The basic pleadings in any litigation are the Complaint, Answer, Affirmative Defenses, and Reply.
Let’s go back to the fact pattern of our first article in this series and suppose that you are the President of XYZ. One day a sheriff or process server comes to your office and hands you a summons and a complaint by ABC against XYZ.
First, you will have 20 days to answer the complaint. If you do not, then the court will enter a default judgment against XYZ for whatever damages ABC can prove, which is not a good thing. So the first thing to do when served with a summons and complaint is to immediately retain an attorney to represent you.
In a complaint a “plaintiff” (here, ABC) asserts a “claim for relief” against a “defendant” (here, XYZ). The complaint is supposed to recite each “element” of each of each “cause of action”. A cause of action is a statement of a legal entitlement to damages or other relief under a specific legal doctrine. The elements of a cause of action are the “ultimate facts” that the plaintiff must allege in support of the cause of action. It is essential for a complaint to properly assert all required elements because the complaint will serve as the blueprint of all that the plaintiff must prove to prevail in the litigation and will therefore govern the remainder of the litigation.
In a complaint for breach of contract (the cause of action here) a plaintiff must allege the following elements: That the parties had a contract (which if in writing must be attached to the complaint), that the defendant breached the contract, and that the plaintiff suffered damages as a result.
So let’s say that ABC’s complaint alleges that the parties had a contract that XYZ would purchase widgets only from ABC for three years at $10 each; that XYZ has been purchasing widgets from another company and has therefore breached the contract; and that ABC has suffered damages as a result.
You tell your attorney that it is all simply untrue. Yes, you signed the written agreement that says that “XYZ will purchase all of its widgets from ABC at the price of $10 each.” But you never agreed to a three year term. All that was verbally discussed with ABC’s president was that the parties hoped XYZ would be able to buy from ABC for at least three years and that every January 1 the parties would discuss a possible price increase, but that was all.
You tell your attorney that you want him to get the case dismissed. This is where the human reality and legal reality diverge.
At this stage of the litigation, all your attorney can do is make sure that the complaint properly states a cause of action for breach of contract; that is, that the plaintiff has properly asserted the required elements. It does not matter at this stage whether the complaint is completely untrue, or true but negated by other facts not alleged in the complaint. Only if the complaint does not properly assert all required elements, regardless of truth or falsity, can your attorney file a motion to dismiss it. The court may grant the motion, but usually does so with “leave to amend”, giving the plaintiff another opportunity (and usually several more as needed) to properly state a cause of action by filing an amended complaint.
If the complaint property states a cause of action, then you must answer it by admitting or denying each allegation, and asserting any affirmative defenses you may have. In an affirmative defense you basically say “yes, that is true, but…” It must be a recognized legal defense to a cause of action for breach of contract, and you have the burden to prove it.
But what about the statute of frauds argument, that any contract that cannot be performed within one year must be in writing? That is an “affirmative defense”, one that you have the burden of proving and that must be alleged by you in your answer to the complaint.
Once you serve your answer and affirmative defenses, the plaintiff can then “reply” to your affirmative defenses. For example, the plaintiff may assert the affirmative defense of “partial performance” to your statute frauds defense. Partial performance of a contract can void the statute of frauds rule, under the theory that performance under the terms of a verbal contract tends to prove the existence of the verbal contract and therefore minimizes the possibility of fraud.
Once the answer, affirmative defenses, and replies have been served, or the time to serve a reply has expired, the pleadings are “closed”, and the case is “at issue” and can proceed to the next step.
Copyright 2012, The Law Office of Vincent J. Profaci, P.A., serving Altamonte Springs, Kissimmee, Lake Mary, Longwood (including Lake Brantley and Sweetwater), Maitland, Orlando, Sanford, and all of Central Florida in the areas of Wills and Living Trusts, Estate Planning, Asset Protection, Elder Law, Medicaid Planning, Probate, Real Estate, and Business Law and Litigation.