Right to an offset is an affirmative defense

 
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

Statute of frauds not self-executing, must be invoked to serve as defense in lawsuit

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). 

SoL may be waived by failure to plead limitations as an affirmative defense

   
LIMITATIONS MUST BE PLED TO AVOID WAIVER

“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.).

DEFENSE OF LIMITATIONS IN ATTORNEY DISCIPLINARY ACTION / DISBARMENT ACTION

No attorney licensed to practice law in Texas may be disciplined for Professional Misconduct occurring more than four years before the time when the allegation of Professional Misconduct is brought to the attention of the Office of Chief Disciplinary Counsel, except in cases in which disbarment or suspension is compulsory.

ACCRUAL AND TOLLING OF STATUTE / DISCOVERY RULE

Limitations will not begin to run where fraud or concealment is involved until such Professional Misconduct is discovered or should have been discovered in the exercise of reasonable diligence by the Complainant.Tex. R. Disciplinary P. 15.06, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A-1 (Vernon 2005). Appellant argues that the mandatory nature of the language in rule 15.06, “No attorney . . . may be disciplined for Professional Misconduct occurring more than four years before . . . the allegation . . . is brought to the attention of the Office of Chief Disciplinary Counsel, “ makes it an absolute bar to discipline for conduct outside the limitations period.

EXAMPLES OF STATUTES OF LIMITATIONS THAT WERE WAIVED

[Texas courts of appeals] have held other statutes of limitations containing mandatory language could be waived. Tex. Fam. Code Ann. § 160.607(a) (Vernon 2008) (“a proceeding . . . to adjudicate the parentage of a child . . . shall be commenced not later than the fourth anniversary of the date of the birth of the child”); Miles v. Peacock, 229 S.W.3d 384, 387-88 (Tex. App.-Houston [1st Dist.] 2007, no pet.) (family code § 160.607(a) waived by failure to plead limitations); see also Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a)(3) (Vernon 2002) (“A person must bring suit on the following actions not later than four years after the day the cause of action accrues: . . . (3) debt . . . .”); Frazier v. Havens, 102 S.W.3d 406, 411-12 (Tex. App.-Houston [14th Dist.] 2003, no pet.) (four-year statute of limitations waived by failure to plead it). Thus, the mandatory nature of the language does not preclude waiver.

SOURCE: 05-07-00428-CV (Dallas CoA) (3/17/09, pet. denied Oct 16, 2009)