511 So.2d 1114 (Fla.App. 2 Dist. 1987), 86-1472, Freshwater v. Vetter

CourtFlorida Court of Appeals. Second District
Citation511 So.2d 1114,12 Fla. L. Weekly 2151
Date04 September 1987
PartiesJohn W. FRESHWATER, Appellant/Cross-Appellee, v. Richard VETTER and Royal Cove of Naples, Inc., Appellees/Cross-Appellants.
Docket Number86-1472.

Page 1114

511 So.2d 1114 (Fla.App. 2 Dist. 1987)

12 Fla. L. Weekly 2151

John W. FRESHWATER, Appellant/Cross-Appellee,

v.

Richard VETTER and Royal Cove of Naples, Inc., Appellees/Cross-Appellants.

No. 86-1472.

Florida Court of Appeals, Second District.

September 4, 1987

Nelson A. Faerber, Jr., of Faerber & Miller, Naples, for appellant/cross-appellee.

Michael R.N. McDonnell of McDonnell & Berry, Naples, for appellees/cross-appellants.

PER CURIAM.

John W. Freshwater filed suit against Royal Cove of Naples, Inc., and its president, Richard Vetter. Freshwater alleged fraud and breach of contract by Royal Cove and fraud by Royal Cove and Vetter in Freshwater's purchase of Executive Health Spa, owned by Royal Cove.

Royal Cove and Vetter filed their defenses and a counterclaim. They contended that Freshwater had fraudulently executed a promissory note in connection with the transaction. Royal Cove sought to recover the balance claimed due on Freshwater's note.

Page 1115

The trial court directed a verdict against Freshwater on his breach of contract claim. The case went to the jury on Freshwater's fraud count against Royal Cove and Vetter and on the counterclaim against Freshwater. The jury returned a verdict of $49,000 in favor of Freshwater against both Royal Cove and Vetter. It also returned a verdict for Royal Cove against Freshwater for $48,260.14 for the balance due on Freshwater's note. Finally, the jury awarded $9,622.50 in attorney's fees to Royal Cove and Vetter and $2,500 in attorney's fees to Freshwater. After consolidating the awards, the trial court entered judgment for $7,903 against Freshwater and in favor of Vetter and Royal Cove. This timely appeal by Freshwater and cross-appeal by Royal Cove and Vetter followed.

Appellant Freshwater and cross-appellants Vetter and Royal Cove raise several points. We have reviewed each point and find merit only to Vetter's contention that the trial court erred in allowing Freshwater to amend his cause of action to include Vetter in his individual capacity at the close of Freshwater's case.

Freshwater alleged that the corporation was Vetter's alter ego. Since no evidence was offered to support this theory, the trial judge directed a verdict in Vetter's favor. However, at this point, and over objection of Vetter, the court allowed Freshwater to amend his complaint to allege that Vetter had committed fraud against Freshwater. Thus, by allowing the...

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