discovery or specific references to other
Rule 166a. SUMMARY JUDGMENT                                   instruments, are filed and served on all parties together
                                                              with a statement of intent to use the specified discovery
(a) For Claimant. A party seeking to recover upon a           as summary judgment proofs: (i) at least twenty-one days
claim, counterclaim, or cross-claim or to obtain a            before the hearing if such proofs are to be used to support
declaratory judgment may, at any time after the adverse       the summary judgment; or (ii) at least seven days before
party has appeared or answered, move with or without          the hearing if such proofs are to be used to oppose the
supporting affidavits for a summary judgment in his           summary judgment.
favor upon all or any part thereof. A summary judgment,
interlocutory in character, may be rendered on the issue      (e) Case Not Fully Adjudicated on Motion. If summary
of liability alone although there is a genuine issue as to    judgment is not rendered upon the whole case or for all
amount of damages.                                            the relief asked and a trial is necessary, the judge may at
                                                              the hearing examine the pleadings and the evidence on
(b) For Defending Party. A party against whom a claim,        file, interrogate counsel, ascertain what material fact
counterclaim, or cross-claim is asserted or a declaratory     issues exist and make an order specifying the facts that
judgment is sought may, at any time, move with or             are established as a matter of law, and directing such
without supporting affidavits for a summary judgment in       further proceedings in the action as are just.
his favor as to all or any part thereof.
                                                              (f) Form of Affidavits; Further Testimony. Supporting
(c) Motion and Proceedings Thereon. The motion for            and opposing affidavits shall be made on personal
summary judgment shall state the specific grounds             knowledge, shall set forth such facts as would be
therefor. Except on leave of court, with notice to            admissible in evidence, and shall show affirmatively that
opposing counsel, the motion and any supporting               the affiant is competent to testify to the matters stated
affidavits shall be filed and served at least twenty-one      therein. Sworn or certified copies of all papers or parts
days before the time specified for hearing. Except on         thereof referred to in an affidavit shall be attached thereto
leave of court, the adverse party, not later than seven       or served therewith. The court may permit affidavits to
days prior to the day of hearing may file and serve           be supplemented or opposed by depositions or by further
opposing affidavits or other written response. No oral        affidavits. Defects in the form of affidavits or
testimony shall be received at the hearing. The judgment      attachments will not be grounds for reversal unless
sought shall be rendered forthwith if (i) the deposition      specifically pointed out by objection by an opposing
transcripts, interrogatory answers, and other discovery       party with opportunity, but refusal, to amend.
responses referenced or set forth in the motion or
response, and (ii) the pleadings, admissions, affidavits,     (g) When Affidavits Are Unavailable. Should it appear
stipulations of the parties, and authenticated or certified   from the affidavits of a party opposing the motion that he
public records, if any, on file at the time of the hearing,   cannot for reasons stated present by affidavit facts
or filed thereafter and before judgment with permission       essential to justify his opposition, the court may refuse
of the court, show that, except as to the amount of           the application for judgment or may order a continuance
damages, there is no genuine issue as to any material fact    to permit affidavits to be obtained or depositions to be
and the moving party is entitled to judgment as a matter      taken or discovery to be had or may make such other
of law on the issues expressly set out in the motion or in    order as is just.
an answer or any other response. Issues not expressly
                                                              (h) Affidavits Made in Bad Faith. Should it appear to
presented to the trial court by written motion, answer or
                                                              the satisfaction of the court at any time that any of the
other response shall not be considered on appeal as
                                                              affidavits presented pursuant to this rule are presented in
grounds for reversal. A summary judgment may be based
                                                              bad faith or solely for the purpose of delay, the court
on uncontroverted testimonial evidence of an interested
                                                              shall forthwith order the party employing them to pay to
witness, or of an expert witness as to subject matter
                                                              the other party the amount of the reasonable expenses
concerning which the trier of fact must be guided solely
                                                              which the filing of the affidavits caused him to incur,
by the opinion testimony of experts, if the evidence is
                                                              including reasonable attorney's fees, and any offending
party or attorney may be adjudged guilty of contempt.

