Statutory Cap on Exemplary Damages

In Zorrilla v. Aypco Construction (Cause No. 14-0067), the Texas Supreme Court decided whether the statutory cap on exemplary damages is waived if not pleaded as an affirmative defense under Rule 94 of the Texas Rules of Civil Procedure.  In this residential construction case the  appellate court had affirmed an exemplary damages award in excess of the statutory cap set forth in Section 41.008 of the Texas Civil Practice and Remedies Code because the defendant did not assert the cap until her motion for new trial.  The Texas Supreme Court held that the exemplary damages cap is not a “matter constituting avoidance or affirmative defense” and need not be affirmatively pleaded because it applies automatically when invoked and does not require proof of additional facts.  In this case, the defendant did not plead the statutory cap but she timely asserted the cap in her motion for new trial.  Therefore, the court of appeals' judgment was reversed in part and exemplary damages were capped at $200,000.

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