# John P. Henry — John Henry & Associates, PLLC Full text of every page on https://www.jhenrylaw.com. Reviewed 2026-08-02. Texas trial lawyer, Round Rock. Texas Bar No. 24055655. Each entry below is a procedural mechanism: the governing rule, when it applies, how it is proved up, what defeats it, and the matter it came from. ====================================================================== ## Ending the case ### 01. Traditional summary judgment URL: https://www.jhenrylaw.com/mechanism/traditional-summary-judgment/ Authority: Tex. R. Civ. P. 166a(c) Q: When can a Texas plaintiff win a breach-of-contract case on traditional summary judgment? A: 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. Quoted authority: “The judgment sought shall be rendered forthwith if the pleadings and evidence on file show that, except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Source: Tex. R. Civ. P. 166a(c) When it applies: A signed instrument, a definite sum, and a defendant whose defense is argument rather than evidence. Leases, notes, guaranties, sworn accounts and CAM reconciliations are the natural habitat. The motion is available to a plaintiff on its own claim and to a defendant on an affirmative defense conclusively established. How it is proved up: 1. A business-records affidavit that actually satisfies Tex. R. Evid. 902(10) — custodian, personal knowledge, made at or near the time, kept in the regular course. Most affidavits that fail, fail here. 2. The instrument itself, attached and authenticated, with every amendment and assignment in the chain. 3. A damages calculation a judge can follow line by line without doing arithmetic. If the number cannot be tied to a document, it is not liquidated and the motion is the wrong vehicle. 4. Segregated attorney's fees supported by a declaration that does the Rohrmoos work — hours, rate, task — rather than asserting a total. 5. Objections to the response's evidence filed and set at the same hearing, so the record is clean before the merits are argued. What defeats it: - A scintilla of evidence on any element. The standard is not preponderance; it is whether a fact issue exists at all. - A conclusory or defective business-records affidavit, which takes the entire damages proof with it. - An affirmative defense the movant did not negate. A plaintiff's traditional motion does not dispose of pleaded defenses unless it addresses them, which is why the no-evidence motion travels with it. - Fees left unsegregated between recoverable and unrecoverable claims. Used in: Aramcor, Inc. v. Tri Marsh Retail LLC · Cause No. 24-0702-CC5, County Court at Law No. 5, Williamson County. Granted in full — liquidated damages, fees and post-judgment interest — the day of the contested hearing. Q: What is the standard for traditional summary judgment in Texas? A: The movant must show there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Evidence is viewed in the light most favorable to the non-movant, and every reasonable inference is indulged in the non-movant's favor. Q: How is traditional summary judgment different from no-evidence summary judgment? A: A traditional motion under 166a(c) carries an affirmative burden — the movant proves its own case with evidence. A no-evidence motion under 166a(i) carries no evidentiary burden — it identifies an element the other side cannot support and shifts the burden to them. They are routinely filed together. Q: Can attorney's fees be awarded on summary judgment in Texas? A: Yes, where a statute or contract provides for them and the proof satisfies Rohrmoos Venture v. UTSW DVA Healthcare. In Aramcor v. Tri Marsh the court awarded $28,929.12 in fees in the same order as the damages. Order on file: Order Granting Plaintiff's Motion for Traditional Summary Judgment — Aramcor, Inc. v. Tri Marsh Retail LLC, County Court at Law No. 5, Williamson County, Texas, Cause No. 24-0702-CC5, signed March 7, 2025. Full text of the order: CAUSE NO. 24-0702-CC5 ARAMCOR, INC., Plaintiff v. TRI MARSH RETAIL LLC, Defendant IN THE COUNTY COURT AT LAW NO. 5 WILLIAMSON COUNTY, TEXAS ORDER GRANTING PLAINTIFF'S MOTION FOR TRADITIONAL SUMMARY JUDGMENT On this day, the Court heard Aramcor, Inc.'s motion for traditional summary judgment on its breach of contract claim against Tri Marsh Retail LLC. After considering the motion and Tri Marsh's response, the Court GRANTS Aramcor's motion for summary judgment. Aramcor is awarded judgment for liquidated damages in the amount of $44,658.57, attorney's fees in the amount of $28,929.12 and post-judgment interest. This disposes of all claims and all parties and is a final appealable judgment. SIGNED on March 7, 2025. _______________________________ PRESIDING JUDGE ---------------------------------------------------------------------- ### 02. No-evidence summary judgment URL: https://www.jhenrylaw.com/mechanism/no-evidence-summary-judgment/ Authority: Tex. R. Civ. P. 166a(i) Q: Can a no-evidence summary judgment be used offensively against affirmative defenses in Texas? A: 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. Quoted authority: “After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial.” Source: Tex. R. Civ. P. 166a(i) When it applies: After an adequate time for discovery, against any claim or defense the other side must prove. Most useful where a defendant has pleaded a stack of boilerplate affirmative defenses it never intended to support with evidence — which is most defendants. How it is proved up: 1. Specify the elements. A motion that says 'there is no evidence of Defendant's defenses' is a general no-evidence motion and is void. Each defense gets its own heading and each element is named. 2. Establish that adequate time for discovery has passed — the level of the discovery control plan, the discovery deadline, and what was actually served and answered. 3. File no evidence with it. Attaching evidence to a no-evidence motion invites the argument that the movant assumed a burden it does not have. Keep the traditional motion and its evidence in a separate instrument. 4. Pair it with objections to whatever the response attaches, so the evidence that would raise the scintilla is struck before the court weighs it. What defeats it: - More than a scintilla on the challenged element. The bar is low, so the motion works best against defenses that were pleaded reflexively and never developed. - A motion that fails to identify elements with specificity. - A successful continuance under 166a(g) on the ground that discovery is incomplete. Used in: Aramcor v. Tri Marsh — granted against all four affirmative defenses. Murphy v. Liberty Hill Construction, LLC and McGrath — combined with traditional grounds across all eight causes of action. Q: Can a plaintiff file a no-evidence motion for summary judgment in Texas? A: Yes. The rule turns on who carries the burden of proof, not on who filed the suit. A plaintiff may move on the elements of a defendant's affirmative defenses or counterclaims. Q: What is 'adequate time for discovery' under Rule 166a(i)? A: There is no fixed period. Courts look to the nature of the case, the discovery control plan, the discovery already conducted, the deadlines, and whether the responding party diligently pursued discovery. Reciting the actual discovery history in the motion is what makes the showing. Q: Does a no-evidence motion have to identify specific elements? A: Yes. Rule 166a(i) requires the motion to state the elements as to which there is no evidence. A general no-evidence challenge is insufficient and is subject to being treated as void. Order on file: Order Granting Plaintiff's Motion for No-Evidence Summary Judgment — Aramcor, Inc. v. Tri Marsh Retail LLC, County Court at Law No. 5, Williamson County, Texas, Cause No. 24-0702-CC5, signed March 7, 2025. Full text of the order: CAUSE NO. 24-0702-CC5 ARAMCOR, INC., Plaintiff v. TRI MARSH RETAIL LLC, Defendant IN THE COUNTY COURT AT LAW NO. 5 WILLIAMSON COUNTY, TEXAS ORDER GRANTING PLAINTIFF'S MOTION FOR NO-EVIDENCE SUMMARY JUDGMENT On this day, the Court heard Aramcor, Inc.'s motion for no-evidence summary judgment on Tri Marsh Retail LLC's affirmative defenses of accord and satisfaction, lack of consideration, lack of contractual privity, and the Statute of Frauds. After considering the motion and Tri Marsh's response, the Court GRANTS Aramcor's motion and finds that there is no evidence to support Tri Marsh Retail LLC's affirmative defenses of accord and satisfaction, lack of consideration, lack of contractual privity, and Statute of Frauds. SIGNED on March 7, 2025. _______________________________ PRESIDING JUDGE ---------------------------------------------------------------------- ### 03. Special exceptions on a forfeited charter URL: https://www.jhenrylaw.com/mechanism/forfeited-charter-special-exceptions/ Authority: Tex. Tax Code § 171.252 Q: Can a Texas corporation whose charter is forfeited for franchise tax still sue or defend a lawsuit? A: 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. Quoted authority: “If the corporate privileges of a corporation are forfeited under this subchapter … the corporation shall be denied the right to sue or defend in a court of this state.” Source: Tex. Tax Code § 171.252 When it applies: Any Texas entity opponent — most often a defunct operating company still nominally defending a collection suit. The first thing to do in any commercial case is pull the opposing entity's franchise tax status. It is free, it takes two minutes, and it is checked far less often than it should be. How it is proved up: 1. The Comptroller's Certificate of Account Status, and the Secretary of State's filing history showing the forfeiture date, attached to the exceptions. 2. Match the forfeiture date against the date the answer was filed. Whether the pleading was filed before or after the forfeiture changes the relief. 3. Except separately to the individual guarantors — want of privity as to the entity's contracts, want of individual damages — so the case narrows on both fronts at the same hearing. 