STATUTE OF FRAUDS AS AFFIRMATIVE DEFENSE:
MUST BE INVOKED BY THE PLEADINGS
The statute of frauds is an affirmative
defense to the enforcement of a contract which must be pleaded or it is waived.
TEX. R. CIV. P. 94; Swinehart v,
Stubbeman, McRae, Sealy, Laughlin & Browder, Inc., 48 S.W.3d 865, 875
(Tex. App.-Houston [14th Dist.] 2001, pet. denied).
SOURCE: HOUSTON COURT OF APPEALS – 14-11-00895-CV – 4/30/2013
Because [the Defendant sued on
guaranty] failed to plead the statute of frauds as an affirmative
defense to the personal guarantee agreement, we conclude that [he] has waived
it. See Adams v. H & H Meat Prods.,
Inc., 41 S.W.3d 762, 776 (Tex. App.-Corpus Christi 2001, no pet.) (holding
the appellant waived the statute of frauds to enforcement of a personal
guarantee).
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