florida affirmative defenses to breach of contract

Remedies for a Breach of Contract in Florida; There are many different defenses to a breach of contract action - reasons why you were not able to do what you were supposed to do under the contract, or why there never was a contract in the first place. The hiring of an attorney is an important decision that should not be based solely upon advertisements. Typically, these set-off statutes apply when the plaintiff received money from a defendant / tortfeasor who was vicariously liable for the other defendants acts. An affirmative defense is the most common means of defense in a breach of contract case. In contract actions, set-off must be raised as an affirmative defense and proven at trial (and determined by the trier of fact) or else the defendant waives the right to assert set-off. Honest, hardworking sellers should not be held hostage to the unreasonable expectations of an overly demanding buyer. If you prove an affirmative defense, you can win the lawsuit or reduce the amount of money the plaintiff can recover. Where a mistake of one party at the time a contract was made as to a basic assumption on which he made the contract has a material effect on the agreed exchange of performances that is adverse to him, the contract is voidable by him if he does not bear the risk of the mistake, and (a) the effect of the mistake is such that performance of the contract would be unconscionable, or (b) the other party had reason to know of the mistake or his fault caused the mistake. Even though excuse for mistake concerns mistaken assumptions about reality at the time of contracting, the mere fortuity that the mistake concerned events occurring after the contract was formed will transform the issues into one of impossibility of performance or frustration of purpose. The party asserting the defense must also prove three other elements: (1) reliance on the conduct; (2) relation to the litigation; (3) resulting in an injury. Qadir, supra (citation omitted). If this is a defense you want to try to prove, remember you will need to factually prove the bad unclean hands conduct and the elements to satisfy the defense. See e.g., Indemnity Ins. Even where time is declared to be of the essence, delay will not be deemed a material breach unless the clause is clearly applicable to the specific contract requirement at issue. One affirmative defense to breach of contract is lack of legal capacity to contract such infancy and mental incompetence. Most of the time, it is pled as an affirmative defense incorrectly. In Florida, the prosecution of a residential mortgage foreclosure action must be by the owner and holder of the . If so, the breach of fiduciary duty claim may be dismissed as duplicative. Second, the court shall set-off any amount the plaintiff received from the other two defendants in the judgment the plaintiff receives since it involves the same damage, meaning the set-off would reduce the jury verdict and would be embodied in the final judgment. The time limit for the statute of limitations in Florida is five years for written contracts, 4 years for oral contracts and one year for specific performance of a contract requiring a party to perform a specific action per an existing contract. Under New York law, a corporation may include provisions in the certificate of incorporation to eliminate the liability . Personal Jurisdiction and Florida Courts Two-Prong Analysis, Yes, Lawsuits are an Inconvenience, but this does NOT Mean You get Inconvenience Damages, Evidentiary Hearing Warranted before Compelling Non-Signatories to Arbitration, Mutual Mistake or Unilateral Mistake in Contract, Employees Premise Liability Claim Barred by Disclaimer / Release in Employment Agreement, Comparative Fault Applies when Substance of the Action is Sounded in Negligence, Work Product Document and Withholding of Documents Based on Doctrine, Nature of Disclosure under Floridas Public Whistleblower Act, Declaratory Relief in Insurance Coverage Dispute, Statute of Limitations Accrual for Breach of Contract, Enforce Settlement Agreement OR Breach of Settlement Agreement, Objecting and/or Refusing to Participate in Employers Activity in Violation of a Law, Rule, or Regulation under Floridas Whistleblower Act, Quick Note: Obtaining a Default Final Judgment, Appealing a Protective Order that Precludes You from Deposing Material Witness, Tortious Interference with Business Relationship and Two Defense Privileges, Possible or Speculative Events do Not Give Rise to Fraudulent Nondisclosure, Prevailing Party in Civil Action Entitled to Recover Costs, Properly Exercising the Right of First Refusal, Reasonable Attorneys Fees Expert when Attorneys Fees are the Damages, Prejudgment Interest for Economic Damages is Predicated on the Loss Theory, Take Advantage of Video Conference Consultations with an Attorney. It is asserted, but not really a defense a party can ever prove. 