4. Pair with a motion in limine on any oral representation the guarantors will want to describe at trial. What defeats it: - Revival. The entity can pay the tax, obtain a certificate of revivor and cure the forfeiture, so the mechanism buys leverage and time rather than an automatic dismissal. - The relief is not identical to a default; the court may abate to allow revival rather than strike. - It reaches the entity only. Individual defendants are unaffected and need their own exceptions. Used in: Retail tenant and two personal guarantors, County Court at Law No. 4, Williamson County. Paired with a motion in limine excluding any representation about what other tenants in the center would do after the lease was signed. Q: How do I check whether a Texas company's charter is forfeited? A: Request a Certificate of Account Status from the Texas Comptroller and check the Secretary of State's filing history. Both are public and both are quick. Franchise-tax forfeiture and SOS involuntary termination are different events with different consequences, so check for both. Q: What happens to a lawsuit filed by a corporation that later forfeits its charter? A: Its right to prosecute the suit is denied while the forfeiture stands. Courts commonly abate to permit revival rather than dismiss outright, which is why the mechanism is best used early, when the delay itself has settlement value. Q: Are officers personally liable when a Texas corporation forfeits its charter? A: Tex. Tax Code § 171.255 imposes personal liability on directors and officers for debts of the corporation created or incurred after the date the report or tax was due and before the privileges are revived, subject to the statute's exceptions. ---------------------------------------------------------------------- ### 04. Arbitration waiver by substantial invocation URL: https://www.jhenrylaw.com/mechanism/arbitration-waiver-substantial-invocation/ Authority: Perry Homes v. Cull, 258 S.W.3d 580 (Tex. 2008) Q: Can the other side still compel arbitration after litigating the case in Texas for months? A: 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. Quoted authority: “The Court finds that Plaintiffs substantially invoked the judicial process to LHC's detriment and prejudice and have waived their right to arbitration. The Plaintiffs' motion to compel arbitration is DENIED.” Source: Order Granting Final Summary Judgment, Cause No. 25-0131-C26, March 4, 2026 When it applies: Whenever an opponent with an arbitration clause chooses the courthouse first and reaches for the clause later — nearly always when discovery has gone badly or a dispositive motion is set. Waiver is decided on the totality of the circumstances, and the circumstances are their own docket. How it is proved up: 1. Offer arbitration in writing at the outset, with an agreed order to abate already drafted and attached. The refusal is the first and best exhibit, and it only exists if it was created on day one. 2. Build the record continuously: every motion they filed, every deposition they noticed, every discovery request they served, every setting they obtained, with dates. 3. Quantify the detriment — fees and expenses incurred, discovery they obtained that arbitration would not have given them, and the delay itself. 4. Preserve the objection in every responsive filing so the waiver argument is not itself waived. What defeats it: - A short delay with little merits activity. Waiver requires substantial invocation, and courts start from a strong presumption against it. - No showing of prejudice. Expense and delay alone are frequently held insufficient without more. - A clause delegating arbitrability to the arbitrator, which can move the waiver question out of court — though litigation-conduct waiver is generally decided by the court. Used in: Murphy — arbitration was offered on day one with an agreed order to abate already drafted. They refused, litigated eleven months, then moved to compel. Denied. Q: What is 'substantial invocation of the judicial process' in Texas? A: Conduct inconsistent with an intent to arbitrate — filing and pursuing merits motions, conducting full discovery, obtaining trial settings, seeking relief the arbitrator could have given. Perry Homes directs a totality-of-the-circumstances review rather than a checklist. Q: Does delay alone waive the right to arbitrate? A: No. Texas courts require both substantial invocation and resulting prejudice to the opposing party. Delay is one factor among several, and it is rarely sufficient standing alone. Q: How do you preserve a waiver argument against a late motion to compel arbitration? A: Document the offer and the refusal in writing at the outset, object in every responsive filing, and keep a running record of the opponent's litigation conduct and of the fees and discovery burden it caused. The waiver is proved from their docket, not from argument. Order on file: Order Granting Final Summary Judgment — Gregg Murphy and Dayla Murphy v. Liberty Hill Construction, LLC and Thomas McGrath, 26th Judicial District Court, Williamson County, Texas, Cause No. 25-0131-C26, signed March 4, 2026. Full text of the order: CAUSE NO. 25-0131-C26 GREGG MURPHY and DAYLA MURPHY, Plaintiffs v. LIBERTY HILL CONSTRUCTION, LLC and THOMAS MCGRATH, Defendants IN THE DISTRICT COURT OF WILLIAMSON COUNTY, TEXAS 26th JUDICIAL DISTRICT ORDER GRANTING FINAL SUMMARY JUDGMENT On January 21, 2026, the Court heard Plaintiffs' motion to compel arbitration. The Court considered the Plaintiffs' motion and the attached declaration of Gregg Murphy in support. The Court also considered Liberty Hill Construction's ("LHC") response and the attached declaration of Thomas McGrath in support. The Court finds that Plaintiffs substantially invoked the judicial process to LHC's detriment and prejudice and have waived their right to arbitration. The Plaintiffs' motion to compel arbitration is DENIED. The Court also heard LHC's Objections to Plaintiffs' Summary Judgment Evidence. The Court SUSTAINS the objections and STRIKES all documents attached to the Gregg Murphy and Johnny Ramirez Declarations as unauthenticated hearsay. The Court also SUSTAINS the Defendants' objections to the Gregg Murphy Declaration. Gregg Murphy, 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. The Court also SUSTAINS Defendants' objection to the admission of the Johnny Ramirez Declaration in its entirety where it was untimely under the mandatory exclusion requirement of […] [Page 1 ends. Transcript continues on the following page of the order.] ---------------------------------------------------------------------- ## Controlling the evidence ### 05. Mandatory exclusion of a late-designated expert URL: https://www.jhenrylaw.com/mechanism/late-designated-expert-exclusion-193-6/ Authority: Tex. R. Civ. P. 193.6 Q: Is exclusion of a late-designated expert mandatory or discretionary in Texas state court? A: 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. Quoted authority: “A party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed … unless the court finds that there was good cause, or the failure … will not unfairly surprise or unfairly prejudice the other parties.” Source: Tex. R. Civ. P. 193.6 When it applies: Any untimely designation, supplementation or disclosure — expert or fact witness. It is at its most powerful where the excluded testimony is the only proof of an element, because exclusion then converts directly into a no-evidence summary judgment. How it is proved up: 1. Fix the deadline on the record: the discovery control plan level, the scheduling order, and the computation under Rule 195.2 from the trial setting. 2. Establish the designation date from the certificate of service, not from when it arrived. 3. Put the burden where the rule puts it. Do not argue prejudice first — say that the rule excludes, and that the burden of the exception is theirs. 4. Move to strike in a separate instrument and obtain a separate order, so exclusion survives independent of the summary judgment ruling. 5. Then file the no-evidence motion on the element the excluded expert was the only support for. What defeats it: - A good-cause showing, or a genuine absence of surprise — for example where the expert had already been deposed or identified in another form. - A continuance, which can cure the prejudice and is the response a well-advised opponent asks for. - Waiver by the movant: taking the expert's deposition without objection undercuts the surprise argument. Used in: Murphy — the plaintiffs' construction expert, designated a week before the summary judgment hearing and after discovery had closed, struck in its entirety. Q: Who has the burden to show good cause under Rule 193.6? A: The party who failed to timely designate. The rule is written as an exclusion with narrow exceptions, and the burden of establishing an exception rests on the party seeking to escape it. Q: Can a late-designated expert be cured by a continuance? A: Sometimes. A continuance can eliminate unfair surprise and prejudice, and courts have discretion to grant one. That is why the motion to strike should be set and heard on a schedule that makes a continuance costly to the other side. Q: What happens if the excluded expert was the only evidence on an element? A: The exclusion becomes dispositive. The usual sequence is to obtain the order striking the testimony and then move for no-evidence summary judgment under Rule 166a(i) on the element the testimony was offered to prove. Order on file: Order Granting Final Summary Judgment — Gregg Murphy and Dayla Murphy v. Liberty Hill Construction, LLC and Thomas McGrath, 26th Judicial District Court, Williamson County, Texas, Cause No. 25-0131-C26, signed March 4, 2026. Full text of the order: CAUSE NO. 25-0131-C26 GREGG MURPHY and DAYLA MURPHY, Plaintiffs v. LIBERTY HILL CONSTRUCTION, LLC and THOMAS MCGRATH, Defendants IN THE DISTRICT COURT OF WILLIAMSON COUNTY, TEXAS 26th JUDICIAL DISTRICT ORDER GRANTING FINAL SUMMARY JUDGMENT On January 21, 2026, the Court heard Plaintiffs' motion to compel arbitration. The Court considered the Plaintiffs' motion and the attached declaration of Gregg Murphy in support. The Court also considered Liberty Hill Construction's ("LHC") response and the attached declaration of Thomas McGrath in support. The Court finds that Plaintiffs substantially invoked the judicial process to LHC's detriment and prejudice and have waived their right to arbitration. The Plaintiffs' motion to compel arbitration is DENIED. The Court also heard LHC's Objections to Plaintiffs' Summary Judgment Evidence. The Court SUSTAINS the objections and STRIKES all documents attached to the Gregg Murphy and Johnny Ramirez Declarations as unauthenticated hearsay. The Court also SUSTAINS the Defendants' objections to the Gregg Murphy Declaration. Gregg Murphy, 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. The Court also SUSTAINS Defendants' objection to the admission of the Johnny Ramirez Declaration in its entirety where it was untimely under the mandatory exclusion requirement of […] [Page 1 ends. Transcript continues on the following page of the order.] ---------------------------------------------------------------------- ### 06. Striking a lay declaration for want of foundation URL: https://www.jhenrylaw.com/mechanism/striking-lay-opinion-declaration/ Authority: Tex. R. Evid. 701 & 702 Q: Can a homeowner testify that construction work was defective without an expert? A: 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.” Quoted authority: “The Court also SUSTAINS the Defendants' objections to the Gregg Murphy Declaration. Gregg Murphy, 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.” Source: Order Granting Final Summary Judgment, Cause No. 25-0131-C26, March 4, 2026 When it applies: Construction defect, professional negligence, valuation, causation, medical condition — any subject where the conclusion depends on training rather than observation. Most commonly it appears as a party declaration attached to a summary judgment response, doing work the party never designated an expert to do. How it is proved up: 1. Object sentence by sentence, not to the declaration as a whole. Global objections invite a global overruling. 2. Separate what he saw from what he concluded. Cracks, water, a gap — observations, admissible. 'Improperly framed,' 'not to code,' 'will cost $X to repair' — opinion, excluded. 3. Show the absence of foundation affirmatively: no trade experience, no inspection methodology, no designation as an expert. 