Plead It or Concede It: Court May Not Raise Affirmative Defense Sua Sponte
ABSTRACT: Missouri's Western District Court of Appeals confirms that if a party fails to properly plead an affirmative defense, the trial court has no power to apply the defense on its own initiative.
The Missouri Court of Appeals for the Western District recently confirmed the long-standing principle that a party’s failure to plead even a valid affirmative defense constitutes a waiver of that defense. Missouri trial courts have no authority to step in and remedy a defendant’s pleading error by applying such a defense sua sponte (“of its own accord”).
The case of Templeton v. Cambiano involved a series of three promissory notes issued between 2003 and 2005. The plaintiff claimed that the defendant had executed the notes in order to borrow nearly $50,000 but had then failed to make a single payment. She filed suit for the principal, plus over $75,000 in interest and late fees, in December 2015, which was just shy of ten years after the final note had been signed. The defendant filed a responsive pleading that generally denied liability for the debt, but his answer did not separately allege that the plaintiff had failed to mitigate her damages by allowing interest and late fees to accumulate for almost a decade before filing suit.
After a bench trial, the trial judge entered judgment in favor of the plaintiff, but excluded from the award all of the claimed interest and late fees, on the grounds that the plaintiff had “failed to mitigate these damages by the delay in prosecuting this action for ten years.” In her sole point on appeal, the plaintiff argued that the trial court had overstepped its authority by applying the affirmative defense of failure to mitigate damages, which the defendant had failed to plead.
The Western District Court of Appeals reversed the trial court’s judgment and remanded the case with orders to amend the judgment to include the $75,927.12 claimed as interest and late fees. This holding was based on long-standing Missouri precedent that an affirmative defense is waived if it is not either: (1) properly pleaded, according to Missouri’s fact-pleading standard, or (2) tried by the parties’ express or implied consent. Failure to mitigate damages is an affirmative defense. Seeing no evidence in the record that the issue of failure to mitigate damages had been tried by the parties’ consent, the appellate court ruled that the defendant had waived the defense when he omitted it from his answer. Regardless of how meritorious the defense might have been, the appellate court concluded, “the circuit court could not breath life back into this extinguished claim sua sponte.”
The defendant also argued that even if the trial court had relied on “a wrong or insufficient reason,” its judgment should still be affirmed because the equitable doctrine of laches would have supported the same result. Laches is an equitable doctrine that precludes claims asserted after an unreasonable delay, which has prejudiced the opposing party. The Court of Appeals was wholly unconvinced, observing that here too, Defendant had failed to raise laches as an affirmative defense. (Laches is specifically listed in Missouri Rule 55.08 as one of the affirmative defenses that must be pleaded to avoid waiver.) For good measure, the Court also concluded that in any event, the doctrine of laches would not apply even had it been properly pleaded.
The significance of this opinion for defendants in Missouri state court is twofold. First, the case stands as a potent reminder of the importance of carefully pleading all legal defenses and their supporting facts or, in the event a defense is omitted, of promptly seeking leave to amend the answer. Second, it demonstrates how a party’s failure to preserve its own legal defenses can tie the court’s hands, preventing it from crafting the remedy that it deems fair and leading to potentially severe results. Here, the pleading error was costly, ultimately increasing the defendant’s liability by about 150%.
The court of appeals opinion is available online through this link.
About Missouri Law Blog
Baker Sterchi's Missouri Law Blog examines significant developments, trends and changes in Missouri law on a broad range of topics of interest to Missouri practitioners and attorneys and businesses with disputes subject to Missouri law. Learn more about the editor, David Eisenberg.
Subscribe via email
Subscribe to rss feeds
RSS FeedsABOUT baker sterchi blogs
Baker Sterchi Cowden & Rice LLC (Baker Sterchi) publishes this website as a service to our clients, colleagues and others, for informational purposes only. These materials are not intended to create an attorney-client relationship, and are not a substitute for sound legal advice. You should not base any action or lack of action on any information included in our website, without first seeking appropriate legal or other professional advice. If you contact us through our website or via email, no attorney-client relationship is created, and no confidential information should be transmitted. Communication with Baker Sterchi by e-mail or other transmissions over the Internet may not be secure, and you should not send confidential electronic messages that are not adequately encrypted.
The hiring of an attorney is an important decision, which should not be based solely on information appearing on our website. To the extent our website has provided links to other Internet resources, those links are not under our control, and we are not responsible for their content. We do our best to provide you current, accurate information; however, we cannot guarantee that this information is the most current, correct or complete. In addition, you should not take this information as a promise or indication of future results.
Disclaimer
The Missouri Law Blog is made available by Baker Sterchi Cowden & Rice LLC for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. Your use of this blog site alone creates no attorney client relationship between you and the firm.
Confidential information
Do not include confidential information in comments or other feedback or messages related to the Missouri Law Blog, as these are neither confidential nor secure methods of communicating with attorneys. The Missouri Law Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.