Robert Gray Wilkerson v. Anil K. Sinha D/B/A Sharpstown Medical Clinic

• Court: Court of Appeals of Texas
• Decided: October 2, 2002
• Docket: 10-01-00026-CV
• Status: Published

Opinion

Willie Thornton v. State of Texas

IN THE

TENTH COURT OF APPEALS

No. 10-01-026-CV

     ROBERT GRAY WILKERSON,

                                                                         Appellant

     v.

     ANIL K. SINHA, D/B/A SHARPSTOWN

     MEDICAL CLINIC,

                                                                         Appellee

From the 61st District Court

Harris County, Texas

Trial Court # 99-10189

O P I N I O N

      This is an appeal from a monetary judgment entered in a breach of contract case. Following a trial to the bench appellant Robert Gray Wilkerson [hereinafter“Wilkerson”] was ordered to pay Anil K. Sinha, d/b/a Sharpstown Medical Clinic [hereinafter “The Clinic”], $90,000 in damages and $5,000 in attorneys fees.

      The Clinic sued for breach of contract, alleging that Wilkerson, a salaried employee of The Clinic, improperly caused certain payments for medical treatment from the National Heritage Insurance Company to be sent to him, rather than The Clinic. The trial court ruled in favor of The Clinic after determining that Wilkerson did breach the contract. Wilkerson presents one issue on appeal: Can the failure to perform an illegal act constitute a breach of contract? We will affirm because the issue presented on appeal was waived in the trial court.

      In response to The Clinic’s original petition, Wilkerson filed an answer containing a general denial. Wilkerson did not contend in his answer that the contract The Clinic sued on was illegal. The first time the defense of avoidance due to illegality was raised at trial occurred during closing argument when Wilkerson’s counsel stated that if the contract required that The Clinic “keep all of [the payments] except $8,000 a month, that’s an illegal agreement. You can’t split medical fees that way.” In response, The Clinic’s trial counsel stated:

This is the first I have heard of today that we’re dealing with an illegal contract. In fact, I have seen no – I have seen absolutely no authority for the proposition, legal authority or otherwise that this contract was illegal. It was not pled as an affirmative defense and should not be even considered by the Court in its deliberations.

It is well-settled that affirmative defenses must be pled. See Tex. R. Civ. P. 94. Illegality is an affirmative defense. Id. Where an affirmative defense is not pled or tried by consent, it is waived. See Tacon Mechanical Contractors, Inc. v. Grant Sheet Metal, Inc., 889 S.W.2d 666, 671 (Tex. App.—Houston [14th Dist.] 1994, writ denied); see also Espinosa v. Victoria Bank & Trust Co., 572 S.W.2d 816, 827 (Tex. Civ. App.—Corpus Christi 1978, writ ref’d n.r.e.). Here, the affirmative defense that the contract was illegal, was not pled nor tried by consent. Therefore, issue one, which challenges the judgment on the ground that the contract sued on was illegal, was waived.

      Wilkerson’s issue is overruled and the trial court’s judgment is affirmed.

DAVID L. RICHARDS

                                                                   Justice

Before Justice Vance,

      Justice Gray, and

      Justice Richards (Sitting by Assignment)

Affirmed

Opinion delivered and filed October 2, 2002

Do not publish

[CV06]