JOJO'S CLUBHOUSE, INC., APPELLANT,
v.
DBR ASSET MANAGEMENT, INC., DIM PARKWAY LIMITED PARTNERSHIP, ROSS REALTY INVESTMENT, INC., ROBERT SHERMAN, INDIVIDUALLY, AND MURTON ROOFING CORPORATION, A FLORIDA CORPORATION, APPELLEES
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The court held that a motion for set-off is an affirmative defense that is waived if not pled timely, and thus the trial court erred in granting a post-verdict set-off.
JoJo's Clubhouse sued for breach of lease and obtained a judgment, but the trial court granted a set-off for attorney's fees from a related federal ac…
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STEVENSON, J.
JoJo’s Clubhouse, Inc., appeals from a final judgment arising out of its claim for breach of a lease agreement. JoJo’s obtained a total judgment in the amount of $27,459.86, but took nothing by the action as a result of a $29,342.94 set-off. We affirm the damage award, but reverse the set-off ordered by the trial court.
Based on our review of the record, we find ample support for the trial court’s rejection of the owner’s inflated opinion as to the value of the destroyed restaurant. We, however, agree with JoJo’s argument that the trial court erred in granting set-off from the award based on an attorney’s fee judgment that appellee, DBR Asset Management, Inc., obtained against JoJo’s in a related federal civil rights action.
The basis for set-off was established well in advance of trial, yet DBR failed to seek to amend its answer, instead, waiting until the verdict was returned to state its claim for set-off. A motion for set-off is an affirmative defense. See Kellogg v. Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A., 807 So. 2d 669, 670 (Fla. 4th DCA 2001), review denied, 828 So. 2d 386 (Fla.2002). Affirmative defenses are waived if not pled. See Wolowitz v. Thoroughbred Motors, Inc., 765 So. 2d 920, 923 (Fla. 2d DCA 2000); Goldberger v. Regency Highland Condo. Ass’n, 452 So. 2d 583, 585 (Fla. 4th DCA 1984). Accordingly, the trial court erred in granting the set-off based on DBR’s untimely post-trial motion.
Affirmed in part, reversed in part, and remanded.
SHAHOOD, J., and GEIGER, DWIGHT L., Associate Judge, concur.
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Jones v. Fla. Ins. Guar. Ass'n, Inc., 908 So. 2d 435 (Fla. 2005)…missible use of the vehicle at the time of the accident as an affirmative defense to coverage. FIGA, therefore, has waived any claim to assert a defense similar to this affirmative defense. See, e.g., Jojo’s Clubhouse, Inc. v. DBR Asset Mgmt., Inc., 860 So. 2d 503, 504 (Fla. 4th DCA 2003) (affirmative defenses are waived if not pled); St. Paul Mercury Ins., 837 So. 2d at 487 (same); Langford v. McCormick, 552 So. 2d 964, 967 (Fla. 1st DCA 1989) (same); see also Goldberger v. Regency Highland Condo. Ass’n, Inc…
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Felgenhauer v. Selina Bonds, 891 So. 2d 1043 (Fla. 2d DCA 2004)…See Parker v. Priestley, 39 So. 2d 210, 213 (Fla.1949); Coffin v. Talbot, 110 Fla. 131, 148 So. 184, 187 (1933); Skaf's Jewelers, Inc. v. Antwerp Import Corp., 150 So. 2d 260, 262 (Fla. 2d DCA 1963); Jojo’s Clubhouse, Inc. v. DBR Asset Mgmt., Inc., 860 So. 2d 503, 504 (Fla. 4th DCA 2003). However, in tort actions allowing for a set-off under sections 768.041 and 46.015, set-off is not an affirmative defense to be considered by the jury but is a determination regarding damages to be made by the court after th…
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Benton W. Chambliss and Brenda W. Chambliss v. Benedikter, 941 So. 2d 589 (Fla. 4th DCA 2006)…hat Plaintiffs have not had the use of the Subject Property and that Defendant LMNOP, LLC [Buyer 2] has. “A motion for set-off is an affirmative defense. Affirmative defenses are waived if not pled.” JoJo’s Clubhouse, Inc. v. DBR Asset Mgmt., Inc., 860 So. 2d 503, 504 (Fla. 4th DCA 2003) (citations omitted). The question of property taxes was not pled at any point during the proceedings. It was only in closing argument that Buyer 2 suggested that it would be equitable to hold Buyer 1 responsible for the unpa…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wolowitz v. Thoroughbred Motors, Inc., 765 So. 2d 920 (Fla. 2d DCA 2000)
- Goldberger v. Regency Highland Condo. Ass'n, Inc., 452 So. 2d 583 (Fla. 4th DCA 1984)
- Kellogg v. Fowler, 807 So. 2d 669 (Fla. 4th DCA 2001)