N.M. R. Civ. P. Dist. Ct. 1-008
N.M. R. Civ. P. Dist. Ct. 1-008
ANNOTATIONS The 2007 amendment, approved by Supreme Court Order 07-8300-16, effective August 1, 2007, amended Subparagraph (3) of Paragraph A to add a new sentence prohibiting an allegation for damages in a specific amount unless it is a necessary allegation of the complaint. Rule 1-010 NMRA was also amended by Supreme Court Order 07-8300-16 to delete the same sentence. Compiler's notes. - Paragraphs A and E(1), together with Rule 1-010, are deemed to have superseded 105-404, 105-501, 105-511 and 105-525, C.S. 1929, which were substantially the same. Paragraphs B and C, together with Rule 1-013, are deemed to have superseded 105-416 and 105-417, C.S. 1929, which were substantially the same. Together with Rule 1-012, Paragraphs B and C are also deemed to have superseded 105-420, 1929 Comp., relating to replies and demurrers to answers. Paragraphs C and D are deemed to have superseded 105-519, C.S. 1929, which was substantially the same. They are also deemed to have superseded 105-518, C.S. 1929, relating to effect of failure to deny. Paragraph E(2) is deemed to have superseded 105-517, C.S. 1929, which was substantially the same. Together with Rule 1-012, Paragraph E(2) is also deemed to have superseded 105-504, C.S. 1929, relating to duplicity. Paragraph F is deemed to have superseded 105-524, C.S. 1929, which was substantially the same. I. GENERAL CONSIDERATION. Pleading must be reasonably short, plain, simple, concise and direct. - When fraud is alleged, it must be particularized as Rule 9(b) (now Rule 1-009 NMRA) requires, but pleading still must be as short, plain, simple, concise and direct as is reasonable under the circumstances, as required by this rule. Maxey v. Quintana, 1972-NMCA-069, 84 N.M. 38, 499 P.2d 356, cert. denied, 84 N.M. 37, 499 P.2d 355. Long, complicated, verbose pleadings which contain numerous allegations of rumors, suppositions, slurs and innuendoes and generally disregard the requirements of the New Mexico Rules of Civil Procedure are violative of this rule. Peoples v. Peoples, 1963-NMSC-067, 72 N.M. 64, 380 P.2d 513. Purpose of pleadings is to give parties fair notice of claims and defenses and the grounds upon which they rest. Transamerica Ins. Co. v. Sydow, 1981-NMCA-121, 97 N.M. 51, 636 P.2d 322. The theory of pleadings is to give the parties fair notice of the claims and defenses against them, and the grounds upon which they are based. Schmitz v. Smentowski, 1990-NMSC-002, 109 N.M. 386, 785 P.2d 726. Notice pleading does not require that every theory be denominated in the pleadings -general allegations of conduct are sufficient, as long as they show that the party is entitled to relief and the averments are set forth with sufficient detail so that the parties and the court will have a fair idea of the action about which the party is complaining and can see the basis for relief. Schmitz v. Smentowski, 1990-NMSC-002, 109 N.M. 386, 785 P.2d 726. Litigants control course of lawsuit. - Under the adversary system of jurisprudence the course of the lawsuit is controlled by the litigants except in a few limited circumstances; the initiative rests with the litigants, and the role of the trial court is to consider only those questions raised by the parties. Wells v. Arch Hurley Conservancy Dist., 1976-NMCA-082, 89 N.M. 516, 554 P.2d 678. Jurisdictional question deemed decided by court. - In a case in which the jurisdictional question is not raised by the parties or by the appellate court itself, it is presumed that the appellate court decided the jurisdictional question, and this decision becomes the law of the case. Sangre De Cristo Dev. Corp. v. City of Santa Fe, 1972-NMSC-076, 84 N.M. 343, 503 P.2d 323, cert. denied, 411 U.S. 938, 93 S. Ct. 1900, 36 L. Ed. 2d 400 (1973). II. CLAIMS FOR RELIEF. Injured, third-party common law dramshop liability. - Where plaintiff alleged that defendant sold alcohol to decedents at a social function at an Indian casino despite the decedents' intoxication and, as a result, the decedents were killed in a single vehicle accident, and a third person, who was a passenger in the back seat of the vehicle, was injured; the police and the passenger were unable to determine which of the decedents was driving the vehicle at the time of the accident; plaintiff was licensed by the Indian tribe to sell and serve alcoholic beverages at the casino; and the Indian tribe had enacted an ordinance which prohibited the sale of alcohol to intoxicated persons, plaintiff stated an injured, third-party common law negligence claim against defendant on behalf of whichever decedent was not driving. Mendoza v. Tamaya Enters., Inc., 2010-NMCA-074, 148 N.M. 534, 238 P.3d 903, cert. granted, 2010-NMCERT-008, 148 N.M. 942, 242 P.3d 1288. Injured patron common law dramshop liability. - Where plaintiff alleged that defendant sold alcohol to decedents at a social function at an Indian casino despite the decedents' intoxication and, as a result, the decedents were killed in a single vehicle accident, and a third person, who was a passenger in the back seat of the vehicle, was injured; the police and the passenger were unable to determine which of the decedents was driving the vehicle at the time of the accident; plaintiff was licensed by the Indian tribe to sell and serve alcoholic beverages at the casino; and the Indian tribe had enacted an ordinance which prohibited the sale of alcohol to intoxicated persons, plaintiff stated an injured, third-party common law negligence claim against defendant on behalf of whichever decedent was driving. Mendoza v. Tamaya Enters., Inc., 2010-NMCA-074, 148 N.M. 534, 238 P.3d 903, cert. granted, 2010-NMCERT-008, 148 N.M. 942, 242 P.3d 1288. Express contract. - An express contract is to be enforced as written in regard to contractual obligations of the parties unless the court has determined that equity should override the express contract because of fraud, real hardship, oppression, mistake, unconscionable results, and the other grounds of righteousness, justice and morality. Arena Res., Inc. v. OBO, Inc., 2010-NMCA-061, 148 N.M. 483, 238 P.3d 357. Judgment granting equitable relief in action based on express contract. - Where plaintiff, who was the operating-interest owner, redeveloped an oilfield unit and sought reimbursement from defendant, who was a working-interest owner; plaintiff unilaterally redeveloped the unit without obtaining the consent of defendant as required by the operating agreement of the parties; the redevelopment project increased oil and gas production, enhanced the unit, and netted favorable revenue consequences for defendant; although the district court concluded that plaintiff had breached the operating agreement, the court granted judgment for plaintiff based on unjust enrichment; plaintiff's action was for breach of contract and to enforce a contractual lien; plaintiff never asserted a claim for unjust enrichment, the case was not tried on the theory of unjust enrichment, and plaintiff did not request findings of fact and conclusions of law on unjust enrichment; and the court never mentioned the existence of any evidence or entered any findings of fact that supported its conclusion of unjust enrichment or otherwise provided any basis for invoking the unjust enrichment theory in the face of the parties' express contract, the court was not permitted to exercise its equitable powers to grant plaintiff relief under the equitable unjust enrichment theory of recovery. Arena Res., Inc. v. OBO, Inc., 2010-NMCA-061, 148 N.M. 483, 238 P.3d 357. As a general rule, spouses are permitted to sue each other for intentional torts. Papatheofanis v. Allen, 2010-NMCA-036, 148 N.M. 791, 242 P.3d 358, cert. granted, 2010-NMCERT-005, 148 N.M. 574, 240 P.3d 1048. Claims for intentional torts between spouses. - Where, during the marriage of plaintiff and defendant, defendant induced plaintiff to convey a one-half interest in the family home, which was plaintiff's solely owned property, to defendant by representing to plaintiff that if plaintiff died, the parties' child would not have an interest in the home; defendant falsely commenced a domestic violence claim against plaintiff; defendant falsely reported to plaintiff's employer that plaintiff was misusing government property at plaintiff's workplace; without the knowledge or permission of plaintiff, defendant opened credit card accounts by forging plaintiff's name on application forms, leased a vehicle using plaintiff's information, and registered a patent in defendant's name using plaintiff's intellectual property; and defendant was an attorney and a mortgage loan officer, the jury verdict in plaintiff's action against defendant finding defendant liable for fraud, breach of fiduciary duty, malicious abuse of process, and defamation was supported by substantial evidence. Papatheofanis v. Allen, 2010-NMCA-036, 148 N.M. 791, 242 P.3d 358, cert. granted, 2010-NMCERT-005, 148 N.M. 574, 240 P.3d 1048. No subrogation between insurer and tort victim. - New Mexico law does not recognize subrogation between an insurer of a tortfeasor and the tort victim and the insurer may not step into the shoes of the tort victim to later assert claims of contribution, indemnification or subrogation against other parties who assertedly bear some responsibility for the victim's injuries. Gulf Ins. Co. v. Cottone, 2006-NMCA-150, 140 N.M. 728, 148 P.3d 814. Claims outside subrogation amounts. - Potential equitable subrogation rights of an insurer do not preclude as a matter of law any claims that are independent of and outside the subrogated amounts that the insured has against another insurer for failure to defend and indemnify. Southwest Steel Coil, Inc. v. Redwood Fire & Cas. Ins. Co., 2006 -NMCA-151, 140 N.M. 720, 148 P.3d 806. Independent claim for relief. - An appellant under 72-7-1 NMSA 1978 who is able to state an independent claim for relief under Paragraph A of this rule, can also pursue that claim under the court's original jurisdiction. Town of Silver City v. Scartaccini, 2006-NMCA-009, 138 N.M. 813, 126 P.3d 1177. Function of pleadings is to give fair notice of the claim asserted so as to enable the adverse party to answer and prepare for trial. Las Luminarias of N.M. Council of Blind v. Isengard, 1978-NMCA-117, 92 N.M. 297, 587 P.2d 444 (specially concurring opinion). Pleading should support reasonable inference of personal jurisdiction. - Although the grounds on which personal jurisdiction is based need not be alleged in the pleadings, a pleader who seeks to bring a nonresident within the reach of 38-1-16 NMSA 1978, the "long arm statute," must state sufficient facts in the complaint to support a reasonable inference that defendant can be subjected to jurisdiction within the state. Aetna Cas. & Sur. Co. v. Bendix Control Div., 1984-NMCA-029, 101 N.M. 235, 680 P.2d 616. Complaint was sufficiently complete under this rule where it (1) alleged residency of parties, (2) charged that defendant negligently and unlawfully drove defendant's truck into plaintiff's automobile, (3) stated place of the collision, (4) alleged that defendants were partners and that truck