Troyts Auto Service v. Vitelli

District Court of Appeal of Florida

Troyts Auto Service v. Vitelli

173 So. 3d 1145, 2015 Fla. App. LEXIS 13549, 2015 WL 5308918

CourtDistrict Court of Appeal of Florida

DecidedSeptember 11, 2015

Docket2D14-2201

StatusPublished

Cited by1 cases

This text of 173 So. 3d 1145 (Troyts Auto Service v. Vitelli) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Troyts Auto Service v. Vitelli, 173 So. 3d 1145, 2015 Fla. App. LEXIS 13549, 2015 WL 5308918 (Fla. Ct. App. 2015).

Pincite

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. 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 *1146 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. 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.

1

. Mr. Vitelli did not participate in this appeal.

2

. Though the complaint contained two claims for fraud, the trial court’s order did not address the latter claim.

3

. 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.

Free access — add to your briefcase to read the full text and ask questions with AI

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. 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 *1146 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. 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.

1

. Mr. Vitelli did not participate in this appeal.

2

. Though the complaint contained two claims for fraud, the trial court’s order did not address the latter claim.

3

. 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.

Cite This Page — Counsel Stack

Bluebook (online)

173 So. 3d 1145, 2015 Fla. App. LEXIS 13549, 2015 WL 5308918, Counsel Stack Legal Research, https://law.counselstack.com/opinion/troyts-auto-service-v-vitelli-fladistctapp-2015.

Opinion

Related

Cite This Page — Counsel Stack