Goswami v. Metropolitan Sav. & Loan Ass’n, 751 S.W.2d 487, 490 (Tex. 1988)). Further, as we have already determined that the trial court -properly struck Duchene’s late-filed response, Duchene cannot rely on that evidence in his attempt to create a question of fact at this time. Second, we note that all three of Duchene’s arguments, i.e., that Hernandez failed to mitigate his damages, that Du-chene made payment to Hernandez, and that there was a possible accord and satisfaction,- center on affirmative defenses that must be affirmatively pled by a defendant. See Tex, R. Crv. P. 94 (listing “accord and satisfaction” and “payment” as affirmative defenses that must be pled by a defendant); see also In Matter of Estate of Downing, 461 S.W.3d 231, 242 n.5 (Tex. App.—El Paso 2015, no pet.) (<HOLDING>). A defendant must expressly raise affirmative
holding affirmative defense of mitigation did not preclude class certification holding that mitigation of damages is an affirmative defense that must be pleaded holding that sudden emergency is an affirmative defense which must be specifically plead holding that to avoid an affirmative defense  a plaintiff must plead specifically matters of affirmative avoidance pursuant to rule 5508 recognizing that mitigation of damages is an affirmative defense a party must plead and prove