4. Get a written order sustaining the objections, then show that what survives cannot raise a fact issue. What defeats it: - Genuinely lay observations, which come in and may be enough on a simpler element. - A witness with actual trade experience — an owner who is also a builder is a different problem. - Failure to obtain a ruling. An objection without an order preserves nothing. Used in: Murphy — the homeowner's declaration struck; a lay witness cannot opine on construction defects without foundation. Q: What is the difference between Rule 701 and Rule 702 opinion testimony? A: Rule 701 permits a lay witness to give opinions rationally based on his own perception and helpful to the factfinder, so long as they are not based on scientific, technical or other specialized knowledge. Once specialized knowledge is required, Rule 702 and its qualification and reliability requirements apply. Q: Do objections to summary judgment evidence have to be ruled on? A: Objections to the form of summary judgment evidence must be preserved by obtaining a ruling. The safer practice is always to secure a written order, which is also what makes the exclusion reviewable. Q: Can a property owner testify to the value of his own property in Texas? A: The property owner rule permits an owner to testify to the value of his property, but the testimony must still be based on market value rather than intrinsic or personal value, and it does not extend to technical opinions about defects or causation. Order on file: Order Granting Final Summary Judgment — Gregg Murphy and Dayla Murphy v. Liberty Hill Construction, LLC and Thomas McGrath, 26th Judicial District Court, Williamson County, Texas, Cause No. 25-0131-C26, signed March 4, 2026. Full text of the order: CAUSE NO. 25-0131-C26 GREGG MURPHY and DAYLA MURPHY, Plaintiffs v. LIBERTY HILL CONSTRUCTION, LLC and THOMAS MCGRATH, Defendants IN THE DISTRICT COURT OF WILLIAMSON COUNTY, TEXAS 26th JUDICIAL DISTRICT ORDER GRANTING FINAL SUMMARY JUDGMENT On January 21, 2026, the Court heard Plaintiffs' motion to compel arbitration. The Court considered the Plaintiffs' motion and the attached declaration of Gregg Murphy in support. The Court also considered Liberty Hill Construction's ("LHC") response and the attached declaration of Thomas McGrath in support. The Court finds that Plaintiffs substantially invoked the judicial process to LHC's detriment and prejudice and have waived their right to arbitration. The Plaintiffs' motion to compel arbitration is DENIED. The Court also heard LHC's Objections to Plaintiffs' Summary Judgment Evidence. The Court SUSTAINS the objections and STRIKES all documents attached to the Gregg Murphy and Johnny Ramirez Declarations as unauthenticated hearsay. The Court also SUSTAINS the Defendants' objections to the Gregg Murphy Declaration. Gregg Murphy, 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. The Court also SUSTAINS Defendants' objection to the admission of the Johnny Ramirez Declaration in its entirety where it was untimely under the mandatory exclusion requirement of […] [Page 1 ends. Transcript continues on the following page of the order.] ---------------------------------------------------------------------- ### 07. Striking opposing counsel's own declaration URL: https://www.jhenrylaw.com/mechanism/striking-opposing-counsel-declaration/ Authority: Tex. R. Civ. P. 166a(f); Tex. R. Evid. 602 Q: Can a declaration signed by opposing counsel be struck as summary judgment evidence in Texas? A: 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.” Quoted authority: “The Court finds that the declaration of Bo Avery contradicts the discovery responses previously provided by Tri Marsh … Further, the Avery declaration is conclusory and does not provide any underlying facts with respect to any alleged breach by Aramcor. For both reasons, the statements … are struck and inadmissible.” Source: Order Granting Plaintiff's Objection to Defendant's Summary Judgment Evidence, Cause No. 24-0702-CC5, March 7, 2025 When it applies: Any response propped up by a declaration that asserts rather than shows. Two recurring varieties: the party declaration that contradicts what the party swore to in discovery, and the fee declaration that states a total without the underlying entries. How it is proved up: 1. Put the discovery response and the declaration side by side in the objection, quoted, so the contradiction is visible without argument. 2. Attach the verified interrogatory answers and initial disclosures as exhibits to the objection. 3. Name the defect precisely — conclusory, no underlying facts, no personal knowledge, sham affidavit — rather than objecting generally. 4. Set the objections for the same hearing as the motion and obtain a separate written order. What defeats it: - A declaration that supplies underlying facts. Conclusory is a defect of content, and a competent declarant can usually cure it if given the chance. - Timely amendment or supplementation of the discovery responses before the hearing. - Objections not ruled on, which waive the complaint as to form. Used in: Aramcor v. Tri Marsh — struck on the record at the hearing, which removed the response's only evidentiary support before the merits were argued. Q: What makes a declaration 'conclusory' under Texas law? A: A statement that offers a conclusion without the underlying facts that support it, so that it cannot be effectively controverted. Conclusory statements are not competent summary judgment evidence, and the defect is one of substance that may be raised for the first time on appeal. Q: Can a declaration contradict the party's own discovery responses? A: It can be struck when it does. A declaration that conflicts with the party's verified discovery answers, without explanation, is subject to exclusion — and the contradiction itself is usually the more persuasive argument at the hearing. Q: What is required to prove attorney's fees in Texas? A: Rohrmoos Venture v. UTSW DVA Healthcare requires evidence of the particular services performed, who performed them, when, the reasonable hours, and the reasonable hourly rate — the lodestar. A declaration reciting only a total is conclusory. Order on file: Order Granting Plaintiff's Objection to Defendant's Summary Judgment Evidence — Aramcor, Inc. v. Tri Marsh Retail LLC, County Court at Law No. 5, Williamson County, Texas, Cause No. 24-0702-CC5, signed March 7, 2025. Full text of the order: CAUSE NO. 24-0702-CC5 ARAMCOR, INC., Plaintiff v. TRI MARSH RETAIL LLC, Defendant IN THE COUNTY COURT AT LAW NO. 5 WILLIAMSON COUNTY, TEXAS ORDER GRANTING PLAINTIFF'S OBJECTION TO DEFENDANT'S SUMMARY JUDGMENT EVIDENCE On this day, the Court heard Aramcor, Inc.'s objection to the summary judgment evidence submitted by Tri Marsh Retail LLC with its summary judgment response. The Court finds that the declaration of Bo Avery contradicts the discovery responses previously provided by Tri Marsh, including in its initial disclosures and interrogatory responses. Further, the Avery declaration is conclusory and does not provide any underlying facts with respect to any alleged breach by Aramcor. For both reasons, the statements in the Avery declaration concerning any breach by Aramcor are struck and inadmissible. The Court also finds that the declaration of Kevin Wiley is conclusory and does not provide any underlying facts with respect to billing entries or the reasonableness or necessity of attorney fees. The statements in the Wiley declaration concerning the reasonableness or necessity of attorney fees are struck and inadmissible. SIGNED on March 7, 2025. _______________________________ PRESIDING JUDGE ---------------------------------------------------------------------- ### 08. Unauthenticated exhibits and unsworn argument URL: https://www.jhenrylaw.com/mechanism/unauthenticated-exhibits-unsworn-argument/ Authority: Tex. R. Evid. 901; Tex. R. Civ. P. 166a(f) Q: Do exhibits attached to a summary judgment response have to be authenticated in Texas? A: 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. Quoted authority: “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Source: Tex. R. Evid. 901; Tex. R. Civ. P. 166a(f) When it applies: Nearly every under-resourced response. The pattern is a stack of emails, invoices and screenshots attached to a brief with no affidavit, plus a narrative in the argument section that no witness ever swore to — and grounds in the motion that the response simply does not address. How it is proved up: 1. Object to each exhibit by number and state the defect: no sponsoring affidavit, no custodian, hearsay without an exception, no personal knowledge. 2. Separately identify the factual assertions that appear only in the brief and point out that no declaration supports them. 3. Enumerate the grounds the response never reached. Unaddressed grounds stand unrebutted, and saying so in a reply is what puts it before the court. 4. Obtain a separate order on the objections, so the evidentiary ruling and the judgment stand on their own feet. What defeats it: - A curative affidavit filed before the hearing, which is usually available if the opponent is paying attention. - Self-authenticating documents under Rule 902 — certified public records, business records with a 902(10) affidavit. - Defects of form not objected to in writing before the hearing, which are waived. Used in: Johnson & Farst v. Carnes · 267th Judicial District Court, DeWitt County. Exhibits struck by separate order, unanswered grounds conceded, affirmative defenses dead for want of proof. Judgment on the whole case, $19,394.12 in fees. Q: Are statements in a summary judgment brief evidence in Texas? A: No. Argument of counsel is not evidence. Factual assertions must be supported by affidavits, declarations, deposition excerpts, discovery responses or authenticated documents in the summary judgment record. Q: What happens to summary judgment grounds the response does not address? A: They stand unchallenged. A non-movant who fails to respond to a ground cannot later complain of it on any basis other than the legal sufficiency of the movant's own proof, so identifying the unanswered grounds expressly in a reply is worth doing every time. Q: How are business records authenticated on summary judgment in Texas? A: By an affidavit satisfying Tex. R. Evid. 902(10) — a custodian or other qualified witness swearing that the records were made at or near the time by someone with knowledge and kept in the regular course of a regularly conducted business activity. ---------------------------------------------------------------------- ## Keeping the case alive ### 09. Verified motion to retain URL: https://www.jhenrylaw.com/mechanism/verified-motion-to-retain/ Authority: Tex. R. Civ. P. 165a Q: My case is on the dismissal docket in Texas — how do I get it retained? A: 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. Quoted authority: “The court shall reinstate the case upon finding after a hearing that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained.” Source: Tex. R. Civ. P. 165a When it applies: A file that drifted — a departed associate, a matter abated for settlement talks, a defendant who could not be served. The notice of intent to dismiss starts a short clock and the response has to be on file before the setting, not after. How it is proved up: 1. Verify it. An unsworn motion asserting diligence proves nothing, and the verification is what distinguishes it from the ones the court denies. 2. Recite the history factually — what was filed, served, answered and set, with dates. 3. Commit to specific next steps by date certain: designation of attorney in charge, discovery to be served, a motion to be filed, a trial setting to be requested. 4. Confer and state that the motion is unopposed. Opposing counsel usually has no reason to object, and an unopposed motion is granted on the papers. 