G&G In-Between Bridge Club Corp. v. Palm Plaza Associates Ltd.

Second DCA

G&G In-Between Bridge Club Corp. v. Palm Plaza Associates Ltd.(J. Rothstein-Youakim; 2DCA; 2/8/23).

This is not a personal injury appeal, but the case contains important language about the burden of production on affirmative defenses.

This was a dispute between a shopping center landlord and the tenant, a bridge club (a club existing around the card game, bridge) located in the center. After years of occupancy, the landlord tried to change the parking rules in a way that would destroy the bridge club’s business because it takes longer to play a game than the parking rules would allow someone to be parked. Both parties sought declaratory judgment about the authority to change the parking rules under the lease. The trial court granted summary judgment in favor of the landlord on its right to set parking rules. The DCA reversed, finding that whether the change was “reasonable” in light of the facts of the case presented a fact issue for a jury, not an issue of law for the judge to resolve.

While the bridge club won the bulk of the appeal, the DCA did devote discussion to affirming summary judgment against the club on some of its affirmative defenses, and that is the portion of the appeal that could apply to personal injury or other civil cases. The DCA opined that the bridge club misapprehended how affirmative defenses work in the summary judgment context.

The bridge club argued that it was not obligated to put forth any argument or evidence on its affirmative defenses (estoppel, waiver, failure of conditions precedent, public policy, unlawful restraint of trade, laches, and tortious interference) because the landlord failed to disprove the affirmative defenses or demonstrate their legal insufficiency.

Under the new summary judgment standard that mirrors the federal rule, a summary judgment movant need not presumptively tackle all of the nonmovant’s affirmative defenses. Where a plaintiff moves for summary judgment on its claims, the defendant bears the initial burden of showing that an affirmative defense is applicable. Only upon such a showing does the burden shift back to the plaintiff regarding that affirmative defense. This is because the defendant bears the burden of proof on his or her affirmative defenses at trial. The bridge club put forth no evidence or argument, so it did not carry this initial burden. Reversed in part, affirmed in part, and remanded.


Terry P. Roberts
Director of Appellate Practice Fischer Redavid PLLC
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