GAC PROPERTIES, INC., A FLORIDA CORPORATION, FORMERLY GULF AMERICAN CORPORATION, A FLORIDA CORPORATION, APPELLANT,
v.
WILLIAM H. CARMINE, JR., APPELLEE
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GAC Properties appealed a judgment for breach of an exclusive title insurance agreement, challenging the trial court's findings on the validity of the 1961 contract, interpretation of the property scope, and the interest rate used to calculate damages. The appellate court affirmed, finding no reversible error in the trial court's determinations.
The court affirmed the judgment on all grounds: (1) the burden of proof issue was not properly raised at trial and thus could not be raised for the first time on appeal; (2) even if properly raised, the trial court's finding of contract validity by competent testimony does not demonstrate clear error given the presumption that lower court judgments are correct; (3) substantial competent evidence supported the interpretation that the contract covered all property to be platted within the described townships, including subsequently acquired property; and (4) the 6% interest rate fell within the discretionary range supported by the conflicting expert testimony.
[1] An issue not raised or ruled upon in the trial court may not be raised for the first time on appeal.
[2] A judgment of a lower court is presumed to be correct and free from error.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the record does not show any issue raised, or ruled upon, in the trial court as to whether the 1961 contract should have been proven by "clear and convincing evidence" as opposed to a mere preponderance of the evidence and such point may not be raised for the first time on appeal.”
Establishes the procedural bar preventing GAC from raising the burden of proof issue for the first time on appeal.
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Join FLexlaw to unlock all legal intelligenceWilliam H. Carmine sued GAC Properties for breach of a 1961 written contract that allegedly granted him the exclusive right to issue title insurance p…
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William H. Carmine sued GAC Properties, Inc. for the alleged breach of an agreement under which he claimed to have the exclusive right to issue title insurance policies on property owned by GAC. Carmine recovered a final judgment and GAC has appealed.
Its first point for reversal is directed to a finding that Carmine established “by competent testimony” that a 1961 written contract between the parties was valid, existing and enforceable. GAC asserts the burden of proof required to establish this fact is by clear and convincing evidence and not a mere preponderence of evidence.
The record does not show any issue raised, or ruled upon, in the trial court as to whether the 1961 contract should have been proven by “clear and convincing evidence” as opposed to a mere preponderance of the evidence and such point may not be raised for the first time on appeal. Maeder v. Grayson, Fla.App.1968, 222 So.2d 242; 5 Am.Jur.2d Appeal & Error § 607 and 4 C.J.S. Appeal and Error § 241.
Assuming an issue as to the necessary burden of proof was properly raised and ruled upon below we nevertheless hold that a finding that plaintiff established the validity, existence and enforceability of the written 1961 contract by “competent testimony” does not, ipso facto, amount to a clear showing that the trial court erroneously applied an improper burden of proof as the judgment of the lower court is presumed to be correct and free from error. Florida Power & Light Company v. Ahearn, Fla.1960, 118 So.2d 21. Cf. Lamb v. Jones, Fla.App.1967, 202 So.2d 810.
GAC complains that the trial court committed reversible error in its interpretation of the amount of property involved under the 1961 contract between the parties. The contract contained ambiguous language concerning the amount of property involved under its terms and conditions. The evidence reflects that it was the intention of the parties for Carmine to write title insurance on all property “to be platted”, within the townships described in the agreement. See Bishop v. Orange Belt Securities Co., 127 Fla. 709, 174 So. 1 (1937); and Scotch Mfg. Co. v. Carr, 53 Fla. 480, 43 So. 427 (1907). There is substantial, competent evidence in the record to uphold a ruling that it was the intention of the parties to include all real property, even subsequently acquired property, located within the townships and ranges described in the agreement. 7 Fla.Jur. Contracts § 75. No reversible error has been clearly demonstrated under this point. Prudential Insurance Co. of America v. Latham, Fla.App.1968, 207 So.2d 733; and Wilson v. Rooney, Fla.App.1958, 101 So.2d 892.