5. File the designation of attorney in charge with it where the drift came from a personnel change. What defeats it: - A record of genuine conscious indifference — repeated notices ignored, no activity over a long period. - Missing the hearing. Post-dismissal reinstatement is available but the standard and the posture are worse. - A promise of future action the movant then does not keep, which forecloses a second motion. Used in: Two Williamson County files drifted onto the dismissal docket after an associate left the firm. Re-retained the day the first notice arrived; verified motion and designation of attorney in charge filed together, unopposed. Both retained. One later settled and paid; the other took a structured settlement. Q: How long do I have to file a motion to reinstate in Texas? A: A motion to reinstate must be filed with the clerk within 30 days after the order of dismissal is signed or within the period provided by Rule 306a. The better course is to file a verified motion to retain before the dismissal hearing and never reach the question. Q: What is the standard for reinstatement under Rule 165a? A: The court must reinstate on finding that the failure to appear or to prosecute was not intentional or the result of conscious indifference, but was due to accident or mistake, or has otherwise been reasonably explained. Q: Does a motion to retain have to be verified? A: Rule 165a(3) requires the motion to reinstate to be verified. A verified motion to retain filed in advance of the dismissal setting follows the same logic and is materially more persuasive than an unsworn one. ---------------------------------------------------------------------- ### 10. Motion for leave to file summary judgment out of time URL: https://www.jhenrylaw.com/mechanism/leave-to-file-summary-judgment-late/ Authority: Tex. R. Civ. P. 166a(a), (c); local rules Q: Can I still file a summary judgment motion after the local-rule deadline has passed in Texas? A: 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. Quoted authority: “Except on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least twenty-one days before the time specified for hearing.” Source: Tex. R. Civ. P. 166a(a), (c); local rules When it applies: Deadlines missed for a reason the court will find sympathetic — settlement negotiations that consumed the window, late-produced discovery, a substitution of counsel. Least available where the movant simply did not get to it. How it is proved up: 1. State the actual reason without dressing it up. Courts grant leave to lawyers who are straightforward and deny it to lawyers who are not. 2. Give the judicial-economy argument: a motion that could dispose of the case is worth hearing even late, because the alternative is a trial setting consumed by an issue of law. 3. Show the absence of prejudice — the respondent still gets the full 21 days, and the trial date does not move. 4. Attach the motion to the request so the court can see it is substantial rather than a delay tactic. 5. Get the hearing set. Leave granted without a setting accomplishes nothing. What defeats it: - A trial setting too close for the 21-day notice period without a continuance. - A pattern of missed deadlines in the same case. - A local rule the court treats as jurisdictional in practice, which some do. Used in: Retail tenant matter, County Court at Law No. 4. The 210-day window closed during settlement talks. Leave requested on the record, hearing obtained, case settled and paid by cashier's check before the motion was reached. Q: How many days before the hearing must a Texas summary judgment motion be filed? A: At least 21 days before the date specified for hearing, under Rule 166a(c), except on leave of court with notice to opposing counsel. The 21 days is notice to the respondent and is calculated from service. Q: Can a court consider a late-filed summary judgment response? A: Yes, with leave. A response filed later than seven days before the hearing requires leave of court, and a court's consideration of it may be inferred from the record in some circumstances. Q: Does filing a motion for leave stop the trial setting? A: No. Leave to file does not continue the trial, which is why the request should address how the motion can be heard without moving the setting. ---------------------------------------------------------------------- ### 11. Defeating a failure-to-mitigate defense URL: https://www.jhenrylaw.com/mechanism/defeating-failure-to-mitigate/ Authority: Tex. Prop. Code § 91.006; Austin Hill Country Realty v. Palisades Plaza, 948 S.W.2d 293 (Tex. 1997) Q: How do you beat a failure-to-mitigate defense in a Texas commercial lease case? A: 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. Quoted authority: “A landlord has a duty to mitigate damages if a tenant abandons the leased premises in violation of the lease. — Tex. Prop. Code § 91.006(a)” Source: Tex. Prop. Code § 91.006; Austin Hill Country Realty v. Palisades Plaza, 948 S.W.2d 293 (Tex. 1997) When it applies: Every abandoned commercial lease. It is the defense of first resort because it costs the tenant nothing to plead, and it survives only where the landlord cannot document what it actually did. How it is proved up: 1. Assemble the full marketing file from the date of abandonment forward: listing agreements, MLS and CoStar entries, brokerage engagement, signage, email campaigns with send dates and recipient counts. 2. Produce the showing log and the inquiries that came to nothing. Efforts that failed still prove reasonableness. 3. Put in the replacement leases — executed, with commencement dates and rates — and credit the rent actually received against the claim so the number the court sees is already net. 4. Where a sublease was proposed, produce the landlord's consent. Consent granted is the end of the argument that the landlord obstructed. 5. Keep the burden where it belongs: the tenant must prove both the failure and the amount by which damages should be reduced. What defeats it: - A genuine gap in the record — months with no listing, no broker, no activity. - Refusal of a qualified replacement tenant without a defensible reason. - Re-leasing at a below-market rate without explanation, which invites an argument about the credit rather than the effort. Used in: Non-profit tenant, Williamson County. Answered with commercial listings, six email marketing campaigns, an executed landlord's consent to sublease, and two executed replacement leases for the same suites. Q: Who has the burden of proving failure to mitigate in Texas? A: The tenant. Under Austin Hill Country Realty v. Palisades Plaza and Tex. Prop. Code § 91.006, the tenant must prove that the landlord failed to make reasonable efforts to mitigate and the amount by which damages should be reduced. Q: Can a commercial lease waive the duty to mitigate in Texas? A: Section 91.006(b) provides that a provision of a lease purporting to waive a right or exempt a landlord from a liability or duty under the section is void. Q: What counts as reasonable efforts to relet commercial premises? A: There is no fixed list. Courts look at what the landlord actually did — listing, engaging a broker, advertising, showing the space, considering qualified prospects — measured against what a reasonably prudent landlord would do under similar circumstances. ---------------------------------------------------------------------- ### 12. Holding your forum against a special appearance URL: https://www.jhenrylaw.com/mechanism/forum-selection-clause-defeats-special-appearance/ Authority: Tex. R. Civ. P. 120a; In re Laibe Corp., 307 S.W.3d 314 (Tex. 2010); In re Lisa Laser USA, Inc., 310 S.W.3d 880 (Tex. 2010) Q: Can a Texas court exercise personal jurisdiction over an out-of-state defendant based on a forum-selection clause? A: 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. Quoted authority: “Forum selection clauses are presumptively valid. Allowing a lawsuit to proceed in a forum other than that for which the parties contracted promotes forum shopping with its attendant judicial inefficiency, waste of judicial resources, delays of adjudication of the merits, and skewing of settlement dynamics.” Source: In re Laibe Corp., 307 S.W.3d 314, 316 (Tex. 2010) (per curiam); In re Lisa Laser USA, Inc., 310 S.W.3d 880, 883 (Tex. 2010) (per curiam) When it applies: Any Texas suit against a non-resident on a contract that fixes venue and forum in Texas — franchise agreements, service agreements, supply contracts, physician and provider agreements. It is the whole ballgame in a volume program, because a defendant who can force the case back to its home state has effectively won: the cost of suing in eleven states individually exceeds most of the claims. How it is proved up: 1. Read the special appearance for what it does not say. The recurring pattern is a well-drafted minimum-contacts brief that never mentions the clause its own client signed. Say so in the first paragraph of the response. 2. Quote the clause exactly, and attach the executed agreement to a business-records affidavit from the client’s custodian — not to the brief. 3. Confirm the clause is mandatory rather than permissive. “Shall be in the courts of Bexar County” is mandatory; “the parties consent to jurisdiction in” is not always. 4. Cite Laibe and Lisa Laser for the presumption and for the forum-shopping rationale — the Texas Supreme Court has granted mandamus to enforce these clauses, which is worth the court knowing. 5. Set the hearing. Rule 120a requires the special appearance to be heard and determined before any other plea or motion, so nothing else in the case moves until it is disposed of. Leaving it unset stalls the file, and in this program one matter sat that way for months. What defeats it: - No clause, or a clause that does not appear in the version this defendant actually signed. Check the specific executed agreement, not the form. - A permissive clause, which consents to jurisdiction without excluding other forums. - A defendant who never signed — a guarantor, an assignee or a successor entity is a different analysis. - Genuine unfairness or a statutory bar. Enforcement is presumptive, not automatic. - Sometimes it simply does not hold: one matter in this program was closed because jurisdiction properly lay in Kentucky. Being told that early is cheaper than being told it at the hearing. Used in: United Biologics, LLC d/b/a United Allergy Services — a San Antonio company’s nationwide collection program, sixty-six matters brought in the Bexar County courts against medical practices in Arizona, Florida, North Carolina, Georgia, Kentucky, New Mexico, Tennessee, Louisiana, Maryland and Texas. In United Biologics v. Roswell Medical Clinic, Inc., Cause No. 2016CV03161, County Court at Law No. 3, Bexar County, the defendant’s special appearance was answered with the clause and the executed agreement. Same answer in Twin Med Urgent Care, Cause No. 2016CV03165, and William Wallace Anderson, M.D., Cause No. 2016CV05064. Q: What is a special appearance in Texas? A: A special appearance under Tex. R. Civ. P. 120a is the vehicle for a non-resident defendant to challenge personal jurisdiction without submitting to it. It must be sworn, must be filed before any other plea, pleading or motion, and must be heard and determined before those other matters. Q: Are forum-selection clauses enforceable in Texas? A: Yes. Texas courts treat them as presumptively valid and enforce them absent a clear showing that the clause is invalid, that enforcement would be unreasonable or unjust, or that the