## Facts

- Bryan G. Boles held a stock option under an agreement requiring satisfaction of specified conditions precedent to exercise the option.
- Boles, through counsel, sent a letter purporting to exercise the option, but the letter did not satisfy all contractual conditions precedent.
- North American Philips Corporation, Inc. (NAPC) refused to honor the attempted exercise, asserting noncompliance with the conditions precedent.
- Boles sued for damages and/or specific performance of the stock-option agreement.
- NAPC answered and asserted affirmative defenses, including that Boles failed to fulfill the required conditions precedent.
- Boles filed a reply denying the affirmative defenses but did not plead waiver (or any other avoidance) to neutralize NAPC’s conditions-precedent defense.
- At a bench trial, Boles offered evidence and argument that NAPC waived strict compliance with the conditions precedent; NAPC objected that waiver was outside the issues framed by the pleadings.
- The trial court admitted waiver evidence and entered judgment for Boles, finding either that he complied with the conditions precedent or that they were waived.
- NAPC appealed.

## Issues

1. Whether Fla. R. Civ. P. 1.100(a) requires a plaintiff to plead waiver as an avoidance in a reply before introducing waiver evidence to defeat an affirmative defense.
2. Whether admitting and relying on waiver evidence not pleaded as an avoidance constitutes reversible error when the judgment rests in part on waiver.

## Decision

- The appellate court reversed the judgment for Boles and remanded.
- The court held that waiver is an avoidance of an affirmative defense and must be pleaded in a reply under Fla. R. Civ. P. 1.100(a).
- Because Boles did not plead waiver as an avoidance, the trial court erred by admitting evidence of waiver over NAPC’s objection.
- The error was not harmless because the judgment expressly rested on an alternative finding of waiver.

## Legal Principles

- Under Fla. R. Civ. P. 1.100(a), when an answer asserts an affirmative defense and the opposing party seeks to avoid it, the opposing party must file a reply stating the avoidance.
- A general denial disputes the truth of an affirmative defense; an avoidance introduces new matter (such as waiver or estoppel) that defeats the defense even if its basic allegations are assumed true.
- Evidence supporting an unpleaded avoidance is outside the issues made by the pleadings and is inadmissible when a timely objection is made.
- Admission of unpleaded avoidance evidence is reversible when the trial court’s judgment relies on that evidence.

## Conclusion

The court required strict compliance with Florida pleading rules: waiver used to defeat an affirmative defense must be specifically alleged as an avoidance in a reply, and allowing waiver proof without such pleading warrants reversal when it affects the judgment.


N. Am. Philips Corp. v. Boles, 405 So. 2d 202 (Fla. Dist. Ct. App. 1981)