CLARA PORRO, APPELLANT,
v.
JOSE LOPEZ FRANCO, APPELLEE
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The court held that a trial court cannot dismiss a case before the completion of the case in chief and that a genuine issue of material fact existed regarding a common-law marriage.
[1] A trial court lacks authority to dismiss a petitioner's case before the completion of the case in chief in a non-jury trial.
[2] A trial court may grant summary judgment after a motion has been heard and the ruling deferred, even if the motion was heard before trial.
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Join FLexlaw to unlock all legal intelligencePetitioner appealed a directed verdict granted after her opening statement in a non-jury trial. The trial court had deferred ruling on a motion for su…
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PER CURIAM.
This is an appeal from a final judgment entered in favor of the respondent, appellee herein, after the trial court granted his motion for directed verdict at the conclusion of the petitioner’s opening statement in a non-jury trial. We reverse upon a holding that (1) the trial court was without authority to dismiss the petitioner’s case1 before completion of the case in chief, see Southern Wood Industries v. Florida Carolina Lumber Co., 84 So. 2d 589 (Fla.1956); Henriquez v. Publix Super Markets, Inc., 434 So. 2d 53 (Fla. 3d DCA 1983); Schurr v. Royal Globe Insurance Co., 353 So. 2d 215 (Fla. 2d DCA 1977); Wilfork v. Associated Grocers of Florida, Inc., 343 So. 2d 84 (Fla. 3d DCA 1977); Carmichael v. Shelley Tractor & Equipment Co., 300 So. 2d 298 (Fla. 4th DCA 1974); Akdoruk v. Advanced Jet Systems, Inc., 296 So. 2d 656 (Fla. 3d DCA 1974); Floyd v. Ott, 221 So. 2d 163 (Fla. 2d DCA 1969); see also Pelle v. Diners Club, 287 So. 2d 737 (Fla. 3d DCA 1974); and (2) notwithstanding that the respondent’s motion for summary judgment had been heard before trial and ruling thereon deferred and that, therefore, the trial court was authorized to grant summary judgment, here, as distinguished from Henriquez v. Publix Super Markets, Inc., 434 So. 2d 53, the respondent was not entitled to a summary judgment, and the final judgment cannot thus be justified, because there existed a genuine issue of material fact as to whether the parties had entered into a common-law marriage in 1963.2
Reversed and remanded for further proceedings.
. Although, as will be seen infra, the motion and the ruling thereon were premature, we note in passing that the appropriate motion in a non-jury trial is a motion for involuntary dismissal. See Fla.R.Civ.P. 1.420(b).
. The petitioner’s statements that Franco promised to marry her at a time after 1963 can be read to refer to a ceremonial marriage to take place in the future, rather than, as Franco argues, a lack of mutual consent to a common-law marriage in 1963. See Marsicano v. Marsicano, 79 Fla. 278, 84 So. 156 (1920).
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Sheldon Greene & Assocs., Inc. v. Williams Island Assocs., 550 So. 2d 1142 (Fla. 3d DCA 1989)…e close of evidence offered by the adverse party. While our decisions are not entirely consistent, we have held on several occasions that it is error to direct a verdict before a plaintiff has completed presentation of his evidence. Porro v. Franco, 448 So. 2d 614, 615 (Fla. 3d DCA 1984), and cases cited therein; accord Dodge v. Weiss, 191 So. 2d 71 (Fla. 1st DCA 1966); Sapp v. Redding, 178 So. 2d 204 (Fla. 1st DCA 1965). But cfi Wilfork v. Associated Grocers, 343 So. 2d 84, 85 (Fla. 3d DCA 1977) (“Though, as…
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Deutsche Bank Nat'l Tr. Co. v. Altos DEL MAR (7701 Collins AYE) LLC, 187 So. 3d 930 (Fla. 3d DCA 2016)…. Santiago, 117 So. 3d 1146 (Fla. 3d DCA 2013) (reversing and remanding for new trial, holding trial court violated rule 1.420(b) when it entered an involuntary dismissal of the foreclosure action before plaintiff rested -its case); Porro v. Franco, 448 So. 2d 614, 615 (Fla. 3d DCA 1984) (holding “trial court was without authority to dismiss the petitioner’s case before completion of the case in chief’); Wachovia Mort., FSB v. Montes, 156 So. 3d 1105, 1106 (Fla. 4th DCA 2015) (holding that “in a bench trial,…
Authorities Cited
- Marsicano v. Marsicano, 79 Fla. 278 (Fla. 1920)
- Greer v. Illgen, 79 Fla. 383 (Fla. 1920)
- Pelle v. Diners Club, 287 So. 2d 737 (Fla. 3d DCA 1974)
- Waldo S. Carmichael v. Shelley Tractor & Equip. Co., 300 So. 2d 298 (Fla. 4th DCA 1974)
- Henriquez v. Publix Super Mkts., Inc., 434 So. 2d 53 (Fla. 3d DCA 1983)
- S. Wood Indus., Inc. v. Fla. Carolina Lumber Co., 84 So. 2d 589 (Fla. 1956)
- Wilfork v. Associated Grocers OF Fla., Inc., 343 So. 2d 84 (Fla. 3d DCA 1977)
- Floyd v. OTT, 221 So. 2d 163 (Fla. 2d DCA 1969)
- Yilmaz M. Akdoruk & Faye H. Akdoruk t/a Akdoruk & Assocs. v. Advanced JET Sys., Inc., 296 So. 2d 656 (Fla. 3d DCA 1974)
- Schurr v. Royal Globe Ins. Co., 353 So. 2d 215 (Fla. 2d DCA 1977)