SHELBOURNE ENTERPRISES, INC., A FLORIDA CORPORATION, APPELLANT,
v.
JEANNE LAST, AS ADMINISTRATRIX, APPELLEE
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Shelbourne Enterprises appeals a directed verdict denial in a slip and fall injury case where the plaintiff's substituted administrator lacked documentary proof of capacity. The court affirmed, holding that procedural rules create presumptions of regularity and require specific pleading to challenge party capacity.
The defendant was not entitled to a directed verdict. Procedural rules establish that absent a contrary showing in the record, there is a presumption the trial court properly followed substitution procedures and the administrator demonstrated capacity at the hearing. Additionally, challenges to party capacity require specific negative averments in the pleadings, which defendant did not file.
“In the absence of a contrary showing it is presumed that the court followed the rule and that the order was made upon a proper showing at the hearing of plaintiff's capacity to sue.”
Establishes the presumption of regularity that protects the trial court's substitution order
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Join FLexlaw to unlock all legal intelligenceNorbert Last filed a slip and fall injury action against Shelbourne Enterprises. Last died prior to trial, and the court authorized substitution of hi…
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The defendant appeals a final judgment in an action on a slip and fall injury. The main reliance for reversal is upon an assignment of error directed to the trial judge’s denial, at the conclusion of plaintiff’s case, of defendant’s motion for a directed verdict.
The cause was instituted by Norbert Last as plaintiff. He died prior to trial and the court, upon motion, by order authorized the substitution of his administrator as plaintiff. No error is assigned to the order. The subsequently filed answer of the defendant consisted of a general denial of negligence.
It was argued in the trial court and urged here that the defendant was entitled to a directed verdict because plaintiff failed to introduce documentary proof of her capacity as administrator. The argument is unavailing because of two separate provisions of the Florida Rules of Civil Procedure. First, Rule 1.19, 3 Fla.Stat., 30 F.S.A., “Survivor. Substitution Of Parties, (a) Death.”, provides the procedure in such cases. The rule sets out that there shall be a motion, a notice of hearing and an order. In the absence of a contrary showing it is presumed that the court followed the rule and that the order was made upon a proper showing at the hearing of plaintiff’s capacity to sue. This is true because the absence from a record of any evidence of a necessary step is not a showing that the step was not taken and the presumption in favor of the regularity of proceeding in the trial court holds until the contrary is clearly and affirmatively made to appear. Stokely v. Conner, 69 Fla. 412, 68 So. 452. Second, Rule 1.9(a), 3 Fla.Stat., 30 F.S.A., provides: “When a party desires to raise an issue as to * * * the capacity of any party to sue * * * or the authority of a party to sue * * * ' in a representative capacity, he shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader’s knowledge.” The record contains no such negative averment.
We have examined the other point raised and find no reversible error.
Affirmed.
HORTON, C. J., and PEARSON, TILLMAN, and CARROLL, CHAS., JJ., concur.
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McDONOUGH Equip. Corp. v. Sunset Amoco W., Inc., 669 So. 2d 300 (Fla. 3d DCA 1996)…s issue. Wittington Condo. Apartments, Inc. v. Braemar Corp., 313 So. 2d 463 (Fla. 4th DCA 1975), cert. denied, 327 So. 2d 31 (Fla.1976); Cor-Gal Builders, Inc. v. Southard, 136 So. 2d 244 (Fla. 3d DCA 1962); [*302] Shelbourne Enters., Inc. v. Last, 129 So. 2d 430 (Fla. 3d DCA 1961). McDonough next asserts that it is entitled to judgment as a matter of law because this action is otherwise barred by the economic loss doctrine. With this we agree. The economic loss rule, simply stated, precludes a recovery in…
Authorities Cited
- Stokely v. Conner, 69 Fla. 412 (Fla. 1915)