ROBERT RENO, M.D., APPELLANT,
v.
ADVENTIST HEALTH SYSTEMS/SUNBELT, INC., AND EAST PASCO MEDICAL CENTER, INC., APPELLEES

Fla. 2d DCA | 1987-12-02
No. 87-318
SCHEB, A.C.J., and FRANK, J., concur.
516 So. 2d 63 Florida District Court of Appeal, Second District (1987) Positive Treatment
Cited by 8 cases

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Synopsis

A physician sued a hospital for denying him access to radiology facilities based on an exclusive contract. The trial court granted the hospital's motion for judgment on the pleadings, treating the plaintiff's failure to reply to an affirmative defense as an admission of its allegations. The appellate court reversed, holding that a failure to reply to an affirmative defense does not constitute an admission and that a reply is required only when the plaintiff seeks to assert new matter in avoidance of the defense.


Holding

A plaintiff's failure to reply to an affirmative defense does not constitute an admission of its allegations. A reply to an affirmative defense is required only when the plaintiff seeks to assert new matter in avoidance of the defense. The failure to reply has the effect of denying the allegations of the defense.


Headnotes

[1] A reply to an affirmative defense is required only when the plaintiff seeks to assert new matter to avoid the defense.

[2] Failure to file a reply to an affirmative defense does not constitute an admission of the allegations in the defense.

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Key Quotes

“Under the holding in Moore [Moore Meats, Inc. v. Strawn, 313 So.2d 660 (Fla.1975)], it is only when 'new matter' is sought to be asserted to avoid the affirmative defense that a reply is required.”

Establishes the legal standard for when a reply to an affirmative defense is required under Florida law.

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Facts & Procedural History

Robert Reno, a radiologist, sued East Pasco Medical Center and its corporate parent Adventist Health Systems for denying him access to the hospital's …

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Opinion of the Court
LEHAN, Judge.

LEHAN, Judge.

Plaintiff appeals from a final judgment which resulted from the granting of defendants’ motion for judgment on the pleadings. It appears that the motion was granted and the judgment was entered on the basis of plaintiff having admitted an affirmative defense of defendants. The admission apparently was found to have occurred through the application of rule 1.110(e), Florida Rule of Civil Procedure, to plaintiff's failure to reply to the affirmative defense. We reverse because we conclude that that application of the rule was erroneous.

Plaintiff, a physician specializing in radiology, sued East Pasco Medical Center, Inc., hereinafter called the hospital, for an injunction and damages by reason of the hospital’s alleged failure to permit plaintiff to use the hospital’s radiology facilities. Causes of action under the various counts in the complaint were asserted to be grounded upon breach of an alleged contract, promissory estoppel, and a violation of section 395.0115, Florida Statutes (1985). In addition, plaintiff sued the corporate parent of the hospital corporation, alleging interference with an advantageous business relationship. Both defendants filed an answer containing an affirmative defense that “Defendant, EAST PASCO MEDICAL CENTER, INC., has in effect an exclusive contract for the provision of radiological services at the East Pasco Medical facility. Said exclusive contract is in full force and effect under the rationale of Blank v. Palo Alto-Stanford Hospital Center, 234 Cal. App.2d 377, 44 Cal.Rptr. 572 (1965), and Smith v. Northern Michigan Hospitals, Inc., 703 F. 2d 942 (6th Cir.1983). Plaintiff ... is not a party to the exclusive contract, and therefore is barred by said contract from use of the facilities located at East Pasco Medical Center, Inc.”

We need not address the legal sufficiency of that affirmative defense. Its allegations could not be taken as true for the purpose of ruling upon the motion for judgment on the pleadings because the lack of a reply to the defense did not constitute an admission of its allegations. As this court said in Kitchen v. Kitchen, 404 So. 2d 203, 205 (Fla. 2d DCA 1981), “Under the holding in Moore [Moore Meats, Inc. v. Strawn, 313 So. 2d 660 (Fla.1975)], it is only when ‘new matter’ is sought to be asserted to avoid the affirmative defense that a reply is required.” Quoting from Trawick’s Florida Practice & Procedure, as quoted in Moore, Kitchen pointed out that “[t]he rule specifically does not require a reply merely to deny the allegations of the defense or to show that the pleader lacks knowledge of the truth of those allegations.” 404 So. 2d at 205. The reason for a reply to an affirmative defense is noted in Moore where the Florida Supreme Court said, “This [a reply] is necessary in order to lay a predicate for ... proofs [of an avoidance of an affirmative defense] so that the parties may prepare accordingly.” 313 So. 2d at 661. That is, as plaintiff argues, a reply to an affirmative defense is necessary only in order to entitle the plaintiff to, in effect, prove an affirmative defense to an affirmative defense. See also Williams v. Inch, 433 So. 2d 681 (Fla. 5th DCA 1983); Trawick, “To Reply Or Not to Reply?,” 47 Fla.B.J. 703 (1973).1

Accordingly, plaintiffs failure to file a reply to the affirmative defense had the effect of denying the allegations of the defense. By having failed to reply to the defense, plaintiff would not be entitled at trial to raise new matters in avoidance thereof. See North American Philips Corp. v. Boles, 405 So. 2d 202 (Fla. 4th DCA 1981).

We do not address the arguments as to whether the various counts of the complaint state causes of action. It does not appear that whether or not the complaint states causes of action was ruled upon by the trial court. We agree with plaintiff that the judgment should not be treated as a summary judgment. The notice of hearing did not fulfill the requirements of Florida Rule of Civil Procedure 1.510(c).

Reversed and remanded for proceedings consistent herewith.

SCHEB, A.C.J., and FRANK, J., concur. . To the extent that language in Tax v. Reiser, 328 So. 2d 517 (Fla. 4th DCA 1976), may be taken to the contrary, we conclude that that ease does not accurately reflect the precepts of Moore which Tax did not cite.


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Cited By

  • Smith v. State, 589 So. 2d 387 (Fla. 1st DCA 1991)
    …June 13,1988, and then determine the actual amount of restitution at a hearing held on October 3, 1990. We disagree. A trial court may properly determine the amount of restitution at a hearing subsequent to the sentencing date. Villarreal v. State, 516 So. 2d 63 (Fla. 2d DCA 1987). The 60-day limitation provided by Rule 3.800(b), Florida Rules of Criminal Procedure, for modifying a sentence, does not apply in this case since (1) the court did in fact order restitution at the time of Smith’s sentencing; and…
  • Jaramillo v. Dubow, 588 So. 2d 677 (Fla. 3d DCA 1991)
    …ary judgment rule, Fla. R.Civ.P. 1.510, to submit affidavits and other evidentiary materials in support of, or in opposition to, the motion. See Forbes v. Gimbel, 539 So. 2d 18, 19 (Fla. 1st DCA 1989); Reno v. Adventist Health Systems/Sunbelt, Inc., 516 So. 2d 63, 65 (Fla. 2d DCA 1987); Fla.R.Civ.P. 1.510(c); see also Stone v. Stone, 97 So. 2d 352, 354 (Fla. 3d DCA 1957); cf. Fed.R.Civ.P. 12(c) (procedure under the counterpart federal rule). Clearly, this procedure was not followed in the instant case.1 The…

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