SCOTX – Zorrilla v. Aypco Construction, et al

No. 14-0067; J. Guzman

The paramount issue in this appeal was whether the statutory cap on exemplary damages is waived if it is not pleaded as an affirmative defense or avoidance. The intermediate courts of appeal had split on the issue. The court decided that the cap applies as a matter of law and therefore it does not have to be pleaded as an affirmative defense.

The court's analysis began with the text of Texas Civil Rule of Procedure 94. Observing that rule 94 doesn't explicitly require that a damages cap be affirmatively pleaded, it considered the residual clause—"any other matter constituting an avoidance or affirmative defense." Deciding that the damages cap doesn't bear the characteristics of an affirmative defense or avoidance; that is, it doesn't require proof of any additional facts to establish its applicability, the court decided that the cap applies automatically to claims not expressly excepted in Texas Civil Practice & Remedies Code § 41.008, et seq.