Rule 55.10 Pleading in Alternative—Consistency

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

X. Rule 55.10 Pleading in Alternative—Consistency

A. Text of Rule

A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal or equitable grounds.

B. Historical Note

None.

C. Cross-References

This Rule is the same as § 509.110, RSMo 2000. Cf. Fed. R. Civ. P. 8(a) and 8(e)(2).

D. Time Constraints

None.

E. Comment

1. Generally

Rule 55.10 allows great freedom in drafting pleadings. At the beginning of a lawsuit, counsel may not know exactly what theory of recovery the evidence will support best. The Rule thus permits a pleading to contain alternative claims or hypothetical claims without requiring that the claims be consistent. For example, an action on an express contract and an implied contract may be pleaded in the alternative, without either being stricken for inconsistency. Norman Schuman Interiors, Inc. v. Sacks, 479 S.W.2d 200, 203 (Mo. App. E.D. 1972). The Rule also permits a party to state as many separate claims or defenses as it has. The purpose of the Rule is to "enable parties[, as far as practicable,] 'to submit all their controversies in a single action and avoid a multiplicity of suits.'" Becker v. St. Charles Boat & Motor, Inc., 131 S.W.3d 868, 871 (Mo. App. E.D. 2004) (quoting Kaiser Aluminum & Chem. Sales, Inc. v. Lingle Refrigeration Co., 351 S.W.2d 128, 131 (Mo. App. W.D. 1961)); see also Rule 55.06. Accordingly, a party may ask for the equitable remedy of specific performance or, in the alternative, seek damages for breach of contract. Dunning v. Alfred H. Mayer Co., 483 S.W.2d 423 (Mo. App. E.D. 1972). In a cross-claim, a party could seek contribution for the plaintiff's claim against it and also for its own damages. Of course, the sufficiency of one alternate claim is not affected by the insufficiency of another. Rebel v. Big Tarkio Drainage Dist. of Holt City, 602 S.W.2d 787 (Mo. App. W.D. 1980).

The Rule, in addition to enabling parties to submit all of their controversies in a single action, may require them to do so if the claims arise out of the same transaction. A plaintiff may not litigate an action, receive an adverse judgment, and then file a second action based on additional claims that could have been brought in the first one. Becker, 131 S.W.3d 868.

2. Consistency

A party may plead inconsistent claims or defenses. In a negligence action, the plaintiff may plead both specific negligence and res ipsa loquitur. City of Kennett v. Akers, 564 S.W.2d 41, 48 (Mo. banc 1978), overruling earlier cases. A plaintiff might...