BRADFORD BUILDERS, INC., A FLORIDA CORPORATION, APPELLANT,
v.
DEPARTMENT OF WATER AND SEWERS OF THE CITY OF MIAMI, A CORPORATION, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Bradford Builders sued the City of Miami's Department of Water and Sewers for $14,400 owed under a construction contract. The trial court granted defendant's motion for directed verdict, but the appellate court reversed, finding that the defendant failed to plead an affirmative defense regarding timely performance and that plaintiff's evidence established a prima facie case.
The directed verdict was improper. Plaintiff established a prima facie case by presenting evidence of performance and non-payment. Defendant's argument regarding timely performance constituted an affirmative defense that had to be pleaded and proven by defendant; plaintiff was not required to establish it as part of its burden.
“An available affirmative defense, if not asserted, is considered waived under 1.11(h), F.R..C.P., 30 F.S.A., unless, though not pleaded, the issue is tried as provided for in rule 1.15(b), F.R.C.P.”
Establishes the legal principle that affirmative defenses must be pleaded or they are waived, which is central to the court's reversal of the directed verdict.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBradford Builders entered into a construction contract with the Department of Water and Sewers of the City of Miami. The contract contained a time lim…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Waiver Of Defenses cases and more on FLexlaw
This is an appeal by the plaintiff below from an adverse judgment entered on a verdict directed for the defendant at the close of the presentation of the evidence by the plaintiff.
The appellant Bradford Builders, Inc. sued the Department of Water and Sewers of the City of Miami for a balance of $14,400 under a construction contract. The complaint alleged: “The plaintiff has fully and completely performed the terms of said contract and has done all the work required to be done by it thereunder, notwithstanding which the defendant wrongfully withholds the sum of $14,400.00 due to the plaintiff, in accordance with the terms of said contract and refuses to pay the same.” Defendant admitted the contract and that the work was performed but denied the sum of $14,400 was wrongfully withheld and averred it was not indebted to the plaintiff, saying in its answer: “The defendant admits that the plaintiff has now fully performed and completed the work required under the contract between the parties, but specifically denies that its withholding the sum of $14,400 is wrongful, specifically denies that the said sum is due to the plaintiff, and says that it is not indebted to the plaintiff.” At trial plaintiff presented evidence of performance and of nonpayment of the said balance of $14,400. The entire contract was placed into evidence. Defendant moved for directed verdict. The motion was granted and judgment entered for defendant. Appellee argues that because the contract fixed a time limit for performance and prescribed a penalty for a delay, it was incumbent on the plaintiff to establish that the performance had been within the allotted time and that all of the balance unpaid was wrongfully withheld. If the directed verdict was granted on that basis, and we find no other support for it in the record, the learned trial judge was in error. The matter referred to in the argument of the appellee was the subject of an affirmative defense or set off to be pleaded and established by defendant. Fred Howland, Inc. v. Gore, 152 Fla. 781, 13 So.2d 303; Steltz v. Armory Co., Ltd., 15 Idaho 551, 99 P. 98, 20 L.R.A., N.S., 872; 17 C.J.S. Contracts § 591, p. 1234. An available affirmative defense, if not asserted, is considered waived under 1.11(h), F.R..C.P., 30 F.S.A., unless, though not pleaded, the issue is tried as provided for in rule 1.15(b), F.R.C.P. The evidence presented on behalf of the plaintiff was sufficient to make a prima facie case.
*139On this disposition of the case it becomes unnecessary to rule on other questions raised. The judgment appealed from is reversed and the cause remanded for new trial.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Webb Gen. Contracting, Inc. v. Benson Elec., Inc., 404 So. 2d 1087 (Fla. 3d DCA 1981)…PER CURIAM. Affirmed. Shaw v. Shaw, 334 So. 2d 13, 16 (Fla.1976); Bradford Builders, Inc. v. Department of Water and Sewers of the City of Miami, 142 So. 2d 137 (Fla.3d DCA 1962).…
-
Trans World Marine Corp. v. Major E. Threlkeld & Tortuga Marine Salvage Corp., 201 So. 2d 614 (Fla. 3d DCA 1967)…ave been raised and the pleadings may be made to conform thereto pursuant to Rule 1.15(b), Florida Rules of Civil Procedure. Garrett v. Oak Hall Club, Fla.1960, 118 So. 2d 633; Bradford Builders, Inc. v. Department of Water and Sewers, Fla.App.1962, 142 So. 2d 137. Although the defense of failure to comply with the Statute of Frauds does not appear in the pleadings, the trial record contains sufficient evidence for us to conclude that- the defense was raised during the course of the trial. The effect in this…
-
Kersey v. City OF Riviera Beach, 337 So. 2d 995 (Fla. 4th DCA 1976)…firmative defenses must be pleaded or they are considered waived. Con-Dev of Vero Beach, Inc. v. Casano, Fla.App., 272 So. 2d 203 (1972); Wise v. Quina, Fla.App., 174 So. 2d 590 (1965); Bradford Builders, Inc. v. Dept. of Water and Sewers, Fla.App., 142 So. 2d 137 (1961). Specifically, estoppel must be affirmatively pleaded or it is waived, see Davis v. Evans, Fla.App., 132 So. 2d 476 (1961). The principal defense raised by appellee was a budgetary estoppel argument; however, this defense was not affirmativel…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fred Howland, Inc. v. Gore, 152 Fla. 781 (Fla. 1942)