Noting that § 624.155 did not specify the standard of recovery for mental and emotional anguish damages, the Florida Supreme Court determined that it "must narrowly construe the scope of recovery for such damages," given the presumption that a statute in derogation of the common law "was not intended to alter the common law other than as clearly and plainly specified in the statute." Id. at 393 (citing S. Attractions, Inc. v. Grau , 93 So. 2d 120 (Fla. 1956) for the proposition that a "statute in derogation of the common law must be strictly construed" as well as Ady v. Am. Honda Fin. Corp. , 675 So. 2d 577 (Fla. 1996) and Law Offices of Harold Silver, P.A. v. Farmers Bank & Tr. Co. , 498 So. 2d 984 (Fla. 1st DCA 1986) for the proposition that a "statute designed to alter the common law must speak in unequivocal terms"). Both cases were before the Florida Supreme Court on certified questions from the United States Court of Appeals for the Eleventh Circuit.
A court will presume that such a statute was not intended to alter the common law other than as clearly and plainly specified in the statute. Ady v. American Honda Finance Corp., 675 So.2d 577 (Fla. 1996); Law Offices of Harold Silver, P.A. v. Farmers Bank Trust Co., 498 So.2d 984 (Fla. 1st DCA 1986) (statute designed to alter the common law must speak in unequivocal terms). Florida common law did not permit first party claims in which an insured contended that its insurance company was acting in bad faith for refusing to pay for benefits under the policy.
A court will presume that such a statute was not intended to alter the common law other than as clearly and plainly specified in the statute. Ady v. American Honda Finance Corp., 675 So.2d 577 (Fla. 1996); Law Offices of Harold Silver, P.A. v. Farmers Bank Trust Co., 498 So.2d 984 (Fla. 1st DCA 1986) (statute designed to alter the common law must speak in unequivocal terms). To allow recovery of compensatory damages for mental anguish on the basis of lay testimony would subject health insurers to such claims every time such an insurer contested a claim.
The presumption is that no change in the common law is intended unless the statute is explicit and clear in that regard. City of Hialeah v. State ex rel. Morris, 136 Fla. 498, 183 So. 745 (1938); Harold Silver, P.A. v. Farmers Bank Trust Co., 498 So.2d 984 (Fla. 1st DCA 1986); Sand Key Associates, Ltd. v. Board of Trustees of Internal Improvement Trust Fund, 458 So.2d 369 (Fla. 2d DCA 1984). Unless a statute unequivocally states that it changes the common law, or is so repugnant to the common law that the two cannot coexist, the statute will not be held to have changed the common law.
Ecological Science Corp. v. Boca Ciega Sanitary Dist., 317 So.2d 857 (Fla. 2d DCA 1975). See also Harold Silver, P.A. v. Farmers Bank Trust Co., 498 So.2d 984 (Fla. 1st DCA 1986). If the court is required to consider matters outside the four corners of the complaint, then the cause is not subject to dismissal on the basis of the affirmative defense. Mettler, Inc. v. Ellen Tracy, Inc., 648 So.2d 253 (Fla. 2d DCA 1994); Board of County Commissioners of Polk County, Fla. v. Aetna Casualty and Surety Co., 604 So.2d 850 (Fla. 2d DCA 1992), rev. denied, 613 So.2d 2 (Fla. 1993); Attias v. Faroy Realty Co., 609 So.2d 105 (Fla. 3d DCA 1992).
First, Surrency failed to plead this doctrine as an affirmative defense and the court's inquiry was framed by the pleading. Des Rocher Watkins Towing Co. v. Third Nat'l Bank, 106 Fla. 466, 143 So. 768 (1932); Harold Silver, P.A. v. Farmers Bank Trust Co. of Kentucky, 498 So.2d 984 (Fla. 1st DCA 1986); Ecological Science Corp. v. Boca Ciega Sanitary Dist., 317 So.2d 857 (Fla. 2d DCA 1975); First Bank Trust Co. v. Mellay, 156 So.2d 518 (Fla. 2d DCA 1963). Where an issue is not presented by pleading or litigated by parties during a hearing, a judgment based on that issue is voidable on appeal. Cortina v. Cortina, 98 So.2d 334 (Fla. 1957). Second, because the remedies are not inconsistent, the doctrine of election of remedies does not apply in this case.
Statutes intending to alter the established case law must show that intention in unequivocal terms. Law Offices of Harold Silver, P.A. v. Farmers Bank Trust Co., 498 So.2d 984 (Fla. 1st DCA 1986). The legislature is presumed to know the existing law at the time it enacts a statute.
While the sale passes ownership of the property, it does not establish the legitimacy of the underlying debt or of the lienor's conduct. While not on all fours with the instant case, we find our opinion in Law Offices of Harold Silver, P.A. v. Farmer's Bank Trust Co., 498 So.2d 984 (Fla. 1st DCA 1986) to be instructive. In Silver a writ of execution had issued pursuant to a judgment in favor of Silver. Farmer's Bank intervened in the pending execution sale, claiming a superior interest in a certain automobile.