Roy’s Trial Law “TIPS”–Tip No. 1
Never File a Reply to Affirmative Defenses Which Just
“Denies Each and Every Affirmative Defense
and Demands Strict Proof Thereof.”
by Roy D. Wasson
Fellow of the Academy of Florida Trial Lawyers and
Board Certified in Appellate Practice
Among many cases so holding, the Buss Aluminum case states: “It is well established that a reply should never be used to simply deny an affirmative defense. Moore Meats, Inc. v. Strawn, 313 So. 2d 660 (Fla. 1975); Henry P. Trawick, Jr., Trawick’s Florida Practice and Procedure §§ 11-6 (1993).” Buss Aluminum Products, Inc. v. Crown Window Co., 651 So. 2d 694 (Fla. 2d DCA 1995). Such a reply is a needless pleading. However, where the Defendant’s answer contains an affirmative defense that will require evidence to overcome, a reply will be necessary in order for the Plaintiff to avoid the affirmative defense. This comes up mostly in commercial cases, family court matters and other equitable cases. However, the practitioner should be alert to the need to file avoidances to affirmative defenses in personal injury cases as well.
The Buss Aluminum case offers a couple of examples of avoidances that must be affirmatively pled in a reply that may be highly relevant to a personal injury case:
Florida Rule of Civil Procedure 1.100(a) states that “if an answer . . . contains an affirmative defense and the opposing party seeks to avoid it, the opposing party shall file a reply containing the avoidance. No other pleadings shall [**3] be allowed.” (Emphasis supplied.) Rule 1.140(a)(1) provides twenty days to serve a reply “if a reply is required.” An avoidance is an allegation of additional facts intended to overcome an affirmative defense. Kitchen v. Kitchen, 404 So. 2d 203 (Fla. 2d DCA 1981). For example, a plaintiff may allege facts establishing waiver or estoppel to overcome a statute of limitations defense. Tuggle v. Maddox, 60 So. 2d 158 (Fla. 1952).
651 So. 2d at 695 (emphasis added).
Other avoidances include tolling of the statute (plead what conduct or event tolled the statute if you know it), fraud which induced contractual provisions pled as defenses, and so on. See, e.g., Acoustic Innovations, Inc. v. Schafer, 976 So. 2d 1139, 1142 (Fla. 4th DCA 2008)(plaintiff filed reply asserting an avoidance of unclean hands to the affirmative defense of laches). Use your best efforts to dream up such avoidances, as opposed to denials. Why? If a defense requires proof of facts to overcome it and you did not plead those facts in the reply, then an objection to your evidence on such an avoidance as “immaterial” could be granted.
If the defendant raises an affirmative defense which must be avoided by pleading “new matter,” a reply that denies the affirmative defense will be insufficient and the plaintiff will be precluded from refuting the defense with evidence at trial. In North American Phillips Corp. v. Boles, 405 So. 2d 202 (Fla. 4th DCA 1981), the defendant filed an answer including the defense that the plaintiff had failed to fulfill certain conditions precedent. The plaintiff filed a purported “reply to affirmative defenses,” which merely denied the affirmative defenses. At trial, the plaintiff introduced into evidence a letter purporting to establish a waiver of the affirmative defenses. “Defense counsel objected to this line of testimony on the ground that it was irrelevant to the issues framed by the pleadings.” Id. at 203. The trial court overruled the objection and entered judgment for the plaintiff.
On appeal, the Fourth District reversed the judgment in favor of the plaintiff, holding that the failure to file a reply affirmatively alleging the facts constituting waiver of the conditions precedent precluded the plaintiff from introducing evidence to avoid that defense. The denial of the affirmative defense was ineffective.
When I first published the foregoing TIP several years ago, another reason to avoid ever filing a reply that merely denied all affirmative defenses was that the plaintiff’s case could be dismissed for failure to prosecute. A reply which does not affirmatively avoid a defense with facts was then considered a “stray pleading” which would not count for record activity, as Buss Aluminum holds: “For all practical purposes, a document entitled ‘reply’ which does not contain any additional facts in the nature of avoidance is not a pleading. It does nothing to hasten the suit to judgment and is a mere passive effort to keep the suit on the docket. See Eastern Elevator, Inc. v. Page, 263 So. 2d 218 (Fla. 1972).”
The law has since changed to recognize that any paper filed in the trial record will preclude for failure to prosecute, whether or not that paper is effective in hastening the case to conclusion. However, a reply that only denies an affirmative defense is still a nullity.
I will close with this piece of advice. When a defendant pleads a statutory defense like the caps on rental car damages, go ahead and plead in the Reply the statute’s unconstitutionality (in separate paragraphs for “single-subject,” equal protection, denial of access to courts, trial by jury, due process, and so on). While those defenses are not fact-based, they are avoidances which I think should be pled. Then when you move for summary judgment on the defense, your motion will be based on a pleaded avoidance.
Old habits—like the habit of filing a reply that merely denies all affirmative defenses—are very hard to break. Also difficult is coming to task with the necessity of thinking of avoidances to affirmative defenses in the typical case. If the reader is unsuccessful in these efforts at first, all I can say is to . . .