Supplemental Memorandum Opinion on Denial of Rehearing filed October
30, 2014.




                                    In The

                   Fourteenth Court of Appeals

                             NO. 14-13-00663-CV

                 JEFFERSON COUNTY, TEXAS, Appellant
                                      V.

                          DONNA DAVIS, Appellee

                   On Appeal from the 60th District Court
                          Jefferson County, Texas
                      Trial Court Cause No. B-182,252

SUPPLEMENTAL  MEMORANDUM  OPINION
     ON DENIAL  OF REHEARING


      Although we deny the parties’ respective motions for rehearing, we issue
this supplemental memorandum opinion to briefly address a jurisdictional
argument raised by the County.

      In its motion for rehearing, the County attempts to challenge damage
findings other than the assessment of damages for future mental anguish. Because
future mental anguish was the only damage finding that was even arguably
challenged in the County’s brief, its challenge to the other damage findings are
waived. See Cajun Constructors, Inc. v. Velasco Drainage Dist., 380 S.W.3d 819,
821 n.1 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (sub. op.); Harris
County v. Nagel, 349 S.W.3d 769, 790 (Tex. App.—Houston [14th Dist.] 2011,
pet. denied) (sub. op.).

      The County contends, however, that if the award of front pay constitutes
compensable damages, then that award is subject to a $300,000 damages cap. The
County further asserts that “the front pay issue implicates subject matter
jurisdiction,” and suggests that we properly can consider its application whenever
the issue is raised. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,
443–44 (Tex. 1993) (“Subject matter jurisdiction is never presumed and cannot be
waived.”).

      The County is mistaken in asserting that we can consider this argument. The
damages cap concerns immunity from liability, not immunity from suit; thus,
contrary to the County’s argument, a damages cap does not affect subject-matter
jurisdiction. It instead is an affirmative defense that is waived if not pleaded. See
Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam); Tex.
Comm’n on Human Rights v. Morrison, 346 S.W.3d 838, 850 (Tex. App.—Austin
2011), rev’d on other grounds, 381 S.W.3d 533 (Tex. 2012) (per curiam); O’Dell
v. Wright, 320 S.W.3d 505, 515–16 (Tex. App.—Fort Worth 2010, pet. denied);
Shoreline, Inc. v. Hisel, 115 S.W.3d 21, 25 (Tex. App.—Corpus Christi 2003, pet.
denied); see also Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896–97,
904 (Tex. 2000) (determining that a damages cap was adequately raised in
plaintiff’s pleading and referring to such a “liability limitation” as an affirmative
defense).

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      Because the damages cap was neither pleaded nor argued before now, the
arguments concerning its application are waived.




                                      /s/       Tracy Christopher
                                                Justice


Panel consists of Justices Christopher, Jamison, and McCally.




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