Correctly Applying Failure of Conditions Precedent as an Affirmative Defense

Failure of Conditions Precedent as an Affirmative Defense

The affirmative defense of “Lack of conditions precedent” is sometimes referred to as “failure of conditions precedent”.  A condition precedent is defined as a condition or an event that must occur before a right, claim, duty, or interests arises (https://www.law.cornell.edu/wex/condition_precedent). 

Lack of Conditions Must be Pled with Particularity or its Waived

What litigants should know is that Florida Rule of Civil Procedure 1.120(c) imposes a heightened pleading requirement upon a litigant who wishes to challenge the fulfillment of a condition precedent; under the rule, “[a] denial of performance or occurrence shall be made specifically and with particularity.”

Generally, (“[A] denial [of a condition precedent’s occurrence] under [Fla. R. Civ. P.] 1.120(c) requires more than mere notice of a potential condition precedent. Rather, to construct a proper denial under the rule, a defendant must, at a minimum, identify both the nature of the condition precedent and the nature of the alleged noncompliance. Deutsche Bank National Trust Co. v. Quinion, 198 So. 3d 701, 703-704 (Fla. 2d DCA 2016) or nonoccurrence.”).

The Failure to Correctly Plead lack of conditions precedent can have consequences 

The failure to correctly plead lack of conditions precedent in an answer can have consequences on appeal because the appellate court will not consider a defense unless it has been presented to the trial court and unless the error is fundamental or jurisdictional. Johnston v. Hudlett, 32 So. 3d 700 (Fla. 4th DCA 2010). See Harris v. U.S. Bank National Ass’n, 223 So. 3d 1030, 1033 (Fla. 1st DCA 2017), quoting Custer Medical Center v. United Automobile Insurance Co., 62 So. 3d 1086, 1096 (Fla. 2010).  Thus, if the defense is raised only generally it will be treated by the appellate court as not having been raised at all.

Call a South Florida Civil Litigation Lawyer

There is no substitute for experienced counsel.  Contact South Florida civil litigation lawyer Andrew J. Pascale, at 877-667-1211 today.  This blog does not constitute legal advice and is for illustrative purposes only.