Kitchen v. Kitchen, 81-260
| Decision Date | 07 October 1981 |
| Docket Number | No. 81-260,81-260 |
| Citation | 404 So.2d 203 |
| Parties | Eskell H. KITCHEN, Appellant, v. Edith D. KITCHEN, Appellee. |
| Court | Florida District Court of Appeals |
J. Thomas Wright, Tampa, for appellant.
Robert A. Herce of Herce & Martinez, Tampa, for appellee.
Eskell H. Kitchen (the husband) appeals a final judgment granting the motion for judgment on the pleadings filed by Edith D. Kitchen (the wife) on the husband's petition for modification of the final judgment of dissolution of the parties' marriage. The issue before us is whether the husband was required to file a reply within twenty days after service of the wife's affirmative defense under Florida Rule of Civil Procedure 1.140(a). We answer in the negative and reverse.
Originally the husband sought dissolution of the parties' marriage, and the parties subsequently filed a stipulated property settlement agreement. Final judgment of dissolution, which followed the agreement essentially verbatim and included disposition of the marital property, an award of permanent periodic alimony to the wife, and a requirement that the husband assume responsibility for certain outstanding debts, was later entered in due course.
Thereafter, the husband filed the instant petition for modification of the final judgment, alleging changed circumstances involving a substantial reduction in his income and the wife's having obtained employment. The wife filed a motion to dismiss the petition on the ground that the modifications sought involved matters covered by the property settlement agreement, which motion was denied. She then filed an answer, raising the ground stated in her motion to dismiss as an affirmative defense.
Seven months later the wife filed a motion for judgment on the pleadings, asserting that since the husband had filed no reply to her affirmative defense as required by Florida Rule of Civil Procedure 1.100(a), there was no issue of material fact and she was entitled to judgment as a matter of law. The husband then filed a response to the wife's affirmative defense denying all of her allegations except the allegation that the parties had entered into the property settlement agreement. The wife moved to strike this response. After hearing, the trial court granted both the wife's motion to strike and her motion for judgment on the pleadings. This appeal followed timely.
Rule 1.100(a) provides in pertinent part:
Rule 1.110(e) provides in pertinent part: "Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided." "Avoiding" an affirmative defense is different from a denial of that affirmative defense, and a denial is neither required nor permitted by the rules.
The issue now before us was discussed at length in Moore Meats, Inc. v. Strawn, 313 So.2d 660 (Fla.1975). Pertinent portions of the opinion read as follows:
Florida's "Dean of Rules" is the Honorable Henry P. Trawick, Jr., who served long and devotedly on the Supreme Court Committee on Rules of Civil Procedure and as Chairman thereof. He is the author of Trawick's Florida Practice and Procedure and has highlighted the answer (on the point in question) .... Mr. Trawick in an enlightening article "To Reply or Not to Reply?" published in the December 1973 Florida Bar Journal pointed out:
....
... Circuit Judge David U. Strawn in an order of great clarity ruled:
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...defense in order to treat that defense as denied for purposes of a motion for judgment on the pleadings. See, e.g., Kitchen v. Kitchen, 404 So.2d 203, 205 (Fla. 2d DCA 1981). Accordingly, in deciding this case, we must accept the allegations of the appellants' complaint as true and deem any......
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...517 (Fla. 4th DCA 1976); see also Reno v. Adventist Health Systems/Sunbelt, Inc., 516 So.2d 63 (Fla. 2d DCA 1987); Kitchen v. Kitchen, 404 So.2d 203 (Fla. 2d DCA 1981). The general denial was insufficient to overcome waiver, and summary judgment was therefore appropriate. Third, MLG and Bur......
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...order to entitle the plaintiff to, in effect, prove an affirmative defense to an affirmative defense."); see also Kitchen v. Kitchen, 404 So.2d 203, 205 (Fla. 2d DCA 1981) ("[I]t is only when ‘new matter’ is sought to be asserted to avoid the affirmative defense that a reply is required. Co......
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U.S. Bank Nat'l Ass'n v. Wilson, Case No. 5D17-2130
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Civil litigation
...confesses the plaintiff’s claim and avers legal reasons why the plaintiff’s claim, even if true, should be denied. [ Kitchen v. Kitchen , 404 So. 2d 203, 204-05 (Fla. 2d DCA 1981) (defining defenses).] Affirmative defenses must be pleaded or they are waived. The following affirmative defens......
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...Fam. L. R. P. 12.100).] A reply that merely denies a defense is not required as each defense is deemed denied. [ Kitchen v. Kitchen , 404 So. 2d 203, 205 (Fla. 2d DCA 1981).] §11:56 Notice for Trial Notice the case for trial once the pleadings have closed (after each party has answered the ......