affirmative defense in Maine

2019"Ordinarily an affrrmative defense is deemed waived if not raised by a sufficient pleading .... " Inniss v. Methot Buick- Opel, Inc., 506 A.2d 212,218 (Me. 1986) Duress is an affirmative defense.

2018"A defendant who has a claim or right against the plaintiff may assert it in the form of a set-off ofrecoupment, through ... an affirmative defense." Horton & McGehee, Maine Civil Remedies §4-3(d)(l) at 69 (4 ed. 2004) (citing Inniss v. Methot Buick-Opel, Inc., 506 A.2d 212, 217-18 (Me. 1986)).

2023Cunningham, 538 A.2d at 267 (citations omitted).

2021Id. (citing Robinson v. Washington County, 529 A.2d 1357, 1361 (Me. 1987); MacKerron v. Madura, 445 A.2d 680, 682 (Me. 1982); see also Sargent v. Sargent, 622 A.2d 721, 723 (Me. 1993) ("A Rule 12(b)(6) motion is appropriate to raise the affirmative defense of res judicata only if the facts establishing the defense appear on the face of the complaint.").

1984Defendant also asserted as an affirmative defense plaintiff’s failure to file a notice of claim pursuant to 24 M.R.S.A. § 2903. 3 Defendant clearly met the burden established in Dougherty v. Oliviero, 427 A.2d 487 (Me.1981), of pleading and proving noncompliance with the notice requirement.

1984At that point defense counsel acknowledged that “he would waive the notice requirement.” In Dougherty v. Oliviero, 427 A.2d 487, 489 (Me.1981), we held that failure to comply with section 2903 is an affirmative defense and is waived if not raised by the defendant.

2019P. 12, the affirmative defense of the statute of limitations may be raised by a motion to dismiss if facts giving rise to this 4 defense appear on the face of the summons and complaint.” Kasu Corp. v. Blake, Hall & Sprague, Inc., 540 A.2d 1112, 1113 (Me. 1988). “[A] complaint will not be dismissed, pursuant to Rule 12(b)(6), as time-barred unless the complaint contains within its four corners allegations of sufficient facts to show the existence and applicability of the defense.” Francis v. Stinson, 2000 ME 173, ¶ 56 , 760 A.2d 209 (quotation marks omitted).

1988Under M.R.Civ.P. 12 “the affirmative defense of the statute of limitations may be raised by a motion to dismiss if facts giving rise to the defense appear on the face of the ... complaint.” Kasu Corp. v. Blake, Hall & Sprague, Inc., 540 A.2d 1112, 1113 (Me. 1988).

2022See Hansen v. Sunday River Skiway Corp., 1999 ME 45 , ¶ 11 n.2, 726 A.2d 220 (“Generally[,] the party opposing a claim, usually a defendant, has the burden of proof on an issue characterized as an affirmative defense or other 10 issues to avoid or reduce liability.”); see also Moore v. Jet Stream Invs., Ltd., 261 S.W.3d 412, 420 (Tex. App. 2008); Phillips P.R.

2022See Hansen v. Sunday River Skiway Corp., 1999 ME 45 , ¶ 11 n.2, 726 A.2d 220 (“Generally[,] the party opposing a claim, usually a defendant, has the burden of proof on an issue characterized as an affirmative defense or other 10 issues to avoid or reduce liability.”); see also Moore v. Jet Stream Invs., Ltd., 261 S.W.3d 412, 420 (Tex. App. 2008); Phillips P.R.

2021Id. (citing Robinson v. Washington County, 529 A.2d 1357, 1361 (Me. 1987); MacKerron v. Madura, 445 A.2d 680, 682 (Me. 1982); see also Sargent v. Sargent, 622 A.2d 721, 723 (Me. 1993) ("A Rule 12(b)(6) motion is appropriate to raise the affirmative defense of res judicata only if the facts establishing the defense appear on the face of the complaint.").

