LESTER B. NICHOLS, APPELLANT/CROSS-APPELLEE,
v.
MICHAEL D. EICHOLTZ, ENTERPRISE, ETC., APPELLEE/CROSS-APPELLANT
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Michael Eicholtz Enterprises sued Lester Nichols for foreclosure of a mechanic's lien and quantum meruit damages. The trial court awarded quantum meruit damages, but the appellate court reversed, holding that where an express contract has been fully performed, recovery is limited to the contract price, not quantum meruit.
The court reversed the damages award and held that where a contract has been fully or substantially completed, a party may recover only the contract price under the contract, not quantum meruit damages. An unpled theory cannot be tried by implied consent when evidence presented at trial is relevant to other properly pleaded issues.
[1] A party may recover only the contract price under an express contract that has been fully or substantially completed.
[2] Quantum meruit is an alternative theory of recovery to an action on an express contract.
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Join FLexlaw to unlock all legal intelligence“Where a contract has been fully or substantially completed, as in this case, a party may recover only the contract price under the contract.”
States the governing legal principle that quantum meruit is unavailable when express contract is fully performed
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Join FLexlaw to unlock all legal intelligenceEicholtz Enterprises sued Nichols for foreclosure of a mechanic's lien, quantum meruit, and tortious interference with a business relationship. The tr…
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DAUKSCH, J.
We withdraw the opinion filed November 19, 1999, and substitute the following corrected opinion in its stead.
Appellee, Michael Eicholtz Enterprises, sued appellant, Lester Nichols, for foreclosure of a mechanic’s hen, quantum meruit and tortious interference with a business relationship. The trial court dismissed the lien foreclosure action based upon appellee’s failure to properly file a contractor’s affidavit, which we affirm, and appellee later withdrew the tort claim. At trial, appellee presented evidence as to its quantum meruit theory of recovery and the trial court awarded it damages under that theory.
We reverse the damages award because there was an express contract which was fully performed. Where a contract has been fully or substantially completed, as in this case, a party may recover only the contract price under the contract. U.S. for Use and Benefit of Aucoin Elec. Supply Co. v. Safeco Ins. Co. of America, 555 F. 2d 535, 542 (5th Cir.1977). Appellee pled its entitlement to damages under a quantum meruit theory which is an alternative theory of recovery to an action on an express contract. See Practice Management Associates, Inc. v. Bitet, 654 So. 2d 966 (Fla. 2d DCA 1995); Bodon Industries, Inc. v. Brown, 645 So. 2d 33 (Fla. 5th DCA 1994); Entropic Landscapes, Inc. v. Brown, 615 So. 2d 799 (Fla. 1st DCA 1993).1 We reject appellee’s argument that the parties tried the unpled action on an express contract by implied consent because an unpled theory may not be tried by implied consent when the evidence presented at trial is relevant to other issues which are properly being tried. See Cedars Medical Center, Inc. v. Ravelo, 738 So. 2d 362, 367 (Fla. 3d DCA 1999). Accordingly,' the judgment is reversed and the cause remanded to the trial court for entry of a judgment in favor of appellant, together with any appropriate costs. Because appellant did not file a counterclaim for any damages below, he is precluded from receiving an award of damages on remand.
REVERSED and REMANDED.
COBB, J, and JACOBUS, B.W., Associate Judge, concur. . A party may recover under either theory where a contract has not been fully performed. Robinson v. Albanese, 636 So. 2d 831, 834 (Fla. 5th DCA 1994).
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Am. Safety Ins. Serv., Inc. v. Griggs, 959 So. 2d 322 (Fla. 5th DCA 2007)…theory could not be considered to have been tried by implied consent because the evidence presented at trial concerning the 1998 agreements was relevant to the other counts that were [*331] properly being tried. Nichols v. Michael D. Eicholtz, Ent., 750 So. 2d 719, 720 (Fla. 5th DCA 2000). Turning to the merits, we conclude that the Connecticut Seven cannot establish a claim for quasi-contract. A contract implied in law is a legal fiction, an obligation created by the law without regard to the parties’ expr…
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Richard Derouin & KIM Derouin v. Universal Am. Mortg. Co., LLC, 254 So. 3d 595 (Fla. 2d DCA 2018)
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Triana v. Fi-Shock, Inc., 763 So. 2d 454 (Fla. 3d DCA 2000)…evidence introduced is relevant to other issues properly being tried.”), citing Bilow v. Benoit, 519 So. 2d 1114, 1116 (Fla. 1st DCA 1988); Wassil v. Gilmour, 465 So. 2d 566, 569 (Fla. 3d DCA 1985). See also Nichols v. Michael D. Eicholtz, Enterp., 750 So. 2d 719, 720 (Fla. 5th DCA 2000)(an unpled theory may not be tried by implied consent when the evidence presented at trial is relevant to other issues which are properly being tried). Finally, Espinoza argues that the trial court denied his proposed jury i…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cedars Med. Ctr., Inc. v. Ravelo, 738 So. 2d 362 (Fla. 3d DCA 1999)
- United States for the Use & Benefit of Aucoin Elec. Supply Co. v. Safeco Ins. Co. OF Am. & Piedra Corp., 555 F.2d 535 (5th Cir. 1977)
- Gardner v. Stock, 645 So. 2d 33 (Fla. 5th DCA 1994)
- Robinson v. Domenic Albanese, 636 So. 2d 831 (Fla. 5th DCA 1994)
- Practice Mgmt. Assocs., Inc. v. Bitet, 654 So. 2d 966 (Fla. 2d DCA 1995)
- Entropic Landscapes, Inc. v. Brown, 615 So. 2d 799 (Fla. 1st DCA 1993)