Moore Meats, Inc. v. Strawn In and For Seminole County, 45511
| Citation | 313 So.2d 660 |
| Decision Date | 19 February 1975 |
| Docket Number | No. 45511,45511 |
| Parties | MOORE MEATS, INC., a Florida Corporation, et al., Petitioners, v. David U. STRAWN, Circult Court Judge of the 18th Judicial Circuit IN AND FOR SEMINOLE COUNTY, Florida, Respondent. |
| Court | United States State Supreme Court of Florida |
Verne L. Freeland, Miami, for petitioners.
Howard A. Speigel, of Sigman, Speigel, Flower & Strober, Orlando, for respondent.
We here undertake to resolve in certiorari a procedural issue which we are urged to settle as a matter of present uncertainty and confusion to the practicing bar as to whether a plaintiff is required by Rule 1.100(a) FRCP to file a reply to an affirmative defense. The able trial judge found that the rule does not require a reply merely to deny allegations of the affirmative defense or to show that the pleader lacks knowledge of the truth or falsity of those allegations and accordingly denied the defendant's motion for judgment on the pleadings based on the plaintiff's failure to file a denial in those circumstances. The Fourth District Court of Appeal apparently agreed by denying mandamus without opinion at 293 So.2d 408 (1974).
The record proper before us reflected apparent conflict with our prior decision in Gulf Life Ins. Co. v. Ferguson, 59 So.2d 371 (Fla.1952), wherein this Court reversed the trial court which had held that it was not essential that a reply be filed to the affirmative defense of fraud which was therein asserted. We accordingly issued the writ. 1
That is not all that Gulf Life involved, however. It is distinguished from the present cause and the distinction serves to point up the answer to the question posed with respect to whether and when a reply to an affirmative defense is required. In Gulf Life the eminent late Justice Terrell in treating the predecessor rule then applicable, namely, Common Law Rule 9(d) and (e), 1950, stated, consistent with the ruling before us for review, that 'the clear requirement' of the rule 'is that when affirmative defenses are raised they are deemed as denied if an affirmative defense (thereto) is not offered' (by way of a reply). $The difference in Gulf Life was that plaintiff had filed no reply to the defendant's affirmative defense of fraud and then tried to assert at trial by way of 'avoidance' evidence showing waiver and estoppel which were among the affirmative defenses actually named in C.L.R. 9(d) as required to be set forth in a responsive pleading and plaintiff had not done so; therefore, such proofs were held not allowable. Under such different facts the result was not inconsistent with our holding below; thus the contended conflict is dissipated.
Under former rule C.L.R. 9(d) and present CPR 1.100(a), 'new matter' under affirmative defenses of a plaintiff to defenses affirmatively asserted by a defendant must be set forth in a reply pleading since it is an express 'avoidance'. This is necessary in order to lay a predicate for such proofs so that the parties may prepare accordingly. Where the pleader wishes simply to treat an affirmative defense as denied, and no new matter of affirmative defense is to be asserted thereto, then the affirmative defense is deemed denied, and a reply of simple denial would be surplusage.
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 which Justice Terrell asserted in Gulf Life and which the trial judge here found, namely, that there is an automatic denial unless there is some new defense or defensive matter to be asserted by way of reply. Mr. Trawick in an enlightening article 'To Reply or Not To Reply?' published in the December 1973 Florida Bar Journal pointed out:
'The question of a mandatory reply was extensively debated in the Civil Rules Subcommittee and the Florida Court Rules Committee of The Florida Bar. A recommendation that a reply be required when the plaintiff sought to raise defense to an affirmative defense in the answer was made by The Florida Bar to the Supreme Court and the present R.Civ.P. 1.100(a) was adopted by the court effective January 1, 1973. Perhaps no single rule change in the past ten years has caused so much confusion.
'The confusion is unjustified. The rule is crystal clear. It says:
"If an answer or third party answer contains an affirmative defense and the opposing party seeks to avoid it, he shall file a reply...
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American Annuity v. Guaranty Reassurance, No. C-1-95-454.
...while an affirmative defense defeats the plaintiffs cause of action by a denial or confession and avoidance."); Moore Meats, Inc. v. Strawn, 313 So.2d 660, 662 (Fla.1975) ("All affirmative defenses are pleas by way of confession and avoidance. They admit the allegations of the plea to which......
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Burton v. Linotype Co.
...failed of its essential purpose was an avoidance which Burton and MLG waived by failing to plead in a reply. See Moore Meats, Inc. v. Strawn, 313 So.2d 660 (Fla.1975); Gulf Life Ins. Co. v. Ferguson, 59 So.2d 371 (Fla.1952); North Am. Philips Corp., Inc. v. Boles, 405 So.2d 202 (Fla. 4th DC......
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Pike v. National Fidelity Life Ins. Co., 78-2157
...was initially required as a matter of proper pleading. See Ins. Co. of State of Pennsylvania v. Christian, supra; cf. Moore Meats Inc. v. Strawn, 313 So.2d 660 (Fla.1975); Maszewski v. Piskadlo, 318 So.2d 226 (Fla. 2d DCA 1975) (dissenting opinion). Even if it were, however, the evidence wh......
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Maszewski v. Piskadlo, 73--1018
...phrased rule in question, Rule 1.110(e), which requires a reply only in the case of 'avoidance' never came into play. Moore Meats, Inc. v. Strawn, Fla., 1975, 313 So.2d 660, see Trawick, To Reply or Not to Reply, Fla.Bar Journal 702 1 We footnote here the distinction between Establishing co......