Blanton v. Baltuskouis
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2009
RYAN BLANTON,
Appellant,
v.
CHESTER BALTUSKOUIS,
Appellee.
No. 4D08-431
[September 2, 2009]
DAMOORGIAN, J.
Ryan Blanton timely appeals a final judgment for monetary damages
in favor of Chester Baltuskouis. Blanton argues that the trial court erred
in allowing Baltuskouis to pursue a claim for damages that was neither
pleaded nor tried b y consent or waiver. We agree and reverse the
judgment with instructions to enter judgment in favor of Blanton. Our
holding renders Blanton’s other challenges moot.
By way of background, Baltuskouis filed a one-count complaint
against Blanton, seeking specific performance of a contract to convey real
property.
Blanton filed an answer, affirmative defenses, a n d a
counterclaim. The counterclaim is not relevant to this appeal. The trial
court issued an order setting the case for trial.1 Baltuskouis requested a
continuance. In his motion, Baltuskouis’s attorney stated he was unable
to contact Blanton, who was unrepresented at that point in the
proceeding. Baltuskouis also filed a unilateral pretrial stipulation,
presenting two issues for determination at trial: (1) whether defendant
breached the contract; and (2) whether plaintiff suffered damages from
the breach and, if so, what amount.2 The trial court denied the motion
During the course of the pretrial proceedings, the parties’ respective counsel
withdrew from the case.
Just before trial, Baltuskouis’s attorney again
appeared on his behalf and represented Baltuskouis at trial.
1
2
The unilateral pretrial stipulation does not include a certificate of service or
otherwise indicate that Blanton received a true copy of the stipulation.
for continuance, and th e case proceeded to trial. Blanton failed to
appear at trial. At the conclusion of the presentation of the evidence, the
trial court allowed the pleadings to conform to the evidence. Thereafter,
the trial court entered judgment for breach of contract damages against
Blanton in the amount of $142,165.40.3 Blanton filed a motion for
rehearing or a new trial pursuant to Florida Rule of Civil Procedure 1.530
and a motion for relief from judgment pursuant to Florida Rule of Civil
Procedure 1.540(b). In his motions Blanton’s attorney argued that the
court erred by allowing Baltuskouis to proceed on a claim for breach of
contract when the complaint was limited to a claim for specific
performance. Both motions were denied.
“‘The standard of review applicable to an order on a motion for new
trial is abuse of discretion.’” Reid v. Altieri, 950 So. 2d 518, 525 (Fla. 4th
DCA 2007) (quoting Taylor v. Magana, 911 So. 2d 1263, 1266 (Fla. 4th
DCA 2005)). Similarly, this court reviews a n order deciding a rule
1.540(b) motion for relief from judgment for a n abuse of discretion.
J.J.K. Int’l, Inc. v. Shivbaran, 985 So. 2d 66, 68 (Fla. 4th DCA 2008).
The law in Florida allows damages incident to granting specific
performance, but limits such damages to those which will return the
parties to the status quo at the time of the breach. See Walker v. Benton,
407 So. 2d 305, 307 (Fla. 4th DCA 1981) (“‘[D]amages’ awarded incident
to a decree of specific performance are clearly different from those which
would be awarded for breach of the contract.”). Baltuskouis’s complaint
sought only specific performance of the alleged contract. Our conclusion
is supported by the complaint, as well as the trial court’s explanation at
the post-judgment hearing that “Baltuskouis made a motion to conform
the pleadings to the evidence, which I granted.” Accordingly, absent a
properly amended complaint to include a claim for breach of contract
and damages or Blanton’s agreement to try those claims by consent or
waiver, Baltuskouis’s damages claim was limited to those damages which
would return the parties to the status quo at the time of the breach and
then, only if he prevailed on his specific performance claim. Id.
We next turn to whether Baltuskouis properly amended his pleading
to include the claim for which he was awarded damages. State Farm
Mut. Auto. Ins. Co. v. Horkheimer, 814 So. 2d 1069, 1074 (Fla. 4th DCA
2001) (holding that notice of a change in the pleadings or the issues to be
litigated at trial is an issue of elementary due process). On appeal
The property in question was sold at a foreclosure sale, mooting Baltuskouis’s
claim for specific performance and helping to explain why the trial court
awarded damages instead.
