[ DO NOT PUBLISH] 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: 1 of 42 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 J ORDAN , N EWSOM , Circuit Judges, and B URKE , * 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 Sys tems Protection Bd.
, 137 S. Ct. 197 5 , 1986 n.9 (201 7 ). The magistrate judge denied without prejudice the app ellants’ 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. USCA11 Case: 19-14777 Date Filed: 10/18/2021 Page: 2 of 419

- 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. 7 2(a); Smith v. Sch ool Bd. o

f Orange C ounty , 487 F.3d 1361, 1365 (11t h 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 conse nt. See Fed. R. Civ. P.

1 5 (b)(2). On this record
, we conclude that Mr. Moss would have been prejudiced because he had no notice of the release s 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 imp lied 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. 198 7 ). Third, the jury was not i nstructed 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 attend ant instructions or findings. We decline to undertake such a review. USCA11 Case: 19-14777 Date Filed: 10/18/2021 Page: 3 of 44 Opinion of the Court 19

- 14777
The appellants also challenge the sufficiency of the evidenceto support the jury’s fraud verdicts and the award of punitive damages. Given the deferential standard we apply when reviewi ng jury verdicts, s ee Mamani v. S á

nchez Bustamante , 968 F.3d 1216, 1230 (11th Cir. 2020), we find no basis for setting aside the verdicts here. 2

A

FFIRMED

.

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, justifi able reliance is not required for a fraud claim. See Butler v. Yusem , 44 So.3d 102, 105 (Fla. 2010). USCA11 Case: 19-14777 Date Filed: 10/18/2021 Page: 4 of 4