AMERICAN ENVIRO-PORT, INC., A FLORIDA CORPORATION, APPELLANT,
v.
JOHN L. WILLIAMS, D/B/A JOHN L. WILLIAMS PROPERTIES, APPELLEE

Fla. 1st DCA | 1986-06-04
No. BH-253
SHIVERS and ZEHMER, JJ., concur.
489 So. 2d 839 Florida District Court of Appeal, First District (1986) Positive Treatment
Cited by 3 cases
Topics
Waiver Of Defenses Affirmative Defense

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Opinion of the Court
BARFIELD, Judge.

BARFIELD, Judge.

The trial court entered judgment for appellee, John L. Williams, on a finding that appellant, American Enviro-Port, Inc., had abandoned its contract with appellee. Abandonment of contract is an affirmative defense that the defendant must raise in its answer, or otherwise it is waived. Appel-lee did not raise abandonment as a defense in its answer, and appellant consistently objected to the trial of that issue throughout the proceedings below. Therefore, the trial court’s judgment is in error to the extent it is predicated on abandonment of contract.

The record suggests, and appellee argues that the trial judge intended to rule, that appellant failed to prove its performance under its contract at trial. While that determination may be made by the trial judge, it has not been made in the final judgment before this court.

The judgment of the trial court is REVERSED and REMANDED for further proceedings consistent with this opinion.

SHIVERS and ZEHMER, JJ., concur.

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Citator

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  • Miami Elecs. Ctr., Inc. v. Moises Saporta and Gladys Saporta, 597 So. 2d 903 (Fla. 3d DCA 1992)
    …defense. Fla.R.Civ.P. 1.110(d), 1.140(h), 1.190(b); see, e.g., National Aircraft Servs., Inc. v. Aeroserv Int’l, Inc., 544 So. 2d 1063 (Fla. 3d DCA 1989); Bilow v. Benoit, 519 So. 2d 1114 (Fla. 1st DCA 1988); American Enviro-Port, Inc. v. Williams, 489 So. 2d 839 (Fla. 1st DCA 1986); Agudo, Pineiro & Kates, P.A. v. Harbert Constr. Co., 476 So. 2d 1311, 1314-15 (Fla. 3d DCA 1985), rev. denied, 486 So. 2d 596 (Fla.1986); Venditti-Siravo, Inc. v. City of Holly [*905] wood, Fla., 418 So. 2d 1251, 1254 (Fla. 4th…
  • Vainberg v. Avatar Prop. & Cas. Ins. Co., 321 So. 3d 231 (Fla. 4th DCA 2021)
    …e sufficiency of the complaint are deemed waived. Fla. R. Civ. P. 1.140(b) (2020). “Abandonment of a contract is an affirmative defense that the defendant must raise in its answer, or otherwise it is waived.” Am. Enviro-Port, Inc. v. Williams, 489 So. 2d 839, 839 (Fla. 1st DCA 1986). Thus, the court erred in allowing Insurer to argue its theory of abandonment to the jury. The court abused its discretion in denying the Drew contract instruction. Additionally, the court erred by allowing Insurer…

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