RULE 94; AFFIRMATIVE DEFENSES
FAILURE TO PLEAD AN AFFIRMATIVE DEFENSE
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)).
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 PLEAD
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).
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