affirmative defense in Indiana

2013We find from the designated evidence that there exists “an issue of fact material to a theory that avoids the defense,” Boggs, 730 N.E.2d at 695 , which serves to rebut the defendants’ affirmative defense. “[F]aetual issues relating to the running of the limitations period, such as the date on which the plaintiff first learns of the injury, are to be resolved by the trier of fact at trial.” Herron, 897 N.E.2d at 452 .

2013“When the moving party asserts the statute of limitations as an affirmative defense, however, and establishes that the action was commenced beyond the statutory period, the burden shifts to the nonmovant to establish an issue of fact material to a theory that avoids the defense.” Id.

2026See Ind. Trial Rule 8(C) (requiring a defendant to assert affirmative defenses in its responsive pleading). [32] An affirmative defense is one “upon which the proponent bears the burden of proof and which, in effect, admits the essential allegations of the complaint but asserts additional matter[s] barring relief.” Willis v. Westerfield, 839 N.E.2d 1179, 1185 (Ind. 2006) (quoting Paint Shuttle, Inc. v. Cont’l Cas.

2020Willis, 839 N.E.2d 1179 . [46] As the Indiana Supreme Court has stated: The affirmative defense of failure to mitigate damages has two elements, and as to both the defendant bears the burden of proof by a preponderance of the evidence.

2019See Melendez v. State, 511 N.E.2d 454, 457 (Ind. 1987) (“An affirmative defense admits all the elements of the crime but proves circumstances which excuse the defendant from culpability.”).

2017Necessity is an affirmative defense in which the defendant “admits all the elements of the crime, but proves circumstances which excuse the defendant from culpability.” Clemens, 996 N.E.2d at 1285 (quoting Melendez v. State, 511 N.E.2d 454, 457 (Ind. 1987)).

2019Although a party who has failed to plead or prove an affirmative defense has no right to prevail on that basis, “an appellate court is not precluded from determining that an issue is foreclosed under a wide variety of circumstances.” Bunch v. State, 778 N.E.2d 1285, 1289 (Ind. 2002).

2018However, “where an issue has not been properly preserved for review, an appellate court may decline to address such an issue whether or not the State has properly pleaded or proved the affirmative defense of waiver.” Taylor v. State, 780 N.E.2d 430, 433 (Ind. Ct. App. 2002), trans. denied; see also Bunch v. State, 778 N.E.2d 1285, 1287 (Ind. 2002) (noting aside from the Trial Rule 8(C) affirmative defense of waiver, there is a “doctrine of judicial administration whereby appellate courts may sua sponte find an issue foreclosed under a variety of circumstances in which a party has failed to tak

2020Ind. Trial Rule 8(C); see City of South Bend v. Dollahan, 918 N.E.2d 343, 349 (Ind. Ct. App. 2009) (observing that Trial Rule 8(C) “provides that a party seeking to raise an affirmative defense must specifically plead said defense in its responsive pleading”), trans. denied.

2020Court of Appeals of Indiana | Memorandum Decision 19A-PL-2249 | September 3, 2020 Page 14 of 27 [21] While our courts have not expressly extended this modification to declaratory judgments, later decisions of this court have extended this to matters raised on summary judgment, and have identified the critical issue to be “‘not whether the defendant could have raised his affirmative defense earlier,’ but ‘whether the defendant’s failure to raise the affirmative defense earlier prejudiced the plaintiff.’” Dollahan, 918 N.E.2d at 350 (quoting Borne by Borne v. Nw.

2000See Langley v. State, 256 Ind. 199 , 267 N.E.2d 538, 541-42 (1971) ("Where ... the state, as it did in this case, chooses to meet a petitioner's allegations on their merits at the hearing, we must do likewise on appeal."); Mickens v. State, 596 N.E.2d 1379, 1381 (Ind.1992) ("Waiver is an affirmative defense to a petition for post-conviction relief.

2000See Langley v. State, 256 Ind. 199 , 267 N.E.2d 538, 541-42 (1971) (“Where ... the state, as it did in this case, chooses to meet a petitioner’s allegations on their merits at the hearing, we must do likewise on appeal.”); Mickens v. State, 596 N.E.2d 1379, 1381 (Ind.1992) (‘Waiver is an affirmative defense to a petition for post-conviction relief.

