The Dallas Court of Appeals has held that "an allegation that a provision in a contract is void, unenforceable, or unconscionable is a matter in the nature of an avoidance and must be pleaded."
In Parks v. Developers Surety & Indemnity Co., Developers Surety and Indemnity Company sued Robert Parks, Jo Ann Parks, and Brinkman Construction on a written indemnity agreement, which had been executed in connection with a surety bond Developers issued on a construction project for the City of Fort Worth. Developers filed a motion for summary judgment asserting that it conclusively established that the defendants were jointly and severally liable for $371,245.81. The trial court granted Developers’ motion for summary judgment and the defendants appealed.
On appeal, the appellants (formerly defendants) argued for the first time that a provision in the indemnity agreement providing that evidence of an itemized statement of claims or loss paid is prima facie evidence, was unconscionable and void. The court of appeals first holds that the trial court was entitled to rely upon the contract provision because it was part of the summary judgment record and it did not have to be specifically brought to the trial court’s attention. The court also holds that the appellants’ allegation that the contract provision was void, unenforceable, or unconsctionable is a matter in the nature of avoidance and must be affirmatively pleaded under Civil Procedure Rule 94. Because it was not raised in response to the motion for summary judgment, the court holds that it could not be considered. The court’s opinion may be found here.
This result regarding the affirmative defense is probably correct, however, I question the citation to Shoemake v. Fogel, Ltd., which is an old case of mine. I didn’t recall the particular ruling referenced by the Dallas Court of Appeals opinion, so I went back to look at it and refresh my memory. Shoemake involved a failure to plead parental immunity as an affirmative defense and the Supreme Court actually holds that a failure to affirmatively plead parental immunity does not waive the defense. In fact, the opinion expressly states "Rule 94’s requirement of pleading is not absolute." To the extent the opinion is applicable, it probably supports the opposite conclusion from the one reached in the Parks opinion.