HAROLD BERKE AND MARY BERKE, HIS WIFE, APPELLANTS,
v.
ARTHUR BERKE AND BERKE DISPLAYS, INC., APPELLEES
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Harold and Mary Berke appealed a directed verdict in favor of their brother Arthur Berke and his corporation, seeking rescission of a lease they alleged was entered into fraudulently and at below-market rates without their knowledge or consent. The court affirmed the judgment, finding the Berkes failed to present a prima facie case of fraud.
The court held that the Berkes failed to present a prima facie case of fraud warranting rescission or cancellation of the lease, and thus the directed verdict in favor of the appellees was proper.
[1] A directed verdict is proper when the plaintiff fails to present a prima facie case.
[2] In a non-jury trial, a motion for involuntary dismissal is the procedural equivalent of a motion for directed verdict.
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Join FLexlaw to unlock all legal intelligence“appellants have failed to present a prima facie case entitling them to the relief prayed for”
The court's holding that the Berkes' evidence was legally insufficient to establish fraud and warrant rescission of the lease
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Join FLexlaw to unlock all legal intelligenceHarold and Mary Berke were co-owners of property with Arthur Berke, Harold's brother and president of Berke Displays, Inc. Arthur allegedly entered in…
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PER CURIAM.
Appellants, plaintiffs below, appeal a final judgment rendered in favor of appel-lees, defendants below, pursuant to appel-lees’ motion for directed verdict made at the close of appellants’ presentation of their case.1
This case involves the cancellation and rescission of a written lease. As succinctly as possible, the facts, as revealed through appellants’ third amended complaint are as follows: Appellants, Harold and Mary Berke, are husband and wife. Appellee, Arthur Berke, is Harold’s brother and president and principal stockholder of appellee, Berke Displays, Inc. (hereinafter referred to as the corporation).
The complaint alleged that appellee-Ar-thur “secretly and surreptitiously and without the knowledge, approval or consent” of appellants, entered into a lease agreement with the corporation, the provisions of which were concealed from appellants. Appellants further alleged that Arthur, who owned the property leased by the corporation along with appellants,2 entered into the lease at a rental rate substantially lower than the fair market value of the property for the sole benefit of the corporation and its stockholders, to-wit: Arthur. Said act allegedly constituted an unlawful and unconscionable overreaching and fraud upon appellants warranting recission and cancellation of the lease plus an award of substantial damages for the loss of rents' occasioned by the one-sided lease.
At the close of appellants’ case, pursuant to appellees’ motion, the chancellor determined that appellants had failed to present a prima facie case of fraud warranting the remedy of rescission and/or cancellation and directed a verdict in appellees’ favor. A final judgment was thereupon entered and this appeal follows.
After carefully reviewing the record, briefs and arguments of counsel, we are of the opinion that appellants have failed to present a prima facie case entitling them to the relief prayed for, and thus, the final judgment is affirmed. Tillman v. Baskin, 260 So. 2d 509 (Fla.1972); Buchanan Construction, Inc. v. City of Tallahassee, 308 So. 2d 613 (Fla. 1st DCA 1975).
Affirmed.
. The case was tried non-jury and thus the proper motion would have been one for involuntary dismissal, pursuant to Rule 1.420(b), Fla.R.Civ.P. We shall treat it as such. Gibson v. Gibson, 180 So. 2d 388 (Fla. 1st DCA 1965).
. The lease was signed by Arthur Berke on behalf of Berke Realty, a partnership. The chancellor held that a partnership existed between the parties and thus, Arthur’s signature bound appellants to the lease. See Section 620.60, Florida Statutes (1975).
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Shidiam Corp. v. M & D Research Corp., 374 So. 2d 553 (Fla. 4th DCA 1979)…D IN PART AND REVERSED IN PART AND REMANDED. ANSTEAD and MOORE, JJ., concur. . The use of the term “directed verdict” is improper in a non-jury trial. We treat this as an involuntary dismissal pursuant to Fla.R.Civ.P. 1.420(b). See Berke v, Berke, 343 So. 2d 87 (Fla.3d DCA 1977).…
Authorities Cited
- Easter Mae Tillman v. Baskin, 260 So. 2d 509 (Fla. 1972)
- Gibson v. Gibson, 180 So. 2d 388 (Fla. 1st DCA 1965)
- Howell v. Gould, 308 So. 2d 613 (Fla. 1st DCA 1975)
- Buchanan Constr., Inc. v. The City OF Tallahassee, 308 So. 2d 613 (Fla. 1st DCA 1975)