517 So. 2d 47 | Fla. Dist. Ct. App. | 1987
Lead Opinion
In Belcher v. Ferrara, 511 So.2d 1089 (Fla. 3d DCA 1987), we held that a trial court could not enter a default against a defendant on the issue of liability, without notice, as a sanction for failure to appear at trial where the defendant had filed an answer denying liability. We remanded the case for construction of a record to aid us in our determination whether the judgment on liability was supported by competent evidence.
On remand a hearing was conducted before the trial judge which resulted in a “Statement of The Proceedings As Settled And Approved.” Paragraphs 1 and 2 of the statement chronicle the material events at trial:
1. The trial judge struck the defendants’ pleadings and defaulted the defendants because of their failure to appear at trial.
2. The trial judge directed a verdict on liability, prior to empaneling the jury, after a review of the court file and presentation of plaintiffs’ proffer of the lia*48 bility testimony they were prepared to present.
(Emphasis added).
Paragraph 1 describes precisely that action which we held impermissible in the earlier opinion. The judicial act described in paragraph 2 was superfluous after the default had been entered. It also failed as a remedial effort because no competent evidence on liability was presented to the court.
The judgment is reversed as to liability, affirmed on damages, and remanded for a trial on liability.
BASKIN and FERGUSON, JJ., concur.
. We do not share the dissenting view that the affidavits of Marc Ferrara and Nancy Balkany regarding their trial testimony — -which the appellants are unable to dispute because they were not present — should be considered for the purpose of ratifying the trial court’s pretrial disposition of the liability issue. Our disagreement, which the dissent characterizes as quibbling, concerns whether the judgment on liability should be affirmed on the basis of separately-filed affidavits — vociferously objected to by the appellants- — which are not part of the "Statement of the Proceedings" approved by the parties and the court.
Dissenting Opinion
dissenting.
After correctly characterizing our remand as being one “to aid us in our determination whether the judgment on liability was supported by competent evidence,” the panel opinion goes on to assert — incorrectly — that “no competent evidence on liability was presented to the court.” The reconstructed record, however, contains the undisputed affidavits of Marc Ferrara, the injured plaintiff, and Nancy Balkany, Ph.D., recounting not some proffer, but evidence on the liability issue in the form of the testimony of Marc Ferrara at the trial. Marc’s affidavit says that, in part, he testified before the jury that:
“1. I had been out in the boat with some friends. I had picked up the bang stick to load it. I checked the safety and it was in place. I put the bang stick down and picked up the things I needed to prepare to load the bang stick. When I picked the bang stick up again, I checked the safety. It looked like it was in place. As I loaded the bang stick it went off, blowing off a part of my hand.
“2. Sometime after the accident, I inspected the bang stick and learned that the bang stick safety can pop out of place just by laying the bang stick down on its side, as I did the day of the accident. Even when it’s popped out of place, it looks like it’s in place. I didn’t know that at the time of the accident, and it made me really mad when I found out because it would have been so easy and cheap to avoid. I’m still really angry at Belcher for designing something like this. It’s just a cheap bobby pin, not really a safety at all.”
Dr. Balkany’s affidavit corroborates that Marc testified how the accident happened and described to the jury “the bobby pin design of the safety device and his anger when, after the accident, he saw the inadequacy of the safety.” And (more importantly, in light of the quibbling in note 1 in the majority opinion) paragraph 3 of the Statement of Proceedings As Settled and Approved” says that “[t]he plaintiff testified as to how the accident happened,” and Exhibit D attached to the Statement (the affidavit of plaintiff’s attorney) recounts Marc Ferrara’s trial testimony even as it appears in his affidavit.
Thus, the trial judge had before him competent substantial evidence to support the entry of a directed verdict for the plaintiff. That he earlier “defaulted” the defendants, or announced that he was directing a verdict before Marc Ferrara’s testimony was presented, is absolutely beside the point; these actions of the trial judge could not possibly have made any difference to the voluntarily absent defendants.
I would affirm the judgment in its entirety.
