Batista v. Walter & Bernstein
Decision Date | 15 January 1980 |
Docket Number | No. 79-967,79-967 |
Citation | 378 So.2d 1321 |
Parties | Arnaldo Fernandez BATISTA and Rock & Fill Corporation, a Florida Corporation, Appellants, v. WALTER & BERNSTEIN, P.A., a Professional Association, Appellee. |
Court | Florida District Court of Appeals |
G. Frank Quesada, Coral Gables, for appellants.
Friedman, Britton, Cohen, Kaufman, Zinkow, Benson & Schantz and J. T. Haley, Miami, for appellee.
Before HENDRY, SCHWARTZ and NESBITT, JJ.
The defendants below appeal from a judgment entered against them after a jury verdict for the plaintiff-appellee, a law firm, in an action to recover on an express oral contract for the rendition of legal services. We affirm.
By far the most substantial point raised by the appellants claims error in the trial judge's refusal to instruct the jury that the plaintiff had the burden of establishing the oral agreement by "clear and convincing" evidence rather than merely the "greater weight" or preponderance of the evidence, as the jury was actually charged in accordance with standard jury instructions 3.7 and 3.9. The law on this issue has very recently and very accurately been described as "rather unclear." Rossmoor Corp. v. Tri-County Concrete Products, Inc., 375 So.2d 896, 897, n. 2 (Fla. 4th DCA 1979). In resolving the uncertainty, we have concluded that the "greater weight" test applies in an action, like this one, to recover damages for breach of an alleged oral agreement, and that Sultan v. Jade Winds Construction Corp., 277 So.2d 574, 575 (Fla. 3d DCA 1973), and Shell's City, Inc. v. Westerman, 257 So.2d 276, 279 (Fla. 3d DCA 1971), which indicate otherwise, are not authoritative on the question.
Our conclusion that the greater weight rule governs a damage suit like the case at bar is supported, if not required, by Rigot v. Bucci, 245 So.2d 51 (Fla.1971). There the supreme court, referring to the same standard jury instructions which were given in this case, held that "only a preponderance or greater weight of the evidence is required to establish fraud, whether the action is at law or in equity." 245 So.2d at 53. See also Blaeser Development Corp. v. First Federal Savings and Loan Ass'n of Martin County, 375 So.2d 1118 (Fla. 4th DCA 1979). In so holding, the court specifically overruled another exception to the preponderance rule referred to in Trickey v. Stone, supra, under which clear and convincing evidence was required to establish fraud in a chancery case. In Rigot, the court found no "sound reason for any distinction between law and equity so far as the proof requisite to establish fraud is concerned." 245 So.2d at 52-53. Similarly, we see no basis either in common sense, or, as has been noted, in the authorities, for imposing a higher degree of proof in an action seeking damages for breach of an oral...
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Carib Ocean Shipping, Inc. v. Armas
...to have existed ordinarily should be remedied, not by denial of the amendment, but by a continuance, see Batista v. Walter & Bernstein, P.A., 378 So.2d 1321 (Fla. 3d DCA 1980)(remedy for "surprise" is continuance, not disregard of newly raised issue), conditioned, if appropriate, upon the d......
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St. Joe Corp. v. McIver
...Finally, a party who asserts an oral contract must prove its existence by a preponderance of the evidence. Batista v. Walter & Bernstein, P.A., 378 So.2d 1321, 1322 (Fla. 3d DCA 1980). Oral brokerage contracts, like other oral contracts, are valid and enforceable. See Edgar Realty & Assocs.......
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Solnes v. Wallis & Wallis, P.A.
...who asserts an oral contract must prove its existence by a preponderance of the evidence. Id. (citing Batista v. Walter & Bernstein, P.A., 378 So.2d 1321, 1322 (Fla. 3d DCA 1980) ).As an initial matter, Defendants deny that Mrs. Wallis promised Solnes the return of his money. They further c......
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Nichols v. Paulucci, 93-2609
...right to claim that they were prejudiced by the trial court's ruling admitting the additional evidence. See Batista v. Walter & Bernstein, P.A., 378 So.2d 1321 (Fla. 3d DCA 1980). See also Leviton v. Philly Steak-Out, Inc., 533 So.2d 905 (Fla. 3d DCA 1988). We also note that NTS's and Nicho......