& Video Archives, Session (c) Affirmative Defenses. Unlike prior procedure, Rule 8(a)(2) permits the pleader to seek in his claim both legal and equitable relief, either together or in the alternative. Affirmative Defense - Waiver CACI No. Spreadsheet, Minnesota 0000006151 00000 n Clerk, Fiscal ASI asserted many claims against RHCT, including one for breach of contract. This will control in the event of a default judgment, seeRule 54(c). Comparisons, Bill 0000004535 00000 n Notes of Advisory Committee on Rules1966 Amendment. See Conn.Practice Book (1934) 107, 108, and 122; Conn.Gen.Stat. %PDF-1.5 13, 18; and to the practice in the States. . endobj A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the courts jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and. Day, Combined (As amended Feb. 28, 1966, eff. 0000006665 00000 n Indeed, the plaintiffdid notarguethat it would be surprised or prejudiced by the defense, and even fully addressed the defendants partial-constructive-eviction defense in its reply papers. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled. . In pleading to a preceding pleading, a party shall set forth affirmatively any matter constituting an avoidance or affirmative defense including but not limited to the following: accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of a condition Initially, a movant must determine whether the affirmative defense at issue legally qualifies as an affirmative defense or is simply gobbledygook masquerading as one. Currently before the Court is Plaintiffs' Rule 12(f) motion to strike Defendants' second affirmative defense, which invokes discretionary act immunity under Cal. Indeed, the plain language of the court rule requires a party asserting affirmative defenses to "state the facts constituting" the affirmative defenses listed. On reply, the plaintiff argued that the Court should reject thedefendants partial-constructive-eviction defense because it was not pleaded as an affirmative defense in the defendants answer. When pleading defenses, certainty is required; pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient. endobj Co., 2021 WL 2291101, at *3 (D. Conn. June 4, 2021) ("As these are facts that . T 7. by Topic (Index), Statutes It should be emphasized that Rule 8(a)(1) does not alter the statutory requirements regarding the omission of names in Superior Court divorce proceedings, G.L. This principle, which so far as the Reporters can determine has not yet been enunciated by the Massachusetts Court, holds that if a defendant alleges a fact, he cannot be heard to complain if the trial court charges the jury that the defendant has assumed the burden of proving that fact. A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal or equitable grounds. Affirmative defenses are legal defenses that raise new facts or issues not raised in the Complaint. Slip op. Rule 8 reflects the view that the primary function of pleadings is not to formulate the precise issues for trial but rather to give fair notice of the claims and defenses of the parties. 0000003981 00000 n endobj )|\\%%2J7bSz6mMg1|F99g&D8 05=OMd;\w/b1`ortQ!F=bJpx[88Vi In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including: accord and satisfaction; arbitration and award; assumption of risk; contributory negligence; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches; license; payment; release; res judicata; 2d 136, 138 (Fla. 4th DCA 1988). 0000003171 00000 n Schedules, Order Rule 1.140(b) permits motions to strike insufficient legal defenses. ?CAK:3SzlP:kJw. 0000002715 00000 n Affirmative Defense - Waiver. )9]-f28\.1%y[^ $)- tD"{P"SPI{1\p7HERT W? xref Barret v. City of Margate, 743 So. 11 0 obj 8. 0000000968 00000 n 1960), cert. .". Legislative Auditor, Legislative Coordinating 222, 5 L.Ed.2d 189 (1960): "It is difficult to believe that counsel who signed this answer had good grounds to assert, among other things, that his client did not either own, operate, or manage the vessel, that the plaintiff was not employed by the stevedore, and that he was not injured, or even aboard the vessel. . <> See G.L. Committee Schedule, Committee . hXM#Z|rX*e1j_J t~?|A?mv3'W#VDeXl{ziFQm?