In CJM Financing, Inc. v. Castillo Grand, LLC (4D08-4204), the Fourth District affirmed the trial court's entry of a summary final judgment in favor of the defendant because the plaintiff failed "to properly plead any legal theory that would have avoided the release." The court described the facts as follows:
CJM filed a breach of contract action for the remaining $50,000. Castillo Grand filed an answer and affirmative defenses; the fourth affirmative defense pleaded the release as a bar to the breach of contract claim. CJM did not file a reply.
The court stated that "On appeal, CJM contends that the release should not be enforced because of a 'mutual mistake'.” However:
By its failure to file a reply, CJM did not properly inject any legal theory involving a mutual mistake into the case. Florida Rule of Civil Procedure 1.100(a) provides that if an answer “contains an affirmative defense and the opposing party seeks to avoid it, the opposing party shall file a reply containing the avoidance.” To say that a “mutual mistake” has occurred is a statement without legal significance. However, a mutual mistake may be a ground for reformation or rescission of a contract. To have the release reformed or rescinded because of a mutual mistake, CJM was required to properly plead such an avoidance in the reply. See Aravena v. Miami-Dade County, 928 So. 2d 1163, 1168 n.1 (Fla. 2006); Barnett Bank of Palm Beach County v. Estate of Read, 493 So. 2d 447, 449 (Fla. 1986); N. Am. Philips Corp. v. Boles, 405 So. 2d 202 (Fla. 4th DCA 1981).