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Burges v. Mosley

The trial court erred in granting appellee's no-evidence motion for summary judgment because the rules of civil procedure do not allow a party to move for a no-evidence summary judgment based on an affirmative defense that she has the burden to prove at trial. The trial court erred in granting appellee's traditional motion for summary judgment because there was no evidence of failure of consideration, the ground upon which that motion was granted. Conversely, the trial court correctly denied appellants' motion for summary judgment because they did not prove that the agreement appellee signed was supported by consideration and therefore did not prove the existence of a contract as a matter of law. Tyler Court of Appeals, No. 12-08-00405-CV, 01-20-2010

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OPINION

This appeal arises from a dispute over the enforceability of an alleged agreement made by Shirley Mosley to benefit her deceased husband’s three children by a previous marriage. The trial court determined the alleged agreement was not a contract due to both a lack of consideration and failure of consideration. In two issues, the three children, Roger Wayne Burges, Deborah K. Burges Cook, and Lonnie Ray Burges (hereinafter the Burges children) appeal the trial court’s grant of Shirley’s motions for summary judgment and its denial of their motion for summary judgment. We reverse and remand for further proceedings.

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