VINCENT A. MARTUCCI, APPELLANT,
v.
GREEN KROLL CORP., A FLORIDA CORPORATION, APPELLEE
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OWEN, WILLIAM C., Jr., Associate Judge.
Appellant entered into a written contract to purchase a home from the appellee corporation. The contract was contingent upon appellant qualifying to assume the existing mortgage. When he failed to qualify, he asked for return of his deposit. Upon the appellee’s refusal, he brought this suit for declaratory judgment. In the non-jury trial the sole issue was whether appellant had made a bona fide effort to qualify with the mortgagee. His testimony, outlining the efforts that he made, established a prima facie case of good faith effort. Nonetheless, at the close of his case the trial court granted appellee’s motion for involuntary dismissal. It would appear that the court, in doing so, improperly weighed the credibility of plaintiff’s testimony. Tillman v. Baskin, 260 So. 2d 509 (Fla.1972). The judgment and the separate order awarding attorney’s fees are severally reversed and this cause is remanded for new trial.
WALDEN, J., concurs.
GLICKSTEIN, J., concurs with opinion.
GLICKSTEIN, Judge,
concurring.
Because this matter is to be tried again, the writer urges that in reaching the heart of the matter, all concerned recognize the difference between inappropriately seeking to introduce a statement to prove the truth thereof and appropriately offering it to prove that the statement was made.
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Perez v. Perez, 973 So. 2d 1227 (Fla. 4th DCA 2008)…ing party fails to establish a prima facie case. Id. at 825; Bottalico, 695 So. 2d at 363. The trial court may not weigh and judge the credibility of the evidence. Hack, 811 So. 2d at 825; Bottalico, 695 So. 2d at 363; Martucci v. Green Kroll Corp., 483 So. 2d 789 (Fla. 4th DCA 1986). Clearly, the trial court violated this rule by finding that the former husband’s testimony was not credible. [*1232] Where the “circumstances or the financial ability of either party changes” either party may apply to the circui…
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Wimbledon Townhouse Condo. I v. Wolfson, 510 So. 2d 1106 (Fla. 4th DCA 1987)…rima facie case. Panet v. Rexod, supra. If it is determined that the claimant has submitted competent proof on each element of the cause of action pleaded then a motion for involuntary dismissal must be denied. Accord Martucci v. Green Knoll Corp., 483 So. 2d 789 (Fla. 4th DCA 1986); Christie v. General Electric Credit Corp. 462 So. 2d 866 (Fla. 4th DCA 1985). The trial court’s erroneous exclusion of the testimony and evidence concerning the board’s approval of the assessment and the ratification of that ac…
Authorities Cited
- Easter Mae Tillman v. Baskin, 260 So. 2d 509 (Fla. 1972)