Third District Court of Appeal

State of Florida 

Opinion filed June 19, 2024.

Not final until disposition of timely filed motion for rehearing.

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No. 3D22-1992

Lower Tribunal No. 17-14568

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951 Harbor Drive, LLC, etc.,

Appellant,

vs.

SD Construction, LLC, etc.,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Maria de 

Jesus Santovenia, Judge.

Sodhi Spoont PLLC, and Eric M. Sodhi and Nathaniel M. Edenfield, for 

appellant.

Robert Joseph Alwine, P.A., and Robert J. Alwine, for appellee.

Before LOGUE, C.J., and EMAS and MILLER, JJ. 

EMAS, J.
2

INTRODUCTION

951 Harbor Drive, LLC, the plaintiff/homeowner, appeals the trial 

court’s final summary judgment entered in favor of SD Construction, LLC,

the defendant/general contractor, based on the rule against claim-splitting.1

Upon completion of their new home, 951 Harbor Drive (the 

homeowner) discovered water damage to the home’s interior which it 

contends was caused by SD Construction’s negligent construction of the 

roof. This discovery led to the filing of two lawsuits. In the first lawsuit (a 

subrogation action), 951 Harbor Drive’s insurance company (Privilege 

Underwriters Reciprocal Exchange or PURE) sued SD Construction to 

recover monies it paid to 951 Harbor Drive, under the insurance policy, for 

damages caused to the home’s interior. In the second lawsuit—which was 

filed while the first lawsuit was still pending—951 Harbor Drive sued SD 

Construction for damages “to repair and/or replace” the negligently 

constructed roof system, for which damages were not covered by the PURE 

insurance policy. 

1 “The rule against splitting causes of action requires that all damages 

sustained or accruing to one as a result of a single wrongful act must be 

claimed and recovered in one action or not at all.” Dade Cnty. v. Matheson, 

605 So. 2d 469, 472 (Fla. 3d DCA 1992) (citations omitted).
3

The first lawsuit was settled, and a release executed by PURE and SD 

Construction. The settlement expressly excluded the still-pending second 

lawsuit from the scope of the release.

Over three years after settling the first lawsuit, SD Construction moved 

for summary judgment in the second case, contending for the first time that 

951 Harbor Drive violated the rule against claim-splitting, and that 951 

Harbor Drive should have brought its cause of action against SD 

Construction in a single lawsuit (i.e., it should have intervened in PURE’s

subrogation action against SD Construction). 

In response, 951 Harbor Drive argued that SD Construction waived its 

right to invoke the rule against claim-splitting, having failed to plead it as an 

affirmative defense. The trial court granted summary judgment in favor of SD 

Construction, finding that 951 Harbor Drive violated the rule against claimsplitting, and that SD Construction’s affirmative defense—entitled

“Settlement and Release”—adequately placed 951 Harbor Drive on notice 

that the cause of action asserted in its lawsuit against SD Construction was 

barred by the rule prohibiting the splitting of claims. 

We agree with 951 Harbor Drive and hold that SD Construction waived 

its right to invoke the rule against claim-splitting by failing to plead it as an 
4

affirmative defense. We therefore reverse and remand for further 

proceedings consistent with this opinion.

2

FACTS AND PROCEDURAL HISTORY

951 Harbor Drive is the owner of the home located at 951 Harbor Drive 

in Key Biscayne. In 2010, it retained SD Construction as a general contractor 

to construct a new home on the property. 

Once construction was completed and the home occupied, the 

homeowners observed water intrusion causing damage to the home’s 

interior. 951 Harbor Drive filed a claim with its insurance company, PURE, 

and PURE, in turn, commissioned an engineering company to inspect the 

home and determine the cause of the water damage. Its report documented 

water intrusion in various areas of the home, and indicated the cause was a 

faulty roof waterproofing system. PURE ultimately paid the claim in the 

amount of $226,789.12, however the payment only covered the interior 

damage to the home, not repair or replacement of the faulty roof system. 

This is so because the repair or replacement of the roof system was not 

covered by the PURE insurance policy. 

2 Because this issue is dispositive, we do not reach the remaining claims 

raised by 951 Harbor Drive on appeal, including whether SD Construction 

consented to both claims being brought when it executed its settlement with 

PURE; and whether the trial court erred in refusing to apply the Rosenthal

exception in this case. Rosenthal v. Scott, 150 So. 2d 433 (Fla. 1961).
5

As part of the settlement of this insurance claim, PURE and its insured, 

951 Harbor Drive, entered into a subrogation agreement and policyholder’s 

release clarifying, in pertinent part, that the agreement did not relate to any 

purported construction defects which caused the water intrusion, nor did it 

waive any potential claims 951 Harbor Drive may have against third parties

for such defects.

