LARRY WYMAN, APPELLANT,
v.
RICHARD ROBBINS, AND ANN ROBBINS, HIS WIFE, APPELLEES
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Wyman, a tree removal operator, was sued by the Robbins for trespass after cutting trees on their property. The trial court granted summary judgment for the Robbins, excluding an affidavit claiming the Robbins had authorized the cutting because Wyman failed to plead this as an affirmative defense and the affidavit contradicted his deposition testimony. The appellate court affirmed, holding that such a claim of authorization constitutes an affirmative defense that must be pleaded.
The court held that a claim that the property owner authorized the cutting constitutes the affirmative defense of license and must be pleaded in the responsive pleading. Because Wyman failed to raise this defense in his answer, he waived it by filing the affidavit after the Robbins moved for summary judgment.
[1] An affirmative defense must be set forth in the responsive pleading.
[2] Failure to raise an affirmative defense prior to a plaintiff's motion for summary judgment constitutes a waiver of that defense.
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Join FLexlaw to unlock all legal intelligence“Affirmative defenses are required to be set forth in the responsive pleading.”
Establishes the fundamental rule that Wyman violated by not pleading authorization as a defense in his answer.
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Join FLexlaw to unlock all legal intelligenceRichard and Ann Robbins sued Larry Wyman for trespass, alleging he cut trees on their property without authorization. Wyman, a tree removal business o…
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MILLS, Judge.
Appellees, Richard and Ann Robbins, sued appellant, Larry Wyman, for trespass. They alleged that Wyman, who operated a tree removal business, cut trees on their property “without knowledge or approval or authorization from the plaintiffs.” In his answer to the complaint, the only affirmative defense Wyman raised was contributory negligence.
The Robbins moved for summary judgment as to liability, at which time Wyman filed an affidavit in opposition executed by Alan Clark, a Wyman employee. In the affidavit, Clark stated that Richard Robbins ordered him to cut the trees.
The trial court found Wyman could not rely on the Clark affidavit to create a genuine issue of material fact because the affidavit (1) was inconsistent with Wyman’s pretrial deposition testimony, and (2) raised an affirmative defense not raised in the pleadings. Thus, without considering any issues raised by the affidavit, the trial court found nc genuine issue of material fact and granted summary judgment as to liability. We affirm.
Initially, we reject Wyman’s argument that the Clark affidavit did not amount to an affirmative defense. Affirmative defenses are required to be set forth in the responsive pleading. Fla.R.Civ.P. 1.110(d). One of the affirmative defenses specifically mentioned in the rule is license. In this regard, Hattaway v. Florida Power & Light Co., 133 So. 2d 101 (Fla. 2d DCA 1961) is instructive. There, the plaintiffs entered into a right-of-way agreement with Florida Power, giving Florida Power an easement on the plaintiffs’ property. A Florida Power employee then cleared not only the right-of-way but also part of the plaintiffs’ adjoining land. The plaintiffs sued for trespass. The defendants answered by admitting they cut trees on adjoining land, but contending they had a right to do so under the right-of-way agreement. The court held this was an affirmative defense. Similarly, the Clark affidavit admits that Wyman or his employees cut trees on the Robbins’ property, but asserts that they were requested or had “license” to do so.
Because the Clark affidavit amounted to an affirmative defense, the trial court correctly applied the rule that failure to raise an affirmative defense prior to a plaintiff’s motion for summary judgment constitutes a waiver of that defense. Game v. First Bank of Marianna, 457 So. 2d 582 (Fla. 1st DCA 1984); Goldberger v. Regency Highland Condominium Association, Inc., 452 So. 2d 583 (Fla. 4th DCA 1984).
Having concluded that any issues raised by the Clark affidavit were properly excluded from the summary judgment determination on affirmative defense grounds, we need not determine whether the other reason given by the trial court for refusing to consider the affidavit was valid. We also find no merit in Wyman’s contention that summary judgment was improper irrespective of the Clark affidavit.
AFFIRMED.
ERVIN and NIMMONS, JJ., concur.
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J.A.B. Enters. & John Brown v. Gibbons, 596 So. 2d 1247 (Fla. 4th DCA 1992)…compensation hearing or failure to receive the compensation order, appellants waived those defenses. Appellants could not resurrect the lack of notice defense by including it in the response to the motion for summary judgment. See Wyman v. Robbins, 513 So. 2d 230, 231 (Fla. 1st DCA 1987) (affirmative defense not raised before motion for summary judgment could not be considered in opposition to the motion). In addition, an appellate court will not consider a waived defense when reviewing a summary judgment. S…
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Kissimmee Util. Auth. v. Better Plastics, Inc., 526 So. 2d 46 (Fla. 1988)…tatute of limitations is an affirmative defense that must be pleaded at trial. Fla.R.Civ.P. 1.110(d). “Failure to raise an affirmative defense prior to a plaintiffs motion for summary judgment constitutes a waiver of that defense.” Wyman v. Robbins, 513 So. 2d 230 (Fla. 1st DCA 1987). The Authority waived the statute of limitations defense by electing not to plead it even though the Authority claims to have been aware the defense was available. The Authority's failure to plead the statute of limitations below…
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Rauch v. AJP Pine Island Warehouses, Inc., 313 So. 3d 625 (Fla. 4th DCA 2021)…0). Thus, “[f]ailure to raise an affirmative defense prior to a plaintiff’s motion for summary judgment constitutes a waiver of that defense.” Kissimmee Util. Auth. v. Better Plastics, Inc., 526 So. 2d 46, 48 (Fla. 1988) (quoting Wyman v. Robbins, 513 So. 2d 230, 231 (Fla. 1st DCA 1987)). In other words, a defendant may not “raise an unpled affirmative defense as a basis for resisting a motion for summary judgment.” Capotosto v. Fifth Third Bank, 230 So. 3d 891, 892 (Fla. 4th DCA 2017). Important in this…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gause v. First Bank OF Marianna, 457 So. 2d 582 (Fla. 1st DCA 1984)
- Hattaway v. Fla. Power & Light Co., 133 So. 2d 101 (Fla. 2d DCA 1961)
- Goldberger v. Regency Highland Condo. Ass'n, Inc., 452 So. 2d 583 (Fla. 4th DCA 1984)