2013We believe Kuntz's Answer is sufficient to satisfy the requirements of notice pleading and preservation of an affirmative defense, Lafary v. Lafary, 476 N.E.2d 155, 158-59 (Ind.Ct.App.1985), and to allow Kuntz to defend on a theory of pre-exist-ing breach. 8 See Ind. Trial Rule 8(F) ("All pleadings shall be so construed as to do substantial justice, lead to disposition on the merits, and avoid litigation of procedural points.").

2012Clayton did not raise the affirmative defense of self defense at trial, and “[a]ffirmative defenses cannot be raised for the first time on appeal.” Lafary v. Lafary, 476 N.E.2d 155, 159 (Ind. Ct. App. 1985).

2002Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 695 (Ind.2000) (citing Conard v. Waugh, 474 N.E.2d 130, 134-85 (Ind.Ct.App.1985)).

1987Statutes of Limitations Barring Recovery Against INT This court very recently declared the function of a summary judgment in the context of a statute of limitations defense: "[When the moving party asserts ... the affirmative defense of the statute of limitations and presumptively establishes that defense by placing before the trial court Trial Rule 56(C) materials showing there is no question that the action against him was initiated beyond the limited statutory period, then the burden of establishing the existence of material facts in avoidance of the statute of limitations defense shifts to

2024Notwithstanding M.S.’s contention, our Supreme Court rejected a similar argument in A.W. v. State, 229 N.E.3d 1060 (Ind. 2024), explaining that “the statutory language—‘for any purpose other than a [lawful] purpose’ set forth in I.C. § 35-47-10-5, —is not an essential element the State was required to prove, but rather an affirmative defense[.]” Id. at 1072 n.15 (citing Washington v. State, 517 N.E.2d 77, 79 (Ind. 1987), where it was explained that possession of a valid license to carry a firearm is an affirmative defense and the burden is on the defendant to prove that he possessed a valid li

2002Ind. Code § 35-47-2-1 . 1 This is not necessarily inconsistent with Washington because it was addressing whether the existence of a license is an element that must be disproved by the State or a matter that constitutes an affirmative defense to be proved by a defendant. 517 N.E.2d at 79 .

2015Adkins v. State, 887 N.E.2d 934, 937 (Ind. 2008). [12] If a defendant is charged with the Class D felony, but seeks to be convicted of the Class A misdemeanor, “the defendant must place the fact of the gun having been unloaded at issue if the State’s evidence has not done so.” Id. at 938 (holding the fact that a gun is unloaded is a “mitigating factor” rather than an affirmative defense).

2015Adkins v. State, 887 N.E.2d 934, 937 (Ind. 2008). [12] If a defendant is charged with the Class D felony, but seeks to be convicted of the Class A misdemeanor, “the defendant must place the fact of the gun having been unloaded at issue if the State’s evidence has not done so.” Id. at 938 (holding the fact that a gun is unloaded is a “mitigating factor” rather than an affirmative defense).

2015Enters., Inc., 605 N.E.2d 1197, 1199 (Ind. Ct. App. 1993). [12] The burden of pleading and proving this affirmative defense lies with Hutchens.

2004We have previously defined an affirmative defense as a defense "upon which the proponent bears the burden of proof and which, in effect, admits the essential allegations of the complaint but asserts additional matter barring relief." Molargik v. West Enterprises, Inc., 605 N.E.2d 1197, 1199 (Ind.Ct.App.1993) (quoting Rice v. Grant County Bd. of Comm'rs, 472 N.E.2d 213, 214 (Ind.Ct.App.1984)).

2019See Willis v. Westerfield , 839 N.E.2d 1179 , 1185 (Ind. 2006) (noting that the proponent of an affirmative defense bears the burden of proof on that defense); cf. Armstrong v. State , 747 N.E.2d 1119 , 1120 (Ind. 2001) (observing that a petitioner for post-conviction relief "is not appealing from a negative judgment" when challenging the application of an affirmative defense).

2014Because the State must prove laches as an affirmative defense, see id., on this issue Willey is not appealing from a negative judgment—we will affirm unless the post- conviction court’s judgment was clearly erroneous.

