affirmative defense in Texas

2024“If the party opposing a summary judgment relies on an affirmative defense, he must come forward with summary judgment evidence sufficient to raise an issue of fact on each element of the defense to avoid summary judgment.” Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) (citing Clear Creek Basin Auth., 589 S.W.2d at 678–79).

2024“To obtain summary judgment on an affirmative defense, a defendant must plead and conclusively establish each element of an affirmative defense thereby rebutting the plaintiff’s cause of action.” Biko v. Siemens Corp., 246 S.W.3d 148, 159 (Tex. App.—Dallas 2007, pet. denied) (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979)).

2023“To prevail as a movant, a defendant must either negate at least one of the essential elements of a cause of action or conclusively establish each element of an affirmative defense.” Id. (citing Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995)).

2022Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995) (“In suits brought by private individuals, truth is an affirmative defense to slander.” (footnote omitted)); Van Der Linden v. Khan, 535 S.W.3d 179 , 198–99, 199 n.10 (Tex. App—Fort Worth 2017, pet. denied) (recognizing truth as affirmative defense in defamation actions involving private individuals where no constitutional issues are implicated); see also Knox v. Taylor, 992 S.W.2d 40 , 53–54 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (rejecting defendant–appellant’s argument that jury’s negative answer to question on s

2021See FDIC v. Lenk, 361 S.W.3d 602, 609 (Tex. 2012) (“‘When a defendant moves for summary judgment based on an affirmative defense, . . . the defendant, as movant, bears the burden of proving each essential element of that defense.’” (quoting Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996) (per curiam))).

2016See FDIC v. Lenk, 361 S.W.3d 602, 609 (Tex.2012) (“ ‘When a defendant moves for summary judgment based- on an affirmative defense, ... the defendant, as movant, bears the burden of'proving each essential element of that defense,’ ” (quoting Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 121 (Tex.1996) (per curiam))).

2023Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam) (A defendant seeking a traditional summary judgment must either disprove at least one element of each of the plaintiff’s causes of action or plead and conclusively establish each essential element of an affirmative defense.) A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence.

2015A "matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence." McCartney, M.D. v. May, M.D., 50 S.W.3d 599, 604 (Tex.App.-Amarillo 2001, no pet.); see also Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1965) (defendant "who conclusively establishes all of the elements of an affirmative defense is entitled to summary judgment").

2021Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997) 59 A copy of the AOC was attached to Visa’s counterpetition. 50 (“[S]ummary judgment for a defendant is proper only when the defendant negates at least one element of each of the plaintiff’s theories of recovery, Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970), or pleads and conclusively establishes each element of an affirmative defense.” (emphasis added)).

2015Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex.1997)). 7 Moreover, as an affirmative defense, the statute of repose is only available to parties that properly raise it in the trial court.

2021American Did Not Conclusively Establish that Fannin Was Estopped from Asserting its Conversion Claim “A defendant moving for summary judgment based on an affirmative defense has the burden to conclusively prove all elements of the affirmative defense.” In re V.M.T., No. 04-17- 00575-CV, 2018 WL 3861724 , at *5 (Tex. App.—San Antonio Aug. 15, 2018, pet. denied) (mem. op.) (citing Montgomery v. Kennedy, 669 S.W.2d 309 , 310–11 (Tex. 1984)).

2016Flood Control Dist., 176 S.W.3d 330, 335 (Tex. App.—Houston [1st Dist.] 2004, pet. dism’d) (citing Montgomery v. Kennedy, 669 S.W.2d 309 , 310–11 (Tex. 1984)) (stating that when a governmental entity raises the affirmative defense of governmental immunity in a summary judgment motion, it must establish the affirmative defense as a matter of law). 18 lawsuits for damages unless immunity has been waived by the Legislature.

2026“If the party opposing a summary judgment relies on an affirmative defense, he must come 15 forward with summary judgment evidence sufficient to raise an issue of fact on each element of the defense to avoid summary judgment.” Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984).

2026Usually, “[i]f the party opposing a summary judgment relies on an affirmative defense, [it] must come forward with summary[-]judgment evidence sufficient to raise an issue of fact on each element of the defense to avoid summary judgment.” Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Woodside v. Woodside, 154 S.W.3d 688 , 691–92 (Tex. App.—El Paso 2004, no pet.); Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 124 (Tex. App.—Houston [1st Dist.] 2002, pet. denied); see “Moore” Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934 , 936–37 (Tex. 1972).

2025“A defendant who conclusively negates a single essential element of a cause of action or conclusively establishes an affirmative defense is entitled to summary judgment on that claim.” Id. (citing Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010)). 8 B.

