Trans World Marine Corp. v. Threlkeld

District Court of Appeal of Florida

Trans World Marine Corp. v. Threlkeld

201 So. 2d 614, 1967 Fla. App. LEXIS 4653

CourtDistrict Court of Appeal of Florida

DecidedAugust 8, 1967

DocketNo. 66-323

StatusPublished

Cited by8 cases

This text of 201 So. 2d 614 (Trans World Marine Corp. v. Threlkeld) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Trans World Marine Corp. v. Threlkeld, 201 So. 2d 614, 1967 Fla. App. LEXIS 4653 (Fla. Ct. App. 1967).

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Opinion

PER CURIAM.

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 [615]*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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PER CURIAM.

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 [615]*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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201 So. 2d 614, 1967 Fla. App. LEXIS 4653, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trans-world-marine-corp-v-threlkeld-fladistctapp-1967.

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