3

The First Lawsuit: PURE v. SD Construction

In March of 2017, PURE sued SD Construction, pursuant to its 

subrogation rights, to recoup its insurance payout of $226,789.12 to its 

3 The subrogation agreement between PURE and 951 Harbor Drive

provided:

Neither the Claim, the Settlement Sum or the Release are 

related to the construction defects which caused the water 

intrusion; but rather, only the damage to the Residence

resulting from the water intrusion caused by the Loss and paid 

by Insurer in the Settlement Sum. 

[T]his Assignment and Subrogation Receipt does not waive, 

cover, address, affect or alter any claims that Owners may have 

against any third parties for any loss or damages that were not 

covered by the Claim and Settlement Sum, including, but not 

limited to, negligence, breach of contract, breach of warranty, 

and construction defect claims against contractors, design 

professionals, materialmen or other persons, to recover costs 

associated with repairing and replacing the faulty design, 

construction, and materials that caused the water intrusion. 

(Emphasis added).
6

insured (951 Harbor Drive). Two years later (February 12, 2019), PURE and 

SD Construction entered into a settlement agreement (the Subrogation 

Settlement) and, pursuant to that Subrogation Settlement, PURE voluntarily 

dismissed with prejudice its lawsuit against SD Construction. At the time of 

the Subrogation Settlement, the instant lawsuit (951 Harbor Drive v. SD 

Construction, Case No.: 2017-014568-CA-01) was already filed and 

pending. 

The Subrogation Settlement between PURE and SD Construction 

provided in pertinent part that it “does not cover, release, discharge, 

waive, settle or in any way affect and/or alter any of the pending and/or 

future causes of action, . . . including but not limited to the lawsuit 

currently pending by [951 Harbor Drive] against [SD Construction] and 

others in Miami-Dade County Circuit Court (Case No.: 2017-014568-CA01).” (emphasis added). The Subrogation Settlement similarly preserved SD 

Construction’s defenses “in any pending and/or future causes of action . . . 

including but not limited to the lawsuit currently pending by [951 Harbor 

Drive] and others in Miami-Dade County Circuit Court (Case No.: 2017-

014568-CA-01).”

The Second Lawsuit: 951 Harbor Drive v. SD Construction
7

In June 2017, three months after PURE filed its subrogation lawsuit, 

951 Harbor Drive filed its own lawsuit against SD Construction, not for the 

resulting property damage caused by the water intrusion, but instead for 

damages to cover the cost “to repair and/or replace” the allegedly “deficient

roof system, post and cable rail system, and to restore the integrity of the 

waterproofing system of the roof.” 951 Harbor Drive asserts it filed this suit 

and sought these damages because they were not covered by the PURE 

homeowner’s policy, under which 951 Harbor Drive was paid for the damage 

caused by water intrusion to the interior of the home and furnishings. 

In April 2019, SD Construction filed its operative Answer and 

Affirmative Defenses, which included its twenty-sixth affirmative Defense, 

entitled “Settlement and Release.” It stated, in essence, that because 951 

Harbor Drive’s claims were assigned, settled and released, they were 

barred; the defense further noted the case number in that first lawsuit. 

In March of 2022—three years after filing its answer and affirmative 

defenses, and approximately seven months before the scheduled October 

trial date—SD Construction moved for summary judgment, contending 951 

Harbor Drive’s lawsuit was barred by the rule against splitting claims. 951 

Harbor Drive responded in opposition, arguing inter alia that the rule against 

claim-splitting was not raised as an affirmative defense. 
8

Following a hearing, the trial court granted SD Construction’s motion 

for summary judgment. It found, based on the undisputed facts, that 951 

Harbor Drive’s lawsuit was barred by the rule against claim-splitting, and that 

SD Construction sufficiently pled this affirmative defense.

The trial court denied 951 Harbor Drive’s motion for rehearing, and this 

appeal followed.

STANDARD OF REVIEW

This Court reviews de novo a trial court’s granting of summary 

judgment. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 

126, 130 (Fla. 2000). The determination of the sufficiency of a pleading is 

also a matter of law, which we review de novo. See D’Agostino v. CCP 

Ponce, LLC, 274 So. 3d 1141, 1147 n.9 (Fla. 3d DCA 2019); Ladner v. 

