Summary
holding defendant permitted to amend answer to include affirmative defense after jury verdict, because evidence of defense presented at trial
Summary of this case from Benedict v. Pensacola Motor SalesOpinion
No. 66-323.
August 8, 1967. Rehearing Denied September 11, 1967.
Appeal from the Circuit Court, Dade County, James W. Kehoe, J.
Sibley, Giblin, Levenson Ward, Miami Beach, for appellants.
Fowler, White, Collins, Gillen, Humkey Trenam, Frank J. Marston, and Richard M. Gale, Miami, for appellees.
Before CHARLES CARROLL, C.J., and PEARSON and HENDRY, JJ.
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 from 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.