was being driven on partnership business at time of the accident and (5) pleaded amount of damages claimed. Veale v. Eavenson, 1948-NMSC-018, 52 N.M. 102, 192 P.2d 312. Relevant to pleader's cause of action. - While a prayer for relief may be helpful in specifying the contentions of the parties, it forms no part of the pleader's cause of action, and the prevailing party should be given whatever relief he is entitled to under the facts pleaded and proved at trial. Lett v. Westland Dev. Co., 1991 -NMSC-069, 112 N.M. 327, 815 P.2d 623. Judicial notice is taken of counties comprising judicial district, and a cause entitled "In the district court of the first judicial district" is sufficient. Friday v. Santa Fe Cent. Ry., 1910 -NMSC-018, 16 N.M. 434, 120 P. 316, aff'd, 232 U.S. 694, 34 S. Ct. 468, 58 L. Ed. 802 (1914) (decided under former law). Phrase "shall contain" in Subdivision (a) (see now Paragraph A) is mandatory. Mantz v. Follingstad, 1972-NMCA-164, 84 N.M. 473, 505 P.2d 68. Complaint sufficient to plead res ipsa loquitur. - Although complaint did not specifically mention res ipsa loquitur, it combined general allegations of negligence with allegations that the defendant's employee was in control of the injury-producing instrumentality, and thus complaint was sufficient to plead res ipsa loquitur. Ciesielski v. Waterman, 1974-NMCA-023, 86 N.M. 184, 521 P.2d 649, rev'd on other grounds, 1974-NMSC-086, 87 N.M. 25, 528 P.2d 884. False imprisonment. - Pleading stating that five of the plaintiffs were imprisoned in the union hall on August 11, 1961, is a sufficient allegation of false imprisonment. Gonzales v. Oil, Chem. & Atomic Workers Int'l Union, 1966-NMSC-211, 77 N.M. 61, 419 P.2d 257. Common-law tort. - Pleading stating that from July 24, 1961, to September 9, 1961, defendants willfully and maliciously prevented each plaintiff from going to or engaging in his employment was sufficient to allege a common-law tort. Gonzales v. Oil, Chem. & Atomic Workers Int'l Union, 1966-NMSC-211, 77 N.M. 61, 419 P.2d 257. Allegation of substantial performance held not essential. - It is not an error to omit an allegation of substantial performance in contract case so long as the allegations show appellant is entitled to relief. Plains White Truck Co. v. Steele, 1965-NMSC-014, 75 N.M. 1, 399 P.2d 642. Specific acts of negligence alleged need not be pleaded. Clark v. Ruidoso-Hondo Valley Hosp., 1963-NMSC-063, 72 N.M. 9, 380 P.2d 168, overruled on other grounds, Hicks v. State, 1975-NMSC-056, 88 N.M. 588, 544 P.2d 1153. Alleged facts must be sufficient to warrant relief. - Debtor's counterclaim for wrongful replevin, which merely alleged that replevin action was not prosecuted with effect, did not allege sufficient facts to warrant relief or necessitate a reply. Cessna Fin. Corp. v. Mesilla Valley Flying Serv., Inc., 1969-NMSC-169, 81 N.M. 10, 462 P.2d 144, cert. denied, 397 U.S. 1076, 90 S. Ct. 1521, 25 L. Ed. 2d 811 (1970). Grounds for election contest must be completely stated. - Allegation in a notice of an election contest that "by reason of the erroneous receiving, counting, tallying, and return of the votes . . . the correct result thereof was not certified to the county canvassing board" was not a sufficiently complete statement of the specific facts on which the grounds for contest were based. Ferran v. Trujillo, 1946-NMSC-040, 50 N.M. 266, 175 P.2d 998. Conclusions do not state cause of action. - In action to enjoin defendant from practicing osteopathy and medicine without a license, averments that such practice constitutes a nuisance and is greatly detrimental to the health of the public are conclusions rather than facts and do not state a cause of action. State v. Johnson, 1920-NMSC-020, 26 N.M. 20, 188 P. 1109 (decided under former law). Defendants entitled to know basis of claims. - Defendants were entitled to know whether wage and medical claims were asserted as individual claims of the decedent or his widow or as community claims; on remand plaintiffs should be given the opportunity to amend complaint to state the basis of the wage and medical claims. Rodgers v. Ferguson, 1976-NMCA-098, 89 N.M. 688, 556 P.2d 844, cert. denied, 90 N.M. 7, 558 P.2d 619. Pro se pleadings of convicted felon must indicate elements of claim. - Pro se pleadings, however inartfully expressed, must tell a story from which, looking to substance rather than form, the essential elements prerequisite to the granting of the relief sought can be found or reasonably inferred. This would be the rule which would apply to law-abiding citizen appearing pro se in a civil action, and the court should not adopt a more tolerant view of petition because it emanated from a convicted felon. Birdo v. Rodriguez, 1972-NMSC-062, 84 N.M. 207, 501 P.2d 195. Notice of contest in election case takes place of conventional complaint in an ordinary lawsuit, and it must contain a plain statement of the claim showing that the pleader is entitled to relief. Ferran v. Trujillo, 1946-NMSC-040, 50 N.M. 266, 175 P.2d 998. Proper to demand legal and equitable relief. - Where complaint alleged that appellee was the owner entitled to possession of the land involved, that appellants constructed two houses and utility lines in such a manner as to encroach on her property to her damage and that appellants should be required to remove said encroachments, complaint is that type of alternative pleading which is permissible under this rule. As both legal and equitable remedies are administered by a single court, there was no error by a joinder of the causes of action. Heaton v. Miller, 1964-NMSC-080, 74 N.M. 148, 391 P.2d 653. Right to use several counts where proper relief unclear. - When a plaintiff is in real doubt as to his relief, he has the right to set forth his cause of action in several counts so as to meet the facts which are established on the trial. Ross v. Carr, 1909-NMSC-004, 15 N.M. 17, 103 P. 307 (decided under former law). Complaint not dismissed because plaintiff misconceived nature of remedy. - A complaint will not be dismissed when it sets up a cause of action which is good either in law or equity, because the plaintiff has misconceived the nature of his remedial right. Kingston v. Walters, 1908-NMSC-007, 14 N.M. 368, 93 P. 700 (decided under former law). Generally party must plead for affirmative relief. - A party generally cannot be given affirmative relief without having submitted a pleading praying for it. Wells v. Arch Hurley Conservancy Dist., 1976-NMCA-082, 89 N.M. 516, 554 P.2d 678. Relief granted must be within theory case tried on. - A judgment may not grant relief which is neither requested by the pleadings nor within the theory on which the case was tried. Holmes v. Faycus, 1973-NMCA-147, 85 N.M. 740, 516 P.2d 1123. Absent contrary pleading or proof, forum's law presumed applicable. - Absent pleading or proof to the contrary, the law of a sister state is presumed to be the same as the law of the forum. Larson v. Occidental Fire & Cas. Co., 1968-NMSC-160, 79 N.M. 562, 446 P.2d 210, overruled on other grounds, Estep v. State Farm Mut. Auto. Ins. Co., 1985 -NMSC-069, 103 N.M. 105, 703 P.2d 882. Allegation neither essential nor jurisdictional not grounds for reversal. - A default judgment against a corporation may not be attacked on the sole ground that it was erroneously alleged that the corporation was organized under the laws of a given state, as such allegation was not essential or jurisdictional. Riverside Irrigation Co. v. Cadwell, 1916-NMSC-033, 21 N.M. 666, 158 P. 644 (decided under former law). III. DEFENSES AND FORM OF DENIALS. Denial on information and belief sufficient. - A denial that the defendant has not "knowledge or information sufficient to form a belief " is sufficient to put the plaintiff to the proof of the material fact. Clark v. Apex Gold Mining Co., 1906-NMSC-015, 13 N.M. 416, 85 P. 968 (decided under former law). A denial of facts in the complaint on information and belief raises an issue of fact, and the burden is upon plaintiff to prove his case; a motion for judgment on pleadings should not be granted. Dugger v. Young, 1920-NMSC-012, 25 N.M. 671, 187 P. 552 (decided under former law). Unless matters necessarily within pleader's knowledge. - Denial upon information and belief of matters necessarily within the knowledge of the pleader is not permissible. Chicago, R.I. & E.P. Ry. v. Wertheim, 1910-NMSC-040, 15 N.M. 505, 110 P. 573 (decided under former law). The denial of knowledge or information sufficient to form a belief as to the indebtedness and plaintiff's demand for payment is no denial at all, such facts being those which defendant must necessarily know. Department Store Co. v. Gauss-Langenberg Hat Co., 1912-NMSC-014, 17 N.M. 112, 125 P. 614 (decided under former law). No issue of fact is raised by denial of mere conclusion of law arising from the pleaded facts. Posey v. Dove, 1953-NMSC-019, 57 N.M. 200, 257 P.2d 541. Nor by answer merely demanding strictest proof of allegations. - An answer that defendants neither admit nor deny allegations of a complaint but demand the strictest proof thereof does not put at issue any material facts in a complaint and is an insufficient denial under this rule. Bank of N.M. v. Pinion, 1953-NMSC-058, 57 N.M. 428, 259 P.2d 791. Argumentative answer. - A narration of facts in an answer in the form of new matter which could all be properly proved under the general or specific denials made by the defendant constitutes an argumentative answer. Walters v. Battenfield, 1916-NMSC-009, 21 N.M. 413, 155 P. 721 (decided under former law). Where answer prays for no affirmative relief defendant can have none. Badaracco v. Badaracco, 1901-NMSC-011, 10 N.M. 761, 65 P. 153 (decided under former law). Evidence admissible under general denial. - In actions of ejectment it is sufficient to deny plaintiff's title, and under such denial evidence of any matters tending to show that plaintiff was not vested with the title or right of possession at the time of the commencement of the action is admissible. Chilton v. 85 Mining Co., 1917-NMSC-072, 23 N.M. 451, 168 P. 1066 (decided under former law). Payment may be proved under the general issue. Cunningham v. Springer, 1905-NMSC-027,13 N.M. 259, 82 P. 232, aff'd, 204 U.S. 647, 27 S. Ct. 301, 51 L. Ed. 662 (1907) (decided under former law). Evidence that the maker of a promissory note had given the holder a power of attorney to collect money due him, which was to be applied to the note and the balance forwarded to the maker, and that more than enough to pay the note was collected by a messenger of the holder was admissible under the general issue, and a special plea of set-off or counterclaim was unnecessary. Samples v. Samples, 1882-NMSC-008, 2 N.M. 239 (decided under former law). IV. AFFIRMATIVE DEFENSES. Statute of frauds. - Where sellers verbally agreed to sell a tract of land to buyers for a home site; in reliance on the agreement, buyers cashed IRA and 401-K retirement plans at a substantial penalty; with the consent of the sellers, buyers went into possession of the land, purchased a double-wide mobile home and moved the home onto the land, erected valuable