involuntary dismissal

Appealing Correct Measure of Damages

Posted by David Adelstein on September 29, 2018
Appeal, Evidence / Comments Off on Appealing Correct Measure of Damages

In an earlier article, I wrote how economic damages MUST be supported by substantial competent evidence. 

In a recent case, Levy v. Ben-Shmuel, 43 Fla.L.Weekly D2229a (Fla. 3d DCA 2018), a plaintiff, after a bench trial, recovered a judgment against a defendant that included money damages associated with a claim for conversion.  During trial, and after the plaintiff’s case-in-chief, the defendant moved for an involuntary dismissal arguing the plaintiff failed to meet its burden in establishing the correct measure of damages at trial.  On appeal, the plaintiff ultimately conceded that he did not establish the correct measure of damages.  The issue was whether the plaintiff should be entitled to a new trial.  The Third District held NO!  The plaintiff is NOT entitled to a new trial on damages:

We also write to clarify the law within this [Third] district, and hold, as a general rule, that where this court determines, on appeal from a properly preserved claim, that a party failed to meet its burden of establishing the correct measure of damages at trial, that party is not entitled on remand to a new trial on damages, unless that party’s failure to meet its burden was the result of judicial error.

Levy, supra (“The generally prevailing rule is that a party will not be permitted a new trial on remand to remedy its own failure to present sufficient evidence to support its claim.”).

It is worth noting that in a bench trial, “the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question [objection] has made any objection thereto in the trial court or made a motion for rehearing, for new trial, or to alter or amend the judgment.”  Fla.R.Civ.P. 1.530(e).   Thus, in a bench trial, a party can challenge the sufficiency of the evidence for the first time on appeal.  In Levy, the defendant had actually moved for an involuntary dismissal after the plaintiff’s case-in-chief, but had he not done so, the objection to the sufficiency of evidence would still have been properly preserved for appeal.  

A jury trial, however, is different.  In a jury trial, “where a defendant fails to timely move for a directed verdict [as the sufficiency of evidence], and raises this issue for the first time in a motion for new trial, the proper remedy upon reversal and remand is a new trial.”  Levy, supra, n. 2.  Hence, in a jury trial, if a defendant does timely move for a directed verdict on such an issue, then the proper remedy is to enter judgment in favor of the defendant as the plaintiff is not entitled to a new trial. Id.  But, if the defendant first raises such an issue for the first time in a motion for new trial, then the proper remedy would be a new trial.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Moving for an Involuntary Dismissal in a Nonjury Bench Trial

Posted by David Adelstein on March 11, 2018
Appeal, Burden of Proof, Standard of Review / Comments Off on Moving for an Involuntary Dismissal in a Nonjury Bench Trial

Analogous to a motion for directed verdict in a jury trial, in a nonjury bench trial decided by a judge, a defendant can move for an involuntary dismissal after the plaintiff (party introducing evidence in favor of affirmative relief) puts on his/her case.  This is a common motion after the plaintiff in a bench trial puts on his/her case.  No different than moving for a directed verdict in a jury trial, it is a motion that carries a high burden since every doubt and inference is given in favor of the plaintiff.  

Florida Rule of Civil Procedure 1.420(b) authorizes motions for involuntary dismissal as indicated by the emphasized language below:

Involuntary Dismissal. Any party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court. Notice of hearing on the motion shall be served as required under rule 1.090(d). After a party seeking affirmative relief in an action tried by the court without a jury has completed the presentation of evidence, any other party may move for a dismissal on the ground that on the facts and the law the party seeking affirmative relief has shown no right to relief, without waiving the right to offer evidence if the motion is not granted. The court as trier of the facts may then determine them and render judgment against the party seeking affirmative relief or may decline to render judgment until the close of all the evidence. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication on the merits.

