Book v. City of Winter Park
1998 Fla. App. LEXIS 13167, 1998 WL 727374, 718 So. 2d 945 (1998)
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Rule of Law:
An affirmative defense not raised in a responsive pleading is not waived if the issue is tried by the implied consent of the parties. Implied consent occurs when a party fails to object to the introduction of evidence on the unpled issue, provided that evidence is not relevant to other, properly pleaded issues.
Facts:
- Reverend John Butler Book was arrested by a Winter Park police officer on November 14, 1991.
- Book was never prosecuted following the arrest.
- In response to a civil suit for false arrest brought by Book, the City of Winter Park offered a settlement of $1,500.
- On October 24, 1994, Book's attorney, James S. O'Brien, sent a letter accepting the City's settlement offer.
- On October 26, 1994, the City's insurance carrier sent a draft for $1,500 and a release form to Book's attorney.
- Four months later, Book's attorney informed the City that his client had changed his mind, and he returned the settlement draft.
Procedural Posture:
- John Butler Book filed a complaint against the City of Winter Park for false arrest in the trial court on June 29, 1995.
- The City filed its answer but did not raise the existence of a settlement agreement as an affirmative defense.
- After discovery, the case was submitted to the trial court on written briefs and filed exhibits.
- The City argued in its trial brief that the matter had been settled and moved for dismissal.
- The trial court agreed with the City, enforced the settlement agreement, and entered a final judgment/order in favor of the City.
- Book (Appellant) appealed the trial court's final order to the District Court of Appeal of Florida, Fifth District, with the City of Winter Park as the Appellee.
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Issue:
Does a defendant waive an unpled affirmative defense, such as a prior settlement agreement, when the plaintiff fails to object to the introduction of evidence supporting that defense during the course of the proceedings?
Opinions:
Majority - Thompson, J.
No, a defendant does not waive an unpled affirmative defense if the plaintiff impliedly consents to trying the issue. Under Florida Rule of Civil Procedure 1.190(b), issues not raised in the pleadings are treated as if they were properly raised if they are tried by the express or implied consent of the parties. Implied consent is established when a party introduces evidence on an unpled issue and the opposing party fails to object. In this case, the City introduced evidence of the settlement agreement in its exhibits and argued the issue in its trial brief. Book did not object to this evidence, which was irrelevant to any other properly pled issue like liability or damages. Therefore, Book's failure to object constituted implied consent to litigate the enforceability of the settlement agreement, and the City did not waive the defense by failing to include it in its initial answer.
Analysis:
This decision reinforces the procedural doctrine of trial by implied consent under Florida Rule of Civil Procedure 1.190(b). It serves as a critical reminder for trial attorneys to be vigilant and object to the introduction of evidence concerning any unpled affirmative defense. The ruling demonstrates that courts may favor deciding issues that are actually litigated by the parties, even if not perfectly pleaded, over strict adherence to pleading requirements, so long as no prejudice or surprise results. This places the burden on the party opposing the unpled defense to timely object or risk waiving that objection.
