BELLE — Former clerk Frankie Horstman’s attorney on May 7 filed a motion to strike four of the city of Belle’s defenses from the record on allegations that it failed to meet the rationalization requirements according to Rule 55.08 of Missouri State Statute. Or, if the court chooses not to strike the defenses, to require the defenses to be more definitive and share more definite examples.

Both parties responded to the wrongful-termination allegations via counsel — Shelly A. Kintzel with Cook, Vetter, Doerhoff, and Landwehr, P.C., in Jefferson City represented Horstman and Adam D. Hirtz and Harry L. Benson of Jackson Lewis P.C. filed on behalf of the city of Belle.

Horstman’s attorney responded to the city’s April 24 affirmative defenses on May 7 by listing reasons she believed its rationalization was insufficient.

“Defendants affirmative defenses B, C, F, and J should be stricken because they do not comply with Rule 55.08’s requirement that they include the specific facts required to support the affirmative defense,” Kintzel alleged.

According to the court documents, Rule 55.27(e) permits a party to seek to strike any “insufficient defense” from a pleading within 30 days after the service of the pleading. Rule 55.08 requires that “all applicable affirmative defenses and avoidances” be asserted in a responsive pleading and “shall contain a short and plain statement of the facts showing that the pleader is entitled to the defense or avoidance.” She also alleges that “bare legal assertions are insufficient to plead affirmative defenses” and that “a pleading containing only conclusory statements without the specific facts required to support the affirmative defense fails as a matter of law.”

According to Kintzel’s response, the purpose of affirmative defense pleading is to ensure that an opposing party is informed of and prepared to address the issues being raised by the defense.

Affirmative defense B claimed “plaintiff’s claim for damages is barred to the extent she has failed to make reasonable efforts to mitigate her damages.”

Kintzel said affirmative defense B is insufficient because it doesn’t identify ways Horstman failed to mitigate her damages.

“What, specifically, does the defendant contend that plaintiff could or should have done to make a ‘reasonable effort’ to mitigate her damages? In what amount?”

Kintzel alleged the same issue with defense C, which was, “Defendant terminated plaintiff’s employment for legitimate, non-retaliatory business reasons.”

According to Kintzel, the assertion is “insufficient because it asserts that plaintiff’s employment was terminated for a legitimate, non-retaliatory business reason but then fails to include any factual statement of what the reason for termination was. By definition, the reason had to have been known to the defendant at the time of termination, so there is no justification for the defendant’s failure to include this fact in its response.”

She asked that defense C. be stricken from the record.

Affirmative defense F stated, “Missouri Revised Statute Section 105.055 shall not be construed as restricting or precluding disciplinary action taken against a public employee if the disclosure relates to employee’s own violations, mismanagement, gross waste of funds, abuse of authority or endangerment of the public health and safety.”

Kintzel alleged the defense did not include facts again.

“This purported defense implies that the disclosures made by plaintiff related to her own wrongful conduct and therefore plaintiff is not protected by the pubic whistleblower statute,” Kintzel wrote. “The defendant should be required to identify which ways it believes that plaintiff’s disclosures related to her improper conduct. Specifically, which of the listed categories (legal violations, mismanagement, gross waste of funds, abuse of authority, or endangerment of public health and safety) does the defendant claim that plaintiff committed? In what ways did the disclosure relate to the alleged misconduct? This information is required to comply with Rule 55.08 and to allow plaintiff to properly respond to this defense. Affirmative Defense F should be stricken.”

Kintzel alleges affirmative defense J, “Because no discovery has yet occurred in this action, the defendant reserves the right to assert further defenses as appropriate,” isn’t a defense at all.

“Therefore it should be stricken,” she wrote. “It is an attempt to preserve the right to aver additional defenses at a later time. But there is already a procedure for amending an answer; if facts supporting additional defenses are discovered in the future that were not known to the defendant at the time of this pleading, then the defendant could follow that procedure to seek leave to amend its answer to add that defense and give plaintiff a full and fair opportunity to respond to that motion at that time.”

She further alleges that it is improper to preemptively ask for the ability to add additional, unidentified affirmative defenses without factual support.

After requesting affirmative defenses B, C, F, and J be stricken, Kintzel requested that, should the court deny her petition to strike certain affirmative actions, she would settle on supplication.

“In the alternative, defendants should be required to plead a more definite statement s to the affirmative defenses of B, C, F, and J pursuant to rule 55.27,” she wrote.

According to Rule  55.27(d), either party may, “move for a more definite statement of any matter contained in a pleading that is not averred with sufficient definiteness or particularity to enable the party property to prepare responsive pleadings or to prepare generally for trial when a responsive pleading is not required.”

Kintzel requested that if the court found affirmative defenses to be sustained the court order the city to provide a more definite statement that would allow plaintiff to prepare a response.

She requests further information on the following affirmative defenses:

B: identify who it contends that plaintiff could have — but did not — mitigate her damages.

C: Order the city to identify the reason that it asserts Horstman was terminated.

F: Identify which of the categories it contends is applicable to Horstman’s disclosure.

J: Identify any affirmative defenses it wishes to assert now and provide factual allegations that satisfy Rule 55.08.