General Portland Land Development Co. v. Stevens, s. 73-386
Decision Date | 15 March 1974 |
Docket Number | 73-387,Nos. 73-386,s. 73-386 |
Citation | 291 So.2d 250 |
Parties | GENERAL PORTLAND LAND DEVELOPMENT COMPANY, etc., et al., Appellants, v. Marvin Lee STEVENS and Mary Catherine Stevens et al., Appellees. |
Court | Florida District Court of Appeals |
John R. Beranek and L. Martin Flanagan of Jones, Paine & Foster, P. A., West Palm Beach, for appellants.
Robert L. Saylor, or Farish & Farish, West Palm Beach, and Ben J. Weaver, and Diane D. Hathaway of Kirsch, Druck & Mills, Fort Lauderdale, for appellees.
This is an appeal by General Portland Land Development Company, one of several defendants below, from a final judgment entered pursuant to a jury verdict in favor of the plaintiff.
In light of the recent decisions by the Supreme Court of Florida in Ward v. Ochoa, Fla.1973, 284 So.2d 385, and Maule Industries, Inc. v. Rountree, Fla.1973, 284 So.2d 389, holding 'Mary Carter agreements' admissible in evidence, the final judgment is set aside and a new trial granted to the appellant.
A review of the record reveals that although the court required the production of a 'Mary Carter agreement' the record also unmistakably reflects the trial court's determination that such agreement Not be placed in evidence. 1 The appellees, however, contend that no error occurred below inasmuch as appellant never 'offered into evidence' the Mary Carter agreement. Where, as the record here indicates, the court has already determined that the Mary Carter agreement would Not be divulged to the jury, a proffer (or other request) would have been unavailing; and therefore it was unnecessary for the appellant, in order to demonstrate error below, to have shown that he had attempted to offer the agreement in evidence. Seeba v. Bowden, Fla.1956, 86 So.2d 432. Cf. Robbins v. Thompson, Fourth District Court of Appeal, 291 So.2d 225, opinion filed March 8, 1974.
Reversed and remanded.
1 The following excerpts from the record of the proceedings below reflect the court's determination as to the admissibility of the Mary Carter agreement:
The agreement, the so-called Mary Carter agreement between Hembree Masonry and the plaintiff, the Court has already stated that the ruling is that it is not properly in evidence. I would ask that...
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