affirmative defense in Alabama

2016In support of this argument, Key cites Ex parte Liberty National Life Insurance Co., 858 So.2d 950, 953 (Ala.2003), in which this Court stated that “[tjypically, if a party fails to plead an affirmative defense, that defense is deemed to have been waived.” (Citing Robinson v. Morse, 352 So.2d 1355, 1356 (Ala.1977), citing in turn 5 Wright & Miller, Federal Practice & Procedure § 1278, pp. 339-52.) However, as noted in the very next sentence of the Ex parte Liberty National opinion, “there are exceptions to this rule.” 858 So.2d at 953 .

2010P.; Robinson v. Morse, 352 So.2d 1355, 1356 (Ala.1977) (‘Where, however, a party fails to plead an affirmative defense, it is generally deemed to have been waived.”); and Weeks v. Herlong, 951 So.2d 670, 678-79 (Ala.2006) (The failure to assert or argue the doctrines of res judica-ta and collateral estoppel resulted in the waiver of those affirmative defenses.).

2011See Bechtel v. Crown Central Petroleum Corp., 451 So.2d 793, 795 (Ala. 1984) ("[W]e hold that the defense of statutory employer immunity is an affirmative defense in Alabama, and is subject to the pleading requirements of Rule 8(c)[, Ala. R.

2010See Bechtel v. Crown Central Petroleum Corp., 451 So.2d 793 (Ala.1984); see also Marlow v. Mid South Tool Co., 535 So.2d 120, 125 (Ala.1988) (“Only if an answer fails to assert an affirmative defense that is argued in a subsequently filed motion for summary judgment is the affirmative defense deemed waived.”).

2024Sovereign immunity is, therefore, not an affirmative defense, but a 'jurisdictional bar.' Ex parte Alabama Dep't of Transp., 985 So. 2d 892, 894 (Ala. 2007).

2024State immunity is not an affirmative defense but a " 'jurisdictional bar, ' " Ex parte Alabama Dep't of Transp., 985 So. 2d 892, 894 (Ala. 2007) (quoting Alabama State Docks Terminal Ry.

2025Petroleum Corp., 495 So. 2d 1052, 1053 (Ala. 1996)). " ' "In determining whether there is a genuine issue of material fact as to each element of an affirmative defense, this Court must review the record in a light most favorable to the plaintiff (the nonmoving party) and must resolve all reasonable doubts against the defendant (the movant)." ' " Id. 22 SC-2024-0589 In its summary judgment in favor of Officer Green, the trial court found that the criminal court's judgment holding that Officer Green was entitled to stand-your-ground immunity and dismissing the criminal charges against Officer Gr

2025Petroleum Corp., 495 So. 2d 1052, 1053 (Ala. 1996)). " ' "In determining whether there is a genuine issue of material fact as to each element of an affirmative defense, this Court must review the record in a light most favorable to the plaintiff (the nonmoving party) and must resolve all reasonable doubts against the defendant (the movant)." ' " Id. 22 SC-2024-0589 In its summary judgment in favor of Officer Green, the trial court found that the criminal court's judgment holding that Officer Green was entitled to stand-your-ground immunity and dismissing the criminal charges against Officer Gr

2007P. In determining whether there is a genuine issue of material fact as to each element of an affirmative defense, this Court must review the record in a light most favorable to the plaintiff (the nonmoving party) and must resolve all reasonable doubts against the defendant (the movant).' " Bechtel v. Crown Central Petroleum Corp., 495 So.2d 1052, 1053 (Ala.1986)." Wal-Mart Stores, Inc. v. Smitherman, 743 So.2d 442, 444-45 (Ala.1999).

2007P. In determining whether there is a genuine issue of material fact as to each element of an affirmative defense, this Court must review the record in a light most favorable to the plaintiff (the nonmoving party) and must resolve all reasonable doubts against the defendant (the movant)."' " Wal-Mart Stores, Inc. v. Smitherman, 743 So.2d 442, 444 (Ala.1999) (quoting Bechtel v. Crown Cent.

