Third District Court of Appeal
State of Florida
Opinion filed June 24, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-1681
Lower Tribunal No. 09-85340
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Maysville, Inc.,
Appellant/Cross-Appellee,
vs.
The Whiting-Turner Contracting Company,
Appellee/Cross-Appellant.
An Appeal from the Circuit Court for Miami-Dade County, David C. Miller,
Judge.
Pardo Gainsburg, P.L., and Jeffrey J. Pardo, for appellant/cross-appellee.
Broad and Cassel, and Michael K. Wilson and George W. ("Trey") Tate III
(Orlando), and Beverly A. Pohl (Fort Lauderdale), for appellee/cross-appellant.
Before WELLS, EMAS, and LOGUE, JJ.
LOGUE, J.
In this condominium project dispute between Maysville, Inc. (“Developer”)
and The Whiting-Turner Contracting Company (“General Contractor”), the
Developer filed a two-count complaint against the General Contractor and the
General Contractor filed several counterclaims. The trial court entered judgment
against the Developer on both of its claims. We affirm those rulings without
discussion.
We reverse, however, the involuntary dismissal of the counterclaims.
Without a motion being made by the Developer, the trial court involuntary
dismissed the counterclaims before the General Contractor had an opportunity to
complete the presentation of its evidence. As the Developer commendably
concedes, the trial court erred. Fla. R. Civ. P. 1.420(b) (2014) (providing for an
involuntary dismissal for lack of evidence only “[a]fter a party seeking affirmative
relief in an action tried by the court without a jury has completed the presentation
of evidence”); Deutsche Bank Nat. Trust Co. v. Santiago, 117 So. 3d 1146, 1147
(Fla. 3d DCA 2013) (“Simply put, it is error to direct a verdict before a plaintiff
has completed presentation of his evidence. . . . [T]he same concept applies to an
involuntary dismissal.”) (internal citation and quotations omitted).
Affirmed in part; reversed in part; remanded for further proceedings
consistent with this opinion.
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