3d 102 (Fla. 2010), the Florida Supreme Court held that defendant's reliance need not be "justifiable." . This is because that party also committed a breach of contract. An affirmative defense is one of the most common types of defenses against a breach-of-contract claim. College, 905 So. Most defenses to a breach of contract claim are referred to as "affirmative defenses." As a legal matter, this means that the party raising the defense (the person sued for breach of contract) has the burden of proving the defense, if the dispute goes to trial. Under this defense, the person or entity being accused of a breach of contract argues that the other party is not entitled to a remedy under Florida. A Misrepresentation is Not the Same as a Breach of Contract, Owner Jointly and Severally Liable for Nondelegable Duty, Corporation Administratively Dissolved for Failing to File Annual Report can Still Prosecute Action, Application of the Non-Party Fabre Defendant, Evidentiary Hearing when Lis Pendens NOT based on Duly Recorded Instrument, Mandatory or Permissive Forum Selection Provision, Limitation on Real Estate Brokers Procuring Cause Doctrine, The Declaration of Condominium Says what It Says, Employer cannot Retaliate against Employee for Workers Compensation Claim, Enforcement of Non-Compete and Non-Solicitation Provision, Absolute Immunity Protects Public Officials from Defamation, The Duty of Care Element in a Negligence Action is a Question of Law, Giving Rise to the Exception to Sovereign Immunity Against a Public Officer, Employee, or Agent, Deficient Jury Instruction could Amount to Reversible Error, How to Factor a Postoffer Settlement into a Proposal for Settlement Analysis, Refuting Affirmative Defenses in Motion for Summary Judgment. In a breach of a contract dispute, the party raising the defense is responsible for proving the defense in court. In the case of duress and undue influence, a party was forced to sign a contract against his or her will. The failure to meet contractual deadlines may or may not be deemed material. Defending against breach of contract claims requires a meticulous review of your situation and a full exploration of your options and available defenses. It is a hard defense to prevail on because it is akin to fraud: ~ From the Rules Regulating The Florida Bar, About Contract & Business Jury Instructions, Florida's Standards for Imposing Lawyer Sanctions, Section 600 Substantive Instructions General, Appendix AHow to Write and Use Jury Instruction in Civil Cases, 416.3 Contract Formation Essential Factual Elements, 416.4 Breach of Contract Essential Factual Elements, 416.9 Contract Formation Revocation of Offer, 416.11 Contract Formation Acceptance by Silence or Conduct, 416.15 Interpretation Meaning of Ordinary Words, 416.16 Interpretation Meaning of Disputed Technical or Special Words, 416.17 Interpretation Construction of Contract as a Whole, 416.18 Interpretation Construction by Conduct, 416.20 Interpretation Construction Against Drafter, 416.21 Existence of Condition Precedent Disputed, 416.22 Occurrence of Agreed Condition Precedent, 416.24 Breach of Implied Covenant of Good Faith and Fair Dealing, 416.25 Affirmative Defense Mutual Mistake of Fact, 416.26 Affirmative Defense Unilateral Mistake of Fact, 416.27 Affirmative Defense Undue Influence, 416.28 Affirmative Defense Fraud in the Inducement, 416.29 Affirmative Defense Negligent Misrepresentation, 416.32 Affirmative Defense Statute of Limitations, 416.33 Affirmative Defense Equitable Estoppel, 416.35 Affirmative Defense Judicial Estoppel, 416.36 Affirmative Defense Ratification, 416.42 Breach of Duty to Disclose- Residential, 504.4 Damages for Complete Destruction to Business, 504.5 Owners Damages for Breach of Contract to Construct Improvements on Real Property, 504.7 Buyers Damages for Breach of Contract for Sale of Real Property, 504.8 Sellers Damages for Breach of Contract to Purchase Real Property, 504.10 Present Cash Value of Future Damages, How to Write and Use Jury Instruction in Civil Cases, Form 416.2 Model Form of Verdict for Third-Party Beneficiary of Contract Claim, Form 416.3 Model Form of Verdict for Formation of Contract, Form 416.4. Doe/Roe Defendants. 