Affirmative Defenses to Breach of Contract Actions in Florida
What Is an Affirmative Defense?
As the name implies, affirmative defenses are defenses that require a party to submit facts that affirmatively show that even if the allegations made in any complaint were true, there is a way for the action to avoid liability. In other words, affirmative defenses attempt to moot the underlying cause of action. For example, in a dispute over unpaid wage, a Florida employer might assert that no wages are due because the employee never performed any work and cannot collect wages for time he never worked. Similarly, in a mechanic’s lien claim, a homeowner might be able to defeat a claim to foreclose on a lien by showing that it had already perfected title to the property sought to be foreclosed, and therefore the lienexting was perfomed legally without the need for the claim made against it.
For a defendant to prevail on its affirmative defense, it is often required that the defendant show that no material issues of fact exist with respect to any factual assertion that would preclude the affirmative defense from applying. In the example above where the Florida employer claims that no wages are due for work not performed , the employer has to show into the plaintiff’s unpaid wage records and prove that no work was performed and no wages are due. Similarly, the homeowner in the above example must show that as of the date of the alleged foreclosure, it has clear title to the property or any material issue of fact might be precluded.
Like other defenses, affirmative defenses can raise questions of fact. A defendant asserting an affirmative defense has the burden of proving the facts necessary to establish the defense. However, a proper affirmative defense should boil down to a single issue and simple facts that relate to that issue. If multiple affirmative defenses are raised they are normally consolidated into a single affirmative defense based on a mixed resolution of law and fact. A well-written affirmative defense should eliminate or limit any potential issues of material fact and be simple enough for the judge to determine the lack of any material facts without the need for a fact-checking trial. In drafting an affirmative defense, pay particular attention to the required elements for the affirmative defense as well as what must be shown to establish the affirmative defense.
Affirmative Defenses that Commonly Occur in Florida
Duress: To be valid, there must have been some wrongful coercion or apprehension of loss so as to induce the contracting party to make a real and voluntary consent. Duress which renders a contract voidable includes actual or threatened: (1) unlawful physical imprisonment or threats of physical injury; (2) criminal prosecution; (3) use of civil process; (4) unlawful detention or taking of property; and (5) economic loss. The legal effect of successful duress is that the injured party has the right to rescind the contract and sue for damages.
Mutual or Unilateral Mistake of Fact: A unilateral mistake arising from a misapprehension of fact, which, if known to the other party to the contract, would affect his decision in agreeing to the contract. The mistake must be of such character that it would establish grounds for relief by rectification in equity.
Fraud: A material misrepresentation of fact made by a party to a contract that is known or believed by that party to be false or that is made without concern as to its truth or falsity and with intent to induce the other party to enter into a contract. There must be an intention to deceive and a reasonable reliance on the misrepresentation.
Excusable Neglect: The defendant may seek to avoid the harsh result of failing to respond by arguing that he or she failed to respond due to excusable neglect. The burden is on the defendant to explain the error.
Establishing Affirmative Defenses at Trial
An affirmative defense is a defense raised in answer to a complaint, which, if proven by the defendant, negates liability even if the allegations of the complaint are true. In Florida, affirmative defenses must be pleaded and substantiated in civil litigation. To plead an affirmative defense, it must state: (1) the precise statement of fact that is not true; (2) information supporting the statement; and (3) authorities supporting the relevancy of the statement. Affirmative defenses to breach of contract claims can find their way into complaints in construction cases and lawsuits concerning general business agreements and even family law documents. Attorneys have a duty to check for these things, and must raise them if they are there.
Generally speaking, proving an affirmative defense requires more than just denying a claim in your affirmative defense. The opportunity to have your affirmative defense heard will be in the context of either a motion for summary judgment or at trial. In any event, the standard of proof is the same, and that standard is based on the preponderance of evidence. This means that the evidence must show that the facts are more likely than not to be true. The type of evidence needed depends on the name and nature of your affirmative defense. Examples of affirmative defenses to a breach of contract claim include a prior agreement between the parties, a lack of consideration for the contract, fraud, incapacity, unconscionability, and others.
You need to prove the facts in the affirmative defense merely by a preponderance of the evidence. Sworn proof is not required. Testimony of witnesses can be presented to the judge. Statements in documents can be presented, including depositions. Cross examination may reveal facts which negate the allegations of the complaint.
