Frisbie v. Carolina Casualty Insurance Co., 162 So. 3d 1079

Appellee Carolina Casualty sought rescission of an insurance contract based on alleged material misrepresentations by Appellants (Frisbie, Yankee Trailer Court entities).
The trial court initially granted summary judgment for Appellee; this court reversed, finding genuine issues whether waiver or estoppel barred rescission (Frisbie v. Carolina Cas. Ins. Co.).
On remand, Appellee moved again for summary judgment, arguing Appellants (standing in their counsel’s shoes) were barred from asserting waiver or estoppel by the equitable doctrine of unclean hands.
The trial court again granted summary judgment for Appellee, holding unclean hands precluded Appellants’ affirmative defenses.
The Fifth District reversed, concluding Appellee should have pleaded unclean hands as an avoidance in a reply to Appellants’ answer under Fla. R. Civ. P. 1.100(a)/1.110(d).
The court also held unclean hands raises disputed factual issues inappropriate for resolution on summary judgment and reiterated existing fact disputes about waiver and estoppel.

Issue	Plaintiff's Argument (Appellee)	Defendant's Argument (Appellants)	Held
Whether Appellee properly raised unclean hands without a reply	Appellee asserted unclean hands as an avoidance to waive/estoppel and raised it in its second summary-judgment motion	Appellants argued unclean hands was a new affirmative avoidance that should have been pleaded in a reply	Court held unclean hands, as an avoidance of affirmative defenses, had to be pleaded in a reply under Fla. R. Civ. P. 1.100(a)/1.110(d)
Whether summary judgment was appropriate to decide unclean hands	Appellee argued facts showed unclean hands and justified summary adjudication	Appellants argued unclean hands depended on disputed facts and could not be resolved on summary judgment	Court held unclean hands involves disputed factual determinations and is not appropriate for summary judgment (citing precedent)
Whether unclean-hands avoidance is procedurally or substantively permissible here	Appellee treated unclean hands as a distinct avoidance to bar waiver/estoppel	Appellants (and concurrence) argued the avoidance duplicates the misrepresentation claim and improperly seeks a second bite at the same conduct	Majority reversed on procedural grounds and declined to adopt the substantive overlap argument as basis to affirm; concurrence emphasized that unclean hands is subsumed in the misrepresentation claim and should not be used to evade waiver/estoppel findings

Frisbie v. Carolina Cas. Ins. Co., 103 So.3d 1011 (Fla. 5th DCA 2012) (prior reversal holding factual disputes as to waiver/estoppel barred summary judgment)
Dickerson v. Orange State Oil Co., 123 So.2d 562 (Fla. 2d DCA 1960) (discussing need to reply to affirmative defenses to avoid allowing new defenses at trial)
Coral Ridge Props., Inc. v. Playa Del Mar Ass’n, Inc., 505 So.2d 414 (Fla. 1987) (pleading requirement to state avoidance of affirmative defenses)
Lazar v. Allen, 347 So.2d 457 (Fla. 2d DCA 1977) (distinguishing denial of an affirmative defense from pleading an avoidance)
Cohen v. Kravit Estate Buyers, Inc., 843 So.2d 989 (Fla. 4th DCA 2003) (holding unclean hands raises factual issues not suitable for summary judgment)
Dery v. Occhiuzzo & Occhiuzzo Enters., Inc., 771 So.2d 1276 (Fla. 4th DCA 2000) (same: unclean hands requires resolution of disputed facts)