Personal Jurisdiction challenges is one area of the law that I’ve found interesting since I took Dean Frank Newton’s conflicts of law class in law school.  Recently there have been a number of personal jurisdiction opinions that have come out.   I’ve summarized what I see as the highlights of some of those cases below:

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