GULF HEATING AND REFRIGERATION COMPANY, INC., A FLORIDA CORPORATION, PETITIONER,
v.
IOWA MUTUAL INSURANCE COMPANY, AN IOWA CORPORATION, RESPONDENT
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Gulf Heating and Refrigeration Company sought certiorari to review a district court decision that reversed a jury verdict and granted a directed verdict for the defendant based solely on plaintiff's evidence. The Florida Supreme Court held that appellate review of a directed verdict motion must consider all evidence presented at trial, not just plaintiff's evidence, and reversed the district court's decision.
An appellate court reviewing a denied motion for directed verdict must consider all evidence adduced in the case, not merely the plaintiff's evidence. The defendant's presentation of evidence after the initial motion for directed verdict is denied waives any error in that denial, and the appellate review must be based on the renewed motion at the close of all evidence, considered in light of the complete trial record.
“a defendant, by proceeding with the presentation of his evidence, waives any error in denial of his initial motion, and that the court's ruling on the renewed motion required at the close of the case must be, as above stated, "based on a consideration of all the evidence adduced in the cause."”
Establishes the core holding that presentation of evidence waives error in denial of initial directed verdict motion and requires appellate review of all evidence
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Join FLexlaw to unlock all legal intelligenceGulf Heating and Refrigeration Company sued for wrongful garnishment against Iowa Mutual Insurance Company. A jury rendered a verdict in favor of Gulf…
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Petitioner in this certiorari proceeding controverts a decision of the district court reversing a judgment for petitioner, the plaintiff in an action for wrongful garnishment.
Upon a review of plaintiff’s evidence the district court held that “the lower court erred in failing to grant Defendant’s motion for directed verdict upon the conclusion of evidence submitted by Plaintiff and again upon the conclusion of all of the evidence.” 1 In view of the limited record before the appellate court, containing only plaintiff’s evidence, we think the quoted ruling must be construed as one simply finding error in the denial of defendant’s motion for directed verdict at the close of plaintiff’s evidence.2 To the extent that the language might indicate a decision of greater breadth, i. e. a finding of error in the failure to grant a directed verdict upon consideration of all the evidence, the appellate record was obviously insufficient to permit such a determination.3
Certiorari in this Court is based on conflict between this decision, reversing a judgment entered on a jury verdict and directing that defendant’s motion for directed verdict be granted upon appellate consideration of plaintiff’s evidence alone, *5and the rule pronounced in 6551 Collins Avenue Corp. v. Millen4 that in this situation a defendant may obtain appellate review of that issue only by assignment of error directed to the trial judge’s ruling on consideration of all the evidence adduced in the cause:
“Insofar as appellate review of the sufficiency of the evidence under an assignment of error directed to the trial judge’s ruling upon the defendant’s motion is concerned, it is clear that in the situations hypothesized in the preceding paragraphs the trial judge’s ruling would be based on a consideration of all the evidence adduced in the cause, so that the question of the sufficiency of the evidence could properly be considered by the appellate court on an assignment of error directed to the trial judge’s ruling thereon. Cf. United States v. 353 Cases, etc., 8 Cir., 1957, 247 F.2d 473.”5
Upon a thorough study of the authorities referred to in the Millen opinion the conclusion is inescapable that under the federal doctrine of waiver there approved6 a defendant, by proceeding with the presentation of his evidence, waives any error in denial of his initial motion, and that the court’s ruling on the renewed motion required at the close of the case must be, as above stated, “based on a consideration of all the evidence adduced in the cause.”-7
The appellate issue must accordingly be resolved by review of the defendant’s as well as plaintiff’s evidence. This disposition of the point is in accord with earlier decisions indicating that error in denying directed verdict on plaintiff’s evidence may be cured by subsequent testimony.8 The burden of framing proper appellate issues or correcting record omissions in the instant case did not, in our opinion, devolve upon the petitioner, appellee below. Florida Appellate Rule 3.6(d) (2), 31 F.S.A. Whatever may have been the breadth or deficiencies of appellee’s contest of the appeal, such cannot logically serve to bolster the reversal in this case.
The decision below, upon the limited record and error assigned, is quashed with directions that the judgment of the trial court be affirmed.
It is so ordered.
THOMAS, ROBERTS and O’CONNELL, JJ., concur.
THORNAL, C. J., dissents with opinion.
(dissenting):
There is no jurisdictional conflict.
THORNAL, Chief Justice
(dissenting):
There is no jurisdictional conflict.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (18 total)
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McCAIN v. Fla. Power Corp., 593 So. 2d 500 (Fla. 1992)…Justice. We have for review Florida Power Corp. v. McCain, 555 So. 2d 1269 (Fla. 2d DCA 1989), based on express and direct conflict with Kaisner v. Kolb, 543 So. 2d 732 (Fla.1989), and Gulf Heating & Refrigeration Co. v. Iowa Mutual Insurance Co., 193 So. 2d 4 (Fla.1966). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. Thomas McCain was injured when the blade of a mechanical trencher he was operating struck an underground Florida Power Corporation electrical cable. An employee of Florida Power had c…1 / 2
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Harmon v. State, 527 So. 2d 182 (Fla. 1988)…reflects that this comment was made by the testifying witness, not the trial judge. The burden of taking steps to ensure that such an error in the record is corrected is on the appellant. See Gulf Heating and Refrigeration Co. v. Iowa Mut. Ins. Co., 193 So. 2d 4 (Fla.1966). Harmon has not established that the transcript in the present case was erroneous. Accordingly, no error which would necessitate reversal has been demonstrated. We have thoroughly examined the entire record and find the evidence more tha…
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Honda Motor Co., Ltd. v. Marcus, 440 So. 2d 373 (Fla. 3d DCA 1983)…judgment notwithstanding the verdict and a failure to properly preserve its claim on appeal that it was entitled to a judgment in its favor because of the insufficiency of the evidence, Gulf Heating & Refrigeration Co. v. Iowa Mutual Insurance Co., 193 So. 2d 4 (Fla.1966); 6551 Collins Avenue Corp. v. Millen, 104 So. 2d 337 (Fla.1958); Keyes Co. v. Shea, 372 So. 2d 493 (Fla. 4th DCA 1979); Laird v. Potter, 367 So. 2d 642 (Fla. 3d DCA 1979); Lee County Oil Co. v. Marshall, 98 So. 2d 510 (Fla. 1st DCA 1957),…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- 6551 Collins Ave. Corp. v. Beverlee Millen, 104 So. 2d 337 (Fla. 1958)
- United States v. 353 Cases * * * Mountain Valley Mineral Water * * *, 247 F.2d 473 (8th Cir. 1957)
- Fla. E. Coast Ry. Co. v. Buckles, 85 Fla. 416 (Fla. 1923)
- Iowa Mut. Ins. Co. v. Gulf Heating & Refrigeration Co., Inc., 184 So. 2d 705 (Fla. 2d DCA 1966)
- Bolick v. Sperry, 88 So. 2d 495 (Fla. 1956)
- Atlas Dredging Co. v. Mitchell, 74 Fla. 307 (Fla. 1917)