Buday v. Ayer, 2D97-5234.
| Decision Date | 10 March 2000 |
| Docket Number | No. 2D97-5234.,2D97-5234. |
| Citation | 754 So.2d 771 |
| Parties | Judith J. BUDAY, Appellant, v. Orion T. AYER, Jr., Appellee. |
| Court | Florida District Court of Appeals |
Andrew J. Rodnite, Jr. of Park, Bugg, Rodnite, Ossian & Zdravko, P.A., Clearwater, for Appellant.
Bruce G. Hermelee and Sara Helene Sharp of Hermelee & Sharp, Miami, for Appellee.
Judith J. Buday raises three issues in this appeal from a final judgment in favor of Orion T. Ayer, Jr. Ms. Buday's contention that the trial court improperly permitted Mr. Ayer's counterclaim to be amended at the close of the evidence is meritorious. Accordingly, we reverse as to this issue, strike damages awarded due to the improper amendment, and affirm as to the remaining issues.
In this dispute involving ownership of real property and the determination of whether a default had occurred for nonpayment under certain mortgage instruments, Ms. Buday sued to quiet title and foreclose an agreement for deed. Mr. Ayer counterclaimed for specific performance of an agreement for deed as well as for a declaratory judgment, neither of which causes of action provided for an award of monetary damages. At trial, Mr. Ayer testified that Ms. Buday's failure to pay the underlying mortgage damaged him not only because he had to make the payments himself but also because his credit rating had been injured. At the close of the evidence, Mr. Ayer moved to amend his pleadings to conform to evidence, adduced during his own testimony, that as a result of Ms. Buday's conduct he had sustained $25,000 in damages. Over objection, the trial court permitted the amendment with the ultimate result that the jury verdict and final judgment included an award of the disputed damages.
A trial court, in the exercise of its discretion, may permit the amendment of pleadings pursuant to rule 1.190, Florida Rules of Civil Procedure. This discretion "is at its nadir when the trial court has, as in this case, heard all of the evidence." Dean Co. v. U.S. Home Corp., 485 So.2d 438, 439 (Fla. 2d DCA 1986). Nothing in this case indicates that Ms. Buday was on notice that Mr. Ayer sought monetary damages; she had no reason to anticipate such a claim before the trial's commencement.
Under rule 1.190(b), however, a party is entitled to amend a pleading to conform to the evidence if that party can establish that the issue was tried by the express or implied consent of the opposing party. An opponent who objects must satisfy the trial court that admission of the evidence will cause it to suffer prejudice. In this case, we conclude that the issue was not tried by consent and that the admission of the evidence prejudiced Ms. Buday within the meaning of rule 1.190(b).
In Smith v. Mogelvang, 432 So.2d 119, 122 (Fla. 2d DCA 1983), this court noted that two criteria determine whether an issue has been tried by implied consent: "a) whether the opposing party had a fair opportunity to defend against the issue and b) whether the opposing party could have offered additional evidence on that issue if it had been pleaded." The Mogelvang standards...
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...that [the father] actually presented rather than for the one he pleaded, which was what she was expecting to defend"); Buday v. Ayer, 754 So.2d 771, 772 (Fla. 2d DCA 2000) (reversing amendment of counterclaim to conform to the evidence where the original counterclaim sought specific perform......
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