SJS ENTERPRISES, INC., D/B/A TRIPLE A IRRIGATION, APPELLANT,
v.
JAMES L. CATES, OUIDA K. CATES, FORDEB DEVELOPMENT CORPORATION, A FLORIDA CORPORATION AND AL-MAR POOLS, INC., A CORPORATION, APPELLEES
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The court held that the trial court's involuntary dismissal was premature because the plaintiff had not yet completed the presentation of its evidence.
During the presentation of the first witness in a mechanic's lien and contract action, the trial court granted the defendant's motion for involuntary …
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POLEN, Judge.
During the trial of appellant’s mechanic lien and contract actions, through the testimony of the first witness offered by appellant, the trial court reached the conclusion that the wrong entity had brought the cause of action. Thereupon, the trial court granted appellees’ motion for involuntary dismissal, presumably under Florida Rule of Civil Procedure 1.420(b). We reverse.
The above cited rule which would allow for an involuntary dismissal by the court provides in pertinent part:
After a party seeking affirmative relief in an action tried by the court without a jury has completed the presentation of his 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. (Emphasis added.) In this case the appellant was on its first witness when the involuntary dismissal was granted. Clearly this was premature. While we cannot speculate as to whether subsequent witnesses could have cured the apparent defect as to corporate entity, the trial court cannot properly “jump the gun” by granting such a motion on the first witness’ testimony. We abhor the thought that such a situation could lead to a multi-day trial on plaintiffs case, only to be followed with a rule 1.420(b) motion granted. However, the meaning of the rule is clear and unambiguous. It may well be that, on remand, appellant will seek to amend its pleadings to cure any possible defect as to the correct plaintiff entity.
In Case No. 88-1573 appellant contests the award of attorney’s fees to appellees. Having reversed the trial court’s dismissal of appellant’s action, we must also reverse the award of attorney’s fees.
We therefore reverse and remand for further proceedings consistent with this opinion.
DOWNEY and GARRETT, JJ., concur.
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Thalgott v. Thalgott, 571 So. 2d 1368 (Fla. 1st DCA 1990)…ion of the rule, numerous appellate courts have held that trial courts erred in dismissing a non-jury action before the completion of the plaintiff’s evidence. See, e.g., Dodge v. Weiss, 191 So. 2d 71 (Fla. 1st DCA 1966); SGS Enters., Inc. v. Cates, 547 So. 2d 226 (Fla. 4th DCA 1989); In re Estate of McCoy, 445 So. 2d 680 (Fla. 2d DCA 1984); [*1371] Underground Supply Co. v. Mason, 365 So. 2d 447 (Fla. 4th DCA 1978). In the case at bar, not only had appellee not completed her evidence in support of her petit…
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A.N. and A.N. v. M.F.-A. and J.A., 946 So. 2d 58 (Fla. 3d DCA 2006)…portunity to be heard be full and fair, not merely colorable or illusive. Id. at 820 (quoting Pelle v. Diners Club, 287 So. 2d 737, 738 (Fla. 3d DCA 1974)). [*60] The same concept applies to an involuntary dismissal. See SJS Enters., Inc. v. Cates, 547 So. 2d 226 (Fla. 4th DCA 1989)(trial court could not “jump the gun” and grant a motion for an involuntary dismissal before a party has completed the presentation of the evidence). Florida Rule of Civil Procedure 1.420(b) states in pertinent part: After a part…
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Zerillo v. Snapper Power Equipment, 562 So. 2d 819 (Fla. 4th DCA 1990)…bility before having a chance' to hear all the testimony appellant had to offer); Sheldon Greene and Assocs., Inc. v. Williams Island Assocs., 550 So. 2d 1142 (Fla. 3d DCA 1989), rev. denied, 557 So. 2d 35 (Fla.1990); SJS Enterprises, Inc. v. Cates, 547 So. 2d 226 (Fla. 4th DCA 1989) (applying the same concept to the grant of a motion for involuntary dismissal and holding that the trial court could not “jump the gun” by granting such a motion before the party has completed his presentation of evidence); Carmi…
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