Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

Need a little legal ammo? Search for caselaw on legal theories and defenses here:

Monday, March 1, 2010

Duress Defined

WHAT IS DURESS, LEGALLY SPEAKING? Duress requires unlawful conduct or a threat of unlawful conduct of such a character as to destroy the other party's exercise of free will and judgment. See Dallas County Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868, 878-79 (Tex. 2005); Cooper v. Cochran, 288 S.W.3d 522, 533 (Tex. App.-Dallas 2009, r. 53.7(f) motion granted) (op. on reh'g); Deer Creek Ltd. v. N. Am. Mortgage Co., 792 S.W.2d 198, 200 (Tex. App.-Dallas 1990, no writ). The threat must be imminent and the party must have no present means of protection. See Bolton, 185 S.W.3d at 879; Cooper, 288 S.W.3d at 533; Deer Creek, 792 S.W.2d at 200. Duress must be shown from the acts or conduct of the party accused of duress, not the emotions of the purported victim. See Brown v. Cain Chem., Inc., 837 S.W.2d 239, 244 (Tex. App.-Houston [1st Dist.] 1992, writ denied). The burden to prove duress is on the party claiming it. Tex. R. Civ. P. 94; Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 650 (Tex. 1988). Generally, what constitutes duress is a question of law, but whether duress exists under a particular set of circumstances is a fact question. See Wright v. Sydow, 173 S.W.3d 534, 544 (Tex. App.-Houston [14th Dist.] 2004, pet. denied). SOURCE: 05-08-00939-CV (Dallas Court of Appeals) (2/26/10)

No comments:

Post a Comment