HERTZ COMMERCIAL LEASING CORPORATION, A DELAWARE CORPORATION, APPELLANT,
v.
RUDOLPH WINFIELD SEEBECK, D/B/A WHITEY SEEBECK STANDARD SERVICE, APPELLEE
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The trial court erred in granting a judgment on the pleadings for the defendant based on the plaintiff's failure to reply to affirmative defenses.
[1] A reply to an affirmative defense is not required when the defense merely denies the allegations of the complaint.
[2] Florida Rule of Civil Procedure 1.110(e) provides an automatic denial of every allegation in an affirmative defense.
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Join FLexlaw to unlock all legal intelligenceAppellant sued appellee for breach of an equipment lease. Appellee admitted the lease but denied breach and raised several affirmative defenses. Appel…
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ORFINGER, Judge.
Appellant filed an action against appellee claiming damages by virtue of the breach of an equipment lease. Appellee’s answer admitted the execution of the lease, but denied the breach. Appellee also affirmatively pleaded (a) termination by mutual consent; (b) release; (c) waiver; and (d) laches. Appellant filed no reply to the affirmative defenses, and noticed the case for trial.
On the day set for trial, appellee moved ore tenus for a judgment on the pleadings and the subsequent orders entered by the court granting the motion make it appear that the motion was granted because of the failure of appellant to reply to the affirmative defenses. We have not been favored by a brief of appellee, so we have nothing to dispel this very plausible interpretation of the court’s order. It was error for the trial court to grant a judgment on the pleadings for the defendant because plaintiff had not replied to the affirmative defenses. A reply is not required to merely deny an affirmative defense. An automatic denial of every allegation of an affirmative defense is provided by Florida Rule of Civil Procedure 1.110(e). Moore Meats, Inc. v. Strawn, 313 So. 2d 660 (Fla.1975); Equibank, N.A. v. Penland, 344 So. 2d 629 (Fla.1st DCA 1977); Miller v. Smith, 341 So. 2d 1021 (Fla. 4th DCA 1977). Under Rule 1.100(a) a reply is required only if the pleader wishes to avoid the affirmative defense.
A reply is activated only by an affirmative defense that can be avoided. Stated differently, a reply pleads an affirmative defense to an affirmative defense.
Trawick, Florida Practice and Procedure, section 11-6 (1979).
Having determined that the entry of a judgment on the pleadings was erroneous, we find it unnecessary to discuss appellant’s other point on appeal. The final judgment for defendant is reversed and the cause is remanded to the trial court for further proceedings consistent herewith.
REVERSED and REMANDED.
DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.
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Roman v. Bogle, 113 So. 3d 1011 (Fla. 5th DCA 2013)…o reply to an affirmative defense, it is deemed to be denied and therefore false.”); Ferris v. Ferris, 660 So. 2d 418, 418 (Fla. 4th DCA 1995); Jaramillo v. Dubow, 588 So. 2d 677, 677-78 (Fla. 3d DCA 1991); Hertz Commercial Leasing Corp. v. Seebeck, 399 So. 2d 1110, 1111 (Fla. 5th DCA 1981); Fla. R. Civ. P. 1.110(e) (“Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.”). We agree with Roman that a reply to the affirmative defenses was not nece…
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In re The Est. OF Isaiah H. Grant v. Jehu A. Irick, 433 So. 2d 681 (Fla. 5th DCA 1983)…lly sufficient to avoid the legal effect of the facts contained in the affirmative defense. See Moore Meats, Inc. v. Strawn, 313 So. 2d 660 (Fla.1975); Kitchen v. Kitchen, 404 So. 2d 203 (Fla. 2d DCA 1981); Hertz Commercial Leasing Corp. v. Seebeck, 399 So. 2d 1110 (Fla. 5th DCA 1981). See also Florida Rule of Civil Procedure 1.100(a) and H. Trawick, Florida Practice and Procedure § 11-6 (1982). REVERSED AND REMANDED. ORFINGER, C.J., and COBB, J., concur.…
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U.S. Bank Nat'l Ass'n v. Vivien F. Wilson and Marc J. Wilson, 252 So. 3d 306 (Fla. 5th DCA 2018)…voided"); Genuinely Loving Childcare, LLC v. Bre Mariner Conway Crossings, LLC , 209 So. 3d 622, 625 (Fla. 5th DCA 2017) ; Frisbie v. Carolina Cas. Ins. Co. , 162 So. 3d 1079, 1080-81 (Fla. 5th DCA 2015) ; Hertz Commercial Leasing Corp. v. Seebeck , 399 So. 2d 1110, 1111 (Fla. 5th DCA 1981). Here, the complaint sufficiently alleged a continuous state of default. The Bank was not required to file a reply because no additional facts were necessary to address the statute of limitation defense, and the defense wa…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Moore Meats, Inc. v. Strawn, 313 So. 2d 660 (Fla. 1975)
- Equibank, N.A. v. S. Perry Penland et ux., 344 So. 2d 629 (Fla. 1st DCA 1977)
- Lingo v. State, 344 So. 2d 629 (Fla. 2d DCA 1977)
- Miller v. Smith, 341 So. 2d 1021 (Fla. 4th DCA 1977)