Freshwater v. VetterFreshwater v. Vetter
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 Naрles, Inc., and its president, Richard Vetter. Freshwater alleged fraud and breach of сontract by Royal Cove and fraud by Royal Cove and Vetter in Freshwater‘s purchase of Executive Health Spa, owned by Royal Cove.
Royal Cove and Vetter filed thеir defenses and a counterclaim. They contended that Freshwater had fraudulently еxecuted a promissory note in connection with the transaction. Royal Covе sought to recover the balance claimed due on Freshwater‘s note.
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 thаt the trial court erred in allowing Freshwater to amend his cause of action to include Vetter in his individual capacity at the close of Freshwater‘s case.
Freshwаter alleged that the corporation was Vetter‘s alter ego. Since no еvidence was offered to support this theory, the trial judge directed a verdict in Vetter‘s favor. However, at this point, and over objection of Vetter, the court аllowed Freshwater to amend his complaint to allege that Vetter had committеd fraud against Freshwater. Thus, by allowing the amendment 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, 98 So. 2d 334, 337 (Fla. 1957). Frеshwater, however, seeks to sustain the trial court‘s action in allowing his complaint against Vetter to be amended over Vetter‘s objection. He argues that the cеntral issue throughout the trial was the actions and statements of Vetter. Thus, Freshwater says, there was no surprise at trial when the trial judge allowed his pleadings to be amended tо conform with the evidence that Vetter was individually liable for his fraudulent misrepresentations.
Freshwater further argues that since evidence of fraud was introduced against Vеtter without objection, the trial court 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 Cоve. Thus, we think Vetter‘s failure to object did not constitute an express or implied consent to try the unpled issue. See Dysart v. Hunt, 383 So. 2d 259 (Fla. 3d DCA 1980).
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 thе evidence.
Accordingly, we vacate 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.