TROYTS AUTO SERVICE AND TROYTS BOGAR VALERO, APPELLANTS,
v.
GENNARE VITELLI, APPELLEE
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A trial court cannot grant relief for a claim that was neither pleaded nor tried by consent.
Plaintiff sued for civil theft and fraudulent misrepresentation. The trial court found no liability on those claims but entered judgment for conversio…
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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.1 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.2 However, the trial court did find the appellants liable for *1146conversion. 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.3
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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Musi v. Credo, 273 So. 3d 93 (Fla. 3d DCA 2019)…nor reference its entitlement based upon its superior property interest. Similarly, Credo did not amend—nor request to amend—its complaint to conform to the evidence or arguments presented at the non-jury trial. See Troyts Auto Serv. v. Vitelli, 173 So. 3d 1145, 1146 (Fla. 2d DCA 2015) (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); Raimi v. Furl…
Authorities Cited
- Conidaris v. Cresswood Servs., Inc., 779 So. 2d 518 (Fla. 2d DCA 2000)
- Lodge Constr., Inc. v. FAR E. GC Exponent, Inc., 800 So. 2d 325 (Fla. 2d DCA 2001)