Session of 1999
SENATE BILL No. 87
By Committee on Judiciary
9 AN ACT concerning civil procedure; relating to pleadings; claims for
10 relief; amending K.S.A. 1998 Supp. 60-208 and 60-209 and repealing
11 the existing sections.
13 Be it enacted by the Legislature of the State of Kansas:
14 Section 1. K.S.A. 1998 Supp. 60-208 is hereby amended to read as
15 follows: 60-208. (a) Claims for relief. A pleading which sets forth a claim
16 for relief, whether an original claim, counterclaim, cross-claim, or third-
17 party claim, shall contain: (1) A short and plain statement of the claim
18 showing that the pleader is entitled to relief; and (2) a demand for judg-
19 ment for the relief to which the pleader deems such pleader's self entitled.
20 Every pleading demanding relief for damages in money in excess of
$75,000 the amount stated in 28 U.S.C. § 1332, without demanding any
22 specific amount of money, shall set forth only that the amount sought as
23 damages is in excess of
$75,000 the amount stated in 28 U.S.C. § 1332,
24 except in actions sounding in contract. Every pleading demanding relief
25 for damages in money in an amount
of $75,000 or less equal to or less
26 than the amount stated in 28 U.S.C. § 1332 shall specify the amount of
27 such damages sought to be recovered. Relief in the alternative or of sev-
28 eral different types may be demanded.
29 (b) Defenses; form of denials. A party shall state in short and plain
30 terms such party's defenses to each claim asserted and shall admit or deny
31 the averments upon which the adverse party relies. If the party is without
32 knowledge or information sufficient to form a belief as to the truth of an
33 averment, the party shall so state and this has the effect of a denial.
34 Denials shall fairly meet the substance of the averments denied. When a
35 pleader intends in good faith to deny only a part or a qualification of an
36 averment, the pleader shall specify so much of it as is true and material
37 and shall deny only the remainder. Unless the pleader intends in good
38 faith to controvert all the averments of the preceding pleading, the
39 pleader may make denials as specific denials of designated averments or
40 paragraphs, or the pleader may generally deny all the averments except
41 such designated averments or paragraphs as the pleader expressly admits
but,. When the pleader does so intend intends to controvert all averments,
43 the pleader may do so by general denial, subject to the obligations set
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1 forth in K.S.A. 60-211, and amendments thereto.
2 (c) Affirmative defenses. In pleading to a preceding pleading a party
3 shall set forth affirmatively accord and satisfaction, arbitration and award,
4 assumption of risk, contributory negligence, discharge in bankruptcy, du-
5 ress, estoppel, failure of consideration, fraud, illegality, injury by fellow
6 servant, laches, license, payment, release, res judicata, statute of frauds,
7 statute of limitations, waiver, and any other matter constituting an avoid-
8 ance or affirmative defense. When a party has mistakenly designated a
9 defense as a counterclaim or a counterclaim as a defense, the court on
10 terms, if justice so requires, shall treat the pleading as if there had been
11 a proper designation.
12 (d) Effect of failure to deny. Averments in a pleading to which a re-
13 sponsive pleading is required or permitted, other than those as to the
14 amount of damage, are admitted when not denied in the responsive
15 pleading. Averments in a pleading to which no responsive pleading is
16 required or permitted shall be taken as denied or avoided.
17 (e) Pleading to be concise and direct; consistency. (1) Each averment
18 of a pleading shall be simple, concise, and direct. No technical forms of
19 pleading or motions are required.
20 (2) A party may set forth two or more statements of a claim or defense
21 alternately or hypothetically, either in one count or defense or in separate
22 counts or defenses. When two or more statements are made in the alter-
23 native and one of them if made independently would be sufficient, the
24 pleading is not made insufficient by the insufficiency of one or more of
25 the alternative statements. A party may also state as many separate claims
26 or defenses as the party has regardless of consistency and whether based
27 on legal or on equitable grounds or on both. All statements shall be made
28 subject to the obligations set forth in K.S.A. 60-211, and amendments
30 (f) Construction of pleadings. All pleadings shall be
so construed as
31 to do substantial justice.
32 Sec. 2. K.S.A. 1998 Supp. 60-209 is hereby amended to read as fol-
33 lows: 60-209. (a) Capacity. It is not necessary to aver the capacity of a
34 party to sue or be sued or the authority of a party to sue or be sued in a
35 representative capacity or the legal existence of an organized association
36 of persons that is made a party. When a party desires to raise an issue as
37 to the legal existence of any party or the capacity of any party to sue or
38 be sued or the authority of any party to sue or be sued in a representative
39 capacity, the party raising the issue shall do so by specific negative aver-
40 ment which shall include such supporting particulars as are peculiarly
41 within the pleader's knowledge.
42 (b) Fraud, mistake, conditions of the mind. In all averments of fraud
43 or mistake, the circumstances constituting fraud or mistake shall be stated
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1 with particularity. Malice, intent, knowledge, and other conditions of
2 mind of a person may be averred generally.
3 (c) Conditions precedent. In pleading the performance or occurrence
4 of conditions precedent, it is sufficient to aver generally that all conditions
5 precedent have been performed or have occurred. A denial of perform-
6 ance or occurrence shall be made specifically and with particularity.
7 (d) Official document or act. In pleading an official document or of-
8 ficial act it is sufficient to aver that the document was issued or the act
9 done in compliance with law.
10 (e) Judgment. In pleading a judgment or decision of a domestic or
11 foreign court, judicial or quasi-judicial tribunal, or of a board or officer,
12 it is sufficient to aver the judgment or decision without setting forth mat-
13 ter showing jurisdiction to render it.
14 (f) Time and place. For the purpose of testing the sufficiency of a
15 pleading, averments of time and place are material and shall be consid-
16 ered like all other averments of material matter.
17 (g) Special damage. When items of special damage are claimed, their
18 nature shall be specifically stated. In actions where exemplary or punitive
19 damages are recoverable, the amended petition shall not state a dollar
20 amount for damages sought to be recovered but shall state whether the
21 amount of damages sought to be recovered is in excess of or not in excess
$75,000 the amount stated in 28 U.S.C. § 1332.
23 (h) Pleading written instrument. Whenever a claim, defense or coun-
24 terclaim is founded upon a written instrument, the same may be pleaded
25 by reasonably identifying the same and stating the substance thereof or
26 it may be recited at length in the pleading, or a copy may be attached to
27 the pleading as an exhibit.
28 (i) Tender of money. When a tender of money is made in any plead-
29 ing, it shall not be necessary to deposit the money in court when the
30 pleading is filed, but it shall be sufficient if the money is deposited in the
31 court at the trial, unless otherwise ordered by the court.
32 (j) Libel and slander. In an action for libel or slander, it shall not be
33 necessary to state in the petition any extrinsic facts for the purpose of
34 showing the application to the plaintiff of the defamatory matter out of
35 which the claim arose, but it shall be sufficient to state generally that the
36 same was published or spoken concerning the plaintiff
; and. If such al-
be is not controverted in the answer, it shall is not be necessary
38 to prove it on the trial
;, but in other cases it shall be is necessary. The
39 defendant may, in such defendant's answer, allege both the truth of the
40 matter charged as defamatory and any mitigating circumstances admis-
41 sible in evidence to reduce the amount of damages; and whether the
42 defendant proves the justification or not, the defendant may give in evi-
43 dence any mitigating circumstances.
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1 Sec. 3. K.S.A. 1998 Supp. 60-208 and 60-209 are hereby repealed.
2 Sec. 4. This act shall take effect and be in force from and after its
3 publication in the statute book.