Affirmative Defense Examples
While the above-mentioned affirmative defenses constitute perhaps some of the most commonly used defenses to Florida breach of contract lawsuits, they are certainly not the only available defenses. For example, in the case of Environmental Waste Services v. Mata, 158 So. 3d 502 (Fla. 1st DCA 2014), the Court held that dismissal of a breach of contract claim was proper where it was based on a "mistake" because the parties mistakenly believed an applicable law did not apply to their transaction when, in fact, it did apply. In this case, the Defendant entered into a contract with the plaintiff to dispose of hazardous waste. However, unbeknownst to the Plaintiff, the Defendant left out certain waste from their previous contract with the Plaintiff because the Defendant thought the waste did not fall under the scope of hazardous materials covered by their contract. Rather than sue the Defendant under their original contract, the Plaintiff entered into a new contract with the Defendant. Eventually, this second contract was deemed void-ab-initio (meaning that it could never come into existence) due to the Defendant’s mistake concerning applicable law. As such, the breach of contract claim against the Defendant had to be dismissed as a matter of law . Another frequently used affirmative defense is the "voluntary payment" defense (also referred to as a "waiver" or "accord and satisfaction" defense). This defense, as explained in the case of Pink v. Busch Entertainment Corp., 676 So. 2d 905 (Fla. 5th DCA 1996), may work to defeat a breach of contract claim where the Plaintiff has made a voluntary payment, knowingly accepting possible counter-claims against the Defendant (ex. waiver) and/or settling any claims the Plaintiff may have against the Defendant (ex. accord and satisfaction). The rationale behind this affirmative defense is that the Plaintiff cannot expect to receive a double-recovery for the same claim. A third, less frequently used, affirmative defense is the "non-conforming tender" defense, which essentially provides that when a party delivers something that does not conform to the terms of the contract, they are not entitled to be paid under that contract for the item (whether it be labor, materials or something else) unless the person to whom the item is delivered has accepted it. See Maple Leaf Bakery v. Sunset Corn, 981 So. 2d 532 (Fla. 4th DCA 2008). Thus, if a party is making a claim where they have not been paid for work that has not been accepted, they may be barred from recovery under this affirmative defense.
Legal Support and Representation
In any potential contract dispute, a party’s most valuable asset is the advice of an experienced attorney. An attorney familiar with Florida contract law and the most common affirmative defenses to breach of contract claims can help a potential defendant understand the possibility of an affirmative defense and can advise the defendant not just of its potential for success in proving an affirmative defense, but also the effort required to prove such a defense. This step alone can save a potential defendant both time and money. Additionally, representation by an attorney allows a party to have the expertise necessary to litigate or negotiate a resolution to a potential affirmative defense.
The importance of consulting an attorney in regard to a potential affirmative defense is also critical if the need arises to pursue indemnification from or contribution against a third party. An attorney can help analyze the potential causes of action against other parties and, if necessary, initiate litigation against those third parties.
Further, an experienced attorney can help a party navigate the complex procedural and jurisdictional issues that arise during litigation. Experienced attorneys may also have other resources available, such as forensic accountants, expert witnesses, and discovery specialists that can come in handy should litigation be necessary. These resources cannot only be useful in the presentation of evidence, but also in the evaluation of evidence to determine the likelihood of success in pursuing an affirmative defense.
Ultimately, choosing to involve an experienced attorney early in the litigation process can help a party shorten litigation through the ability to identify a successful affirmative defense and engage in strategic litigation or negotiation.
Takeaways and Next Steps
As mentioned above, affirmative defenses to breach of contract in Florida can provide a defendant with a compelling strategy for avoiding liability for an alleged breach. While there are many different affirmative defenses available, the ultimate strategy for any given case depends on the facts and circumstances involved. As a Florida resident, or as someone who conducts business in Florida, it is important to be aware of affirmative defenses that may apply if you are accused of breaching a contract in the state. If you are facing a breach of contract allegation in Florida, the first step you should take is to seek experienced legal representation. Not all defenses are created equal , and legal representation can help you build the most effective defense strategy for your case. Additionally, a breach of contract claim can trigger issues related to damages and remedies that you may also want legal input on. Our Florida commercial litigation attorneys can meet with you in person or by phone or video chat to discuss your situation and help you determine the best course of action. We are proud to offer free and confidential consultations to clients in Florida, Georgia and throughout the U.S. To learn more about your legal options, contact Lewis Brisbois Bisgaard & Smith LLP. Our firm serves clients from offices across our state, including Jacksonville and Orlando.