2018Corp. v. Wampler , 749 So.2d 409 , 415 (Ala. 1999), and the party asserting the defense bears the burden of proof.

2003There could not be a more unconscionable form of a contract of adhesion than an arbitration agreement forced upon a previously injured worker." In Green Tree Financial Corp. of Alabama v. Wampler , 749 So.2d 409 , 415 (Ala. 1999), this Court stated: "Unconscionability is an affirmative defense.

2026Some decisions have treated it as an outer substantive limit on the duty a landowner owes to invitees, which means an injured invitee must overcome it as a part of his or her case-in-chief.2 Other decisions have held that " '[an invitor's] argument that the condition that caused [an invitee's] fall was open and obvious is an affirmative defense, on which [the invitor] bears the ultimate burden of proof.' " Byrne v. Fisk, 385 So. 3d 973 , 985 (Ala. 2023) (quoting Denmark v. Mercantile Stores Co., 844 So. 2d 1189, 1194 (Ala. 2002)) (emphasis omitted).

2023Moreover, "[an invitor's] argument that the condition that caused [an invitee's] fall was open and obvious is an affirmative defense, on which [the invitor] bears the ultimate burden of proof." Id.

2025See also Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So. 2d 784, 791 (Ala. 2007) (' "Since the facts necessary to establish an affirmative defense generally must be shown by matters outside the complaint, the defense technically cannot be adjudicated on a motion under Rule 12[, Fed.

2017"This Court has defined an affirmative defense as ' ''[a] defendant's assertion of facts and arguments that, if true, will defeat the plaintiff's ... claim, even if all the allegations in the complaint are true.'' ' Lloyd Noland Found., Inc. v. HealthSouth, Inc. , 979 So.2d 784 , 791 (Ala. 2007) (quoting Black's Law Dictionary 451 (8th ed. 2004)). 'An affirmative defense is defined as "new matter which, assuming the complaint to be true, constitutes a defense to it.'' ' Bechtel v. Crown Cent.

2025See Nash v. Vann, 390 So. 2d 301, 303 (Ala. Civ.

2017See Nash v. Vann , 390 So.2d 301 , 303 (Ala. Civ.

2024Co., 858 So. 2d 950, 952 (Ala. 2003), or -- as relevant here -- when a trial court grants a plaintiff's motion to strike a defendant's affirmative defense, see, e.g., Ex parte Gadsden Country Club, 14 So. 3d 830, 832 (Ala. 2009).

2023Standard of Review It is well settled that "[a] trial court's disallowance of a party's affirmative defense[s] is reviewable by a petition for a writ of mandamus." Ex parte Buffalo Rock Co., 941 So. 2d 273, 277 (Ala. 2006). 9 8In those orders, the trial court did not state its reasons as to why it was granting those motions. 9See also Ex parte Teal, 336 So. 3d 165 , 168, 171 & n.3 (Ala. 2021) (granting petition for writ of mandamus) (citing and quoting Ex parte Buffalo Rock Co., 941 So. 3d 273 , 277 (Ala. 2006)); Ex parte Gadsden Country Club, 14 So. 3d 830 (Ala. 2009); and Ex parte Tahsin Ind

2016However, we also noted in that ease that every case must be considered individually based on its “particular facts,” id. at 2 , and in Hoover General Contractors—Homewood, Inc. v. Key, 201 So.3d 550, 553 (Ala.2016), we emphasized that the appropriate inquiry is “whether the party’s actions as a whole have substantially invoked the litigation process.” Accordingly, we must examine each of the factors identified by Levins and determine whether those factors collectively demonstrate that any of the defendants substantially invoked the litigation process. 8 With regard to Levins’s argument that th

2007In concluding that the plaintiffs had failed to establish that Terminix had waived its right to compel arbitration, this Court determined that the plaintiffs were placed on notice of Terminix's arbitration rights when Terminix answered the plaintiffs' complaint and pleaded the arbitration clause as a defense, thereby not evincing "an intent to abandon the right to seek arbitration.'" Jackson, 669 So.2d at 896 (quoting Ex parte Merrill Lynch, 494 So.2d at 3 ). [3] Here, the sellers, like the defendant in Jackson, supra, answered the complaint asserting as an affirmative defense the arbitration

2008See Bell v. Chisom, 421 So.2d 1239 (Ala.1982); and Hickman [v. Dothan City Bd. of Educ.], 421 So.2d 1257 (Ala.1982).

