Wealden Corporation v. Schwey
| Decision Date | 26 July 1973 |
| Docket Number | No. 72-3049 Summary Calendar.,72-3049 Summary Calendar. |
| Citation | 482 F.2d 550 |
| Parties | The WEALDEN CORPORATION and Edward G. Uhl, Plaintiffs-Appellees, v. Joseph J. SCHWEY, et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Daniel Neal Heller, Judith S. Waldman, Miami, Fla., for defendants-appellants.
Sidney A. Stubbs, Jr., West Palm Beach, Fla., Gunster, Yoakley, Criser, Stewart & Hersey, Palm Beach, Fla., for plaintiffs-appellees.
Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.
This is a diversity action in which plaintiffs-appellees seek damages for alleged negligence and fraud in connection with appellants' maintenance and development of appellees' citrus groves. The court below found that appellees suffered losses due to appellants' fraudulent misrepresentations and ordered that appellants return a portion of the money paid by plaintiffs. We affirm.
During the period 1963-70 appellees purchased citrus groves that appellants undertook to improve, maintain and operate; they also purchased undeveloped land that defendants undertook to develop into citrus groves. Specifically, Wealden Corporation (Wealden) purchased groves denominated 10A and 10B and an undeveloped tract called the "580." Wealden, Uhl and the Schweys together bought a tract known as the "1150" and later divided it among themselves.
The arrangement seems to have progressed satisfactorily until 1970, when appellees became dissatisfied with the return on their investment and decided to investigate. They found, and the trial court agreed, that their groves were in a poor state of horticultural upkeep. While the Schweys had been submitting invoices for the promised services, those services were not properly performed for at least six months of 1970. The trial court found that appellees had paid the Schweys a double fee for the use of certain equipment, a bill for twice the "dragline" services actually performed, and the cost of more than 16,000 trees that were never planted.
Because appellees' invoices represented these services had been performed properly and fully, the trial court found the invoices to be fraudulent misrepresentations. As a remedy the trial court ordered the Schweys to refund the fraction of appellees' payments that corresponded to the amount of work left undone. For example, the court found that appellants in effect performed no maintenance on the groves during six months of 1970 and accordingly ordered defendants to refund half the maintenance fees paid in that year.
Appellants advance four points of error. In the first category are two errors of factual determination to which we must apply the "clearly erroneous" standard. Here appellants claim there is no proof of justifiable reliance by Wealden and Uhl, which is a necessary element of fraud in Florida. Likewise he believes that the trial court made gross errors in its computation of the losses suffered by appellees. On both points we cannot say that the trial court was clearly erroneous, and therefore we must uphold its determination.
Appellants allege two errors of law as well. First they contend that the trial court erred in overruling their Rule 41(b) motion to dismiss at the conclusion of appellees' evidence. They maintain that at that point there was no showing of a standard of care or measure of damages. Even if their assessment of the evidence is correct, they cannot at this point ask for a review of the evidence as it stood when plaintiff closed the presentation of his evidence.
Under Rule 41(b) of the Federal Rules of Civil Procedure the trial judge has the option of weighing the evidence and rendering judgment against the plaintiff or declining to render judgment until the close of all the evidence. See Smith Petroleum Service Inc. v. Monsanto Chemical Co., 5th Cir. 1970, 420 F.2d 1103. In this case the trial judge chose to postpone his decision until the close of all the evidence, thus denying appellants' Rule 41(b) motion for involuntary dismissal. If defendants wished to challenge this decision, their avenue for so doing was to refuse to offer their evidence, accept a judgment for plaintiffs, and appeal it on the ground that plaintiffs' evidence was insufficient....
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...Co., v. Farmer, 427 F.2d 1082 (5th C.C.A., 1970); Branizza v. Greyhound Corp., 394 F.2d 33 (5th C.C.A., 1968); Wealden Corp. v. Schwey, 482 F.2d 550 (5th C.C.A., 1973); and Trask v. Susskind, 376 F.2d 17 (5th C.C.A., 1967). In weighing the evidence, the Court must determine whether, from th......
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Danzy v. Johnson, Civ. A. No. 74-100.
...he was unsure of his legal rights, or (c) any other meritorious reason which would justify such an amendment. See Wealden Corp. v. Schwey, 482 F.2d 550 (5th Cir. 1973); Kirby v. P. R. Mallory & Co., 489 F.2d 904 (7th Cir. 1973), cert. denied, 417 U.S. 911, 94 S.Ct. 2610, 41 L.Ed.2d 215 The ......
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Gerasta v. Hibernia Nat. Bank
...was involved. See note 24 supra and accompanying text. 27 Rule 41(b) permits the exercise of this option. See Wealden Corp. v. Schwey, 482 F.2d 550, 551-52 (5 Cir. 1973); Smith Petroleum Service, Inc. v. Monsanto Chemical Co., 420 F.2d 1103, 1116 (5 Cir. 28 "Any credit transaction which inv......
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Moench v. Marquette Transp. Co. Gulf–Inland, L.L.C.
...with our general practice of testing the sufficiency of the evidence on appeal by viewing the entire record. See Wealden Corp. v. Schwey , 482 F.2d 550, 551 (5th Cir. 1973) (rejecting request “for a review of the evidence as it stood when plaintiff closed the presentation of his evidence”);......