Gottlieb & Gottlieb, P.A. v. Doctor R. Crants
657 F. App'x 920
| 11th Cir. | 2016Background
- Crants executed 20 promissory notes payable to Gottlieb, each stating payment was "ON DEMAND." Crants admitted signing, delivery, and receipt of value for the notes.
- Gottlieb sued in Florida state court to collect over $1.5 million; Crants removed to federal court on diversity grounds.
- Gottlieb's complaint alleged all conditions precedent had occurred; Crants's answer denied that paragraph and asserted a generic Third Defense that claims were barred by nonperformance of a condition precedent.
- Crants later testified and claimed the notes were subject to an oral agreement with Jerry Gottlieb that loans would not be payable until the sale of LCS or related projects (an alleged condition delaying payment).
- Crants sought discovery and later attempted to assert for the first time an affirmative defense of conditional delivery; the magistrate judge denied leave to file a reply asserting that defense.
- The district court granted Gottlieb summary judgment, holding Crants failed to plead the denial of conditions precedent with particularity under Rule 9(c) and waived the affirmative defense of conditional delivery by not pleading it under Rule 8(c). This Court affirmed.
Issues
| Issue | Plaintiff's Argument (Crants) | Defendant's Argument (Gottlieb) | Held |
|---|---|---|---|
| Whether Crants's denial of satisfaction of conditions precedent met Rule 9(c) particularity requirement | Denial in answer and Third Defense plus later testimony about an oral agreement suffice to show a condition precedent | Denial was generic; specifics were never pleaded | Denial was too general; Rule 9(c) not satisfied |
| Whether Crants preserved/pleaded the affirmative defense of conditional delivery under Rule 8(c) | Conditional delivery was shown by testimony and discovery responses; defense was implicit in his factual assertions | Conditional delivery is an affirmative defense that must be specifically pleaded; Crants never pleaded it timely | Crants waived the affirmative defense for failing to plead it and not amending answer |
| Whether Crants could defeat summary judgment by asserting the defense in opposition brief | Late assertion in opposition brief should suffice given the factual record | A party may not amend pleadings via opposition brief; pleading requirements must be met | Court held a party cannot raise an unpled affirmative defense in opposition to summary judgment; waiver stands |
| Whether Gottlieb was entitled to judgment on the notes given Crants's admissions and the notes' terms | The oral agreement excused immediate payment, so notes not due | Notes state payment on demand; Crants admitted signing, delivery, receipt of value, and that terms speak for themselves; Gottlieb demanded payment | Gottlieb entitled to collect: notes unambiguous as payable on demand and Crants admitted the facts; summary judgment affirmed |
Key Cases Cited
- Latimer v. Roaring Toyz, Inc., 601 F.3d 1224 (11th Cir. 2010) (summary judgment standard and failure to plead affirmative defenses leads to waiver)
- Myers v. Central Florida Investments, Inc., 592 F.3d 1201 (11th Cir. 2010) (Rule 9(c) requires particularized denial of conditions precedent)
- Jackson v. Seaboard Coast Line R.R. Co., 678 F.2d 992 (11th Cir. 1982) (unspecific denials of conditions precedent are deemed admitted)
- Gilmour v. Gates, McDonald & Co., 382 F.3d 1312 (11th Cir. 2004) (a party may not amend pleadings by argument in briefing opposing summary judgment)
- Proctor v. Fluor Enters., Inc., 494 F.3d 1337 (11th Cir. 2007) (notice/prejudice analysis for waiver of unpled defenses)
- Cockrell v. Taylor, 165 So. 887 (Fla. 1936) (distinguishing condition precedent from conditional delivery)
- Felkel v. Abernethy, 150 So. 631 (Fla. 1933) (conditional delivery is an affirmative defense to enforcement of a negotiable instrument)