Rule 55.08 Affirmative Defenses

• Library: Civil Procedure (2007 Ed. + 2013 Supp)

VIII. Rule 55.08 Affirmative Defenses

A. Text of Rule

In pleading to a preceding pleading, a party shall set forth all applicable affirmative defenses and avoidances, including but not limited to accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, comparative fault, state of the art as provided by statute, seller in the stream of commerce as provided by statute, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, truth in defamation, waiver, and any other matter constituting an avoidance or affirmative defense. A pleading that sets forth an affirmative defense or avoidance shall contain a short and plain statement of the facts showing that the pleader is entitled to the defense or avoidance. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court may treat the pleadings as if there had been a proper designation.

B. Historical Note

Rule 55.08 was amended on June 1, 1993, effective January 1, 1994.

C. Cross-References

This Rule is the same as § 509.090, RSMo 2000, and is similar to Federal Rule of Civil Procedure 8(c).

D. Time Constraints

None.

E. Comment

The Rule requires that a pleading setting forth an affirmative defense or avoidance "shall contain a short and plain statement of the facts showing that the pleader is entitled to the defense or avoidance."

Under Missouri's pleading rules, an affirmative defense is a matter that is asserted to avoid liability, even if the facts pleaded in the petition are proved. Boone Nat'l Sav. & Loan Ass'n, F.A. v. Crouch, 47 S.W.3d 371, 375 (Mo. banc 2001). The purpose in requiring the pleading of an affirmative defense is to give the plaintiff notice of the defense so that the plaintiff can adequately prepare for that issue at trial. Roth v. Roth, 176 S.W.3d 735, 738 (Mo. App. E.D. 2005).

Under Rule 55.08, when a party has mistakenly designated a defense as a counterclaim or vice versa, the court may treat the pleadings as if there had been a proper designation. Brizendine v. Conrad, 71 S.W.3d 587, 593 (Mo. banc 2002). Similarly, in Boone National, 47 S.W.3d 371, the Court held that, under Missouri law, the doctrine of recoupment, whether called a counterclaim or an affirmative defense, is solely a matter of defense. Id. at 374.

Under the Rule, an affirmative defense to a counterclaim, like an affirmative defense to a claim, "must be pled in the reply to the counterclaim, or is waived, unless the issue is tried by implied or express consent of the parties in accordance with Rule 55.33(b)." Gash v. Lafayette County, Nos. WD 65589 and WD 65605, 2007 WL 324589, at *16 (Mo. App. W.D. Feb. 6, 2007). In Gash, the court held that the catch-all provision of Rule 55.08 required a defendant to plead any exemptions to a statutory claim. Id. Counsel should note that Gash was ordered transferred to the Supreme Court of Missouri on May 29, 2007.

In ITT Commercial Finance v. Mid-America Marine Supply Corp., 854 S.W.2d 371 (Mo. banc 1993), the Court held that a defendant had failed to allege facts in support of various affirmative defenses pleaded in its answer. The Court noted that pleading facts in support of defenses has been required in Missouri since the adoption of the 1849 Civil Code. Id. at 383. For example, a party pleading comparative fault should always include a statement of those facts showing how the plaintiff was at fault. The proper remedy for an answer deficient in this regard is a motion for more definite statement by the plaintiff.

It is necessary to set out the factual basis for the affirmative defense "in the same manner as is required for the pleading of claims under the Missouri Rules of Civil Procedure." Curnutt v. Scott Melvin Transp., Inc., 903 S.W.2d 184, 192 (Mo. App. W.D. 1995). For example, in State ex rel. Harvey v. Wells, 955 S.W.2d 546 (Mo. banc 1997), the Court held that Rule 55.08 requires a defendant who pleads contributory negligence as an affirmative defense to allege specific facts showing entitlement to that defense. The Court explained, "The goal of fact pleading is the quick, efficient, and fair resolution of disputes." Wells, 955 S.W.2d at 547. Failure to comply with this Rule...