Emily C. Dyson v. Drue Annelle Parker, Individually and as Independent of the Estate of James Patrick Porter
10-14-00232-CV
| Tex. App. | Aug 27, 2015Background
- Emily Dyson and James Porter were in a relationship; they broke up, and Porter changed beneficiaries on three Vanguard accounts from Dyson to his sister, Drue Annelle Parker.
- Dyson and Porter later resumed the relationship; about a week before Porter’s death, Dyson says Porter asked her to change the three accounts back to her and to name her beneficiary on a fourth Vanguard account with no prior designation.
- Parker (as independent executor and individually) sued Dyson seeking a declaratory judgment that the beneficiary changes were improper and illegal.
- Parker moved for traditional and no‑evidence summary judgment; she argued Dyson had no evidence of authority to make the changes and that Dyson’s testimony about Porter’s oral instruction was barred by the Dead Man’s Rule.
- The trial court granted Parker’s motions and awarded attorney’s fees; Dyson appealed.
- The Tenth Court of Appeals reversed and remanded, holding summary judgment was improper because Dyson’s testimony was either not barred or the rule had been waived.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dyson has evidence she was authorized to change beneficiaries | Parker: Dyson has no admissible evidence of Porter’s instruction; Dead Man’s Rule bars Dyson’s testimony | Dyson: Her interrogatory admissions and the transaction exception render her testimony admissible; even if barred, Parker waived the Rule by eliciting the statement pretrial | Court: Dyson’s interrogatory response was admissible (transactional exception) and Parker waived the Dead Man’s Rule; summary judgment improper |
| Whether the Dead Man’s Rule precludes testimony about a transaction with the decedent | Parker: Rule bars testimony of the decedent’s oral statement to Dyson | Dyson: Transactional evidence (changing beneficiaries) is not barred; alternatively Parker waived protection by asking interrogatories | Court: Transactional exception applies; alternatively waiver by Parker’s use of Dyson’s interrogatory answer defeats the rule |
| Whether waiver occurred when plaintiff used Dyson’s interrogatory answers in her motion | Parker: No waiver; use in motion does not permit testimony at trial | Dyson: Parker’s interrogatories elicited the statement; by using the response Parker waived the Rule | Court: Waiver occurred—Parker’s interrogatory solicited the statement and she used it in summary judgment evidence |
| Whether no‑evidence summary judgment was proper on the same basis | Parker: No evidence supports essential element because testimony barred | Dyson: Evidence exists and is admissible; Rule not applicable | Court: No‑evidence motion fails for same reasons; trial court erred in granting it |
Key Cases Cited
- KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70 (Tex. 2015) (standard of review for summary judgment)
- Nall v. Plunkett, 404 S.W.3d 552 (Tex. 2013) (summary judgment review principles)
- FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000) (affirmance if any motion ground meritorious when order does not specify grounds)
- Lotito v. Knife River Corporation-South, 391 S.W.3d 226 (Tex. App.—Waco 2012) (procedural rules on multiple summary judgment grounds)
- Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) (movant’s burden on traditional summary judgment)
- City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979) (burden shifts after movant establishes right to summary judgment)
- Talford v. Columbia Med. Ctr. at Lancaster Subsidiary, L.P., 198 S.W.3d 462 (Tex. App.—Dallas 2006) (same rule on burden shift)
- Hamilton v. Wilson, 249 S.W.3d 425 (Tex. 2008) (no‑evidence summary judgment standard)
- Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) (address no‑evidence motion before traditional when both filed)
- Tramel v. Estate of Billings, 699 S.W.2d 259 (Tex. App.—San Antonio 1985) (transaction with decedent is not excluded by Dead Man’s Rule)
- Lewis v. Foster, 621 S.W.2d 400 (Tex. 1981) (calling adverse party or using pretrial discovery can waive Dead Man’s Rule)
- Fleming v. Baylor Univ. Med. Ctr., 554 S.W.2d 263 (Tex. Civ. App.—Waco 1977) (waiver of Dead Man’s Rule via pretrial inquiries)