• “Payment is an affirmative defense which the defendant has the burden to plead and prove. Payments pled by the defendant which are not admitted in the plaintiff’s petition must be specifically alleged.”
  • What about trial by consent? “‘The doctrine of trial by consent does not apply when the evidence of an unpleaded matter is relevant to the pleaded issues because it would not be calculated to elicit an objection.’ Milbourn’s testimony was relevant to the Kidwell’s claim for breach of fiduciary duty … that Bresnahan breached his fiduciary duty by failing to disclose his conflicts of interest and by unilaterally increasing his own wages. … Because the Kidwells’ evidence of payment [a spreadsheet] was also relevant to their pleaded claim for breach of fiduciary duty, we conclude payment was not tried by consent.”

Haddington Fund, LP v. Kidwell, No. 05-19-01202 (Jan. 11, 2022) (mem. op.) (citations omitted).

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