YILMAZ M. AKDORUK AND FAYE H. AKDORUK T/A AKDORUK AND ASSOCIATES, CONSULTING ENGINEERS, APPELLANTS,
v.
ADVANCED JET SYSTEMS, INC., A FLORIDA CORPORATION, AND SOUTHWIND AVIATION, INC., A FLORIDA CORPORATION, APPELLEES
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Appellants sued on an alleged contract allegedly signed by H. Dean Frederick as president of Southwind Aviation, Inc. The trial court granted defendant's oral motion to dismiss the complaint at the conclusion of plaintiff's opening statement, finding the attached contract did not support the action. The appellate court reversed, holding that such dismissal before presentation of evidence is improper and that the objection should have been raised during the pleading stage.
An involuntary dismissal of a complaint at trial before the presentation of evidence is not authorized by the rules. The objection to the sufficiency of the contract should have been raised during the pleading stage to allow amendment, and any argument about the contract's support for the cause of action should have been the basis for a directed verdict motion at the close of plaintiff's case, not an oral motion before evidence was presented.
[1] An involuntary dismissal of a complaint before the presentation of evidence is not authorized by the rules.
[2] A motion to dismiss a complaint based on defects in attached exhibits should be made during the pleading stage to allow for amendment.
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Join FLexlaw to unlock all legal intelligence“An involuntary dismissal of a complaint at trial before the presentation of evidence is not authoized by the rules.”
Establishes the core holding that dismissal before evidence is presented violates procedural rules.
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Join FLexlaw to unlock all legal intelligenceAppellants brought suit claiming a contract was signed by H. Dean Frederick as president of Southwind Aviation, Inc. The contract was attached to the …
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PER CURIAM.
The appellants were the plaintiffs in the trial court. They brought a suit upon an alleged contract claiming that the contract v^as signed by one H. Dean Frederick as president of the appellee, Southwind Aviation, Inc. After answer, the cause was set for trial. At the conclusion of plaintiff’s opening statement, the appellee, Southwind Aviation, Inc., moved orally for an order dismissing the complaint upon the ground that the contract which was attached to the complaint did not support the action for damages because it appeared that it was not signed by H. Dean Frederick on behalf of the corporation. The trial court granted the motion to dismiss with prejudice and this appeal followed. We reverse.
An involuntary dismissal of a complaint at trial before the presentation of evidence is not authoized by the rules. See rule 1.420(b), RCP, 30 F.S.A. The direction of a verdict upon the basis of plaintiff’s opening statement has been disproved. Rule 1.480, RCP; and see, Southern Wood Industries, Inc. v. Florida Carolina Lumber Co., Fla. 1956, 84 So. 2d 589; but see, Floyd v. Ott, Fla.App.1969, 221 So. 2d 163.
Appellee’s motion to dismiss the complaint because the exhibits attached thereto did not support the cause of action alleged should have been made during the pleading stage in order that plaintiff might have an opportunity to amend, see rule 1.-190, RCP. The objection could have been urged at the time plaintiff moved to introduce the contract into evidence. The argument that the contract did not support the. cause of action could have been the basis - for a motion for directed verdict at the close of plaintiff’s case. When the court acted upon the basis of the oral motion, before the plaintiff had an opportunity to introdude evidence, the effect was to preclude either the amendment of the complaint or the introduction of evidence to explain the discrepancy. See 13 Fla.Jur. Evidence, § 400 and cases therein cited for the rule that parol evidence may be admitted to show the true relationship of the party to a contract.
Reversed and remanded for further proceedings consistent with the views herein expressed.
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Wilfork v. Associated Grocers OF Fla., Inc., 343 So. 2d 84 (Fla. 3d DCA 1977)…case, Floyd v. Ott, 221 So. 2d 163 (Fla. 2d DCA 1969), we do not believe such practice is proper. This is especially true when the direction of the verdict is based solely upon a plaintiff’s opening statement. Akdoruk v. Advanced Jet Systems, Inc., 296 So. 2d 656 (Fla. 3d DCA 1974); see also Southern Wood Industries v. Florida Carolina Lumber Company, 84 So. 2d 589 (Fla.1956). Even assuming the above procedure was proper, after reviewing the quasi-opening statement of appellant’s counsel in conjunction with…
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Lustig v. Alina Garcia, 789 So. 2d 482 (Fla. 4th DCA 2001)…this rule, we have held that an involuntary dismissal may not be entered before the plaintiff has completed the presentation of his evidence. See SJS Enters. v. Cates, 547 So. 2d 226 (Fla. 4th DCA 1989). See also Akdoruk v. Advanced, Jet Sys., Inc., 296 So. 2d 656 (Fla. 3d DCA 1974); Sapp v. Redding, 178 So. 2d 204, 206 (Fla. 1st DCA 1965).1 Further, even if Lustig had rested, it is well-established that in ruling on a motion for involuntary dismissal, a trial judge may not weigh the evidence or the credibil…
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Llerena v. Lumbermens Mut. Cas. Co., 379 So. 2d 166 (Fla. 3d DCA 1980)…hat the amended complaint alleged the defense of waiver and estoppel, and it was error to enter a dismissal pursuant to Fla.R. Civ.P. 1.420(b) prior to evidence being presented with respect to these issues. See Akdoruk v. Advanced Jet Systems, Inc., 296 So. 2d 656 (Fla. 3d DCA 1974). [*168] For the reasons stated the dismissal order is reversed and the cause remanded to the trial court for further proceedings. Reversed and remanded. . The collision coverage contained a $100 deductible.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- S. Wood Indus., Inc. v. Fla. Carolina Lumber Co., 84 So. 2d 589 (Fla. 1956)
- Floyd v. OTT, 221 So. 2d 163 (Fla. 2d DCA 1969)