2d 470, 471 (Fla. 4th DCA 2003). the non-breaching party must not have waived the right to enforce the prior breach against the opposing party. There Must be a Prior Breach of a Provision in the Contract. Failure to meet a deadline is more likely to qualify as a material breach where the contract specifically provides that time is essential or time is of the essence. See e.g., Legacy Place Apartment Homes, LLC v. PGA Gateway, L.T.D., 65 So. See Felgenhauer v. Bonds, 891 So.2d 1043, 1045 (Fla. 2d DCA 2004). Directors Liabilities and Responsibilities, Joint Ventures and International Business Agreements, Acquisition and Sale of U.S. or Foreign Companies, Fiduciary duties of officers and directors, Litigation, arbitration and risk management, E-2 Visa Requirements, Eligibility and Benefits, EB-1C Multinational Manager and Executive, P-1 Visa Athletes and Entertainment Groups. . ), Equitable Relief: One seeking Equity MUST do Equity, Exculpatory Clauses will be Strictly Construed to Determine Enforceability, Do Yourself a Favor: Get a Court Reporter at that Impactful Hearing, Real Estate Brokers are NOT Immune from Liability, Res Judicata and 4 Requirements that Must be Demonstrated, Writ of Prohibition to Prevent Trial Court from Exceeding Jurisdiction, Directed Verdict Granted where No View of Evidence Could Support Jury Verdict, Petition for Writ of Mandamus Directing Trial Court to Take Action, Considerations: Independent Tort Doctrine and Claim Known as Equitable Accounting, Waiver is a Voluntary Relinquishment of a Known Right that Must be Proven with a Clear Showing, Dismissal Without Prejudice does NOT Trigger Attorneys Fees under Proposal for Settlements, Bert Harris Act and Competing Motions for Summary Judgment, Plaintiff MUST Confer Direct Benefit on Defendant to Prove Unjust Enrichment, You Cannot Intentionally Render Moot a Plaintiffs Lawsuit, Apparent Authority of Agent to Bind Principal, Serving the Civil Remedy Notice (CRN) to Perfect a First-Party Bad Faith Insurance Claim, Breach of Express Contract is Exception to Sovereign Immunity, Moving for and Challenging a Protective Order under the Apex Doctrine, Purchase-and-Sale Contract: Your Right to Modify Them, Premise Liability and Duty Owed to Business Invitees, Recovering Attorneys Fees in Litigating the Amount of Attorneys Fees, Business Interruption due to COVID-19 NOT Covered under Commercial Property Insurance Policy, Foreseeability and the Duty Element of a Negligence Claim, Post-Judgment Receiver Appointed to Collect on Behalf of Judgment Creditor, Reminder: Not Every Breach is a Material Breach of Contract, Adding a Non-Party Fabre Defendant to the Verdict Form, 3-Step Process for Objections to Trade Secrets, Attorneys Fees to Prevailing Party Under FDUTPA Claim are PERMISSIVE, Contractually Disclaiming a Fraud Claim (Possible, but not Easy to do), Floridas Single Publication Rule (and Defamation Claims), Reasonable Time to Accept Settlement Offer (is a Question of Fact), Contingency Fee Multiplier Must Establish the Relevant Market Factor, Business Judgment Rule Designed to Shield Directors from Personal Liability, Ambiguity in Insurance Policy Interpreted in Favor of Insured, Pure Bill of Discovery NOT for Purposes of Fishing Expedition, Partition Action does Not Result in Money Damages Against a Party, Consider Prevailing Party Attorneys Fees before Voluntarily Dismissing Case, Confession of Judgment does Not Start the Clock to File Motion for Attorneys Fees, Quick Note: Motion for Protective Order Reviewed Under Abuse of Discretion Standard of Review, There are NO Magic Buzz Words to Effectuate an Assignment, Presuit Appraisal Requirement under Bert J. Harris Act, Determining whether Lis Pendens Against Property is Appropriate Fair Nexus, Recovering Attorneys Fees Incurred on Partys Behalf, To Pierce Corporate Veil, there Needs to be Sufficient Findings of Improper Conduct, Timely Moving for Trial De Novo after Non-Binding Arbitration Award, Attorneys Fees do Not have to be Quantified in Proposal for Settlement, A Bad Deal does NOT Make It an Unlawful Deal, Dismissal of Complaint (Action under Floridas Public Whistleblower Act) for Failure to State Cause of Action, Duty Element of Negligence Did Defendants Conduct Foreseeably Create Broader Zone of Risk, Trier of Fact Determines Weight of the Evidence, Oops! Unilateral means a single party did not fully understand or was mistaken about the terms and conditions of the contract, while mutual means that both of the parties were mistaken about the terms and conditions of the contract. The most common defenses to enforcement of a contract or liability for damages are: Enforcement of the contract would violate public policy. Under the unclean hands defense, neither party is liable to the other because both parties have unclean hands and committed wrongdoings. 2013) (not a material breach of a requirement to maintain patents where the patent was for obsolete or noncompetitive product, the licensee deemed the loss of the patent so unimportant that it never requested the patent be retroactively maintained, and the licensee suffered no harm from the breach). Why is this important? ANSWER to Complaint with Affirmative Defenses by Wal-Mart Stores, Incorporated. What about tort actions such as negligence actions in disputes involving personal injury or property damage? Breach of Implied in Fact Contract, Breach: 06. In Florida, the law requires that a seller warrant good title and rightful transfer. 