from the charge, without request or objection, and there is factually sufficient evidence to support a finding thereon, the trial court, at the request of either party, may after notice and hearing and at any time before the judgment is rendered, make and file written findings on such omitted element or elements in support of the judgment. If no such written findings are made, such omitted element or elements shall be deemed found by the court in such manner as to support the judgment. Tex.R. Civ. P. 279. Boeran contends the notice requirement of section 2.607(e)(1) is an affirmative defense that was waived because it was not conclusively established at trial. See id., Tex.R. Civ. P. 279; Integrated Title Data Systems v. Dulaney, 800 S.W.2d 336, 342 (Tex.App.-El Paso 1990, no writ) (<HOLDING>). We disagree with the characterization of the
holding notice requirement of 2607 is affirmative defense holding that unpleaded affirmative defense was properly considered by the district court where plaintiff had notice of the defense and an opportunity to respond holding that the running of the statute of limitations is an affirmative defense holding that laches is an affirmative defense holding that fair use is an affirmative defense