Properly Pleading the Affirmative Defense of the Nonperformance or Nonoccurrence of Conditions Precedent
The nonperformance of conditions precedent must be pled with particularity. Florida Rule of Civil Procedure 1.120(c) provides:
Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or occurred. A denial of performance or occurrence shall be made specifically and with particularity.
It is common for a plaintiff to generally plead in its complaint, “All conditions precedent have been performed or have occurred.” A defendant may want to assert an affirmative defense attacking or denying this allegation relating to the plaintiff’s failure to satisfy certain conditions precedent. In doing so, a defendant must identify the nonperformance or nonoccurrence of conditions precedent with specificity. Any generality in this regard could end up hurting the defendant, especially if the defendant has a legitimate defense based on the plaintiff failing to comply with conditions precedent. Hence, make sure to consider applicable conditions precedent and identify those with particularity that deny the plaintiff’s allegation that all conditions precedent have been performed or have occurred.
In a construction dispute, a contractor argued that the subcontractor failed to comply with conditions precedent. However, the contractor’s affirmative defense was general in nature – no particularity. This may have been a legitimate defense supported by facts since the contractor argued the subcontractor’s failure to comply with conditions precedent to payment meant that the contractor was not obligated to pay the subcontractor. But, based on the generality of the contractor’s affirmative defense, the appellate court held that the contractor failed to property preserve the defense in its affirmative defenses:
In its amended answer, DFI [contractor] asserted, as an affirmative defense, that HRI [subcontractor] “has failed to allege, nor can it establish that it had meet [sic] each and every condition precedent to recovering payment in this cause pursuant to its Complaint.” Contrary to the requirements in Florida Rule of Civil Procedure 1.120(c), DFI did not specify which conditions precedents HRI did not comply with or how HRI failed to comply with them. Consequently, DFI’s answer to the complaint failed to preserve its right to demand proof that HRI complied with the conditions precedent to progress payments and final payment. See Fla. R. Civ. P. 1.120(c); Deutsche Bank Nat’l Tr. Co. v. Quinion, 198 So. 3d 701, 703-04 (Fla. 2d DCA 2016) (“[T]o 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 or nonoccurrence.”); Bank of Am., Nat’l Ass’n v. Asbury, 165 So. 3d 808, 810-11 (Fla. 2d DCA 2015); Cooke v. Ins. Co. of N. Am., 652 So. 2d 1154, 1156 (Fla. 2d DCA 1995); Paulk v. Peyton, 648 So. 2d 772, 774 (Fla. 1st DCA 1994).
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