AmSouth Bank, 32 So. 3d 99, 103 (Fla. 2d DCA 2009) (“The determination 

of the sufficiency of a pleading is a matter of law and subject to a de novo 

review.”).

ANALYSIS AND DISCUSSION 

The claim-splitting doctrine “ensures that a plaintiff may not ‘split up his 

demand and prosecute it by piecemeal, or present only a portion of the 

grounds upon which relief is sought, and leave the rest to be presented in a 

second suit, if the first fails.’” Vanover v. NCO Fin. Servs., Inc., 857 F.3d 833, 
9

841 (11th Cir. 2017) (citation omitted). Courts characterize claim-splitting as 

an “aspect” of res judicata and claim preclusion, protecting parties from 

duplicative litigation and promoting judicial economy. Id. Despite these 

similarities, claim-splitting is “more concerned” with a trial court’s 

“comprehensive management of its docket, whereas res judicata focuses on 

protecting the finality of judgments.” Id. (citation omitted). However, we need 

not reach the merits of whether 951 Harbor Drive violated the rule against 

claim-splitting, because we conclude that SD Construction failed to raise this 

affirmative defense in its answer to the complaint. 

We begin with the rather unremarkable proposition that “a summary 

final judgment cannot be based upon a defense raised in the summary 

judgment motion that had not been previously asserted in the answer.” 

LaBella v. LaBella, 324 So. 3d 37, 39 (Fla. 5th DCA 2021) (citing Danford v. 

City of Rockledge, 387 So. 2d 968, 969-70 (Fla. 5th DCA 1980) 

(“Procedurally, we agree with the appellant that an affirmative defense of res 

judicata or release should not be raised by a motion for summary judgment 

prior to raising such defense in an answer.”)); see also Lobrillo v. Brokken, 

837 So. 2d 1059, 1061 (Fla. 3d DCA 2002) (“Because [defendants] did not 

plead the affirmative defense on their behalf, the trial court erred by 

considering the defense and by granting final summary judgment on that 
10

ground.”). On motion for summary judgment, the trial court may consider only 

matters raised in the pleadings. Wilson v. Stone, 172 So. 3d 559, 560 (Fla. 

3d DCA 2015). In determining whether a party sufficiently raised a defense 

to a complaint, courts look to the pleading’s substance, regardless of whether 

it is mislabeled. See Est. of Willis v. Gaffney, 677 So. 2d 949, 951 (Fla. 2d 

DCA 1996) (“[A] pleading will be considered what it is in substance, even 

though mislabeled.” (quoting Sodikoff v. Allen Parker Co., 202 So. 2d 4, 6 

(Fla. 3d DCA 1967))). 

Florida Rule of Civil Procedure 1.140(b) provides the requirements for 

a party to plead an affirmative defense to the complaint, and provides in 

pertinent part: 

Every defense in law or fact to a claim for relief in a pleading 

must be asserted in the responsive pleading, if one is 

required, but the following defenses may be made by motion at 

the option of the pleader: (1) lack of jurisdiction over the subject 

matter, (2) lack of jurisdiction over the person, (3) improper 

venue, (4) insufficiency of process, (5) insufficiency of service of 

process, (6) failure to state a cause of action, and (7) failure to 

join indispensable parties. The grounds on which any of the 

enumerated defenses are based and the substantial matters 

of law intended to be argued must be stated specifically and 

with particularity in the responsive pleading or motion. Any 

ground not stated must be deemed to be waived except any 

ground showing that the court lacks jurisdiction of the subject 

matter may be made at any time. No defense or objection is 

waived by being joined with other defenses or objections in a 

responsive pleading or motion.

(Emphasis added).
11

A core purpose for the rule requiring a party to plead an affirmative 

defense “is to place the opposing parties on notice that a particular defense 

will be pursued so as to prevent surprise or unfair prejudice.” Saks v. Franklin 

Covey Co., 316 F.3d 337, 350 (2d Cir. 2003) (addressing parallel Federal 

Rule of Civil Procedure 8(c)). As this court has observed: “A properly pled 

affirmative defense includes ultimate facts sufficient to provide notice of the 

proof the defendant intends to rely upon to defeat the plaintiff's claim.” S.