/`^Yg?a]%K/jdk8vp<2Gu&9>7w45/||?o_1qgaqc:4yCy=" %$[s# Florida Rules of Civil Procedure 1.140(b) and (f) both permit motions to strike. A pleader who intends in good faith to deny only a part or to qualify an averment shall specify so much of it as is true and material and shall deny only the remainder. In . II. That [name of plaintiff] knew [name of defendant] was required to [insert . 0000000556 00000 n A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal or equitable grounds or both. These changes are intended to be stylistic only. affirmative defense. ", "Second, the declaration shall state concisely and with substantial certainty the substantive facts necessary to constitute the cause of action.". An affirmative defense is one that admits the cause of action in the initial pleading but avoids liability, in whole or in part, by allegations of excuse, justification, or other matter negating the cause. Ze#0_0\_N8hEFIvHtO*P6uQfz~"qf]-Tw\7dUcMnFR =[0! Publications, Legislative Reference (B) admit or deny the allegations asserted against it by an opposing party. 2d 211, 212 (Fla. 3d DCA 1984). Moreover, all affirmative defense elements must be pled. Topic (Index), Rules 923 (1957). (3) a demand for the relief sought, which may include relief in the alternative or different types of relief. c. 231, 7 (Sixth) (providing that a plaintiff shall not be required to elect between causes of action where the remedies are inconsistent). If either of these are absent, then a plaintiff/counter-plaintiff should strongly consider moving to strike the deficient affirmative defense. Under Rule 8(c) such disputation is called an affirmative defense; the Rule requires the defendant to set forth any and all affirmative defenses, including, as under prior law, "any facts which would entitle him in equity to be absolutely and unconditionally relieved against the plaintiff's claim or cause of action or against a judgment recovered by the plaintiff in such action,"G.L. See alsoDavis v. H. S. & M. W. Snyder, Inc., 252 Mass. startxref 625, 630, 48 N.E.2d 668, 671 (1943), and the substantive allegations had to set forth the essential elements of a recognized cause of action. A helpful tip is to remember that an affirmative defense cannot stand on its own if the complaint is dismissed. Committee, Side by Side Please let us know how we can improve this page. Some page levels are currently hidden. This button displays the currently selected search type. The firm is committed to the zealous representation of its clients and the effective use of their resources in litigation involving business and commercial disputes. of Business, Calendar 19, r.r. Courts will, from time-to-time, consider an unpleaded defense ifthe adverse party has notice of it through channels other than the answer. Asserting legally insufficient affirmative defenses comes at a cost, which at the very least will require you to expend litigation resources at a motion hearing noticed by the government to strike your affirmative defenses under Fla. R. Civ. A party's right under Rule 8(e)(2) to state claims based upon inconsistent remedies does not alter Massachusetts practice, see G.L. Thereafter, the plaintiff must file a reply to the affirmative defense. SeePayson v. Macomber, 85 Mass. Your analysis of the contract claim leads you to conclude that the contract is void because performance would require your client to violate certain labor laws. Gomez v. J. Jacobo Farm Labor Contr., Inc., 188 F.Supp.3d 986, 991 (E.D. However, they are not the same. endobj g*v &l3cbB]X!RL2nrd>=^$*PQ/O@m{7+[AeTg@eBG%:VP;n5 bmRA^e"/cM0]f8DOL.lg&1\#&N![kW! true Few cases have caused as great a concern as the verdict finding _____ not guilty by reason of insanity in his trial for the 1981 shooting of President Ronald Reagan. %%EOF & reports. Additionally, it should be attacked based upon whether it sufficiently pleads the affirmative defense with the requisite certainty to survive a motion to strike. G.L. Rule 2:12. Me? 4. affirmative defense is stricken without prejudice. 4 0 obj (4) Denying Part of an Allegation. 336. In effect, an affirmative defense says, Yes, I did it, but I had a [lawful] reason. Id. P. 1.110(d); St. Paul Mercury Ins. Some affirmative defenses are inapplicable in government litigation, while others carry . 