2d 1202, 1210 (M.D. With a Dead Body, Tortious Interference: 4. 11 In Florida, under Rule 1.110 (d) of the Florida Rules of Civil Procedure, the following affirmative defenses to breach of contact must be raised when pleading to a preceding pleading: accord and satisfaction, arbitration and award, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, laches, payment release, res . Florida has a standard form, Form 1.933, regarding how to properly plead a cause of action for account stated. Arbitrability of a Dispute Does a Judge or Arbitrator Decide? (1) A written covenant not to sue or release of a person who is or may be. One such affirmative defense is the Statute of Limitations. Model Form of Verdict for Affirmative DefenseMutual Mistake of Fact, Form 416.28. See Acosta v. Dist. Instead of proving you didn't break the contract, you fully accept your role in breaking the contract. 3d 318, 321 (Fla. 2d DCA 2014) (Whether the payment obligations under the employment agreements were dependent or independent covenants is an issue of law that turns on the proper interpretation of the contracts.). 35. . This action is barred to the extent Plaintiff seeks recovery for time that is not compensable time, i.e. As a general rule, time is considered to be of the essence where an agreement specifies, or where such may be determined from the nature of the subject matter of the contract, or where treating time as nonessential would produce a hardship, or where notice has been given to the defaulting party requiring that the contract be performed within a stated time, which must be a reasonable time according to the circumstances. Sublime, Inc. v. Boardmans Inc., 849 So. Group USA, Inc., 171 F. Supp. Law firm website design by Rowboat Media LLC. A Statute of Limitations is a state law that prohibits a plaintiff from winning a lawsuit if they simply wait too long to enforce their rights. For more information about our commercial litigation practice call 877-322-5291. a claim of breach of contract. DEMAND FOR JURY TRIAL Lorit demands a jury trial. But what do you do if the credit card company or other plaintiff can prove its case? As a Florida debt lawyer, I am committed to pursuing justice on your behalf. Affirmative defenses to breach of contract are facts, which if pleaded and proven by a party, can avoid legal obligation for promises that seem to satisfy the requirements for contact. (2) At trial, if any person shows the court that the plaintiff, or his or her legal representative, has delivered a written release or covenant not to sue to any person in partial satisfaction of the damages sued for, (1) A release or covenant not to sue as to one tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tortfeasor. However, once the age of majority is reached, the minor, now an adult, can ratify and affirm the contract. Defendant is not legally responsible for the acts and/or omissions of those additional defendants named in the Complaint and/or to be named as Does, or to cross-defendants that may be named as roes in any cross-complaint filed in this action. . That one call can mean the difference between winning and losing your lawsuit. In other words, if one party has not honored his or her commitments in a contract, the other party does not have to perform his or her part of the contract, and cannot be later faulted for not performing under that circumstance. Section 400 Substantive Instructions The objective is to prevent the plaintiff from obtaining a windfall by obtaining overlapping compensation for the same damages. See e.g., Richland Towers, Inc. v. Denton, LLC, 139 So. In these instances, the conduct of the parties following a prior breach will determine whether a prior breach claim or defense can be sustained. v. Domino, 896 So. Here, defendants' Third Affirmative Defense for setoff will be allowed to proceed as an affirmative defense to plaintiff's state- law breach of oral contract claim for failure to pay plaintiff commissions (Count II). Generally, an account stated is "an agreement based upon prior transactions between the parties with respect to the items composing the account, and the balance due, if any, in favor of one of the parties.". The first element should be obvious. Twelfth Affirmative Defense (No Interference) 50. Model Form of Verdict for Breach of Contract, Form 416.5 Model Form of Verdict for Oral or Written Contract Terms, Form 416.6 Model Form of Verdict for Contract Implied in Fact, Form 416.7 Model Form of Verdict for Contract Implied in Law, Form 416.8 Model Form of Verdict for Contract FormationOffer, Form 416.10 Model Form of Verdict for Contract FormationAcceptance, Form 416.11 Model Form of Verdict for Contract FormationAcceptance by Silence Or Conduct, Form 416.12 Model Form of Verdict for Substantial Performance of Contract, Form 416.13 Model Form of Verdict for Modification of Term(s) Of Contract, Form 416.14 Model Form of