Part one of this series explained what to do once you have been served with a lawsuit; namely, making sure you promptly respond to the plaintiff’s complaint. This article will discuss an important section that needs to be included with your answer: your affirmative defenses. Affirmative defenses are theories that if proven to be true would negate the plaintiff’s claim. For example, if a plaintiff claims that you are trespassing on his or her property, an affirmative defense to trespassing would be a claim that you own the property, whether outright or through a claim of adverse possession. As such, affirmative defenses are a very important of your answer.
Michigan Court Rule 2.111(F)(3) requires a defendant file his or her affirmative defenses with the answer to the complaint. These defenses must be included in a separate and distinct heading and must state facts supporting each defense. Failing to include an affirmative defense can be detrimental to your case, as it constitutes a waiver of that defense (see Walters v. Nadell, 481 Mich 377, 389; 751 NW2d 431 (2008)). In other words, you will not be able to assert that defense at trial, even if it would prove your case.
An affirmative defense might also be waived if it is not stated properly. In Thomasina Glasker-Davis v. Daman Steven Auvenshine and Meemic Insurance Company, the Michigan Court of Appeals held that including only the “boilerplate” affirmative defense of fraud was insufficient to later claim fraud as a defense. Specifically, after only generally stating fraud as an affirmative defense, the defendant in Thomasina tried to dismiss the case by claiming the plaintiff’s complaint included fraudulent allegations. The Court of Appeals held that because fraud was not plead with particularity in the defendant’s affirmative defenses, the defendant could not raise fraud for purposes of attempting to dismiss the case.
The decision in Thomasina sends a strong message that affirmative defenses must be considered carefully — “boilerplate” language is not enough. Further, because these defenses can be amended, parties should avoid pleading inapplicable defenses early in litigation. Instead, parties should amend their defenses on an ongoing basis, once information is acquired through discovery.
If you have been sued and need legal counsel, please contact Grewal Law PLLC online to schedule a free consultation today.