Sapp v. Redding
| Decision Date | 09 September 1965 |
| Docket Number | No. F-347,F-347 |
| Citation | 178 So.2d 204 |
| Parties | J. D. SAPP, Appellant, v. D. R. REDDING, Appellee. |
| Court | Florida District Court of Appeals |
T. J. Jennings, Jr., and James T. Norton, Green Cove Springs, for appellant.
Yawn & Shaw, Starke, for appellee.
The plaintiff in an action seeking damages for trespass and conversion of timber has appealed from two orders entered by the Circuit Court for Bradford County granting the defendant's motion for involuntary dismissal and taxing certain costs against the plaintiff.
The principal question presented for our determination in this appeal is whether, under our rules of procedure, a trial court may, during a trial, grant the defendant's motion for the involuntary dismissal of the plaintiff's cause before the plaintiff has completed the presentation of his evidence.
In the case at bar the plaintiff alleges in his complaint that he is the owner of certain land in Bradford County and that in 1962 and 1963 the defendant entered upon his land and wrongfully cut and removed timber therefrom, resulting in the devaluation of the said land in excess of $600. To this complaint the defendant filed his answer, denying the alleged trespass and conversion, denying the plaintiff's ownership of the said land, and also alleging that for more than 30 years a substantial fence has existed that had been generally recognized and accepted by their predecessors in title as the true common boundary line between the plaintiff's and the defendant's lands, and that he, the defendant, and his predecessors in title had been in open and notorious possession of the premises west of the said fence (where the trespass allegedly occurred) and had acquired title thereto by adverse possession.
This cause duly came on for trial without a jury. The plaintiff called the defendant as his first witness and, after the defendant testified, the plaintiff took the stand himself to testify in his own behalf. On cross-examination the plaintiff admitted the truth of certain facts consistent with the defendant's above defense of adverse possession. For instance, in his last answer he admitted that he had not been in actual possession of the land in question (lying to the west of the said fence) at any time within seven years next prior to the filing of his action.
Following this last admission in the cross-examination of the plaintiff, the defendant's counsel moved the court for an involuntary dismissal of the case on the ground that it affirmatively appeared from the plaintiff's own testimony that he had not been in actual possession of the land in question for the said seven-year period, but that the defendant had been in such possession since the fence had been constructed more than 30 years before; and on the ground that the evidence presented by the plaintiff showed that the defendant had protected the land in question with a substantial enclosure and that the defendant claims the said land under color of title, relying upon a certain deed as a conveyance to him of all lands lying to the west of the said fence.
Following the making of the said motion for an involuntary dismissal, the trial court declared a recess, after which the court announced that the trial would be adjourned to a future date and that counsel would have 20 days in which to file briefs.
The trial, however, was not resumed, for, 21 days later, after the plaintiff had filed his brief, the trial court entered the first order appealed from herein, granting the defendant's said motion for an involuntary dismissal, dismissing the cause with prejudice, and ordering that costs be taxed against the plaintiff. A few weeks later the court entered the second order appealed from, taxing against the plaintiff certain costs and expenses incurred by the defendant, in the total amount of $161.83.
The only authorization in our procedural rules for the making and granting of a motion during trial for the involuntary dismissal of a plaintiff's cause, is found in subdivision (b) of Rule 1.35 of the Florida Rules of Civil Procedure, 30 F.S.A., providing as follows:
No judicial interpretation is required to demonstrate that the condition precedent to a defendant's making, and the trial court's granting, of a motion for involuntary dismissal of the plaintiff's cause is stated in the opening clause of the second paragraph quoted above, reading 'After the plaintiff has completed the presentation of his evidence * * *.'
Despite this obvious intendmant of the quoted provisions of the rule, the defendant-appellee attempts to justify the...
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...Inc. v. Williams Island Assocs., 550 So.2d 1142 (Fla. 3d DCA 1989)(same), review denied, 557 So.2d 35 (Fla.1990); Sapp v. Redding, 178 So.2d 204 (Fla. 1st DCA 1965)(holding that trial court erred by granting involuntary dismissal prior to the close of the plaintiff's presentation of evidenc......
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Williams v. Salem Free Will Baptist Church
...that the movant will move for directed verdict at the close of the evidence offered by the adverse party.); Sapp v. Redding, 178 So.2d 204, 207 (Fla. 1st DCA 1965) ("[A] defendant ... cannot properly make a motion for a directed verdict before the plaintiff has completed the presentation of......
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Estate of McCoy, In re, s. 83-784
...and the law presented until after the plaintiff has finally rested his case. Indeed, as the First District noted in Sapp v. Redding, 178 So.2d 204, 206 (Fla. 1st DCA 1965): Every party litigant is entitled to his "day in court," and this includes the right of a plaintiff to present admissib......
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Public Health Trust of Miami-Dade v. Acanda
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