2000Because the statute of limitations is an affirmative defense, Northeast Harbor Golf Club, Inc. v. Harris, 1999 ME 38, ¶ 15 , 725 A.2d 1018, 1023 , a complaint will not be dismissed, pursuant to Rule 12(b)(6), as time-barred “unless the complaint contains within its four corners allegations of sufficient facts to show the existence and applicability of the defense,” Ripley v. Mercier, 482 A.2d 850, 851 (Me.1984) (quoting MacKerron v. Madura, 445 A.2d 680, 682 (Me.1982)) (internal quotations omitted). [¶ 57] The assets of Stinson Canning Company were sold in 1990, at which time the name of the c

1987Inniss v. Methot Buick-Opel, Inc., 506 A.2d 212, 218 (Me.1986); Blue Spruce Co. v. Parent, 365 A.2d 797, 801 (Me.1976); M.R.

1979We construed Rule 15(b) in Blue Spruce Company v. Parent, Me., 365 A.2d 797, 802 (1976), and held: Rule 15(b), M.R.C.P. is applicable and an affirmative defense will be viable although not specifically pleaded ‘only where it clearly appears from the record that an issue not raised in the pleadings and not preserved in the pretrial order has in fact been tried and that this procedure has been authorized by express or implied consent of the parties.’ Systems Incorporated v. Bridge Electronics Company, 1964, 3 Cir., 335 F.2d 465, 466, 467 (Emphasis supplied) Notwithstanding that the purpose of Ru

2023Unless it is clear on the face of the complaint that the action is barred by the relevant statute of limitations, dismissal on limitations grounds is improper." Packgen, Inc. v. Bernstein, 2019 ME 90 , 'l[ 17, 209 A.3d 116 (quoting Jackson v. Borkowski, 627 A.2d 1010, 1013 (Me. 1993)). 1 The Court may consider documents central to the plaintiff's claim when their authenticity is not challenged without converting a motion to dismiss to a motion for summary judgment.

2019Unless it is clear on the face of the complaint that the action is barred by the relevant statute of limitations, dismissal on limitations grounds is improper.” Jackson v. Borkowski, 627 A.2d 1010, 1013 (Me. 1993) (citation omitted). [¶18] In a legal negligence or malpractice action, the six-year statute of limitations begins to run from the date the cause of action accrues, 14 M.R.S. § 752—that is, “from the date of the act or omission giving rise to the injury, not 10 from the discovery of the [attorney] malpractice, negligence or breach of contract,” id. § 753-B(1). [¶19] In general, “[w]e

2023Mitigation, however, is an affirmative defense and it is therefore "incumbent on the defendant to show that a plaintiff failed to take reasonable steps to mitigate." Marchesseault v. Jackson, 611 A.2d 95, 99 (Me. 1992).

2003Id. at 99 ; see also Sargent v. Tomhegan Camps Owners Ass’n, 2000 ME 58, ¶ 10 , 749 A.2d 143, 145 ; Tang of the Sea, Inc. v. Bayley’s Quality Seafoods, Inc., 1998 ME 264, ¶ 12 , 721 A.2d 648 .

2003Dist., 683 A.2d 502, 504 (Me.1996) (holding that “an affirmative defense may be raised by a motion to dismiss if facts giving rise to the defense appear on the face of the complaint”).

2001Moreover, an affirmative defense such as immunity may be raised by a motion to dismiss only “if facts giving rise to the defense appear on the face of the complaint." Shaw v. Southern Aroostook Community School District, et al., 683 A.2d 502, 504 (Me. 1996).

2013A defendant may raise an affirmative defense- such as the statute of limitations, or, analogously, the 180-day notice of claim requirement- in a motion to dismiss "if the 1 The libel and slander count concerns the two civilian defendants added in the Amended Verified Complaint, as well as various law enforcement officials. 2 Thus, the County Defendants consist of all defendants except the 22 defendants added in the Amended Verified Complaint. 2 facts appear on the face of the summons and complaint." Patten v. Milam, 468 A.2d 620, 621 (Me. 1983).