temporary and permanent improvements on the land, and landscaped the property; and buyers spent approximately $85,000 in purchasing the home and making improvements, the buyers' actions were sufficient part performance in reliance on the oral agreement to take the contract outside the statute of frauds. Beaver v. Brumlow, 2010-NMCA-033, 148 N.M. 172, 231 P.3d 628. Equitable estoppel against the state. - With respect to state agencies, the doctrine of equitable estoppel is only available to bar rights or actions over which an agency has discretionary authority, does not bar a state agency from executing its statutory duties, and will be applied only when an agency has engaged in a shocking degree of aggravated and overreaching conduct or when right and justice demand it. Waters-Haskins v. New Mexico Human Services Dep't, 2009-NMSC-031, 146 N.M. 391, 210 P.3d 817, rev'g 2008-NMCA-127, 144 N.M. 853, 192 P.3d 1230. Equitable estoppel can be asserted as a defense to bar enforcement of a food stamp overpayment claim. Waters-Haskins v. New Mexico Human Services Dep't, 2009-NMSC-031, 146 N.M. 391, 210 P.3d 817, rev'g 2008-NMCA-127, 144 N.M. 853, 192 P.3d 1230. Independent intervening cause. - If the defendant is claiming only that the plaintiff's negligence caused the plaintiff's injury, it is reversible error to instruct the jury on independent intervening cause because the issues involve comparative negligence. Even if there is no issue involving comparative negligence, but the issue revolves only around whether the defendant's negligence was the cause in fact of the plaintiff's injury, then it is error to give an instruction on independent intervening cause. An instruction on independent intervening cause may be appropriate if the issue involves a claim that an intentional or criminal act or an act of nature that is unforeseeable intervenes and disrupts the chain of causation set in motion by defendant's negligent conduct. Silva v. Lovelace Health Sys., Inc., 2014-NMCA-086, cert. quashed, 2014-NMCERT-009. Where the doctor, who treated decedent for anxiety, prescribed twelve month's worth of Paxil without requiring any follow-up appointments; the FDA subsequently issued an advisory which suggested that there was an increased risk for suicidal behavior in adults being treated with antidepressants; decedent began exhibiting very strange behavior five months after decedent's last visit with the doctor; there was evidence that three days before decedent's death, decedent had ingested a thirty-day supply of Paxil and that the overdose induced psychosis; decedent committed suicide by cutting decedent's body and bleeding to death; and conflicting evidence raised fact questions about whether decedent's conduct in overdosing was intentional and whether decedent's suicide was foreseeable to the doctor, the district court erred in failing to instruct the jury on decedent's suicide as an independent intervening cause. Silva v. Lovelace Health Sys., Inc., 2014-NMCA-086, cert. quashed, 2014-NMCERT-009. "Affirmative defense" defined. - An affirmative defense is that state of facts provable by defendant which will bar plaintiff's recovery once plaintiff's right to recover is otherwise established. It is a descendant of the common-law plea in "confession and avoidance", which permitted a defendant who was willing to admit that plaintiff's declaration demonstrated a prima facie case to then go on and allege or prove additional new material that would defeat plaintiff's otherwise valid cause of action. Bendorf v. Volkswagenwerk Aktiengesellschaft, 1975-NMCA-100, 88 N.M. 355, 540 P.2d 835, cert. denied, 88 N.M. 319, 540 P.2d 249, aff'd, 1977-NMCA-038, 90 N.M. 414, 564 P.2d 619. A provision in a contract for the carriage of goods which limits the carrier's liability is a matter of affirmative defense, as it raises matter outside the scope of plaintiff's prima facie case. Fredenburgh v. Allied Van Lines, 1968-NMSC-174, 79 N.M. 593, 446 P.2d 868. An affirmative defense is that state of facts provable by defendant which would bar plaintiff's right to recover. Berry v. Meadows, 1986-NMCA-002, 103 N.M. 761, 713 P.2d 1017. An affirmative defense ordinarily refers to a state of facts provable by defendant that will bar plaintiff 's recovery once a right to recover is established. Beyale v. Arizona Pub. Serv. Co., 1986-NMCA-071, 105 N.M. 112, 729 P.2d 1366. Proper to assert affirmative defenses against sovereign. - No one would assert that in an action by the sovereign valid legal defenses should be denied the defendant. Affirmative defenses may be pleaded, and defendant is entitled to the benefit of the same if proved. State ex rel. State Hwy. Comm'n v. Town of Grants, 1961-NMSC-133, 69 N.M. 145, 364 P.2d 853. Counterclaim as answer raising affirmative defense. - It is proper for courts to treat a defendant's pleading denominated a counterclaim as an answer raising an affirmative defense, regardless of its title, if the allegations of the pleading so required. Quirico v. Lopez, 1987-NMSC-070, 106 N.M. 169, 740 P.2d 1153. Contributory negligence embraces both negligence and proximate cause. Fitzgerald v. Valdez, 1967-NMSC-088, 77 N.M. 769, 427 P.2d 655. Conventional contributory negligence is no defense when doctrine of strict liability applies, but contributory negligence in the form of assumption of risk in that the plaintiff assumed the risk of his injuries or damages by voluntarily and unreasonably proceeding to encounter a known danger is available as a defense. Bendorf v. Volkswagenwerk Aktiengesellschaft, 1975-NMCA-100, 88 N.M. 355, 540 P.2d 835, cert. denied, 88 N.M. 319, 540 P.2d 249, aff'd, 1977-NMCA-038, 90 N.M. 414, 564 P.2d 619. Answer sufficiently alleged estoppel and waiver. - Where defendant in answer alleged that plaintiff was "estopped," had "waived strict compliance" and had accepted drilling of second well and that it would be unjust and inequitable to permit plaintiff to rely on the statute of frauds or a literal performance of the contract, the allegations of the answer adequately presented the issue in compliance with this rule. Yucca Mining & Petroleum Co. v. Howard C. Phillips Oil Co., 1961-NMSC-155, 69 N.M. 281, 365 P.2d 925. Fraud is a defense by way of new matter, and proof of it is not admissible under the general denial. Puritan Mfg. Co. v. Toti & Gradi, 1908-NMSC-016, 14 N.M. 425, 94 P. 1022 (decided under former law). Collateral estoppel. - The doctrine of collateral estoppel fosters judicial economy by preventing the relitigation of ultimate facts or issues actually and necessarily decided in a prior suit. The party invoking the doctrine must demonstrate that the party to be estopped was a party to the prior proceeding, the cause of action in the case presently before the court is different from the cause of action in the prior adjudication, the issue was actually litigated in the prior adjudication, and the issue was necessarily determined in the prior litigation. Brannock v. The Lotus Fund, 2016-NMCA-030, cert. denied. In a dispute over access to property, where defendants claimed that the disputed easement access issue was precluded from litigation based on the doctrine of collateral estoppel, the district court did not abuse its discretion in determining that plaintiffs were not collaterally estopped from proceeding with the issues related to their claims of easement by prescription and by necessity when the evidence established that the plaintiffs in the present case were not the parties to the prior litigation, and plaintiffs were not in legal privity with the parties to the prior litigation just because plaintiffs used the same roadway as the parties in the prior litigation and sought to enforce their rights to do so against the same defendants in the prior litigation. Moreover, where the judge in the prior litigation concluded as a matter of law that the plaintiffs did not have prescriptive easement rights, but did not conclude that there were no prescriptive easement rights for other neighbors in the vicinity who use the disputed access, defendants failed to establish that the issue was actually litigated in the prior adjudication and that the issue was necessarily determined in the prior litigation, requirements needed to apply collateral estoppel. Brannock v. The Lotus Fund, 2016-NMCA-030, cert. denied. Establishment of res judicata. - A party asserting res judicata or claim preclusion must establish that there was a final judgment in an earlier action, the earlier judgment was on the merits, the parties in the two suits are the same, the cause of action is the same in both suits, and that the claim reasonably could and should have been brought during the earlier proceeding. Potter v. Pierce, 2015-NMSC-002, aff'g 2014-NMCA-002. Same cause of action. - In analyzing the single-cause-of-action element of res judicata, New Mexico has adopted the transactional approach, which considers all issues arising out of a common nucleus of operative facts as a single cause of action; the facts comprising the common nucleus should be identified pragmatically, considering how they are related in time, space, or origin, whether, taken together, they form a convenient trial unit, and whether their treatment as a single unit conforms to the parties' expectations or business understanding or usage. Potter v. Pierce, 2015-NMSC-002, aff'g 2014-NMCA-002. Common nucleus of operative facts in bankruptcy fee proceeding and legal malpractice claim. - Where a bankruptcy fee proceeding and a legal malpractice claim based on the same legal services would have formed a convenient trial unit because the bankruptcy court is required to consider the quality of legal services in determining the appropriate fees, and treatment as a single unit would conform to the parties' expectations because objections to services rendered must be raised in response to fee applications, the petitioner's two claims were rooted in a common nucleus of operative facts and therefore satisfy the cause-of-action element of res judicata. Potter v. Pierce, 2015-NMSC-002, aff'g 2014-NMCA-002. Full and fair opportunity to litigate. - Even if two actions are the same under the transactional test and all other elements are met, res judicata does not bar a subsequent action unless the plaintiff could and should have brought the claim in the former proceeding, and neither the type of proceeding nor the damages sought are determinative, although the type of proceeding may be a factor in determining if the subsequent claim could or should have been litigated earlier. Potter v. Pierce, 2015-NMSC-002, aff'g 2014-NMCA-002. Bankruptcy court proceeding precluded subsequent malpractice claim. - In bankruptcy proceeding, where petitioner was aware of his attorneys' failure to make accurate financial disclosures in his bankruptcy schedules, and where petitioner suffered injury attributable to that failure by exposing him to a denial of the discharge of his debts, and where petitioner was aware of that injury, a subsequent malpractice claim is barred by res judicata because petitioner could and should have brought the malpractice claim in the bankruptcy proceeding. Potter v. Pierce, 