County Civil Court:  CIVIL – involuntary dismissal – procedural error – prima facie case - trial court’s directed verdict before plaintiff had finished its case in chief and after defendant has presented testimony and evidence was erroneous – plaintiff established prima facie case of damages – the undisputed testimony and evidence established that there had been an automobile accident resulting in damages – trial court erred in weighing the evidence presented and the credibility of the witnesses in granted the directed verdict in favor of the defendant – harmless error for the trial court to not admit repair receipts tendered by the plaintiff – new trial is required – Directed Verdict reversed. Gibbs-Trevena, Inc. v. Marchiafava, Appeal No. 07-0012AP-88A (Fla. 6th Cir. App. Ct. Dec. 21, 2007). 










vs.                                                                                    Appeal No. 07-0012AP-88A






Appeal from Pinellas County Court

Small Claims Division


Gregory T. Elliot, Esquire

Attorney for Appellant


Charles W. Hall, Esquire

Mark D. Tinker, Esquire

Attorneys for Appellee






            THIS CAUSE came before the Court on appeal, filed by Gibbs-Trevena, Inc. (Gibbs-Trevena), from the Directed Verdict for Defendant (Damages), entered January 12, 2007, and the Order Denying New Trial, entered February 1, 2007, in favor of Antonio Marchiafava (Marchiafava).  Upon review of the briefs, the record and being otherwise fully advised, the Court reverses the trial court’s ruling as set forth below.

On July 14, 2005, Gibbs-Trevena filed a Complaint in Small Claims Court against Marchiafava seeking damages as a result of an automobile accident on February 23, 2005.  Gibbs-Trevena alleged that its authorized agent was operating a motor vehicle when Marchiafava struck the vehicle in a careless and negligent manner causing loss and property damage to Gibbs-Trevena in the amount of $ 3,232.90.  The Pre-Trial Conference Order states that each party argued that the other came into his/her lane of traffic while making a left hand turn in parallel left-turn lanes.  The Pre-Trial Conference Order states that Marchiafava denied liability and damages.  The pre-trial hearing officer noted that Marchiafava was advised of the probable need for expert testimony from an accident reconstructionist and from a body shop, if damages were an issue.  The matter was tried without a jury on January 10, 2007.

At the beginning of the trial, Gibbs-Trevena stated its intention to call an accident reconstruction expert to offer opinion testimony as to the relative paths the vehicles traveled from their known starting points through the points of impact to final rest.  Marchiafava stated his intention to call an opposing expert to address those same issues.  Marchiafava’s attorney argued that their expert was not given sufficient access to the file materials in order to prepare his testimony.  The trial court agreed and ordered that the testimony of those witnesses would be deferred. 

Gibbs-Trevena then proceeded with his case in chief.  Donna Kelts, the truck driver for Gibbs-Trevena at the time of the accident, offered testimony as to how the accident occurred.  Ms. Kelts’ accident report, which was admitted into evidence, provided a diagram of the vehicles at the time of the accident and further specified the damage to both vehicles.  Several photographs of the accident scene were also admitted into evidence. 

Clayton Gibbs, an officer of Gibbs-Trevena, then testified that he came to the scene of the accident and observed damage to the front tires and bumper. Mr. Gibbs’ undisputed testimony was that the damaged front tires had to be replaced, at a cost of $ 1,241.20, before the truck could be used again for heavy hauling.  Mr. Gibbs also testified, without objection from Marchiafava, that the front bumper had to be replaced at a cost of $ 1,700.00 - $ 1,800.00.  Mr. Gibbs testified that the truck, which he uses to generate revenue at a rate of $ 58.00 per hour, was out of service for a period of 4 hours.  Mr. Gibbs offered evidence, identified as Plaintiff’s Exhibit # 4, of the repair costs, including: a sales receipt from Road Tire Service for the replacement of the two front tires; an estimate for repairs from Nextran to replace the front truck bumper, bracket, and guard; and, a ticket invoice from Gibbs-Trevena showing that the truck was out of service for 4 hours.  Mr. Gibbs testified that Gibbs-Trevena routinely uses the services of Road Tire Service and Nextran for parts and service.  Defense counsel did not cross-examine Mr. Gibbs. 

At the close of Mr. Gibbs’ testimony, the trial court recessed the remainder of the Plaintiff’s case in chief as to the issue of liability, in consideration of the trial court’s direction that testimony from the accident reconstruction experts would be set at a later date.  The Defense was then permitted to call Marchiafava to testify out of turn as part of his case in chief, before Gibbs-Trevena rested his case in chief.  At the conclusion of Mr. Marchiafava’s testimony, Defense counsel made an oral motion for directed verdict with regard to damages.  After brief argument, the trial court orally granted the motion.

On January 12, 2007, the trial court, sua sponte, issued its written Directed Verdict for Defendant (Damages).  The trial court stated:

Although Plaintiff attempted to submit third party work orders and/or invoices for tire replacement and bumper repair, after objection from Defendant those hearsay documents were not admitted into evidence.  As a result, the only evidence of damages consisted of Defendant’s testimony that $ 3,232.30 had been expended on account of the traffic crash.  There simply is no evidence to connect that amount of payment to damages caused by the Defendant in the accident. 


