JUDGMENT FOR HOME OWNERS' ASSOCIATION NOT VOID Bankruptcy Discharge Defense Was Not Presented to the Trial Court and WasThus Waived

In this pro-se appeal from a summary judgment in favor of a home owners' association, the Fourteenth Court of Appeals, in a panel opinion penned by a former justice sitting as a visiting judge, holds that the collection of delinquent assessments was not barred by homeowner's bankruptcy discharge. The argument was not properly presented to the trial court. As an affirmative defense, the bankruptcy discharge defense must be properly pleaded, and must be asserted in a proper response when the Plaintiff moves for summary judgment on its claim. The defendant/appellant in this case did neither. It was too late to raise the issue in a motion for new trial.

Relevant part of the opinion by Senior Justice Price follows:

Discharge in Bankruptcy

In the final issue presented on appeal, [the homeowner/appellant] claims the trial court's judgment is void because the debt he owed to Westgate was discharged in bankruptcy. However, discharge in bankruptcy is an affirmative defense that must be pleaded. See Tex. R. Civ. P. 94; Sparks v. Booth, 232 S.W.3d 853, 871 (Tex. App.- Dallas 2007, no pet.).

An affirmative defense that is not pleaded or proved, and on which findings are not obtained,
is waived and cannot be preserved by raising the affirmative defense for the first time in a motion for new trial. Hamm v. Millennium Income Fund, L.L.C., 178 S.W.3d 256, 268 (Tex. App.- Houston [1st Dist.] 2005, pet. denied).

Here, discharge in bankruptcy was not raised or even hinted-at by the pleadings. Instead, the affirmative defense was not presented to the trial court until Monk's motion for new trial, which did not preserve the issue for our review. See id. Thus, we overrule [the homeowner's] final issue.

Monk v. Westgate Homeowners' Association, Inc. (Tex.App.- Houston [14th Dist.] Aug. 11, 2009)(Price) (motion for new trial and preservation of error for appellate review, discharge in bankruptcy as affirmative defense required to be pleaded)
AFFIRMED: Opinion by Senior Justice Frank C. Price
Before Price, Justices Brock Yates and Guzman
14-07-00886-CV Joseph Monk v. Westgate Homeowners' Association, Inc.
Appeal from 270th District Court of Harris County
Trial Court Judge: Brent Gamble