MIAMI PURVEYORS, INC., APPELLANT,
v.
JOHN FORTE, APPELLEE; BRICKELL BAY CLUB, INC., BISCAYNE BAY CLUB, INC., AND JOHN FORTE, APPELLANTS, V. MIAMI PURVEYORS, INC., APPELLEE
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Miami Purveyors appealed from a judgment against Biscayne Bay Club, Inc., and an involuntary dismissal of its action against Forte. The Third District reversed both, holding that Purveyors presented prima facie evidence of an oral agreement making Forte primarily liable for payment, precluding dismissal under the statute of frauds and the no-writing rule.
The court held that Purveyors' evidence, viewed most favorably to it, established prima facie that Forte orally agreed to be primarily liable, precluding involuntary dismissal under the statute of frauds at that stage of the non-jury proceedings. The judgment against Biscayne Bay Club was reversed because no evidence supported it.
[1] A judgment entered without supporting evidence is reversible error.
[2] An oral agreement to be primarily liable for the payment of bills for goods thereafter received and accepted by a third party may be enforceable, even if not in writing,…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We reverse the final judgment against Biscayne Bay Club, Inc., because, as is candidly admitted by Purveyors, there was no evidence introduced to support this judgment, which was entered by the trial court under the erroneous belief that Biscayne Bay Club, Inc. had admitted liability.”
Establishes that judgment against Biscayne Bay Club was reversible because it lacked evidentiary support.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMiami Purveyors sued Biscayne Bay Club, Inc. and John Forte for payment of goods supplied. At trial, Purveyors presented evidence that Forte had orall…
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DANIEL S. PEARSON, Judge.
These consolidated appeals are from a final judgment in favor of Miami Purveyors, Inc. (Purveyors) against Biscayne Bay Club, Inc., and an order dismissing with prejudice Purveyors’ action against Forte at the close of the plaintiff’s case in a non jury trial.1
We reverse the final judgment against Biscayne Bay Club, Inc., because, as is candidly admitted by Purveyors, there was no evidence introduced to support this judgment, which was entered by the trial court under the erroneous belief that Biscayne Bay Club, Inc. had admitted liability.
We reverse the order of involuntary dismissal entered in favor of the defendant Forte on a holding that (1) the evidence presented by Purveyors in its case in chief, viewed most favorably to it, prima facie established that Forte orally agreed he would be primarily liable for the payment of Purveyors’ bills for goods thereafter received and accepted by Brickell Bay Club, precluding at that stage of the non-jury proceedings (a) a finding that Forte’s agreement was unenforceable under either Section 672.201 or Section 725.01, Florida Statutes (1977), because not in writing, Bruce Construction Corporation v. The State Exchange Bank, 102 So. 2d 288 (Fla.1958); Jim & Slim’s Tool Supply, Inc. v. Metro Communities Corporation, 328 So. 2d 213 (Fla. 2d DCA 1976); Johnson v. Barnett Bank of Cocoa, N. A., 320 So. 2d 851 (Fla. 4th DCA 1975); Polera v. General Window Corporation, 132 So. 2d 778 (Fla. 2d DCA 1961), and (b) an involuntary dismissal, Tillman v. Baskin, 260 So. 2d 509 (Fla.1972); North American Marketing Corporation, Inc. v. The Travelers Insurance Company, 405 So. 2d 1019 (Fla. 3d DCA 1981); accord, Sea Tower Apartments, Inc. v. Century National Bank, 406 So. 2d 69 (Fla. 4th DCA 1981); and (2) this error is not, as Forte urges, rendered harmless by the fact that the defendant Forte testified as an adverse witness in Purveyors’ case in chief, or the fact that Forte would likely have rested his case without calling any witnesses, since to apply a harmless error test to the absolute rule laid down in Tillman v. Baskin, supra, that a trial judge cannot weigh evidence when ruling on a defendant’s Florida Rule of Civil Procedure 1.420(b) motion, would effectively abrogate the rule.
Accordingly, we reverse the judgment entered against Biscayne Bay Club, Inc. and the involuntary dismissal of John Forte and remand for a new trial against both defendants.
Reversed and remanded with directions.
. A judgment was also entered against F. U. R., Inc., d/b/a The Brickell Bay Club, Inc. It appears that F. U. R., Inc. was never served in the action below, but no appeal has been taken from this judgment.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Thibodeaux, 547 So. 2d 1243 (Fla. 2d DCA 1989)…ng any evidence. To apply a harmless error test to the absolute rule laid down in Tillman that a trial judge cannot weigh evidence when ruling on a motion for involuntary dismissal would effectively abrogate the rule. Miami Purveyors, Inc. v. Forte, 407 So. 2d 330 (Fla. 3d DCA 1981). We, accordingly, reverse and remand for a new trial. See Miami Purveyors, Inc. Reversed and remanded. CAMPBELL, C.J., and RYDER, J., concur.…
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Wygodny v. K-Site 600 Assocs., 644 So. 2d 579 (Fla. 3d DCA 1994)…. It was therefore error for the trial court to adjudicate this ease on the merits at the close of the plaintiffs case in chief. Further, this court has held that this error is not subject to the harmless error test. Miami Purveyors, Inc. v. Forte, 407 So. 2d 330 (Fla. 3d DCA 1981), rev. denied, 413 So. 2d 876 (Fla.1982). Thus, we must reverse the judgment and remand for a new trial only against K-Site 600 Associates and Ben Franklin Properties 500, Inc. As to defendant Mystic Pointe, we affirm the judgment…
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Fason v. Empac Int'l Corp., 648 So. 2d 1270 (Fla. 4th DCA 1995)…ered by the trial court when deciding whether an involuntary dismissal was appropriate. Defenses are not to be considered by the trial court in ruling on a motion for involuntary dismissal directed at a complaint. See Miami Purveyors, Inc. v. Forte, 407 So. 2d 330 (Fla. 3d DCA 1981), rev. denied, [*1271] 413 So. 2d 876 (Fla.1982). In Forte, the court held that an order of involuntary dismissal should be reversed because the evidence pri-ma facie established that defendant orally agreed he would be liable for…
Authorities Cited
- Easter Mae Tillman v. Baskin, 260 So. 2d 509 (Fla. 1972)
- Bruce Constr. Corp. v. THE State Exch. Bank, 102 So. 2d 288 (Fla. 1958)
- SEA Tower Apts., Inc. v. Century Nat'l Bank, 406 So. 2d 69 (Fla. 4th DCA 1981)
- JIM & Slim's Tool Supply, Inc. v. Metro Cmtys. Corp., 328 So. 2d 213 (Fla. 2d DCA 1976)
- N. Am. Mktg. Corp., Inc. v. The Travelers Ins. Co., 405 So. 2d 1019 (Fla. 3d DCA 1981)
- Polera v. Gen. Window Corp., 132 So. 2d 778 (Fla. 2d DCA 1961)
- Johnson v. Barnett Bank OF Cocoa, N.A., 320 So. 2d 851 (Fla. 4th DCA 1975)