2024“A defendant who conclusively negates a single essential element of a cause of action or conclusively establishes an affirmative defense is entitled to summary judgment on that claim.” Id. (citing Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494 , 508–09 (Tex. 2010)).

2024Safety v. Johnson, No. 01-20-00397-CV, 2022 WL 3452264 , at *4 (Tex. App.—Houston [1st Dist.] Aug. 18, 2022, no pet.) (mem. op.); see also Riojas, 640 S.W.3d 537–38 (“Official immunity is an affirmative defense that ‘inures to all governmental employees who perform discretionary functions in good faith and within their authority.’”) (citing City of Lancaster v. Chambers, 883 S.W.2d 650 , TEX.

2023Telthorster, 92 S.W.3d at 461 ; City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994); see also Riojas, 2022 WL 495473 , at *3 (“Official immunity is an affirmative defense that inures all governmental employees who perform discretionary functions in good faith and within their authority.” (internal quotations omitted)).

2020Whether Steven was entitled to summary judgment on the defense of qualified privilege Qualified privilege is an affirmative defense, see Burbage v. Burbage, 447 S.W.3d 249, 254 (Tex. 2014), on which Steven had the burden to conclusively establish each element, see Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).

2015In his brief, the Attorney General recites the applicable summary judgment standard as follows: “A defendant seeking summary judgment must negate, as a matter of law, at least one element of each of the plaintiff’s theories of recovery, or plead and prove as a matter of law each element of an affirmative defense.” Appellee Br. 8 (citing Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995)).

2025It never disputes the summary judgment evidence offered by Resolute.6 Accordingly, because Stealth fails to make 5 See also Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999) (“The trial court may not grant summary judgment by default because the nonmovant did not respond to the summary judgment motion when the movant’s summary judgment proof is legally insufficient.”). 6 Offset is an affirmative defense on which a defendant generally bears the burden of proof.

2023Bank of Tex., N.A., 577 S.W.3d 336, 346 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (quoting Rhone- Poulenc, Inc. v. Steel, 997 S.W.2d 217 , 222–23 (Tex. 1999)). 5 “To defeat summary judgment by raising an affirmative defense, the nonmovant must do more than just plead the affirmative defense.” Lunsford Consulting Group, Inc. v. Crescent Real Estate Funding VIII, L.P., 77 S.W.3d 473, 475 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

2025Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). 4 In seven issues, Masterson asserts that the trial court erred by (1) granting summary judgment for BCHH on its claim for breach of a settlement agreement; (2) dismissing her claims against BCHH; (3) awarding attorney’s fees as damages to BCHH; (4) awarding BCHH relief not sought in its summary judgment motion; (5) dismissing her claims against appellee ARVM5; (6) awarding attorney’s fees to BCHH; and (7) overruling her motions to modify the judgment. 6 When a defendant moves for traditional summary judgment it must either: (1) disprov

2019“A trial court properly grants a defendant’s traditional motion for summary judgment ‘if the defendant disproves at least one element of each of the plaintiff’s claims or establishes all elements of an affirmative defense to each claim.’” Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 625 (Tex. 2018) (quoting American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997)), cert. denied, 139 S. Ct. 1216 (2019).

2000P. 166a(c); Nixon, 690 S.W.2d at 548 ; Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). 5 A defendant moving for summary judgment must either (1) disprove at least one element of the plaintiffs theory of recovery, or (2) plead and conclusively establish each essential element of an affirmative defense.

1994Thus, the defendant can prevail by conclusively establishing against the plaintiff at least one factual element of each theory pleaded by the plaintiff, Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970), or by conclusively establishing every factual element of an affirmative defense, Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972).

2015See Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008) (per curiam) (holding that a Appellee moving for summary judgment on an affirmative defense has burden to “conclusively establish” each element of its defense); Lam v. Phuong Nguyen, 335 S.W.3d 786, 789 (Tex. App.—Dallas 2011, pet. denied) (same).

2015See Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008) (per curiam) (holding that a Appellee moving for summary judgment on an affirmative defense has burden to “conclusively establish” each element of its defense); Lam v. Phuong Nguyen, 335 S.W.3d 786, 789 (Tex. App.—Dallas 2011, pet. denied) (same).

2025“A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense.” Gill, 688 S.W.3d at 868 (quoting Peat Marwick, 988 S.W.2d at 748 ).

2024“A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense.” Id.