2007See Bell v. Chisom , 421 So.2d 1239 (Ala. 1982).

2025"Next, the standard for granting a motion to dismiss based upon the expiration of the statute of limitations is whether the existence of the affirmative defense appears clearly on the face of the pleading." Braggs v. Jim Skinner Ford, Inc., 396 So. 2d 1055, 1058 (Ala. 1981) (citations omitted).' "Jones v. Alfa Mut.

2025"Next, the standard for granting a motion to dismiss based upon the expiration of the statute of limitations is whether the existence of the affirmative defense appears clearly on the face of the pleading." Braggs v. Jim Skinner Ford, Inc., 396 So. 2d 1055, 1058 (Ala. 1981) (citations omitted).' "Jones v. Alfa Mut.

2005Mental disease or defect does not otherwise constitute a defense." "`Section 13A-3-1(a) is virtually identical to the federal insanity defense statute, 18 U.S.C. § 17 (a) (1988), which "was passed in the wake of John Hinckley's acquittal of charges arising from his actions in shooting President Ronald Reagan and Press Secretary James Brady." United States v. Cameron, 907 F.2d 1051, 1061 (11th Cir.1990). "`The new Alabama and federal insanity statutes represent a significant change from the insanity defenses previously available in criminal trials.' " Ware v. State, 584 So.2d 939, 942 (Ala. Cr.

2003Mental disease or defect does not otherwise constitute a defense.' "Section 13A-3-1(a) is virtually identical to the federal insanity defense statute, 18 U.S.C. § 17 (a) (1988), which `was passed in the wake of John Hinckley's acquittal of charges arising from his actions in shooting President Ronald Reagan and Press Secretary James Brady.' United States v. Cameron, 907 F.2d 1051, 1061 (11th Cir.1990).

2016Cf. Rector v. Better Houses, Inc., 820 So.2d 75, 78-79 (Ala. 2001) (indicating that a defendant could not rely on an affirmative defense that had been briefed by the defendant and the plaintiff at the summary-judgment stage but had not been pleaded in the defendant’s answer).

2013When the mother filed those motions for a summary judgment, she had waived her affirmative defense based on § 6-5-440 by failing to assert it in the July 23, 2010, motion to dismiss or to transfer she had filed in the father’s postdivorce proceeding, see Regions Bank, supra, and an affirmative defense that has been waived cannot be revived by raising and litigating it in a summary-judgment proceeding, see Rector v. Better Houses, Inc., 820 So.2d 75, 79 (Ala.2001) (“[A]n affirmative defense the defendant has waived cannot be revived by the fact that it is raised and litigated in a summary-judgm

2024Moreover, this Court has recognized that "[a] trial court's disallowance of a party's affirmative defense is reviewable by a petition for a writ of mandamus." Ex parte Buffalo Rock Co., 941 So. 2d 273, 277 (Ala. 2006) (citing Ex parte Neely Truck Line, Inc., 588 So. 2d 484 (Ala. Civ.

2024Mandamus Relief for the Disallowance of Affirmative Defenses As mentioned previously, this Court has acknowledged that "[a] trial court's disallowance of a party's affirmative defense is reviewable by a petition for a writ of mandamus." Ex parte Buffalo Rock Co., 941 So. 2d at 277 .