3
-2-
Baltuskouis argues that he provided proper notice of his intent to amend
his pleadings through his unilateral pretrial stipulation. He reasons that
Blanton waived his right to object to the amendment of the pleadings at
trial by failing to object to Baltuskouis’s unilateral pretrial stipulation
and not participating in the trial.
We hardly think that there was sufficient notice of the breach of
contract damages claim in this case. The only reference to the new claim
prior to trial was contained in the unilateral pretrial stipulation, with no
certificate of service, or other evidence of notice to Blanton that the
pleadings were being amended to include a breach of contract claim.
Accordingly, we conclude that a judgment on the breach of contract
damages claim, about which Blanton was not notified, cannot stand.
See id.
Turning next to whether Blanton’s failure to appear at trial
constitutes his consent to the amendment, we hold that it does not and
find support for our conclusion in Hollie v. Hollie, 388 So. 2d 1389 (Fla.
1st DCA 1980).
In Hollie, which presents a similar procedural
background, the First District Court held that a party’s failure to appear
at trial furnishes no basis upon which to allow the opposing party to
assert a claim for affirmative relief, not previously pleaded, without
notice, service of the amended pleading, and an opportunity to respond.
Id. at 1390. There, the wife initiated the action for dissolution of
marriage, which included a claim for alimony. Id. The husband filed an
answer. Id. A final hearing was set, and just prior to the final hearing,
the wife’s attorney filed a motion for continuance, explaining that the
wife was scheduled to be admitted to the hospital and it was impossible
for her to attend the hearing, as well as a motion to withdraw because
venue had been transferred. Id. The trial court denied the motion for a
continuance, but neither the wife nor her attorney appeared at the final
hearing. Id. The trial court proceeded with the final hearing with the
husband in attendance, and permitted him to amend his pleadings by
adding a counterclaim for dissolution. Id. The trial court entered a final
judgment of dissolution, which did not contain a provision concerning
the wife’s alimony claims. Id. The First District reversed because the
wife lacked notice of the amended pleading, explaining that Florida Rule
of Civil Procedure 1.190(b) could not be applied to justify the procedure
followed in this case. Id.; cf. Horkheimer, 814 So. 2d at 1074-75; Baron
Auctioneer, Inc. v. Ball, 674 So. 2d 212, 213 (Fla. 4th DCA 1996) (holding
that once a party demands a trial by jury, it is improper to proceed to a
bench trial simply because one of the parties fails to appear, regardless
of who made the request).
-3-
In conclusion, Baltuskouis was required to give proper notice to
Blanton of his intent to amend his pleading to include a claim for breach
of contract. The only alternative was for Blanton to consent to the issue
being tried or waive any objection. Baltuskouis failed to file a motion for
leave to amend, and Blanton neither consented to the amendment, nor
waived any right to object. Accordingly, we remand to the trial court with
instructions to vacate the final judgment in favor of Baltuskouis and for
entry of a final judgment in favor of Blanton.
We decline to award Baltuskouis a new trial because, even assuming
he presented sufficient evidence at the trial to support the final judgment
for monetary damages, that evidence was not properly before the trial
court where the complaint sought only specific performance. Compare
Morgan Stanley & Co., Inc. v. Coleman Holdings, Inc., 955 So. 2d 1124,
1131 (Fla. 4th DCA 2007) (citing Teca, Inc. v. WM-TAB, Inc., 726 So. 2d
828, 830 (Fla. 4th DCA 1999)) (holding that plaintiff was not entitled to a
second “bite at the apple” when there was no proof at trial concerning the
correct measure of damages), with Hollie, 388 So. 2d at 1390 (holding
that rule 1.190(b) does not permit amendment of pleadings without
notice to opponent).
Reversed and Remanded.
MAY, J., and TUTER, JACK, Associate Judge, concur.
*
*
*
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach
County;
David
E.
French,
Judge;
L.T.
Case
No.
502006CA006457XXXXMB AD.
George P. Ord of Murphy, Reid, Pilotte & Ord, LLP, Palm Beach
Gardens, for appellant.
Marshall J. Osofsky of Moyle, Flanigan, Katz, Breton, White &
Krasker, P.A., West Palm Beach, for appellee.
Not final until disposition of timely filed motion for rehearing.
-4-
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