Trial court errs when it dismisses a case on the basis of an affirmative defense which was not asserted by defendant.

In Ex parte Beck, No. 1060593 (Ala. Oct. 5, 2007), the Alabama Supreme Court adopted the reasoning  of the Court of Civil Appeals’ decision of Waite v. Waite, 959 So. 2d 610 (Ala. Civ. App. 2006) and held that  "a trial court errs when it dismisses a case on the basis of an affirmative defense  not asserted by the defendant."  Thus, the Supreme Court reversed dismissal based on res judicata and collateral estoppel, even though the Court found that the claim otherwise would be barred, because the defendants failed to raise  the affirmative defenses in their answer.

In Ex parte Beck, the plaintiff sued five defendants alleging unlawful arrest.  However, claims raised on the same nucleus of facts had already be raised in federal court, and the defendants were granted summary judgment.  In the state court suit, three of the defendants raised the affiirmative defenses of re judicata and collateral estoppel in their answers, but two did not.  The trial court dismissed the claims against all defendants on the basis of res judicata and collateral estoppel.

The Court of Civil Appeals affirmed, and the Plaintiff sought certiorari review.  The Supreme Court affirmed for the defendants who had raised the affirmative defenses of res judicata and collateral estoppel in their answers, but reversed for the defendants who did not.

The Supreme Court adopted the reasoning expressed by the Alabama Court of Civil Appeals in Waite v. Waite, 959 So. 2d 610 (Ala. Civ. App. 2006) that "affirmative defenses may be waived if they are not pleaded," and that "althought a trial court may dismiss an action on its own motion on a jurisdictional basis, affirmative defenses such as the statute of limitations or the doctrine of res judicata are not jurisdictional bases upon which a court may base a sua sponte dismissal."  Thus, because two of the defendants had not raised the affirmative defenses of res judicata and collateral estoppel in their answers, the trial court could not dismiss the case against them on that basis.

All may not be lost for the two unlucky defendants, however.  Justice Stuart wrote a special concurrence noting that one defendant can move to amend his answer under Ala. R. Civ. P. 15(a) to plead the affirmative defense.  Further, the other defendant, who had filed a motion to dismiss (but did not raise res judicata), can plead res judicata in his answer.