Thursday, February 4, 2016
RIGHT TO OFFSET: WHO HAS BURDEN TO PLEAD AND PROVE IT?
The right to an offset is an affirmative defense, and the burden of pleading offset and of proving facts necessary to support it are on the party making the assertion. Lone Starr Multi-Theatres, Ltd. v. Max Interests, Ltd., 365 S.W.3d 688, 704 (Tex. App.-Houston [1st Dist.] 2011, no pet.); SAS & Assocs., Inc. v. Home Mktg. Servicing, Inc., 168 S.W.3d 296, 301 (Tex. App.-Dallas 2005, pet. denied); see also TEX. R. CIV. P. 94.
Here, Metzger has waived the defense because he did not plead for an offset, and he did not make any objection to the jury charge regarding this matter. See Lone Starr, 365 S.W.3d at 704; Columbia Med. Ctr. of Las Colinas v. Bush ex rel. Bush, 122 S.W.3d 835, 862 (Tex. App.-Fort Worth 2003, pet. denied); see also TEX. R. APP. P. 33.1(a).
SOURCE: Houston Court of Appeals - 01-14-00705-CV - 1/21/2016