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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 (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE
DIVISION
GIBBS-TREVENA,
INC.,
Appellant,
vs. Appeal No. 07-0012AP-88A
UCN522007AP000012XXXXCV
ANTONIO
MARCHIAFAVA,
Appellee.
______________________________________/
Appeal from
Small Claims Division
Gregory T. Elliot, Esquire
Attorney for Appellant
Charles W. Hall, Esquire
Mark D. Tinker, Esquire
Attorneys for Appellee
ORDER AND OPINION
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 (
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 (
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
________________________________
R. TIMOTHY PETERS
Circuit
Judge, Appellate Division
______________________________ ______________________________
GEORGE M. JIROTKA CYNTHIA
J.
Circuit Judge, Appellate Division Circuit Judge, Appellate Division
Copies furnished to:
Honorable Dorothy L. Vaccaro
County Court Judge
Bozena Sabala
Charles A. Buford, Esquire
2560 Gulf to
[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 (
[2] The testimony showed that this invoice was misdated and should have been dated the day of the accident, February 23, 2005.