Affirmative Defenses-Waiver - Newman v. Howard


Newman v. Howard, [Ms. 1160226, June 16, 2017) __ So. 3d __ (Ala. 2017). Citing Bechtel v. Crown Central Petroleum Corp., 451 So. 2d 793 (Ala. 1984), the Court reiterates that it is within the trial court's discretion to allow a defendant to raise a affirmative defense after an initial answer to a complaint, that while Rule 15(a), Ala. R. Civ. P., provides that amendments should be freely allowed when justice so requires, a party opposing an amendment may defeat the amendment upon showing that the amendment would cause actual prejudice or undue delay, and that because Rule 8(c) regarding affirmative defenses is mandatory, the consequence of a party's failure to plead an affirmative defense is that it is waived and the party who should have pleaded the affirmative defense may not introduce evidence in support of such defense unless the adverse party makes no objection. Accordingly, any motion for summary judgment premised upon a waived affirmative defense is, upon proper and timely objection, appropriately denied absent permission from the trial court to timely amend the party's answer to include such affirmative defense.

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