John W. FRESHWATER, Appellant/Cross-Appellee,
v.
Riсhard VETTER and Royal Cove of Naples, Inc., Appellees/Cross-Appellants.
District Court of Appeal of Florida, Second District.
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. Frеshwater alleged fraud and breach of contract by Royal Cove and fraud by Royаl 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. Thеy contended that Freshwater had fraudulently executed a promissory note in cоnnection with the transaction. Royal Cove sought to recover the balancе claimed due on Freshwater's note.
*1115 The trial court directed a verdict against Freshwater on his breach of contract claim. The case went to the jury on Freshwаter's fraud count against Royal Cove and Vetter and on the counterclaim agаinst 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 Rоyal 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 Freshwatеr to amend his cause of action to include Vetter in his individual capacity at the close of Freshwater's case.
Freshwater alleged that the corporаtion was Vetter's alter ego. Since no evidence was offered to suppоrt 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 comрlaint to allege that Vetter had committed fraud against Freshwater. Thus, by allowing the amеndment 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,
Freshwater further argues that since evidence of fraud was introduced against Vetter without objection, the trial cоurt was correct in allowing the pleadings to be amended. The fallacy in this argument, as Vetter points out, is that he was not in a position to object to the evidence offered by Freshwater since it was consistent with the claim framed by Freshwater's pleading that Vetter was an alter ego of Royal Cove. Thus, we think Vetter's failure to objeсt did not constitute an express or implied consent to try the unpled issue. See Dysart v. Hunt,
If evidence is introduced as to facts or issues not presented in the pleadings, the court, in its discretion, may allow amendments to conform to the evidence. Fla.R.Civ.P. 1.190. However, amеnding to state a new cause of action should not be allowed over objection. Triax, Inc. v. City of Treasure Island,
Accordingly, we vacаte the judgment entered against Vetter individually; otherwise, we affirm. We direct the trial court to enter an amended judgment consistent with this opinion.
SCHEB, A.C.J., and SCHOONOVER and THREADGILL[*], JJ., concur.
NOTES
Notes
[*] Judge Threadgill participated in the decision but did not participate in the oral argument.