affirmative defense in South Dakota

1981In Clancy v. Callan, 90 S.D. 115 , 238 N.W.2d 295, 297 (1976), we said: *157 A further consideration in determining whether there has been an accord and satisfaction is that it is an affirmative defense and the “burden of proof to establish such defense is on the party who seeks to rely on it.” Lang v. Burns, 1959, 77 S.D. 626 , 97 N.W.2d 863 .

1981In Clancy v. Callan, 90 S.D. 115 , 238 N.W.2d 295, 297 (1976), we said: *157 A further consideration in determining whether there has been an accord and satisfaction is that it is an affirmative defense and the “burden of proof to establish such defense is on the party who seeks to rely on it.” Lang v. Burns, 1959, 77 S.D. 626 , 97 N.W.2d 863 .

1981In Clancy v. Callan, 90 S.D. 115 , 238 N.W.2d 295, 297 (1976), we said: *157 A further consideration in determining whether there has been an accord and satisfaction is that it is an affirmative defense and the “burden of proof to establish such defense is on the party who seeks to rely on it.” Lang v. Burns, 1959, 77 S.D. 626 , 97 N.W.2d 863 .

1981In Clancy v. Callan, 90 S.D. 115 , 238 N.W.2d 295, 297 (1976), we said: *157 A further consideration in determining whether there has been an accord and satisfaction is that it is an affirmative defense and the “burden of proof to establish such defense is on the party who seeks to rely on it.” Lang v. Burns, 1959, 77 S.D. 626 , 97 N.W.2d 863 .

1993Schecher, supra; American Property Services v. Barringer, 256 N.W.2d 887, 890 (S.D.1977).

1986SDCL 15-6-15(b), however, permits issues not asserted in the pleadings to be tried by the parties’ express or implied consent, Western Petroleum Co. v. First Bank Aberdeen, 367 N.W.2d 773, 775 (S.D.1985), and the failure to formally plead an affirmative defense “is immaterial if the issue was tried by express or implied consent.” Barringer, 256 N.W.2d at 890 .

2022“An affirmative defense is not waived if the pleadings are properly amended to include the unpled defense or if the issue was tried by express or implied consent.” Dakota Cheese, Inc. v. Ford, 1999 S.D. 147 , ¶ 25, 603 N.W.2d 73, 78 (quoting Beyer v. Cordell, 420 N.W.2d 767, 769 (S.D. 1988) (emphasis removed)). “[T]he most important consideration in determining whether a party should be allowed to amend a pleading is whether the nonmoving party will be prejudiced by the amendment.” Id. ¶ 24, 603 N.W.2d at 78 (quoting Isakson v. Parris, 526 N.W.2d 733, 736 (S.D. 1995)).

2016“A motion to amend is addressed to the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion which results in prejudice to the non-moving party.” Isakson v. Parris, 526 N.W.2d 733, 736 (S.D. 1995) (denial of leave to amend to include a new affirmative defense held an abuse of discretion when no prejudice would have been suffered by plaintiff). -12- #27530 [¶25.] No prejudice to the Appellees would have resulted by amendment of the pleadings to include the will.

1992“The burden of proving that damages would have been lessened by the exercise of reasonable diligence on the part of the claimant is on the party that caused the damages.” Renner Elevator Co. v. Schuer, 267 N.W.2d 204, 207 (S.D.1978); Rowing v. Williams, 75 S.D. 454 , 67 N.W.2d 780, 788 (S.D.1954) (matters in mitigation of damages constitutes an affirmative defense).

1992“The burden of proving that damages would have been lessened by the exercise of reasonable diligence on the part of the claimant is on the party that caused the damages.” Renner Elevator Co. v. Schuer, 267 N.W.2d 204, 207 (S.D.1978); Rowing v. Williams, 75 S.D. 454 , 67 N.W.2d 780, 788 (S.D.1954) (matters in mitigation of damages constitutes an affirmative defense).