2010Piersol v. ITT Phillips Drill Div., Inc., 445 So.2d 559, 561 (Ala.1984) (stating that “where no actual prejudice to the opposing party is shown, and no undue delay is demonstrated, a court may permit the amendment of the answer to include a defense of the running of the period of the statute of limitations, though Rule 8(c) of the Alabama Rules of Civil Procedure requires such a defense to be pleaded as an affirmative defense”).’ ” Ziade v. Koch, 952 So.2d 1072, 1075 (Ala.2006) (quoting Ex parte Liberty Nat’l Life Ins.

2006Piersol v. ITT Phillips Drill Div., Inc. , 445 So.2d 559 , 561 (Ala. 1984) (stating that `where no actual prejudice to the opposing party is shown, and no undue delay is demonstrated, a court may permit the amendment of the answer to include a defense of the running of the period of the statute of limitations, though Rule 8(c) of the Alabama Rules of Civil Procedure requires such a defense to be pleaded as an affirmative defense').

2025If satisfactorily proven at trial, that fact would justify a determination that the foreclosure sale was invalid on the ground that the price realized at the foreclosure sale was so low in relation to the market value of the property as to shock the conscience, which would constitute an affirmative defense to Deutsche Bank's ejectment claim." 67 SC-2024-0274; SC-2024-0275 57 So. 3d at 149 .

2025App. 2012)("In Berry, a majority of this court reversed a summary judgment 72 SC-2024-0274; SC-2024-0275 in favor of the mortgagee, holding that there was a genuine issue of material fact as to whether 'the foreclosure sale was invalid on the ground that the price realized at the foreclosure sale was so low in relation to the market value of the property as to shock the conscience, which would constitute an affirmative defense to [the mortgagee's] ejectment claim.' 57 So. 3d at 149 .

2007"Only `"[w]hen there is no genuine issue of material fact as to any element of an affirmative defense, . . . and it is shown that the defendant is entitled to a judgment as a matter of law"' is a summary judgment proper." Denmark v. Mercantile Stores Co., 844 So.2d 1189, 1195 (Ala.2002) (quoting Wal-Mart Stores, Inc. v. Smitherman, 743 So.2d 442, 445 (Ala.1999), quoting in turn Bechtel v. Crown Central Petroleum Corp., 495 So.2d 1052, 1053 (Ala.1986)). "`The movant's proof must be such that he would be entitled to a directed verdict if this evidence was not controverted at trial."'" Denmark, 8

2006If the movant has the burden of proof at trial, the movant must support his motion with credible evidence.'" (Quoting Ex parte General Motors Corp. , 769 So.2d 903 , 909 (Ala. 1999).) Clearly, Confederate Money, Southworth, and McGill would have had the burden of proving this affirmative defense at trial, and they thus had it on the motions for a summary judgment.

2008See Phillips v. Thomas, 555 So.2d 81, 86 (Ala.1989) ("This Court has held that qualified immunity from suit for negligence arising out of a discretionary act is an affirmative defense which must be raised and proved by the defendant.

1999Our Supreme Court noted in Phillips v. Thomas, 555 So.2d 81 (Ala. 1989), that "qualified immunity from suit for negligence arising out of a discretionary act is an affirmative defense which must be raised and proved by the defendant" (emphasis added), and that "a plaintiff's complaint against a state official or employee, seeking damages for personal injury arising out of the negligent performance of the defendant's official duties, does state a valid cause of action, and, as such, will survive the defendant's motions to dismiss and for judgment on the pleadings, even if the defendant raises t

2024Moreover, this Court has recognized that "[a] trial court's disallowance of a party's affirmative defense is reviewable by a petition for a writ of mandamus." Ex parte Buffalo Rock Co., 941 So. 2d 273, 277 (Ala. 2006) (citing Ex parte Neely Truck Line, Inc., 588 So. 2d 484 (Ala. Civ.

2002Accordingly, U.S. Gypsum is not restricted to raising these issues on appeal." 533 So.2d at 561 n. 3 (citation omitted); see also Ex parte Neely Truck Line, Inc., 588 So.2d 484, 486 (Ala.Civ.App.1991) (applying an abuse-of-discretion standard to a petition for a writ mandamus challenging a trial court's refusal to allow a defendant to plead an affirmative defense).

