Elmowitz v. Gloria E. Zimmerman, Revocable Trust

Decision Date08 December 1992
Docket NumberNo. 91-3050,91-3050
Citation610 So.2d 52
CourtFlorida District Court of Appeals
Parties17 Fla. L. Week. D2748 Bonnie ELMOWITZ, Appellant, v. GLORIA E. ZIMMERMAN, REVOCABLE TRUST, Appellee.

David Stone and Joseph S. Paglino, Miami, for appellant.

Buchanan Ingersoll and Jeremy A. Koss, North Miami Beach, for appellee.

Before BARKDULL, FERGUSON and GODERICH, JJ.

PER CURIAM.

At the close of all the evidence, the trial court granted the motion for directed verdict made by Gloria E. Zimmerman Revocable Trust [the trust] and entered a final judgment pursuant to the directed verdict. The third party plaintiff, Bonnie Elmowitz a/k/a Bonnie Bernard, appeals from the final judgment entered in favor of the trust. We reverse and remand with instructions.

The Executive Card, a creditor of Red Checker Services, Inc. [Red Checker], brought a collection action against Red Checker, Frank Pernice, Claire Pernice, and Bonnie, the alleged successor in interest to Red Checker. Bonnie filed a cross-claim against Red Checker and a third party claim against the trust for conversion of her restaurant. Bonnie alleged that the trust, through its alleged agent Buddy Plotkin, assisted Red Checker in converting her property.

The case proceeded to trial. At the close of all the evidence, the trial court granted the trust's motion for directed verdict. Prior to submitting the balance of the case to the jury, the trial court entered final judgment in favor of the trust. Despite having entered final judgment in favor of the trust, the court submitted special interrogatories to the jury to determine the issue of liability of both Red Checker and the trust.

The jury found Red Checker 85% liable and the trust 15% liable. The trial court entered judgment against Red Checker, but reduced the judgment by 15%. The trial court denied Bonnie's motion for a new trial. Bonnie appeals from the final judgment entered in favor of the trust and the denial of her motion for a new trial.

It is well established that directed verdicts should be granted cautiously and only where the court concludes that no evidence has been submitted on which the jury could lawfully find for the non-moving party. Collins v. School Bd. of Broward County, 471 So.2d 560 (Fla. 5th DCA 1985); Ligman v. Tardiff, 466 So.2d 1125 (Fla. 3d DCA 1985); Hernandez v. Motrico, Inc., 370 So.2d 836 (Fla. 3d DCA 1979). "On a motion for directed verdict, the court must view the evidence adduced and every conclusion...

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2 cases
  • Boulton Agency, Inc. v. Phoenix Worldwide Industries, Inc.
    • United States
    • Florida District Court of Appeals
    • July 23, 1997
    ...in a light most favorable to the non-moving party, resolving every conflict in favor of that party. See Elmowitz v. Gloria Zimmerman Revocable Trust, 610 So.2d 52, 53 (Fla. 3d DCA 1992); Reams v. Vaughn, 435 So.2d 879, 880 (Fla. 5th DCA 1983). A directed verdict "should not be entered if th......
  • WED Transp. Systems, Inc. v. Beauchamp
    • United States
    • Florida District Court of Appeals
    • March 30, 1993
    ...thus, the driver's ability to observe the oncoming traffic, such conflicts should be resolved by the jury. Elmowitz v. Zimmerman Revocable Trust, 610 So.2d 52 (Fla. 3d DCA 1992). We, therefore, reject appellant's argument and ERVIN, J., concurs. MINER, J., dissents with written opinion. MIN......

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