USCA11 Case: 19-14777 Date Filed: 10/18/2021 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-14777
____________________
CHICO S.S. MOSS,
a.k.a. Shawn Moss,
KI.M.ET LTDA,
a.k.a. The Prosyon Group,
Plaintiffs-Appellees,
versus
AMERICAN PRIVATE EQUITY, LLC,
FREDDY A. RUSSIAN,
Defendants-Appellants.
USCA11 Case: 19-14777 Date Filed: 10/18/2021 Page: 2 of 4
2 Opinion of the Court 19-14777
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:18-cv-00587-SDM-JSS
____________________
Before JORDAN, NEWSOM, Circuit Judges, and BURKE,* District
Judge.
PER CURIAM:
Freddy Russian and American Private Equity appeal from
the portions of a jury verdict finding them liable and awarding
damages on fraud claims asserted by Chico Moss. Following oral
argument and a review of the record, we affirm. 1
The appellants contend that the fraud claims are barred by
releases executed by Mr. Moss when the parties renegotiated their
contractual relationship. We disagree for a number of reasons.
First, release is an affirmative defense which must be pled.
See Fed. R. Civ. P. 8(c)(1); Perry v. Merit Systems Protection Bd.,
137 S. Ct. 1975, 1986 n.9 (2017). The magistrate judge denied with-
out prejudice the appellants’ motion for leave to add the defense of
*The Honorable Liles C. Burke, United States District Judge for the Northern
District of Alabama, sitting by designation.
1We assume the parties’ familiarity with the facts and procedural history and
set out only what is necessary to explain our decision. As to issues not dis-
cussed, we summarily affirm.
USCA11 Case: 19-14777 Date Filed: 10/18/2021 Page: 3 of 4
19-14777 Opinion of the Court 3
release, and the appellants never appealed that non-dispositive rul-
ing to the district court. That constitutes waiver. See Fed. R. Civ.
P. 72(a); Smith v. School Bd. of Orange County,
487 F.3d 1361, 1365
(11th Cir. 2007). Moreover, although the denial was without prej-
udice, the appellants never filed a renewed motion identifying
good cause for leave to amend.
Second, we do not agree with the appellants that the effect
of the releases was tried by implied consent. See Fed. R. Civ. P.
15(b)(2). On this record, we conclude that Mr. Moss would have
been prejudiced because he had no notice of the releases being a
separate and potentially case-dispositive issue and because he could
have offered additional evidence or arguments on the releases. See
Doe #6 v. Miami-Dade County,
974 F.3d 1333, 1339 (11th Cir.
2020). We also do not believe that the question asked of Mr. Moss
about one of the releases resulted in implied consent because the
releases—which were admitted into evidence—were relevant to
Mr. Moss’ fraud in the inducement claim. See Wesco Mfg., Inc. v.
Tropical Attractions of Palm Beach, Inc.,
833 F.2d 1484, 1487 (11th
Cir. 1987).
Third, the jury was not instructed on the releases, and was
not asked to make any findings about the validity, applicability, or
scope of the releases. In order to do as the appellants ask, we would
have to determine the effect of the releases as a matter of law with-
out any attendant instructions or findings. We decline to undertake
such a review.
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4 Opinion of the Court 19-14777
The appellants also challenge the sufficiency of the evidence
to support the jury’s fraud verdicts and the award of punitive dam-
ages. Given the deferential standard we apply when reviewing jury
verdicts, see Mamani v. Sánchez Bustamante,
968 F.3d 1216, 1230
(11th Cir. 2020), we find no basis for setting aside the verdicts here. 2
AFFIRMED.
2 We add one more thing. The appellants contend, in part, that Mr. Moss did
not show that his reliance was reasonable. See Russian Corrected Initial Br. at
36. But under Florida law, which governs, justifiable reliance is not required
for a fraud claim. See Butler v. Yusem,
44 So.3d 102, 105 (Fla. 2010).
