EARL M. THOMPSON, WILLIAM E. THOMPSON AND JAMES A. THOMPSON, APPELLANTS,
v.
B. G. GROSS, MINA C. GROSS, WALTER C. WARD AND JOANNA KING WARD, APPELLEES
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Appellants sought reformation of a note and mortgage to conform with a prior deposit receipt. The trial court ruled against them, finding they had waived or were estopped from asserting reformation rights by accepting payments in the allegedly mistaken amount for 17 months and delaying suit for 10 additional months. The appellate court affirmed, rejecting all three points raised on appeal.
The trial court did not err in any of the three respects. The exclusion of witnesses is within the trial court's sound discretion and no abuse was shown. Reformation was properly denied based on appellants' waiver and estoppel, given their 17-month acceptance of allegedly mistaken payments and subsequent 10-month delay in filing suit. The amendment of the answer to conform to evidence was proper under Florida Rule of Civil Procedure 1.190(b), and appellants failed to show prejudice.
[1] The exclusion of witnesses from the courtroom is within the sound judicial discretion of the trial court, and such a ruling will not be disturbed on appeal absent an abus…
[2] Acceptance of mortgage payments for an extended period without objection can support a finding of waiver or estoppel to seek reformation of the mortgage instruments.
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Join FLexlaw to unlock all legal intelligence“The exclusion of witnesses from the courtroom is, however, within the sound judicial discretion of the trial court, and unless an abuse of that discretion is shown, such ruling will not be disturbed on appeal.”
Establishes the standard of review for witness exclusion rulings—abuse of discretion.
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Join FLexlaw to unlock all legal intelligenceAppellants sought reformation of a note and mortgage to align with the terms of a prior preliminary deposit receipt. They accepted mortgage payments f…
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HENDRY, Chief Judge.
This appeal is taken from a final judgment rendered in favor of appellees/defendants and against appellants/plaintiffs in a suit filed by the latter seeking the reformation of a note and mortgage to conform with the provisions of a prior preliminary deposit receipt.
Appellants have raised three points on appeal, none of which we believe warrant reversal of the final judgment.
Firstly, appellants claim as error the learned chancellor’s failure to apply “the rule” (as to the exclusion of witnesses from the courtroom) to appellees’ co-counsel. The exclusion of witnesses from the courtroom is, however, within the sound judicial discretion of the trial court, and unless an abuse of that, discretion is shown, such ruling will not be disturbed on appeal. Beavers v. Conner, 258 So. 2d 330 (Fla.3d DCA 1972); 32 Fla.Jur. Trials, § 14 (1960). No abuse of the chancellor’s discretion has been shown.
Appellants’ second point argues that based upon the facts before the chancellor, reformation of the note and mortgage should have been granted. After carefully reviewing the record, however, it is our opinion that there was competent substantial evidence to support the chancellor’s finding that appellants, by their action and inaction, waived their rights, or were es-topped to assert their rights, to have the instruments modified or reformed. The record reveals that appellants accepted the mortgage payments from appellees in the alleged “mistaken” amount for seventeen (17) months before the “mistake” was found. It took appellants another ten (10) months from the time of the discovery to actually institute suit. As such, there was no error in denying reformation on the basis of either estoppel or waiver. See generally 5 Fla.Jur. Cancellation, Reformation, and Rescission of Instruments, §§ 42, 43 (1955).
Appellants lastly contend that the chancellor erred in allowing appellees to amend their answer to conform with the evidence, to reflect the affirmative defenses of estoppel, waiver and laches. We disagree, for Fla.R.Civ.P. 1.190(b) provides for the amending of pleadings to conform with the evidence in those situations when issues not raised by the pleadings are tried by either the express or implied consent of the parties. Sub judice appellants neither objected to any testimony elicited by appellees during the course of the trial aimed at establishing the various affirmative defenses nor effectively showed where such amendment had prejudiced them in maintaining their law suit. See Trawick’s Florida Practice and Procedure, § 14-6 (1977).
Accordingly, after carefully reviewing the record, briefs, and arguments of counsel, it is our opinion that the final judgment appealed from must be, and is hereby, affirmed.
Affirmed.
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Antonelli v. Smith, 556 So. 2d 1132 (Fla. 3d DCA 1989)…ight to reformation or rescission of contract by knowing of mistake ten days before commencement of construction and performing under contract for twenty-one months after such knowledge), review denied, 528 So. 2d 1183 (Fla.1988); Thompson v. Gross, 353 So. 2d 191 (Fla. 3d DCA 1977) (appellants estopped to institute action to reform mortgage by accepting payments due under a mortgage for seventeen months before discovering mistake and by delaying another ten months before instituting suit to reform the instru…
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Smith v. Landy, 402 So. 2d 441 (Fla. 3d DCA 1981)…is unaffected by the failure of the Landys to specifically plead estoppel as an affirmative defense where the issue of estoppel was supported by evidence and tried by the implicit consent of the parties, Fla.R.Civ.P. 1.190(b); cf. Thompson v. Gross, 353 So. 2d 191 (Fla. 3d DCA 1977) (no error in allowing defendants to amend pleadings to conform with the evidence to reflect affirmative defense of estoppel). Affirmed.…
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Dep't OF Transp. v. Ronlee, Inc., 518 So. 2d 1326 (Fla. 3d DCA 1987)…e Farnham v. Blount, 152 Fla. 208, 11 So. 2d 785 (Fla.1942) (any unreasonable or unnecessary delay by a party seeking to cancel an instrument based on fraud or other sufficient cause will be construed as a waiver or ratification); Thompson v. Gross, 353 So. 2d 191 (Fla. 3d DCA 1977); Malt v. Deese, 399 So. 2d 41 (Fla. 4th DCA 1981). See generally 9 Fla.Jur.2d Cancellation, Reformation and Rescission of Instruments, §§ 37, 38 (1979). Reversed and remanded with instructions to enter judgment for the Department…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Beavers v. Conner, 258 So. 2d 330 (Fla. 3d DCA 1972)