2025“The test for allowing an adjudication of an issue under [Federal Rule of Civil Procedure]15(b) and SDCL 15- 6-15(b) tried by implied consent is whether the opposing party will be prejudiced by the implied amendment, i.e., did he have a fair opportunity to litigate the issue, and could he have offered any additional evidence if the case had been tried on the different issue.” High Plains Genetics Rsch., Inc. v. J K Mill-Iron Ranch, 535 N.W.2d 839, 845 (S.D. 1995) (alteration added) (citation omitted).

2016High Plains Genetics Research v. J K Mill-Iron Ranch, 535 N.W.2d 839, 845 (S.D. 1995).

2023Robinson Worldwide, Inc. v. Lobrano, 695 F.3d 758, 764 (8th Cir. 2012) (holding res judicata is an affirmative defense which can serve as a basis for dismissal under Rule 12(b)(6) when it is apparent from the “face of the complaint” which includes “public records embraced by the complaint”). 9.

2023Robinson Worldwide, Inc. v. Lobrano, 695 F.3d 758, 764 (8th Cir. 2012) (holding res judicata is an affirmative defense which can serve as a basis for dismissal under Rule 12(b)(6) when it is apparent from the “face of the complaint” which includes “public records embraced by the complaint”). 9.

2022“Prejudice is often shown when a party is surprised and unprepared to meet the contents of the proposed amendment.” Robinson-Podoll, 2020 S.D. 5, ¶ 14 , 939 N.W.2d at 38 (quoting Tesch v. Tesch, 399 N.W.2d 880, 882 (S.D. 1987)). [¶13.] JM filed a motion to amend its answer approximately eight months after its initial answer and after the parties had engaged in extensive discovery.

2020“Prejudice is often shown when a party is surprised and unprepared to meet the contents of the proposed amendment.” Tesch v. Tesch, 399 N.W.2d 880, 882 (S.D. 1987). [¶15.] Robinson-Podoll claims that Howey-Fox filed her motion to amend more than a year after Pitt-Hart was decided, and she was prejudiced by the amendment.

2017See id. ¶ 17, 753 N.W.2d at 412 . “[WJhere a defendant, by motion for summary judgment, asserts this type of affirmative defense that bars an action ‘and presumptively establishes the defense by showing the case was instituted beyond the statutory period, the burden then shifts to the plaintiff to establish the existence of material facts in avoidance of the statute.’ ” Id. (quoting Conway v. Conway, 487 N.W.2d 21, 23 (S.D. 1992)).

2017See id. ¶ 17, 753 N.W.2d at 412 . “[WJhere a defendant, by motion for summary judgment, asserts this type of affirmative defense that bars an action ‘and presumptively establishes the defense by showing the case was instituted beyond the statutory period, the burden then shifts to the plaintiff to establish the existence of material facts in avoidance of the statute.’ ” Id. (quoting Conway v. Conway, 487 N.W.2d 21, 23 (S.D. 1992)).

2017See id. ¶ 17, 753 N.W.2d at 412 . “[W]here a defendant, by motion for summary judgment, asserts this type of affirmative defense that bars an action ‘and presumptively establishes the defense by showing the case was instituted beyond the statutory period, the burden then shifts to the plaintiff to establish the existence of material facts in avoidance of the statute.’” Id. (quoting Conway v. Conway, 487 N.W.2d 21, 23 (S.D. 1992)).

2017See id. ¶ 17, 753 N.W.2d at 412 . “[WJhere a defendant, by motion for summary judgment, asserts this type of affirmative defense that bars an action ‘and presumptively establishes the defense by showing the case was instituted beyond the statutory period, the burden then shifts to the plaintiff to establish the existence of material facts in avoidance of the statute.’ ” Id. (quoting Conway v. Conway, 487 N.W.2d 21, 23 (S.D. 1992)).

2004If such an affirmative defense is not pleaded, it is waived.” Wolff v. Secretary of South Dakota Game, Fish and Parks Dept., 1996 SD 23, ¶ 15 , 544 N.W.2d 531, 534 (quoting Varga v. Woods, 381 N.W.2d 247, 251 (S.D.1986)).

1996If such an affirmative defense is not pleaded, it is waived.” Varga v. Woods, 381 N.W.2d 247, 251 (S.D.1986).

