MARGARET M. LANNON, APPELLANT,
v.
JUSTIN ERIC FOLEY, APPELLEE
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Trial court's judgment on a promissory note was affirmed because the appellant waived any pleading defects by trying the issue by implied consent without objection.
When a party tries an issue by implied consent without objecting to defective pleadings, any pleading defects are waived.
[1] When a party tries an issue by implied consent without objecting to defective pleadings, the defects are waived and the pleadings are treated as if properly amended to co…
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Join FLexlaw to unlock all legal intelligenceMargaret Lannon failed to pay a promissory note to Justin Eric Foley. The trial court entered judgment against Lannon for the note amount, but the pro…
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WARNER, J.
The trial court entered a final judgment finding that appellant, Margaret Lannon, failed to pay a promissory note to appellee, Justin Eric Foley, and entered judgment for its amount against Lannon. She appeals contending that the failure to attach the promissory note to the complaint was a fatal defect, precluding the court from granting relief on the note.
However, she has provided no transcript of the proceedings below. When Lannon raised this issue on rehearing, the trial court entered a detailed order explaining that the issue had been tried by implied consent. See Beefy Trail, Inc. v. Beefy King Int’l, Inc., 267 So. 2d 853, 857 (Fla. 4th DCA 1972) (stating that “[i]n cases which are tried on issues not raised in the pleadings, amendment of the pleadings to conform to the evidence, in the absence of an objection by the defendants, is not imperative and such issues can be treated in all respects as if they had been raised in the pleadings.”) Without a transcript of proceedings, the court’s rulings are presumed correct. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla.1979).
Because the issue was tried by implied consent, any defects in the pleadings have been waived in this case. We therefore affirm the final judgment.
GUNTHER and POLEN, JJ., concur.
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Citator
Cited By
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Lightsey v. Davis, 267 So. 3d 12 (Fla. 4th DCA 2019)…r also claims that the court awarded relief not requested in the pleadings; however, without a transcript of proceedings this issue cannot be decided because it cannot be determined whether issues were tried by implied consent. See Lannon v. Foley, 914 So. 2d 518, 518 (Fla. 4th DCA 2005) (noting unpled issues may be tried by implied consent). The final judgment did not set forth a timesharing schedule, but it authorized supervised time sharing within the sole discretion of the mother until such time the fat…
Authorities Cited
- Pitcher v. Schneider (Fla. 5th DCA 2018)
- Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)
- Abelardo Cruz v. Lizzie Griffin Beckham, 267 So. 2d 853 (Fla. 3d DCA 1972)
- Beefy Trail, Inc. v. Beefy King Int'l, Inc., 267 So. 2d 853 (Fla. 4th DCA 1972)