3. Review, Minnesota Issues Accord and Satisfaction, Arbitration and Award, Assumption of the Risk, Contributory Negligence, Discharge in Bankruptcy, Duress, Estoppel, Failure of Consideration, . All pleadings shall be so construed as to do substantial justice. Video, Broadcast TV, News, & Photos, Live Who Represents (3) Since one of the major purposes of Rule 8(b) is elimination of the general denial except in those rare cases where the pleader intends in good faith to controvert all the averments of the preceding pleading, particularization of specific situations requiring a specific denial tends to weaken the emphasis on this goal. endstream endobj 436 0 obj <>stream Blvd., St. Paul, MN 55155, Pleading to be Concise and Direct; Consistency, Minnesota House of A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain a short and plain statement of the claim showing that the pleader is entitled to relief and a demand for judgment for the relief sought; if a recovery of money is demanded, the amount shall be stated. Roster, Election In contrast, an affirmative defense is a defense that, if proven, would mitigate or eradicate the defendant's negligent conduct alleged in the complaint. 9 0 obj Rule 8(a)(1) provides that a pleading shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief alters prior practice. 216, 218 (1868). When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, on such terms as justice may require, shall treat the pleading as if there had been a proper designation. Constitution, State ls;+~s& g++1P(r5"ba%BN`/LbiT7CtsDF AKe{skzg;U}JYA:9>5k?irU&^/+3^l"_D~%QO D[ And so, lawyers tasked with drafting an answer will oftenconsult a checklist to ensure that all relevant affirmative defenses are sufficiently pleaded. Any subsequent statutory amendments toG.L. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so. !cx}JHVA^" While RHCT has referred to the issue of having the permission of the site owner during the pendency of this case, for example, by demanding that ASI provide evidence of permission to use the site when the Third Location was specified, the issue appears to have been touched on only in the context of questioning whether RHCT would be able to access the site and complete delivery. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest. Rule Status, State An affirmative defense may be insufficient either as a matter of law or as a matter of pleading. An affirmative defense to a civil lawsuit or criminal charge is a fact or set of facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant's otherwise unlawful conduct. c. 231, 30 could reasonably be interpreted to deal with the matter of capacity of a party for other purposes, these latter instances are so rare that they do not warrant specific mention in Rule 8(b). 0000002937 00000 n (1937) 242, with surprise omitted in this rule. Guide, Address 9. Behind Rule 8(b) lies the simple principle that a defendant's answer should unmistakably indicate to both Court and plaintiff precisely which aspects of the complaint are admitted, and which are controverted. (1937) ch. When expanded it provides a list of search options that will switch the search inputs to match the current selection. 2d 642, 645 (Fla. 1972); Gonzalez v. NAFH Nat'l Bank, 93 So. matter in the form of an affirmative defense. %PDF-1.4 % 49ViuPw-VOpQ^oZ=U kJ zqAPo#; ad q >D~_$&u G`5~GxE-wlx BV-biW;1whu\u^,zl;$S~FB]z1 oH!^%L-ky%N)]tCm(*m%2dqXI4D\I"XHYi Daily, Combined Media For the second sentence see [former] Equity Rule 31 (ReplyWhen RequiredWhen Cause at Issue). Please remove any contact information or personal data from your feedback. Council, Schedules, Calendars, This is of course the natural corollary of the notice pleading theory behind the Rules generally and Rule 8(a) in particular. (d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency. All statements shall be made subject to the obligations set forth inRule 11. In order to raise an affirmative defense of fraud, the "pertinent facts and circumstances constituting fraud must be pled with specificity, and all the essential elements of fraudulent conduct must be stated." Zikofsky v. Robby