537 So.2d 561 (Fla. 1988), 71719, Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp.

CourtUnited States State Supreme Court of Florida
Writing for the CourtAuthor: Barkett
Citation13 Fla. L. Weekly 726,537 So.2d 561
PartiesARKY, FREED, STEARNS, WATSON, GREER, WEAVER & HARRIS, P.A., Petitioner, v. BOWMAR INSTRUMENT CORPORATION, etc., Respondent. BOWMAR INSTRUMENT CORPORATION, etc., Petitioner, v. ARKY, FREED, STEARNS, WATSON, GREER, WEAVER & HARRIS, P.A., Respondent.
Docket Number71719,71720.
Date22 December 1988

Page 561

537 So.2d 561 (Fla. 1988)

13 Fla. L. Weekly 726

ARKY, FREED, STEARNS, WATSON, GREER, WEAVER & HARRIS, P.A., Petitioner,

v.

BOWMAR INSTRUMENT CORPORATION, etc., Respondent.

BOWMAR INSTRUMENT CORPORATION, etc., Petitioner,

v.

ARKY, FREED, STEARNS, WATSON, GREER, WEAVER & HARRIS, P.A., Respondent.

Nos. 71719, 71720.

Supreme Court of Florida.

December 22, 1988

Rehearing Denied Feb. 24, 1989.

Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, for petitioner/respondent.

Andrew C. Hall and Richard O'Brien of Hall, O'Brien and Cohen, P.A., Miami, and Harold E. Kohn, Dianne M. Nast and Stanley M. Shur of Kohn, Savett, Klein and Graf, P.C., Philadelphia, for respondent/petitioner.

BARKETT, Justice.

We have for review Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 527 So.2d 211 (Fla. 3d DCA 1987), based on certified conflict with Freshwater v. Vetter, 511 So.2d 1114 (Fla. 2d DCA 1987); Designers Tile International Corp. v. Capitol C Corp., 499 So.2d 4 (Fla. 3d DCA 1986), review denied, 508 So.2d 13 (Fla.1987); Dean Co. v. U.S. Home Corp., Inc., 485 So.2d 438 (Fla. 2d DCA 1986); and Citizens National Bank v. Youngblood, 296 So.2d 92 (Fla. 4th DCA 1974). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

This review arises from a lawsuit in which the firm of Arky, Freed, Stearns,

Page 562

Watson, Greer, Weaver & Harris, P.A. ("Arky, Freed") sued Bowmar Instrument Corporation ("Bowmar") for legal fees, and Bowmar countersued on a claim of legal malpractice, alleging general negligence. The action arose from a dispute in which Arky, Freed had represented Bowmar in a prior lawsuit involving Fidelity Electronics ("Fidelity").

Twelve days before trial, Bowmar disclosed that its general negligence claim encompassed the specific charge that Arky, Freed negligently had failed to assert and prove a particular defense against Fidelity, despite Bowmar's direct instructions to do so. Arky, Freed immediately moved for a continuance or, in the alternative, to exclude all evidence relating to this belated claim. The motion for continuance was heard on Friday, the last scheduled working day prior to the trial, and denied. Trial commenced on the following Monday, and at the outset, Arky, Freed's motion to exclude evidence of this specific claim was heard and also denied. The trial concluded with a jury verdict in Bowmar's favor.

On appeal, the Third District addressed three issues arising from these facts. First, it held that the trial court erred in deciding that Bowmar's general allegations stated a cause of action for Arky, Freed's specific failure to present the defense requested by Bowmar. Second, it held that the trial court acted improperly in failing to grant the continuance, since Arky, Freed effectively was unable to prepare an adequate defense.

Third, the Third District considered and rejected Arky, Freed's request to order the trial court to direct a verdict in its favor. On this issue, the District Court certified conflict with Freshwater, DesignersTile, Dean Co. and Citizens National to the extent that they might require a directed verdict in every case where a plaintiff pleads one cause of action and proves another. We decline to address those issues outside the scope of our conflict jurisdiction and confine this opinion solely to the third point.

Arky, Freed contends that the Court's holding in Dober v. Worrell, 401 So.2d 1322 (Fla.1981), and its progeny required that the trial court on remand direct a verdict in the firm's favor. In Dober, the Court considered a decision where the Fourth District concluded that the defendant was entitled to prevail on the issues framed by the pleadings, yet remanded the case to allow the plaintiff to amend. This Court quashed the decision of the district court in the interests of judicial economy and finality:

It is our view that a procedure which allows an appellate court to rule on the merits of a trial court judgment and then permits the losing party to amend his initial pleadings to assert matters not previously raised renders a mockery of the "finality" concept in our system of justice. Clearly, this procedure would substantially extend litigation, expand its costs, and, if allowed, would emasculate summary...

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3 practice notes
  • Preserving Claims of Error in Florida Federal and State Civil Actions: Some Common Rules.
    • United States
    • Florida Bar Journal Vol. 92 Nbr. 7, July 2018
    • July 1, 2018
    ...be able to prove facts to support their claims.); Arky, Freed, Stearns, Watson, Greer, Weaver & Harris v. Bowmar Instrument Corp., 537 So. 2d 561, 563 (Fla. 1988) (mandating particularity in pleadings); see also Atkins v. McInteer, 470 F.3d 1350, 1358 (11th Cir. 2006) ("particularity re......
  • Number Of Employees As An Element Of Florida’s Private Sector Whistle-Blower Act: Guidance From Federal Employment Case Law
    • United States
    • JD Supra United States
    • October 15, 2013
    ...(explaining trial by consent under Florida law); Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So. 2d 561, 563 (Fla. 1988) (noting the requirement to object to the introduction of evidence to avoid trial by Conclusion Plaintiffs and defendants in......
  • You should have called me sooner.
    • United States
    • Florida Bar Journal Vol. 73 Nbr. 7, July 1999
    • July 1, 1999
    ...601 So. 2d 1184 (Fla. 1992). [4] See, e.g., Arky, Freed, Stearns, Watson, Greer, Weaver & Harris v. Bowmar Instrument Corporation, 537 So. 2d 561 (Fla. 1988). [5] See, e.g., Holton v. H. J. Wilson Co., Inc., 482 So. 2d 341 (Fla. 1986). [6] See Prime Motors Inns, Inc. v. Waltman, 480 So.......
1 firm's commentaries
2 books & journal articles
  • Preserving Claims of Error in Florida Federal and State Civil Actions: Some Common Rules.
    • United States
    • Florida Bar Journal Vol. 92 Nbr. 7, July 2018
    • July 1, 2018
    ...be able to prove facts to support their claims.); Arky, Freed, Stearns, Watson, Greer, Weaver & Harris v. Bowmar Instrument Corp., 537 So. 2d 561, 563 (Fla. 1988) (mandating particularity in pleadings); see also Atkins v. McInteer, 470 F.3d 1350, 1358 (11th Cir. 2006) ("particulari......
  • You should have called me sooner.
    • United States
    • Florida Bar Journal Vol. 73 Nbr. 7, July 1999
    • July 1, 1999
    ...601 So. 2d 1184 (Fla. 1992). [4] See, e.g., Arky, Freed, Stearns, Watson, Greer, Weaver & Harris v. Bowmar Instrument Corporation, 537 So. 2d 561 (Fla. 1988). [5] See, e.g., Holton v. H. J. Wilson Co., Inc., 482 So. 2d 341 (Fla. 1986). [6] See Prime Motors Inns, Inc. v. Waltman, 480 So.......

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