2002See Overfield, 2000 SD 98 at ¶ 11 , 614 N.W.2d at 816 (finding the instructions must be viewed as a whole to determine if they adequately inform the jury on the laws). [¶ 19.] Next, Casa del Rey argues that the trial court erred by denying its proposed jury instruction on an employer’s duty to provide a safe work place for the plaintiff, which read as follows: An employer has a duty to furnish an employee with a reasonably safe place to work.

2002See Overfield, 2000 SD 98 at ¶ 11 , 614 N.W.2d at 816 (finding the instructions must be viewed as a whole to determine if they adequately inform the jury on the laws). [¶ 19.] Next, Casa del Rey argues that the trial court erred by denying its proposed jury instruction on an employer’s duty to provide a safe work place for the plaintiff, which read as follows: An employer has a duty to furnish an employee with a reasonably safe place to work.

1998Hill, 474 U.S. at 59 , 106 S.Ct. at 370 , 88 L.Ed.2d at 210 (citation omitted) (emphasis added). [¶ 16.] Subsequent to Strickland , the scope of the analysis was refined to not focus “solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair, or unreliable .... ” Lockhart v. Fretwell, 506 U.S. 364, 369-70 , 113 S.Ct. 838, 842-43 , 122 L.Ed.2d 180, 189 ; see also Loop, 1996 SD 107 at ¶ 15 , 554 N.W.2d at 189 ; Hopfinger v. Leapley, 511 N.W.2d 845, 847 (S.D.1994). [¶ 17.] Lien contends that Hol-gersoris performance was deficient and

1998Hill, 474 U.S. at 59 , 106 S.Ct. at 370 , 88 L.Ed.2d at 210 (citation omitted) (emphasis added). [¶ 16.] Subsequent to Strickland , the scope of the analysis was refined to not focus “solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair, or unreliable .... ” Lockhart v. Fretwell, 506 U.S. 364, 369-70 , 113 S.Ct. 838, 842-43 , 122 L.Ed.2d 180, 189 ; see also Loop, 1996 SD 107 at ¶ 15 , 554 N.W.2d at 189 ; Hopfinger v. Leapley, 511 N.W.2d 845, 847 (S.D.1994). [¶ 17.] Lien contends that Hol-gersoris performance was deficient and

1995Ducheneaux v. Miller, 488 N.W.2d 902 (S.D.1992); Haggar v. Olfert, 387 N.W.2d 45, 49 (S.D.1986).

1995Ducheneaux v. Miller, 488 N.W.2d 902 (S.D.1992); Haggar v. Olfert, 387 N.W.2d 45, 49 (S.D.1986).

1982See Verlinden v. Godberson, 238 Iowa 161 , 25 N.W.2d 347 (1946) (lack of responsive pleading not fatal since the issues between the parties were held to be sufficiently clear); Dinkel v. Hagedorn, 156 Neb. 419 , 56 N.W.2d 464 (1953) (failure to file a reply to an amended answer held not fatal due to both parties treating the affirmative defense as being denied); Pleiman v. Belew, 360 Mo. 219 , 227 S.W.2d 733 (1950) (averments in counterclaim held not admitted due to failure of the defendant to timely move for a default judgment).

1982See Verlinden v. Godberson, 238 Iowa 161 , 25 N.W.2d 347 (1946) (lack of responsive pleading not fatal since the issues between the parties were held to be sufficiently clear); Dinkel v. Hagedorn, 156 Neb. 419 , 56 N.W.2d 464 (1953) (failure to file a reply to an amended answer held not fatal due to both parties treating the affirmative defense as being denied); Pleiman v. Belew, 360 Mo. 219 , 227 S.W.2d 733 (1950) (averments in counterclaim held not admitted due to failure of the defendant to timely move for a default judgment).

2025Works, Inc., 414 N.W.2d 303, 305 (S.D. 1987).

1993Schecher, supra ; American Property Services v. Barringer, 256 N.W.2d 887, 890 (S.D.1977).