Vapor Systems, Inc., 846 So.2d 684, 684 (Fla. 4th DCA 2003) (citation omitted). Nvwe4 To comport with prior law, Rule 8(b) also includes a provision that an allegation in any pleading that a place is a public way shall be taken as admitted unless a party specifically denies such allegation. In responding to a pleading, a party must: (A) state in short and plain terms its defenses to each claim asserted against it; and. <> In addition to general denials, you assert several affirmative defenses, including the defense of illegality. Brighams Cafe Inc. v. Price Bros. Co., 334 Mass. 0 ASI argues that an illegality defense is an affirmative defense which must be pleaded in a responsive pleading or addressed in a motion to dismiss lest it be waived. Business, Senate Co. v. Coucher, 837 So. Labels, Joint Departments, Directory, Legislative If it is not so pleaded, it is waived. The Group B affirmative defenses are those mentioned in Section 5 (b), Rule 6 of the Rules of Civil Procedure. 1. Woodfield, the court held that a defendant "must plead an affirmative defense with enough specificity or factual (Page, 1926) 11305, 11314; Utah Rev.Stat.Ann. 434 0 obj <>stream 13 0 obj Corp. v. Music & Television Corp., 339 Mass. (a) Claim for Relief. Please do not include personal or contact information. 12 0 obj 146 16 While Rule 8(a)(1) allows the pleading of conclusions,Rule 12(e)(motion for more definite statement) andRule 12(f)(motion to strike) cure the only real impropriety of the pleading of conclusions, namely, that the pleading is too vague to form a responsive pleading. Moreover, all affirmative defense elements must be pled. The party raising the affirmative defense has the burden of proof on establishing that it applies. This is based on the theory that a later amendment of the answer could properly introduce the defense, and that something as drastic as summary judgment should not be predicated on a pleading omission that a simple amendment could correct. <> Journal, Senate Just as in the statement of a claim, the requirement of certainty will be insisted upon in the pleading of a defense. Walker v. Walker, 254 So. If the answer to either question is no, then the affirmative defense should be stricken. Most of the Equipment was located at the Brooklyn Terminal. Committee An allegationother than one relating to the amount of damagesis admitted if a responsive pleading is required and the allegation is not denied. Compare also [former] Equity Rule 18 (PleadingsTechnical Forms Abrogated). Discovery Sanctions Alert: Failure to Include Withheld Items on Privilege Log Lands Party in Hot Water, Commercial Division Grants $1 Million Punitive-Damage Award for Diversion of Companys IP in Breach of Fiduciary Duty, Commercial Division Says Not Every Storm Triggers Force Majeure, LIMITS ON MOTIONS IN LIMINE: A NEW PROPOSAL TO AMEND COMMERCIAL DIVISION RULE 27, Infancy or other disability of the defendant. CPLR 3018 (b) contains the following, non-exhaustive list of defenses that should be affirmatively pleaded in an answer: Arbitration and award Collateral Estoppel Culpable conduct of the plaintiff under CPLR Article 14-A Discharge in bankruptcy Illegality Fraud Infancy or other disability of the defendant Payment Release Res Judicata Moreover, it is necessary to allege all the elements of an affirmative defense. ,#R({H8d3v+|"}R Session Daily, Senate Media A;C-+% (1) In General. An affirmative defense is a reason given by the defendant for why the plaintiff should not win the lawsuit, even if what the plaintiff says is true. :n/Xg;Zz+9wA JFMP7-Yr[r`uMpu6Mkz)mc8czq3"J,|nr The concept of a defendant being allowed to plead the statute of limitations as a defense is derived from the common law. RHCT claimed that by delivering the Equipment to the locations identified by ASI, it would have required RHCT to trespass or otherwise violate the law. Besides a waste of printer ink, insufficiently pled and fake affirmative defenses bog down the litigation and may permit an opposing party to engage in an otherwise impermissible fishing expedition disguised as permissible discovery to supposedly bolster a valid affirmative defense. 