HCBA Lawyer Magazine Vol. 29, No. 2 | Page 20
Lessons on PLeaDing, Waiver, anD TriaL by ConsenT from The seConD DCa
Appellate Practice Section
Chairs: Tom Seider – Brannock & Humphries and Joe Eagleton – Brannock & Humphries
The Derouin
opinion is a useful
tool for trial and
appellate lawyers
T
he Second District
Court of Appeal
recently decided
Derouin v. Universal
American Mortgage Co., 2018 WL
3999415 (Fla. 2d DCA Aug. 22,
2018) 1 , in which it examined a
number of general procedural
issues that practitioners at all levels
will likely encounter. The following
is a brief summary of some of the
lessons contained in the opinion.
Lesson 1: Because a party’s
right to sue is measured by the
facts as they existed at the time
of suit, a complaint filed before
a necessary element or event has
occurred cannot be resuscitated
by post-suit activities.
In 1929, the Florida Supreme
Court held that “the right of a
plaintiff to recover must be
measured by the facts as they exist
when the suit was instituted.” 2 The
principle, while never overruled,
has not oft been repeated by
Florida state courts. The Second
DCA reaffirmed the principle in
Derouin. It held that a post-suit offer
to mediate could not satisfy a pre-
suit condition to offer a face-to-face
meeting incorporated into the
contract at issue. 3
Lesson 2: When the law is
unsettled as to whether a
particular defense should be
raised as a “specific denial” or
an “affirmative defense,” the
safest play is to plead it as both.
18
alike to keep in
their respective
tool bags.
© Can Stock Photo / zimmytws
In Derouin, the plaintiff ’s
complaint alleged that it had
satisfied all conditions precedent.
As the Second DCA noted, the case
law was somewhat unsettled as to
whether the defendants’ answer
needed to “specifically deny” that
allegation or to raise it as an
affirmative defense. 4 The Second
DCA held “we need not weigh in
on the conflict,” because the
defendants raised it both ways in
their answer. 5 Thus the defendants
satisfied their pleading burden.
Lesson 3: A plaintiff must file
a new reply in response to an
amended answer containing
affirmative defenses, else any
avoidance is waived.
In the trial court, the defendants
obtained leave of court and filed
an amended answer with a new
affirmative defense (noncompliance
with conditions precedent). 6
The plaintiff did not file a new
reply in response to the amended
answer. 7 Yet the trial court
ultimately ruled in favor of the
plaintiff based on an avoidance
of the affirmative defense. 8
The Second DCA reversed:
“Because Universal failed to
address the waiver issue by reply
to an affirmative defense, the trial
court could not award Universal
relief on such a basis.” 9
Lesson 4: A specific denial
shifts the burden of proof to
the plaintiff.
The Second DCA held that
the defendants’ specific denial
shifted the burden of proof back
to the plaintiff bank to prove it
satisfied conditions precedent
to foreclosure. 10 The plaintiff,
however, failed to present sufficient
evidence to prove it complied
with a particular pre-suit meeting
requirement incorporated into the
contract at issue (somewhat unique
to foreclosure cases but potentially
analogous to other areas of law,
e.g., insurance coverage litigation). 11
The Second DCA held the plaintiff
to its burden in this case, reversing
for entry of an order of involuntary
dismissal. 12
Lesson 5: “Trial by consent” is
not automatic in the absence of
a contemporaneous objection.
On appeal, the plaintiff argued
that its unpleaded avoidance was
tried by consent when it presented
evidence relevant to that avoidance
without contemporaneous objection. 13
The Second DCA rejected this
theory, holding that failing to object
to introduction of evidence that is
also related to a pleaded issue is not
implicit consent to try an unpleaded
Continued on page 19
NOV - DEC 2018
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HCBA LAWYER