LaFont v. Decker-Angel, U.S. Court of Appeals, 10th Circuit (1999)
Author: Bram

Cause of action: The following is PL's appeal on trial court's motion to dismiss his claims against DF for fraud, conversion, and constructive trust in relation to a $250K check.

Procedural History: PL appeals on order from DF's motion to dismiss which was granted in the trial court.  On appeal, this court affirms trial court.  DF's counterclaims were denied at trial as well, but were not appealed.

At trial court, DF did not assert any affirmative defenses by way of answer or pretrial order, but initially raised her assertion of a gift during opening arguments at trial.  Over PL's objection they let the evidence in which proved her right.

Facts: PL sued DF for above causes of action. In his complaint and at trial, PL said he gave the check to his ex-wife for payment of financial obligation toward a joint purchase of property, but instead of preserving those funds, she converted them.  DF says he gave her the money in compensation for her services as PL's companion, adviser and lover, and for moving to be with him in UT.  DF denied all allegations of fraud and conversion.

Issue(s): Under FRCP 8(c), did the district court make an error in ruling, over PL's objection, that DF's evidence and testimony that the check was a gift was not waived?

Court's Rationale/Reasoning:Court goes to UT law to determine if PL's giving of a gift does or does not fall under the precepts of FRCP 8(c)'s "any other matters" affirmative defenses category, as if it did, then DF should have raised them pre-trial.  If not, then she is good to go.

UT law says an 8(c) defense must be something which raises a matter outside of PL's prima facie case.  But the raising of the fact that DF's check was not a gift is not outside of that range, it just controverts PL's claim by saying she came about the check lawfully.

Rule: FRCP 8(c) requires a party pleading to a preceding pleading to set for affirmatively all matters which the pleading party intends to use as an avoidance or affirmative defense.  Failure to plead, move FRCP 12(b), or try by consent of both parties an affirmative defense or avoidance waives that defense and bars evidence on the point as a matter of law.

Holding: No. DF's averment that the check was a gift was not an avoidance or affirmative defense, but was introduced instead for the purpose of disproving PL's claims.