JUDITH HASKIN, APPELLANT,
v.
EUGENE HASKIN, APPELLEE
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PER CURIAM.
We reverse the trial court’s order involuntarily dismissing the former wife’s (appellant) action to modify her alimony award, and remand for a new hearing.
It is proper to enter an involuntary dismissal only when the evidence, considered in the light most favorable to the non-moving party, fails to establish a prima facie case on the non-moving party’s claim. Cohen v. Boca Woods Country Club Property Owners Ass’n, 632 So. 2d 1142 (Fla. 4th DCA 1994). A trial judge may not weigh the evidence in considering a motion for involuntary dismissal. Palm Beach Mall, Inc. v. Walker, 585 So. 2d 1149 (Fla. 4th DCA 1991).
It is apparent from the order that the trial judge weighed the evidence and considered the credibility of the witnesses. As such, we are compelled to reverse.
GLICKSTEIN, WARNER and SHAHOOD, JJ., concur.
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Deutsche Bank Nat'l Tr. Co. for J.P. Morgan Mortg. Acquisition Tr. 2007-CH1 v. Stone, 174 So. 3d 550 (Fla. 4th DCA 2015)…s its case.”). This error was compounded by the fact that the trial court based its decision to involuntarily dismiss the foreclosure action on its incorrect ruling regarding the admissibility of the notice of default letter. See Haskin v. Haskin, 677 So. 2d 376, 377 (Fla. 4th DCA 1996) (holding that in considering a motion for involuntary dismissal, a trial court judge may not weigh the evidence). Based on the trial testimony of Deutsche’s witness, the notice of default letter should have been admitted und…
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Lustig v. Alina Garcia, 789 So. 2d 482 (Fla. 4th DCA 2001)…8 So. 2d 204, 206 (Fla. 1st DCA 1965).1 Further, even if Lustig had rested, it is well-established that in ruling on a motion for involuntary dismissal, a trial judge may not weigh the evidence or the credibility of witnesses. See Haskin v. Haskin, 677 So. 2d 376, 377 (Fla. 4th DCA 1996); Palm Beach Mall, Inc. v. Walker, 585 So. 2d 1149, 1150 (Fla. 4th DCA 1991); Sea Tower Apartments, Inc. v. Century Nat’l Bank, 406 So. 2d 69 (Fla. 4th DCA 1981). Rather, such a decision is limited to whether the claimant has…
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Bottalico v. Antonelli, 695 So. 2d 363 (Fla. 4th DCA 1997)…redibility of the evidence when ruling upon a [motion for involuntary dismissal].” Service Facilities Corp. v. Lanier, 371 So. 2d [*364] 1083, 1084 (Fla. 4th DCA 1979) (citing Tillman v. Baskin, 260 So. 2d 509 (Fla.1972)); see also Haskin v. Haskin, 677 So. 2d 376 (Fla. 4th DCA 1996). As in Haskin, it is apparent from the face of the final judgment that the trial judge improperly weighed the evidence. This compels reversal and a new trial. REVERSED AND REMANDED for a new trial. GLICKSTEIN and STEVENSON, J…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Palm Beach Mall, Inc. v. Walker, 585 So. 2d 1149 (Fla. 4th DCA 1991)
- Cohen v. Boca Woods Country Club Prop. Owners Ass'n, Inc., 632 So. 2d 1142 (Fla. 4th DCA 1994)