The Dallas Court of Appeals has held that "due process requires that a party be given the opportunity to present its arguments to a court before the court makes a ruling." (citing TRAP 52.4).
In In re Victor Enterprises, Inc., the trial court (Dallas County Court at Law No. 1) granted a petition for
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
Attorney’s Fees for travel time are recoverable under Chapter 38 of the Texas Civil Practice and Remedies Code, according to the San Antonio Court of Appeals. In Wilkerson v. Atascosa Wildlife Supply, Atascosa sought recovery of attorney’s fees inclusive of $5,500 for travel time. Atascosa offered evidence that the travel time was reasonable
The Houston (Fourteenth) Court of Appeals recently held that a trial court abuses its discretion if it conditions a trial setting on the payment of sanctions. Here, after a plaintiff and his attorney were sanctioned $45,000 and $5,000, respectively, they challenged the sanctions order by mandamus. In its memorandum opinion, the court of appeals began
“Rule 94” “affirmative defense” “unconscionability” “void”
Continue Reading Voidness, Unenforceability, or Unconscionability of Contract is an Affirmative Defense
At least that’s how the Texas Supreme Court’s version of Matthew 7:13 reads. In a per curiam opinion, the Court recently demonstrated its vigilance in policing overly-broad discovery orders. In this product liability case, the plaintiff sought all documents of consumer complaints regarding "the sidestep on any model backhoe." John Deere objected to the request as overly
In the recent case, Rodriguez v. Crutchfield, decided by the Dallas Court of Appeals, we learn the importance of clearly evaluating all the parties we think may have liability and the importance of considering the statute of limitations in that evaluation.
In the case, Richard Rodriguez, a temporary worker driving a forklift
The Texas Supreme Court recently reviewed an eminent domain, State v. Central Expressway Sign Associates, where the trial court excluded the state’s expert report on the fair market value of real property because he failed to account for the revenue generated by the use of the property.
Specifically, the State of Texas condemned a 3,950-square foot parcel of
The Dallas Court of Appeals recently all but held that a non-resident officer and director of a Texas corporation is subejct to personal jurisdiction in Texas. After reviewing the law on personal jurisdiction, the court decided that there was no general jurisdiction over the defendants who were California residents.
Turning to specific jurisdiction, the court
When is an affidavit necessary rather than a verification?
In Wimmer v. Hanna Prime, Inc., Hanna Prime brought suit against Wimmer on a sworn account. Wimmer answered with a verification in which he asserted that he did not contract for the debt in his personal capacity and was not liable. His verification stated that