How do you respond to affirmative defenses at the trial level

FLORIDA APPEALS JOURNAL™
JOURNAL ENTRY 7. 2020

THE BIG ISSUE: How to respond to affirmative defenses at the trial level, as specified in the Florida Rules of Civil Procedure Rule 1.140 (b).

It’s one of the most misunderstood issues among litigators.

Lack of jurisdiction over the subject matter. Lack of jurisdiction over the person. Improper venue. Insufficiency of process. Insufficiency of service of process. Failure to state a cause of action. Failure to join indispensible parties. A motion to dismiss on any of these grounds must be made with specificity or particularity.

Rule 1.100 (a) governs the reply and makes it mandatory.

Of all the pleadings, it is probably the reply that is most misunderstood. It is very typical for litigators to file a reply that merely denies the allegations of the affirmative defenses. That is not necessary.

However, a reply is required only if the pleader wishes to avoid an affirmative defense. In other words, to plead some new matter to prevent the effectiveness of the affirmative defense. Failure to plead avoidance to an affirmative defense can be corrected by presenting evidence without objection at trial on the issue, which has the effect of amending the proceedings to correct the deficiency.

Key point to remember: There is a difference between an avoidance and a denial.

If you’re the plaintiff and the defendant has filed an answer in the affirmative defenses, and what if you’ve got defenses that are insufficient as a matter of law? Or allegations pulled from thin air, and they’re scandalous, impertinent, immaterial, irrelevant? You want to use the motion to strike rule: 1.140.

Force the opposing counsel to define terms. Do your research. Know the elements of the defenses that are raised in the affirmative defense. You can move to strike or you can move for a more definite statement: 1.140 (e).

In your motion to strike, you’ve got to be specific. Point out the defects in the opposing case and what’s the information you’re seeking. If the opposition is unable to follow the law and allege the elements, you do want to move to strike as being insufficient as a matter of law.

COURTROOM SAVVY: Look at pleadings very carefully. You have a many tools in your arsenal but you must know what’s going to be the best approach for the circumstances. Don’t let your opponent get away with loose, general boilerplate filings. Make sure they’re in compliance with 1.140.

CITATIONS
Equibank, N.A. v. Penland et ux., 344 So. 2d 629 (Fla. 1st DCA 1977)
Florida Rules of Civil Procedure Rule 1.140 (b) 
Florida Rules of Civil Procedure Rule 1.100 (a)

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