Summary
reversing final judgment for conversion where the complaint did not include conversion claim, was not amended to include conversion claim, and the record did not demonstrate the issue was tried by consent
Summary of this case from Musi v. Credo, LLCOpinion
No. 2D14–2201.
09-11-2015
TROYTS AUTO SERVICE and Troyts Bogar Valero, Appellants, v. Gennare VITELLI, Appellee.
Roland A. Hermida, Tampa, for Appellants. No appearance for Appellee.
Roland A. Hermida, Tampa, for Appellants.
No appearance for Appellee.
Opinion
BLACK, Judge.
Troyts Auto Service and Troyts Bogar Valero challenge the final judgment of the trial court ordering them to pay conversion damages to Gennare Vitelli. The appellants argue that the trial court erred in finding liability for conversion because the matter was not pleaded or tried by consent. We agree and reverse.
In the complaint, Mr. Vitelli alleged one count of civil theft and two counts of fraudulent misrepresentation in the inducement. Following a nonjury trial, the trial court entered a final judgment finding that Mr. Vitelli failed to establish that the appellants committed civil theft or fraudulently induced Mr. Vitelli. However, the trial court did find the appellants liable for conversion. This was error. “A trial court may not decree relief that has been neither pleaded nor tried by consent.” Lodge Constr., Inc. v. Far E. GC Exponent, Inc., 800 So.2d 325, 325 (Fla. 2d DCA 2001) (citing Conidaris v. Cresswood Servs., Inc., 779 So.2d 518, 519 (Fla. 2d DCA 2000) ). The complaint does not include a claim for conversion, it was not amended nor was a request to amend filed, and the record does not demonstrate that the issue was tried by the consent of the parties.
Mr. Vitelli did not participate in this appeal.
Though the complaint contained two claims for fraud, the trial court's order did not address the latter claim.
In the initial brief the appellants explained that Mr. Vitelli concluded his written closing argument by requesting that the court consider finding the appellants liable for conversion should the court determine that he failed to establish the requisite intent for civil theft.
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Accordingly, we reverse the portion of the final judgment finding the appellants liable for conversion as well as the damages awarded pursuant thereto and remand for entry of an amended final judgment.
Affirmed in part; reversed in part; remanded.
NORTHCUTT and SALARIO, JJ., Concur.