Santavicca & Associates, Inc. v. Carlo

PER CURIAM.

This is an appeal from an order granting a new trial predicated on a finding that the evidence on one of the material issues tried was uncontroverted.

The appellant sued the appellee for breach of contract and the appellee counterclaimed alleging that the appellant had fraudulently induced him to enter into the contract. The agreement involved was one in which the appellant, a business consulting service for chiropractors, was supposed to provide the appellee, a chiropractor, with an “individualized practice management system” for his practice in exchange for a fee. When the appellee stopped payment on the fees due appellant this action resulted. The jury found that appellee breached the contract and rejected appellee’s claim of fraud. The trial court ordered a new trial, specifically holding that it was uncontro-verted at trial that the “individualized management system” which was promised never existed and was never intended to be delivered. We have reviewed the record and find the evidence to be in conflict on this issue. There was evidence presented by the appellant at trial to establish that it did provide the appellee with the management system promised, that appellee was not defrauded, that appellee’s earnings increased after he utilized the system, and that appel-lee breached his contract with appellant. That being the case, we believe the trial court erred in determining that the evidence on this issue was uncontroverted and in setting aside the jury’s verdict on that predicate. Perenic v. Castelli, 353 So.2d 1190 (Fla. 4th DCA 1978), cert. denied, 359 So.2d 1211 (Fla.1978).

Accordingly, the order of the trial court is reversed with directions that the jury verdict be reinstated and judgment be entered thereon.

LETTS, C. J., ANSTEAD, J., and STONE, BARRY J., Associate Judge, concur.