FRANCES O. WARRINER, APPELLANT,
v.
DOUG TOWER, INC., A FLORIDA CORPORATION, ET AL., APPELLEES
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Frances Warriner, a real estate broker, appealed a directed verdict entered in favor of defendants after she failed to prove a prima facie case at trial. The appellate court affirmed, holding that Warriner failed to provide an adequate appellate record and that the evidence was insufficient to support her claim.
The directed verdict was properly granted and affirmed. The appellate court held that Warriner failed to provide an adequate appellate record containing the complete trial testimony, which is essential when the sufficiency of evidence is at issue. The burden on appeal rests on the appellant to demonstrate prejudicial error through a complete record.
“We have repeatedly held in numerous decisions that when an appeal is taken from a decision, order, judgment or decree entered by the trial court, the burden rests squarely upon appellant to clearly demonstrate by the record that prejudicial error was committed.”
Establishes the burden of proof on appeal and the requirement for a complete appellate record
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Join FLexlaw to unlock all legal intelligenceWarriner, a real estate broker, testified twice at trial and attempted to testify a third time but was prevented by the court. She presented testimony…
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Frances O. Warriner, plaintiff below, seeks review of a final judgment entered after a directed verdict for the defendants because of her failure to prove a prima facie case.
The record on appeal reflects that during her case in chief at the trial, plaintiff testified on two occasions. Testimony of other witnesses was presented, and the plaintiff attempted to testify a third time but the court refused to permit her to retake the stand. At no time was there cross examination of the plaintiff by any of the defendants. The plaintiff then rested her case, as she had no further witnesses. The trial court granted the defendants’ motion for directed verdict because of the plaintiff’s failure to prove a prima facie case, and the plaintiff has appealed from that order and judgment.
The plaintiff has presented this court with the testimony of one witness, *385George N. Jahn, and has failed to provide us with her testimony and that of all other witnesses. The testimony of Jahn, an attorney, was offered by the plaintiff, a real estate broker, to prove by an expert witness what a reasonable fee might he for services rendered by the plaintiff in this cause. Jahn stated that while he could testify as to a reasonable attorney’s fee, he was not qualified to say what a real estate broker would-charge. His testimony was properly stricken by the trial court, inasmuch as the witness himself did not think he was “qualified to say” what a real estate broker would charge. See 35 Fla.Jur. Witnesses § 255 and 13 Fla.Jur. Evidence § 310.
The plaintiff seeks to overcome this deficiency in the evidence by alluding to various documents presented as evidence in the trial court. An examination of these documents does not prove the existence of the contracts alleged between the parties; the consideration, if any, to be paid to plaintiff for her services, or the damages, if any, suffered by plaintiff.
In Robinson v. Foland, Fla.App.1960, 124 So.2d 512, 513, the court stated:
******
“We have repeatedly held in numerous decisions that when an appeal is taken from a decision, order, judgment or decree entered by the trial court, the burden rests squarely upon appellant to clearly demonstrate by the record that prejudicial error was committed. Included in this burden is the clear responsibility devolving upon appellant’s counsel to bring to this court a trial record containing every phase of the trial proceedings which must necessarily be considered in order that it may be determined whether prejudicial error was actually committed. When the question presented for our consideration must necessarily turn upon the sufficiency or the insufficiency of the evidence to support the trial court’s ruling, it becomes indispensable that such evidence be included in the record on appeal.”
* * * * * *
The plaintiff has failed to provide this court with an adequate transcript of the evidence and it must be assumed, therefore, that there was insufficient evidence to take the case to the jury in view of the order granting the motion for directed verdict. Gulf Coast Title Co. v. Walters, 1937, 126 Fla. 739, 171 So. 763. We have considered the other points on appeal and consider them to be without merit.
The judgment appealed from is
Affirmed.
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Gregorio MacHado and Sounds S.R.L. v. Foreign Trade, Inc., 478 So. 2d 405 (Fla. 3d DCA 1985)…of typing or letter construction typical for Latin American businesses, such as Sounds. Proffered expert testimony is properly excluded when, as here, the witness himself concedes he is not an expert in the matter. See Warriner v. Doug Tower, Inc., 180 So. 2d 384 (Fla. 3d DCA 1965), cert. denied, 192 So. 2d 493 (Fla.1966), cert. denied, 386 U.S. 999, 87 S.Ct. 1321, 18 L.Ed.2d 349 (1967). Furthermore, the comparison letters the expert was going to rely upon were never introduced into evidence nor were they ev…
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Rosenstein v. Raticoff, 265 So. 2d 387 (Fla. 4th DCA 1972)…of appellant to demonstrate error by furnishing the basis upon which the rulings were made in order that we may review same and decide their correctness. Belflower v. Risher, Fla.App.1969, 227 So. 2d 702; Warriner v. Doug Tower, Inc,, Fla.App.1965, 180 So. 2d 384; Brown v. Householder, Fla.App.1961, 134 So. 2d 801. Affirmed. REED, C. J., and WALDEN and MAG-ER, JJ., concur.…
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Tallahassee Mem'l Reg'l Med. Ctr., Inc. v. Sheronda A. Meeks, 543 So. 2d 770 (Fla. 1st DCA 1989)…not qualified, it is error to admit the opinion. See, e.g., Machado v. Foreign Trade, Inc., 478 So. 2d 405 (Fla. 3d DCA 1985), disapproved on other grounds, Cheek v. McGowan Elec. Supply Co., 511 So. 2d 977 (Fla.1987); Warriner v. Doug Tower, Inc., 180 So. 2d 384 (Fla. 3d DCA 1965), cert. denied, 192 So. 2d 493 (1966), cert. denied, 386 U.S. 999, 87 S.Ct. 1321, 18 L.Ed.2d 349 (1967). Nevertheless, these cases are factually distinguishable from the one at bar, because Dr. Ketchum did not testify that he was n…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Robinson v. Foland, 124 So. 2d 512 (Fla. 1st DCA 1960)
- James v. Campbell, 124 So. 2d 512 (Fla. 3d DCA 1960)
- Gulf Coast Title Co. v. Walters, 126 Fla. 739 (Fla. 1937)