Defense v. Affirmative Defense: Form Over Substance - A review of Russell v. Wells Fargo Bank, N.A.

October 12, 2020

By: Richard Green

On June 22, 2020, the First District Court of Appeal issued its Per Curiam opinion in Russell v. Wells Fargo Bank, N.A., No 1D18-5128.[1]  The Russell case was a foreclosure action brought by Wells Fargo Bank, N.A. (“Wells Fargo”) against Lynda Russell (“Russell”).  The crux of the appeal dealt with an issue of pleading.  Specifically, Wells Fargo had alleged that all conditions precedent to the filing of the foreclosure action had been satisfied, a pleading requirement of Florida Rule of Civil Procedure 1.120(c).  Russell disputed that all conditions precedent had been met in one of her affirmative defenses, but did not deny this allegation in her answer.  As a result of this style in pleading, the trial court determined, which was affirmed by the District Court of Appeals, that Ms. Russell bore the burden of proof to establish that all conditions precedent had not been met, i.e., she had to prove a negative.  She failed in this burden.


Whenever a party bringing a lawsuit has contractual obligations, or statutory obligations, to meet prior to instituting a lawsuit, failure to satisfy those conditions, absent a waiver or estoppel warrants dismissal of the civil complaint.[2]  Accordingly, the issue of conditions precedent, as well as properly alleging that conditions precedent have been satisfied, is significant.  If the matter is disputed by the defendant, then denying the allegation is a matter of fact that must be proven at some stage in the litigation in order for the plaintiff to prevail.  If the plaintiff is unable to establish that conditions precedent have been satisfied, the plaintiff’s case must be dismissed.[3]  Id.

Taking the well-established Florida principle that conditions precedent must be satisfied, it follows that Wells Fargo would bear the burden to prove satisfaction when a dispute was raised by Russell.   However, the court in Russell relieved Wells Fargo from having to prove conditions precedent were satisfied despite the clear dispute raised by Russell.  The only reason the court gave in taking this position is because of how Russell raised the issue.  Instead of denying the specific paragraph in the portion of her Answer, she denied the allegation under a section entitled “Affirmative Defense.”  In the real world, is there a difference?  After all, Wells Fargo was made aware that this issue of conditions precedent was raised, which is the primary purpose of pleading.  “The purpose of pleadings is to make issues.  The purpose of issues is for people to know what they’ve got to meet and get ready to meet it.”[4]

The answer to whether there is a difference in how a matter is raised in a pleading in Florida is a resounding “YES”.  As the Second District Court of Appeal has observed “craftsmanship in pleadings is … an essential part of litigation.”[5]  Giving certain titles to sections of a complaint or an answer does, in fact, matter.  Denying allegations of a complaint is not the same as alleging an affirmative defense.  Stated another way, it is not proper to write an unnecessarily detailed “affirmative defense” which has the sole purpose of denying allegations in the plaintiff’s complaint.  The distinction between the two is significantly important.


An affirmative defense is a defense which accepts the cause of action raised by plaintiff as true, but to avoid liability in whole or in part, raises an excuse, justification, or other basis which negates or limits liability.[6]  The definition alone should provide a sufficient basis to explain why denying an allegation of the complaint is different than raising an affirmative defense to the cause of action or actions as a whole.  To take matters step by step, the first step is the plaintiff bringing a cause of action claiming the plaintiff is entitled to some specified relief.  Next, the defendant does not deny the truth of the cause of action, instead the cause of action is admitted.  At this point, the plaintiff has effectively met their burden to prove the material facts of the cause of action.

However, the defendant then raises its own allegation which the defendant claims absolves them from having to compensate the plaintiff as demanded.  It is illogical to require the defendant to disprove plaintiff’s cause of action in order to prevail in the litigation.  The plaintiff, at least initially, bears the burden to prove its cause of action.  It would be equally illogical to require the plaintiff to disprove the defendant’s assertion in the affirmative defense when the plaintiff was not the party to raise it.  Accordingly, when the defendant raises an affirmative defense, the defendant is essentially assuming the burden to prove the facts supporting the affirmative defense.[7]

For example, take the proverbial car accident case.  Jane Doe is driving through an intersection and is hit by John Jay and is severely injured.  Jane Doe brings a civil action against John Jay 6 years after the date of the accident.  Jane Doe claims that John Jay failed to stop at a red light causing the accident and also her injuries.  John Jay answers the complaint against him by admitting that he drove through the red light and collided with Jane Doe causing her injuries.  However, John Jay raises the affirmative defense of statute of limitations.  As stated in Curran, John Jay admits the cause of action, however, he negates liability to Jane Doe on the basis that Jane Doe failed to bring her cause of action within the requisite time frame allowed by Florida statute.  It is apparent that John Jay is responsible to prove the affirmative defense in order to avoid liability.  This is not form over substance if compared to an answer where Jay denied that he drove through a red light (an allegation raised by Jane Doe).  The two, a denial versus an affirmative defense, are not the same.

Nevertheless, in litigation I see this constantly.  Attorneys draft form denials in their answer and add unnecessary phrases in order to make the answer seem stronger than it really is.  But in addition to that answer, the attorney will draft an affirmative defense such as “failure to state a claim” and then proceed to simply deny the allegations of the complaint.  Or, he or she may assert that the plaintiff failed to meet certain burdens of proof in the complaint which amount to nothing more than denying the allegation occurred.  These are not proper affirmative defenses and should be stricken.


The use of affirmative defenses should be limited to those matters in which accepting the cause of action as true, nonetheless, avoids or limits liability.  Denials of allegations, such as denying that conditions precedent have been satisfied, should be specifically drafted to mirror the complaint in order to avoid confusion of issues and what matters are admitted versus those that are denied.  This allows both parties to know what is in dispute and also guides the litigation toward the matters that will need to be proven in court.  The Russell case makes a very clear and simple point that attorneys should know the difference between terms in pleading and although substance is important, so too is the form in which the substance is drafted.

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[1] Westlaw Citation: 2020 WL 3408552

[2] City of Coconut Creek v. City of Deerfield Beach, 840 So.2d 389, 393 (Fla. 4th DCA 2003).

[3] Id.

[4] Smith v. Mogelvang, 432 So.2d 119, 124 (Fla. 2d DCA 1983) (quoting Massey-Ferguson, Inc. v. Santa Rosa Tracctor Co., 366 So.2d 90, 93 (Fla. 1st DCA 1979).

[5] Id.

[6] See State Farm Mutual Auto. Insurance Co. v. Curran, 135 So.3d 1071, 1079 (Fla. 2014).

[7] Id.