AUTOMATED MANAGEMENT SYSTEMS OF FLORIDA, INC., A FLORIDA CORPORATION, APPELLANT,
v.
THOMSON & MCKINNON, INC., A DELAWARE CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF FLORIDA, APPELLEE
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The court held that a failure to prove actual damages is fatal to recovery, even when the parties stipulate facts to save court time.
The plaintiff sued the defendant for fraud and negligence. The parties stipulated to waive testimony and submit facts to the trial court for decision.…
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This is an appeal from a final judgment entered in favor of the plaintiff after a non-jury trial. Counsel for both parties agreed to a stipulation which waived testimony and submitted the facts to the trial court for its decision.
Defendant-appellant urges that the evidence is insufficient to support the judgment. Considering the sort of record we have just described, we find that it supports the judgment for the plaintiff except as to the amount of damages. It appears that the plaintiff and the court overlooked the fact that in an action for fraud and negligence (plaintiff announced that he was proceeding under both theories), proof of actual damages is necessary. Florida Ventilated Awning Co. v. Dickson, Fla.1953, 67 So.2d 215; also see Miami Beach Lerner Shops, Inc. v. Walco Manufacturing of Florida, Inc., Fla.App.1958, 106 So.2d 233.
Ordinarily, a failure to prove damages would be fatal to recovery. Kay v. Swimmer, Fla.App.1963, 151 So.2d 353; Berwick Corp. v. Kleinginna Investment Corp., Fla.App.1962, 143 So.2d 684. However, since the informal nature of the trial was occasioned by the earnest desire of counsel to save the court’s time and hasten consideration of the case, we hold that this judgment should be reversed for a new trial on the issue of damages only.
The judgment is reversed insofar as damages are concerned, and the cause is remanded with directions to conduct a trial on the issue of damages only.
Reversed and remanded with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Nat'l Equip. Rental, Ltd. v. Little Italy Rest. & Delicatessen, Inc., 362 So. 2d 338 (Fla. 4th DCA 1978)…ual damages and the measure thereof are essential as a matter of law in establishing a claim of fraud. Tampa Union Terminal Co. v. Richards, 108 Fla. 516, 146 So. 591 (1933); Automated Management Systems of Florida, Inc. v. Thomson & McKinnon, Inc., 261 So. 2d 531 (Fla. 3rd DCA 1972); Berwick Corp. v. Kleinginna Investment Corp., 143 So. 2d 684 (Fla. 3rd DCA 1962). Accordingly, we must reverse the final judgment on the counterclaim. In all other respects this cause is affirmed. REVERSED AND REMANDED FOR THE…
Authorities Cited
- Fla. Ventilated Awning Co., Inc. v. Dickson, 67 So. 2d 215 (Fla. 1953)
- Berwick Corp. v. Kleinginna Inv. Corp., 143 So. 2d 684 (Fla. 3d DCA 1962)
- Miami Beach Lerner Shops, Inc. v. Walco Mfg. OF Fla., Inc., 106 So. 2d 233 (Fla. 3d DCA 1958)
- Sanford KAY and Rebecca Kay v. Swimmer, 151 So. 2d 353 (Fla. 3d DCA 1963)