KREST-VIEW NURSING HOME, INC., A FLORIDA CORPORATION, AND DADE COUNTY RETREAT, INC., A FLORIDA CORPORATION, APPELLANTS,
v.
JERRY SOKOLOW, APPELLEE
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Nursing homes appealed a jury verdict for services rendered, challenging the trial court's denial of their motion for directed verdict. The court affirmed the judgment, holding that conflicting evidence regarding a payment statement and the defense of estoppel by fraud required jury resolution.
The trial court properly denied the directed verdict motion because plaintiff presented evidence that the payment statement was given without consideration as part of a scheme to gain stockholder control and was therefore of no force and effect. The jury properly resolved the conflicting issues and could render a joint verdict based on substantial, competent evidence.
“If there had been no evidence of the explanation of this statement tendered by the plaintiff, certainly the defendants might have been entitled to a directed verdict.”
Establishes that the payment statement alone might support directed verdict, but plaintiff's explanatory evidence required jury consideration
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Join FLexlaw to unlock all legal intelligencePlaintiff Sokolow provided services to defendants Krest-View Nursing Home and Dade County Retreat. Defendants introduced a statement signed by Sokolow…
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This appeal involves the propriety of a final judgment rendered in an action founded on account stated and/or quantum meruit for services rendered. The complaint alleged a joint liability and sought a joint judgment. The complaint was met with an answer denying liability and alleging the defense of payment, plus estoppel by fraud and deceit. Following the cause being at issue, the matter was duly submitted to a jury which returned a verdict in favor of the plaintiff for an amount less than that sought as an account stated, but well within the evidence as to the count sounding in quantum meruit.
The appellants have preserved for review the propriety of the trial court’s failing to direct a verdict, when the defendants introduced into evidence a statement reading as follows:
“After examining my costs and fees, I have concluded that I am paid current and up to date.
/s/ Jerry Sokolow
JERRY SCKOLOW CPA”
If there had been no evidence of the explanation of this statement tendered by the plaintiff, certainly the defendants might have been entitled to a directed verdict. See: McLeod v. Citizens Bank of Live Oak, 61 Fla. 343, 56 So. 190; 40 Am.Jur., Pay*777ments, § 298 ; 70 C.J.S. Payment § 125; 19 F.Lp., Payment, § 36; 1 Am.Jur.2d, Accounts and Accounting, § 40. However, the evidence before the trial judge, at the time of ruling on the motion for directed verdict from the plaintiff, was to the effect that the statement was given without consideration for the purpose of enabling certain stockholders of the defendant corporations to gain control thereof and, in the event they were successful [which they were], said statement was to be considered of no force and effect. It was .proper for the judge to submit these conflicting issues to the jury and for the jury to resolve them. They resolved them adverse to the defendants and, in fact, found that there was an amount due the plaintiff.
The defense of estoppel by fraud and deceit was not proper under the evidence, as no detrimental change in position occurred to the corporations by the execution of the statement. The fraud, if any, was on the stockholder who sold out his interest.
As to the question of joint liability, this was also a matter put in issue by the pleadings and the evidence, and it was within the province of the jury to resolve this issue in favor of the plaintiff and to render a joint verdict. The record contains substantial, competent evidence to support the final judgment rendered on á jury verdict and, therefore, we are required to affirm same, no other errors appearing. See: Food Fair Stores of Florida, Inc. v. Vallarelli, Fla.App.1958, 101 So.2d 161; Fuote v. Maule, Fla.App.1962, 143 So.2d 563; Miami Shores Village v. Lingler, Fla.App. 1963, 157 So.2d 716; Thal v. Roth, Fla.App. 1965, 173 So.2d 174.
Affirmed.
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Home Health Servs. OF Sarasota, Inc. v. McQUAY-Garrett, 462 So. 2d 605 (Fla. 2d DCA 1985)…issue of material fact concerning partial payment; accordingly, we hold that the trial court erred in awarding a summary judgment to the ap-pellee. See Monroe v. Appelton, 419 So. 2d 356 (Fla. 2d DCA 1982); Krest-View Nursing Home, Inc. v. Sokolow, 177 So. 2d 775 (Fla. 3d DCA 1965). The trial court properly held that an account stated had been established. See Merrill-Stevens Dry Dock Co. v. “Corniche Express," 400 So. 2d 1286 (Fla. 3d DCA 1981); Dutch Inns of America, Inc. v. Jenkins, 301 So. 2d 119 (Fla.…
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Gulf Hotel Corp. v. The Hialeah-Miami Springs Bank, 257 So. 2d 297 (Fla. 3d DCA 1972)…PER CURIAM. Affirmed; See Krest-View Nursing Home, Inc. v. Sokolow, Fla.App.1965, 177 So. 2d 775.…
Authorities Cited
- Food Fair Stores OF Fla., Inc. v. Clementine Vallarelli and her husband, 101 So. 2d 161 (Fla. 3d DCA 1958)
- Fuote v. Grayson Maule and Barbara Maule, 143 So. 2d 563 (Fla. 3d DCA 1962)
- Miami Shores Vill. v. Lingler, 157 So. 2d 716 (Fla. 3d DCA 1963)
- Thal v. Roth, 173 So. 2d 174 (Fla. 3d DCA 1965)
- McLeod v. The Citizens Bank of Live Oak, 61 Fla. 343 (Fla. 1911)