SALLY DYSART, APPELLANT,
v.
ROBERT HUNT, APPELLEE
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Dysart prevailed in a replevin action for possession of personal property and received a jury verdict including $75,000 in damages, but the trial court struck the damages award. The appellate court affirmed, holding that money damages were not pleaded and therefore could not be awarded.
The court affirmed the trial court's refusal to enter judgment for damages, holding that because the claim for money damages was neither raised in the pleadings nor tried by express or implied consent of the parties, judgment on that portion of the verdict could not stand.
[1] A claim for money damages cannot be awarded in a replevin action if it is neither raised in the pleadings nor tried by the express or implied consent of the parties.
[2] Evidence presented to support a party's pleaded claim does not constitute implied consent to try an unpleaded and distinct damage issue.
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Join FLexlaw to unlock all legal intelligence“that a judgment upon a matter entirely outside of the issues made by the pleadings cannot stand; and where, as here, an issue was not presented by the pleadings nor litigated by the parties during the hearing on the pleadings as made, a decree adjudicating such issue is, at least, voidable on appeal.”
The controlling legal principle establishing that judgments cannot be entered on unpleaded issues
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Join FLexlaw to unlock all legal intelligenceDysart filed a replevin complaint seeking only the right to possession of personal property, without alleging damages for detention. The complaint fol…
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SCHWARTZ, Judge.
The plaintiff below, Sally Dysart, who prevailed before a jury in a replevin .action, challenges the rulings of the trial court in striking and refusing to enter judgment upon that portion of the verdict which awarded her $75,000 in money damages.1 We affirm on the basis of our agreement with the trial judge that the claim for money damages was neither raised in the pleadings nor tried by the express or implied consent of the parties.
The complaint in this case, which was never amended, alleged and claimed only the right to the possession of the personal property in question. Unlike even the form replevin complaint, Form 1.937, Fla.R.Civ.P., it specifically did not contain a demand for damages for the detention of the property. Indeed, the first and only specific reference to a request for money damages appeared in the plaintiff’s requested jury instructions on the subject, which were submitted at the conclusion of the trial and to which defense counsel immediately objected.
Moreover, the record demonstrates that the evidence, relied upon by the plaintiff to support the damages charge and verdict was fully consistent with and pertinent to the plaintiff’s position on the issue which was framed by the pleadings and which was actually being tried: the right to the possession of the property in dispute. There is thus no basis for finding that the defendant’s failure to object to that evidence constituted an express or implied consent to try the unpled and quite different damage question, so as to invoke the provisions of Fla.R.Civ.P. 1.190(b).
Chandler v. Chandler, 330 So. 2d 778 (Fla. 1st DCA 1976), cert. denied, 339 So. 2d 1167 (1976); Triax, Inc. v. City of Treasure Island, 208 So. 2d 669 (Fla. 2d DCA 1968); Neveils v. Thagard, 145 So. 2d 495, 498 (Fla. 1st DCA 1962); Tucker v. Daugherty, 122 So. 2d 230 (Fla. 2d DCA 1960), cert. denied, 125 So. 2d 878 (1960); Edwards v. Young, 107 So. 2d 244 (Fla. 2d DCA 1958); compare Batista v. Walter & Bernstein, P.A., 378 So. 2d 1321 (Fla. 3d DCA 1980).
The ease is therefore controlled by the familiar principle expressed in Cortina v. Cortina, 98 So. 2d 334, 337 (Fla. 1957):
that a judgment upon a matter entirely outside of the issues made by thé pleadings cannot stand; and where,. as here, an issue was not presented by the pleadings nor litigated by the parties during the hearing on the pleadings as made, a decree adjudicating such issue is, at least, voidable on appeal.
Affirmed.
. The trial judge wisely submitted the damages issue to the jury subject to the express understanding that, if the jury made such an award, he would set it aside. We commend and encourage this practice, which, if we disagreed (as we do not) with the court’s ruling on the merits of the issue, would have permitted the final resolution of the case without a second trial or a second appeal. See Freeman v. Rubin, 318 So. 2d 540 (Fla. 3d DCA 1975); Ditlow v. Kaplan, 181 So. 2d 226 (Fla. 3d DCA 1965).
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Citator
Cited By (27 total)
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ED Ricke & Sons, Inc. v. Green, 468 So. 2d 908 (Fla. 1985)…y invoked the court to do what it was already empowered to do in the face of a motion for a mistrial — permit the jury to completely discharge its functions before declaring a mistrial. In support of that proposition, the court cited Dysart v. Hunt, 383 So. 2d 259 (Fla. 3d DCA), rev. denied, 392 So. 2d 1373 (Fla.1980); Freeman v. Rubin, 318 So. 2d 540 (Fla. 3d DCA 1975); and Ditlow v. Kaplan, 181 So. 2d 226 (Fla. 3d DCA 1965). However, the use of these cases to support the contention that a judge is empowered…
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Freshwater v. Vetter, 511 So. 2d 1114 (Fla. 2d DCA 1987)…ince it was consistent with the claim framed by Freshwater’s pleading that Vetter was an alter ego of Royal Cove. Thus, we think Vetter’s failure to object did not constitute an express or implied consent to try the unpled issue. See Dysart v. Hunt, 383 So. 2d 259 (Fla. 3d DCA 1980). If evidence is introduced as to facts or issues not presented in the pleadings, the court, in its discretion, may allow amendments to conform to the evidence. Fla.R.Civ.P. 1.190. However, amending to state a new cause of action…
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Wagner v. Nottingham Assocs., 464 So. 2d 166 (Fla. 3d DCA 1985)…e pleadings cannot stand; and where, as here, an issue was not presented by the pleadings nor litigated by the parties during the hearing on the pleadings as made, a decree adjudicating such issue is, at least, voidable on appeal. Dysart v. Hunt, 383 So. 2d 259, 260 (Fla. 3d DCA), rev. denied, 392 So. 2d 1373 (Fla.1980) (quoting from Cortina v. Cortina, 98 So. 2d 334, 337 (Fla.1957), the court held that defendants’ failure to object to certain evidence did not constitute an express or implied consent to tr…
Previewing 3 of 27 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Cortina v. Cortina, 98 So. 2d 334 (Fla. 1957)
- Rochelle Ditlow and her husband v. Kaplan, 181 So. 2d 226 (Fla. 3d DCA 1965)
- B. M. and R. L. Tucker v. Daugherty, 122 So. 2d 230 (Fla. 2d DCA 1960)
- Starr Freeman v. Ellis Rubin, 318 So. 2d 540 (Fla. 3d DCA 1975)
- Triax, Inc. v. City OF Treasure Island, 208 So. 2d 669 (Fla. 2d DCA 1968)
- Arnaldo Fernandez Batista & Rock & Fill Corp. v. Walter & Bernstein, P.A., 378 So. 2d 1321 (Fla. 3d DCA 1980)
- Neveils v. Thagard, 145 So. 2d 495 (Fla. 1st DCA 1962)
- Harrington Chandler and Altamease Chandler v. Chandler, 330 So. 2d 778 (Fla. 1st DCA 1976)
- Edwards v. Young, 107 So. 2d 244 (Fla. 2d DCA 1958)
- Siddens v. Johnson, 125 So. 2d 878 (Fla. 1960)