Verdict for InterpretationDisputed Term(s), Form 416.15 Model Form of Verdict for InterpretationMeaning of Ordinary Words, Form 416.16 Model Form of Verdict for InterpretationMeaning of Disputed Technical or Special Words, Form 416.17 Model Form of Verdict for InterpretationConstruction of Contract as a Whole, Form 416.18 Model Form of Verdict for InterpretationConstruction by Conduct, Form 416.19 Model Form of Verdict for Interpretation of ContractReasonable Time, Form 416.20 Model Form of Verdict for InterpretationConstruction Against Drafter, Form 416.21 Model Form of Verdict for Existence of Conditions Precedent Disputed, Form 416.22 Model Form of Verdict for Occurrence of Agreed Condition Precedent of Contract Claim, Form 416.24. See Felgenhauer v. Bonds, 891 So.2d 1043, 1045 (Fla. 2d DCA 2004).. What about tort actions such as negligence actions in disputes involving . Breach of contract means a party, who formerly assured to do so, has failed to live up to their side of the deal. One of the most common uses of laches is when a plaintiff delays filing to avoid dealing with witnesses that may hurt their recovery. Section 200 Preliminary Instructions For example, four (4) widgets at $8.00 each would be a material breach of a contract for four (4) widgets at $4.00 each. Whether you are a buyer or seller, we can help you achieve your goals. An attorney client relationship is not established by submitting an email or a form from this website. This is a strong defense as the person or entity forfeits its consensual partnership in the contract. P. 1.110. West Palm Beach, FL 33407 Arbitrability of a Dispute Does a Judge or Arbitrator Decide? This article is not a substitute for legal advice. 2d 248, 251 (Fla. 3d DCA 1991) (The rule is quite clear that a contracting party, faced with a material breach by the other party, may treat the contract as totally breached and stop performance.). The waiver of a prior breach claim or defense may be expressed by contract 10 or implied by conduct. Copyright 2023 The Florida Litigation Guide, 1997 to 2022 - Litigation Guide Publishing, LLC |, * Fla. R. Civ. The defense applies to bar an equitable claim no matter the claims merits when the plaintiff has engaged in some manner of unscrupulous conduct, overreaching, or trickery that would be condemned by honest and reasonable men. . (2) At trial, if any defendant shows the court that the plaintiff, or any person lawfully on her or his behalf, has delivered a release or covenant not to sue to any person, firm, or corporation in partial satisfaction of the damages sued for, the court shall set off this amount from the amount of any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment and enter judgment accordingly. When Can You Use the Defense of Unclean Hands? In some cases, these affirmative defenses can also allow you to bring a counterclaim against the debt collector or its attorneys. List of Affirmative Defenses: - failure to state a claim upon which relief may be granted (almost always use) - statutory defenses prerequisites (these will vary depending on the claims) - preemption by federal or other law - accord and satisfaction - arbitration and award - assumption of risk - unavoidable accident - economic loss rule The breach of ministerial, minor, technical, or administrative provisions of a contract will typically not be found to be material. (2) At trial, if any person shows the court that the plaintiff, or his or her legal representative, has delivered a written release or covenant not to sue to any person in partial satisfaction of the damages sued for, the court shall set off this amount from the amount of any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment. If a defendant denies all plaintiff claims, the plaintiff has the burden of proving their case. The basis for the claim is that even if you owe the plaintiff money on its claim, it owes you money on other claims, and your claim can reduce the value of plaintiff's claim. Gulisano Law, PLLC. In this case, one party cannot perform according to the provisions of a contract because of an unforeseen incident such as act of God, death, incapacity, property destruction, and others. A material breach occurs only when an injured party has sustained a substantial injury due to the breach. Bland v. Freightliner, LLC, 206 F. Supp. In response, APCO filed its Answer, which included multiple affirmative defenses to Zitting's breach of contract claim. 3d 1291, 1299 (11th Cir. Fla. 2002) (emphasis added). Defense 5. 3d 7 (Fla. 3d DCA 2009) (reversing rescission of lease premised upon an alleged prior breach of dependent covenant based on waiver by acceptance of benefits under the lease). 