SCOKY Discusses Narrow Exception to Waiver of Affirmative Defense Not Pled in Answer to Original Complaint

In a recent decision, the Kentucky Supreme Court noted the general rule that failure to plead an affirmative defense in response to the original complaint precludes the assertion of that defense in response to an amended complaint, but found an exception where the ability to raise a defense not previously pled was effectively reinstated by substitution of a new plaintiff and by assertion of new claims.

In United Brotherhood of Carpenters v. Birchwood Conservancy, 454 S.W.3d 837 (Ky. 2014), the Supreme Court held that a defendant could assert a previously unasserted defense of the defendant’s lack of capacity to be sued in its answer to an amended complaint where the original plaintiff also lacked capacity to sue and then was replaced by another plaintiff that had such capacity and that added new claims in its amended complaint. The Court cited with approval a 4th Circuit decision holding that only those defenses that were not available when the original answer was filed may be raised in an answer to an amended complaint. See Rowley v. McMillan, 502 F.2d 1326 (4th Cir. 1974).

The Court’s holding as to waiver of an affirmative defense sought to be pled in answer to an amended complaint would appear to go beyond the waiver discussed in CR 12.08(1) relating to certain fundamental defenses (lack of personal jurisdiction or insufficiency of process or service) that are waived if not made in a motion to dismiss or in an original responsive pleading. Technically, such a waiver was the issue (specifically, lack of personal jurisdiction) in Rowley v. McMillan, the 4th Circuit case relied on by the Kentucky Supreme Court in Birchwood Conservancy. However, there is other recent Kentucky case law holding that an affirmative defense (in that case, the equitable defense of unclean hands) was waived when it was not timely asserted. See Rose v. Ackerson, 374 S.W.3d 339 (Ky. App. 2012). In that case, though, the defense was raised in post-trial proceedings.

The defense of lack of capacity to sue or be sued is something of a special case, as it is the subject of CR 9.01, which provides that a defendant raising lack of capacity “shall do so by specific negative averment, which shall include such supporting particulars as are within the pleader’s knowledge.”  Birchwood Conservancy did not rely on CR 9.01. Prior case law provides that the capacity defense is waived if not raised with particularity by pleading or motion. See, e.g., Abbott v. Southern Subaru Star, Inc., 574 S.W.2d 684 (Ky. App. 1978).

In addition, the facts of Birchwood Conservancy decision did not involve a motion to file an amended answer under CR 15.01, which permits a party to (1) amend a pleading (including an answer) as a matter of course within 20 days after its filing, or (2) file a motion seeking leave of court to amend. The Rule specifically provides that leave to amend “shall be freely given when justice so requires.” See, e.g., Johnson v. Reeves, 556 S.W.2d 445 (Ky. 1977). Thus, had the defendant in Birchwood Conservancy filed a motion to amend its answer to plead the defense of lack of capacity, a different analysis might have been conducted.

Note: The foregoing post includes commentary reprinted from the forthcoming 2016 supplement to 6 Philipps & Kramer, Rules of Civil Procedure Annotated, 6th ed. (Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2015 Thomson Reuters. For more information about this publication click here.