On January 17, 2007, Gibbs-Trevena filed its Motion for New Trial.  On February 1, 2007, the trial court issued its Order Denying New Trial, without a hearing, finding:

Because the issues fully were argued previously and there is no new issue of law or fact, Plaintiff’s Motion is denied without the need for a hearing. 


Granting a New Trial would permit Plaintiff to gather evidence of damages which Plaintiff failed to present during the January 10, 2007 Final Hearing.  Such is manifestly unfair and prejudicial to Defendant.


From the Order Denying New Trial, Gibbs-Trevena timely filed its Notice of Appeal.

Before this Court, Gibbs-Trevena raises two issues:  (1) Did the trial court err in granting a directed verdict in favor of Marchiafava when Gibbs-Trevena presented a prima facie case for relief?; and, (2)  Did the trial court err in excluding repair bills, invoices and receipts offered into evidence by Gibbs-Trevena?  In reviewing the first issue, a directed verdict at the conclusion of the plaintiff’s case in chief in a non-jury trial amounts to an involuntary dismissal.  See Bottalico v. Antonelli, 695 So.2d 363, 363-64 (Fla. 4th DCA 1997).  The appellate court’s review of an involuntary dismissal is de novo and the reviewing court must view all the evidence and all reasonable inferences therefrom in the light most favorable to the non-moving party.  See Widdows v. State Farm Florida Insurance Company, 920 So.2d 149, 150 (Fla. 5th DCA 2006).  In reviewing the second issue, the appellate court applies an abuse of discretion standard in reviewing the trial court’s ruling on evidentiary matters.  See Florida Institute for Neurologic Rehabilitation, Inc. v. Marshall, 943 So.2d 976, 978 (Fla. 2d DCA 2006).

Initially, the Court finds that there were several procedural mistakes committed by the trial court during the proceedings below.  At the beginning of the trial, on January 10, 2007, and again at the end of the trial, the trial court ruled that the issue of liability would be bifurcated to permit Defense counsel time to retrieve documentation/calculations that the Plaintiff’s expert, Mr. Armstrong, relied upon to support his conclusions regarding the subject accident.  In conjunction with its oral ruling, the trial court entered, on January 12, 2007, its Order Upon Discovery Order Recessing Final Hearing, which clarified that, “[a]t a mutually convenient time the parties are to reschedule the conclusion of the Final Hearing upon liability only.” 

However, at the conclusion of the trial on January 10th, after each party had presented all their witnesses and evidence regarding damages, the trial court granted Defense counsel’s oral motion for a directed verdict/involuntary dismissal, a motion that is generally made at the conclusion of the plaintiff’s case in chief.[1]  See Advercolor Press, Inc. v. Graphic Sales Innovators, Inc., 307 So.2d 899, 900 (Fla. 3d DCA 1975)(explaining that the trial court should consider a motion for involuntary dismissal at the close of the plaintiff’s case in chief because there is the possibility that receiving defendant’s evidence may influence the trial court’s decision).  To clarify the trial court’s ruling, Defense counsel stated, “I would submit without proving damages, he cannot win this case,” to which the trial court responded: “Well, he might win liability and get zero damages.  It’s not over with the Court.”

It is unclear what the trial court meant in this regard.  Obviously, if a trial court has ruled conclusively on damages, the issue of liability becomes moot.  It is further unclear why the trial court would not have simply proceeded with the liability phase, as it intended to do regardless of the directed verdict/involuntary dismissal, and then enter a final judgment based upon all the evidence and testimony received, upon which a more stringent standard of review would attach.  See Universal Beverages Holdings, Inc. v. Merkin, 902 So.2d 288, 290 (Fla. 3d DCA 2005)(explaining that “[w]hen a case is tried without a jury, the trial judge’s findings are clothed with a presumption of correctness on appeal, and these findings will not be disturbed unless the appellant can demonstrate that they are clearly erroneous”); see also Smiley v. Greyhound Lines, Inc., 704 So.2d 204, 205 (Fla. 5th DCA 1998)(same). 

            In any case, this Court has treated the Directed Verdict for Defendant (Damages), along with the Order Denying New Trial, as a final appealable judgment.  The Court finds that the trial court committed reversible error by involuntarily dismissing Gibbs-Trevena’s case.  In Capital Media, Incorporated v. Haase, 639 So.2d 632, 633 (Fla. 2d DCA 1994), the Second District Court of Appeal explained:

This court and others have consistently held that on a motion for involuntary dismissal, made at the close of the plaintiff’s case in a nonjury trial, a trial court is limited to determining whether or not the plaintiff has made a prima facie case. (citations omitted).  The court in making such a determination can neither weigh the evidence nor consider the credibility of the witnesses.


See also Widdows, supra; Bottalico, supra. 