2d 880, 882 (Fla. 4th DCA 2005) ([A] material breach of the agreement allows the non-breaching party to treat the breach as a discharge of his contract liability.). For more information about our trial practice and for a free consultation please call us day or night, e-mail us, or complete the contact form below. Call (561) 953-6662. See Digesu v. Affirmative defenses are reasons the defendant gives why a plaintiff in a case should not win. Of course, you can also contact us by using our convenient website contact form or by faxing us. Generally, in the United States, some of the affirmative defenses to breach of contract include: Lack of capacity. Statutory Construction What does the Statute Mean? Breach of Implied in Law Contract, Breach: 07. whose name a contract has been made for the benefit of . A Statute of Limitations is a state law that prohibits a plaintiff from winning a lawsuit if they simply wait too long to enforce their rights. This means that if the contract in violates state or federal law, then it is automatically barred. In Florida, and many jurisdictions, there is an equitable affirmative defense known as unclean hands . Section 500 Damages However, in order for it to apply in any context, four elements must be present: The first element should be obvious. We understand the aggravation and stress that accompanies a breach of warranty lawsuit because were people. There are several defenses to counter a claim of breach of warranty. Defendants did not know or show reckless disregard for whether their conduct was prohibited by the FLSA. 2d 749, 752 (Fla. 4th DCA 2008), the Court found that a commercial lessors failure to obtain an estimate by a contractor or architect, as required by the lease, prior to sending notice of its intent to terminate lease was a technical, rather than a material, breach of a commercial lease agreement. 416.28 AFFIRMATIVE DEFENSE - FRAUD IN THE INDUCEMENT . Impossibility of performance. Gordon v. Marvin M. Rosenberg, D.D.S., P.A., 654 So.2d 643, 645 (Fla. 4th DCA 1995). of Trustees of Miami-Dade Comm. It is common to argue all the defenses that are available to you, which might include one or more of the . The description of a dependent/independent covenant does sound similar to the definition of materiality and some cases treat these requirements interchangeably. Stuart, FL 34994 The materiality requirement mandates that the breached contractual duty must be of significant importance. You should consult with a knowledgeable Florida consumerattorney who is experienced in defending debt collection lawsuits. (2) At trial, if any defendant shows the court that the plaintiff, or any person lawfully on her or his behalf, has delivered a release or covenant not to sue to any person, firm, or corporation in partial satisfaction of the damages sued for, Typically, these set-off statutes apply when the plaintiff received money from a defendant / tortfeasor who was, The objective is to prevent the plaintiff from obtaining a windfall by obtaining overlapping compensation for the, On the other hand, if there was an argument that there were separate theories of liability / claims against the other two defendants and potentially different elements of damages, the plaintiff would want to allocate the settlement consideration in the release agreement to these separate theories of liability / claims to create the argument that set-off is not appropriate. How Long will my Divorce Case in Stuart, Florida take? 22. Preliminary Sections | March 18, 2020. Copyright 2013 Rudnitsky Law Firm . This means that the party was unable to abide by the terms of the contract as the incident made it impossible for the party to do so. The party must prove the existence of an enforceable contract. Romy B. Jurado, Esq. Before you decide, ask us to send you full written information about our qualifications and experience. Affirmative defenses are factual and legal arguments that the breaching party raises to try and make the breach of contract claim moot. Group USA, Inc. v. King, 171 F. Supp. Answer and Affirmative Defenses in response to Plaintiff's Complaint for Foreclosure of Mortgage (the "Complaint") and states: . An affirmative defense to a criminal charge or a civil suit is a fact or group of facts that differ from those asserted by the prosecutor or plaintiff which, if successfully proven by the defendant, mitigates or entirely defeats the legal repercussions of the defendant's otherwise illegal actions. Where a settlement is undifferentiated and general [and not allocated amongst the claims], the aggregate of the amount of the settlement should be set off against the judgment [to prevent the appearance of double recovery for the same damages]. Cornerstone SMR, 163 So.2d at 569. A cause of action is used synonymously with "theory" or "legal theory." 3d 1300, 1309 (S.D. It is a hard defense to prevail on because it is akin to fraud: Unclean hands is an equitable defense much like fraud. & Mgmt. Set-off is a popular topic or defense raised in civil disputes.

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