MICHAEL DURHAM, APPELLANT,

v.

STATE OF FLORIDA, APPELLEE

Citator

Cited By

• Sunbeam Television Corp. v. Mitzel, 83 So. 3d 865 (Fla. 3d DCA 2012)
  …pleads one claim but tries to prove another, it is error for a trial court to allow the plaintiffs to argue the unpled issue at trial. Agrofollajes, S.A. v. E.I. Du Pont De Nemours & Co., 48 So. 3d 976, 995 (Fla. 3d DCA 2010); Bloom v. Dorta-Duque, 743 So. 2d 1202, 1203 (Fla. 3d DCA 1999) (stating that “[i]t is well settled that a defendant cannot be found liable under a theory that was not specifically pled”); see also Cioffe v. Morris, 676 F. 2d 539, 543 n. 8 (11th Cir.1982) (confirming that unplead issues…
• Triana v. Fi-Shock, Inc., 763 So. 2d 454 (Fla. 3d DCA 2000)
  …uirement that litigants present all claims to the extent possible, at one time and one time only. Arky, Freed, Stearns, Watson, Greer, Weaver, & Harris, P.A. v. Bowmar Instrument Corp., 537 So. 2d 561, 563 (Fla.1988). See also Bloom v. Dorta-Duque, 743 So. 2d 1202, 1203 (Fla. 3d DCA 1999)(stating that “[i]t is well settled that a defendant cannot be found liable under a theory that was not specifically pled.”); Robbins v. Newhall, 692 So. 2d 947, 950 (Fla. 3d DCA 1997) (reversing final judgment where plaintif…
• Aills v. Luciano Boemi, M.D., 990 So. 2d 540 (Fla. 2d DCA 2008)
  …is axiomatic that a party may not be held liable on an issue that was neither pleaded nor tried by consent. See Arky, Freed, 537 So. 2d at 563; Triana v. Fi-Shock, Inc., 763 So. 2d 454, 458 (Fla. 3d DCA 2000); Michael H. Bloom, P.A. v. Dorta-Duque, 743 So. 2d 1202, 1203 (Fla. 3d DCA 1999); Newhall, 692 So. 2d at 949-50. It follows that an attorney may not suggest to the jury in closing argument that the jury may find the opposing party liable on a theory outside the issues in the case. See Maercks v. Birchans…

Authorities Cited

• Flint v. State, 704 So. 2d 681 (Fla. 2d DCA 1997)
• Elie v. Tonkin, 706 So. 2d 952 (Fla. 4th DCA 1998)
• Alonso v. State, 706 So. 2d 952 (Fla. 3d DCA 1998)