Opinion
No. BH-253.
June 4, 1986.
Appeal from the Circuit Court for Duval County, Ellis T. Fernandez, Jr., J.
Jeffrey C. Regan, of Rogers, Towers, Bailey, Jones Gay, Jacksonville, for appellant.
Daniel S. Brim, Fernandina Beach, for appellee.
The trial court entered judgment for appellee, John L. Williams, on a finding that appellant, American Enviro-Port, Inc., had abandoned its contract with appellee. Abandonment of contract is an affirmative defense that the defendant must raise in its answer, or otherwise it is waived. Appellee did not raise abandonment as a defense in its answer, and appellant consistently objected to the trial of that issue throughout the proceedings below. Therefore, the trial court's judgment is in error to the extent it is predicated on abandonment of contract.
The record suggests, and appellee argues that the trial judge intended to rule, that appellant failed to prove its performance under its contract at trial. While that determination may be made by the trial judge, it has not been made in the final judgment before this court.
The judgment of the trial court is REVERSED and REMANDED for further proceedings consistent with this opinion.
SHIVERS and ZEHMER, JJ., concur.