2015-NMSC-002, aff'g 2014-NMCA-002. Arbitration judgment is res judicata to second complaint that alleged the same operative facts and asserted the same claims. - In a dispute between parties to a contract for the construction of a new home, where construction company, after experiencing financial difficulties, ceased operations and failed to construct and deliver the home to plaintiffs, and where plaintiffs filed a complaint in arbitration against construction company in district court seeking to enforce an arbitration agreement, and where the arbitrator found that construction company breached a purchase agreement, committed fraud and unfair trade practices, and awarded compensatory and punitive damages to plaintiffs, and where, after construction company failed to pay the arbitration judgment, plaintiffs filed a second complaint in district court alleging conversion, fraud, and unfair trade practices against defendant, the controlling stockholder, president, and vice-president of the construction company, in his individual capacity, the district court erred in denying defendant's motion to dismiss based on res judicata, because there was a final judgment on the merits in the arbitration proceeding, defendant, as the controlling stockholder, president and vice-president of the construction company, was in privity with the construction company, and the claims in the second complaint arose from the same conduct alleged against the construction company in the arbitration proceeding, and therefore defendant should have been named as a party in the arbitration proceeding to defend against alleged claims of tortious conduct. Fogelson v. Wallace, 2017-NMCA-089, cert. granted. Claims for express and implied easements were properly excluded under the doctrine of res judicata. - Where plaintiff filed a quiet title action against adjacent landowners, seeking injunctive and declaratory relief against defendants' attempts to block plaintiff's access over a 15-foot driveway on defendants' property, and where the prior owners of defendants' property had adjudicated the express and implied easement issues in an inheritance revocation claim against plaintiff, the district court did not err in granting summary judgment for defendants on res judicata grounds, because plaintiff had a full and fair opportunity to litigate her easement claims in the revocation proceedings, the parties were in privity because defendants and the prior owners of the land had the same interest in seeing that plaintiff's easement claims were defeated, and the easement claims raised during the revocation proceedings and the easement claims raised in the current case were rooted in a common nucleus of operative facts and therefore, under the transactional approach, the easement claims in the revocation proceeding and the easement claims presented in the current case constituted a single cause of action. Tafoya v. Morrison, 2017-NMCA-025, cert. denied. Res judicata bars relitigation of the same claim between the same parties when the first litigation was dismissed "without prejudice". - Where plaintiffs filed a civil complaint that was dismissed without prejudice and then filed a second complaint that was virtually identical to the first complaint, the second complaint was barred by res judicata because the order dismissing the first complaint without prejudice fully disposed of the rights of the parties and fully determined that plaintiffs failed to state a cause of action, constituting a final judgment on the merits. Turner v. First New Mexico Bank, 2015-NMCA-068, cert. denied, 2015-NMCERT-006. Dismissal for lack of standing at the commencement of a foreclosure action is not an adjudication on the merits, making claim preclusion inapplicable, and is therefore without prejudice. - Where, on remand from an appeal of a mortgage foreclosure action, the New Mexico Supreme Court ordered the district court to dismiss the bank's foreclosure action for lack of standing, the district court on remand erred in granting defendants' motion to dismiss the foreclosure with prejudice by reason of issue preclusion, because neither the Supreme Court nor the district court on remand addressed the merits of the foreclosure claim and no basis existed to support application of claim preclusion to the district court's issue preclusion dismissal. Bank of New York v. Romero, 2016-NMCA-091, cert. denied. Res judicata prevents a party or its privies from repeatedly suing another for the same cause of action. Estate of Boyd v. United States, 2015-NMCA-018, cert. denied, 2015-NMCERT-001. Water rights claim precluded by res judicata when claim already adjudicated by predecessor in interest. - Where plaintiff, who was in privity with predecessor in interest of water rights, claimed an existing water right, the claim was precluded by res judicata due to the predecessor in interest's previous cause of action during which water rights were forfeited. Estate of Boyd v. United States, 2015-NMCA-018, cert. denied, 2015-NMCERT-001. Dispute over access to property not precluded by res judicata. - In a dispute over access to property, where defendants claimed that plaintiffs claim for easement by prescription or by necessity was precluded from relitigation based on the doctrine of res judicata, the district court did not abuse its discretion in determining that plaintiffs were not precluded from proceeding with the issues related to their claims when the evidence established that the plaintiffs in the present case were not the parties to the prior litigation, and plaintiffs were not in legal privity with the parties to the prior litigation just because plaintiffs use the same roadway as the parties in the prior litigation and sought to enforce their rights to do so against the same defendants in the prior litigation. Moreover, where the judge in the prior litigation concluded as a matter of law that the plaintiffs did not have prescriptive easement rights, but did not conclude that there were no prescriptive easement rights for other neighbors in the vicinity who use the disputed access, defendants failed to establish res judicata. Brannock v. The Lotus Fund, 2016-NMCA-030, cert. denied. Res judicata sufficiently pleaded. - A pleading of former adjudication is sufficient if it shows scope of former adjudication and relation of parties to it; an answer pleading decree in quiet title action is sufficient in action on note and to foreclose mortgage. Zintgraff v. Sisney, 1926-NMSC-038, 31 N.M. 564, 249 P. 108 (decided under former law). Res judicata defense rejected where no prior judgment on merits. - Where there is nothing showing a judgment on the merits in a prior replevin action, the trial court correctly rejects the defense of res judicata in a suit for conversion because of failure of proof. Miller v. Bourdage, 1982-NMCA-153, 98 N.M. 801, 653 P.2d 177 (specially concurring opinion). Claims arising after first lawsuit. - Claims that arise from circumstances that come into existence after a first lawsuit is filed are not barred because of res judicate on the ground that plaintiff should have joined them in the first law suit. Brooks Trucking Co., Inc. v. Bull Rogers, Inc., 2006-NMCA-025, 139 N.M. 99, 128 P.3d 1076. Doctrine of claim preclusion inapplicable to non-adversarial administrative child abuse investigation. - Where plaintiff challenged, on res judicata grounds, the Children Youth and Families Department's (CYFD) authority to conduct a Child Protective Services investigation and to issue investigative decisions against him after agreeing to dismiss plaintiff from abuse and neglect proceedings with prejudice, the doctrine of claim preclusion did not apply to the substantiation investigation, which is a non-adversarial administrative investigation conducted by a CYFD employee, because it would have been contrary to law for CYFD to carry out its non-adversarial substantiation investigation and documentation requirements during an adversarial proceeding in children's court. State ex rel. CYFD v. Scott C., 2016-NMCA-012, cert. denied, 2016-NMCERT-001. In a qui tam action, dismissal of a relator's complaint for failure to state a claim is without prejudice to the government where the government did not intervene. - Where relator brought a qui tam action against defendants, alleging violations of the federal False Claims Act and various states' similar fraud statutes, including the New Mexico Medicaid False Claims Act, NMSA 1978, §§ 27-14-1 to -15, and where the federal district court dismissed relator's complaint for failure to state a claim upon which relief could be granted, and where, prior to the dismissal of relator's claim, the New Mexico Attorney General brought an action against defendants in state court, based on the same facts as in relator's claim, alleging violations of the New Mexico Unfair Practices Act, NMSA 1978, §§ 57-12-1 to -26, the New Mexico Medicaid Fraud Act, NMSA 1978, §§ 30-44-1 to -8, and the New Mexico Fraud Against Taxpayers Act, NMSA 1978, §§ 44-9-1 to -14, the federal district court's dismissal of the qui tam action for failure to state a claim did not bar the state from pursuing different claims arising from similar facts, because a dismissal of a relator's complaint in a qui tam action is without prejudice to the government when the government has not intervened; the non-intervening government should not be bound by the relator's weaknesses in pleading what might be a valid claim. State ex rel. Balderas v. Bristol-Meyers Squibb, 2019-NMCA-016, cert. granted. State court judgment not res judicata. - Defendant company has not established that the facts upon which its liability in the instant cases is predicated were directly adjudicated in the state court actions, and hence the judgment in the state court actions is not res judicata. Glass v. United States Rubber Co., 382 F.2d 378 (10th Cir. 1967). Election of remedies is a defense in New Mexico. A successful suit in equity precludes an action at law. Three Rivers Land Co. v. Maddoux, 1982-NMSC-111, 98 N.M. 690, 652 P.2d 240, overruled on other grounds, Universal Life Church v. Coxon, 1986-NMSC-086, 105 N.M. 57, 728 P.2d 467. No exception where court refuses amendment of complaint to include damage claim. - An exception to the doctrine of res judicata does not exist where the trial court does not allow the plaintiffs to amend their complaint in equity to include a claim for damages based on the trial court's belief that mixing questions of law and equity would be confusing. The plaintiff's recourse against an incorrect refusal of an amendment is direct attack by means of an appeal from an adverse judgment. Three Rivers Land Co. v. Maddoux, 1982-NMSC-111, 98 N.M. 690, 652 P.2d 240, overruled on other grounds, Universal Life Church v. Coxon, 1986-NMSC-086, 105 N.M. 57, 728 P.2d 467. Election of remedies prevents vexatious and multiple litigation. - Election of remedies is a rule of judicial administration. Its underlying purpose is to prevent vexatious and multiple litigation of causes of action arising out of the same subject matter. Three Rivers Land Co. v. Maddoux, 1982-NMSC-111, 98 N.M. 690, 652 P.2d 240, overruled