https://www.jhenrylaw.com/ 2026-08-02T00:00:00Z John P. Henry https://www.jhenrylaw.com/mechanism/traditional-summary-judgment/ 2026-08-02T00:00:00Z

A traditional summary judgment under Tex. R. Civ. P. 166a(c) ends a case when the movant proves every element of its claim with competent evidence and no genuine issue of material fact remains. On a written contract with a liquidated sum, that is usually achievable. In Aramcor, Inc. v. Tri Marsh Retail LLC, Cause No. 24-0702-CC5, the court granted it in full the day of the contested hearing — $44,658.57 in damages plus $28,929.12 in fees.

https://www.jhenrylaw.com/mechanism/no-evidence-summary-judgment/ 2026-08-02T00:00:00Z

Yes. A no-evidence motion under Tex. R. Civ. P. 166a(i) can be aimed at any element on which the opposing party bears the burden of proof — which includes their affirmative defenses. It removes the defense case before the merits are reached. In Aramcor v. Tri Marsh Retail LLC the court granted it against all four pleaded defenses: accord and satisfaction, lack of consideration, lack of contractual privity, and the Statute of Frauds.

https://www.jhenrylaw.com/mechanism/forfeited-charter-special-exceptions/ 2026-08-02T00:00:00Z

No. Under Tex. Tax Code § 171.252, forfeiture of a corporate privilege denies the corporation the right to sue or defend in a Texas court, and its directors and officers become personally liable for certain debts. Attach a Certificate of Account Status from the Comptroller to special exceptions and the entity's answer and counterclaim go with it — leaving only the individual guarantors to be excepted to separately.

https://www.jhenrylaw.com/mechanism/arbitration-waiver-substantial-invocation/ 2026-08-02T00:00:00Z

Often not. Under Perry Homes v. Cull, 258 S.W.3d 580 (Tex. 2008), a party waives arbitration by substantially invoking the judicial process to the other side's detriment. In Murphy v. Liberty Hill Construction, LLC, Cause No. 25-0131-C26 (26th Judicial District Court, Williamson County), the plaintiffs refused a day-one offer to arbitrate, litigated eleven months, then moved to compel. The court found waiver and denied the motion.

https://www.jhenrylaw.com/mechanism/late-designated-expert-exclusion-193-6/ 2026-08-02T00:00:00Z

Mandatory. Under Tex. R. Civ. P. 193.6, a party who fails to timely designate an expert may not offer that testimony unless the court finds good cause or a lack of unfair surprise or prejudice — and the burden of that showing is on the party who missed the deadline. In Murphy v. Liberty Hill Construction, the plaintiffs' construction expert, designated after discovery closed and a week before the summary judgment hearing, was struck in its entirety.

https://www.jhenrylaw.com/mechanism/striking-lay-opinion-declaration/ 2026-08-02T00:00:00Z

Not as to defect. Under Tex. R. Evid. 701, a lay witness may testify to what he perceived, but opinions requiring specialized knowledge belong to a qualified expert under Rule 702. In Murphy v. Liberty Hill Construction, the court held that the homeowner “as a homeowner, cannot provide competent summary judgment evidence concerning the alleged deficiencies in LHC's work and did not provide any foundation for the opinions.”

https://www.jhenrylaw.com/mechanism/striking-opposing-counsel-declaration/ 2026-08-02T00:00:00Z

Yes, where it is conclusory or contradicts the client's sworn discovery responses. In Aramcor v. Tri Marsh Retail LLC, the court struck the declaration of the defendant's principal as contradicting the company's own initial disclosures and interrogatory answers, and struck counsel's fee declaration as conclusory for providing “no underlying facts with respect to billing entries or the reasonableness or necessity of attorney fees.”

https://www.jhenrylaw.com/mechanism/unauthenticated-exhibits-unsworn-argument/ 2026-08-02T00:00:00Z

Yes. Documents attached to a response are not evidence until someone with knowledge authenticates them under Tex. R. Evid. 901, and facts asserted only in the body of a brief are argument of counsel, not proof. In Johnson & Farst v. Carnes, 267th Judicial District Court, DeWitt County, the exhibits were struck by separate order, the unanswered grounds were conceded, and judgment was rendered on the whole case in March 2026.

https://www.jhenrylaw.com/mechanism/verified-motion-to-retain/ 2026-08-02T00:00:00Z

File a verified motion to retain before the dismissal hearing. Under Tex. R. Civ. P. 165a the court must reinstate on a finding that the failure was not intentional or the result of conscious indifference. A motion that is sworn, that recites what has been done and what will be done by a date certain, and that carries a certificate that the other side is unopposed, is granted far more often than one that argues.

https://www.jhenrylaw.com/mechanism/leave-to-file-summary-judgment-late/ 2026-08-02T00:00:00Z

Often yes, with leave. Rule 166a(c) requires the motion to be filed and served at least 21 days before the hearing, and local rules commonly impose an outer deadline measured from the trial setting. Blowing that deadline does not end the motion — but the request for leave has to be candid about the reason and give the court a judicial-economy reason to grant it.

https://www.jhenrylaw.com/mechanism/defeating-failure-to-mitigate/ 2026-08-02T00:00:00Z

With the marketing file, not with argument. Texas landlords have a duty to make reasonable efforts to relet, and the tenant bears the burden of proving a failure to mitigate and the resulting reduction in damages. Producing every listing, campaign, showing and replacement lease collapses the defense on documents rather than on credibility.

https://www.jhenrylaw.com/mechanism/forum-selection-clause-defeats-special-appearance/ 2026-08-02T00:00:00Z