forum is seriously inconvenient. The Texas Supreme Court has issued mandamus to enforce them. Q: Does a forum-selection clause waive a special appearance? A: A contractual consent to jurisdiction in a named forum answers the minimum-contacts objection the special appearance raises. The clause is not a waiver of the procedural right to file the special appearance; it is the substantive answer to it. ---------------------------------------------------------------------- ### 13. Substituted service on a defendant who cannot be found URL: https://www.jhenrylaw.com/mechanism/substituted-service-rule-106/ Authority: Tex. R. Civ. P. 106(b), 109a Q: How do you serve a defendant in Texas who is evading service or cannot be located? A: 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. Quoted authority: “Upon motion supported by a sworn statement listing any location where the defendant can probably be found and stating specifically the facts showing that service has been attempted … the court may authorize service in any other manner, including electronically by social media, email, or other technology, that the statement or other evidence shows will be reasonably effective to give the defendant notice of the suit.” Source: Tex. R. Civ. P. 106(b) When it applies: Any defendant who will not answer the door, a registered agent who has resigned, an entity whose registered office is a closed clinic, an individual who has moved out of state. It is the unglamorous predicate to every default judgment, and a defective affidavit here is the single most common reason a default is later set aside. How it is proved up: 1. The process server’s affidavit must state the address and the specific attempts — dates, times, what was observed. “Diligent efforts were made” is not a fact and will not support the order. 2. Establish that the stated location is one where the defendant can probably be found, which is the finding the rule actually requires. 3. Ask for the specific alternate manner you want, and attach a proposed order that grants exactly that. 4. Serve strictly in the manner the order authorizes. Substituted service is strictly construed and there is no presumption of valid service on a default judgment. 5. Get the signed order into the file and the return on file for at least ten days before taking the default, per Tex. R. Civ. P. 107(h). What defeats it: - A conclusory affidavit, which voids the order and everything built on it. - Service in a manner the order did not authorize. - A restricted-appearance or Craddock motion for new trial where the defendant shows he never got notice. - Nothing here cures a defendant with no assets — service gets you a judgment, not a recovery. Used in: Repeatedly in the United Biologics program, against out-of-state medical practices and their principals — motions and signed orders for substituted service and for service through the Secretary of State, then defaults, then post-judgment discovery and writs of execution. In United Biologics v. Santan Health Services, LLC, Cause No. 2016CV02672, Bexar County, an Arizona defendant was served on its amended petition and took a default judgment of $69,761.43 plus $20,101.70 in pre-judgment interest at 18% post-judgment. Q: What does Rule 106(b) require in the affidavit? A: A sworn statement listing any location where the defendant can probably be found and stating specifically the facts showing that service has been attempted at that location but was unsuccessful. Conclusory statements of diligence are insufficient. Q: Can you serve someone by email or social media in Texas? A: Rule 106(b) permits service in any other manner, including electronically by social media, email or other technology, that the evidence shows will be reasonably effective to give the defendant notice. Q: Why do default judgments get set aside for bad service? A: There are no presumptions in favor of valid issuance, service and return of citation when a default judgment is directly attacked. Strict compliance with the rules and with the substituted-service order must appear on the face of the record. Order on file: Default Judgment — United Biologics, LLC d/b/a United Allergy Services v. Santan Health Services, LLC, County Court at Law, Bexar County, Texas, Cause No. 2016CV02672, signed Signed 2016 — signature and file stamp on the copy in the file. Full text of the order: CAUSE NO. 2016CV02672 UNITED BIOLOGICS, LLC d/b/a UNITED ALLERGY SERVICES, Plaintiff v. SANTAN HEALTH SERVICES, LLC, Defendant IN THE COUNTY COURT AT LAW BEXAR COUNTY, TEXAS DEFAULT JUDGMENT On ______, 201__, Plaintiff, UNITED BIOLOGICS, LLC d/b/a UNITED ALLERGY SERVICES moved for default judgment after Defendant SANTAN HEALTH SERVICES, LLC failed to file an answer in this case. At the hearing, Plaintiff appeared through its attorney. Defendant, SANTAN HEALTH SERVICES, LLC did not appear. The court determined that it had jurisdiction over the subject matter and the parties in this proceeding. After considering the pleadings, the papers on file in this case, and the evidence Plaintiff presented on liability and damages, the court GRANTS Plaintiff’s motion for default judgment. The court hereby RENDERS judgment for Plaintiff. Therefore, the Court ORDERS that Plaintiff recover damages from Defendant SANTAN HEALTH SERVICES, LLC in the sum of $69,761.43, pre-judgment interest in the sum of $20,101.70 and post-judgment interest on the total sum at the annual rate of 18%, attorney fees of $1,500.00, and court costs. The court finds the following: 1. Defendant was served with citation and a copy of Plaintiff’s First Amended Petition on September 15, 2016. 2. The citation and proof of service were on file with this court for at least ten days before the judgment was rendered. 3. The deadline for Defendant to file an answer was October 10, 2016. Defendant was required to file an answer the following Monday after 20 days from the date of service of citation and Plaintiff’s amended petition; however, Defendant did not file an answer or any other pleading constituting an answer. 4. Defendant’s last known address is 2181 East Pecos Road, Suite 1, Chandler, Arizona 85225. 5. The damages claimed in Plaintiff’s First Amended Petition were proven by the affidavits and other evidence presented by Plaintiff. 6. This judgment disposes of all claims and all parties and is appealable. SIGNED ON ______________________ _______________________________ PRESIDING JUDGE ---------------------------------------------------------------------- ## Getting paid ### 14. Turnover order and post-judgment receiver URL: https://www.jhenrylaw.com/mechanism/turnover-order-post-judgment-receiver/ Authority: Tex. Civ. Prac. & Rem. Code § 31.002 Q: How do I get a turnover order and a post-judgment receiver on a Texas judgment? A: 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. Quoted authority: “The Court FINDS … The Judgment Debtors are presently engaged in the dissipation of their estate, including by offering substantial personal property for sale on Facebook Marketplace under Gregg Murphy's name, by executing intra-family warranty deeds the day after the Judgment was signed, and by failing to respond in any manner to LHC's properly served post-judgment discovery.” Source: Order Granting Turnover Relief and Appointment of Post-Judgment Receiver, Cause No. 25-0131-C26, May 27, 2026 When it applies: Any final, non-dormant, unsuperseded judgment that remains unsatisfied — and it is at its most effective where the debtor has begun moving assets, because the dissipation is itself the strongest part of the application. How it is proved up: 1. Establish the predicate facts in a declaration: judgment signed and final, no supersedeas bond, motion for new trial overruled by operation of law, judgment wholly unsatisfied. 2. Serve post-judgment discovery first. A debtor who does not answer it has handed you the second finding the statute needs. 3. Document the dissipation with the actual artifacts — deed records showing the intra-family transfers, screenshots of the listings with dates and the account name. 4. Identify the property with specificity: real property by legal description, vehicles by VIN, accounts by institution, business interests by entity. 5. Ask for the injunction alongside the receivership, and for express authority to investigate and pursue fraudulent transfers. What defeats it: - Exempt property. The turnover statute does not reach the homestead, exempt personal property or current wages, and an order that purports to reach it is error. - A supersedeas bond, which stops enforcement entirely. - Dormancy under Tex. Civ. Prac. & Rem. Code § 34.001 if no writ issued within the statutory period. - Property that ordinary process can reach — the statute is for what a writ of execution cannot get at. Used in: Murphy — the day after judgment they executed intra-family warranty deeds on two properties and began selling equipment online. Receiver appointed over real property, vehicles, financial accounts, a business, and the listings themselves. They paid the judgment voluntarily and in full, with post-judgment interest, rather than surrender to him. Q: What does a Texas turnover order do? A: It orders the judgment debtor to turn over nonexempt property, including present or future rights to property, that cannot readily be attached or levied on by ordinary legal process. The court may also appoint a receiver and enjoin the debtor from transferring or disposing of the property. Q: Can a turnover order reach exempt property in Texas? A: No. Section 31.002 reaches only nonexempt property. An order that requires turnover of exempt property — the homestead, exempt personal property, current wages — exceeds the statute. Q: Do I have to serve post-judgment discovery before applying for a receiver? A: It is not a statutory prerequisite, but it is the practical one. A debtor's failure to answer properly served post-judgment discovery is direct evidence that the judgment cannot be satisfied through ordinary process, which is the finding the application needs. Order on file: Order Granting Judgment Creditor Liberty Hill Construction, LLC's Application for Turnover Order and Appointment of Post-Judgment Receiver — Gregg Murphy and Dayla Murphy v. Liberty Hill Construction, LLC and Thomas McGrath, 26th Judicial District Court, Williamson County, Texas, Cause No. 25-0131-C26, signed May 27, 2026. Full text of the order: CAUSE NO. 25-0131-C26 GREGG MURPHY and DAYLA MURPHY, Plaintiffs v. LIBERTY HILL CONSTRUCTION, LLC and THOMAS MCGRATH, Defendants IN THE DISTRICT COURT OF WILLIAMSON COUNTY, TEXAS 26th JUDICIAL DISTRICT ORDER GRANTING JUDGMENT CREDITOR LIBERTY HILL CONSTRUCTION, LLC'S APPLICATION FOR TURNOVER ORDER AND APPOINTMENT OF POST-JUDGMENT RECEIVER On this day came on for consideration the Application for Turnover Order and Appointment of Post-Judgment Receiver (the "Application") filed by Judgment Creditor Liberty Hill Construction, LLC ("LHC") against Judgment Debtors Gregg Murphy and Dayla Murphy (the "Judgment Debtors") under Texas Civil Practice and Remedies Code § 31.002. The Court considered the Application, the Declaration of Thomas McGrath, the exhibits attached thereto, the response (if any) of the Judgment Debtors, the arguments of counsel, and the pleadings and papers on file in this cause. FINDINGS The Court FINDS as follows: 1. On March 4, 2026, the Court signed a Final Summary Judgment in favor of LHC and against the Judgment Debtors (the "Judgment"). The Judgment is final, is not dormant, and is not superseded. The Judgment Debtors have not posted a supersedeas bond or made any deposit in lieu of bond. The Judgment Debtors' motion for new trial was overruled by operation of law on May 18, 2026. The Judgment remains wholly unsatisfied. 