When Is a Defense Waived?

By: Joseph M. Herbert, Esq.

It can often be a a challenge for parties to ensure they have protected their rights to bring claims and defenses in civil actions.  For a refresher on Florida Law on the subject, we turn to the issue of waiver and liberality in amending pleadings. 

It is well-settled law in this state that, “affirmative defenses must be pleaded either in the answer or as separate affirmative defenses and, if not pleaded, the issue is deemed waived.” Paul Gottlieb & Co. v. Alps S. Corp., 985 So. 2d 1, 5 (Fla. 2d DCA 2007)(emphasis added), citing Fla. R. Civ. P. 1.140(h)(1).2.  Further, as observed in Dunn v. Campbell by the 2nd District (quoting the Supreme Court of Florida’s exposition on amendments to pleadings):

 . . . such amendments are not allowable if they ‘would change the issue, or introduce new issues, or materially vary the grounds of relief . . .,’ Griffin v. Societe Annonyme la Floridienne J. Buttgenbach & Co., 53 Fla. 801, 44 So. 342, 351.

 In Griffin v. Societe Anonyme la Floridienne J. Buttgenbach & Co., supra, it was said that if the issues were changed or new ones introduced or the grounds of relief materially varied, the matter could not be introduced in an amendment. We referred to that part of this opinion in McCullough v. McCullough, 156 Fla. 321, 23 So.2d 139, 140, and further quoted from the opinion: ‘We have discovered no case which authorizes such an amendment inconsistent with the allegations of the original bill.’

Dunn v. Campbell, 166 So. 2d at 218 (emphasis added), see also, Int'l Patrol & Detective Agency v. Aetna Cas. & Sur. Co., 396 So. 2d 774, 776 (Fla. 1st DCA 1981) quoting, Warfield v. Drawdy, 41 So. 2d 877, 879 (Fla. 1949).

As is also well-settled, the general rule regarding amendments to pleadings is one of liberality and that such motions should generally be granted “unless it clearly appears that allowing the amendment would prejudice the opposing party; the privilege to amend has been abused; or amendment would be futile.” Craig v. East Pasco Medical Center, 650 So. 2d 179, 180 (Fla. 2d DCA 1995), quoting Bill Williams Air Cond. & Heating, Inc. v. Haymarket Coop. Bank, 592 So. 2d 302, 305 (Fla. 3d DCA 1991).

However, this is a general rule and yields to specific exceptions under the law; to wit—“the liberality to be indulged gradually diminishes as the trial progresses.” Dunn v. Campbell, 166 So. 2d 217, 218 (Fla. 2d DCA 1964), quoting Warfield v. Drawdy, 41 So. 2d 877, 878 (Fla. 1949). Further, “[u]nder Rule 1.190, a test of prejudice to the defendant is the primary consideration in determining whether a motion for leave to amend should be granted or denied.” Lasar Mfg. Co. v. Bachanov, 436 So. 2d 236,238 (Fla. 3d DCA 1983)(emphasis added).   As such, the liberality—the ease with which motions for leave to amend pleadings are granted—wanes as the case progresses and scrutiny must therefore increase as to the three stated conditions which can prevent amendments.

The case of United States v. State provides an excellent survey of several cases where parties waited too long to raise the issue of amending to include new claims or defenses. 179 So. 2d 890, 893 (Fla. 3d DCA 1965). In that case, the movant sought to amend its pleadings after more than two years. In deciding that it was “bound by the language of the Supreme Court of Florida as expressed by Justice Thomas in Warfield v. Drawdy, Fla.1949, 41 So.2d 877,” the court discussed other cases where amendments were properly denied years after the pleadings were filed. 179 So. 2d at 893.  The Court’s examination addressed two specific cases:

In the case of Stiegele v. J. M. Moore Import-Export Co., 2 Cir., 1963, 312 F.2d 588, it was held that the court below did not abuse its discretion in denying defendants' motion for leave to amend their answer to assert new defense and to make a counterclaim, where the motion was made more than two years after the answer was filed and at a very late stage in the proceedings, and where the defendants gave an inadequate explanation for their delay in proffering the new matter.

In Eisenmann v. Gould-National Batteries, Inc., E.D.Pa.1958, 169 F. Supp. 862, it was held that the trial court properly denied a motion to amend pleadings made over two years after a responsive pleading was served and subsequent to the filing of a motion for summary judgment, where the plaintiffs had ample opportunity to timely present their claims; the proposed amendment contained no facts unknown to plaintiffs at the time they filed their complaint, and nothing new had been brought out in discovery proceedings.

179 So. 2d 890 (emphasis added).

Thus, a party seeking a late amendment to a pleading must provide adequate explanation for the delay in proffering the changes and must not have known of the facts forming the basis of the new assertions (such as in instances where discovery yielded defenses unknown to the party at the time of filing, thereby defeating waiver). Id.

A very similar holding appeared in the case of Mrmich v. Switzer, in which it was stated:

The motion was made at the outset of the trial below after the action had been pending for nearly five years; no valid excuse was offered below for waiting this long period before deciding to ‘spring’ this defense on the day of trial. Because the plaintiff would have been greatly prejudiced by this surprise defense, the trial court was well within its discretion in denying the motion to amend.

553 So. 2d 1308, 1309 (Fla. 3d DCA 1989), citing Brown v. Montgomery Ward & Co., 252 So.2d 817 (Fla. 1972) (other citations omitted)(emphasis added).

In practical application, courts are very reluctant to refuse a party the chance to add claims or defenses except where the party’s refusal to take any reasonable action to protect its rights carries on for such a period of time that the court’s hand is forced (and sometimes not even in those cases).   However, the proper practice point is one of caution—it is far better for the practitioner to bring the claims or defenses when they are apparent and to do so in a reasonably timely manner so as not to waste the court (not to mention the parties’) time and resources.

If you have questions on the administration of your case and potential claims and defenses in any dispute you might be facing, contact our litigation attorneys today.