For an invitee to establish the liability of a premises owner, he must prove: "(1) a condition of the premises created an unreasonable risk of harm to the invitee; (2) the owner knew or reasonably should have known of the condition; (3) the owner failed to exercise ordinary care to protect the invitee from danger; and (4) the owner's failure was a proximate cause of injury to the invitee." State Dep't of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992); see also Henkel v. Norman, 441 S.W.3d 249, 251-52 (Tex. 2014); Sugar Land Props., Inc. v. Becnel, 26 S.W.3d 113, 118-19 (Tex. App.—Houston [1st Dist.] 2000, no pet.).
As a question of law for the court, we review the interpretation of a statute de novo. See Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 437 (Tex. 1997); Sugar Land Props. Inc. v. Becnel, 26 S.W.3d 113, 119 (Tex.App.-Houston [1st Dist.] 2000, no pet.); Gordon v. Western Steel Co., 950 S.W.2d 743, 746 (Tex.App.-Corpus Christi 1997, pet. denied). 2. Statutory Construction
Payment is an affirmative defense and must be affirmatively pled. Tex.R.Civ.P. 95; Sugar Land Prop., Inc. v. Becnel, 26 S.W.3d 113, 121 (Tex. App.-Houston [1st Dist.] 2000, no pet.). If a party wishes to prove payment, he must affirmatively plead payment and file an accounting of the payments.
The claimant's recovery from the jointly and severally liable defendant will be the amount remaining after these reductions. SeeDalworth Restoration, Inc. v. Rife–Marshall, 433 S.W.3d 773, 787 (Tex.App.–Fort Worth 2014, pet. dism'd w.o.j.) (finding defendant wholly responsible for claimant's damages does not preclude application of settlement credit); Taveau v. Brenden, 174 S.W.3d 873, 881–82 (Tex.App.–Eastland 2005, pet. denied) (jointly and severally liable defendant liable for amount of damages after reduction for settlements); Sugar Land Props., Inc. v. Becnel, 26 S.W.3d 113, 119–21 (Tex.App.–Houston [1st Dist.] 2000, no pet.) (same). Consider two fact scenarios.
Therefore, we review the district court's determination of the settlement credit de novo. See Galle, Inc. v. Pool, 262 S.W.3d 564, 571 n.3 (Tex. App.—Austin 2008, pet. denied); Sugar Land Props., Inc. v. Becnel, 26 S.W.3d 113, 119 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (applying de novo standard where resolution of issue required interpretation of two statutory provisions). Wein raises factual issues concerning his allegations that the settlement agreement between Sherman and Richards allocating amounts to actual and punitive damages was a sham and that there were no actual damages to support an award of punitive damages.
A defendant must plead an affirmative defense in its answer, or it will waive the defense. See Bush, 122 S.W.3d at 862; Sugar Land Props., Inc. v. Becnel, 26 S.W.3d 113, 121 (Tex. App.-Houston [1st Dist.] 2000, no pet.) (holding that under rule 95, the defendant waived its affirmative defense to reduce a verdict because of payment of medical expenses because it did not plead payment in its answer). Appellants' combined two-page answer at trial asserted only a general denial; it did not assert any affirmative defenses.
But the Rule 95 cases cited by Lofts concern alleged payments made by the defendant to the plaintiff, not by third parties such as insurers. See, e.g., Sugar Land Properties, Inc. v. Becnel, 26 S.W.3d 113, 121 (Tex.App.-Houston [1st Dist.] 2000, no pet.). We thus reject Lofts' application of Rule 95 to Woodworks' pleading of settlement payments, credits, and offsets.
But the Rule 95 cases cited by Lofts concern alleged payments made by the defendant to the plaintiff, not by third parties such as insurers. See, e.g., Sugar Land Properties, Inc. v. Becnel, 26 S.W.3d 113, 121 (Tex.App.-Houston [1st Dist.] 2000, no pet.). We thus reject Lofts' application of Rule 95 to Woodworks' pleading of settlement payments, credits, and offsets.
But the Rule 95 cases cited by Lofts concern alleged payments made by the defendant to the plaintiff, not by third parties such as insurers. See, e.g., Sugar Land Properties, Inc. v. Becnel, 26 S.W.3d 113, 121 (Tex.App.-Houston [1st Dist.] 2000, no pet.). Also, by its terms, Rule 95 implies that it applies only to a payment made by or on behalf of a defendant.
Payment is an affirmative defense and must be affirmatively pleaded. See Tex. R. Civ. P. 94; Sugar Land Prop., Inc. v. Becnel, 26 S.W.3d 113, 121 (Tex.App.-Houston [1st Dist.] 2000, no pet.). If a party wishes to prove payment, he must affirmatively plead payment and