TRANS WORLD MARINE CORPORATION, A FLORIDA CORPORATION, LEWIS E. WHITE AND H. F. SCHUESSLER, JR., APPELLANTS,
v.
MAJOR E. THRELKELD AND TORTUGA MARINE SALVAGE CORPORATION, A FLORIDA CORPORATION, APPELLEES
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This case concerns whether a defendant can raise the Statute of Frauds as a defense after a jury verdict, even if it wasn't initially pleaded. The appellate court found that denying the defendant's motion to amend pleadings to include this defense was reversible error.
Yes, the trial court should have allowed the amendment. The appellate court held that if evidence of an affirmative defense is admitted at trial, even if not pleaded, the issue is deemed raised, and pleadings can be amended to conform.
“It is the law in Florida that failure to comply with the Statute of Frauds is an affirmative defense, and as such is deemed waived unless pleaded.”
Establishes the general rule regarding affirmative defenses.
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Join FLexlaw to unlock all legal intelligenceAfter a jury trial resulted in a verdict for the plaintiffs, the defendants moved to amend their pleadings to include the defense of failure to comply…
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Appellants were defendants in the trial court below. The cause of action alleged against them was founded in contract theory and based upon certain oral transactions. After a jury trial which resulted in a verdict for the plaintiffs, defendants moved to amend the pleadings to conform to the evidence, pursuant to Rule 1.15(b), Florida Rules of Civil Procedure, 30 F.S.A., then in effect. The substance of the motion was that the defendants sought to amend their answer to include the defense of failure to comply with the Statute of Frauds, § 725.01, Fla.Stat., F.S.A. This motion was denied, as were motions for judgment n. o. v. and for new trial. The final judgment was entered for the plaintiffs in conformity with the jury verdict, and from this judgment the defendants appeal.
It is the law in Florida that failure to comply with the Statute of Frauds is an affirmative defense, and as such is deemed waived unless pleaded. See Rules 1.8(d), 1.11(h), Florida Rules of Civil Procedure (1954). There is, however, an exception to the waiver provision of Rule 1.11 (h), supra. This exception recognizes that if an affirmative defense fails to appear *615from the pleadings, but nevertheless evidence of such defense is admitted at trial, then the issue created will be deemed to have 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 instance of denying defendants’ motion was to deny to these defendants the use of a possibly valid defense. This constitutes reversible error. Having so held, we find it unnecessary to pass upon the merits. Therefore, the judgment appealed is reversed, and the cause remanded for further proceedings.
Reversed and remanded.
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Langlois v. Oriole Land & Dev. Corp., 283 So. 2d 143 (Fla. 4th DCA 1973)…ith the equitable relief of specific performance. The defendant had not pleaded in its answer the affirmative defense of Statute of Frauds. It, as well as the trial court, relied upon the case of Trans World Marine Corp. v. Threlkeld, Fla.App.1967, 201 So. 2d 614 and Rule 1.190(b), RCP, 30 F.S.A., to permit a post-trial amendment on the basis of the issue having been tried by express or implied consent of the parties. The record discloses, however, that the Statute of Frauds was initially mentioned by defend…
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Se. Title & Ins. Co. v. Caldwell, 326 So. 2d 12 (Fla. 1975)…extent of believing that certain known facts will not be presented. It is only when new facts are developed under a new theory of the case that surprise can be pleaded. Hart Properties, Inc. v. Slack, supra. In Transworld Marine Corp. v. Threlkeld, 201 So. 2d 614 (Fla.App.3d 1967), for example, defendants moved to amend the pleadings to conform to the evidence, pursuant to Rule 1.15(b), R.C.P., [now Rule 1.190(b)]. The motion was made after a jury verdict was rendered in favor of plaintiffs, and sought to am…
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Eugenia M. Benedict v. Pensacola Motor Sales, Inc, 846 So. 2d 1238 (Fla. 1st DCA 2003)…e policy of liberality toward vacating defaults and allowing trial on merits; default set aside based on excusable neglect, errors in original complaint, and lack of prejudice resulting from late filed answer); Trans World Marine Corp. v. Threlkeld, 201 So. 2d 614 (Fla. 3d DCA 1967) (holding defendant permitted to amend answer to include affirmative defense after jury verdict, because evidence of defense presented at trial). . Owens & Minor Med., Inc. v. Innovative Mktg & Distrib. Serv., 711 So. 2d 176 (Fla.…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Garrett v. OAK Hall Club, 118 So. 2d 633 (Fla. 1960)
- Bradford Builders, Inc. v. Dep't OF Water & Sewers OF the City OF Miami, 142 So. 2d 137 (Fla. 3d DCA 1962)