In a bench trial, motions for involuntary dismissal are appropriate if the plaintiff fails to establish a prima facie case, i.e., the plaintiff fails to introduce evidence that establish the elements of his/her claim(s) against the defendant.  Boca Golf View, Ltd. v. Hughes Hall, Inc., 843 So.2d 992, 993 (Fla. 4th DCA 2003).  “To rule on the motion for involuntary dismissal, the trial court was required to view the evidence in the light most favorable to the plaintiff, resolving every conflict and inference in its favor.”  Id.   See also Nationstar Mortgage, LLC v. Silva, 43 Fla.L.Weekly D548a (Fla. 3d DCA 2018) (“A motion for involuntary dismissal should only be granted ‘when there is no reasonable evidence upon which a [fact finder] could legally predicate a verdict in favor of the non-moving party.’” (quoting Tylinski v. Klein Auto., Inc., 90 So.3d 870, 873 (Fla. 3d DCA 2012)).

In ruling on a motion for involuntary dismissal, the trial court is NOT supposed to rule on the credibility of a testifying witness.  Deutsche Bank Nat. Trust Co. v. Kummer, 195 So.3d 1173, 1175 (Fla. 2d DCA 2016).  This is because when:

[T]he movant [party moving for involuntary dismissal] admits the truth of all facts in evidence an every reasonable conclusion or inference based thereon favorable to the non-moving party [e.g., plaintiff].  Where the plaintiff has presented a prima facia case and different conclusions or inferences can be drawn from the evidence, the trial judge should not grant a motion for involuntary dismissal.

Id. quoting Day v. Amini, 550 So.2d 169, 171 (Fla. 2d DCA 1989).

Importantly for appellate purposes, if a plaintiff is appealing a trial court’s granting of a motion for involuntary dismissal in a bench trial, it is reviewed under a de novo standard of appellate review.  Green Tree Servicing LLC v. Sanker, 204 So.3d 496, 497 (Fla. 4th DCA 2016).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Witness Laying Foundation for Business Records Exception Need Not be the Person that Prepared the Business Records

Posted by David Adelstein on February 16, 2016
Appeal, Evidence / Comments Off on Witness Laying Foundation for Business Records Exception Need Not be the Person that Prepared the Business Records

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If you have visited this blog before, then you know the importance I place on the business records exception to the hearsay rule in civil business disputes. (Check out this article too.) Lately, the business records exception to the hearsay rule is a hot topic in mortgage foreclosure cases.

In yet another foreclosure case, Wells Fargo Bank, N.A., as Trustee, on Behalf of the Harborview Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2007-1 v. Balkisson, 41 Fla.L.Weekly D308a (Fla. 4th DCA 2016), the trial court entered an involuntary dismissal in favor of the borrower and against the lender after sustaining the borrower’s objection to hearsay based on the lender not properly laying the foundation for the business records exception to the hearsay rule. (An involuntary dismissal is essentially the same thing as a directed verdict in a non-jury bench trial. Similar to a directed verdict, the standard of appellate review for a motion for involuntary dismissal is de novo. See Wells Fargo Bank, supra.) The trial court sustained the hearsay objection because the loan servicer’s records custodian witness was unable to describe the specialized computer programs utilized to generate the payment history and default notice. The trial court’s ruling in sustaining the objection precluded the lender from presenting the payment history and the default notice into evidence meaning the lender could not prove its case at trial. The Fourth District Court of Appeal reversed.

The Fourth District explained that a testifying witness establishing the business records exception to the hearsay rule “need not be the person who actually prepared the business records. Instead, the witness just need be well enough acquainted with the [record keeping] activity to provide testimony.” Wells Fargo Bank, supra (internal quotations and citation omitted).

While the witness was not familiar with how data was entered into the computer system, there is no requirement that the witness have such knowledge to satisfy the business records exception to the hearsay rule. The witness was sufficiently familiar with the loan servicer’s practices and procedures in generating the payment history and notice of default to lay the foundation for the business records exception.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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