Associate’s Corner
Each month, Kluger Kaplan‘s associates will take to the blog to talk about topics relevant to their practice areas.  This month, Jeffrey Berman reminds us of the consequences for failing to reply to affirmative defenses.
Don’t Forget to Reply to Affirmative Defenses!
By Jeffrey M. Berman
In a recent case, I encountered an issue that is often overlooked in litigation—replying to affirmative defenses.  Under the Florida Rules of Civil Procedure, a party is not required to reply to the opposing party’s affirmative defenses merely to deny them.  In fact, under Rule 1.110(e) affirmative defense are automatically deemed as denied in the absence of a reply.  Fla. R. Civ. P. 1.110(e).  However, where a party knows of facts that are outside the pleadings that avoid or negate the opposing party’s affirmative defenses (and not merely denies them), that party isrequired to file a reply setting forth those facts.  In other words, a party must file a reply and plead its affirmative defense to the opposing party’s affirmative defense.
Why is this so important?  Because Florida law is clear that where a party fails to raise contentions outside the pleadings in a reply to an affirmative defense, the party may have just waived its right to later assert those facts in order to refute the affirmative defense.  See, e.g., Burton v. Linotype Co., 556 So. 2d 1126, 1128 (Fla. 3d DCA 1990) (“As an affirmative defense, Linotype asserted the limited warranty clause.  However, the contention that the limited warranty failed of its essential purpose was an avoidance which Burton and MLG waived by failing to plead in a reply.”); North American Phillips Corp., Inc. v. Boles, 405 So. 2d 202, 203 (Fla. 4th DCA 1981) (holding that it was reversible error to allow the plaintiff to introduce a letter from his counsel and argue that the letter demonstrating that the plaintiff had satisfied conditions precedent where the defendant had alleged a failure of conditions precedent as an affirmative defense and the plaintiff had failed to avoid it with an adequate reply); Reno v. Adventist Health Systems/Sun-Belt, 516 So. 2d 63, 65 (Fla. 2d DCA 1987) (“By having failed to reply to the [affirmative] defense, plaintiff would not be entitled at trial to raise new matters in avoidance thereof.”).
For example, a plaintiff asserts a claim for money lent, and the defendant asserts the statute of limitations as an affirmative defense.  The plaintiff believes that there are facts outside the pleadings that demonstrate that the defendant is estopped from asserting this defense due to its actions or unclean hands.  Thus, although the plaintiff does not need to reply to the statute of limitations defense merely to deny that the claim is time barred, under this scenario the plaintiff must reply to the affirmative defense and seek to avoid it with the specific facts that the plaintiff will ultimately use to establish that the defendant is estopped from asserting the statute of limitations (i.e. the plaintiff must plead the specific facts that support its affirmative defense to the defendant’s affirmative defense).
While there is a litany of case law on this issue, this important facet of the Florida Rules of Civil Procedure is often overlooked, and can lead to dire consequences for your client later in the proceeding, not to mention inadvertently committing malpractice.  So let it serve as a reminder to attorneys to carefully review your opponent’s affirmative defenses, speak with your clients and investigate whether there are facts to avoid them, and be sure to reply to those affirmative defenses when necessary.