Striking affirmative defenses in government litigation.

• Author: Iglesias, Stephen V.
• Position: Florida

In government litigation, affirmative defenses typically allege the government is pre-erupted from taking action, or that it has been involved with, permitted, or encouraged the misconduct at issue. For example, when a mid-level government employee makes representations about an administrative rule promulgated by the agency during an informal phone conversation with a defendant's attorney, can these representations trump administrative regulations? What if the attorney contacts several employees in the same agency and gets different answers to the same question? Suddenly, representations from these informal discussions turn up in formal litigation. Unfortunately for the hapless persons who rely on (or sometimes manipulate) the bureaucracy for answers to complex legal questions, it is unlikely they will get any traction with equitable affirmatives defenses. Asserting legally insufficient affirmative defenses comes at a cost, which at the very least will require you to expend litigation resources at a motion hearing noticed by the government to strike your affirmative defenses under Fla. R. Civ. P. 1.140(f). Some affirmative defenses are inapplicable in government litigation, while others carry heightened pleading requirements. Affirmative defenses, such as estoppel, laches, and waiver, are particularly vulnerable. It is important to note, however, that motions to strike affirmative defenses are disfavored by the courts. (1)

Another common practice is to plead all defenses, whether or not the defenses are affirmative defenses, under a general category called "affirmative defenses." For example, affirmative defenses should be pled separately from Fla. R. Civ. P. 1.140(b) defenses. While this may be a technical point, taking care in pleading provides a pretrial layer of protection to affirmative defenses. Regarding form over substance issues in pleading, the court will likely grant the defendant leave to amend his or her answer to properly plead affirmative defenses.

Background

Affirmative defenses enumerated under Fla. R. Civ. P. 1.110(d) are: accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. An affirmative defense in civil litigation attacks the plaintiff's legal right to bring a claim, as opposed to attacking the truth of a claim. Defenses and objections not stated in compliance with Fla. R. Civ. P 1.140(h) may be waived. The test for validity of an affirmative defense under Florida law is whether the defense admits the cause of action and supporting facts asserted by a preceding pleading, but raises some new matter which defeats the opposing party's otherwise apparently valid claim. (2) Purported affirmative defenses that do not satisfy this test are properly stricken. (3) Affirmative defenses that merely deny the allegations in a pleading and do not raise any new matter to defeat the allegations fail the test for the sufficiency of affirmative defenses. A conclusory statement that the "defendant did not engage in XYZ violation," for example, is a general denial and not a legally sufficient affirmative defense.

Estoppel

To successfully assert the affirmative defense of estoppel against a government agency, a party must establish all elements of estoppel and additionally show "rare and exceptional" circumstances justifying this defense. (4) The court uses terms such as "unbearably egregious, bureaucratic ineptitude and indifference, dishonesty, illegality, fraud, oppression, or misconduct" in describing the type of government conduct that must be established to overcome the "very high bar" in asserting estoppel against the government. Further, the government cannot be estopped through erroneous statements by a government employee. (5) In Sutron v. Lake County Water Authority, 870 So. 2d 930 (Fla. 5th DCA 2004), the executive director of the Lake County Water Authority erroneously represented to Sutron that the company's participation in the bid process as a subconsultant to the engineering firm preparing the general request for bids (RFB) on behalf of the authority would not preclude it from bidding individually on the project. Although Sutron was the lowest bidder, it did not win the project because it was also a sub-consultant on preparing the RFB. Despite the misstatement by the authority employee, the court refused to uphold an estoppel defense. According to the court, the misstatement was not "callous, negligent, or intentional" nor did it cause "potentially severe economic consequences" to Sutron. The authority simply made a mistake and the economic losses were limited to the time Sutron spent on preparing its bid. In addition, the doctrine of equitable estoppel may be more leniently applied in permit and zoning matters.

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