The last point raised by GAC is that the trial judge abused his discretion in finding that 6% was a fair and reasonable rate of return for determining the present value of future attorneys’ fees when the undisputed evidence established that the prime interest rate was 8%.
The ruling on this matter amounted to the resolution of a factual conflict between the expert testimony of plaintiff’s witness, who testified that the appropriate rate was 5%% and the defendant’s expert witness who testified that the appropriate rate was 9%. We see no reversible error in this ruling and find that it was supported by competent substantial evidence in the record on appeal. See Renuart Lumber Yards v. Levine, Fla.1950, 49 So.2d 97; and Robertson v. Robertson, Fla.App.1958, 106 So.2d 590. There has been no showing that the final judgment herein appealed is clearly erroneous and it is, therefore,
Affirmed.
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Raoul Vienneau v. Metro. Life Ins. Co., 548 So. 2d 856 (Fla. 4th DCA 1989)…a. 3d DCA 1966), and Andress v. Bigman, 147 So. 2d 576 (Fla. 3d DCA 1962). See also Ladd v. Amoco Oil Co., 482 So. 2d 600, 601 (Fla. 4th DCA 1986) (where material issues of fact precluded final summary judgment). Cf. GAC Properties, Inc. v. Carmine, 258 So. 2d 466, 467 (Fla. 3d DCA 1971). . This court does not have the benefit of the entire Roy Jorgensen contract inasmuch as only the isolated clauses quoted herein appear in the opinion, making a meaningful comparison of both writings impossible. Admittedly,…
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Spike von Zamft v. Cohen, 578 So. 2d 295 (Fla. 3d DCA 1991)…d in the primary judgment below entered after a non-jury trial and challenged on the main appeal. Cobb v. Cobb, 82 Fla. 287, 89 So. 869 (1921); see Martin County v. Johnson, 570 So. 2d 1378, 1381 (Fla. 4th DCA 1990); GAC Properties, Inc. v. Carmine, 258 So. 2d 466 (Fla. 3d DCA 1971). On the cross-appeal, however, we conclude that Cohen is entitled to recover $46,-500, plus interest, in accordance with a stipulation of the parties which was not, but should have been, enforced below. See 2 Fla.Jur.2d Agreed C…
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Ward v. Sikes, 732 So. 2d 1199 (Fla. 5th DCA 1999)…vens Corp. v. Hobe Cie Ltd., 555 So. 2d 425 (Fla. 3d DCA 1989), rev. denied, 564 So. 2d 1086 (Fla.1990); Engel Mortgage Co., Inc. v. Dowd, 355 So. 2d 1210 (Fla. 1st DCA 1977), cert. denied, 358 So. 2d 130 (Fla.1978); GAC Properties, Inc. v. Carmine, 258 So. 2d 466 (Fla. 3d DCA 1971). AFFIRMED. COBB and GOSHORN, JJ., concur.…
Authorities Cited
- Renuart Lumber Yards v. Levine, 49 So. 2d 97 (Fla. 1950)
- The Scotch Mfg. Co. v. Carr, 53 Fla. 480 (Fla. 1907)
- Wilson v. Rooney, 101 So. 2d 892 (Fla. 2d DCA 1958)
- Robertson v. Robertson, 106 So. 2d 590 (Fla. 2d DCA 1958)
- Fla. Power & Light Co. v. Ahearn, 118 So. 2d 21 (Fla. 1960)
- The Lumbermen's Mut. Ins. Co. v. Seaton, 207 So. 2d 733 (Fla. 3d DCA 1968)
- The Prudential Ins. Co. OF Am. v. Latham, 207 So. 2d 733 (Fla. 3d DCA 1968)
- Gertrudis Maeder v. Grayson, 222 So. 2d 242 (Fla. 3d DCA 1968)
- Lamb v. William T. Jones et ux., 202 So. 2d 810 (Fla. 3d DCA 1967)
- Bishop v. Orange Belt Sec. Co., 127 Fla. 709 (Fla. 1937)