Thursday, April 28, 2011
Waiver as an affirmative defense to lawsuits in Texas
WAIVER AS BAR TO CLAIM: MUST BE PLEADED AS AFFIRMATIVE DEFENSE
Waiver is an affirmative defense to a contract claim. See Tex. R. Civ. P. 94. In order to rely on the affirmative defense, a defendant must plead, prove, and secure findings to sustain the defense. Woods v. William H. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988).
The record does not reflect that AMS requested a jury question on the defense it now seeks to assert. By failing to do so, it has not preserved its argument for appellate review. See Tex. R. App. P. 33.1(a); Rivas v. Cantu, 37 S.W.3d 101, 116-17 (Tex. App.—Corpus Christi 2000, pet. denied) (holding defendant failed to preserve statute of frauds defense by, inter alia, failing to request jury charge or object to absence of charge issue); Abraxas Petrolrolium Corp. v. Hornburg, 20 S.W.3d 741, 763 (Tex. App.—El Paso 2000, no pet.) (holding defendant waived estoppel and waiver defenses by failing to submit a jury question).
SOURCE: Houston Court of Appeals 01-09-00360-CV 4/28/11
LEGAL TERMS: defense of waiver, release, estoppel