Insight & Commentary on Texas Appellate Law
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:
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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