2010In addition to her counter claim, Kephart also raised a number of affirmative defenses. [1] An affirmative defense is a defense "upon which the proponent bears the burden of proof and which, in effect, admits the essential allegations of the complaint but asserts additional matter barring relief." Rice v. Grant County Bd. of Comm'rs, 472 N.E.2d 213, 214 (Ind.Ct.

2010In addition to her counter claim, Kephart also raised a number of affirmative defenses. 1 An affirmative defense is a defense "upon which the proponent bears the burden of proof and which, in effect, admits the essential allegations of the complaint but asserts additional matter barring relief." Rice v. Grant County Bd. of Comm'rs, 472 N.E.2d 213, 214 (Ind.Ct.App.1984) (emphasis omitted), trans. denied.

2010"However, if the affirmative defense specifically negates an element of the crime, then the burden of proof lies on the State to establish beyond a reasonable doubt the absence of the affirmative defense." Id. at 782-83 (citing Ward v. State, 438 N.E.2d 750, 753 (Ind. 1982); Patterson v. New York, 432 U.S. 197 , 97 S.Ct. 2319 , 53 L.Ed.2d 281 (1977)).

1996See Ward, supra. Accordingly, we conclude that IC 9-30-10-18 does not unconstitutionally impose upon the defendant the burden of establishing the affirmative defense of an emergency.

2019This ruling [] was egregiously wrong because Burt Blee did not raise it as an issue on which it sought summary judgment[.]” (Appellant’s Br. p. 30). [24] In Reisweg v. Statom, 926 N.E.2d 26, 30 (Ind. 2010), our supreme court clarified that “[a] party responding to a motion for summary judgment is entitled to take the motion as the moving party frames it.” Generally, an affirmative defense is waived “if not asserted in response to a motion for summary judgment that dispose[s] of the entire issue of liability.

2015Id. at 3-4[ Generally, an affirmative defense is waived “if not asserted in response to a motion for summary judgment that dispose[s] of the .entire issue of liability.” Reiswerg v. Statom, 926 N.E.2d 26, 32 (Ind.2010).

2014Id. at 1148 .

2012Thompson v. State, 804 N.E.2d 1146, 1148 (Ind. 2004).

2017"An affirmative defense is a defense 'upon which the proponent bears the burden of proof and which, in effect, admits the essential allegations of the complaint but asserts additional matter barring relief.' " Id. (quoting Paint Shuttle , 733 N.E.2d at 524 ). 9 Moreover, the substantive law would preclude the County from asserting laches as a defense to USRC's breach of contract claim.

2017"An affirmative defense is a defense 'upon which the proponent bears the burden of proof and which, in effect, admits the essential allegations of the complaint but asserts additional matter barring relief.' " Id. (quoting Paint Shuttle , 733 N.E.2d at 524 ). 9 Moreover, the substantive law would preclude the County from asserting laches as a defense to USRC's breach of contract claim.

2020Cf. id. (holding that the plaintiff’s designated evidence established genuine issues of fact as to the trigger date of the malpractice claim). [20] Thompson argues, as she did below, that the affirmative defense was rebutted with evidence that she did not learn that the transabdominal cerclage remained in place (i.e., it was not removed by Physician during the 1998 cesarean section) until her 2015 hysterectomy, which was performed by Dr. Lyons.

2016If such date is more than two years after the occurrence of the malpractice, the claimant has two years within which to commence the action.” David v. Kleckner, 9 N.E.3d 147, 152-53 (Ind. 2014) (citation omitted). [24] “When a defendant in a medical malpractice action asserts the statute of limitation as an affirmative defense, the defendant bears the burden of establishing that the action was commenced outside that statutory period.” Manley v. Sherer, 992 N.E.2d 670, 674 (Ind. 2013).

2016To the extent the defense of parental discipline privilege constitutes an affirmative defense, we have previously noted that Ind. Trial Rule 15(B) 2 “provides an escape hatch” and that “[i]f the issue is tried by the implied consent of the parties it is treated as if raised by the pleadings.” Clemons v. State, 996 N.E.2d 1282, 1285-1286 (Ind. Ct. App. 2013) (citing Custer v. Plan Comm’n of City of Garrett, 699 N.E.2d 793, 795 (Ind. Ct. App. 1998) (citing Puckett v. McKinney, 175 Ind. App. 673, 676 , 373 N.E.2d 909, 911 (1978) (holding that the defendant had not waived an affirmative defense ev

2013If the *1286 issue is tried by the implied consent of the parties it is treated as if raised by the pleadings.” 699 N.E.2d 793, 795 (Ind.Ct.App.1998) (citing Puckett v. McKinney, 175 Ind.App. 673, 676 , 373 N.E.2d 909, 911 (1978) (holding that the defendant had not waived an affirmative defense even though he did not assert it in the pleadings as evidence which tended to establish the defense was elicited at trial and admitted without objection and thus that “it may fairly be assumed the issue was tried with the implied consent of the parties”)).