Yes, where the parties contracted for it. A special appearance under Tex. R. Civ. P. 120a argues minimum contacts and fair play — but a forum-selection clause is a contractual consent to jurisdiction, and such clauses are presumptively valid in Texas. In a San Antonio collection program against medical practices in a dozen states, nearly every special appearance was answered the same way: with the clause, proved up by a business-records affidavit attaching the signed agreement.

https://www.jhenrylaw.com/mechanism/substituted-service-rule-106/ 2026-08-02T00:00:00Z

Move for substituted service under Tex. R. Civ. P. 106(b). On a sworn affidavit stating the location where the defendant can probably be found and the specific attempts already made, the court may authorize service by leaving the citation with anyone over sixteen at that location, or in any other manner the affidavit shows will be reasonably effective. In a sixty-six-matter out-of-state collection program this was routine and it is where most defaults are won or lost.

https://www.jhenrylaw.com/mechanism/turnover-order-post-judgment-receiver/ 2026-08-02T00:00:00Z

Apply under Tex. Civ. Prac. & Rem. Code § 31.002 on a showing that the judgment is final and unsatisfied and that the debtor owns nonexempt property that cannot readily be attached by ordinary process. In Murphy v. Liberty Hill Construction, Cause No. 25-0131-C26, the court appointed a receiver on May 27, 2026 after finding the debtors were dissipating their estate. They paid the judgment in full with interest rather than surrender to him.

https://www.jhenrylaw.com/mechanism/fraudulent-transfer-tufta/ 2026-08-02T00:00:00Z

It can be unwound. Under the Texas Uniform Fraudulent Transfer Act, a transfer made with actual intent to hinder, delay or defraud a creditor — or made without reasonably equivalent value while insolvent — is voidable. The statutory badges of fraud include transfers to insiders and transfers made shortly after a substantial debt was incurred. Often the authority to investigate the transfer is enough to end the fight.

https://www.jhenrylaw.com/mechanism/settlement-as-agreed-final-judgment/ 2026-08-02T00:00:00Z

A breached settlement agreement buys you a second lawsuit. The same terms entered as an agreed final judgment under Tex. R. Civ. P. 11, with execution ordered to issue, buy you a writ. It is the same paper and a completely different remedy. In a 2012 Williamson County matter the settlement was incorporated into an agreed final judgment for $208,045.41 joint and several plus $12,131.29 in fees at 10% interest, with execution ordered.

https://www.jhenrylaw.com/mechanism/agreed-judgment-held-not-executed/ 2026-08-02T00:00:00Z

Take an agreed judgment and promise not to execute on it while payments are made. The strongest security a defaulting party can give is a judgment already signed. With a cure period, a per-instalment penalty, an indemnity if the creditor executes early and a mandatory release five business days after payoff, both sides are protected — and performance follows, because the alternative is already on file.

https://www.jhenrylaw.com/mechanism/partial-default-preserving-the-case/ 2026-08-02T00:00:00Z

Yes, but the judgment has to say so. An interlocutory default may be taken against a defendant who has not answered while the case proceeds against the rest — and the order must state expressly that it does not dispose of all claims and all parties. Without that recital a court may treat it as final, start the appellate clock, and take the remainder of the case with it.

https://www.jhenrylaw.com/mechanism/abstract-writ-and-the-constable/ 2026-08-02T00:00:00Z

Abstract the judgment and record it in every county where the debtor owns anything — that creates a judgment lien on the debtor's nonexempt real property under Tex. Prop. Code § 52.001 — then have the writ of execution issued and delivered to the constable. In Aramcor v. Tri Marsh Retail LLC the defendant neither appealed nor paid until a constable arrived with a writ to levy on the shopping center.

https://www.jhenrylaw.com/mechanism/domesticating-a-texas-judgment/ 2026-08-02T00:00:00Z

Domesticate it. A Texas judgment is entitled to full faith and credit, and every state but a handful has adopted the Uniform Enforcement of Foreign Judgments Act — file an authenticated copy of the judgment with an affidavit giving the parties’ last known addresses, give the statutory notice, wait out the period, and it is enforceable there as a local judgment. In a Bexar County program against practices in a dozen states, this was step two on nearly every file.

https://www.jhenrylaw.com/mechanism/defeating-summary-judgment/ 2026-08-02T00:00:00Z

Raise a genuine issue of material fact on every ground pleaded, with competent evidence, within the response deadline. Filing a motion and defeating one are different skills — the response has to address each ground separately, because a ground left unanswered stands. In Salt & Pepper Restaurants v. Tight Ends Sports Bar & Grill, 56th Judicial District Court, Galveston County, the plaintiff's motion against the defenses and its separate motion on the counterclaims were both denied the same day.

https://www.jhenrylaw.com/mechanism/verified-denial-defect-of-parties/ 2026-08-02T00:00:00Z

Rule 93 lists the pleas that must be verified by affidavit or they are waived — among them that there is a defect of parties, that the plaintiff is not entitled to recover in the capacity in which he sues, that the defendant is not liable in the capacity in which he is sued, and denial of the execution or of an account. A general denial does not preserve any of them.

https://www.jhenrylaw.com/mechanism/dismissal-for-want-of-prosecution-defense/ 2026-08-02T00:00:00Z

Yes. Rule 165a permits dismissal when a party seeking affirmative relief fails to appear or when the case is not disposed of within the Supreme Court's time standards, and a court also has inherent power to dismiss for want of diligent prosecution. A plaintiff who will not move its own case can be allowed to lose it — the defendant's job is to make sure the docket reflects the inactivity.