2024For that reason, we conclude that a governmental employer bears the burden to assert and prove its employee’s official immunity, in a manner analogous to an affirmative defense, to preclude enforcement of the Act’s waiver of governmental immunity on that ground. 26 The City raised its governmental immunity via a traditional summary-judgment motion, attaching evidence to conclusively establish Corral’s official immunity and to affirmatively negate his personal liability under Texas law. 27 In this appeal, only the good-faith element by the party asserting it.”); Clark, 38 S.W.3d at 580 (“Becaus

2023Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000); Harris Cnty., 2014 WL 4219472 , at *3; see also Telthorster v. Tennell, 92 S.W.3d 457 , 460–61 (Tex. 2002) (“Official immunity is an affirmative defense that shields governmental employees from personal liability so that they are encouraged to vigorously perform their official duties.”).

2026Standard of review “In the factual-sufficiency review of a rejected affirmative defense, an appellate court views the entirety of the evidence in a neutral light, but it may not usurp the function of the jury by substituting its judgment in place of the jury’s assessment of the weight and credibility of the witnesses’ testimony.” Matlock v. State, 392 S.W.3d 662, 671 (Tex. Crim.

2026If the record reveals evidence supporting the appellant’s affirmative defense but that supporting evidence was “subject to a credibility assessment and was evidence that a reasonable jury was entitled to disbelieve, we will not consider that evidence in our matter-of-law assessment.” Id. at 670 .

2025“An affirmative defense does not seek to defend by merely denying the plaintiff’s claims, but rather seeks to establish an independent reason why the plaintiff should not recover.” Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 212 (Tex. 1996).

2025An affirmative defense only “seeks to ‘establish an independent reason why the plaintiff should not recover.’” Dixie Carpet Installations, Inc. v. Residences at Riverdale, LP, 599 S.W.3d 618 , 631 (Tex. App.—Dallas 2020, no pet.) (quoting Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 212 (Tex. 1996)).

2021Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997) 59 A copy of the AOC was attached to Visa’s counterpetition. 50 (“[S]ummary judgment for a defendant is proper only when the defendant negates at least one element of each of the plaintiff’s theories of recovery, Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970), or pleads and conclusively establishes each element of an affirmative defense.” (emphasis added)).

2004Gibbs v. General Motors Corp ., 450 S.W.2d 827, 828 (Tex. 1970), or conclusively establishes each element of an affirmative defense.

1995"A defendant who conclusively negates at least one of the essential elements of each of the plaintiff's causes of action or who conclusively establishes all of the elements of an affirmative defense is entitled to summary judgment." Cathey v. Booth, 900 S.W.2d 339 (Tex.1995) (per curiam); Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993); Montgomery v. Kennedy, 669 S.W.2d 309, 310-311 (Tex.1984).

1995“A defendant who conclusively negates at least one of the essential elements of each of the plaintiffs causes of action or who conclusively establishes all of the elements of an affirmative defense is entitled to summary judgment.” Cathey v. Booth, 900 S.W.2d 339 (Tex.1995) (per curiam); Wor nick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993); Montgomery v. Kennedy, 669 S.W.2d 309, 310-311 (Tex.1984).

2026P. 67; cf. Godoy v. Wells Fargo Bank, N.A., 575 S.W.3d 531, 537 (Tex. 2019) (plaintiff could not complain for first time on appeal that defendant failed to plead an affirmative defense when defendant relied on defense in its summary judgment motion without objection by plaintiff); Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494 (Tex. 1991) (unpleaded affirmative defense may serve as basis for summary judgment when it is raised in motion, and opposing party does not object to lack of rule 94 pleading).

2025See Godoy v. Wells Fargo Bank, N.A., 575 S.W.3d 531, 537 (Tex. 2019) (holding that plaintiff could not complain for first time on appeal that defendant failed to plead an affirmative defense as required by Rule 94 where defendant relied on the defense in its summary judgment motion without objection by the plaintiff); Roark, 813 S.W.2d at 495 (recognizing that a “party who allows an issue to be tried by consent and who fails to raise the lack 14 As set forth above, Miranda objected to the unsworn and “unreliable” nature of Zenaida’s affidavit that the Diazes filed in response to his motion for

2020Factual sufficiency of evidence of sudden passion Under Meraz and Matlock, factually insufficient evidence supports an adverse finding on an affirmative defense, such as sudden passion, if, when considering all of the evidence, the adverse finding was “so ‘against the great weight and preponderance’ of that evidence [as] to be manifestly unjust.” Matlock, 392 S.W.3d at 671 (quoting Meraz, 785 S.W.2d at 154–55).

