BUSS ALUMINUM PRODUCTS, INC., APPELLANT,
v.
CROWN WINDOW COMPANY, A FLORIDA PROGRESS COMPANY, INC., APPELLEE

Fla. 2d DCA | 1995-01-06
No. 94-00925
RYDER, A.C.J., and QUINCE, J., concur.
651 So. 2d 694 Florida District Court of Appeal, Second District (1995) Negative Treatment
Cited by 11 cases

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Synopsis

Buss Aluminum Products appealed the trial court's dismissal of its breach of contract action against Crown Window Company for failure to prosecute. The court affirmed, holding that an untimely and unauthorized reply that merely denied affirmative defenses without alleging additional facts did not constitute sufficient record activity to prevent dismissal.


Holding

The court held that the reply did not constitute sufficient record activity. A valid reply must contain factual allegations of avoidance intended to overcome an affirmative defense, not merely deny it. An untimely reply filed without leave of court that contains only denials is not a proper pleading and does nothing to hasten the suit to judgment.


Headnotes

[1] An untimely and unauthorized reply to an affirmative defense does not constitute record activity sufficient to prevent dismissal for failure to prosecute.

[2] A reply to an affirmative defense must contain allegations of additional facts intended to overcome the defense, not merely deny the allegations.

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Key Quotes

“There is no question that a timely authorized reply to an affirmative defense is a pleading that constitutes record activity. In this ease, however, the reply was filed approximately ten months late without leave of court.”

Establishes the distinction between valid and invalid replies and the significance of timeliness and authorization.

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Facts & Procedural History

Buss Aluminum filed a complaint for breach of contract in January 1991 alleging defective windows. After multiple amendments, the third amended compla…

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Opinion of the Court
ALTENBERND, Judge.

ALTENBERND, Judge.

The plaintiff, Buss Aluminum Products, Inc., appeals an order dismissing its lawsuit for failure to prosecute. We affirm. The trial court correctly determined that an untimely and unauthorized reply did not constitute record activity.

Buss Aluminum filed a complaint for breach of contract against Crown Window Company in January 1991, alleging that it had received defective windows from Crown Window. After several dismissals with leave to amend, Buss Aluminum filed its third amended complaint on December 10, 1991. After the denial of another motion to dismiss, Crown Window filed its answer and affirmative defenses on October 31, 1992.

During the next year, Buss Aluminum filed a notice of additional attorney in May, and a “reply” to Crown Window’s answer and affirmative defenses on September 17, 1993. On November 1,1993, Crown Window moved to dismiss for failure to prosecute. The trial court granted this motion. Buss Aluminum does not argue that the notice of additional attorney constitutes record activity. Gulf Appliance Distribs. v. Long, 53 So. 2d 706 (Fla.1951). Thus, the critical question is whether the “reply” is sufficient record activity to prevent the dismissal under Florida Rule of Civil Procedure 1.420(e).

There is no question that a timely authorized reply to an affirmative defense is a pleading that constitutes record activity. In this ease, however, the reply was filed approximately ten months late without leave of court. Moreover, the reply states only that the plaintiff “denies and avoids each and every allegation contained in Defendant’s ... affirmative defenses and demands strict proof thereof.” It contains no additional factual allegations.

Florida Rule of Civil Procedure 1.100(a) states that “[i]f an answer ... contains an affirmative defense and the opposing party seeks to avoid it, the opposing party shall file a reply containing the avoidance. No other pleadings shall be allowed.” (Emphasis supplied.) Rule 1.140(a)(1) provides twenty days to serve a reply “[i]f a reply is required.” An avoidance is an allegation of additional facts intended to overcome an affirmative defense. Kitchen v. Kitchen, 404 So. 2d 203 (Fla. 2d DCA 1981). For example, a plaintiff may allege facts establishing waiver or estoppel to overcome a statute of limitations defense. Tuggle v. Maddox, 60 So. 2d 158 (Fla.1952).

It is well established that a reply should never be used to simply deny an affirmative defense. Moore Meats, Inc. v. Stratum, 313 So. 2d 660 (Fla.1975); Henry P. Trawick, Jr., Trawick’s Florida Practice and Procedure § 11-6 (1993).1 For all practical purposes, a document entitled “reply” which does not contain any additional facts in the nature of avoidance is not a pleading. It does nothing to hasten the suit to judgment and is a mere passive effort to keep the suit on the docket. See Eastern Elevator, Inc. v. Page, 263 So. 2d 218 (Fla.1972). Even if the standard in Del Duca v. Anthony, 587 So. 2d 1306 (Fla.1991), which measures the prosecutorial effect of discovery, were applicable to this document, this stray filing would not pass that test.

Buss Aluminum argues that -Crown Window had an obligation to move to strike the untimely, unauthorized reply, and the motion to strike would have reset the clock of prosecution. We disagree. Although an insufficient reply may be challenged by a motion to strike, Fla.R.Civ.P. 1.140(b), a plaintiff cannot avoid a dismissal for failure to prosecute by filing this type of unauthorized document and demanding that the opposing party file a motion to strike.

Affirmed.

RYDER, A.C.J., and QUINCE, J., concur. . We do not read the dicta in Ton-Will Enterprises, Inc. v. T & J Losurdo, Inc., 440 So. 2d 621 (Fla. 2d DCA 1983), to announce a contrary rule.


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Citator

Cited By

  • Nat'l Enters., Inc. v. Foodtech Hialeah, Inc., 777 So. 2d 1191 (Fla. 3d DCA 2001)
    …efeat an otherwise valid motion to dismiss for a lack of prosecution made. Alack v. Gen. Ins. Co., supra. The second district has similarly construed this record activity requirement. In Buss Aluminum Products, Incorporated v. Crown Window Company, 651 So. 2d 694 (Fla. 2d DCA 1995), the court held [*1194] that an untimely filed and legally insufficient reply to affirmative defenses did not constitute record activity for purposes of Rule 1.420(e). As the court recognized, “[i]t does nothing to hasten the suit…
    1 / 2
  • TSE Indus., Inc. v. Larson & Larson, P.A., 987 So. 2d 687 (Fla. 2d DCA 2008)
    …ense, but merely denied that its cause of action was barred by the statute of limitations. Thus, TSE was not required to plead an avoidance to the Larson Defendants’ statute of limitations defense. See Buss Aluminum Prods., Inc. v. Crown Window Co., 651 So. 2d 694, 695 (Fla. 2d DCA 1995); Kitchen v. Kitchen, 404 So. 2d 203, 204 (Fla. 2d DCA 1981). Even if TSE were required to plead an avoidance, the issue was tried by implied consent. See Book v. City of Winter Park, 718 So. 2d 945, 946 (Fla. 5th DCA 1998).…
  • …PER CURIAM. Affirmed. Buss Aluminum Prods., Inc. v. Crown Window Co., 651 So. 2d 694 (Fla. 2d DCA 1995).…

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