0000001372 00000 n This requirement was omitted from Rule 8(b) for several reasons: (1) Unlike the questions of the genuineness of a signature or the public ownership of a place, which are susceptible of definite answers and will not often be denied, the legal relationship between the registered owner of a motor vehicle and its operator will often call for a conclusion upon which reasonable minds may differ. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation. 5 c. 231, 38: "The allegations and denials of each party shall be so construed by the court as to secure as far as possible substantial precision and certainty.". N]P~F9n^RI1[`W)r6LG|9ZOnvp#1XlW#_-BA2tqHLXO,T@kO;@cGh(fePx[nWN?x%JVZP$n <>cHzS&$LFyltyxZv;;-L#}mk~Faidz--Og-)9h7lvq q=+:GFbgJ&9;Hn`O?t8~"Zhc3g+K:dFr6yZjpTfch+f%]^79@v^;\E Fla. R. Civ. The provisions ofRule 15are available to relieve the defendant of the consequences of any admission subsequently discovered to be incorrect. (5) Lacking Knowledge or Information. An affirmative defense is a defense in which the defendant introduces evidence, which, if found to be credible, will negate criminal liability or civil liability, even if it is proven that the defendant committed the alleged acts. , ](m7v$Eg~^e&,>Ce(vK)4cw8KUw\%,3Li)}/Ys[ZBY]fY8|9`T P5lI +PGU?%F\. t 5V.9jOL2_%&s.vF`"bH`cLcR3c5fC^|y>k>h-^6V]0okDsOmK9z*oorMhl@qOvav %V,1}KDUQ\Q2Lpp'=GFX @:xt:)n 0pdat'58z[g02E2~5%j ;Uc#[HLXFe,Au'PC}3N9tq( NwgHlD7!f Learn more in our Cookie Policy. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, the pleader may make denials as specific denials of designated averments or paragraphs, or may generally deny all the averments except such designated averments or paragraphs as the pleader expressly admits. Many litigants are familiar with the well-settled rule that an affirmative defensewill bewaived if it is not included in a CPLR 3211(a) motion to dismiss or in the answer (see CPLR 3211[e]). A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial. Rock-Ola Mfg. 17 0 obj Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided. 121 (1931). Appeals had held that "[a]n affirmative defense is subject to the same pleading requirements as is the complaint." Woodfield v. Bowman, 193 F.3d 354, 362 (5th Cir. The first sentence is similar to [former] Equity Rule 30 (AnswerContentsCounterclaim). A properly pled affirmative defense includes ultimate facts sufficient to provide notice of the proof the defendant intends to rely upon to defeat the plaintiffs claim. S. Fla. Coastal Elec., Inc. v. Treasure on the Bay II Condo Assn, 89 So. *"KFK>1,@B4EHb(HGIRUHew:,^rJuHWOzSK3g6F6U@kYdttm6jnaQE.FuzsF-TP]Q)_Co`4ZpQJZWVpnAT^Jb&xV{ That part of former G.L. c. 231, 22, which permitted "the general issue" in real and mixed actions. Note to Subdivision (f). With respect to the first affirmative defense, respondent pled that because the pond constructed on the subject parcel is a permissible [ 13 0 R] hAk0A^cL!a2lC But simply listing affirmative defenses is not enough. SeeRock-Ola Mfg. If you need assistance, please contact the Trial Court Law Libraries. 3 0 obj Senate, Secretary endstream endobj 435 0 obj <>stream Calendar, Senate <> 0000002487 00000 n on MN Resources (LCCMR), Legislative Deletion of former Rule 8(e)(2)s whether based on legal, equitable, or maritime grounds reflects the parallel deletions in Rule 1 and elsewhere. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. When a pleader intends in good faith to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. 2d 890, 891 (Fla. 3d DCA 1971). Rule 8(d) sets up a straightforward way of dealing with failure to deny averments: (1) If the averments are contained in a pleading to which a responsive pleading is authorized, the pleader must either utilize the opportunity or be taken to have waived it. See [former] Equity Rules 25 (Bill of ComplaintContents), and 30 (AnswerContentsCounterclaim). . endstream endobj 438 0 obj <>stream 2d 1054, 1057 (Fla. 3d DCA 2012). Constitutional Amendments, Multimedia Audio, Gatt v. Keyes Corp., 446 So. A denial must fairly respond to the substance of the allegation. stream Indeed, a defense will be stricken if it is insufficient as a matter of law. The force and application of Rule 11 are not diminished by the