Bottalico v. Antonelli

695 So. 2d 363, 1997 WL 55625

• Court: District Court of Appeal of Florida
• Decided: February 12, 1997
• Docket: 95-2618
• Status: Published

Opinion

695 So.2d 363 (1997)

Matthew BOTTALICO, Appellant,
v.
Lee ANTONELLI, Appellee.

No. 95-2618.

District Court of Appeal of Florida, Fourth District.

February 12, 1997.

Michael J. Presutti, Winter Park, for appellant.

Anna Gomez-Mallada, Fort Lauderdale, for appellee.

BROWN, LUCY C., Associate Judge.

We reverse the "Final Judgment of Directed Verdict" entered by the trial court at the conclusion of the plaintiff's case in a non-jury trial. The trial court's action amounted to an involuntary dismissal, which is properly entered only when the evidence, considered in the light most favorable to the nonmoving party, fails to establish a prima facie case on the non-moving party's claim. Cohen v. Boca Woods Country Club Property Owners Ass'n, 632 So.2d 1142 (Fla. 4th DCA 1994). Upon the presentation of a prima facie case, as here, the trial court in a non-jury trial "may not weigh and judge the credibility of the evidence when ruling upon a [motion for involuntary dismissal]." Service Facilities Corp. v. Lanier, 371 So.2d 1083, 1084 (Fla. 4th DCA 1979) (citing Tillman v. Baskin, 260 So.2d 509 (Fla.1972)); see also Haskin v. Haskin, 677 So.2d 376 (Fla. 4th DCA 1996). As in Haskin, it is apparent from the face of the final judgment that the trial judge improperly weighed the evidence. This compels reversal and a new trial.

REVERSED AND REMANDED for a new trial.

GLICKSTEIN and STEVENSON, JJ., concur.