2. LHC is a judgment creditor; this Court is a court of appropriate jurisdiction; the relief sought is to obtain satisfaction of the Judgment; and the Judgment Debtors own nonexempt real and personal property, including the property identified in the Application and the Declaration of Thomas McGrath. 3. The Judgment Debtors are presently engaged in the dissipation of their estate, including by offering substantial personal property for sale on Facebook Marketplace under Gregg Murphy's name, by executing intra-family warranty deeds the day after the Judgment was signed, and by failing to respond in any manner to LHC's properly served post-judgment discovery. [Page 1 ends. Transcript continues on the following pages of the order.] ---------------------------------------------------------------------- ### 15. Fraudulent transfer URL: https://www.jhenrylaw.com/mechanism/fraudulent-transfer-tufta/ Authority: Tex. Bus. & Com. Code ch. 24 (Texas Uniform Fraudulent Transfer Act) Q: The judgment debtor deeded his house to a family member the day after judgment — what can be done? A: 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. Quoted authority: “A transfer made or obligation incurred by a debtor is voidable as to a creditor … if the debtor made the transfer or incurred the obligation … with actual intent to hinder, delay, or defraud any creditor of the debtor. — Tex. Bus. & Com. Code § 24.005(a)(1)” Source: Tex. Bus. & Com. Code ch. 24 (Texas Uniform Fraudulent Transfer Act) When it applies: Post-judgment asset moves, insider transfers for no consideration, and transfers of receivables or accounts mid-stream. The badges of fraud in § 24.005(b) are a checklist, and a post-judgment intra-family deed satisfies several of them on its face. How it is proved up: 1. Pull the deed records and the entity filings and build the chain: who transferred what, to whom, on what date, for what stated consideration. 2. Line the transfer date up against the judgment date. A day-after transfer needs no argument. 3. Work the badges expressly — insider, retained possession or control, concealment, transfer of substantially all assets, insolvency, timing relative to the debt. 4. Build the remedy into the receivership order: express TUFTA authority to investigate and to pursue avoidance, so a separate suit is not the only path. 5. Where the transfer is in progress rather than complete, a temporary restraining order stops it while the record is built. What defeats it: - A good-faith transferee who gave reasonably equivalent value — a complete defense under § 24.009. - The statute of repose in § 24.010, which extinguishes claims not brought within the statutory periods. - A transfer that predates the creditor relationship and has no other badge attached. Used in: Murphy — the receivership carried express TUFTA authority over the post-judgment deeds. Separately, a 2012 Williamson County TRO froze a transfer of receivables mid-stream, which is what made the settlement below possible. Q: What are the 'badges of fraud' under Texas law? A: Section 24.005(b) lists eleven factors, including whether the transfer was to an insider, whether the debtor retained possession or control, whether it was concealed, whether the debtor had been sued or threatened with suit, whether it was of substantially all the debtor's assets, and whether the debtor was insolvent or became insolvent shortly after. Q: How long do I have to bring a fraudulent transfer claim in Texas? A: Section 24.010 sets the periods — generally four years after the transfer, or in the case of actual intent, within one year after the transfer was or reasonably could have been discovered, subject to the statute's terms. Q: Can a receiver pursue fraudulent transfer claims? A: A post-judgment receiver appointed under § 31.002 can be given express authority in the order to investigate and pursue transfers of the debtor's property, which is materially faster than filing a separate avoidance action. ---------------------------------------------------------------------- ### 16. Settlement written into a final judgment URL: https://www.jhenrylaw.com/mechanism/settlement-as-agreed-final-judgment/ Authority: Tex. R. Civ. P. 11 & 621 Q: What is the difference between a settlement agreement and an agreed final judgment in Texas? A: 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. Quoted authority: “When a judgment is rendered, execution may issue thereon at any time after the expiration of thirty days from the time the final judgment is signed. — Tex. R. Civ. P. 627, and see Rule 621” Source: Tex. R. Civ. P. 11 & 621 When it applies: Any settlement where collection risk is real — a defendant with thin assets, a payment schedule over time, multiple obligors, or a counterparty who has already broken one promise. How it is proved up: 1. Draft the judgment, not just the agreement. The settlement terms go in the decretal paragraphs so the court renders them. 2. Make liability joint and several across every obligor you can reach, and state the interest rate. 3. Order execution to issue expressly, so the clerk has nothing to interpret. 4. Dispose of every claim and every party in the same instrument, or say expressly that it does not — an ambiguous judgment is a finality problem later. 5. Where a party is being released, do the non-suit and the release in the same sequence as the judgment so nothing is left hanging. What defeats it: - A defendant who will not agree to a judgment, which is common and is a negotiating point rather than a defect. - Bankruptcy, which stays enforcement regardless of the form. - A judgment that fails to dispose of all parties without saying so, creating an interlocutory order that cannot be executed on. Used in: Electronics manufacturer, two affiliated entities and a financing company, 368th Judicial District Court, Williamson County. A TRO froze the asset transfer; the financing company was non-suited in exchange for a mutual release; the settlement was then incorporated into an agreed final judgment — $208,045.41 joint and several plus $12,131.29 in fees, 10% interest, execution ordered to issue. Q: Is a Rule 11 agreement enforceable in Texas? A: A Rule 11 agreement is enforceable if it is in writing, signed and filed with the papers as part of the record, or made in open court and entered of record — but enforcing it on breach generally requires a claim for breach of the agreement, not a writ. Q: Can a settlement be turned into a judgment in Texas? A: Yes. The parties may agree to entry of an agreed final judgment incorporating the settlement terms. The court renders judgment on the agreement while consent exists, and the resulting judgment is enforceable by execution like any other. Q: When can execution issue on a Texas judgment? A: Generally after 30 days from the signing of the final judgment, subject to the rules on supersedeas and on motions that extend the plenary period. ---------------------------------------------------------------------- ### 17. Agreed judgment held and not executed upon URL: https://www.jhenrylaw.com/mechanism/agreed-judgment-held-not-executed/ Authority: Tex. R. Civ. P. 11 — instrument drafting Q: How do you secure a payment plan from a defaulting tenant without litigating again? A: 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. When it applies: Structured settlements with a party who has some ability to pay over time but no assets worth chasing today. It converts a collection problem into an administrative one. How it is proved up: 1. Agreed judgment signed and entered, with a forbearance agreement running alongside it. 2. A cure period, so a late payment is a curable event rather than an immediate execution. 3. A per-instalment penalty that makes lateness cost more than paying on time. 4. An indemnity running to the debtor if the creditor executes while payments are current — this is what makes the deal signable. 5. A mandatory release of judgment filed within a stated number of business days after payoff. Put the deadline in the instrument; do not leave it to good faith. What defeats it: - A debtor with no income at all, for whom no structure works. - A creditor who will not wait, in which case take the judgment and enforce. - Sloppy drafting — an unclear cure period or an unclear release obligation turns the arrangement into its own dispute. Used in: Tanning salon and its personal guarantor, County Court at Law No. 4. A $16,459.18 demand became $38,500 over nineteen payments, secured this way. Paid. Q: What is a forbearance agreement on a judgment? A: A contract in which the judgment creditor agrees not to execute on a judgment so long as the debtor performs a payment schedule. It leaves the judgment in place as security while giving the debtor a defined path to a release. Q: Should a judgment be abstracted if the debtor is paying? A: That is a negotiated point. Abstracting creates a lien that will encumber the debtor's property and can defeat a refinancing that would pay you faster. Many of these agreements provide that no abstract issues while payments are current. Q: When must a release of judgment be filed in Texas? A: There is no universal deadline, which is exactly why the obligation and its timing belong in the agreement. Specifying a fixed number of business days after payoff avoids the most common post-payment dispute. ---------------------------------------------------------------------- ### 18. Partial default that preserves the case URL: https://www.jhenrylaw.com/mechanism/partial-default-preserving-the-case/ Authority: Tex. R. Civ. P. 239, 240 Q: Can I take a default judgment against one defendant and keep the case alive against the others? A: 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. Quoted authority: “Where there are several defendants, some of whom have made default … the plaintiff may discontinue as to the defendants so making default and take judgment against those who have answered, or may take judgment against those who have made default. — Tex. R. Civ. P. 240, in substance” Source: Tex. R. Civ. P. 239, 240 When it applies: Multi-defendant collection suits — a tenant entity, several guarantors, prior assignors still liable on the lease, and one defendant who has moved out of state and will not appear. How it is proved up: 1. Perfect service and prove it. A default is only as good as the return, and an out-of-state defendant means long-arm service under the Civil Practice and Remedies Code with the requisite jurisdictional allegations pleaded. 2. Prove damages by affidavit even on a liquidated claim, with the instrument attached. 3. Include the express non-disposition recital: this judgment does not dispose of all claims and all parties and is interlocutory. 4. Segregate the defaulting defendant's liability from the others so the judgment can stand alone. 