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Civil Litigation: Affirmative Defenses

When speaking with an attorney about how to defend yourself in a lawsuit, or how the defense may counter any claims they may bring as a plaintiff, you need to be informed of the different kinds of defenses the other side may have. One type of defense is called an “affirmative defense”. An affirmative defense is different from a general denial. A general denial. A general denial, in its most basic form, puts all the allegations in the plaintiff’s original petition at issue. That is why it is called a “general denial” because you are denying each and every, all and singular claims that the Plaintiff has brought against you. By filing a general denial, you have “answered the cause” and the Plaintiff will then be required to prove each and every element of his claims. In addition to the general denial, you may also bring affirmative defenses as well in the same Answer with the court. In some cases, it may also be required that you answer “with specificity” and you may do so by naming specific claims that the Plaintiff has brought against you and deny each of those claims individually and present facts in your Answer that support those specific denials. However, this article focuses on affirmative defenses, how they can be used and why they can be so effective. If you have any questions about any defenses you may have after you have been sued, contact the experienced civil litigators at Guest and Gray, P.C.
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. denied).
Most affirmative defenses can be found in the Texas Rules of Civil Procedure under Rule 94.


Rule 94 provides the following requirements for pleading an affirmative defense in Texas: in pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. Where the suit is on an insurance contract which insures against certain general hazards, but contains other provisions limiting such general liability, the party suing on such contract shall never be required to allege that the loss was not due to a risk or cause coming within any of the exceptions specified in the contract, nor shall the insurer be allowed to raise such issue unless it shall specifically allege that the loss was due to a risk or cause coming within a particular exception to the general liability; provided that nothing herein shall be construed to change the burden of proof on such issue as it now exists.


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).


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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