Schimmel v. Merrill Lynch Pierce Fenner & Smith, Inc.
Decision Date | 26 February 1985 |
Docket Number | No. 83-2775,83-2775 |
Citation | 464 So.2d 602,10 Fla. L. Weekly 545 |
Parties | 10 Fla. L. Weekly 545 Lawrence H. SCHIMMEL and Lawrence H. Schimmel, P.A., and Lois H. Schimmel, Appellants, v. MERRILL LYNCH PIERCE FENNER & SMITH, INC., Appellee. |
Court | Florida District Court of Appeals |
Horton, Perse & Ginsberg and Edward Perse, Miami, for appellants.
Dennis G. King, Ruden, Barnett, McClosky, Schuster & Russell; Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel D. Eaton, Miami, for appellee.
Before BARKDULL and HUBBART and DANIEL S. PEARSON, JJ.
The post-trial order under review is affirmed insofar as it grants a renewed motion for directed verdict made at trial by the plaintiff [Merrill Lynch Pierce Fenner & Smith, Inc.] on its main claim against the defendants [Lawrence H. Schimmel, Lawrence H. Schimmel, P.A., Lois Schimmel] and enters judgment for the said plaintiff in the amount of $4,500. We agree entirely with the reasons given by the trial court in the order under review for granting this motion and for entering judgment for the plaintiff thereon:
R. 178-79 (footnote omitted).
Given the trial court's correct factual statement of this case, a directed verdict for the plaintiff on its claim below was legally required. Anchor Savings Bank v. Berlin, 445 So.2d 675 (Fla. 4th DCA 1984).
The post-trial order under review is also affirmed insofar as it grants a renewed motion for directed verdict made at trial by the plaintiff on the defendants' counterclaim and enters judgment in favor of the said defendants in the amount of $10.88. We agree entirely with the reasons given by the trial court for reaching this result:
"2. On the Schimmels' counterclaim against the plaintiff, the evidence is also not in dispute. It reflects that Dr. and Mrs. Schimmel had a second account with the plaintiff; that Dr. Schimmel requested that the account be liquidated and a check be paid to them; and that the plaintiff declined to do so, believing that it was entitled to withhold the check as an offset to the $4,500.00 owed it by Dr. Schimmel and his P.A. Although the parties were originally of the belief that the account balance was $779.00, as reflected by the statements provided the Schimmels by the plaintiff, it was proven at trial without dispute that all but $10.88 of that amount was the result of another bookkeeping error. Dr. and Mrs. Schimmel offered no evidence at trial to contradict this evidence, or any evidence which tended to prove that they were entitled at any time to an amount in excess of $10.88. Instead, once again, Dr. Schimmel testified only that he relied on the statements received from the plaintiff to determine the amount he was owed. Because the uncontradicted evidence proves that the statements were in error, and that the total...
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