5. Check the servicemembers affidavit and the last-known-address certificate before presenting it. What defeats it: - Defective service, which is the single most common reason defaults are set aside. - A timely motion for new trial under the Craddock standard. - Omitting the non-disposition language, which can convert the order into a final judgment by operation of the finality presumption. Used in: Restaurant tenant, six co-defendants and two third-party defendants, County Court at Law No. 4. Default taken against the one defendant who had moved out of state — $61,207.41 plus $3,375 in fees, signed and file-stamped — while the answering parties settled for $20,000, receipted. Demands had gone not only to the tenant and guarantors but to prior assignors still liable on the lease. Q: Is a partial default judgment final in Texas? A: Not if it says it is not. A judgment is final for appeal if it disposes of all claims and all parties or states with unmistakable clarity that it is final. An interlocutory default should expressly recite that it does not dispose of all claims and parties. Q: What is the Craddock standard for setting aside a default? A: A default will be set aside where the failure to answer was not intentional or the result of conscious indifference but was due to accident or mistake, the motion sets up a meritorious defense, and granting it will occasion no delay or injury to the plaintiff. Q: Do damages have to be proved on a default judgment in Texas? A: Unliquidated damages must be proved. Even on a liquidated claim, presenting an affidavit with the underlying instrument is the practice that survives a motion for new trial. ---------------------------------------------------------------------- ### 19. Abstract, writ, and the constable URL: https://www.jhenrylaw.com/mechanism/abstract-writ-and-the-constable/ Authority: Tex. Prop. Code § 52.001; Tex. R. Civ. P. 621, 627 Q: How do I actually collect a Texas judgment once I have it? A: 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. Quoted authority: “A first or subsequent abstract of judgment, when it is recorded and indexed in accordance with this chapter … constitutes a lien on and attaches to any real property of the defendant … located in the county in which the abstract is recorded and indexed. — Tex. Prop. Code § 52.001” Source: Tex. Prop. Code § 52.001; Tex. R. Civ. P. 621, 627 When it applies: Every unsatisfied judgment. It is the least glamorous mechanism on this list and the one most often skipped, which is why judgments sit uncollected while the debtor refinances property the creditor could have encumbered. How it is proved up: 1. Abstract immediately and record in every county of ownership — not only the county of suit. The lien is county by county. 2. Index correctly. An abstract that is recorded but not properly indexed may not create the lien. 3. Keep the judgment alive: issue a writ within the period that prevents dormancy under Tex. Civ. Prac. & Rem. Code § 34.001. 4. Identify leviable property before the writ issues, so the constable has somewhere to go. 5. Pair with post-judgment discovery, and escalate to turnover if the property cannot be reached by ordinary process. What defeats it: - The homestead and other exempt property, which the lien does not attach to. - Prior liens with priority. - Dormancy, if no writ issues within the statutory period, though the judgment may be revived. - Bankruptcy, and the preference window on liens perfected shortly before filing. Used in: Aramcor v. Tri Marsh — the defendant did not appeal, and did not pay, until a constable arrived with a writ of execution to levy on the shopping center. Q: How long does a Texas judgment lien last? A: An abstract of judgment recorded and indexed generally creates a lien that continues for ten years from the date of recording and indexing, subject to the judgment not becoming dormant. Q: When does a Texas judgment become dormant? A: Under Tex. Civ. Prac. & Rem. Code § 34.001, if no writ of execution is issued within the statutory period after rendition, the judgment becomes dormant and execution may not issue unless it is revived. Q: Does a judgment lien attach to a Texas homestead? A: No. The homestead is exempt, and a judgment lien does not attach to it — though the abstract can still create title complications that are resolved when the property is sold. ---------------------------------------------------------------------- ### 20. Taking a Texas judgment into another state URL: https://www.jhenrylaw.com/mechanism/domesticating-a-texas-judgment/ Authority: Uniform Enforcement of Foreign Judgments Act, as adopted in the enforcing state; Tex. Civ. Prac. & Rem. Code ch. 35 (Texas’s reciprocal provision); U.S. Const. art. IV, § 1; 28 U.S.C. § 1738 Q: How do you enforce a Texas judgment against a defendant whose assets are in another state? A: 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. Quoted authority: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” Source: U.S. Const. art. IV, § 1 When it applies: Any Texas judgment against a defendant whose real property, bank accounts or receivables sit elsewhere — which, in a forum-selection-clause program, is nearly all of them. It is also the answer when a debtor moves after judgment. How it is proved up: 1. Obtain an exemplified or authenticated copy of the judgment meeting 28 U.S.C. § 1738 — not a plain certified copy, in states that require exemplification. 2. File it with the affidavit the enforcing state’s statute requires, giving the judgment creditor’s and debtor’s last known addresses. 3. Give the statutory notice and calendar the waiting period before executing. The periods differ by state and executing early is the most common error. 4. Confirm the judgment is final and not dormant in Texas first. A dormant judgment cannot be enforced anywhere. 5. Line up local counsel where the state requires it, and price it before you start — on a small judgment the domestication and local counsel can exceed the recovery. What defeats it: - A due-process attack on the original judgment. The enforcing state will not re-try the merits, but it will hear a challenge to personal jurisdiction or to service — which is why the service affidavit and the forum-selection record matter long after judgment. - Dormancy in Texas. - Bankruptcy. - A debtor with nothing to reach. In this program several judgments were domesticated, writs issued, and the sheriff reported the clinic closed or moved. A judgment is not a recovery, and the client is better served hearing that before the money is spent than after. Used in: The United Biologics program — judgments taken in the Bexar County courts and then domesticated in the defendants’ home states for execution, including Louisiana, North Carolina, Maryland, Arizona and Delaware. In United Biologics v. Moss Street Medical Clinic, Inc. the Texas judgment was filed in the 15th Judicial District Court, Lafayette Parish, Louisiana, as Cause No. 20154623L; notice issued, twenty days ran without a response, and the court ordered the judgment recorded and made executory — after which the sheriff was instructed to levy on the clinic’s furniture, computers and office equipment. Several judgments in the program were collected. Several were not, and the file says which. Q: What is domestication of a judgment? A: Filing a judgment rendered in one state with the court of another state so that it can be enforced there. Under the Uniform Enforcement of Foreign Judgments Act the filed judgment is treated the same as a judgment of the enforcing court. Q: Can the other state re-examine a Texas judgment? A: Not on the merits. Full faith and credit forecloses re-litigation of the underlying claim. The enforcing court can consider whether the rendering court had jurisdiction over the parties and the subject matter and whether the judgment is final. Q: How long does a judgment creditor have to domesticate? A: It depends on the enforcing state’s limitations period for foreign judgments and on whether the Texas judgment has gone dormant. Keeping the Texas judgment alive by timely issuing writs preserves the option. Order on file: Order to Make Judgment Executory — United Biologics, LLC d/b/a United Allergy Services v. Moss Street Medical Clinic, Inc., 15th Judicial District Court, Lafayette Parish, Louisiana, Cause No. 20154623L, signed 2016. Full text of the order: CAUSE NO. 20154623L UNITED BIOLOGICS, LLC d/b/a UNITED ALLERGY SERVICES, Plaintiff v. MOSS STREET MEDICAL CLINIC, INC., Defendant IN THE DISTRICT COURT 15TH JUDICIAL DISTRICT LAFAYETTE PARISH, LOUISIANA ORDER TO MAKE JUDGMENT EXECUTORY On September 18, 2015, Plaintiff, United Biologics, LLC d/b/a United Allergy Services filed its Petition to Make Foreign Judgment Executory. Notice was mailed to Defendant, Moss Street Medical Clinic, Inc. by certified mail, return receipt requested, on September 28, 2015 by Lafayette Parish Clerk of Court, and return receipt was received by the Clerk of Court on October 12, 2015, bearing signature. Twenty days have passed since notice was given to the Defendant, and no response or pleadings have been filed by Defendant. THE ABOVE AND FOREGOING CONSIDERED, Let the Judgment in the above numbered and styled cause be filed and recorded herein and let said Judgment become executory. This the ____ day of __________, 2016. _______________________________ PRESIDING JUDGE ---------------------------------------------------------------------- ## On the other side of the motion ### 21. Defeating summary judgment URL: https://www.jhenrylaw.com/mechanism/defeating-summary-judgment/ Authority: Tex. R. Civ. P. 166a Q: How do you defeat a motion for summary judgment in Texas? A: 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. Quoted authority: “Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal. — Tex. R. Civ. P. 166a(c)” Source: Tex. R. Civ. P. 166a When it applies: Any dispositive motion set against your client. The response window is short — seven days before the hearing without leave — and the work is front-loaded into assembling admissible evidence rather than writing. How it is proved up: 1. Enumerate the grounds from the motion and answer each one under its own heading. Nothing gets skipped. 2. Attach competent evidence — declarations with personal knowledge and underlying facts, authenticated documents, deposition excerpts. A scintilla is enough, but it must be admissible. 3. Object in writing to the movant's evidence and set the objections for the same hearing, so the record is not one-sided. 4. Where discovery is genuinely incomplete, move for continuance under 166a(g) with a verified explanation of what is outstanding and why it matters. 