on other grounds, Universal Life Church v. Coxon, 1986-NMSC-086, 105 N.M. 57, 728 P.2d 467. Fraud, error and deception affirmative defenses. - To admit the equitable defenses of fraud, error or deception, such defenses must be pleaded; particularly is this true where the rights of third parties have intervened. Shipley v. Ballew, 1953-NMSC-002, 57 N.M. 11, 252 P.2d 514. Likewise good faith. - Under this rule a party is required to plead and prove his good faith for it to be available to him as an affirmative defense. Witt v. Skelly Oil Co., 1963-NMSC-033, 71 N.M. 411, 379 P.2d 61. Claimed settlement agreement was affirmative defense which defendants had the burden to prove. Arretche v. Griego, 1967-NMSC-010, 77 N.M. 364, 423 P.2d 407. Likewise ratification of conversion. - In an action for conversion of chattels, subsequent ratification by the plaintiff of the acts constituting the conversion is new matter and must be pleaded as such; it cannot be shown under a general denial. Southern Car Mfg. & Supply Co. v. Wagner, 1907-NMSC-023, 14 N.M. 195, 89 P. 259 (decided under former law). Allegation as to plaintiff's failure to assert licensed status. - The defense alleging plaintiff's failure to assert his contractor's license under 60-13-30 NMSA 1978 was affirmative in nature and should have been pleaded, although the proceedings at trial injected it as an issue. American Bldrs. Supply Corp. v. Enchanted Bldrs., Inc., 1972-NMSC-012, 83 N.M. 503, 494 P.2d 165. Contention as to lots encumbered by mortgage. - Defendants' contention that a mortgage included all lots in a subdivision including those allegedly excepted and that foreclosure should also include those lots was in the nature of an affirmative defense, which should have been affirmatively pleaded and thereafter proven at trial; failing this, defendants could not attack the trial court's findings as to the property covered by the mortgage. Seasons, Inc. v. Atwell, 1974-NMSC-080, 86 N.M. 751, 527 P.2d 792. Federal preemption is an avoidance of an otherwise valid state law claim and must be pleaded or waived. Gonzales v. Surgidev Corp., 1995-NMSC-036, 120 N.M. 133, 899 P.2d 576. Product misuse as affirmative defense. - There is much confusion as to whether and when product misuse by plaintiff which contributes to his injuries will be available as an affirmative defense in a products liability case. Bendorf v. Volkswagenwerk Aktiengesellschaft, 1975-NMCA-100, 88 N.M. 355, 540 P.2d 835, cert. denied, 88 N.M. 319, 540 P.2d 249, aff'd, 1977-NMCA-038, 90 N.M. 414, 564 P.2d 619. Since automobile accidents or collisions caused by negligent driving are reasonably foreseeable, the defense of product misuse cannot be based on facts tending to prove negligent driving by plaintiff that resulted in a collision. Bendorf v. Volkswagenwerk Aktiengesellschaft, 1975-NMCA-100, 88 N.M. 355, 540 P.2d 835, cert. denied, 88 N.M. 319, 540 P.2d 249, aff'd, 1977-NMCA-038, 90 N.M. 414, 564 P.2d 619. Basis of counterclaim identical to affirmative defense in answer. - Where the basis of the claim in counterclaim is identical to the affirmative defense in answer, the trial court was correct in ruling that the counterclaim was merely a reiteration of the affirmative defense and therefore would not be treated as a counterclaim requiring a responsive pleading. Quirico v. Lopez, 1987-NMSC-070, 106 N.M. 169, 740 P.2d 1153. Answer substantially complied with rule. - There was substantial compliance with this rule where plaintiff's answer to counterclaim specifically stated that "said contract was terminated by mutual agreement of the parties" and the pretrial order contained a statement that the plaintiff was contending that the written contract had been terminated by mutual agreement of the parties. Plateau, Inc. v. Warren, 1969-NMSC-070, 80 N.M. 318, 455 P.2d 184. Claim avoiding liability is affirmative defense. - A claim of "prior satisfaction" would be a claim avoiding liability and, thus, an affirmative defense. Vaca v. Whitaker, 1974-NMCA-011, 86 N.M. 79, 519 P.2d 315. Likewise defense of justification. - The defense that defendants' easement was altered by lawful authority is an affirmative defense of justification (a plea of confession and avoidance) and rightly should be pleaded as new matter. Posey v. Dove, 1953-NMSC-019, 57 N.M. 200, 257 P.2d 541. Not denying validity of lien. - Failure of lessee's chattel mortgagee to plead "bona fide purchaser" as a defense would not estop him from denying validity of the landlord's lien as provided in the lease. Heyde v. State Sec., Inc., 1958-NMSC-009, 63 N.M. 395, 320 P.2d 747. Notice as defense. - If notice is "placed in issue," it is plaintiff 's burden to prove it. Although plaintiff must prove notice if placed in issue, defendant has the obligation to raise the issue initially. In this respect, notice is an affirmative defense. Beyale v. Arizona Pub. Serv. Co., 1986-NMCA-071, 105 N.M. 112, 729 P.2d 1366. Trial court did not abuse its discretion in refusing to allow an employer to litigate the issue of whether an employee seeking workmen's compensation gave notice of an alleged accident where the employer first raised the issue in its opening statement and where the employee would have been prejudiced either by its inclusion as an issue in the case or by another continuance. Beyale v. Arizona Pub. Serv. Co., 1986-NMCA-071, 105 N.M. 112, 729 P.2d 1366. Recoupment as defense. - While a municipality may not assert a counterclaim against the state arising out of the same transaction or occurrence because of sovereign immunity, the municipality may clearly assert damages as a recoupment against any recovery by the state, and this constitutes not a counterclaim but a defense. State ex rel. State Hwy. Comm'n v. Town of Grants, 1961-NMSC-133, 69 N.M. 145, 364 P.2d 853. Mitigation of damages is affirmative defense which the defendant must plead, and the burden of proof is on defendant to minimize the damages. Acme Cigarette Servs., Inc. v. Gallegos, 1978-NMCA-036, 91 N.M. 577, 577 P.2d 885. Set off claims not affirmative defenses. - In a suit based on the Federal Employer's Liability Act, the employer properly raised set off claims for reimbursement for payments made to the plaintiff during the pendency of the suit in post-verdict motion; set off claims were not affirmative defenses so as to be barred for failure to plead them prior to jury's verdict, although the payments to employee were made pursuant to the collective bargaining agreement between employer and employee. Washington v. Atchison, T. & S.F. Ry., 1992 -NMCA-066, 114 N.M. 56, 834 P.2d 433. Objection as to real party in interest not affirmative defense. - Although an objection that a plaintiff is not a real party in interest should be made with reasonable promptness, it is not only raisable as an affirmative defense. Santistevan v. Centinel Bank, 1981-NMSC-092, 96 N.M. 730, 634 P.2d 1282. Nor is "cause" for employment termination. - Where wrongful cause for an employment termination is put in issue by the plaintiff's complaint and by his evidence, and the defendant denies these allegations, the posture of the pleadings does not require the defendant to plead "cause" as an affirmative defense; by denying the allegations, the defendant could offer evidence to prove that the termination of employment was for a cause other than the expression of political opinion and was not in violation of constitutional rights. Sanchez v. City of Belen, 1982-NMCA-070, 98 N.M. 57, 644 P.2d 1046. Burden is on defendant to raise any matter constituting avoidance or affirmative defense to plaintiff's complaint. McCasland v. Prather, 1978-NMCA-098, 92 N.M. 192, 585 P.2d 336. Where the trial court failed to make a finding on a material affirmative defense, such failure must be regarded as finding such material fact against appellant, who had the burden of proof. J.A. Silversmith, Inc. v. Marchiando, 1965-NMSC-061, 75 N.M. 290, 404 P.2d 122. The plea of payment is an affirmative defense, and the burden of proof is upon the party interposing this plea. Lindberg v. Ferguson Trucking Co., 1964-NMSC-110, 74 N.M. 246, 392 P.2d 586. Defendant bore the burden of pleading and proving the affirmative defense of the statute of frauds. Kestenbaum v. Pennzoil Co., 1988-NMSC-092, 108 N.M. 20, 766 P.2d 280, cert. denied, 490 U.S. 1109, 109 S. Ct. 3163, 104 L. Ed. 2d 1026 (1989). If affirmative defense is not pleaded or otherwise properly raised it is waived. Fredenburgh v. Allied Van Lines, 1968-NMSC-174, 79 N.M. 593, 446 P.2d 868; United Nuclear Corp. v. General Atomic Co., 1979-NMSC-036, 93 N.M. 105, 597 P.2d 290, cert. denied, 444 U.S. 911, 100 S. Ct. 222, 62 L. Ed. 2d 145 (1979); Santistevan v. Centinel Bank, 1981-NMSC-092, 96 N.M. 730, 634 P.2d 1282. Where contributory negligence was not pleaded, raised by an affirmative pleading or tried by express or implied consent, and defendant did not seek an amendment to his pleadings, that defense was waived. Groff v. Circle K. Corp., 1974 -NMCA-081, 86 N.M. 531, 525 P.2d 891. Accord and satisfaction is an affirmative defense which must be affirmatively pled and upon which the party so alleging has the burden of proof. Where accord and satisfaction was neither affirmatively pled in appellant's answer nor argued at any stage of the proceedings, it was waived. Gallup Gamerco Coal Co. v. Irwin, 1973-NMSC-110, 85 N.M. 673, 515 P.2d 1277. Failure to plead an arbitration clause as a defense to a lawsuit will be considered a waiver of the party's rights arising under such clause. United Nuclear Corp. v. General Atomic Co., 1979-NMSC-036, 93 N.M. 105, 597 P.2d 290, cert. denied, 444 U.S. 911, 100 S. Ct. 222, 62 L. Ed. 2d 145 (1979). Trial court may refuse instruction thereon. - A refusal to instruct on assumption of risk when it was not stated as a defense in the pleadings and was not relied on at the pretrial hearing is not error. Skeet v. Wilson, 1966-NMSC-182, 76 N.M. 697, 417 P.2d 889 (decided before 1973 amendment, which deleted assumption of risk from the list of affirmative defenses). Appellate court will not consider. - As appellees did not plead waiver or estoppel in their answer, the case was not tried on these issues and the conclusions of law did not decide them, the possibility that the proof offered at trial might support such defenses was of no concern on appeal. Skidmore v. Eby, 1953-NMSC-098, 57 N.M. 669, 262 P.2d 370. Where no affirmative defense was made of duress in the pleadings, nor was a ruling of the court invoked thereon, this question has not been preserved for review. Soens v. Riggle, 1958-NMSC-063, 64 N.M. 121, 325 P.2d 709. Where laches was not pleaded as an affirmative defense and where the court was satisfied to rest its judgment on the sufficiency of tax proceedings and res judicata and made no finding with respect to adverse possession, and none was requested, adverse possession is not issuable at the supreme court level. Otero v. Sandoval, 1956-NMSC-008, 60 N.M. 444, 292 P.2d 319. Where no amendment was made or sought by the parties concerning the statute of frauds, where no findings of fact or conclusions of law were submitted by the defendants based upon the defense