affirmative defense in Missouri

2021Corp., 854 S.W.2d at 381 (Where summary judgment movant is a defending party relying on an affirmative defense, summary judgment is only appropriate if the movant establishes "that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense") (emphasis omitted and added).

2019Additionally, “a claimant moving for summary judgment in the face of an affirmative defense must also establish the affirmative defense fails as a matter of law.” Id. at 381 (citing Rule 74.04(c)).

2022In that context, waiver of the defense not raised in the answer is appropriate. “[I]f a matter is not jurisdictional but rather is a procedural matter required by statute or rule or an affirmative defense of the sort listed in Rule 55.08, then it generally may be waived if not raised timely.” McCracken v. Wal-Mart Stores E., LP, 298 S.W.3d 473, 476 (Mo. banc 2009).

2019Although we agree that contractual illegality is an affirmative defense that under Rule 55.08 must be pled or else it is waived, McCracken v. Wal-Mart Stores E., LP, 298 S.W.3d 473, 476 (Mo.banc 2009), we reject Landlord’s argument because we find the doctrine of contractual illegality to be inapplicable to this case.

2019"When an affirmative defense is asserted, such as a statute of limitation, the petition may not be dismissed unless it clearly establishes on its face and without exception that it is barred." Sheehan v. Sheehan , 901 S.W.2d 57 , 59 (Mo. banc 1995) (quotation omitted).

2007“When an affirmative defense is asserted, such as a statute of limitation, the petition may not be dismissed unless it clearly establishes ‘on its face and without exception’ that it is barred.” Sheehan v. Sheehan, 901 S.W.2d 57, 59 (Mo. banc 1995) (quoting International Plastics Development, Inc. v. Monsanto Co., 433 S.W.2d 291, 294 (Mo. banc 1968)).

2009“Generally, failure to plead an affirmative defense results in waiver of that defense.” Detling v. Edelbrock, 671 S.W.2d 265, 271 (Mo. banc 1984).

1994“Generally, failure to plead an affirmative defense results in waiver of that defense.” Detling v. Edelbrock, 671 S.W.2d 265, 271 [17] (Mo. banc 1984); Lucas v. Enkvetchakul, 812 S.W.2d 256, 263 (Mo.App.1991).

2019“Where the non-movant has properly pleaded an affirmative defense, a movant’s right to summary judgment depends just as much on the non-viability of that affirmative defense as it does on the viability of the movant’s claim.” Mobley v. Baker, 72 S.W.3d 251, 257 (Mo. App. W.D. 2002) (citing ITT Commercial Fin., 854 S.W.2d at 381).

2017“Where the non-movant has properly pleaded an affirmative defense, a movant’s right to summary judgment depends just as much on the non-viability of that affirmative defense as it does on the viability of the movant’s claim.” Mobley, 72 S.W.3d at 257 .

2013Lehnig v. Bornhop, 859 S.W.2d 271, 272 (Mo.App.

2005Lehnig v. Bornhop, 859 S.W.2d 271, 272 (Mo.App.1993).

2008“An affirmative defense contemplates additional facts not included in the allegations necessary to support plaintiffs case and avers that plaintiffs theory of liability, even though sustained by the evidence, does not lead to recovery because the affirmative defense allows the defendant to avoid legal responsibility.” Parker v. Pine, 617 S.W.2d 536, 542 (Mo. App. W.D.1981).

2008“An affirmative defense contemplates additional facts not included in the allegations necessary to support plaintiffs case and avers that plaintiffs theory of liability, even though sustained by the evidence, does not lead to recovery because the affirmative defense allows the defendant to avoid legal responsibility.” Parker v. Pine, 617 S.W.2d 536, 542 (Mo.App.

2024See Bateman v. Platte Cnty., 363 S.W.3d 39, 42 (Mo. 2012) (statute of limitations waived where not pleaded by defendant as an affirmative defense); Dorris v. State, 360 S.W.3d 260, 269 (Mo. 2012) (noting that “[a] defendant who does not raise a statute of limitations defense in the trial court waives the right to assert that defense”; citing Longhibler v. State, 832 S.W.2d 908, 911 (Mo. 1992)); Williams v. City of Kansas City, 641 S.W.3d 302 , 329 n. 9 (Mo. App. W.D. 2021) (en banc) (holding that “‘the timely filing requirement [for administrative complaints under § 213.075.1] is subject to th

2019This is consistent with the fact that the statute of limitations is an affirmative defense that can be permissibly "raised . . . before a final disposition of the case." Dorris v. State, 360 S.W.3d 260, 268 (Mo. banc 2012); see also, State v. Cotton, 295 S.W.3d 487, 490 (Mo. App. E.D. 2009) (holding the affirmative defense of the statute of limitations must be raised in a criminal case "'before final disposition of the case whether by conviction or plea, or it is waived'") (quoting Longhibler v. State, 832 S.W.2d 908, 910 (Mo. banc 1992)).

