RICHARD MCINTYRE AND TENNESSEE PARTNERS, LTD., A FLORIDA LIMITED PARTNERSHIP, APPELLANTS,
v.
STEPHEN B. NORMAN, APPELLEE
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McIntyre and a limited partnership appealed a jury verdict for Norman in a breach of contract dispute arising from a failed coal mining venture in Tennessee. The appellate court affirmed, rejecting arguments based on alleged statutory violations, impossibility of performance, insufficient damages evidence, and alleged trial misconduct.
The trial court did not err because: (1) no affirmative defense of illegality was pled, and Chapter 475 did not apply to joint ventures; (2) impossibility of performance was an unpled affirmative defense; (3) sufficient evidence supported the damages award; and (4) any prejudicial comments were either not objected to or were induced by defense counsel's arguments.
[1] Failure to plead an affirmative defense, such as illegality or impossibility of performance, generally waives the right to raise that defense on appeal.
[2] A joint venture may be exempt from statutory requirements applicable to real estate brokerage activities.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“As to the alleged Chapter 475 violation, no affirmative defense raising illegality was ever pled.”
Establishes that the appellants waived the illegality defense by failing to plead it as an affirmative defense.
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Join FLexlaw to unlock all legal intelligenceMcIntyre and Norman entered into a business venture to acquire and develop a coal mining operation in Tennessee. A limited partnership was formed to h…
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PER CURIAM.
The individuals, McIntyre and Norman, entered into a business venture to acquire and develop a coal mining operation in the State of Tennessee. Pursuant to this agreement an interest in land was acquired in Tennessee. A limited partnership was formed which succeeded to certain of rights and responsibilities of McIntyre.
Thereafter the parties had a falling out and Norman commenced an action for damages for failure of the others to comply with their agreements. A jury verdict was returned in favor of the plaintiff. This appeal ensued.
The appellants have preserved four points as grounds for reversal, to wit: first, the trial court erred in denying motions for judgment on the pleadings and motion for summary judgment alleging illegality because of the failure of Norman to comply with Chapter 475, Fla.Stat., second, that the court erred in entering judgment for the plaintiff because “impossibility of performance” prevented the defendants from complying with the agreements, third, the court erred in denying the motion for directed verdict because of a lack of creditable evidence on the issue of damages and fourth, that the trial court erred in refusing to declare a mistrial because of the prejudicial comment by counsel for the plaintiff.
We disagree with the appellant and affirm. As to the alleged Chapter 475 violation, no affirmative defense raising illegality was ever pled. Dober v. Worrell, 401 So. 2d 1322 (Fla.1981); Sonnenblick-Goldman of Miami, Corp. v. Feldman, 266 So. 2d 48 (Fla. 3d DCA 1972). Further, it would be inapplicable in the instant situation because McIntyre and Norman were engaged in a joint venture. Rizzo v. Schwebke, 348 So. 2d 1180 (Fla. 3d DCA 1977); Seijo v. Futura Realty, Inc., 269 So. 2d 738 (Fla. 3d DCA 1972); Tiseo v. Arnold, 237 So. 2d 21 (Fla. 2d DCA 1970); Compare, Section 475.011(2) Florida Statutes (1981). As to the impossibility of performance, this is also an affirmative defense which was never pled. Dober v. Worrell, supra; Sonnenblick-Goldman of Miami, Corp. v. Feldman, supra. As to the evidence presented as to the amount of damages, the plaintiff and another testified as to the loss sustained and we find no merit in this point. McDonnell Douglas v. Holliday, 397 So. 2d 366 (Fla. 1st DCA 1981); Vitale Fireworks Manufacturing Co., Inc. v. Marini, 314 So. 2d 176 (Fla. 1st DCA 1975). Finally, as to the last point, any prejudicial comment was'either not objected to or was induced by argument or questions advanced by defense counsel. Clay v. Thomas, 363 So. 2d 588 (Fla. 4th DCA 1978); Leisure Group, Inc. v. Williams, 351 So. 2d 374 (Fla. 2d DCA 1977).
Therefore for the reasons above stated, the final judgment on the jury verdict be and the same is hereby affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
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Agudo, Pineiro & Kates, P.A. v. Harbert Constr. Co., 476 So. 2d 1311 (Fla. 3d DCA 1985)…deed, it could not have been, since affirmative defenses may not be raised for the first time on a motion for summary judgment. Swift Independent Packing Co. v. Basic Food International, Inc., 461 So. 2d 1017 (Fla. 4th DCA 1984); McIntyre v. Norman, 429 So. 2d 1296 (Fla. 3d DCA), rev. denied, 438 So. 2d 833 (Fla.1983); Boyd v. International Fidelity Insurance Co., 412 So. 2d 944 (Fla. 3d DCA 1982). The rules suggest, then, that the defense of illegality is waivable. If so, then in a contractual setting, the co…
Authorities Cited
- Chirogianis v. Anderson, 401 So. 2d 1322 (Fla. 1981)
- Vitale Fireworks Mfg. Co., Inc. v. Emil Paul Marini and Rose Christine Marini, 314 So. 2d 176 (Fla. 1st DCA 1975)
- Leisure Grp., Inc. v. Williams, 351 So. 2d 374 (Fla. 2d DCA 1977)
- Tiseo v. Arnold, 237 So. 2d 21 (Fla. 2d DCA 1970)
- Sonnenblick-Goldman OF Miami Corp. v. Feldman, 266 So. 2d 48 (Fla. 3d DCA 1972)
- McDONNELL Douglas & Indus. Indem. Co. v. Holliday, 397 So. 2d 366 (Fla. 1st DCA 1981)
- Seijo v. Futura Realty, Inc., 269 So. 2d 738 (Fla. 3d DCA 1972)
- Clay v. Thomas, 363 So. 2d 588 (Fla. 4th DCA 1978)
- Fontainebleau Hotel Corp. v. Lowry Elec. Co., Inc., 269 So. 2d 738 (Fla. 3d DCA 1972)
- Rizzo v. Schwebke, 348 So. 2d 1180 (Fla. 3d DCA 1977)