2017App. 2002), citing in turn Ex parte Neese, 819 So.2d 584 (Ala. 2001), and Furgerson v. Dresser Indus., Inc., 438 So.2d 732, 734 (Ala. 1983)).

2009Horne v. Gregerson’s Foods, Inc., 849 So.2d 173, 176 (Ala.Civ.App.2002) (citing Ex parte Neese, 819 So.2d 584 (Ala.2001), and Furgerson v. Dresser Indus., Inc., 438 So.2d 732, 734 (Ala.1983)).

2017App.' 1985)(holding that the unclean-hands doctrine is an affirmative defense), “The proponent of an affirmative defense ‘bears the burden of proving the essential elements of his affirmative defenses.’” Ex parte Ramsay, 829 So.2d 146, 152 (Ala. 2002) (quoting Ex parte Blue Cross & Blue Shield of Alabama, 773 So.2d 475, 478 (Ala. 2000), and citing Ely v. Pace, 139 Ala. 293, 298 , 35 So. 877 , 878 (1904)).

2009As to the burden of proof with regard to an affirmative defense, our supreme court has stated that “[t]he proponent of an affirmative defense ‘bears the burden of proving the essential elements of his affirmative defenses.’ ” Ex parte Ramsay, 829 So.2d 146, 152 (Ala.2002) (quoting Ex parte Blue Cross & Blue Shield of Alabama, 773 So.2d 475, 478 (Ala.2000)).

1998The fourth element of a claim of intentional interference with business relations (see Gross, supra), the absence of justification, is really an affirmative defense.

1989HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur. 1 Keller's claims against defendant John Harvard were dismissed at Keller's request; therefore, Harvard is not a party to this appeal. 2 "Justification is an affirmative defense to be pleaded and proved by the defendant." Gross v. Lowder Realty Better Homes Gardens , 494 So.2d 590 , n. 3 at 597 (Ala. 1986).

2025See Cole, 383 So. 3d at 654 ("[T]he relative- hardship defense is an affirmative one, and, thus, the burden is on the party asserting the defense."); and Sims v. Lewis, 374 So. 2d 298, 301 (Ala. 1979)(explaining that the doctrine of laches is an affirmative defense).

2015Although later cases have stated the rule, in shorthand, as “an affirmative defense that has not been pleaded may be revived if the defense appears on the face of the complaint,” Hayes v. Payne, 523 So.2d 333, 334 (Ala.1987), the authority cited in Hayes as support for such a rule, Sims v. Lewis, 374 So.2d 298, 302 (Ala.1979), which is also cited in Wallace, swpra, clearly provides that, although an affirmative defense “should be presented in a pleading to a preceding pleading, [it]' may be properly raised via the [Rule] 12(b)(6)[, Ala. R.

2015Co., 903 So.2d 769, 779 (Ala.2004), as to which ATI- would bear the burden of proof, see Mobile Liners, Inc. v. McConnell, 220 Ala. 562, 566 , 126 So. 626, 629 (1930) ("[T]he burden is upon the employer to bring itself within the terms of [an] exception or proviso [to the coverage of the Act].”), Therefore, because ATI did not plead the exemption for common carriers with respect to owner-operators contained in § 25-5-1(4) as an affirmative defense, we cannot consider that exemption as a ground for affir-mance of the trial court's judgment.

2011Co., 903 So.2d 769 (Ala.2004) (holding that insurer had waived the affirmative defense that policy was void because of insured’s misrepresentations in policy application); Palmer v. Resolution Trust Corp., 613 So.2d 373, 374 (Ala.1993) (raising the affirmative defense that note was void under the Alabama Mini-Code, § 15-19-1 et seq., Ala.Code 1975); Lowe v. Rogers, 72 So.3d 1234 (Ala.Civ.App.2011) (holding that party had waived the affirmative defense of res judi-cata to assert that previous judgment was void); Nichols v. Pate, 54 So.3d 398 (Ala.Civ.App.2010) (holding that seller had waived th