2015Marine Supply Corp., 854 S.W.2d 371, 383 (Mo. banc 1993). “ ‘A pleading that makes a conclusory statement and does not plead the specific facts required to support the affirmative defense fails to adequately raise the alleged affirmative defense, and the alleged affirmative defense fails as a matter of law.’ ” Echols v. City of Riverside, 332 S.W.3d 207, 211 (Mo.App.2010) (citation omitted).

2015ITT, 854 S.W.2dat 383. “ ‘A pleading that makes á conclusory statement and does not plead the specific facts required to support the affirmative defense fails to adequately raise the alleged affirmative defense, and the alleged affirmative defense fails as a matter of law.’” Delacroix v. Doncasters, Inc., 40. 7 S.W.3d 13, 38 (Mo.App.2013) (quoting Echols v. City of Riverside, 332 S.W.3d 207, 211 (Mo.App.2010)).

2025“To properly assert an affirmative defense, [the University] must ‘clearly and precisely [assert] additional facts which serve to avoid the [University’s] legal responsibility.”’ Williams v. City of Kansas City, 8 641 S.W.3d 302 , 315 (Mo. App. W.D. 2021) (quoting Ditto, Inc. v. Davids, 457 S.W.3d 1, 15 (Mo. App. W.D. 2014).

2023"For summary judgment to be granted to a defendant on the basis of an affirmative defense, the movant must establish that there is no genuine dispute as to the existence of each of the facts necessary to support movant's properly-pleaded [sic] affirmative defense." Ditto, Inc. v. Davids, 457 S.W.3d 1, 14-15 (Mo. App. W.D. 2014). "[A]n affirmative defense is asserted by the pleading of additional facts not necessary to support a plaintiff's case which serve to avoid the defendants' legal responsibility even though plaintiff['s] allegations are sustained by the evidence." Id. at 15 .

1998See generally York v. Authorized Investors Group, Inc., 931 S.W.2d 882, 887 (Mo.App.1996) (noting burden of proof rests on proponent of evidence); Olinger v. General Heating & Cooling Co., 896 S.W.2d 43, 50 (Mo.App.1994) (noting burden of proof remains on proponent of will); Stewart v. K-Mart Corp., 747 S.W.2d 205, 208 (Mo.App.1988) (“The burden of proof on an affirmative defense rests with the proponent of the defense”).

1996“The burden of proof on an affirmative defense rests with the proponent of the defense.” Stewart v. K-Mart Corp., 747 S.W.2d 205, 208 (Mo.App.1988).

2019In its sixth point relied on as well as in the argument portion of its brief, Defendant actually refers to its requested “setoff.” The Missouri Supreme Court has noted the affirmative defense under section 537.060 is occasionally referred to as a “setoff,” rather than the more accurate term of “reduction.” See Sanders v. Ahmed, 364 S.W.3d 195 , 201 n.2 (Mo. banc 2012).

2019Sanders, 364 S.W.3d at 211 (noting that a reduction under Section 537.060 is a satisfaction of an amount owed, and must be pleaded and proved as an affirmative defense).

2016This is but the corollary of the accepted rule that the burden of proof of an affirmative defense rests upon the one asserting the defense.” McLeod v. Marion Labs., Inc., 600 S.W.2d 656, 657 (Mo.App.1980) (internal citations omitted).

2016The absence of a pleaded factual basis in the petition for this element. of Titan’s section 323.060(4) immunity affirmative defense precluded the trial court from finding that the affirmative defense is “irrefutably established by the plaintiffs pleading.” McLeod, 600 S.W.2d at 657 . .We need not, therefore, identify, any other elements of this affirmative defense or address whether a factual basis supporting, those elements exists in the allegations in the Allen’s petition.

2017Once that presumption arises, it falls to the plaintiff to show that the injuries are divisible." Sanders v. Ahmed , 364 S.W.3d 195 , 213 (Mo. banc 2012). " 'A reduction under section 537.060 is a satisfaction of an amount owed,' and '[s]atisfaction is an affirmative defense' which 'must be pleaded and proved.' " Payne , 414 S.W.3d at 539 (quoting Norman v. Wright , 100 S.W.3d 783 , 785 (Mo. banc 2003) ). " 'The defendant bears the burden of pleading and proving the elements of the defense.' " Id. at 539-40 (quoting Sanders , 364 S.W.3d at 211 ).

