Session of 1999
         
SENATE BILL No. 87
         
By Committee on Judiciary
          
1-21
          
  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.
12      
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
21       $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;
42       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
29       thereto.
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
22       of $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-
37       legation 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.