2019A. Standard of Review “We review the factual sufficiency of evidence supporting an affirmative defense to determine whether, after considering all the evidence relevant to the issue, the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust.” Aschbacher v. State, 61 S.W.3d 532, 535 (Tex. App.—San Antonio 2001, pet. ref’d) (citing Meraz v. State, 785 S.W.2d 146, 155 (Tex. Crim.

2015(Trail Enters, Inc. v. 19 City of Houston, 957 S.W. 2d 265, 631 (Tex App - Houston 1997.) A defendant moving for a motion to dismiss on the affirmative defense of limitations must conclusively prove the elements of the defense (Shaw v. Moss 67 S.W. 3d 836, 842 (Tex. 2001); also KPMG Peat Marwick v. Harrison County Hous.

2013See Shah, 67 S.W.3d at 842 (providing that a defendant moving for summary judgment on an affirmative defense must prove conclusively the defense‘s elements).

2021Accordingly, it belongs in this category. 13 recognized that fraudulent concealment—“which is based upon the doctrine of equitable estoppel”—can “estop[] a defendant from relying on the statute of limitations as an affirmative defense to plaintiff’s claim.” Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex. 1983).12 When “the defense of the statute of limitations is established by the record as a matter of law, and [plaintiffs] are relying on fraudulent concealment to avoid that defense,” it is “their burden . . . to come forward with proof raising an issue of fact with respect to fraudulent conceal

2015Unlike the discovery rule exception, deferral in the context of fraud or concealment resembles equitable estoppel. "[F]raudulent concealment estops the defendant from relying on the statute of limitations as an affirmative defense to [the] plaintiff's claim." Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex.1983).

2025See id.; Telthorster v. Tennell, 92 S.W.3d 457, 460-61 (Tex. 2002) ("Official immunity is an affirmative defense that shields governmental employees from personal liability so that they are encouraged to vigorously perform their official duties.") (citing Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex. 1994)).

2025See id.; Telthorster v. Tennell, 92 S.W.3d 457 , 460- 61 (Tex. 2002) ("Official immunity is an affirmative defense that shields governmental employees from personal liability so that they are encouraged to vigorously perform their official duties.") (citing Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex. 1994)).

2024“Immunity from liability is an affirmative defense, while immunity from suit deprives a court of subject matter jurisdiction.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004).

2023See Miranda, 133 S.W.3d at 224 (“Immunity from liability is an affirmative defense, while immunity from suit deprives a court of subject[-]matter jurisdiction.”). 17 suit, such as a declaratory judgment suit, if any [AISD] employees, acting within their scope of employment duties, engaged in discriminatory conduct towards Petitioners’ minor child; such as if any [AISD] employees, acting within their scope of employment duties, infringed upon Petitioners’ minor child’s property right to a safe educational environment; such as if any [AISD] students engaged in threats of rape/assault against Pet

2021Accordingly, it belongs in this category. 13 recognized that fraudulent concealment—“which is based upon the doctrine of equitable estoppel”—can “estop[] a defendant from relying on the statute of limitations as an affirmative defense to plaintiff’s claim.” Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex. 1983).12 When “the defense of the statute of limitations is established by the record as a matter of law, and [plaintiffs] are relying on fraudulent concealment to avoid that defense,” it is “their burden . . . to come forward with proof raising an issue of fact with respect to fraudulent conceal

2017“Once a defendant has conclusively established the affirmative defense of limitations, the burden rests with the plaintiff to come forth with proof that raises a fact issue regarding the elements of fraudulent concealment.” Casey v. Methodist Hosp., 907 S.W.2d 898, 903 (Tex. App.—Houston [1st Dist.] 1995, no writ) (citing Nichols v. Smith, 507 S.W.2d 518, 521 (Tex. 1974)).

2025The Miranda Court recognized that immunity from liability and immunity from suit are separate concepts—immunity from liability is an affirmative defense that does not affect jurisdiction, “while immunity from suit deprives a court of subject matter jurisdiction.” Id. at 224 (citing Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).

2024P. 94. “[I]mmunity from liability is an affirmative defense that cannot be raised by a plea to the jurisdiction.” State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009) (citing Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam) (“Immunity from liability does not affect a court’s jurisdiction to hear a case.”)).

2023See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989) (making the issue of legal justification an affirmative defense).

2015Factual Sufficiency In reviewing the factual sufficiency of the jury’s rejection of an affirmative defense, “an appellate court views the entirety of the evidence in a neutral light, but it may not usurp the function of the jury by substituting its judgment in place of the jury’s assessment of the weight and credibility of the witnesses’ testimony.” Id. at 671 (citing Meraz v. State, 785 S.W.2d 146, 154 (Tex. Crim.