[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 19-14777

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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.

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2 Opinion of the Court 19-14777

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Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:18-cv-00587-SDM-JSS

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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 without 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.

1 We 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 discussed, we summarily affirm. 

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19-14777 Opinion of the Court 3

release, and the appellants never appealed that non-dispositive ruling 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 prejudice, 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 without 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 damages. 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). 

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