2017See Jernas v. Gumz, 53 N.E.3d 434, 447-48 (Ind. Ct. App. 2016) (explaining that the statute of frauds is an affirmative defense that must be specifically pled pursuant to Ind. Trial Rule 8(C)), trans. denied; Lawshe v. Glen Park Lumber Co., Inc., 375 N.E.2d 275, 347 (Ind. Ct. App. 1978) (explaining that in order to preserve the statute of frauds as an affirmative defense, the party with the burden of proof must either have set forth the defense in a responsive pleading or show the defense was litigated by the parties). [18] Waiver notwithstanding, the Wayts have not established that the statut

2016To preserve an affirmative defense, the party with the burden of proving the defense “must either have set forth the defense in a responsive pleading or show that the defense was litigated by the parties.” Lawshe v. Glen Park Lumber Co., 176 Ind. App. 344, 347 , 375 N.E.2d 275, 277-78 (1978).

2024Defense of Contributory Negligence [21] The BMV contends that Kelly’s complaint was appropriately dismissed for failure to state a claim because Kelly’s “claim is barred by contributory negligence.” Appellee Br. at 20. “[A] complaint does not fail to state a claim merely because a meritorious defense may be available.” Bellweather Props., LLC v. Duke Energy Ind., Inc., 87 N.E.3d 462, 464 (Ind. 2017); see also Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc., 193 N.E.3d 1009 , 1013 (Ind. 2022) (“Dismissal [for failure to state a claim] is rarely appropriate when the asserted gr

2020We held unanimously in Bellwether Properties, LLC v. Duke Energy Indiana, Inc., 87 N.E.3d 462 (Ind. 2017), that dismissal under Trial Rule 12(B)(6) is “rarely appropriate when the asserted ground for dismissal is an affirmative defense.” Id. at 464 .

2017Id; see also Abbott v. Bates, 670 N.E.2d 916, 923 (Ind. Ct. App. 1996) (recognizing that a summary judgment nonmovant asserting an affirmative defense has the burden to designate evidence in response to summary judgment from which the trial court can infer the elements of the defense). [13] Here, it is undisputed that the Sibling Shareholders’ remaining four claims against Andrew are derivative claims alleging injuries to TPO and thus, as a general rule, they may not be pursued by direct action.

2017Id; see also Abbott v. Bates, 670 N.E.2d 916, 923 (Ind. Ct. App. 1996) (recognizing that a summary judgment nonmovant asserting an affirmative defense has the burden to designate evidence in response to summary judgment from which the trial court can infer the elements of -the defense).

2013We conclude that immunity is an affirmative defense, and for this reason, the trial court had jurisdiction to rule on the issue.5 See Griffith, 602 N.E.2d at 110 .6 5 A search of Indiana cases reveals that our Courts have repeatedly referred to immunity as an affirmative defense.

2013We conclude that immunity is an affirmative defense, and for this reason, the trial court had jurisdiction to rule on the issue. 5 See Griffith, 602 N.E.2d at 110 . 6 In reaching this conclusion, we reject the Haggertys' argument that the issue of immunity was reserved for the medical review panel.

2020The failure to mitigate damages “is an affirmative defense that may reduce the amount of damages a plaintiff is entitled to recover after liability has been found.” Id.

2019Id. [11] As our Supreme Court has explained, “the principle of mitigation of damages addresses conduct by an injured party that aggravates or increases the party’s injuries.” Deible v. Poole, 691 N.E.2d 1313, 1315 (Ind. Ct. App. 1998), (citations omitted), aff’d, 702 N.E.2d 1076 , 1076 (Ind. 1998). . . . [F]ailure to mitigate damages is an affirmative defense that may reduce the amount of damages a plaintiff is entitled to recover after liability has been found.