ALFRED S. AUSTIN CONSTRUCTION CO., INC., APPELLANT,
v.
ABE NAMIA, APPELLEE
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Austin Construction Company appeals a bench trial judgment awarding Namia $1,800 on a quantum meruit theory, when the case was pleaded and tried solely on an express contract theory for $5,000. The court reverses because the trial judge improperly decided the case on a legal theory neither pleaded nor tried.
The judgment is reversed because it was predicated on a legal theory neither pleaded nor tried and lacks evidentiary support. The case is remanded for the trial court to make specific findings on whether Namia fully performed pursuant to an express agreement and whether Austin expressly agreed to pay $5,000; if both are answered affirmatively, judgment should be entered for $5,000 plus interest and costs; if either is answered negatively, judgment should be entered for Austin.
“The case was pleaded and tried on express contract, as aforesaid, the lower court, sitting without a jury, awarded Abe the sum of $1,800.00 and interest. The trial judge apparently predicated his judgment on quantum meruit; and, further, apparently decided the case on some theory of quasi-contract.”
Establishes that the trial court improperly decided on a theory not pleaded or tried.
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Join FLexlaw to unlock all legal intelligenceNamia sued Austin Construction Company for alleged commissions due under an express contract. The parties pleaded and tried the case on the theory tha…
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Abe Narnia sued Austin Construction Company for commissions allegedly due. The case was pleaded and tried on the theory that an express contract existed between Abe and Austin, pursuant to which Austin expressly agreed to pay Abe $5,000.-00 for services alleged to have been fully performed.
Notwithstanding that the case was pleaded and tried on express contract, as aforesaid, the lower court, sitting without a jury, awarded Abe the sum of $1,800.00 and interest. The trial judge apparently predicated his judgment on quantum meruit; and, further, apparently decided the case on some theory of quasi-contract. There is no evidence in the record which would support any thory of the case except express contract, and no evidence upon which a quantum meruit award could be made. Austin appeals such judgment, and Abe cross-appeals. Each agrees that the judgment should be reversed, and that Abe is either entitled to $5,000.00 on the express *37agreement of Austin to pay such amount, or he is entitled to nothing.
It would thus appear, at first blush, that we are in the happy position of having both sides agree on how the case should be disposed of. But Abe insists that we should direct the trial court to enter a judgment in his favor for $5,000.00, as prayed for, while Austin deems it appropriate that we direct the lower court to enter judgment for the defendant. If the findings of the trial judge were clear as to what he found in regard to the existence vel non of the express agreement to pay $5,000.00, our task would be simple. However, we cannot determine, from this record, the precise findings of the court on this point.
The trial court obviously found that some contractual relationship existed between the parties, and that at least partial performance by Abe was proven. Nowhere, though, can we find that the court determined either that Abe fully performed his part of the contract, or, if so, whether Austin agreed to pay him $5,000.00 therefor. It appears, however, that the court entered a judgment pursuant to a theory which was neither pleaded nor tried (by acquiescence or otherwise). .We would agree with both parties that said judgment was without authority in law.1
The judgment appealed from, therefore, is reversed and the trial court is directed to make a specific determination as to whether Abe had fully performed pursuant to an express agreement between the two parties; and, secondly, whether Austin expressly agreed to pay $5,000.00 therefor. If both questions are answered in the affirmative, judgment should be rendered in favor of Abe awarding him the sum of $5,000.00, together with interest and costs. If either question is answered in the negative, final judgment should be entered in favor of Austin and against Abe.
If the trial court cannot make such determination without a new trial, and so orders, then the parties should be given reasonable time to either plead specifically, or prove by acquiescence, any theory of recovery or defense, as they may be advised.2
All other points raised on appeal are without merit.
Reversed with directions.
HOBSON, Acting C. J., and PIERCE, J., concur.
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In re the Est. of Lester Wartels v. Wartels, 338 So. 2d 48 (Fla. 3d DCA 1976)…not affect the result of the trial of issues not raised by the pleadings but tried by express or implied consent of the parties. See Chandler v. Chandler, 330 So. 2d 778 (Fla.App.1st 1976), and compare Alfred S. Austin Construction Company v. Namia, 220 So. 2d 36 (Fla.App.2d 1969). Since the matter of the validity of the antenuptial agreement was litigated without objection by the executor, and with his express, or at least implied, consent, the final judgment should not be disturbed. As another point on ap…
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Daake v. Decks N Such Marine, Inc., 201 So. 3d 179 (Fla. 1st DCA 2016)…ues that if the Family Trust was a party to the seawall contract, then a breach of contract claim against the Trust was tried by acquiescence, there is no evidence to support this argument. See generally Alfred S. Austin Constr. Co., Inc. v. Narnia, 220 So. 2d 36, 37 (Fla. 2d DCA 1969) (holding that trial court erroneously entered judgment “pursuant to a theory which was neither pleaded nor tried (by acquiescence or otherwise)”). Thus, we affirm the trial court’s order finding that a valid written contract…
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Donatello v. Kent, 297 So. 2d 581 (Fla. 2d DCA 1974)…eement without giving him the opportunity to plead any defenses which he might have had thereto. I think the appeal is governed by the general principles set forth in the following cases: Alfred S. Austin Construction Co., Inc., v. Namia, Fla.App., 220 So. 2d 36; Tucker v. Daugherty, Fla.App., 122 So. 2d 230; Edwards v. Young, Fla.App., 107 So. 2d 244; and would reverse.…
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
- Duarte v. Stevens Mkts., Inc., 159 So. 2d 236 (Fla. 1963)
- Neveils v. Thagard, 145 So. 2d 495 (Fla. 1st DCA 1962)
- Keathley v. ELB, 133 So. 2d 471 (Fla. 2d DCA 1961)
- Lamb v. William T. Jones et ux., 202 So. 2d 810 (Fla. 3d DCA 1967)