National Aircraft Services, Inc. v. Aeroserv Intern., Inc.

• Decision Date: 06 June 1989
• Docket Number: Nos. 87-2872,88-516 and 88-1455,s. 87-2872
• Citation: 14 Fla. L. Weekly 1361,544 So.2d 1063
• Parties: 14 Fla. L. Weekly 1361 NATIONAL AIRCRAFT SERVICES, INC. and James E. Brewer, Appellants, v. AEROSERV INTERNATIONAL, INC., etc. Aerothrust Corporation, etc. and Wayne K. Goettsche, Appellees. AEROTHRUST CORPORATION, etc. and Aeroserv International, Inc., etc. Appellants, v. NATIONAL AIRCRAFT SERVICES, INC. and James E. Brewer, Appellees. AEROSERV INTERNATIONAL, INC., Appellant, v. James E. BREWER, Appellee.
• Court: Florida District Court of Appeals

Page 1063

544 So.2d 1063

14 Fla. L. Weekly 1361

NATIONAL AIRCRAFT SERVICES, INC. and James E. Brewer, Appellants, v. AEROSERV INTERNATIONAL, INC., etc. Aerothrust Corporation, etc. and Wayne K. Goettsche, Appellees.

AEROTHRUST CORPORATION, etc. and Aeroserv International, Inc., etc. Appellants, v. NATIONAL AIRCRAFT SERVICES, INC. and James E. Brewer, Appellees.

AEROSERV INTERNATIONAL, INC., Appellant, v. James E. BREWER, Appellee.

Nos. 87-2872, 88-516 and 88-1455.

District Court of Appeal of Florida Third District.

June 6, 1989.

Thornton, David & Murray and Terry L. Redford, Miami, for appellants/appellees.

Fine, Jacobson, Schwartz, Nash, Block & England and Gary S. Brooks and Bonnie J. Losak-Jimenez, Miami, for appellees/appellants.

Before SCHWARTZ, C.J., and HUBBART and BASKIN, JJ.

PER CURIAM.

For numerous reasons, we find no basis to support the appellee Brewer's award of nominal and punitive damages for the alleged fraud of Aeroserv and therefore reverse that aspect of the judgment before us. Among the grounds which compel this result are the following:

1. The basis of the fraud which is now advanced to support the verdict and judgment was not contained in the complaint and therefore cannot support it as a matter of law. See Arky, Freed, Stearns, Watson, Greer, Weaver, & Harris, P.A. v. Bowmar Instrument Corp., 537 So.2d 561 (Fla.1988). Brewer's pleadings in this regard alleged only that Aeroserv had committed fraud through its officer and agent, the co-defendant Goettsche. Goettsche, however, was exonerated by the jury, thus precluding any vicarious responsibility, as alleged, on the part of Aeroserv. See Williams v. Hines, 80 Fla. 690, 86 So. 695 (1920). Moreover, while Brewer claims that additional and different instances of fraud were tried by implied consent, see Fla.R.Civ.P. 1.190(b), the record establishes to the contrary. It specifically may not be said that the defendant's failure to object to testimony which may have touched upon an unpleaded claim constituted an effective consent to a trial of such an issue, simply because that testimony was also pertinent to the issues which were properly pled and which therefore could not have been the subject of a well-taken objection. Dysart v. Hunt, 383 So.2d 259 (Fla. 3d DCA 1980), pet. for review denied, 392 So.2d 1373 (Fla.1980), and cases cited.

2. The asserted fraudulent conduct consisted of purported false promises to enter into a particular business arrangement with Brewer in the future. Even taken in the light most favorable to the plaintiff, the record does not show the existence of a knowingly false representation which is required to establish fraud in the making of a promise or undertaking concerning a future event. See Sleight v. Sun & Surf Realty, Inc., 410 So.2d 998 (Fla. 3d DCA 1982); 27 Fla.Jur.2d Fraud & Deceit § 24 (1981). Compare 27 Fla.Jur.2d Fraud & Deceit § 25.

3. As indicated by the fact that only nominal, rather than compensatory damages were awarded, Brewer did not show that he had sustained injury as a result of the alleged fraud. He thus failed to demonstrate an indispensable element of the tort. See Empire Fire & Marine Ins. Co. v. Black, 546 So.2d 732, 732 (Fla. 3d DCA 1989) ("there can be no claim for fraudulent misrepresentation because no legally cognizable damage was sustained").

4. Brewer, in fact, recovered a verdict and judgment--which we affirm hereinbelow--based upon a breach of the employment contract which he was supposedly fraudulently induced to enter. As an aspect of the rule to which we have already referred, that damages resulting from fraud are required to sustain a claim for fraudulent...