Fla. Coastal Elec., Inc. v. Treasures on Bay II Condo Ass’n, 89 So. 3d 264, 

267 (Fla. 3d DCA 2012) (citing Zito v. Wash. Fed. Savs. and Loan Ass’n, 318 

So. 2d 175, 176 (Fla. 3d DCA 1975)); see also Stone v. Stone, 97 So. 2d 

352, 354 (Fla. 3d DCA 1957) (reversing dismissal on grounds of res 

judicata/estoppel by judgment, where such was not pled as an affirmative 

defense, but instead raised in a motion to dismiss; noting that permitting such 

a procedure would deny the opposing party the benefit of notice and 

opportunity to reply, “if not in effect denying him due process”). 

Rule 1.140(h) provides that a party waives all defenses and objections 

that the party fails to present in a responsive pleading (or, though 

inapplicable here, by motion filed prior to a responsive pleading). See also

Scott v. Rosenthal, 118 So. 2d 555, 558 (Fla. 3d DCA 1960) (“The rule that 

a cause of action may not be split into two or more causes of action is for the 
12

benefit of the party defendant and he may waive his right to insist on the rule 

forbidding splitting of a single cause of action.”). In the instant case, it is to 

the answer and affirmative defenses we look in determining whether the 

affirmative defense of claim-splitting was adequately pled by SD 

Construction.

In its twenty-sixth affirmative defense, entitled “Settlement and 

Release,” SD Construction pled the following: 

SD affirmatively states that Plaintiff’s claims, in whole or in part, 

were assigned, and subsequently settled and released, and 

therefore barred. This includes, but is not limited to, any 

releases entered into between SD and PURE . . . and more 

specifically those claims that were subject of a lawsuit in the 

11th Judicial Circuit of Florida, in and for Miami-Dade County, 

Case No. 2017-6935-CA-01 [the first lawsuit].

(Emphasis added). 

As can readily be seen, nowhere does SD Construction use the term

claim-splitting, nor allege that 951 Harbor Drive is prohibited from pursuing 

this lawsuit because it failed to join it with the subrogation lawsuit previously 

filed by PURE. Instead, SD Construction’s affirmative defense alleges that 

the claim raised in the present lawsuit was already “assigned, and 

subsequently settled and released” in the subrogation lawsuit filed by PURE 
13

against SD Construction, and the action in the second lawsuit is “therefore 

barred.”4 

It’s true of course that in our analysis we look not to the label or title of 

an affirmative defense (“Settlement and Release”) but to the substance of 

the affirmative defense, to avoid elevating form over substance. Patterson 

v. Weathers, 476 So. 2d 1294, 1296 (Fla. 5th DCA 1985). This principle does 

not alter the result, however, because the title of the affirmative defense and 

its substance are entirely consistent. SD Construction has pled a prototypical 

affirmative defense of settlement and release, and no opposing party could 

reasonably have construed this defense as placing it on notice that SD 

Construction was raising the rule against claim-splitting. Indeed, the manner 

in which SD Construction chose to plead this affirmative defense—

contending that the language of the settlement and release somehow barred 

951 Harbor Drive’s lawsuit (Circuit Case No. 2017-6935-CA-01)—would 

necessarily cause 951 Harbor Drive to review the referenced release 

document which expressly excludes 951 Harbor Drive’s lawsuit from the 

4 While SD Construction correctly notes that “[t]he rule against splitting 

causes of action is ‘an aspect of the doctrine of res judicata,’” see Tyson v. 

Viacom, Inc., 890 So. 2d 1205, 1209 (Fla. 4th DCA 2005) (citation omitted),

but it is nevertheless unavailing in the instant case, given that SD 

Construction did not include res judicata, collateral estoppel, or claimsplitting among its twenty-six asserted affirmative defenses. 
14

scope of the settlement and release entered into by PURE and SD 

Construction. As noted above, the settlement and release executed by 

PURE and SD Construction provided in relevant part that it did not cover or 

affect any pending causes of action, including 951 Harbor Drive’s lawsuit 

against SD Construction:

[T]his Release and Settlement Agreement does not cover, 

release, discharge, waive, settle or in any way affect and/or 

alter any of the pending and/or future causes of action, legal 

actions, claims, interests, rights, uninsured claims, and/or any 

other claims that [PURE’s] Insured ever had, now has, may have, 

or hereafter can, shall or may have against any parties, 

including but not limited to the lawsuit currently pending by 

[951 Harbor Drive] against [SD Construction] and others in 

Miami-Dade County Circuit Court (Case No.: 2017-014568-

CA-01).

(Emphasis added).

