In Brannon v. BankTrust, Inc., Nos. 1060637, the Alabama Supreme Court discussed at length what constitutes an affirmative defense under Rule 8 of the Alabama Rules of Civil Procedure.
In Brannon, the defendant bank argued that Article 4A of Alabama’s version of the UCC supplanted the breach of contract claim asserted against it. The trial court agreed, granting it judgment as a matter of law on that basis.
No mention of Article 4A, however, was made in the defendant’s answer; that provision was not raised at all until the trial court inquired as to its effect four days before trial. The plaintiff argued that 4A constituted an affirmative defense and that the bank had waived it by failing to include it in an answer.
In disagreeing, the court provided a good explanation as to the legal theories which constitute affirmative defenses within the meaning of Rule 8(c). An affirmative defense is denied as a "matter asserted by [the] defendant which, assuming the complaint to be true, constitutes a defense to it." For a position to constitute an affirmative defense assumed that the claim against which it is asserted is, in the absence of the assertion of that defense, a cognizable claim under Alabama law….When the state law, itself, changes, however, there can be no argument that the law as changed is somehow an "affirmative defense" to the law as it existed before the change. The law as changed is simply the new law. Thus, if a common-law claim is displaced by a set of statutory rights provided by the legislature, then, by definition, the common-law claim no longer exists in state law, having given way to the new statutory causes of action. By definition, pleading a nonexistent claim constitutes a failure to state a claim upon which relief can be granted. (emphasis in original)
As the UCC had displaced the common law breach of contract claim under the facts of this case, the claim was non-existent and could not be a cognizable claim under Alabama law, regardless of whether the bank raised it or not.