JOJO'S CLUBHOUSE, INC., Appellant,
v.
DBR ASSET MANAGEMENT, INC., Dim Parkway Limited Partnership, Ross Realty Investment, Inc., Robert Sherman, individually, and Murton Roofing Corporation, a Florida Corporation, Appellees.
District Court of Appeal of Florida, Fourth District.
*504 Peter Loblack of the Law Office of Peter Loblack, P.A., Miami, for appellant.
Amy D. Shield of Amy D. Shield, P.A., Boca Raton, and William John McFarlane III of Murphy, McFarlane & Dolan, Fort Lauderdale, for appellees DBR Asset Management, Inc., DIM Parkway Limited Partnership, Ross Realty Investment, Inc., and Robert Sherman.
STEVENSON, J.
JoJo's Clubhouse, Inc., appeals from a final judgment arising out of its claim for breach of a lease agreement. JoJo's obtained a total judgment in the amount of $27,459.86, but took nothing by the action as a result of a $29,342.94 set-off. We affirm the damage award, but reverse the set-off ordered by the trial court.
Based on our review of the record, we find ample support for the trial court's rejection of the owner's inflated opinion as to the value of the destroyed restaurant. We, however, agree with JoJo's argument that the trial court erred in granting set-off from the award based on an attorney's fee judgment that appellee, DBR Asset Management, Inc., obtained against JoJo's in a related federal civil rights action.
The basis for set-off was established well in advance of trial, yet DBR failed to seek to amend its answer, instead, waiting until the verdict was returned to state its claim for set-off. A motion for set-off is an affirmative defense. See Kellogg v. Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A.,
Affirmed in part, reversed in part, and remanded.
SHAHOOD, J., and GEIGER, DWIGHT L., Associate Judge, concur.