2017Once that presumption arises, it falls to the plaintiff to show that the injuries are divisible." Sanders v. Ahmed , 364 S.W.3d 195 , 213 (Mo. banc 2012). " 'A reduction under section 537.060 is a satisfaction of an amount owed,' and '[s]atisfaction is an affirmative defense' which 'must be pleaded and proved.' " Payne , 414 S.W.3d at 539 (quoting Norman v. Wright , 100 S.W.3d 783 , 785 (Mo. banc 2003) ). " 'The defendant bears the burden of pleading and proving the elements of the defense.' " Id. at 539-40 (quoting Sanders , 364 S.W.3d at 211 ).

2025Rule 55.08’s list of affirmative defenses is not exhaustive and pertains to “any other matter constituting an avoidance or affirmative defense.” An affirmative defense is one that states, “even if the allegations of the petition are taken as true, the plaintiff cannot prevail because there are additional facts that permit the defendant to avoid the legal responsibility alleged.” Dorris v. State, 360 S.W.3d 260, 268 (Mo. banc 2012).

2024See Bateman v. Platte Cnty., 363 S.W.3d 39, 42 (Mo. 2012) (statute of limitations waived where not pleaded by defendant as an affirmative defense); Dorris v. State, 360 S.W.3d 260, 269 (Mo. 2012) (noting that “[a] defendant who does not raise a statute of limitations defense in the trial court waives the right to assert that defense”; citing Longhibler v. State, 832 S.W.2d 908, 911 (Mo. 1992)); Williams v. City of Kansas City, 641 S.W.3d 302 , 329 n. 9 (Mo. App. W.D. 2021) (en banc) (holding that “‘the timely filing requirement [for administrative complaints under § 213.075.1] is subject to th

2015All references to statutes are to RSMo 2000, unless otherwise indicated. 3 asserting the affirmative defense of the running of the applicable statute of limitations has the burden of not only pleading but proving it.” Lomax v. Sewell, 1 S.W.3d 548, 552-53 (Mo.App.

2014Thus, though the Salvation Army cites precedent suggesting that even special statutes of limitation constitute “an affirmative defense and must be pleaded as such,” Lomax v. Sewell, 1 S.W.3d 548, 552 (Mo.App.W.D.1999), we find this precedent inapposite since, here, the will presentment statute argument was presented to the trial court in the form of a pleading to the trial court prior to final judgment, and the trial court permitted the late-filed defense argument.

2025Section 290.140.1. 6 “An affirmative defense seeks to defeat or avoid the plaintiff’s cause of action, and avers that even if the allegations of the plaintiff’s petition are taken as true, he or she cannot prevail because there are additional facts that permit the defendant to avoid the legal responsibility alleged.” Glasgow Enters., Inc. v. Bowers, 196 S.W.3d 625, 630 (Mo. App. E.D. 2006) (internal quotations omitted).

2024See, e.g., Chouteau Auto Mart., Inc. v. First Bank of Mo., 148 S.W.3d 17, 26 (Mo. App. W.D. 2004) (holding that raising an affirmative defense in a summary judgment pleading fails to satisfy the requirements of Rule 55.08 and does not operate to amend an earlier filed pleading); Glasgow Enters., Inc. v. Bowers, 196 S.W.3d 625, 630 (Mo. App. E.D. 2006) (holding that because an affirmative defense must be properly pled in an answer to be considered in connection with a motion for summary judgment, defendant's failure to raise affirmative defense cannot be relied on to defeat plaintiff's motion f

2011Sheehan v. Sheehan, 901 S.W.2d 57, 59 (Mo. banc 1995) (quoting Int'l Plastics Dev., Inc. v. Monsanto Co., 433 S.W.2d 291, 294 (Mo. banc 1968)).

2007“When an affirmative defense is asserted, such as a statute of limitation, the petition may not be dismissed unless it clearly establishes ‘on its face and without exception’ that it is barred.” Sheehan v. Sheehan, 901 S.W.2d 57, 59 (Mo. banc 1995) (quoting International Plastics Development, Inc. v. Monsanto Co., 433 S.W.2d 291, 294 (Mo. banc 1968)).

2024“Generally, an announcement of ‘no objection’ amounts to an affirmative waiver of appellate review of the issue.” State v. Collins, 188 S.W.3d 69, 77 (Mo. App. E.D. 2006); State v. Jones, 619 S.W.3d 138 , 153 (Mo. App. E.D. 2021) (affirmative waiver of appellate review also waives plain-error review).

2023Analysis “An announcement of ‘no objection’ amounts to an affirmative waiver of appellate review of the issue.” Jones, 619 S.W.3d at 153 (quoting Collins, 188 S.W.3d at 77 ).

2023World Enters., Inc. v. Midcoast Aviation Servs., Inc., 713 S.W.2d 606, 609 (Mo. App. E.D. 1986); Schimmel Fur Co. v. Am.