(i) No-Evidence Motion. After adequate time for
discovery, a party without presenting summary judgment
evidence may move for summary judgment on the
ground that there is no evidence of one or more essential
elements of a claim or defense on which an adverse party
would have the burden of proof at trial. The motion must
state the elements as to which there is no evidence. The
court must grant the motion unless the respondent
produces summary judgment evidence raising a genuine
issue of material fact.
Texas Statutes

Estates Code

Title 2. Estates Of Decedents; Durable Powers Of
Attorney

Subtitle C. Passage Of Title And Distribution Of
Decedents' Property In General

Chapter 101. Estate Assets In General

Subchapter A. Passage And Possession Of Decedent's
Estate On Death

Current through the 2013 Regular and Special Sessions

§ 101.001. Passage Of Estate On Decedent's Death

(a)

 Subject to Section 101.051, if a person dies leaving a
lawful will:

(1)

 all of the person's estate that is devised by the will vests
immediately in the devisees;

(2)

 all powers of appointment granted in the will vest
immediately in the donees of those powers; and

(3)

 all of the person's estate that is not devised by the will
vests immediately in the person's heirs at law.

(b)

 Subject to Section 101.051, the estate of a person who
dies intestate vests immediately in the person's heirs at
law.

Cite as Tex. Estates § 101.001

History. Added by Acts 2009, 81st Leg., R.S., Ch. 680,
Sec. 1, eff. January 1, 2014.
Rule 804. Hearsay Exceptions; Declarant Unavailable.

Texas Rules

TEXAS RULES OF EVIDENCE

Article 8. HEARSAY

As amended through June 10, 2014

Rule 804. Hearsay Exceptions; Declarant Unavailable



(a) Definition of Unavailability. "Unavailability as a witness" includes situations in which the
declarant:

(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the
subject matter of the declarant's statement;

(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite
an order of the court to do so;

(3) testifies to a lack of memory of the subject matter of the declarant's statement;

(4) is unable to be present or to testify at the hearing because of death or then existing physical or
mental illness or infirmity; or

(5) is absent from the hearing and the proponent of the declarant's statement has been unable to
procure the declarant's attendance or testimony by process or other reasonable means.

A declarant is not unavailable as a witness if the declarant's exemption, refusal, claim of lack of
memory, inability, or absence is due to the procurement or wrong-doing of the proponent of the
declarant's statement for the purpose of preventing the witness from attending or testifying.

(b) Hearsay Exceptions. The following are not excluded if the declarant is unavailable as a
witness:

(1) Former Testimony. In civil cases, testimony given as a witness at another hearing of the same
or a different proceeding, or in a deposition taken in the course of another proceeding, if the party
against whom the testimony is now offered, or a person with a similar interest, had an opportunity
and similar motive to develop the testimony by direct, cross, or redirect examination. In criminal
cases, testimony given as a witness at another hearing of the same or a different proceeding, if
the party against whom the testimony is now offered had an opportunity and similar motive to
develop the testimony by direct, cross, or redirect examination. In criminal cases the use of
depositions is controlled by Chapter 39 of the Code of Criminal Procedure.

(2) Dying Declarations. A statement made by a declarant while believing that the declarant's death
was imminent, concerning the cause or circumstances of what the declarant believed to be
impending death.

(3) Statement of Personal or Family History.

(A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy,
relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family
history even though declarant had no means of acquiring personal knowledge of the matter stated;
or

(B) A statement concerning the foregoing matters, and death also, of another person, if the
declarant was related to the other by blood, adoption, or marriage or was so intimately associated
with the other's family as to be likely to have accurate information concerning the matter declared.

History. Added Feb. 25, 1998, eff. March 1, 1998.
