as an argument that her parental rights would not have been terminated if the DPRS had provided her with services designed to meet her special needs. The DPRS asserts that McKinney’s contention is an affirmative defense, which she waived by raising for the first time in her motion for new trial. We agree. Texas Rule of Civil Procedure 94 enumerates specific affirmative defenses that are waived if not pleaded, such as accord and satisfaction, arbitration and award, fraud, illegality, statute of frauds, statute of limitations, “and any other matter constituting an avoidance or affirmative defense.” Tex.R. Civ. P. 94. An affirmative defense seeks to establish an independent reason that the plaintiff should not recover. Gorman v. Life Ins. Co. of N. Am., 811 S.W.2d 542, 546 (Tex.1991) (<HOLDING>). An affirmative defense is one of avoidance,
recognizing that federal preemption is affirmative defense as to which defendant has burden of proof holding that erisa preemption is an affirmative defense where erisas preemptive effect would result only in a change of the applicable law and would not subject the claim to exclusive federal jurisdiction holding that the exclusivity of workers compensation is an affirmative statutory defense which must be timely raised or it is waived holding that when erisas preemptive effect results in change of applicable law rather than choice of forum preemption is an affirmative defense that must be set forth in defendants answer or it is waived holding that erisas preemption of state contract claims in a benefitsdue action is an affirmative defense subject to waiver