deletion. Commission (LCC), Legislative-Citizen Commission Services, Legislators History Guide, Legislators Past & & Task Forces, Bills In Conference 0000003431 00000 n A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted. Roster, Upcoming An affirmative defense is legally insufficient if it "lacks merit under any set of facts the defendant might allege."Neylon v. 16 0 obj 319 (1925);McNulty v. Whitney, 273 Mass. Hawes v. Ryder, 100 Mass. Please limit your input to 500 characters. xref The strictures ofRule 11apply to encourage admission of those allegations which defendant knows to be true, even if without such admission, plaintiff would be put to expense or difficulty in proving them, or might even be unable to prove them at all. Discharge in bankruptcy. ASI sought the return of the Equipment and recovery of compensatory and punitive damages. i A party shall state in short and plain terms any defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. The Lease included provisions that were designed to protect ASIs Equipment and to assure an orderly transfer of the Equipment from RHCT at the end of the lease period. <> P. 1.140(b). Rule 8(b) thus proscribes promiscuous use of the general denial except in those rare cases where defendant (and, more important, his attorney) in good faith denies each and every allegation in the complaint. 0000005594 00000 n The degree of certainty required in a pleading is that the pleader must set forth the facts in such manner as to reasonably inform his adversary of what is proposed to be proved in order to prove the latter with a fair opportunity to meet it and prepare his evidence. Id. The change here is consistent with the broad purposes of unification. 2016). The Reporters agree with Professor Moore, 2A Moore, Federal Practice, 8.27[2], that the mere raising of the defense should not shift any burden to the defendant; they recommend this position unequivocally. Johnson answered and pled "the affirmative defense of the four (4) year Statute of . CPLR 3018 is clear: an affirmative defense must be pleaded to be preserved. A .mass.gov website belongs to an official government organization in Massachusetts. This article focuses on Rule 1.140(b) and how to strike insufficiently pled and fake affirmative defenses. It Seems You Cant Waive The Affirmative Defense Of Illegality After All, The Anti-Retaliation Provisions Of The False Claims Act, Eligibility Under The IRS Whistleblower Program, The Process of Submitting A Whistleblower Claim, The Whistleblower Must Voluntarily Provide Original Information, The Whistleblowers Information Must Lead To a Successful Enforcement Action, The Confidentiality Protections Under The SEC/CFTC Whistleblower Program, Anti-Retaliation Under The SEC And CFTC Whistleblower Programs, KNET, INC. V. RUOCCO: Issuing Stock For Inadequate Consideration, Arbitration Agreements May Not Be Enforceable Even When They Are Clear And Unambiguous. Rule 1.110 states: "In pleading to a preceding pleading a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow . *X H y0[.\1)_} 0)7l5 H (6) Effect of Failing to Deny. New Dimensions, 286 Va. at 36, 743 S.E.2d at 271. Rather, an affirmative defense must raise some new matter which defeats the opposing partys otherwise valid claim. (Burns, 1933) 21004, 21015; 2 Ohio Gen.Code Ann. c. 231, 31. 6. Fla. R. Civ. On March 27, 2012, a few days before the expiration of the Lease, ASI advised RHCT of the location to deliver the Equipment. SeeArena v. Luckenbach Steamship Company, 279 F.2d 186, 188- 189 (1st Cir. Obviously separate judgments, based upon inconsistent theories, against the same person for the same acts, cannot be outstanding simultaneously. A party may state as many separate claims or defenses as it has, regardless of consistency. In your jurisdiction, the affirmative defense of fraud has five elements, (1) a false representation; (2) about a material fact; (3) made with knowledge of its untruth; (4) with intent to deceive; and (5) defendant relied on the representation. Laws, Statutes, DFL/GOP, House Schedules, Order of affirmative defense must be pled to avoid unfair surprise or prejudice to the plaintiff.
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