Duquette v. Godbout, 78-27-A

• Decision Date: 01 July 1980
• Docket Number: No. 78-27-A,78-27-A
• Citation: 416 A.2d 669
• Parties: Paul E. DUQUETTE v. James J. GODBOUT and Richard Roe. ppeal.
• Court: Rhode Island Supreme Court

Page 669

416 A.2d 669

Paul E. DUQUETTE v. James J. GODBOUT and Richard Roe.

No. 78-27-Appeal.

Supreme Court of Rhode Island.

July 1, 1980.

Aram K. Berberian, Warwick, for plaintiff.

William J. Toohey, City Sol., Thomas L. McDonald, Asst. City Sol., Warwick, for defendants.

OPINION

DORIS, Justice.

This plaintiff seeks reversal of a judgment entered for the defendants in the Superior Court after a jury-waived trial of his trespass action.

The plaintiff commenced suit after defendants forcibly entered his apartment in Warwick. The complaint alleged that defendants broke into and entered plaintiff's apartment, damaged the entrance, and rifled plaintiff's belongings. The defendants denied the fact of entry but did not assert any affirmative defense in the alternative.

At trial, defendant James Godbout testified on direct examination that he forcibly entered plaintiff's apartment. The defendant subsequently offered evidence that tended to establish a defense of justifiable entry. The plaintiff citing Rule 8(c) of the Superior Court Rules of Civil Procedure objected to the evidence, asserting that justification constitutes an affirmative defense that must be pleaded specially. The trial justice received the evidence over plaintiff's objection. The justice determined that the entry was justified and found for defendants.

On appeal, plaintiff contends that defendants' failure to plead justification waives it as a defense. He maintains justification was not at issue in the case, precluding the court's consideration of it. After examination of Super.R.Civ.P. 8(c) and 15(b), we agree.

Prior to the enactment of Rule 8(c), we determined that a plea of justification in actions of trespass cannot be proven under a general denial. Tessier v. LaNois, 97 R.I. 414, 198 A.2d 142 (1964). "A plea of justification is a plea in confession and avoidance, and '(i)t must meet and justify the cause of action stated in the declaration.' " Ahern v. Lynch, 99 R.I. 316, 318, 207 A.2d 296, 297 (1965) (quoting Wright v. Union R. R. Co., 21 R.I. 554, 555, 45 A. 548, 548 (1900)).

Rule 8(c) carries forward these prior holdings into modern practice. The rule states "a party shall set forth affirmatively * * * any * * * matter constituting an avoidance or affirmative defense." This is a mandatory provision; failure to plead an affirmative defense results in its waiver. Jakobsen v. Massachusetts Port Authority, 520 F.2d 810, 813 (1st Cir. 1975); 1 Kent, R.I.Civ.Prac. § 8.6 at 87 (1969). Special pleading of affirmative defenses protects the complaining party from unfair surprise at trial. Gaines W. Harrison & Sons, Inc. v. J. I. Case Co., 180 F.Supp. 243, 247 (E.D.S.C.1960).

The plea of justification clearly constitutes an affirmative defense to an action of trespass. A general denial disputes the fact of entry, whereas a plea of justification admits the trespass, but avoids liability therefor. Thus, defendants waived the defense of justification unless properly raised.

After examining the record, we find that defendants did not formally raise the defense of justification. The defendants implicitly rely on the provisions of Rule 15(b) which direct the trial court to treat issues "tried by express or implied consent" as if raised in the pleadings. ¹ We shall not disturb judgment below if plaintiff implicitly consented to trial of the defense. Fram Corporation v. Davis, R.I., 401 A.2d 1269, 1274 (1979); Kenney v. Providence Gas Co., 118 R.I. 134, 141, 372 A.2d 510, 513 (1977).

The defendants point to two portions of the transcript in support of their implied-consent theory. They assert that plaintiff's counsel did not object to certain testimony tending to establish justification. They also claim that plaintiff's own testimony raised the issue.

Our review of the transcript reveals that plaintiff did not consent to trial of the justification defense. Throughout the trial, plaintiff's counsel vigorously opposed introduction of evidence relevant to justification. The justice effectively foreclosed objections to such evidence in his initial ruling. He deferred plaintiff's legal argument to an "appropriate time." He subsequently overruled plaintiff's objections to "this line of questioning."

Rule 15(b) does not require an objecting party to be vigilant constantly for references to an unpleaded issue. We have held in prior cases that a party consents to trial of unpleaded issues if he does not interpose any objection. Fram Corporation v. Davis, R.I., 401 A.2d 1269 (1979); Halpert v. Rosenthal, 107 R.I. 406, 267 A.2d 730 (1970); Cofone v. Narragansett Racing Association, 103 R.I. 345, 237 A.2d 717 (1968). However, we did not intend that a party must object to every reference to an unpleaded issue. We find that plaintiff's counsel effectively voiced his objection to the justification issue. Counsel's failure to renew his objection at each reference to justification does not signify consent under Rule 15(b).

The defendants also assert that plaintiff raised the issue of justification in his own testimony. We are not persuaded by their contention. The plaintiff testified to the identity of the police officers who entered his apartment. In his identification of defendant Godbout, plaintiff summarized his discussion with defendant. Although plaintiff's testimony implicitly suggested the issue of justification, we shall not, without more, infer his consent to try the issue. We stated in Kenney v. Providence Gas Co., 118 R.I. at 141, 372 A.2d at 513-14:

"Despite the broad remedial purpose of Rule 15(b), implied consent to the trial of an unpleaded issue is not established merely because evidence which is relevant to an issue expressly embraced by the pleading will also inferentially suggest the unpleaded issue. There can be no implied consent under Rule 15(b) unless the parties clearly understand that the evidence in question is aimed at the unpleaded issue."

Guided by this standard, we find that plaintiff offered his testimony solely as evidence of defendant's identity; it was not addressed to the unpleaded defense, which plaintiff clearly had no interest in raising.

The latter portion of Rule 15(b) governs when "evidence is objected to at trial on the ground that it is not within the issues made by the pleadings * * *." The rule provides, "the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby * * *." The rule contemplates rejection of evidence outside the scope of the pleadings but mandates liberal allowance of amendments to conform pleadings to the evidence offered. We held in Kenney v. Providence Gas Co., 118 R.I. at 142, 372 A.2d at 514, "(a)bsent a showing of extreme prejudice, a trial justice should permit the proposed amendment and allow the evidence. To do otherwise may constitute an abuse of discretion warranting reversal."

The...