WALDO S. CARMICHAEL, APPELLANT,
v.
SHELLEY TRACTOR & EQUIPMENT COMPANY, APPELLEE
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Carmichael sued Shelley Tractor for breach of a dragline purchase contract, but voluntarily dismissed his complaint and the case proceeded on the company's counterclaim for unpaid installments. The trial court denied Carmichael's motion to amend his answer to deny the company's performance and granted a directed verdict for the company before Carmichael presented his evidence, which was reversible error.
The trial court abused its discretion in denying the amendment and committed reversible error in granting the directed verdict prematurely. A party cannot move for and obtain a directed verdict before the opposing party completes its case-in-chief, as this would deny due process of law.
[1] A trial court abuses its discretion by denying a defendant's motion to amend their answer when the proposed amendment does not cause surprise or prejudice to the opposing…
[2] A motion for a directed verdict made at the close of a party's case-in-chief, before the opposing party has completed their case, is premature and constitutes error.
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Join FLexlaw to unlock all legal intelligence“The amendment which appellant sought to make to its answer to the counterclaim, whereby he sought to deny that appellee had performed its obligations under the contract, was in essence nothing more than the substance of appellant's voluntarily dismissed complaint, i. e., that appellee had breached its contract. There could have been no surprise or prejudice to appellee by permitting such amendment as the issue of whether appellee breached its contract was included in the pretrial order.”
Establishes that the trial court abused its discretion in denying the amendment to the answer
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Join FLexlaw to unlock all legal intelligenceCarmichael entered into a written contract with Shelley Tractor to purchase a dragline, with the company agreeing to provide services, maintenance, an…
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OWEN, Chief Judge.
Appellant, the original plaintiff in a suit for breach of contract, suffered a judgment for damages on appellee’s counterclaim following a non-jury trial.
Appellant’s amended complaint alleged that he had entered into a written contract with appellee to purchase from the latter a certain dragline, pursuant to which contract appellee agreed to provide plaintiff-appellant with certain services, maintenance and materials for contemplated repair of the dragline; that the dragline as delivered by appellee was not delivered timely, was not in the condition as warranted, and that appellee had breached its agreement to make repairs thereon, all to the plaintiff’s damage. By counterclaim appellee alleged in Count I the execution of the contract, the delivery of the drag-line, and appellant’s breach of the contract by failure to pay the installments due on the purchase price and by subsequently selling the dragline to a third party. In an amendment to the counterclaim, appellee alleged that it had furnished at appellant’s request certain labor and materials for repair of the dragline for which appellant had not paid.
When the cause came on for trial before the court without a jury, appellant an nounced a voluntary dismissal of his complaint, and orally moved to amend his answer to the counterclaim to deny that appellee had performed its obligations under the contract. Initially, the court reserved ruling on this motion. The case proceeded to trial on appellee’s counterclaim, and at the conclusion of appellee’s case-in-chief on this counterclaim the court denied appellant’s motion to amend his answer as aforesaid, and at that time and before appellant had put on any evidence, granted appellee’s motion for directed verdict on Count I. These two orders are assigned as error. The amendment which appellant sought to make to its answer to the counterclaim, whereby he sought to deny that appellee had performed its obligations under the contract, was in essence nothing more than the substance of appellant’s voluntarily dismissed complaint, i. e., that appellee had breached its contract. There could have been no surprise or prejudice to appellee by permitting such amendment as the issue of whether appellee breached its contract was included in the pretrial order. It would appear that the court’s denial of appellant’s motion to amend his answer in this respect was an abuse of discretion.
The granting of appellee’s motion for a directed verdict on Count I at the close of its case-in-chief and before appellant had rested was error, as the motion was premature. At trial upon the issues made by the pleadings, a party may not move for and obtain a directed verdict prior to the time that the party moved against has completed his case-in-chief. Otherwise, such party would be denied due process of law. Cf., Pelle v. Diners Club, Fla.App. 1974, 287 So. 2d 737.
The judgment is reversed and this cause remanded for a new trial.
Reversed and remanded.
CROSS and MAGER, JJ., concur.
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Pike v. Nat'l Fid. Life Ins. Co., 377 So. 2d 973 (Fla. 3d DCA 1979)…ant, for the trial court’s failure to grant the plaintiff’s motion to do so below. Fla.R.Civ.P. 1.190(a), (e); Florida Sunshine Coast Development Co., Inc. v. McClung, 352 So. 2d 154 (Fla. 2d DCA 1977); Carmichael v. Shelley Tractor & Equipment Co., 300 So. 2d 298 (Fla. 4th DCA 1974). The judgment below is reversed and the cause remanded for a new trial. Reversed and remanded. . The entire letter stated: November 24, 1976 Policy Number: 335593 Premium Due: 9-25-76 & 10-25-76 Amount $418.14 Robert E. Pi…
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Edelman v. Breed, 836 So. 2d 1092 (Fla. 5th DCA 2003)…e ease in the instant case; the court removed Edelman for cause under section 733,504, Florida Statutes, without first giving him an opportunity to present evidence against the petition for removal. In Carmichael v. Shelley Tractor & Equipment Co., 300 So. 2d 298 (Fla. 4th DCA 1974), the plaintiff brought a suit for breach of contract. The defendant filed a counterclaim and the case proceeded to a non-jury trial. At trial, the plaintiff voluntarily dismissed his complaint and at the conclusion of the defenda…
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Zerillo v. Snapper Power Equipment, 562 So. 2d 819 (Fla. 4th DCA 1990)…concept to the grant of a motion for involuntary dismissal and holding that the trial court could not “jump the gun” by granting such a motion before the party has completed his presentation of evidence); Carmichael v. Shelley Tractor & Equip. Co., 300 So. 2d 298 (Fla. 4th DCA 1974) (holding that there is a denial of due process when a party obtains a directed verdict prior to the time that the party moved against has completed his case-in-chief). REVERSED AND REMANDED. HERSEY, C.J., and DOWNEY and WARNE…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pelle v. Diners Club, 287 So. 2d 737 (Fla. 3d DCA 1974)