of the statute of frauds and where the findings and conclusions and decree of the trial court were devoid of any holding based upon the statute of frauds and there was no indication in the findings, conclusions and decree of the court as to whether the contract sustained was written or oral, then the statute of frauds cannot be asserted for the first time in the supreme court as a defense to plaintiff's complaint. Keirsey v. Hirsch, 1953-NMSC-112, 58 N.M. 18, 265 P.2d 346. Res judicata applies where defendant is sued first by the wife, a court-appointed guardian of her husband, and then later by second guardian who claims that the first guardian was defectively appointed. In the first suit and in the second the incompetent is the real party in interest, and that identity is not destroyed by any defects in the appointment of the wife as guardian; had those defects been called to the attention of the trial court they could have been remedied, but failure in this regard did not oust the court of jurisdiction. Thus, the judgment rendered in the first case is conclusive and bars the second action. New Mexico Veterans' Serv. Comm'n v. United Van Lines, 325 F.2d 548 (10th Cir. 1963). Plaintiff who did not raise equitable estoppel as an affirmative defense in her reply to defendants' counterclaim was barred from doing so on appeal. McCauley v. Tom McCauley & Son, 1986-NMCA-065, 104 N.M. 523, 724 P.2d 232. Res judicata defense may not be raised for first time on appeal. - In New Mexico action on New York judgment awarding plaintiff only the principal and interest due on a note, defendant could not raise the affirmative defense of res judicata as barring recovery of attorney's fees in New Mexico default judgment for the first time on appeal. Xorbox v. Naturita Supply Co., 1984-NMSC-062, 101 N.M. 337, 681 P.2d 1114. Trial court may permit amendment of pleadings. - While it is true that a party should set forth affirmatively the defense of the statute of limitations and that generally this defense is waived if it is not asserted in a responsive pleading under Rule 12(h) (now Rule 1-012 NMRA), trial courts may nonetheless allow the pleadings to be amended to set up this defense. Chavez v. Kitsch, 1962-NMSC-122, 70 N.M. 439, 374 P.2d 497. Issue may be litigated and decided. - Although the defendant did not affirmatively plead illegality as a defense in its answer nor at any time during or after the hearing move to amend its answer to include this affirmative defense as provided by Rule 15(b) (now Rule 1-015 NMRA), yet the testimony of defendant's president at trial raised the issue of illegality and was litigated without objection and specifically ruled upon by the trial court, and therefore the defendant's failure to affirmatively plead or move to amend at trial does not become an issue on appeal. Terrill v. Western Am. Life Ins. Co., 1973 -NMSC-080, 85 N.M. 456, 513 P.2d 390. If it appears that a defense is available under the issues litigated and that substantial competent evidence supports its prerequisite facts found by the court, the trial court does not commit error in considering such defense and making decision on it. Posey v. Dove, 1953-NMSC-019, 57 N.M. 200, 257 P.2d 541 (1953). Opponent must not be prejudiced. - Truth is an affirmative defense to slander action, and notice of defenses must be given with sufficient particularity to adequately inform the plaintiff of the defenses he must be prepared to meet. Thus, where defendants failed to allege the affirmative defense of truth in their answer, the trial court correctly excluded evidence on this matter. Eslinger v. Henderson, 1969-NMCA-061, 80 N.M. 479, 457 P.2d 998. Defendant may take advantage of plaintiff's testimony establishing affirmative defense. - Whether or not an affirmative defense is pleaded as required by this rule, a defendant may take advantage of plaintiff's testimony if the defense is established thereby. Skeet v. Wilson, 1966-NMSC-182, 76 N.M. 697, 417 P.2d 889. May amend pleading to conform to evidence. - Where party amended his counterclaim at conclusion of trial to insert defense of waiver, the amendment was to conform the pleadings to the evidence under Rule 15(b) (now Rule 1-015 NMRA), and not to insert an affirmative defense. Western Farm Bureau Mut. Ins. Co. v. Lee, 1957-NMSC-055, 63 N.M. 59, 312 P.2d 1068. Raise statute of limitations by motion where defense apparent from pleading. - The defense of the statute of limitations may be raised by motion to dismiss where it is clearly apparent on the face of the pleading that the action is barred. Roybal v. White, 1963-NMSC-111, 72 N.M. 285, 383 P.2d 250, overruled on other grounds, Roberts v. Southwest Community Health Servs., 1992-NMSC-042, 114 N.M. 248, 837 P.2d 442. Laches. - Where a registered shareholder sold and transferred the shareholder's original certificate of shares in the defendant corporation; the original certificate was subsequently transferred to plaintiff in 1989; when plaintiff attempted to register the original certificate in plaintiff's name in 1990, the corporation refused to register the certificate; in 1998, a descendant of the registered shareholder inquired about buying the original certificate from plaintiff; the descendant filed an affidavit with the corporation in 2004 stating that the descendant was the successor of the estate of the registered shareholder and the corporation issued a replacement certificate to the descendant; and in 2007, when plaintiff discovered that the corporation had issued a replacement certificate to the descendant, plaintiff filed suit for fraud, plaintiff's claim against the descendant was not barred by laches because the descendant's conduct did not give rise to plaintiff's complaint concerning the corporation's refusal to register the certificate in 1990; plaintiff did not engage in unreasonable delay in filing a lawsuit after plaintiff discovered that the descendant had obtained a replacement certificate; the descendant knew that plaintiff possessed the original certificate and claimed ownership of the original certificate; and although material witnesses had died, the witnesses had died before plaintiff obtained possession of the original certificate. Wilde v. Westland Dev. Co., Inc., 2010-NMCA-085, 148 N.M. 627, 241 P.3d 628. V. EFFECT OF FAILURE TO DENY. Generally as to effect of failure to deny. - Matter clearly averred in both complaint and cross-complaint and not denied in answer must be taken as true. Citizens Nat'l Bank v. Davisson, 229 U.S. 212, 33 S. Ct. 625, 57 L. Ed. 1153 (1913). No proof is required as to that which is admitted in the pleadings. Panzer v. Panzer, 1974-NMSC-092, 87 N.M. 29, 528 P.2d 888. The value of the thing converted is a material allegation in trover and conversion; hence, where alleged and not denied, no proof of value is required. Bruton v. Sakariason, 1916-NMSC-013, 21 N.M. 438, 155 P. 725 (decided under former law). Effect of interpleader on amount due. - Where by its answer and interpleader appellant sought to be relieved from liability by paying into court the amount of the fund to the extent of its liability and by bringing into court another claimant of the fund, thereby compelling the two claimants to litigate their rights at their own expense, there can be no question as to the amount due, or a demurrer will lie. Bowman Bank & Trust Co. v. First Nat'l Bank, 1914-NMSC-014, 18 N.M. 589, 139 P. 148 (decided under former law). VI. PLEADING TO BE CONCISE AND DIRECT; CONSISTENCY. Notice pleading requirement. - Where plaintiff was admitted to defendant's emergency room with abdominal pain; a contract radiologist performed an abdominal scan on plaintiff; the radiology report concluded that defendant had a diverticular abscess and that cancer was a possibility; the emergency physician and surgeon never received the radiologist's report; plaintiff was diagnosed with colon cancer fourteen months later; plaintiff sued defendant alleging that as a consequence of defendant's failure through an administrative inadequacy to forward the radiology report to the surgeon, plaintiff was treated for a diverticular abscess, allowing the cancer to grow; plaintiff did not specifically plead vicarious liability or apparent agency allegations relating to the radiologist; and defendant claimed that plaintiff was required to assert vicarious liability or apparent agency allegations if plaintiff intended to recover damages under that theory, defendant was adequately notified of the nature of plaintiff's claim that someone in defendant's sphere of responsibility failed to communicate vital medical information from the radiology report and it was immaterial that the complaint failed to specify which particular agents were negligent or the theory that resulted in liability on the part of defendant. Zamora v. St. Vincent Hospital, 2014-NMSC-035. Word "shall" in Subdivision (e)(1) (see now Paragraph E(1)) is mandatory. Mantz v. Follingstad, 1972-NMCA-164, 84 N.M. 473, 505 P.2d 68. Claimant need not designate reliance on estoppel by name. - No specific charge is made on an original pleader to designate reliance on estoppel by name. South Second Livestock Auction, Inc. v. Roberts, 1961-NMSC-130, 69 N.M. 155, 364 P.2d 859. Affidavit in replevin treated as complaint. - Where affidavit in replevin was filed in place of a separate complaint, but affidavit contained all the essential allegations of a complaint, it should have been treated as both affidavit and complaint. Burnham-Hanna-Munger Dry Goods Co. v. Hill, 1912-NMSC-041, 17 N.M. 347, 128 P. 62 (decided under former law). No appeal where trial court grants only one of alternative prayers. - Where alternative prayers are submitted to the trial court for consideration and the trial court rules in favor of one and against the other, the submitting party has received what he sought and is not entitled to appeal. Galvan v. Miller, 1968-NMSC-139, 79 N.M. 540, 445 P.2d 961. Distinct claims based on same instrument properly in one complaint. - Two distinct and different claims based on same instrument may be stated in same complaint but in different counts. Ross v. Carr, 1909-NMSC-004, 15 N.M. 17, 103 P. 307 (decided under former law). Objection to intermingling several causes of action in one count should be made by motion to make more definite and certain. Valdez v. Azar Bros., 1928-NMSC-007, 33 N.M. 230, 264 P. 962 (decided under former law). Doctrine of election of remedies no longer defense. - The doctrine of election of remedies is not a doctrine of substantive law but a rule of procedure or judicial administration, and it is no longer a defense as the common-law doctrine has no application under this rule. Buhler v. Marrujo, 1974-NMCA-062, 86 N.M. 399, 524 P.2d 1015. Plaintiffs' complaint in one district seeking compensatory and punitive damages for fraud on the part of defendant for inducing plaintiffs to enter into a contract for the purchase of certain real estate did not constitute a conclusive election of remedies to bar a suit for specific performance in another district. Buhler v. Marrujo, 1974-NMCA-062, 86 N.M. 399, 524 P.2d 1015. Claim of error, that two counts of