Mirta Zorrilla v. Aypco Construction II, LLC and Jose Luis Munoz

In this residential construction dispute, the paramount issue on appeal is whether the statutory cap on exemplary damages is waived if not pleaded as an affirmative defense or avoidance. See Tex. R. Civ. P. 94 (requiring pleading and proof of affirmative defenses and avoidances); see also Tex. Crv. Peac. & Rem. Code § 41.008(b) (limiting exemplary damages to the greater of $200,000 or two times economic damages plus noneconomic damages not exceeding $750,000). Our courts of appeals are split on the issue, and in this case, the lower court affirmed an exemplary damages award in excess of the…