1995On appeal, we observed that “[i]n the rather unusual procedural posture of this case, we must determine the means to adjudicate the unresolved facts.” Id. at 622 .

2025Thus, unlike the affirmative defense of insanity,4 “[w]hen mental abnormality is put in issue, the burden remains on the prosecution to prove the culpable state of mind beyond 4 We have held that an instruction on an abnormal condition of the mind is “particularly important” when an insanity defense instruction is given because, “[w]ithout it, the instructions on the affirmative defense of insanity may mislead the jury as to the prosecution’s burden of proof on ‘culpable state of mind’ when the evidence tending to negate ‘culpable state of mind’ is the same evidence which goes to establish the

2016Whether a defendant has met his or her burden of proof on this issue is a question of fact, and, if the fact-finder decides that the defendant has not met the burden of proof, we will disturb, that finding “only if the record , compels a contrary conclusion.” State v. Gurney, 2012 ME 14, ¶ 46 , 36 A.3d 893 ; see also State v. Abbott, 622 A.2d 723, 726 (Me.1993).

2021Id. (citing Robinson v. Washington County, 529 A.2d 1357, 1361 (Me. 1987); MacKerron v. Madura, 445 A.2d 680, 682 (Me. 1982); see also Sargent v. Sargent, 622 A.2d 721, 723 (Me. 1993) ("A Rule 12(b)(6) motion is appropriate to raise the affirmative defense of res judicata only if the facts establishing the defense appear on the face of the complaint.").

2017See Sargent v. Sargent, 622 A2d 721, 723 (Me. 1993)("ARule 12(b)(6) motion is appropriate to raise the affirmative defense of res judicata only if the facts establishing the defense appear on the face of the complaint.") If facts in the complaint met the res judicata elements above, then dismissal under a Rule 12(b )(6) motion would be appropriate.

2020A party’s failure “to timely plead an affirmative defense generally results in the waiver of that defense.” Haskell, 2017 ME 154, ¶ 20 , 167 A.3d 1246 . [¶9] Although our pleading standards are “forgiving,” Desjardins v. Reynolds, 2017 ME 99, ¶ 17 , 162 A.3d 228 , and we attempt not “to elevate technical form to a position of superiority over substance,” Graffam v. Geronda, 304 A.2d 76, 79 (Me. 1973), a party intending to assert a particular affirmative defense must make that intention clear.

2020“We review a ruling on cross-motions for summary judgment de novo, reviewing the trial court’s decision for errors of law and It is difficult to “clearly manifest[]”an intention to plead an affirmative defense without explicitly 2 invoking that defense, Graffam v. Geronda, 304 A.2d 76, 78 (Me. 1973), because the factual underpinnings of particular affirmative defenses, see M.R.

2019See Waterville Homes, Inc. v. Maine Department ef Transportation, 589 A.2d 455, 457 (Me. 1991) (equitable estoppel is an affirmative defense that can be used as a shield but not as a sword).

2008Dep't of Transp., 589 A.2d 455, 457 (Me. 1991) for the proposition that equitable estoppel can only be used as an affirmative defense, and Martin v. Prudential Ins.

2010See Ramirez v. Rogers, 540 A.2d 475, 477 (Me. 1988).

1993Ramirez v. Rogers, 540 A.2d 475, 476 (Me.1988). 7 .

2005State v. Michaud, 611 A.2d 61, 63 (Me.1992). “[W]hether there is any evidence ‘from which the jury could find provocation and other elements reducing the offense to manslaughter [is] a question of law for the determination of the court.’ ” Id. (quoting State v. Park, 159 Me. 328, 333 , 193 A.2d 1, 4 (1963)).