complaint are inconsistent and that plaintiff should under the doctrine of election of remedies assert and rely on one, but not both, of his positions, lacks merit in view of this rule, which permits a party to state as many claims as he has regardless of consistency. Platco Corp. v. Shaw, 1967-NMSC-123,78 N.M. 36, 428 P.2d 10. Defendants are not to be penalized for asserting defenses authorized by these rules. Romero v. J.W. Jones Constr. Co., 1982 -NMCA-140, 98 N.M. 658, 651 P.2d 1302. Admissions unavoidably contained in one defense cannot be used against defendant in another. - In wrongful death action instruction that it was incumbent upon the plaintiff to establish the cause of death as alleged was proper in view of this rule because it follows therefrom that admissions unavoidably contained in one defense cannot be used against the defendant in another, for to hold otherwise would greatly impair or totally destroy the right to plead inconsistent defenses. McMurdo v. Southern Union Gas Co., 1952-NMSC-090, 56 N.M. 672, 248 P.2d 668. Legal and equitable defenses proper. - Defendant may set up by way of answer or counterclaim both legal and equitable defenses. Field v. Sammis, 1903-NMSC-013, 12 N.M. 36, 73 P. 617 (decided under former law). Party may recover both legal and equitable relief. - This rule permits a party to state as many claims as he has regardless of consistency; thus one may recover in either damages or rescission, and the rule would also apply to claims for damages or specific performance. Buhler v. Marrujo, 1974-NMCA-062, 86 N.M. 399, 524 P.2d 1015. VII. CONSTRUCTION OF PLEADINGS. Theory behind rule. - Rules of Civil Procedure reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome; the purpose of pleading is to facilitate a proper decision on the merits. Hambaugh v. Peoples, 1965-NMSC-044, 75 N.M. 144, 401 P.2d 777. The purpose of pleading is to facilitate proper decisions on the merits; therefore, all pleadings should be construed so as to do substantial justice. Morrison v. Wyrsch, 1979-NMSC-093, 93 N.M. 556, 603 P.2d 295; Transamerica Ins. Co. v. Sydow, 1981-NMCA-121, 97 N.M. 51, 636 P.2d 322. Although proper pleading is important, its importance inheres in its effectiveness as a means of accomplishing substantial justice. Temple Baptist Church, Inc. v. City of Albuquerque, 1982-NMSC-055, 98 N.M. 138, 646 P.2d 565. The established policy of the Rules of Civil Procedure require that the rights of litigants be determined by an adjudication on the merits rather than upon the technicalities of procedure and form. Transamerica Ins. Co. v. Sydow, 1981-NMCA-121, 97 N.M. 51, 636 P.2d 322. The general policy on pleadings requires that an adjudication on the merits rather than technicalities of procedures and form shall determine the rights of the litigants. Sanchez v. City of Belen, 1982-NMCA-070, 98 N.M. 57, 644 P.2d 1046. General allegations of conduct in a pleading are sufficient. - General allegations of conduct in a pleading are sufficient, as long as they show that the party is entitled to relief and are sufficiently detailed to give the parties and the court a fair idea of the plaintiff's complaint and the relief requested. Woody Inv., LLC v. Sovereign Eagle, LLC, 2015-NMCA-111, cert. denied, 2015-NMCERT-010. Where plaintiffs brought a breach of contract claim after defendants conducted geophysical seismic surveys on land leased by plaintiffs in order to evaluate potential future oil and gas operations, the district court erred in granting defendants' motion for summary judgment on the ground that plaintiffs' complaint did not plead damages to the "range," but alleged that the permits and licenses issued to defendants required compensation to the surface owner or lessee for damage done to the "surface estate". Damages to the range do not exclude all damages to the surface of the land, and plaintiffs' complaint was sufficient to place defendants on notice that plaintiffs were seeking damages provided for in the permits and leases, which provided that defendants must settle with and compensate state land office surface lessees for actual damages to or loss of livestock, authorized improvements, range, crops, and other valid existing rights recognized by law. Woody Inv., LLC v. Sovereign Eagle, LLC, 2015-NMCA-111, cert. denied, 2015-NMCERT-010. Amendments to pleadings are favored, and the right thereto should be liberally permitted in the furtherance of justice. Martinez v. Research Park, Inc., 1965-NMSC-146, 75 N.M. 672, 410 P.2d 200, overruled on other grounds, Lakeview Invs., Inc. v. Alamogordo Lake Vill., Inc., 1974-NMSC-027, 86 N.M. 151, 520 P.2d 1096, overruled on other grounds, Sundance Mechanical & Util. Corp. v. Atlas, 1990-NMSC-031, 109 N.M. 683, 789 P.2d 1250. In the promotion of justice, amendments of pleadings are to be encouraged, and provisions therefor should be construed liberally. Newbold v. Florance, 1950-NMSC-049, 54 N.M. 296, 222 P.2d 1085. Even after dismissal for failure to state cause of action. - After dismissal of an original complaint in action on an account for failure to state a cause of action, an amended complaint would not be barred either by res judicata or any application of the law of the case. Newbold v. Florance, 1950-NMSC-049, 54 N.M. 296, 222 P.2d 1085. Pleadings deemed amended by trial court. - Recovery should be allowed on quantum meruit even though suit was originally framed on express contract, and amendment to pleadings should be freely allowed to accomplish this purpose at any stage of proceedings, including considering pleadings amended to conform to proof. State ex rel. Gary v. Fireman's Fund Indem. Co., 1960 -NMSC-100, 67 N.M. 360, 355 P.2d 291. Issues not pleaded may be considered. - Fact that complaint in action for damage to automobile contained no allegations touching on agency of defendant's employee or the master and servant doctrine did not render inadmissible testimony by plaintiff that he delivered automobile to defendant's employee, absent any claim by defendant that he would have had evidence available to meet the claim had such matter been pleaded. Hite v. Worley, 1952-NMSC-015, 56 N.M. 83, 240 P.2d 224. Husband's action for change of custody implicitly involved consideration of future child support if change of custody were made, and although it would have been better practice to plead for modification of child support when seeking change of custody, failure to do so did not preclude consideration of issue on due process grounds since questions of change of custody and child support are so inextricably related. Corliss v. Corliss, 1976-NMSC-023, 89 N.M. 235, 549 P.2d 1070. Pleader held to what has been specifically pleaded. - Under this rule, it is sufficient to plead generally a claim for relief, but once a pleader pleads specifically he will be held to what has been specifically pled. In re Doe, 1995-NMCA-009, 87 N.M. 253, 531 P.2d 1226 (Ct. App.), cert. denied, 87 N.M. 239, 531 P.2d 1212 (1975). Where plaintiffs asserting a prescriptive right to flow waters through culvert and thence through lands of defendants from whom they sought recovery for flood damage pleaded some, but not all, of the elements necessary to establish the right, they would be held to those specifically stated; plea of continuous, uninterrupted, adverse and exclusive use was insufficient for failure to contain all elements; the pleading might have been sufficient had it only claimed a prescriptive right. Martinez v. Cook, 1952-NMSC-034, 56 N.M. 343, 244 P.2d 134. Issues preserved for review where parties file briefs and argue before district court. - Issues are preserved for review where, although a responsive pleading is not filed, both parties to an action file briefs and argue before the district court. Temple Baptist Church, Inc. v. City of Albuquerque, 1982-NMSC-055, 98 N.M. 138, 646 P.2d 565. Limits to liberal construction of pleadings. - A court under the guise of liberal construction of a pleading cannot supply matters which the pleading does not contain, nor can the rules of pleading be totally disregarded, if there is to be an orderly disposition of cases; thus, when a party claims a statutory right, his pleading must contain all of the allegations necessary to bring him within the purview of the statute. Wells v. Arch Hurley Conservancy Dist., 1976-NMCA-082, 89 N.M. 516, 554 P.2d 678. Prayer for relief is not part of complaint and cannot be considered as adding to the allegations. Chavez v. Potter, 1954-NMSC-075, 58 N.M. 662, 274 P.2d 308, overruled on question of recovery in quantum meruit in suit on express contract. State ex rel. Gary v. Fireman's Fund Indem. Co., 1960 -NMSC-100, 67 N.M. 360, 355 P.2d 291, 84 A.L.R.2d 1072 (1960). See also Heth v. Armijo, 1972-NMSC-011, 83 N.M. 498, 494 P.2d 160. Law reviews. - For article, "The `New Rules' in New Mexico," see 1 Nat. Resources J. 96 (1961). For survey, "Civil Procedures in New Mexico in 1975," see 6 N.M.L. Rev. 367 (1976). For article, "Medical Malpractice Legislation in New Mexico," see 7 N.M.L. Rev. 5 (1976-77). For annual survey of New Mexico law relating to civil procedure, see 12 N.M.L. Rev. 97 (1982). For annual survey of New Mexico law relating to civil procedure, see 13 N.M.L. Rev. 251 (1983). For article, "Survey of New Mexico Law, 1982-83: Civil Procedure," see 14 N.M.L. Rev. 17 (1984). For article, "Statutory Adoption of Several Liability in New Mexico: A Commentary and Quasi-Legislative History," see 18 N.M.L. Rev. 483 (1988). For article, "The Impact of Non-Mutual Collateral Estoppel on Tort Litigation Involving Several Liability," see 18 N.M.L. Rev. 559 (1988). For article, "If at First You Do Succeed: Judicial Estoppel in New Mexico's State and Federal Courts," see 29 N.M.L. Rev. 201 (1999). For note, "The Blaze Construction Case: An Analysis of the Blaze Construction Tax Cases and the Implication on Avoidance of Taxation In Indian Country," see 39 Nat. Resources J. 845 (1999). Am. Jur. 2d, A.L.R. and C.J.S. references. - 1 Am. Jur. 2d Accord and Satisfaction §54; 12 Am. Jur. 2d Bonds §43; 25 Am. Jur. 2d Duress and Undue Influence §§22, 32; 42 Am. Jur. 2d Injunctions §268; 61A Am. Jur. 2d Pleading §1 et seq. Effect of statute eliminating scienter as condition of liability for injury by dog or other animal, 1 A.L.R. 1123, 142 A.L.R. 436. Application of doctrine of res judicata to item of single cause of action omitted from issues through ignorance, mistake or fraud, 2 A.L.R. 534, 142 A.L.R. 905. Charges of adultery in suit for divorce, 2 A.L.R. 1033, 26 A.L.R. 541. Sufficiency of allegation of adultery, in suit for divorce, 2 A.L.R. 1621. Necessity of alleging husband's agency where mechanic's lien against property of married woman is sought for work performed or material furnished under a contract with her husband, 4 A.L.R. 1031. Sufficiency of complaint of assault upon female, 6 A.L.R. 1021. Plea or answer in civil action for assault upon female, 6 A.L.R. 1022. Submission on agreed statement of facts or on agreed case as waiver of defects in pleading, 8 A.L.R. 1172. Failure to furnish cars where defense is car shortage, 10 A.L.R. 362. Action to recover against receiver for torts or