Summary
holding that affirmative defenses are waived if not pled
Summary of this case from Heartwood 2, LLC v. DoriOpinion
No. 4D08-769.
October 29, 2008.
Appeal from the Circuit Court, Fifteenth Judicial Circuit, Palm Beach County, David E. French, J.
Wayne Kaplan, Boca Raton, for appellant.
Ian Gardner, Boca Raton, pro se.
This is an appeal by Southern Management and Development, L.P., from a Final Judgment in favor of Ian Gardner, assignee from First United Development Corporation. As his second issue appellant argues the trial court erred in entering a Final Judgment for the full amount of Gardner's claim without allowing a set-off by the amount awarded appellee in a prior action involving the same subject matter.
As we held in Jojo's Clubhouse, Inc. v. DBR Asset Management, Inc., 860 So.2d 503, 504 (Fla. 4th DCA 2003):
A motion for set-off is an affirmative defense. See Kellogg v. Fowler, White, Burnett, Hurley, Banick Strickroot, P.A., 807 So.2d 669, 670 (Fla. 4th DCA 2001), review denied, 828 So.2d 386 (Fla. 2002). Affirmative defenses are waived if not pled. See Wolowitz v. Thoroughbred Motors, Inc., 765 So.2d 920, 923 (Fla. 2d DCA 2000); Goldberger v. Regency Highland Condo. Ass'n, 452 So.2d 583, 585 (Fla. 4th DCA 1984).
In that set-off was never pled in this case, we affirm on the authority of Jojo's Clubhouse.
We hold the first issue raised was without merit and affirm without discussion.
Affirmed.
FARMER and GROSS, JJ., concur.