In other words, after reviewing SD Construction’s twenty-sixth 

affirmative defense in tandem with the above release and settlement 

agreement, 951 Harbor Drive would have had no reason to reply to the 

affirmative defense, take any further action in contemplation of that 

affirmative defense, or believe that SD Construction had invoked the rule 

against claim-splitting.

Throughout the litigation, SD Construction acted inconsistently with 

any purported pursuit of a claim-splitting defense. For example, SD 

Construction did not raise the claim-splitting rule until its motion for summary 
15

judgment filed in March 2022, three years after filing its affirmative defenses,

and only two months before the trial court issued its order setting the matter 

for trial.5 During those three years, the parties were referred to mediation 

from which no agreement was reached, SD’s counsel withdrew and a new 

attorney was hired, and the parties continued preparing for trial, e.g., filing 

proposed jury instructions and exhibit lists. Indeed, the motion for summary 

judgment was filed outside the deadlines imposed by the trial court’s

February 2022, Case Management Order.

6

5 951 Harbor Drive rightly contends it was prejudiced by the fact SD 

Construction failed to adequately plead this affirmative defense, raising it for 

the first time three years later in its motion for summary judgment. Had SD 

Construction timely and adequately placed 951 Harbor Drive on notice that 

it intended to take the position that 951 Harbor Drive’s lawsuit would be 

barred by PURE’s earlier lawsuit by operation of the rule prohibiting splitting 

causes of action, 951 Harbor Drive could have addressed the issue promptly 

by, e.g., attempting to intervene into the PURE matter, moving to transfer 

and consolidate the PURE case with the instant lawsuit, or requesting that 

PURE participate in the instant lawsuit against SD Construction to preserve 

its subrogation rights. But the manner in which SD Construction pled the 

affirmative defense reasonably caused 951 Harbor Drive to take no action, 

which ultimately proved prejudicial when SD Construction moved three years 

later for summary judgment based upon an unpled affirmative defense. 

And of course, given our decision, SD Construction may not, on remand, 

seek to amend its affirmative defenses to assert the rule against claimsplitting. See Don Suntan Corp. v. Tanning Rsch. Labs, 505 So. 2d 35, 36

(Fla. 5th DCA 1987).

6 Again, by the time SD Construction moved for summary judgment and, 

certainly by the time the trial court entered its order, the parties were 

prepared to proceed to trial: On March 23, SD Construction moved for 

summary judgment based on the rule against claim-splitting; on September 
16

To further illustrate the lack of notice provided by the twenty-sixth 

affirmative defense, we need only compare the language in the defense to 

the language in the summary judgment motion. The opening paragraph of 

SD Construction’s motion for summary judgment asserts: 

Plaintiff’s lawsuit is barred by Florida law prohibiting claimssplitting. A plaintiff may not file multiple complaints or split its 

damages from a single event in multiple lawsuits. Here, Plaintiff’s 

insurer previously filed a subrogation action on behalf of Plaintiff 

against SD Construction for property damages to the same home 

caused by the same alleged water intrusion as Plaintiff seeks in 

this action.

Unlike its twenty-sixth affirmative defense, SD Construction’s motion 

for summary judgment clearly and unequivocally invoked the rule against 

claim-splitting. Yet SD Construction provides no explanation for its failure to 

do the same in its affirmative defense, nor offers any reasonable basis to 

conclude that the affirmative defense, as pled, was “sufficient to provide 

notice of the proof the defendant intends to rely upon to defeat the plaintiff’s 

claim.” S. Florida Coastal Elec., 89 So. 3d at 267. 

The argument advanced in SD Construction’s own motion for summary 

judgment underscores the discrete and very different nature between a 

22, the trial court held a hearing on the motion; on October 13, the trial court 

entered an order on the pretrial conference; on October 20, the parties 

submitted their joint pre-trial statement (pursuant to the October 13 order); 

and on October 22—two days before the scheduled trial date—the trial court 

entered its order granting summary judgment for SD Construction.
17

defense of settlement and release and a defense of claim-splitting. While SD 

Construction adequately pled the former, it failed to plead the latter, and 

thereby waived the affirmative defense, which could not be raised for the first 

time in its subsequent motion for summary judgment. 

CONCLUSION

We hold that the trial court erred in entering summary judgment in favor 

of SD Construction based upon the rule against claim-splitting. SD 

Construction waived the rule against claim-splitting by failing to plead it as 

an affirmative defense. We therefore reverse the final summary judgment 

and remand for further proceedings consistent with this opinion.