Specialty Restaurants Corp. v. D.K. Patterson Construction Co.

RYDER, Acting Chief Judge. This action is based on damages allegedly suffered by D.K. Patterson Construction Company, Inc. (Patterson) for breach of a construction contract, and Specialty Restaurants Corporation (Specialty) appeals a judgment in favor of Patterson based upon unjust enrichment which was neither pleaded nor was there evidence presented to support same. We reverse on the basis of Target Development Corp. v. Best County Wide Construction Corp., 457 So.2d 1146 (Fla. 3d DCA 1984) and Boyce Construction Corp. v. District Board of Trustees of Valencia Community College, 414 So.2d 634 (Fla. 5th DCA 1982) (one cannot recover on a claim for unjust enrichment when the issue was neither pleaded nor tried by the express or implied consent of the other party). No evidence was presented to the trial court which could support a finding that an issue not pleaded — unjust enrichment — was tried by express or implied consent of Specialty. Thus, the judgment entered herein is reversed and the cause is remanded to the trial court to enter a final judgment in favor of Specialty. Reversed and remanded with instructions. THREADGILL and PARKER, JJ., concur.