Waiver of Affirmative Defense

Clay v. Chavis, [Ms. 1210362, Nov. 18, 2022] __ So. 3d __ (Ala. 2022). The Court (Mendheim, J.; Parker, C.J., and Shaw, Bryan, and Mitchell, JJ., concur) reverses the Baldwin Circuit Court’s summary judgment in favor of Plaintiff Charles Chavis in a dispute involving Merlyn Clay’s purchase of several parcels of property from Chavis. Chavis sued Clay alleging she failed to fulfill certain obligations under the sale contract.

On appeal, Clay relied on the merger doctrine and argued because “Chavis provided no evidence indicating that Clay received the deeds to the river property and the barn property through fraud or a mistake…, the circuit court should not have considered the terms of the sale contract in assessing whether Chavis should prevail….” Ms. *14. The Court concludes Clay waived the merger defense:

Clay did not plead the doctrine of merger as a defense in her answer to the complaint, nor did she argue the doctrine of merger in her response to Chavis’s summary-judgment motion. “‘Once an answer is filed, if an affirmative defense is not pleaded, it is waived.’” Pinigis v. Regions Bank, 942 So. 2d 841, 846 (Ala. 2006) (quoting Wallace v. Alabama Ass’n of Classified Sch. Emps., 463 So. 2d 135, 136 (Ala. 1984)). The doctrine of merger is an affirmative defense. See, e.g., Ritchey v. Dalgo, 514 So. 2d 808, 810 (Ala. 1987). Therefore, Clay waived the defense by failing to plead it. Moreover, “the trial court cannot be reversed on any ground or argument not presented for or against the [summary-judgment] motion.” Ex parte Ryals, 773 So. 2d 1011, 1013 (Ala. 2000). Ibid.

The Court explains “there are key discrepancies between the sale contract and what the parties agree was included in the transaction and several discrepancies between the sale contract and the parties’ performance. Because of those issues of fact, we reverse the circuit court’s judgment and remand the cause for further proceedings.” Ms. **22-23.

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