Legal Memorandum: Affirmative Defenses and Burden of Proof

Issue: Under Florida law, once affirmative defenses have been pleaded, does the plaintiff have the burden of proof to disprove them?

Area of Law: Litigation & Procedure
Keywords: Affirmative defenses; Burden of proof
Jurisdiction: Florida
Cited Cases: 222 So. 2d 206; 595 So. 2d 985; 877 So. 2d 900; 207 So. 2d 40; 809 So. 2d 32
Cited Statutes: None
Date: 05/01/2015

After a defendant has pleaded affirmative defenses regarding a plaintiff’s failure to comply with contractual conditions precedent, the burden shifts to the plaintiff to establish it had complied with those conditions.  See Sheriff of Orange County v. Boultbee, 595 So. 2d 985, 987 (Fla. Dist. Ct. App. 5th Dist. 1992) (citing Fidelity & Cas. Co. of New York v. Tiedtke, 207 So. 2d 40, 42 (Fla. Dist. Ct. App. 4th Dist. 1968), quashed on other grounds, 222 So. 2d 206 (Fla. 1969)) (holding specific denial of general allegation of performance or occurrence of conditions precedent shifts burden to plaintiff to prove allegations concerning subject matter of specific denial). 

The plaintiff’s burden to prove properly-denied conditions precedent has been well-settled law for decades. See, e.g., Sheriff of Orange County, 595 So. 2d at 987 (holding proper denial of conditions precedent shifts burden to plaintiff to prove performance); Fidelity & Cas. Co. of New York, 207 So. 2d at 42 (holding upon proper denial of condition precedent, plaintiff had burden to prove performance of condition precedent).  It remains good law and has been applied relatively recently by the Second District and others. See, e.g., Griffin v. American Gen. Life and Accident Ins. Co., 752 So. 2d 621, 623 (Fla. Dist Ct. App. 2nd Dist. 1999) (holding “the party seeking to enforce a contract has the burden to prove the satisfaction of a condition precedent”); Berg v. Bridle […]

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