1989Parker v. Pine, 617 S.W.2d 536, 542 (Mo.App.1981) (citations omitted) (evidence that the plaintiff benefited from trustees’ actions need not be pleaded in suit for breach of fiduciary duty); see also World Enterprises, Inc. v. Midcoast Aviation Services, Inc., 713 S.W.2d 606, 608-09 (Mo.App.1986) (limitation of liability contract clause need not be pleaded as an affirmative defense in a breach of contract action).

2022Louis, 293 S.W.3d 133, 139 (Mo. App. E.D. 2009). 4 of proving the affirmative defense of official immunity applies.

2014Louis, 293 S.W.3d 133, 137 (Mo.App. 2009) (“Missouri courts have routinely held that sovereign immunity is not an affirmative defense”); Townsend v. Eastern Chemical Waste Systems, 234 S.W.3d 452, 470 (Mo.App. 2007) (“it is well settled in Missouri that sovereign immunity is not an affirmative defense”).

2019(Emphasis added.) An announcement of “no objection” constitutes an affirmative waiver of appellate review, and “[u]nder such circumstances, ‘even plain error review is not warranted.’” State v. Lloyd, 205 S.W.3d 893, 901 (Mo. App. S.D. 2006) (quoting State v. Markham, 63 S.W.3d 701, 707 (Mo. App. S.D. 2002)).

2018"An announcement of 'no objection' amounts to an affirmative waiver of appellate review of the issue." State v. Markham , 63 S.W.3d 701 , 707-08 (Mo. App. S.D. 2002).

2018Inc. , 254 S.W.3d 51 , 59 (Mo. App. 2008) ).

2009“An affirmative defense contemplates additional facts not included in the allegations necessary to support plaintiff’s case and avers that plaintiffs theory of liability, even though sustained by the evidence, does not lead to recovery because the affirmative defense allows the defendant to avoid legal responsibility.” City of Peculiar v. Effertz Bros Inc., 254 S.W.3d 51, 59 (Mo.App.

2011While the court of appeals has stated that section 211.464 requires that "[a] parent must make a clear and unequivocal waiver on the record of his or her decision to proceed to trial [on the merits of a TPR petition] without a court appointed attorney," In re B.L.E., 723 S.W.2d 917, 920 (Mo.App.1987), no statute or case has imposed the requirement of an affirmative waiver of counsel for transfer of custody proceedings.

2009The mother, according to the court, “obviously wanted an attorney, and it was incumbent upon the court to either appoint counsel or obtain an affirmative waiver of her right to counsel.” Id. (emphasis in original).

2024"An avoidance is 'an affirmative defense to an affirmative defense.'" Rosales v. Benjamin Equestrian Ctr., LLC, 597 S.W.3d 669 , 683 (Mo. App. W.D. 2019) (quoting Allen v. Titan Propane, LLC, 484 S.W.3d 902, 905 (Mo. App. S.D. 2016)).

2021“A defense consisting of an affirmative avoidance to any matter alleged in a preceding pleading must be pleaded.” Rule 55.01. “[A]ny requirement to plead an affirmative avoidance cannot [] arise unless and until the affirmative defense sought to be avoided has been properly pleaded.” Allen v. Titan Propane, LLC, 484 S.W.3d 902, 905 (Mo. App. S.D. 2016).

2019Furthermore, this Court has unequivocally held Rule 25.03 "imposes an affirmative requirement of diligence and good faith on the state to locate records not only in its own possession or control but also in the control of other governmental personnel ." Merriweather v. State , 294 S.W.3d 52 , 55 (Mo. banc 2009) (emphasis added).

2017Rule 25.03 requires the State, upon written request of defendant’s counsel, to disclose “[a]ny material or information, within the possession or control of the [Sjtate, which tends to negate the guilt of the defendant as to the offense charged, mitigate the degree of the offense charged, or reduce the punishment.” If the defense request designates material or information “in the possession or control of other governmental personnel, the [S]tate shall use diligence and make good faith efforts to cause such materials to be made available to the defense counsel....” Rule 25,03 “imposes an affirma

2014However, if the exclusivity of the Workers’ Compensation Law “appears from the face of the petition, a defendant can also properly file a motion to dismiss for failure to state a claim upon which relief can be granted or for judgment on the pleadings pursuant to Rule 55.27(b) if the affirmative defense appears from the petition and other pleadings.” Id. at 679 n. 2 (internal citation and emphasis omitted).

2011“A pre-trial dismissal based on an affirmative defense must be granted under the standards of summary judgment.” Id. (citing Fortenberry v. Buck, 307 S.W.3d 676, 679 (Mo.App.