Levy v. Ben-Shmuel, 255 So. 3d 493

Levy moved into Ben‑Shmuel's furnished Golden Beach home under an oral agreement: supposed monthly rent of $27,000 (or maintenance/improvements in lieu of rent).
Ben‑Shmuel alleged Levy neither maintained the property nor paid rent and removed personal property after vacating.
Ben‑Shmuel sued, asserting claims including unjust enrichment and conversion of personal property; bench trial followed.
The trial court awarded $90,000 on unjust enrichment and $15,000 on conversion; Levy moved for rehearing and had earlier moved for involuntary dismissal at bench trial.
On appeal, Ben‑Shmuel conceded he failed to establish the correct measure of damages for conversion; the Third District affirmed the unjust enrichment award but reversed the conversion award.
The court held that when a plaintiff fails to prove damages at trial (and the failure was not due to judicial error), the plaintiff is not entitled to a remand for a new trial on damages; instead judgment should be entered for the defendant on that claim.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiff proved damages for conversion	Ben‑Shmuel argued damages were proven at trial	Levy argued plaintiff failed to meet burden to prove correct measure of damages	Plaintiff conceded failure; court reversed conversion judgment and entered judgment for Levy
Remedy when plaintiff fails to prove damages at trial	Plaintiff sought remand for new trial to prove damages	Levy sought judgment for defendant, arguing no new trial should be allowed	General rule: no new trial on remand for plaintiff’s failure to present damages absent judicial error; remand for entry of judgment for defendant
Preservation and review of sufficiency after bench trial	Plaintiff relied on trial record; did not claim judicial error caused failure	Levy preserved involuntary dismissal motion; issue properly reviewable on appeal from bench trial	Sufficiency may be raised on appeal from nonjury trial regardless of preservation; court reviewed and reversed conversion award
Exception permitting new trial on damages	Plaintiff argued equitable relief through remand	Levy contended only judicial error justifies new trial	Court held new trial allowed only if plaintiff’s failure was caused by judicial error (e.g., erroneous evidentiary rulings or incorrect legal instructions)

Cellnet 7, Inc. v. Lainez, 215 So.3d 137 (Fla. 3d DCA 2017) (failure to prove element ordinarily does not permit new trial to cure shortcoming)
Teca, Inc. v. WM‑TAB, Inc., 726 So.2d 828 (Fla. 4th DCA 1999) (en banc decision favoring entry of judgment for defendant where plaintiff failed to prove damages)
Nico Indus., Inc. v. Steel Form Contractors, Inc., 625 So.2d 1252 (Fla. 4th DCA 1993) (held plaintiff’s failure to prove measure of damages warranted judgment for defendant)
Emerald Pointe Prop. Owners' Ass'n v. Commercial Constr. Indus. Inc., 978 So.2d 873 (Fla. 4th DCA 2008) (plaintiff not entitled to new trial on damages after failing to prove correct measure at trial)
Fidelity Warranty Servs., Inc. v. Firstate Ins. Holdings, Inc., 74 So.3d 506 (Fla. 4th DCA 2011) (same principle applied)
Allstates Van Lines Corp. v. Lebenstein, 303 So.2d 33 (Fla. 3d DCA 1974) (older Third DCA decision remanding for new trial on damages; court here receded from it)
Hillside Van Lines, Inc. v. Matalon, 297 So.2d 848 (Fla. 3d DCA 1974) (same)
R & B Holding Co. v. Christopher Advert. Grp., Inc., 994 So.2d 329 (Fla. 3d DCA 2008) (example of exception: judicial error in method of computing damages can justify new trial)
Sharick v. Se. Univ. of the Health Sciences, Inc., 780 So.2d 136 (Fla. 3d DCA 2000) (judicial exclusion of a damages theory can require remand for new trial)
Alonso v. Fernandez, 379 So.2d 685 (Fla. 3d DCA 1980) (improper jury instruction on damages justified new trial)