Freshwater v. Vetter, 86-1472

Citation511 So.2d 1114,12 Fla. L. Weekly 2151
Decision Date04 September 1987
Docket NumberNo. 86-1472,86-1472
Parties12 Fla. L. Weekly 2151 John W. FRESHWATER, Appellant/Cross-Appellee, v. Richard VETTER and Royal Cove of Naples, Inc., Appellees/Cross-Appellants.
CourtCourt of Appeal of Florida (US)

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.

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 amendment the case went to the jury on a new cause of action against Vetter.

A judgment upon a matter entirely outside the issues made by the pleadings cannot stand, and such a judgment is voidable on appeal. Cortina v. Cortina, 98 So.2d 334, 337 (Fla.1957). Freshwater, however, seeks to sustain the trial court's action in allowing his complaint against Vetter to be amended over Vetter's objection. He argues that the central issue throughout the trial was the actions and statements of Vetter. Thus, Freshwater says, there was no surprise at trial when the trial judge allowed...

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16 cases
  • Tracey v. Wells Fargo Bank, N.A.
    • United States
    • Florida District Court of Appeals
    • 27 Febrero 2019
    ...at trial to pursue additional damages and remanding to strike that portion of the award from the judgment), and Freshwater v. Vetter, 511 So.2d 1114, 1115 (Fla. 2d DCA 1987) ("We think the trial judge abused his discretion in this case by allowing Freshwater to amend his pleadings to state ......
  • Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp.
    • United States
    • Florida District Court of Appeals
    • 8 Diciembre 1987
    ...Worrell v. John F. Kennedy Memorial Hospital, Inc., 384 So.2d 897 (Fla. 4th DCA 1980).6 See supra note 3.7 Freshwater v. Vetter, 511 So.2d 1114 (Fla. 2d DCA 1987); Designers Tile International Corp. v. Capitol C Corp., 499 So.2d 4 (Fla. 3d DCA 1986); Dean Co. v. U.S. Home Corp., 485 So.2d 4......
  • Hesston Corp. v. Roche
    • United States
    • Florida District Court of Appeals
    • 24 Abril 1992
    ...right to assume that the causes of action pleaded would be the causes of action tried, and to defend accordingly. See Freshwater v. Vetter, 511 So.2d 1114 (Fla. 2d DCA1987). PETERSON, J., concurs. GOSHORN, C.J., dissents without opinion. 1 Commonly unspecified are whether lifetime employmen......
  • Sunbeam Television Corp. v. Mitzel, 3D11–249.
    • United States
    • Florida District Court of Appeals
    • 18 Enero 2012
    ...had alleged three specific acts of negligence, but tried the case on a fourth alleged act that was never pled); Freshwater v. Vetter, 511 So.2d 1114, 1115 (Fla. 2d DCA 1987) (“A judgment upon a matter entirely outside the issues made by the pleadings cannot stand, and such a judgment is voi......
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