2025Iowa 1994), aff'd, 61 F.3d 908 (8th Cir. 1995) (holding Iowa’s qualified privilege to a claim of slander “is an affirmative defense that must be pleaded.”). -14- #30748, #30819 [¶34.] Similarly, this Court has held that the defense of sovereign immunity is an affirmative defense to a claim. 6 Olesen v. Town of Hurley, 2004 S.D. 136 , ¶ 13, 5F 691 N.W.2d 324, 328 .

2014Immunity from liability for damages under SDCL 21-32A-3 must be timely asserted and “[m]ere conclusory allegations are not substitutes for specific facts.” See Olesen v. Town of Hurley, 2004 S.D. 136 , ¶ 12, 691 N.W.2d 324, 328 .

2022“An affirmative defense is not waived if the pleadings are properly amended to include the unpled defense or if the issue was tried by express or implied consent.” Dakota Cheese, Inc. v. Ford, 1999 S.D. 147 , ¶ 25, 603 N.W.2d 73, 78 (quoting Beyer v. Cordell, 420 N.W.2d 767, 769 (S.D. 1988) (emphasis removed)). “[T]he most important consideration in determining whether a party should be allowed to amend a pleading is whether the nonmoving party will be prejudiced by the amendment.” Id. ¶ 24, 603 N.W.2d at 78 (quoting Isakson v. Parris, 526 N.W.2d 733, 736 (S.D. 1995)).

1995In Beyer v. Cordell, 420 N.W.2d 767 (S.D.1988) we explored the issue of whether the trial court abused its discretion by allowing the defendant to amend his answer during trial to assert the affirmative defense of contributory negligence against one of the co-plaintiffs.

2015Id. ¶ 50, 796 N.W.2d at 702 (alteration in original) (quoting Hearn, 68 F.R.D. at 581 ).

2011While express waivers of the privilege are easy to identify, courts widely dispute at what point a client impliedly waives the privilege by injecting privileged communications into a case. 6 In Hearn v. Rhay, a federal district court set forth three criteria to determine whether a party impliedly waived the privilege: (1) assertion of the privilege was a result of some affirmative act, such as filing suit [or raising an affirmative defense], by the asserting party; (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; an

2014See Zephier v. Catholic Diocese of Sioux Falls, 2008 S.D. 56 , ¶ 9, 752 N.W.2d 658, 663 .

2014See Zephier v. Catholic Diocese of Sioux Falls, 2008 S.D. 56 , ¶ 9, 752 N.W.2d 658, 663 .

2004If such an affirmative defense is not pleaded, it is waived.” Wolff v. Secretary of South Dakota Game, Fish and Parks Dept., 1996 SD 23, ¶ 15 , 544 N.W.2d 531, 534 (quoting Varga v. Woods, 381 N.W.2d 247, 251 (S.D.1986)).

2004If such an affirmative defense is not pleaded, it is waived.” Wolff v. Secretary of South Dakota Game, Fish and Parks Dept., 1996 SD 23, ¶ 15 , 544 N.W.2d 531, 534 (quoting Varga v. Woods, 381 N.W.2d 247, 251 (S.D.1986)).

2002Lien, 1998 SD 7 at ¶ 15 , 574 N.W.2d at 607-08 (citations omitted)(emphasis in original). [¶ 14.] Both Coon and Poppen now claim their drug use just prior to their August 1, 1995 confessions at the police station caused their confessions to be involuntary.

2002Lien, 1998 SD 7 at ¶ 15 , 574 N.W.2d at 607-08 (citations omitted)(emphasis in original). [¶ 14.] Both Coon and Poppen now claim their drug use just prior to their August 1, 1995 confessions at the police station caused their confessions to be involuntary.

1996Brandner’s holding in this regard was recently reaffirmed in Cody v. Leapley, 476 N.W.2d 257 (S.D.1991) where this Court concluded: if the cause of action is independent of the notice requirement, such as is the case herein in regard to a claim of wrongful seizure of one’s property, the statute is found to be in the nature of a statute of limitation.

1996Cody, 476 N.W.2d at 263 (citations omitted)(emphasis added). [¶ 15] “Under SDCL 15-6-8(c), a party’s pieadings must affirmatively set forth matters constituting an avoidance or affirmative defense.