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In another appellate holding announced today by the Fourth District Court of Appeals in Florida, the Court held that a defendant must raise the issue of standing in Florida in his answer and cannot raise standing for the first time either in a motion to vacate the judgment or for the first time on appeal.  The case is Phadael v. Deutsche Bank:


Phadael v. Deutsche Bank Trust Company Americas, No. 4D11-905 (Fla. 4th DCA, Feb 8, 2012)


Mr. Roper has explained that standing is a constitutional imperative and a restraint on the authority of courts in some jurisdictions (U.S., Connecticut, Texas), while it is a prudential restraint in other places (e.g. Maine).  Elsewhere, in places like New York, courts have held that standing is waived when not raised in the first defensive pleading.


Where standing is constitutional restraint on jurisdiction, courts have often held that standing cannot be waived, cannot be obtained even by the agreement of the parties and that standing can be raised for the first time on appeal.


This decision suggests that standing can be waived in Florida and shows that standing cannot be raised for the first time on appeal there.


In another noteworthy aspect of the decision, the COA describes standing as an affirmative defense.  This seems almost certain to be erroneous, even in Florida.  Standing is almost certainly an essential element of the plaintiff's cause of action for which the plaintiff bears the burden of proof.  The defendant does not have a burden of proving that a plaintiff lacks standing.


In another thread, Mr. Roper cautioned us against describing conditions precedent as an affirmative defense.  It is very important that defendants get the vocabulary correct.  Describing standing as an affirmative defense in an answer, opposition to summary judgment or other pleading invites this sort of erroneous decision by a court of appeals!

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I totally understand and agree that standing is a "thresh hold issue" and is NOT an affirmative defense just like Conditions Precedent.  

The problem is that some jurisdictions like FL (and mine) the case law calls for a defendant to raise it as an affirmative defense even though it affects the courts subject matter jurisdiction.

For example:

Krivanek v. TAKE BACK TAMPA POLITICAL COM., 625 So. 2d 840 - Fla: Supreme Court 1993

With regard to the first issue, we find that Krivanek has waived the right to raise the issue of standing because this issue has been raised for the first time in her petition to this Court. The issue of standing should have been raised as an affirmative defense before the trial court, and Krivanek's failure to do so constitutes a waiver of that defense, precluding her from raising that issue nowSee, e.g., Cowart v. City of West Palm Beach, 255 So.2d 673 (Fla. 1971).

Do you make the argument that the case law is WRONG and it is not an affirmative defense or do you just go with the flow and list it as an affirmative defense?

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