FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pinellas County; Karl B. Grube,
P. Stopa of Stopa Law Firm, Tampa, for Appellant.
M. Wallace of Akerman LLP, Tallahassee; William P. Heller of
Akerman LLP, Fort Lauderdale; Celia C. Falzone of Akerman
LLP, Jacksonville, and David A. Karp of Akerman LLP, Tampa,
Tracey appeals a final judgment foreclosing Wells Fargo Bank,
N.A.'s (Wells Fargo) mortgage on her home. Ms. Tracey
raises two issues on appeal. Finding merit in her first
argument, we need not consider the second. The circuit court
reversibly erred when it permitted Wells Fargo to amend its
complaint during trial to conform to the evidence it
presented of two unpled modification agreements.
underlying litigation began on June 9, 2011, when Wells Fargo
filed a complaint seeking to foreclose upon a mortgage on Ms.
Tracey's property. The original complaint included as
exhibits Ms. Tracey's promissory note, mortgage, and two
loan modification agreements, dated May 8, 2009, and July 17,
2009, respectively. As originally filed, Wells Fargo's
complaint specifically alleged that Ms. Tracey's breach
of the modification agreements predicated its claim for
an involuntary dismissal of that pleading, Wells Fargo
changed tack with respect to its theory of recovery. On
September 5, 2012, it filed an amended complaint, what would
become the operative pleading for the remainder of this case,
in which no mention was made of the previously asserted and
attached modification agreements. For her part, Ms.
Tracey's answer and affirmative defenses to the amended
complaint did not raise either of these modification
agreements as an avoidance to any part of Wells Fargo's
claim. So, seemingly, whatever importance these modification
agreements may have had-either as a basis for Wells
Fargo's recovery or as an avoidance to it-was abandoned
as an issue for adjudication. The case then progressed in a
not unordinary course for a residential mortgage foreclosure
the case went to trial four years later, Wells Fargo changed
course yet one more time, reverting back to the modification
agreements as a basis for its cause of action. Over
objection, Wells Fargo admitted both modification agreements
into evidence and called two witnesses who explained the
succession of the note, Ms. Tracey's payment history, and
that the balance was due and owing based upon the note and
modification agreements. Wells Fargo's counsel argued
that the omission of the modification agreements from the
amended complaint was a "mistake or inadvertence"
but that, in all events, their inclusion as part of its claim
for relief visited no prejudice on Ms. Tracey because she
signed the agreements and they were attached to a
pleading-albeit the original, abandoned complaint. Ms. Tracey
maintained that she was prejudiced by the change in Wells
Fargo's theory of the case because she was unable to
prepare her defense for an issue she had thought was
abandoned four years earlier. Indeed, she testified that she
was under the impression that the loan modification
agreements Wells Fargo introduced had never progressed beyond
proposals: she received blank envelopes from Wells Fargo
regarding the agreements, and when she attempted to inquire
about their status by telephone was directed to a call center
in Bangladesh. Nevertheless, the circuit court granted Wells
Fargo's motion and, following the conclusion of the
trial, entered the final judgment of foreclosure-premised on
the mortgage, promissory note, and both loan modification
agreements-that we now have before us.
circuit court's decision to amend the pleadings to
conform to the evidence under Florida Rule of Civil Procedure
1.190(b) is one we review for abuse of discretion. Turna
v. Advanced Med-Servs., Inc., 842 So.2d 1075, 1076 (Fla.
2d DCA 2003). Our review here requires us to examine a
particular aspect of rule 1.190(b):
Amendments to Conform with the Evidence.
When issues not raised by the pleadings are tried by express
or implied consent of the parties, they shall be treated in
all respects as if they had been raised in the pleadings.
Such amendment of the pleadings as may be necessary to cause
them to conform to the evidence and to raise these issues may
be made upon motion of any party at any time, even after
judgment, but failure so to amend shall not affect the result
of the trial of these issues. If the evidence is objected to
at the trial on the ground that it is not within the issues
made by the pleadings, the court may allow the pleadings to
be amended to conform with the evidence and shall do so
freely when the merits of the cause are more effectually
presented thereby and the objecting party fails to
satisfy the court that the admission of such evidence will
prejudice the objecting party in maintaining an action
or defense upon the merits.
question, Ms. Tracey objected to Wells Fargo's
reassertion of the loan modification agreements as a basis
for its recovery at trial. She did not try Wells Fargo's
claim on two modification agreements by express or implied
consent. The question before us, then, is whether the circuit
court's finding that she was not prejudiced by the late
amendment amounted to an abuse of discretion. Under these
facts, we hold that it was.
courts have attempted to lay hold of the precise measure of
"prejudice" that rule 1.190(b) contemplates when a
party objects to a motion to amend a pleading to conform to
the evidence.Cf. Smith v. Mogelvang, 432 So.2d
119, 123 (Fla. 2d DCA 1983) ("There is a limit, which
cannot be precisely delineated . . . beyond which parties may
not depart from their pleadings."). But a few guiding
principles can be discerned. First and foremost, a court must
be mindful of the larger purpose that pretrial pleadings
fulfill in civil litigation-pleadings function as a safeguard
of due process by ensuring that the parties will have prior,
meaningful notice of the claims, defenses, rights, and
obligations that will be at issue when they come before a
court. See Pro-Art Dental Lab, Inc. v. V-Strategic Grp.,
LLC, 986 So.2d 1244, 1252 (Fla. 2008) ("
'Florida law clearly holds that a trial court lacks
jurisdiction to hear and to determine matters which are not
the subject of proper pleading and notice, ' and
'[t]o allow a court to rule on a matter without proper
pleadings and notice is violative of a party's due
process rights.' " (alteration in original)
(emphasis omitted) (quoting Carroll & Assocs., P.A.
v. Galindo, 864 So.2d 24, 28-29 (Fla. 3d DCA 2003)));
Hart Props., Inc. v. Slack, 159 So.2d 236, 239 (Fla.
1963) ("[I]ssues in a cause are made solely by the
pleadings . . . . [The purpose of pleadings] is to present,
define and narrow the issues, and to form the foundation of,
and to limit, the proof to be submitted on the trial.");
Land Dev. Servs., Inc. v. Gulf View Townhomes, LLC,
75 So.3d 865, 871 (Fla. 2d DCA 2011) ("Due process
protections prevent a trial court from deciding matters not
noticed for hearing and not the subject of appropriate
pleadings." (quoting Mizrahi v. Mizrahi, 867
So.2d 1211, 1213 (Fla. 3d DCA 2004))); Rankin v.
Rankin, 258 So.2d 489, 491 (Fla. 2d DCA 1972) ("We
simply say that the pleadings must be such as to afford both
parties due process."). It must also be remembered that
rule 1.190(b), like all ...