Difference between Affirmative Defenses and General Denials
A recent case explains how an affirmative defense works. In this case, a drywall subcontractor sued a general contractor for unpaid work. The subcontractor filed a motion for summary judgment, the contractor filed an opposition in response, and the summary judgment was denied. The case proceeded to a bench trial and the court found that the subcontractor failed to prove its claim and awarded judgment in favor of the contractor. The subcontractor appealed which included an appeal of the denial of its summary judgment. An argument the subcontractor raised is that the court improperly allowed the contractor to present evidence on affirmative defenses the contractor never pled.
The appellate court disagreed with the subcontractor with this explanation on affirmative defenses compared with denials of factual allegations:
[The subcontractor] argues, correctly, “that affirmative defenses must be pleaded either in the answer or as separate affirmative defenses and, if not pleaded, the issue is deemed waived.” But an affirmative defense is different than a general denial. There are “two classes of defensive pleas.” The first is “a denial of an ultimate fact pleaded in the preceding pleading.” The second “is one by way of confession and avoidance. All affirmative defenses are pleas by way of confession and avoidance. They admit the allegations of the plea to which they are directed and allege additional facts that avoid the legal effect of the confession.”
Nuce Acoustic Ceilings & Drywall, Inc. v. Delesline Construction, Inc., 2026 WL 1261818, *1 (Fla. 2d DCA 2026) (internal citations omitted).
Here, the trial court found that the subcontractor failed to prove the causes of action it asserted. So, it had NOTHING to do with unpled affirmative defenses. Further, unpled affirmative defenses were not raised and the trial court did not base its rulings on unpled affirmative defenses.
What are the lessons learned? Make sure you prove the causes of action being asserted and appreciate the difference between denying factual allegations and the purpose of an affirmative defense.
Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.