2004Adequate provocation is an affirmative defense, and accordingly, it “must be proved by the defendant by a preponderance of the evidence.” 17-A M.R.S.A. § 101(2) (1983). [¶ 15] “Although the adequacy of the provocation ... is a conclusion to be drawn by the trier of fact, the court must determine in the first instance whether the evidence is legally sufficient to generate the defense, thus requiring submission to the jury.” State v. Michaud, 611 A.2d 61, 63 (Me.1992) (citation omitted).

2007The contention that a mortgagee failed to adhere to the notice requirement of § 6111(1) "is an affirmative defense and, as such, [the mortgagor has] the burden of proving the applicability of the defense." ABN AMRO Mortgage Group v. Willis, 2003 ME 98 , <JI 5, 829 A.2d 527, 529 .

2007The contention that a mortgagee failed to adhere to the notice requirement of § 6111(1) "is an affirmative defense and, as such, [the mortgagor has] the burden of proving the applicability of the defense." ABN AMRO Mortgage Group v. Willis, 2003 ME 98 , <JI 5, 829 A.2d 527, 529 .

2021Id. (citing Robinson v. Washington County, 529 A.2d 1357, 1361 (Me. 1987); MacKerron v. Madura, 445 A.2d 680, 682 (Me. 1982); see also Sargent v. Sargent, 622 A.2d 721, 723 (Me. 1993) ("A Rule 12(b)(6) motion is appropriate to raise the affirmative defense of res judicata only if the facts establishing the defense appear on the face of the complaint.").

1988Cunningham v. Haza, 538 A.2d 265, 267 (Me.1988); MacKerron v. Madura, 474 A.2d 166, 167 (Me.1984); see also Robinson v. Washington County, 529 A.2d 1357, 1360-61 (Me.1987) (governmental immunity is an affirmative *1021 defense).

2014See Baker v. Farrand, 2011 ME 91 , <I[ 31, 26 A.3d 806 ("[D]efendant asserting the affirmative defense of a statute of limitations has the ultimate burden of establishing without dispute as to a material fact that the cause of action accrued outside of the limitations period."). 2.

2014See Baker v. Farrand, 2011 ME 91 , <I[ 31, 26 A.3d 806 ("[D]efendant asserting the affirmative defense of a statute of limitations has the ultimate burden of establishing without dispute as to a material fact that the cause of action accrued outside of the limitations period."). 2.

2026And although we have applied this exception where there are “particularly unique circumstances in the history of a case such as exceedingly long litigation, multiple pending proceedings involving the same 8 party, or litigation subject to inordinate delay,” Quirion v. Veilleux, 2013 ME 50, ¶ 9 , 65 A.3d 1287 (quotation marks and alterations omitted), we have done so sparingly and even then only when application of the defense was clear, because otherwise “it would ensure that every future trial court decision rejecting an affirmative defense would be appealed on an interlocutory basis.” Porraz

2026And although we have applied this exception where there are “particularly unique circumstances in the history of a case such as exceedingly long litigation, multiple pending proceedings involving the same 8 party, or litigation subject to inordinate delay,” Quirion v. Veilleux, 2013 ME 50, ¶ 9 , 65 A.3d 1287 (quotation marks and alterations omitted), we have done so sparingly and even then only when application of the defense was clear, because otherwise “it would ensure that every future trial court decision rejecting an affirmative defense would be appealed on an interlocutory basis.” Porraz

2018Id. 11 30.

1994“An affirmative defense, however, may be adequately pleaded even though the specific words are not used.” Id.

2017There, we established that "[i]f sufficient facts setting out the elements of estoppel can be proven, estoppel should be available to bar a defendant from raising [an affirmative defense] in a civil action." Id. .

2017There, we established that “[i]f sufficient facts setting out the elements of estoppel can be proven, estoppel should be available to bar a defendant from raising [an affirmative defense] in a civil action.” Id. 18 breach of contract, we have established that estoppel may be utilized.