5. Where the motion is a no-evidence motion, check first whether it identifies elements with the specificity the rule requires. Many do not. What defeats it: - Conclusory declarations, which are no evidence at all. - Missing the deadline. A late response requires leave, and leave is not guaranteed. - Failing to address a ground, which forecloses complaint about it later. Used in: Salt & Pepper Restaurants v. Tight Ends Sports Bar & Grill · 56th Judicial District Court, Galveston County. Plaintiff moved against my client's defenses and, separately, to dispose of the counterclaims outright. Both motions denied the same day. Q: How long do I have to respond to a summary judgment motion in Texas? A: The response is due not later than seven days before the day of the hearing, except on leave of court. The motion itself must be served at least 21 days before the hearing. Q: How much evidence is needed to defeat summary judgment in Texas? A: More than a scintilla — evidence that rises to a level enabling reasonable and fair-minded people to differ in their conclusions. The evidence is viewed in the light most favorable to the non-movant. Q: What happens if I do not respond to one of the grounds in the motion? A: That ground stands unchallenged. On appeal, a non-movant generally may not raise issues not expressly presented to the trial court in a written response, other than the legal sufficiency of the movant's own summary judgment proof. ---------------------------------------------------------------------- ### 22. Verified denial — defect of parties URL: https://www.jhenrylaw.com/mechanism/verified-denial-defect-of-parties/ Authority: Tex. R. Civ. P. 93 Q: When must a denial be verified under Texas Rule of Civil Procedure 93? A: 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. Quoted authority: “A pleading setting up any of the following matters, unless the truth of such matters appears of record, shall be verified by affidavit … 4. That there is a defect of parties, plaintiff or defendant.” Source: Tex. R. Civ. P. 93 When it applies: Most often when a vendor sues the wrong member of a corporate family — the contracts run to two affiliated operating entities and the plaintiff has named the parent, or the brand, or the wrong affiliate. A verified answer puts the burden back before a dollar of merits work is done. How it is proved up: 1. Identify the actual contracting parties and attach the contracts showing it. 2. Verify the answer — a sworn statement from someone with knowledge of the corporate structure, not a certificate from counsel. 3. Plead the specific Rule 93 subsection rather than a general reference to the rule. 4. Where the correct entity is a client too, decide early whether to name it, because limitations may be running. What defeats it: - Truth appearing of record already, which excuses verification. - An amended petition naming the right entity, which cures the defect if limitations permits. - Alter ego, single business enterprise or assumed-name theories that reach the named defendant anyway. Used in: Vendor suit, County Court at Law No. 4, Williamson County. Verified answer establishing that the contracts ran to two affiliated operating entities and not to the defendant named. Q: What must be verified under Rule 93 in Texas? A: Among others: that a party is not liable in the capacity sued, that there is a defect of parties, denial of a partnership or corporate existence as alleged, denial of the execution of a written instrument, denial of an account, and that a contract sued on is usurious. Q: What happens if a Rule 93 plea is not verified? A: It is waived. A general denial does not raise these matters, and raising them for the first time at trial or on appeal is too late. Q: Can a defect of parties be cured by amendment? A: Yes, if the plaintiff amends to name the correct party and limitations has not run. That is why the verified denial is most valuable filed early — it forces the correction while the calendar still matters. ---------------------------------------------------------------------- ### 23. Dismissal for want of prosecution, on defense URL: https://www.jhenrylaw.com/mechanism/dismissal-for-want-of-prosecution-defense/ Authority: Tex. R. Civ. P. 165a; the court's inherent power Q: Can a defendant get a Texas lawsuit dismissed for want of prosecution? A: 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. Quoted authority: “Any case not disposed of within time standards promulgated by the Supreme Court under its Administrative Rules may be placed on a dismissal docket.” Source: Tex. R. Civ. P. 165a; the court's inherent power When it applies: Stale collection suits, insurer subrogation files, and any plaintiff that filed to toll limitations and then stopped. It costs the defense almost nothing and it disposes of cases that would otherwise sit. How it is proved up: 1. Track the docket. The mechanism only works if you know when the notice of intent to dismiss issues. 2. Do not stipulate to resets or agreed continuances that supply the plaintiff with the diligence it lacks. 3. Where a dismissal setting exists, appear. A plaintiff who does not is dismissed. 4. Keep the clerk's notices and the dismissal order in the file — the record of the disposition is what closes the matter out. What defeats it: - A verified motion to retain by an attentive plaintiff, which is usually granted. - Reinstatement, which is available on the same accident-or-mistake standard and does happen — one such dismissal in a Williamson County matter was later reinstated after the plaintiff served disclosures. - Dismissal is without prejudice, so limitations may still permit refiling. Used in: Insurer's collection suit, County Court at Law No. 2, Williamson County. Dismissed for want of prosecution; the clerk's sealed notice of the order is in the file. The matter was later reinstated after the plaintiff served disclosures. Q: Is a dismissal for want of prosecution with or without prejudice? A: Without prejudice. It is not an adjudication on the merits, so the claim may be refiled if limitations has not run. Q: Can a defendant move to dismiss for want of prosecution? A: Yes. A defendant may bring the plaintiff's inactivity to the court's attention and ask that the case be placed on the dismissal docket, and the court also acts on its own motion under Rule 165a and its inherent authority. Q: How is a dismissal for want of prosecution undone? A: By a verified motion to reinstate filed within 30 days of the dismissal order, on a showing that the failure was not intentional or the result of conscious indifference. ---------------------------------------------------------------------- ## Terms of art Special appearance: The sworn instrument a non-resident defendant files under Tex. R. Civ. P. 120a to contest a Texas court’s personal jurisdiction without submitting to it. It must be filed before any other plea and heard and determined before any other matter. (see https://www.jhenrylaw.com/mechanism/forum-selection-clause-defeats-special-appearance/) Forum-selection clause: A contract term fixing the court or county in which disputes between the parties must be brought. Texas treats such clauses as presumptively valid and will enforce them by mandamus. (see https://www.jhenrylaw.com/mechanism/forum-selection-clause-defeats-special-appearance/) No-evidence motion for summary judgment: A motion under Tex. R. Civ. P. 166a(i) identifying elements the opposing party cannot support, which shifts the burden to that party to produce evidence. The movant files no evidence of its own. (see https://www.jhenrylaw.com/mechanism/no-evidence-summary-judgment/) Conclusory: A statement that offers a conclusion without the underlying facts supporting it, so that it cannot be effectively controverted. Conclusory statements are not competent summary judgment evidence, and the defect is one of substance rather than form. (see https://www.jhenrylaw.com/mechanism/striking-opposing-counsel-declaration/) Mandatory exclusion: The rule in Tex. R. Civ. P. 193.6 that untimely-disclosed testimony is inadmissible unless the party who missed the deadline shows good cause or an absence of unfair surprise. Exclusion is the default outcome, not a discretionary one. (see https://www.jhenrylaw.com/mechanism/late-designated-expert-exclusion-193-6/) Turnover order: An order under Tex. Civ. Prac. & Rem. Code § 31.002 requiring a judgment debtor to deliver nonexempt property that ordinary legal process cannot readily reach. The court may also appoint a receiver and enjoin the debtor from transferring the property. (see https://www.jhenrylaw.com/mechanism/turnover-order-post-judgment-receiver/) Post-judgment receiver: An officer appointed under the Texas turnover statute with authority to take possession of, investigate and sell a judgment debtor’s nonexempt property in satisfaction of a judgment. (see https://www.jhenrylaw.com/mechanism/turnover-order-post-judgment-receiver/) Badges of fraud: The factors listed in Tex. Bus. & Com. Code § 24.005(b) from which a court may infer actual intent to hinder, delay or defraud a creditor — transfer to an insider, retained possession or control, concealment, timing relative to suit, insolvency, and others. (see https://www.jhenrylaw.com/mechanism/fraudulent-transfer-tufta/) Substituted service: Service authorized by the court under Tex. R. Civ. P. 106(b) in a manner other than personal delivery, granted on a sworn statement listing where the defendant can probably be found and the specific attempts already made. (see https://www.jhenrylaw.com/mechanism/substituted-service-rule-106/) Domestication of a judgment: Filing a judgment rendered in one state with a court of another state so that it can be enforced there, under that state’s Uniform Enforcement of Foreign Judgments Act. (see https://www.jhenrylaw.com/mechanism/domesticating-a-texas-judgment/) Exemplified copy: A copy of a judgment authenticated under 28 U.S.C. § 1738 — certified by the clerk and attested by a judge — which some states require before a foreign judgment may be filed. (see https://www.jhenrylaw.com/mechanism/domesticating-a-texas-judgment/) Dormant judgment: A Texas judgment on which no writ of execution issued within the period set by Tex. Civ. Prac. & Rem. Code § 34.001. Execution may not issue on a dormant judgment unless it is revived. (see https://www.jhenrylaw.com/mechanism/abstract-writ-and-the-constable/) Abstract of judgment: The instrument that, when recorded and properly indexed in a county, creates a judgment lien on the debtor’s nonexempt real property in that county under Tex. Prop. Code § 52.001. (see https://www.jhenrylaw.com/mechanism/abstract-writ-and-the-constable/) Verified denial: A denial that Tex. R. Civ. P. 93 requires be sworn — capacity, defect of parties, denial of the execution of an instrument, denial of an account — and which is waived if it is not verified. (see https://www.jhenrylaw.com/mechanism/verified-denial-defect-of-parties/) Forfeited corporate privileges: The status of a Texas entity that has not satisfied its franchise tax obligations. Under Tex. Tax Code § 171.252 the entity is denied the right to sue or defend in a court of this state. (see https://www.jhenrylaw.com/mechanism/forfeited-charter-special-exceptions/) Dismissal docket: The list of cases a court has noticed for dismissal for want of prosecution under Tex. R. Civ. P. 165a. A verified motion to retain, filed before the setting, takes a case back off it. (see https://www.jhenrylaw.com/mechanism/verified-motion-to-retain/) ## Fees Tier I — Documentary — Liquidated sum, signed instrument, no expert, no real fact dispute. A note, a guaranty, a lease balance, a sworn account. — 2–3 weeks — $3,500 – $8,500 Tier II — Contested — Live affirmative defenses, a records custodian to prove up, evidentiary objections to brief, a hearing that will actually be argued. — 4–6 weeks — $15,000 – $25,000 Tier III — Technical — Competing valuations, fiduciary duties, multiple movants, expert challenges, partnership or construction facts. The motion that decides the case. — 6–10 weeks — $30,000 – $60,000 Hearing only — Your motion, your brief, my argument. I read the file, prepare, and stand up. — By setting — $2,500 – $6,000 Read & opinion — Send the file, get a written answer: which mechanism fits, what it is worth, what it costs to get there. Credited against any engagement that follows. — Same day where the file arrives before noon — $1,500 Enforcement — Abstract, writ, turnover, receiver. Quoted on the judgment and the debtor, after a look at what there is to reach. — By posture — Quoted ## Contact 407 W Liberty St, Round Rock, TX 78664 (214) 673-1960 · jhenry@jhenrylaw.com Intake: https://www.jhenrylaw.com/send/