Kersey v. City of Riviera Beach, 75-965
| Citation | 337 So.2d 995 |
| Decision Date | 09 July 1976 |
| Docket Number | No. 75-965,75-965 |
| Parties | Larry KERSEY and Primitivo Rios, Appellants, v. CITY OF RIVIERA BEACH, a Florida Municipal Corporation, Appellee. |
| Court | Court of Appeal of Florida (US) |
Robert V. Romani, for Farish & Farish, West Palm Beach, for appellants.
Allen V. Everard and Nicholas P. Wellman, Riviera Beach, for appellee.
LEE, THOMAS E., Associate Judge.
This appeal is before us on appellants (plaintiffs below) challenging the trial court's ruling, in a non-jury trial, favoring the appellee (defendant-City) in employing them at a pay rate of Patrolman rather than as Identification Officers in the police echelon of appellee. Appellants principal contention is the trial court erred in admitting the documentary and oral testimony in the case to support an affirmative defense not previously pleaded by appellee or changing the applicable law of the case following the presentation of all the evidence.
Factually, the City of Riviera Beach, Florida, Department of Police, desired to restructure its Identification Department for the purpose of having a more sophisticated bureau to collect, classify and identify physical evidence, finger prints and technical photographic works. To staff the bureau, a table of echelon was to be established consisting of Captain, Lieutenant, Sergeant and Identification Officer. Their salary, under a new enabling ordinance, was to be similar to that of their counterparts in the long-established police department.
In furtherance of this plan appellants Larry Kersey and Primitivo Rios (both seasoned identification officers from another city) were hired as Identification Officers on January 17, 1972 and February 7, 1972, respectively, at a starting salary of $158.46 per week. However, at this time, City Ordinance Number 883 was in effect which provided for the starting salary of an Identification Officer to be $178.31. It had been explained to appellants that their salary would come from the Department of Police as there was no provision in the current budget for their salary. On April 5, 1972, enabling legislation, City Ordinance Number 902 was passed to provide for the Department of Police expansion and the payment of salaries for additional personnel employed to staff the identification bureau. Checking through their personnel records, appellants discovered that they should have been employed by appellee at the higher weekly salary and after demand for the increased compensation under Ordinance Number 883 suit was instituted by them resulting in judgment for appellee. This appeal followed.
The first raised by appellants is:
Whether the trial court erroneously permitted testimony regarding appellee's budgetary restrictions when reliance on said budget was never set forth as affirmative defense by the appellee and was therefore totally irrelevant and immaterial to the applicable law of the case.
Rule 1.110(D) FRCP states that . . . a party shall set forth affirmatively . . . estoppel . . . illegality . . . and any other matter constituting an avoidance or affirmative defense. Accordingly it has long been held in Florida that affirmative defenses must be pleaded or they are considered waived. Con-Dev of Vero Beach, Inc. v. Casano, Fla.App., 272 So.2d 203 (1972); Wise v. Quina, Fla.App., 174 So.2d 590 (1965); Bradford Builders, Inc. v. Dept. of Water and Sewers, Fla.App., 142 So.2d 137 (1961). Specifically,...
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