In this case, it appears that the only way for the trial court to reach the conclusion it did, was to weigh the evidence presented and assess the credibility of the witnesses.  The undisputed testimony showed that there had been an automobile accident and that both vehicles sustained damage.  The pictures that were admitted into evidence without objection clearly show that there was a collision between Gibbs-Trevena’s truck and Machiafava’s 4-door Toyota Corolla.  Mr. Gibbs’ undisputed testimony was that he spent money to replace the front tires, front bumper, and lost use of the truck for 4 hours.  As an officer of the company and one that is involved in the day-to-day operation of the business, Mr. Gibbs was qualified to testify as to the property damage and what it cost the company to repair the damage.  See Reliance Insurance Company v. Pro-Tech Conditioning & Heating, Inc., 866 So.2d 700, 702 (Fla. 5th DCA 2003).  Hence, in reviewing this evidence in the light most favorable to Gibbs-Trevena, and all reasonable inferences therefrom, the record shows that there was sufficient evidence presented during the trial to establish a prima facie case for damages, including costs to repair the truck and loss of its use.   

            In reviewing the second issue, the record shows that Gibbs-Trevena tendered the following documents, indentified as Plaintiff’s Exhibit # 4a – 4c, during the trial:  (a) a Sales Receipt from Road Tire Service, dated February 22, 2005,[2] showing a total due in the amount of $ 1,241.20; (b) an Estimate for Repairs, dated March 10, 2005,  in the amount of $ 1,759.70; and, (c) a pink ticket invoice from Gibbs-Trevena showing 4 hours of down time at a rate of $ 58/hour, dated February 23, 2005, attached to a second white invoice from Gibbs-Trevena, dated April 4, 2005, showing a total amount past due of $ 3,232.90.  On objection by Marchiafava, the trial court did not admit these documents into evidence as it found they were inadmissible hearsay.

The Court finds that there is no case law on hearsay directly applicable to the facts of this case.  The Court finds that Mr. Gibbs’ unchallenged testimony established that money was paid for repairs as a result of the accident and that Gibbs-Trevena lost 4 hours of the use of its truck, as set forth in the documents tendered.  Since the undisputed testimony was directly linked to the invoices and receipts, it would not have been error for the Court to admit these documents.  See e.g. A.J. v. State, 677 So.2d 935, 937 (Fla. 4th DCA 1996)(explaining that “[t]estimony that a bill for a set amount was rendered and accepted is offered to prove the making of a contract fixing liability, not to prove the truth of the contents of the bill”).  Marchiafava would then be free to contest the reasonableness and necessity of the charges.  See id.

  Nonetheless, the Court finds that such error is harmless since Mr. Gibbs’ already furnished the trial court with the costs to repair the truck.  As explained in Forester v. Norman Roger Jewell & Brooks International, Inc., 610 So.2d 1369, 1373 (Fla. 1st DCA 1992):

Initially, we acknowledge that the admission of evidence is within the sound judicial discretion of the trial judge, whose decision in such regard must be viewed in the context of the entire trial.  (citation omitted).  A trial court’s error in admitting or rejecting evidence does not necessarily constitute harmful error.  Only when it appears that such errors injuriously affect the substantial rights of the complaining party will a judgment be reversed.  (citation omitted). 


Under the facts of this case, the trial court’s decision does not affect the substantial rights of Gibbs-Trevena. 

Therefore, it is,

ORDERED AND ADJUDGED that the Directed Verdict for Defendant (Damages) and the Order Denying New Trial are reversed and this cause is remanded for a new trial.

It is further,




ORDERED AND ADJUDGED that the Appellant’s Motion for Conditional Award of Attorney’s Fees on Appeal is granted.  The trial court shall determine the amount of reasonable appellate attorney’s fees to be awarded if Gibbs-Trevena ultimately prevails in the matter below.  The Appellee’s Motion for Attorney’s Fees is denied. 

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ______ of December 2007.





                                                     R. TIMOTHY PETERS

                                                     Circuit Judge, Appellate Division





______________________________                        ______________________________

GEORGE M. JIROTKA                                          CYNTHIA J. NEWTON

Circuit Judge, Appellate Division                               Circuit Judge, Appellate Division



Copies furnished to:


Honorable Dorothy L. Vaccaro

County Court Judge


Bozena Sabala

50 South Belcher Road, Suite 124

Clearwater, FL  33765


Charles A. Buford, Esquire

2560 Gulf to Bay Blvd., Suite 300

Clearwater, FL  33765


[1] While defense counsel made a motion for directed verdict, pursuant to the Florida Rule of Civil Procedure, Rule 1.480, the motion was really one for involuntary dismissal pursuant to Rule 1.420(b), since there was no jury.  This error is harmless as the same law is applicable to both.  See Thompson v. Florida Cemeteries, Inc., 866 So.2d 767, 769 (Fla. 2d DCA 2004).  It is also worth noting that, although this was a Small Claims’ proceeding, the parties were implicitly litigating under the Florida Rules of Civil Procedure.  Neither party has raised this as an issue.

[2] The testimony showed that this invoice was misdated and should have been dated the day of the accident, February 23, 2005.