Florida First Nat. Bank of Jacksonville v. Dent
| Decision Date | 13 September 1977 |
| Docket Number | No. DD-203,DD-203 |
| Citation | 350 So.2d 481 |
| Parties | FLORIDA FIRST NATIONAL BANK OF JACKSONVILLE, a corporation, Appellant, v. Alfred DuPont DENT and Andrew G. P. Hobbs, Individually and trading and doing business as Computer Institute of North America, Inc., Appellees. |
| Court | Florida District Court of Appeals |
John W. Harrell of Harrell & Perrine, and David W. Foerster of Foerster & Hodge, Jacksonville, for appellant.
John F. Fannin of Milam & Wilbur, Jacksonville, for appellees.
Florida First National Bank of Jacksonville appeals from an adverse final judgment entered on a directed jury verdict for appellees Dent and Hobbs at the close of the Bank's case. The Bank's fourth amended complaint, insofar as here pertinent, asserted in three counts (1) that appellees are liable individually and as partners "doing business in the name of Computer Institute of North America, Inc.," for rentals and the cost of leasehold improvements under a lease by the Bank to Computer Institute of North America, Inc.; (2) that appellees are liable as guarantors of Computer Institute's obligations by virtue of a guaranty instrument executed October 2, 1969, six weeks after the date of the lease; and (3) that appellees are individually liable under another guaranty instrument executed by them May 3, 1971. The principal issue before us is whether the trial court erred in excluding from evidence, when offered by the Bank, the purported lease agreement between the Bank, as landlord, and Computer Institute of North America, Inc., as tenant. When that evidence was excluded, the Bank offered no further evidence.
The Bank's appeal does not preserve by argument any error in the trial court's dismissal of count 3 before trial. That count was dismissed for failure to state a cause of action in that the exhibited guaranty instrument of May 1971, though containing purported undertakings by the Bank in consideration of appellees' guaranty, was not executed in any fashion by the Bank. The Bank's brief simply states, in argument of the trial court's asserted error in refusing to admit the lease document, that "the trial court was in error" in dismissing count 3. The Bank refers to no assignment of error and submits no argument in support of that conclusion to which appellees could conceivably have been required to respond. The point is waived. See Fla.App.R. 3.7 f(4) and 3.7 i.
Following extended proceedings in the trial court to settle the pleadings, and on an order and counsel's pretrial stipulation defining the issues for trial, a jury was impaneled to try the issues of whether the appellees "in their individual capacity and also as partners doing business in the name of Computer Institute of North America, Inc." are liable to the Bank under the lease document for performance of the tenant's obligations; and, alternatively, whether appellees are liable, by virtue of the October 1969 guaranty instrument they executed, for performance of the tenant's obligations under the lease document. The Bank's case collapsed when the court excluded the purported lease document which was the foundation of count 1. Appellees' answer had denied the Bank's execution of the lease, thus putting the Bank to proof, and had specifically averred the lease was not executed in behalf of the Bank by one authorized to do so. The trial court held the lease document inadmissible because it was not executed in behalf of the Bank by an agent "in the presence of two subscribing witnesses," Section 689.01, Florida Statutes (1969), and it was not signed by the Bank's "president or any vice-president or chief executive officer." Section 692.01, Florida Statutes (1969). The lease document was purportedly executed in behalf of the Bank by an assistant vice-president without subscribing witnesses. The Bank offered no proof that the Bank had authorized its assistant vice-president to execute a lease in its name. We agree with the trial court that an assistant vice-president is not a vice-president whose presumed authority to execute a lease for a bank is derived from Section 692.01.
As a result of confusion in the Bank's pleading and proof, the trial court mistook the question of the admissibility of the irregularly-executed lease document as a question of its legal effect. If the Bank's case rests entirely on the efficacy of the lease document, it fails for lack of execution by the Bank. But even under the narrow theory of liability on which the Bank's case against appellees went to trial, the lease document was admissible in evidence to show the unenforceable obligations of Computer Institute of North America,...
To continue reading
Request your trial
-
Colucci v. Greenfield, 88-903
...509 So.2d 1117 (Fla.1987); Indianapolis Morris Plan Corp. v. Portela, 364 So.2d 840, 841 (Fla. 3d DCA 1978); Florida First Nat'l Bank v. Dent, 350 So.2d 481, 483 (Fla. 1st DCA 1977). I recognize that the appellants in their reply brief filed by counsel raise certain points on appeal which t......
-
State ex rel. Specialty Foam Products, Inc. v. Keet
... ... requirements of procedural due process as first articulated by the Supreme Court of the United ... Chalfant at the Commerce Bank and by taking possession of a Cashiers Check # ... 15 (1937). A case colorably in point is Florida First Nat. Bank v. Dent, 350 So.2d 481, 483(2, 3) ... ...
-
Indianapolis Morris Plan Corp. v. Portela, 78-207
...122 So.2d 333 (Fla.2d DCA 1960); Time Insurance Company v. Arnold, 319 So.2d 638 (Fla.1st DCA 1975); Florida First National Bank of Jacksonville v. Dent, 350 So.2d 481 (Fla.1st DCA 1977); Florida Rules Appellate Procedure 3.7 Therefore, for the reasons above stated, the final judgment here ......
-
Florida First Nat. Bank of Jacksonville v. Dent
...as evidence of an underlying agreement for which Hobbs and Dent could be liable under the guaranty agreement. Florida First National Bank v. Dent, 350 So.2d 481 (Fla. 1st DCA 1977). This court remanded the cause and the trial court retried the matter on the issues of whether appellees ratif......