Foliage Corp. of Florida, Inc. v. Watson, 78-207

• Citation: 381 So.2d 356
• Decision Date: 26 March 1980
• Docket Number: No. 78-207,78-207
• Parties: FOLIAGE CORPORATION OF FLORIDA, INC., Appellant, v. Daniel E. WATSON and Wilma B. Watson, Appellees. /NT4-76.
• Court: Court of Appeal of Florida (US)

Page 356

381 So.2d 356

FOLIAGE CORPORATION OF FLORIDA, INC., Appellant, v. Daniel E. WATSON and Wilma B. Watson, Appellees.

No. 78-207/NT4-76.

District Court of Appeal of Florida, Fifth District.

March 26, 1980.

Thomas B. DeWolf and Terrell Griffin, Orlando, for appellant.

Maxwell W. Wells, Jr., Orlando, for appellees.

FARRINGTON, OTIS, Associate Judge.

This is an appeal from an Amended Final Judgment based on a jury verdict awarding damages to the lessors of a nursery for waste to the leased property and conversion of stock plants ¹ which under the terms of the lease remained the property of the lessors. ²

On April 1, 1975, appellees Daniel E. Watson and Wilma R. Watson, leased their nursery property to appellant Foliage Corporation of Florida, Inc., for three years commencing June 1, 1975, by written lease, containing a clause permitting termination by the lessee on any yearly anniversary date by giving ninety days prior written notice to the lessor. The lessee gave timely notice and thereby exercised its option to terminate the lease at the end of the first year.

During the term of the lease the stock plants were kept in beds on raised benches in an area covered with shade cloth which was referred to during the trial as "E" area. The stock plants supplied by the lessors, which had previously been kept in another building, were divided and planted in beds in "E" area. In addition to the stock plants supplied to it by the lessors, Foliage Corporation planted in beds in "E" area some stock plants which it purchased from outside sources and some which it grew from vine cuttings received under the terms of the lease.

Between May 5, 1976, and May 8, 1976, while in the process of vacating the nursery Foliage Corporation began removing some of the stock plants from "E" area. A bitter dispute arose between plaintiff Daniel E. Watson and the principals of Foliage Corporation, over which plants in "E" area were the property of the lessors and should remain in the nursery, and which were the property of the tenant and could be removed. Plaintiffs conceded that Foliage Corporation was entitled to remove any stock plants purchased from outsiders or grown by it from vine cuttings, but both lessors and lessee claimed the additional stock plants resulting from division of the lessors' original stock plants. Also there was dispute as to which of the stock plants in "E" area were lessors' original plants.

The dispute became aggravated to the extent that lessor Daniel E. Watson blocked the Foliage Corporation's truck which was removing stock plants from the nursery, accused the principals of Foliage Corporation of stealing his stock plants, called a deputy sheriff to the premises and demanded the arrest of the Foliage Corporation personnel, and threatened to kill John Crosby, the secretary of Foliage Corporation. In an effort to settle the dispute, a meeting was arranged at the office of an attorney employed by Daniel E. Watson on May 10, 1976.

At the trial the defendant, Foliage Corporation, proffered testimony in the absence of the jury that an oral settlement of the dispute was reached at this meeting, and that as a part of the settlement Daniel E. Watson on behalf of the lessors agreed that Foliage Corporation could have all the stock plants located in "E" area and could remove them during the remainder of the lease term, which would end May 31, 1976, without interference by the lessors. ³ The trial judge sustained the objection of attorney for plaintiffs to this proffered testimony, and no testimony of the alleged oral settlement of the dispute was heard by the jury.

The testimony was undisputed that following this meeting and during the last three weeks of the lease term Foliage Corporation removed the balance of the stock plants located in "E" area from the leased property except for a few that were in poor condition and of little value, without objection by the lessor. Since the lease specifically provided that the growing stock should remain the property of the lessors, the rejection of the proffered testimony that the tenant removed the stock plants pursuant to an oral settlement agreement with the lessors left the defendant without any effective defense; and the trial resulted in a jury verdict for the plaintiffs in the amount of $72,500.00, plus attorney's fees.

Appellant contends that it was error for the trial judge to refuse testimony of the alleged oral agreement reached by the parties in settlement of the dispute between the parties. We agree that evidence of the alleged oral settlement agreement should have been received and reverse the judgment.

Appellees contend that the evidence concerning the oral settlement agreement was properly rejected (1) by reason of the provisions of Florida Rule of Civil Procedure 1.030(d) ⁴ ; (2) because the proffered settlement agreement constituted an attempt to modify the terms of the written lease by parol; (3) because the written lease was within the Statute of Frauds and could not be modified or compromised except in writing; and (4) because there was no consideration for the proffered oral settlement agreement.

We disagree with appellees' contention that the proffered oral settlement agreement was rendered unenforceable by the provisions of Florida Rule of Civil Procedure 1.030(d). The Florida Rules of Civil Procedure are applicable to practice and procedure of litigants in court, but have no application to an oral settlement agreement of a dispute reached by the parties to the dispute prior to the commencement of any court action. The case of Moore v. Gunning, 328 So.2d 462 (Fla. 4th DCA 1976) relied on by appellees held that by reason of Florida Rule of Civil Procedure 1.030(d) an oral settlement agreement between litigants in a pending personal injury case was unenforceable. The holding in Moore is inapplicable to the situation in the instant case because in this case the parties were not in court at the time of the alleged settlement agreement. The case of National Surety Co. v. Willys-Overland, Inc., 103 Fla. 738, 138 So. 24 (1931) held "that, in the absence of statutory requirement, no particular form of agreement is essential to the validity of a compromise; and it need not be in writing unless it is so required by special statute." National Surety remains the law of Florida applicable to an oral compromise agreement between parties not involved in any court action.

We also reject appellees' contention that the proffered settlement agreement was inadmissible because it constituted an attempt to modify the terms of the written lease by parol. A written contract can be modified by a subsequent oral agreement when the oral agreement has been accepted and acted upon by the parties. ⁵ The defendant proffered testimony to the effect that the parties accepted and acted upon the settlement agreement modifying the terms of the written lease.

Appellees' contention that the proffered oral settlement agreement was properly rejected by reason of being within the statute of frauds should not have been considered. The defendant pleaded the settlement agreement as an affirmative defense in its answer. Plaintiffs filed their reply denying that any settlement agreement had been reached, but did not plead the statute of frauds in avoidance. Under the Florida Rules of Civil Procedure a plaintiff who seeks to avoid an affirmative defense is required to file a reply containing the avoidance. By failing to plead the...