law-affirmative-defenses must be pleaded | sufficiency of pleadings | special exceptions | trial by consent |
AFFIRMATIVE DEFENSE DEFINED
An affirmative defense “seeks to establish an independent reason that the plaintiff should not
recover” and is “thus [a defense] of avoidance, rather than a defense in denial”; that is, it is a defense
of confession and avoidance. In re C.M., 996 S.W.2d 269, 270 (Tex. App.—Houston [1st Dist.] 1999,
no pet.); Great Am. Prods. v. Permabond Int’l, 94 S.W.3d 675, 683 (Tex. App.—Austin 2002, pet.
TEX.R. CIV. P. 94 ("In pleading to a preceding pleading, a party shall set forth affirmatively... any other matter
constituting an avoidance or affirmative defense"); see e.g., Unifund CCR Partners v. Weaver, 262 S.W.3d
796, 798 (Tex.2008);
FAILURE TO PLEAD | TRIAL BY CONSENT
The Texas Rules of Civil Procedure require certain defenses, including the defense of "release," to be
affirmatively pleaded. Tex. R. Civ. P. 94. Generally, an affirmative defense is waived if it is not pleaded.
Alvarado v. Wingfoot Enters., 53 S.W.3d 720, 725 (Tex. App.--Houston [1st Dist.] 2001) (quoting Shoemake v.
Fogel, Ltd., 826 S.W.2d 933, 937 (Tex. 1992)) rev'd on other grounds by 111 S.W.3d 134 (Tex. 2003).
However, "[u]npleaded claims or defenses that are tried by express or implied consent of the parties are
treated as if they had been raised by the pleadings." Hartford Fire Ins. Co. v. C. Springs 300, Ltd., No. 01-06-
00065-CV, 2008 WL 2208887, at *6 (Tex. App.--Houston [1st Dist.] May 29, 2008, no pet. h.) (citing Roark v.
Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991)). "The party who allows an issue to be tried by
consent and who fails to raise the lack of a pleading before submission of the case cannot later raise the
pleading deficiency for the first time on appeal." Id. (citing Roark, 813 S.W.2d at 495). "Moreover, '[w]hen
issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated
in all respects as if they had been raised in the pleadings.'" Id. (quoting Tex. R. Civ. P. 67). "To determine
whether an issue was tried by consent, we examine the record not for evidence of the issue, but rather for
evidence of trial of the issue." Id. (citing Case Corp. v. Hi-Class Bus. Sys. of Am., Inc., 184 S.W.3d 760, 771
(Tex. App.--Dallas 2005, pet. denied)). "A party's unpleaded issue may be deemed tried by consent when
evidence on the issue is developed under circumstances indicating that both parties understood the issue
was in the case, and the other party failed to make an appropriate complaint." Id. (citing Case Corp., 184 S.W.
3d at 771).
WAIVER OF AFFIRMATIVE DEFENSE – NOT PLEADED
An affirmative defense that is not pleaded or proved and on which findings are not obtained is waived and
cannot be preserved by raising the affirmative defense for the first time in a motion for new trial. In re C.M.,
996 S.W.2d at 270; Tien Tao Ass’n, Inc. v. Kingsbridge Park Cmty. Ass’n, 953 S.W.2d 525, 532 (Tex. App.—
Houston [1st Dist.] 1997, no pet.); see Glover v. State, 346 S.W.2d 121, 122 (Tex. Crim. App. 1961) (“A
litigant is not permitted during a trial on the merits to remain silent as to affirmative defenses known to him,
and then when an adverse result is reached, on motion for new trial complain because of his own neglect.”);
Tex. R. Civ. P. 94.
“In pleading to a preceding pleading, a party shall set forth affirmatively . . . statute of limitations . . . and any
other matter constituting an avoidance or affirmative defense.” Tex. R. Civ. P. 94. Limitations is an affirmative
defense that is waived if not pleaded. G.R.A.V.I.T.Y. Enters., Inc. v. Reece Supply Co., 177 S.W.3d 537, 544
(Tex. App.-Dallas 2005, no pet.).
Fraud is an affirmative defense to a party's failure to perform its obligation under a contract. See TEX. R. CIV.
P. 94; see also Sweeney, 824 S.W.2d at 291; Deer Creek Ltd. v. North Am. Mortg. Co., 792 S.W.2d 198, 201
(Tex. App.-Dallas 1990, no writ) (claim that release may be set aside if fraudulently induced is affirmative
defense in nature of confession and avoidance).