Walt Bennett Ford, Inc. v. Billy Goyne

FAGG, Circuit Judge,

dissenting.

This appeal turns on whether the district court correctly invoked the defense of equitable estoppel to defeat Walt Bennett Ford, Inc.’s (WBF) proven claim that Goyne violated Arkansas’s odometer disclosure law. Although this defense was neither pleaded by Goyne nor tried by express consent of Goyne and WBF, the district court concluded the parties tried the defense by implied consent. See Fed.R.Civ.P. 15(b). I believe well-established principles compel a different result.

In this circuit “ ‘it cannot be fairly said that [parties] implied[ly] consent to try an [unpleaded] issue [unless they] squarely recognize it as an issue in the trial.’ ” Standard Title Ins. Co. v. Roberts, 349 F.2d 613, 620-21 (8th Cir.1965) (emphasis added) (quoted citation omitted). Contrary to the district court’s view, Goyne’s response to WBF’s motion for summary judgment did not put WBF on notice that Goyne was going to rely on the defense of equitable estoppel at trial. Instead, the *606record shows the case was tried on the issues raised- by the pleadings.

WBF sued Goyne under the federal and Arkansas odometer disclosure statutes “alleging odometer fraud by [Goyne].” Goyne denied this allegation in his answer. When WBF moved for summary judgment on its claims, Goyne’s response focused on facts supporting his contention that WBF could not recover because “he had [no] intent to defraud or misrepresent any facts,” and because WBF “conspire[d with an employee] to create the situation leading to [this litigation].” Simply stated, Goyne’s response did not introduce equitable estop-pel into this case. A summary judgment response that disavows fraudulent intent, suggests a conspiracy, and never mentions estoppel falls woefully short of putting WBF on notice that estoppel was an issue for the trial. Indeed, the district court’s reading of Goyne's response shows that the possibility of an estoppel defense did not occur to anyone but the district court after the case had already been tried. WBF’s implied consent, however, “depend[ed] on whether [WBF] recognized that an issue not presented by the pleadings entered the case at trial.” Missouri Hous. Dev. Comm’n v. Brice, 919 F.2d 1306, 1316 (8th Cir.1990).

There is no dispute that Goyne introduced evidence at trial that would have been relevant to the defense of estoppel. In this circuit, however, implied consent cannot be inferred from the unchallenged introduction of evidence relevant to an un-pleaded defense when the evidence is also relevant to an issue already in the case. Pariser v. Christian Health Care Sys., 816 F.2d 1248, 1253 (8th Cir.1987); Brown v. Cooper Clinic, 734 F.2d 1298, 1301 (8th Cir.1984). Goyne’s evidence that he “disclosed to [WBF] that [his vehicle’s odometer] mileage was incorrect [and he] signed [an inaccurate] disclosure statement based on [WBF’s] assurance,” ante at 2, was relevant to the fighting issue raised in WBF’s complaint: whether Goyne acted with fraudulent intent. In these circumstances, Goyne’s evidence did not alert WBF that an estoppel based defense was being tried by consent.

Although the district court has broad discretion in deciding whether an issue has been tried by consent, Nielson v. Armstrong Rubber Co., 570 F.2d 272, 276 (8th Cir.1978), I believe the district court abused its discretion in this case. Contrary to the holdings of our cases, the district court relied on an unpleaded defense to defeat a proven claim. Because Goyne and WBF did not consensually litigate the defense of equitable estoppel, the district court was limited to the issues raised in the pleadings. Armstrong Cork Co. v. Lyons, 366 F.2d 206, 208-09 (8th Cir.1966). “A party is no more entitled to [prevail on] a [defense] not pleaded than [a party] is to [prevail on] a [defense] pleaded but not proved.” Id. Thus, I would reverse the district court and remand for the entry of judgment in WBF’s favor based on Goyne’s violation of Arkansas's odometer disclosure law.