Byron Henry

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The Dallas Court of Appeals recently held that the statute of limitations is tolled in a legal malpractice case throughout the underlying case including the appeal, remand, and any new trial, and subsequent appellate proceedings.  In this case, the plaintiff filed a suit for legal malpractice and the defendant moved for summary judgment based on limitations.  The trial court granted…

The Collin County, Frisco, and Plano Bar Associations are co-sponsoring a happy hour with special guests Justices Robert Fillmore and Lana Myers of the Dallas Court of Appeals at The event will be held from 5:30-7:00pm on Thursday, April 29, 2010 at Zea Woodfire Grill, 8100 Dallas Parkway, Plano, Texas 75024.  Members of the bench …

The Houston (First) Court of Appeals recently held that section 33.004(e) of the Texas Civil Practice and Remedies Code does revive claims against defendants whose liability is solely vicarious.

Section 33.004(e) allows plaintiffs to join as defendants those designated as responsible third parties notwithstanding the applicable statute of limitations.  Plaintiffs in this case filed suit against Wells Fargo…

The Corpus Christi Court of Appeals recently held that the learned intermediary doctrine does not apply to a drug manufacturer that advertises its products to consumers.  In doing so, the court affirmed the plaintiff’s multi-million dollar judgment against the drug manufacturer.

The court’s opinion is rather lengthy and traces the origins of the learned intermediary doctrine…

The Houston (14th) Court of Appeals recently held that a fee agreement that included a mandatory arbitration agreement does not violate public policy.  In this case, the attorney had included an arbitration clause requiring arbitration in Harris County under the Federal Arbitration Act (FAA)according to American Arbitration Association rules.  When the client brought suit against the…

The Austin Court of Appeals recently held that a plaintiff’s notice of non-suit precludes a defendant from recovering attorney’s fees as prevailing party under a written agreement.  In this case, the plaintiffs bought a house from defendants under a standard-form sales contract promulgated by the Texas Real Estate Commission.   Plaintiffs brought suit against defendants for failing to disclose…

The Twelfth Court of Appeals recently held that lack of consideration is an affirmative defense that must be plead.  In this case involving a will contest, the court reversed an order granting a no-evidence motion for summary judgment on the basis that the agreement at issue lacked consideration.  The court ruled that consideration for a written instrument is presumed.  The Court also held, however, that lack of consideration is an affirmative defense.  Thus, the court concluded, it was improper for a movant to utilize a no-evidence motion regarding a claim on which the movant has the burden of proof.  The court’s opinion in Burges v. Mosley can be found here. 

In my opinion, there is a problem with treating lack of consideration as an affirmative defense.Continue Reading Lack of Consideration Revisited