Nelson v. Cravero Constructors, Inc., 58-763

• Decision Date: 11 February 1960
• Docket Number: No. 58-763,58-763
• Parties: L. B. NELSON and T. W. Ward, trading and doing business as Ward Paving Company, a copartnership, Appellants, v. CRAVERO CONSTRUCTORS, INC., a Florida corporation, George Cravero, Jr., and Shirley F. Cravero, his wife, and Dennis P. Cravero, individually and doing business as Cravero Building Co., Appellees.
• Court: Florida District Court of Appeals

Page 764

117 So.2d 764

L. B. NELSON and T. W. Ward, trading and doing business as Ward Paving Company, a copartnership, Appellants, v. CRAVERO CONSTRUCTORS, INC., a Florida corporation, George Cravero, Jr., and Shirley F. Cravero, his wife, and Dennis P. Cravero, individually and doing business as Cravero Building Co., Appellees.

No. 58-763.

District Court of Appeal of Florida, Third District.

Feb. 11, 1960.

Glenn Bludworth, Miami, for appellants.

Moore, Jaffe & Amari and Alvin N. Weinstein, Miami, for appellees.

HORTON, Chief Judge.

This is an appeal from a final decree dismissing with prejudice the appellants' complaint

Appellants brought a bill 'in the nature of a creditor's bill' to set aside a conveyance by appellee Cravero Constructors, Inc., grantor, to appellees George Cravero, Jr., Shirley F. Cravero and Dennis P. Cravero, acting as co-partners in the name of Cravero Building Company, alleged to have been made in fraud of creditors pursuant to § 726.01, Fla.Stat., F.S.A. Appellees answered denying the material allegations of the complaint and setting up certain affirmative defenses not necessary to be considered on this appeal. The cause went to trial upon the issues made by the complaint and answer.

Upon completion of the appellants' case, the appellees moved for a 'directed verdict' on the grounds that the appellants had wholly failed to establish by a preponderance of the evidence or by any competent evidence that there was any fraud, collusion or guile of any sort, and also had failed to prove that the conveyance was without adequate consideration. This motion was granted and the court entered the final decree from which this appeal was taken.

The appellants contend that the chancellor erred in dismissing the complaint since the evidence presented was sufficient to establish a prima facie case. Appellants support this position by a reliance upon § 726.01, supra, concerning fraudulent conveyances, and § 608.55, Fla.Stat., F.S.A., voiding preferential transfers by an insolvent corporation or one whose insolvency is imminent. The application of the latter statute (§ 608.55, surpa) was not presented to the chancellor nor considered by him in his final determination of the cause, but was raised for the first time on appeal. The rule that an appellate court will review only those matters and things raised and presented in the trial court is so well established as not to require the citation of authority. We recognize the exceptions to this rule, but the facts and circumstances of this cause do not bring it within any of the exceptions. See 2 Fla.Jur., Appeals, § 290. Therefore, the court will not consider the applicability of the statute in its determination of the cause.

Although the appellees term their motion one for directed verdict, nevertheless it would be proper under the circumstances even though it were misnamed. Rule 1.35(b), Florida Rules of Civil Procedure, 30 F.S.A., permits a motion to dismiss at the conclusion of the plaintiff's case and preserves the movant's right to put on his case in the event the motion is denied. The effect of the motion is the same as a motion for directed...