Echoes of Silence: How an Unspoken Claim Undid Plaintiff Victory

In Hendry v. Adams, Nos. 3D22-2046 & 3D24-0903 (Fla. 3d DCA Feb. 12, 2025), Florida’s Third District Court of Appeal reversed a $5 million jury verdict because the trial court allowed the plaintiff to put an unpleaded claim of racial discrimination before the jury. The theory had appeared in an earlier version of the complaint, but it was dropped before trial — and once it was gone from the operative pleading, it could not come back in through the evidence.

Facts: A Theory Dropped From the Complaint

Ankinyele Adams, an African American man who owned V-Live, a restaurant on South Beach, sued Ian Hendry, Club Management, LLC, and the Netherland of South Beach Condominium Association, Inc. in the Circuit Court for Miami-Dade County (Judge David C. Miller). His claims arose from a series of arrests for alleged noise violations at the restaurant. The operative fourth amended complaint pleaded malicious prosecution, civil conspiracy to commit malicious prosecution, and intentional infliction of emotional distress (IIED).

Race had once been part of the case. Adams’s second amended complaint included a count for “Conspiracy to Violate Civil Rights,” styled under 42 U.S.C. section 1983(3), that alleged racial discrimination. That count did not appear in the original complaint and was removed from the third and fourth amended complaints. Adams never amended again, so by trial race was an unpleaded claim.

Even so, Adams made clear he intended to tell the jury that the arrests were racially motivated, that he was the first Black business owner on South Beach, and that he was the only business owner there arrested for a noise violation. The defendants moved in limine to exclude any reference to racial discrimination, arguing it was never pleaded and lacked supporting evidence. The trial court denied the motions, reasoning that the evidence “would go directly to credibility and bias.”

The jury found for Adams on all claims except punitive damages, awarding $5 million in non-economic damages and $300,000 for the legal fees he incurred defending the criminal charges. The trial court denied the defendants’ directed verdict and post-trial motions, except that it remitted the criminal defense fee award to $125,000, and later entered a separate final judgment for attorney’s fees and costs. The two appeals were consolidated.

Issues: Can an Unpleaded Claim Reach the Jury?

The appeal turned on whether the trial court abused its discretion by admitting evidence of racial discrimination when that theory was an unpleaded claim, absent from the fourth amended complaint. A second question followed: whether the attorney’s fee judgment could stand if the underlying judgment did not.

Evidentiary rulings and the denial of a motion for new trial are reviewed for an abuse of discretion. Miami-Dade Cnty. v. Asad, 78 So. 3d 660, 663 (Fla. 3d DCA 2012).

Holding

In an opinion by Judge Fernandez, joined by Judges Lobree and Gooden, the Third District held that the trial court abused its discretion in admitting evidence of racial discrimination — an unpleaded claim that Adams failed to include in the operative complaint. The court reversed the amended final judgment and remanded for a new trial in Case 3D22-2046. Because the primary judgment was reversed, the court also reversed the final judgment for attorney’s fees in Case 3D24-0903.

Rationale: Abandoned Allegations Stay Abandoned

The court began with the pleading history. The civil rights count in the second amended complaint, the court said, “leaves no question” that Adams was at one point asserting a claim for racial discrimination — and that he later abandoned it.

The court then looked at what a race-based theory requires at the pleading stage. In Weaver v. Leon County Classroom Teachers Ass’n, 680 So. 2d 478 (Fla. 1st DCA 1996), a complaint stated a Title VII claim where the plaintiff alleged that he was Black, that the union knew of the employer’s history of racial discrimination against him, and that the union failed in its duty to represent him.

In State v. Burch, 545 So. 2d 279, 283 (Fla. 4th DCA 1989), the Fourth District rejected a discrimination argument in part because the defendants did not plead or prove that they were personally targeted for arrest and prosecution for racial reasons. The Third District also cited St. Louis v. Florida International University, 60 So. 3d 455, 459 (Fla. 3d DCA 2011), and City of West Palm Beach v. McCray, 91 So. 3d 165, 171 (Fla. 4th DCA 2012).

From those cases, the court held that Adams was required, at a minimum, to allege (1) his race and (2) that he was arrested for racial reasons. He asserted both in the second amended complaint and then dropped all mention of race. The trial court had admitted the evidence as bearing on credibility and bias, but the Third District held that letting the jury hear an unpleaded claim was an abuse of discretion requiring a new trial. The fee judgment, which depended on the primary judgment, fell with it.

Practice Points: Avoiding the Unpleaded Claim Trap

Hendry v. Adams is a short opinion with long reach. Whether you represent the plaintiff or the defense, these are the takeaways for Florida trial practice:

Treat every amendment as a full restatement. In Florida, an amended complaint supersedes the pleading it replaces. An allegation left out of the operative complaint becomes an unpleaded claim, even if it appeared in an earlier version. Before trial, compare each version of the complaint and confirm that every theory you plan to argue is still pleaded.

Amend before trial, not after the verdict. If a theory matters to your case, seek leave to amend under Florida Rule of Civil Procedure 1.190(a), which provides that leave “shall be given freely when justice so requires.” Waiting until trial invites the argument that the other side was blindsided by an unpleaded claim.

Do not count on trial by consent. Under Rule 1.190(b), issues not raised by the pleadings may be treated as if they had been pleaded when they are tried by express or implied consent. Consent is hard to find when, as in Hendry, the opposing party moved in limine and objected to evidence of the unpleaded claim.

Defense counsel: make the record. File a motion in limine aimed specifically at the unpleaded claim and get a ruling on the record. Under section 90.104(1), Florida Statutes, a definitive ruling admitting or excluding evidence, made at or before trial, preserves the issue without renewing the objection — but a contemporaneous objection remains the safer practice.

Relevance is not a substitute for pleading. Evidence offered on credibility or bias can still place an unpleaded claim in front of the jury. In Hendry, the trial court’s credibility-and-bias rationale did not prevent reversal.

Fee awards rise and fall with the judgment. A prevailing-party fee judgment that depends on the merits judgment will be reversed along with it. Both sides should factor that exposure into appeal and settlement decisions.

Why Hendry v. Adams Matters

This decision underscores the importance of precise pleading in civil litigation, particularly when a party advances a claim as serious as racial discrimination. The Third District’s adherence to the pleading rules reflects a commitment to fairness: defendants are entitled to know the case they must meet and should not be blindsided by an unpleaded claim at trial.

For the plaintiff here, the cost of an unpleaded claim was a $5 million verdict and a second trial. For defendants, the case confirms that a well-preserved motion in limine can make the difference on appeal. At Cox Law, PLLC, we handle civil litigation and appeals for clients throughout Florida. If you are preparing a case for trial or evaluating an appeal, contact us or call 813-685-8600.

Read the Opinion

Read the full opinion in Hendry v. Adams (Fla. 3d DCA Feb. 12, 2025) below.

This article is for general informational purposes only and is not legal advice. Reading it does not create an attorney-client relationship.