negligence of receivership employees, 10 A.L.R. 1065. Setting up in complaint same cause of action under state law and under Federal Employers' Liability Act, 12 A.L.R. 707, 36 A.L.R. 917, 89 A.L.R. 693. Pleading in action to hold warehouseman liable for damage to or destruction of property by fire, 16 A.L.R. 301. Admission by pleading of a parol contract as preventing pleader from taking advantage of statute of frauds, 22 A.L.R. 723. Sufficiency of allegations to authorize recovery of attorney's fees for wrongful attachment, 25 A.L.R. 599, 65 A.L.R.2d 1426. Right under general prayer to relief inconsistent with prayer for specific relief, 30 A.L.R. 1175. Right to plead single cause of action as in tort and on contract, 35 A.L.R. 780. Pleading fact to show what items of damages belonging to infant and what to parent, 37 A.L.R. 62, 32 A.L.R.2d 1060. Fictitious or assumed name, necessity of alleging in complaint compliance with statute as to doing business under, 45 A.L.R. 270, 42 A.L.R.2d 516. Pleading in action to recover double or treble damages against tenant committing waste, 45 A.L.R. 776. Necessity of pleading injury to credit as element of damages, 54 A.L.R. 455. Form of pleading necessary to raise issue of corporate existence, 55 A.L.R. 510. Raising issue of corporate existence by plea in abatement or in bar, 55 A.L.R. 519. Pleading in action on policy ensuing against conversion or embezzling of automobile, 55 A.L.R. 844. Pleading injunction against threatened or anticipated nuisance, 55 A.L.R. 885. Pleading as affecting damages for breach of covenant of seisin, 61 A.L.R. 58, 100 A.L.R. 1194. Pleading breach of warranty as to article purchased for resale, and resold, 64 A.L.R. 888. Necessity that party relying upon contract differing from terms of written instrument sued on plead facts entitling him to reformation, 66 A.L.R. 791. Waiver of benefit of statute or rule by which allegation in pleading of execution or consideration of written instrument must be taken as true unless met by verified denial, 67 A.L.R. 1283. Pleading in action based on omnibus coverage clause of automobile liability policy as to owner's consent to use of car by one driving it at time of action, 72 A.L.R. 1410, 106 A.L.R. 1251, 126 A.L.R. 544, 143 A.L.R. 1394. Liability insurance, sufficiency of pleading as regards compliance with provision as to notice of accident claim, 76 A.L.R. 212, 123 A.L.R. 950, 18 A.L.R.2d 443. Sufficiency of complaint in vendor's foreclosure of contract for sale of real property, 77 A.L.R. 292. Governing law as regards presumption and burden of proof, 78 A.L.R. 883, 168 A.L.R. 191. Pleading in action on official bond for acts or defaults occurring after termination of office, 81 A.L.R. 68. Periodical payment of indemnity, recovery for instalments due under contract for, under complaint seeking recovery for breach of entire contract, 81 A.L.R. 388, 99 A.L.R. 1171. Pleading in action for inducing breach of contract, 84 A.L.R. 92, 26 A.L.R.2d 1227, 96 A.L.R.3d 1294, 44 A.L.R.4th 1078. Right to set up by plea in abatement claim for damages from wrongful seizure of property, 85 A.L.R. 657. Sufficiency of allegations of loss of patronage or profit to permit recovery of special damages, 86 A.L.R. 848. Pleading in proceedings to obtain declaratory judgment, 87 A.L.R. 1246. Admission by failure to answer complaint seeking declaratory judgment, 87 A.L.R. 1247. Necessity of alleging fact of agency in declaring upon contract made by parties through agent, 89 A.L.R. 895. Sufficiency of pleading to permit recovery for mental or physical suffering as element of damages, 90 A.L.R. 1184. Stipulation of parties as to sufficiency of complaint, 92 A.L.R. 673. Necessity of pleading family purpose doctrine, 93 A.L.R. 991. Failure to raise mechanic's lien by demurrer or answer failure to bring suit to enforce, within time prescribed as waiver, 93 A.L.R. 1462. Necessity that promisee in action on promise to pay "when able" plead ability to pay, 94 A.L.R. 721. Petition in proceedings for purging of voter's registration lists, 96 A.L.R. 1044. Pleading in action for libel by motion picture, 99 A.L.R. 878. Payment as provable under general issue or general denial, 100 A.L.R. 264. Sufficiency of allegation of insolvency without further statement of facts, 101 A.L.R. 549. Form and particularity of allegations to raise issue of undue influence, 107 A.L.R. 832. Necessity of pleading good faith as defense in action against parent or relation for alienation of affections, 108 A.L.R. 418. Necessity of alleging malice in action against parent or relative for alienation of affections, 108 A.L.R. 423. Pleading in action to compel payment of dividends or to recover dividends wrongfully paid, 109 A.L.R. 1397. Form and sufficiency of allegations of heirship, 110 A.L.R. 1239. Trustee's action against third party, necessity and sufficiency of allegations in regard to trust, 112 A.L.R. 1514. Sufficiency of complaint in action against railroad company for killing or injuring person or livestock, as regards time and direction and identification of train, 115 A.L.R. 1074. Construction of "and/or", 118 A.L.R. 1372, 154 A.L.R. 866. Pleading duress as a conclusion, 119 A.L.R. 997. Pleading waiver, estoppel, and res judicata, 120 A.L.R. 8 Duplicity of plea setting up estoppel by judgment, 120 A.L.R. 137. Pleading foreign statute, 134 A.L.R. 570. Allegation of conspiracy as surplusage not affecting right to recover for wrong done, 152 A.L.R. 1148. Manner of pleading defense of statute of frauds, 158 A.L.R. 89. Failure of complaint to state cause of action for unliquidated damages as ground for dismissal of action at hearing to determine the amount of damages following plaintiff's default, 163 A.L.R. 496. Appealability of order entered on motion to strike pleading, 1 A.L.R.2d 422. Dismissal of action for failure or refusal of plaintiff to obey court order, 4 A.L.R.2d 348, 56 A.L.R.3d 1109, 27 A.L.R.4th 61, 32 A.L.R.4th 212, 3 A.L.R.5th 237. Necessity of pleading the maker or drawer of check was given notice of its dishonor by bank, 6 A.L.R.2d 985. Application and effect of parol evidence rule as determinable upon the pleadings, 10 A.L.R.2d 720. Necessity and sufficiency of pleading in partition action to authorize incidental relief, 11 A.L.R.2d 1449. Granting relief not specifically demanded in pleading or notice in rendering default judgment in divorce or separation action, 12 A.L.R.2d 340, 5 A.L.R.5th 863. Fellow servant and assumption of risk, defenses of in actions involving injury or death of member of airplane crew, ground crew, or mechanic, 13 A.L.R.2d 1137. Necessity and sufficiency of allegations in complaint for malicious prosecution or tort action analogous thereto that defendant or defendants acted without probable cause, 14 A.L.R.2d 264. Aider by verdict of allegation in complaint for malicious prosecution or tort action analogous thereto that defendant or defendants acted without probable cause, 14 A.L.R.2d 279. Pleading in action by patron of public amusement for accidental injury from cause other than assault, hazards of game or amusement, or condition of premises, 16 A.L.R.2d 912. Pleading as to causation of alienation of affections, 19 A.L.R.2d 471. Avoidance of release of claim for personal injuries on ground of misrepresentation as to matters of law by tortfeasor or his representative insurer, 21 A.L.R.2d 272. Joinder in defamation action of denial and plea of truth of statement, 21 A.L.R.2d 813. Binding effect of court's order entered after pretrial conference, 22 A.L.R.2d 599. Failure to assert matter as counterclaim as precluding assertion thereof in subsequent action, under federal rules or similar state rules or statutes, 22 A.L.R.2d 621. Sufficiency of description or designation of land in contract or memorandum of sale under statute of frauds, 23 A.L.R.2d 6. Necessity and sufficiency of statement of consideration in contract or memorandum of sale of land, under statute of frauds, 23 A.L.R.2d 164. Uniform Judicial Notice of Foreign Law Act, 23 A.L.R.2d 1437. Seller's waiver of sales contract provision limiting time within which buyer may object to or return goods or article for defects or failure to comply with warranty or representations, 24 A.L.R.2d 717. Pleading last clear chance doctrine, 25 A.L.R.2d 254. Sufficiency of pleading in action relying upon imputation of perjury or false swearing as actionable per se, 38 A.L.R.2d 161. Agency, manner and sufficiency of pleading, 45 A.L.R.2d 583. Amendment of pleading before trial with respect to amount or nature of relief sought as ground for continuance, 56 A.L.R.2d 650. Raising defense of statute of limitations by motion for judgment on pleadings, 61 A.L.R.2d 300. Litigant's pleading to the merits, after objection to jurisdiction of person made under special appearance or the like has been overruled, as waiver of objection, 62 A.L.R.2d 937. Effect of failure to plead provision of negotiable instruments law requiring renunciation of rights to be in writing, 65 A.L.R.2d 593. Sufficiency of plaintiff's allegations in defamation action as to defendant's malice, 76 A.L.R.2d 696. Necessity and sufficiency of allegations of tender of payment in bill by one seeking to redeem property from mortgage foreclosure, 80 A.L.R.2d 1317. Assumption of risk and contributory negligence, distinction between, 82 A.L.R.2d 1218. Recovery on quantum meruit where only express contract is pleaded, under Federal Rules 8 and 54 and similar state statutes or rules, 84 A.L.R.2d 1077. Necessity and sufficiency of plaintiff's allegations as to falsity in defamation action, 85 A.L.R.2d 460. Principal's liability for false arrest or imprisonment caused by agent or servant, 92 A.L.R.2d 15, 73 A.L.R.3d 826, 93 A.L.R.3d 826. Sufficiency of pleading in action for libel by listing nontrader as unworthy of credit, 99 A.L.R.2d 700. Pleading of election of remedies, 99 A.L.R.2d 1315. Presenting of counterclaim as affecting summary judgment, 8 A.L.R.3d 1361. Infant's misrepresentation as to his age as estopping him from disaffirming his voidable transaction, 29 A.L.R.3d 1270. Right to voluntary dismissal of civil action as affected by opponent's motion for summary judgment, judgment on the pleadings, or directed verdict, 36 A.L.R.3d 1113. Power of court sitting as trier of fact to dismiss at close of plaintiff's evidence notwithstanding plaintiff has made out prima facie case, 55 A.L.R.3d 272. Dismissal of state court action for failure or refusal of plaintiff to answer written interrogatories, 56 A.L.R.3d 1109. Right to amend pending personal injury action by including action for wrongful death after statute of limitations has run against independent death action, 71 A.L.R.3d 933. Principal's liability for punitive damages because of false arrest or imprisonment, or malicious prosecution, by agent or employee, 93 A.L.R.3d 826. Simultaneous injury to person and property as giving rise to single cause of action -modern cases, 24 A.L.R.4th 646. Liability for injury to customer or other invitee of retail store by falling of displayed, stored, or piled objects, 61 A.L.R.4th 27. 71 C.J.S. Pleading §§ 1 to 53, 63, 95, 99, 103, 152, 155, 163.