IRVING CYPEN, AS EXECUTOR OF THE ESTATE OF ALBERT DREYFOUS, DECEASED, APPELLANT,
v.
MAE V. FREDERICK, APPELLEE
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An executor appealed a specific performance decree requiring him to convey real property to a woman who had performed substantial services for the deceased in exchange for the property. The executor argued the contract was void under a Florida statute requiring such agreements to be in writing and witnessed, but the court affirmed because the executor failed to plead this defense in the trial court.
The court affirmed the specific performance decree. Although § 731.051 may render such contracts void if properly raised, the executor waived the defense by failing to plead it affirmatively in the trial court, and therefore was estopped from raising it for the first time on appeal.
“§ 731.051 Fla.Stat., F.S.A., is similar to the Statute of Frauds and, as such, is a defense personal to the defendant in any given action. It must be affirmatively plead by appropriate pleadings or, for purposes of the instant proceeding, the provisions of the statute are waived.”
Establishes that statutory defenses requiring writing must be affirmatively pleaded or are waived
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Join FLexlaw to unlock all legal intelligenceThe appellee performed substantial services for Albert Dreyfous during his lifetime pursuant to an employment contract entered into on April 4, 1955, …
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This is an appeal by the appellant, defendant below, seeking review of a decree of specific performance directing the appellant to convey certain real property to the appel-lee. The appellee, as plaintiff below, filed a complaint seeking specific performance of an agreement to require the defendant [as Executor of the Estate of the late Albert Dreyfous], to convey certain real property to her, in accordance with a contract for *202services which she had performed for Mr. Dreyfous during his lifetime.
Following the taking of extensive testimony, the chancellor entered his decree finding that the plaintiff was entitled to the relief sought. Upon this appeal, the executor conceded that the appellee performed substantial services for the deceased, but urges that the contract for employment in exchange for the transfer of the real property involved is void by reason of the provisions of § 731.0S1 Fla.Stat., F.S.A. This statute was enacted by the Legislature in 1957 with an effective date of January 1, 1958, providing that all such agreements similar to the one involved in this action should be in writing and signed before 2 subscribing witnesses. Subd. (2) of the statute provides that it is applicable to agreements enacted on or after January 1, 1958 and that it was applicable to agreements executed prior to said date. The contract in question in the instant case was entered into on April 4, 1955 and had been substantially performed by the time of the effective date of the Act.
While the appellant urges the aforementioned contract is void by virtue of § 731.051 Fla.Stat., F.S.A., a search of the record on appeal reveals the statute was never plead in the court below. § 731.051 Fla.Stat., F.S.A., is similar to the Statute of Frauds and, as such, is a defense personal to the defendant in any given action. It must be affirmatively plead by appropriate pleadings or, for purposes of the instant proceeding, the provisions of the statute are waived. 25 Fla.Jur., Pleadings, §§ 77, 78; F.R.C.P. 1.8(d), 1.11(h), 30 F.S.A. The appellant herein having failed to plead § 731.051, Fla. Stat., F.S.A., as an affirmative defense below, has waived his right to that defense and is thereby estopped from bringing it up for the first time on appeal. This being the only contention advanced by the appellant for reversal and it not being timely raised on this record, we affirm the chancellor’s final decree.
Affirmed.
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First Am. Bank & Tr. v. Windjammer Time Sharing Resort, Inc., 483 So. 2d 732 (Fla. 4th DCA 1986)…he bank is estopped from raising new sections — new defenses— for the first time on appeal. See, e.g., Jaffe v. Endure-A-Life Time Awning Sales, Inc., 98 So. 2d 77 (Fla.1957); Palmer v. Thomas, 284 So. 2d 709 (Fla. 1st DCA 1973); Cypen v. Frederick, 139 So. 2d 201 (Fla. 3d DCA 1962). The federal act is lengthy and complex; it covers one hundred and twenty-seven printed pages. Thus, we cannot accept as serious the bank’s argument that a general reference to the act was sufficient to put “the judge on notice at…