law-affirmative-defense | pleading rules |

A party must specifically plead an affirmative defense or it is waived. TEX. R. CIV. P. 94; Kinnear v. Texas
Comm'n on Human Rights, 14 S.W.3d 299, 300 (Tex. 2000).


An affirmative defense is defined as "a denial of the plaintiff's right to judgment even if
the plaintiff establishes every allegation in its pleadings." Hassell Constr. Co. v.
Stature Comm. Co., 162 S.W.3d 664, 667 (Tex. App.-Houston [14th Dist.] 2005, no
pet.) (quoting Bracton Corp. v. Evans Constr. Co., 784 S.W.2d 708, 710 (Tex.
App.-Houston [14th Dist.] 1990, no writ). An affirmative defense allows the defendant
to introduce evidence to establish an independent reason why a plaintiff should not
prevail; it does not rebut the factual proposition of the plaintiff's pleading. Id. All
affirmative defenses are waived when the defendant files only a general denial, and,
absent trial by consent, failure to plead a matter of affirmative defense will preclude a
defendant from asserting it. Id.
Nguyen v. JP Morgan Chase Bank, Tex: Court of Appeals, No.
14-07-00086-CV.14th Dist., Houston 2008

Absent trial by consent, failure to plead a matter of affirmative defense will preclude a defendant from
asserting it. An issue is tried by consent when a party introduces evidence to support an issue that is not
included in the written pleadings and no objection is made to the lack of pleadings. See Tex. R. Civ. P. 67;
see also Bell v. Meeks, 725 S.W.2d 179, 179-80 (Tex. 1987). "To determine whether an issue was tried by
consent, the Court must examine the record not for evidence of the issue, but rather for evidence of trial of
the issue." Pickelner v. Adler, 229 S.W.3d 516, 523 (Tex. App.-Houston [1st Dist.] 2007, no pet. h.) (internal
quotation marks omitted). "A party's unpleaded issue may be deemed tried by consent when evidence on
the issue is developed under circumstances indicating both parties understood the issue was in the case,
and the other party failed to make an appropriate complaint." Haas v. Ashford Hollow Cmty Improvement
Ass'n, 209 S.W.3d 875, 884 (Tex. App.-Houston [14th Dist.] 2006, no pet.).

Affirmative defenses not affirmatively pled are waived. See Tex.R. Civ. P. 94 (providing that affirmative
defense of lack of consideration and any other matter constituting an avoidance or affirmative defense must
be affirmatively pled).[5] Mutual mistake is an affirmative defense that must be pleaded or is waived. Decker
v. Urrutia, 965 S.W.2d 26, 27-28 (Tex.App.-Houston [1st Dist.] 1998), rev'd on other grounds, 992 S.W.2d
440 (Tex.1999); see Durham v. Uvalde Rock Asphalt Co., 599 S.W.2d 866, 869 (Tex.App.-San Antonio
1980, no writ); see also CenterPoint Energy Houston Elec. L.L.P. v. Old TJC Co., 177 S.W.3d 425, 430 n. 3
(Tex.App.-Houston [1st Dist.] 2005, pet. denied) ("By case law, mutual mistake has been identified as an
affirmative defense that must also be pled.") (citing Durham, 599 S.W.2d at 869).
DeClaire v. G&B McIntosh
Family LP DeClaire v. G & B MCINTOSH FAMILY LTD., 260 SW 3d 34 01-06-00423-CV.- Tex: Court of
Appeals, Houston May 8, 2008

Wright v. Atlantic Credit and Finance, Inc. (Tex.App.- Houston [1st Dist.] Dec. 10, 2009)(Alcala)
(failure to plead
statute of limitations)(deemed admissions and Atlantic's uncontroverted summary judgment
evidence conclusively establish Atlantic's entitlement to recover on breach of contract and its entitlement to
attorney's fees)
Justice Alcala    
Before Justices Keyes, Alcala and Hanks   
01-09-00135-CV  Darryl G. Wright v. Atlantic Credit and Finance, Inc.   
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge:
Hon. Roberta A. Lloyd
The statute of limitations is an affirmative defense that must be specifically pleaded or it is waived. Tex. R.
Civ. P. 94; see Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988). Here, Wright did not
plead the statute of limitations as an affirmative defense and, therefore, waived limitations as a defense.
Additionally, Wright did not raise limitations in a response to Atlantic's motion for summary judgment or
present evidence in support of the defense.
See Williams v. Unifund CCR Partners Assignee of Citibank,
264 S.W.3d 231, 234 (Tex. App.-Houston [1st Dist.] 2008, no pet.) (debtor asserting limitations did not
defeat creditor's motion for summary judgment because debtor produced no summary judgment evidence in
support of limitations). We hold the trial court did not err by rendering summary judgment because no
pleadings or evidence raise the issue of limitations.

Williams v. Unifund CCR Partners Assignee of CitiBank 264 S.W.3d 231 (2008)
Tex.App.- Houston [1st Dist.] Feb. 7, 2008)(Keyes) (consumer credit card debt suit, judgment reversed,
sworn account not proper for credit card debt collection, attorney's fees)
Opinion by
Justice Keyes
Before Justices Taft, Keyes and Alcala
01-06-00927-CV Edward Williams v. Unifund CCR Partners Assignee of CitiBank
Appeal from County Civil Court at Law No 3 of Harris County (
Judge Lynn Bradshaw-Hull)  
In his second issue, Williams argues that the statute of limitations barred Unifund's right to recovery. A party
relying on an affirmative defense to defeat summary judgment must come forward with summary judgment
evidence establishing a fact issue on each element of the affirmative defense. Suttles v. Thomas Bearden
Co., 152 S.W.3d 607, 614 (Tex. App.-Houston [1st Dist.] 2004, no pet.). The statute of limitations on a claim
for debt based on breach of contract is four years from the time the cause of action accrues. TEX. CIV.
PRAC. & REM.CODE ANN. § 16.004(a) (Vernon 2002). Williams made his last payment on October 15,
2001, and this action commenced on August 19, 2005, which is within the four-year window. Williams did not
present any summary judgment evidence contradicting these facts.
We overrule Williams's second issue.