Tesher & Tesher v. Rothfield, 79-2188

Decision Date27 August 1980
Docket NumberNo. 79-2188,79-2188
Citation387 So.2d 499
PartiesTESHER & TESHER, P.A., a Florida Professional Association, Appellant, v. Ira ROTHFIELD and Ira Rothfield, D.D.S., P.A., Appellee.
CourtFlorida District Court of Appeals

Sheldon Evans of Freeman & Evans, P.A., Miami, for appellant.

Jonathan J. Davis of Walton, Lantaff, Schroeder & Carson, Fort Lauderdale, for appellee.


After two mistrials the trial court directed a verdict for appellee, defendant below. This appeal is predicated upon alleged error in entering the directed verdict.

The crux of appellant's argument is that the directed verdict was inappropriate. Appellant cites a number of cases for the proposition that it is reversible error for the trial court to direct a verdict where there is "some, slight or any minimal evidence" tending to prove the plaintiff's case. Appellant correctly points out that a directed verdict should not be entered unless no proper view of the evidence could sustain a verdict for the party moved against. Sun Life Ins. Co. of America v. Evans, 340 So.2d 957 (Fla.3d DCA 1976).

In order for this court to determine whether the directed verdict was proper, we are required to look to the evidence presented to the jury in order to apply the tests to which we have previously made reference. The record before us in this case is bereft of testimony or other evidence, consisting solely of the pleadings, a transcript of one hearing, and orders of the court. The burden to make a record and to see that it is transmitted to the appellate court is on appellant. On the present record, no abuse of discretion could be demonstrated.

Rule 9.200(f)(2) of the Florida Rules of Appellate Procedure provides that "No proceeding shall be determined because the record is incomplete until an opportunity to supplement the record has been given."

Appellant is therefore given forty-five days within which to supplement the record.


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8 cases
  • Ritz v. Florida Patient's Compensation Fund
    • United States
    • Florida District Court of Appeals
    • 4 Agosto 1983
    ...moved against, then the directed verdict was properly entered. Reams v. Vaughn, 435 So.2d 879 (Fla.1983) Tesher & Tesher, P.A. v. Rothfield, 387 So.2d 499 (Fla. 4th DCA 1980). Here, the father signed a consent to surgery. It is contended first that this is insufficient to constitute a valid......
  • Wolmer v. Chrysler Corp.
    • United States
    • Florida District Court of Appeals
    • 17 Julio 1985
    ...Hartnett v. Fowler, 94 So.2d 724 (Fla.1957); Toyota Motor Co. v. Moll, 438 So.2d 192 (Fla. 4th DCA 1983); Tesher & Tesher, P.A. v. Rothfield, 387 So.2d 499 (Fla. 4th DCA 1980). "Directed verdicts should be granted cautiously in order not to encroach upon a party's right to a jury trial." Pa......
  • Thor Bear, Inc. v. Crocker Mizner Park, Inc.
    • United States
    • Florida District Court of Appeals
    • 16 Noviembre 1994
    ...verdict should not be granted unless no view of the evidence could support a verdict for the nonmoving party. Tesher & Tesher, P.A. v. Rothfield, 387 So.2d 499 (Fla. 4th DCA 1980). The same standards apply to a post-verdict motion for judgment in accordance with prior motions for directed v......
  • Dockery v. Enterprise Rent-A-Car Co.
    • United States
    • Florida District Court of Appeals
    • 12 Septiembre 2001
    ...Hand v. Hustad, 440 So.2d 518 (Fla. 4th DCA 1983); In re Estate of Koll, 445 So.2d 1147 (Fla. 4th DCA 1984); Tesher & Tesher, P.A. v. Rothfield, 387 So.2d 499 (Fla. 4th DCA 1980). Viewed in a light most favorable to the plaintiff, with all inferences resolved for him, the evidence in this c......
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