Burda Metals, Inc. v. Heavy Equipment Rental Co.

243 So. 2d 163 | Fla. Dist. Ct. App. | 1971

PER CURIAM.

The appellant, Burda Metals, Inc., was one of the defendants in the trial court. This appeal is from a final judgment for the plaintiff, Heavy Equipment Rental Company, Inc., entered after a jury verdict for the plaintiff in the amount of $1,915.85 against the appellant, Burda Metals, Inc., and Bernard F. Burda. The action was for the recovery of money claimed to be due upon leases of trucking equipment.

Nine points-on appeal supported by 16 assignments of error are presented. We hold that no reversible error has been shown but that the final judgment against Bernard F. Burda is not supported by the verdict¹ and must be reversed.

Points one, four, and five question evidentiary rulings made during the trial but do not show reversible error. Point two urges that the trial judge should have dismissed the action for failure of the plaintiff to pay its capital stock tax. The record does not reflect a motion to dismiss upon this ground. Babe, Inc. v. Baby’s Formula Service, Inc., Fla.App.1964, 165 So.2d 795. Point three questions the sufficiency of the evidence. We hold that the record is sufficient to support the verdict. Points six, seven and eight are not supported by an applicable assignment of error. Point nine urges that attorney’s fees allowed under the contracts were excessive. The record shows that the parties stipulated that the trial judge should set the amount of the fee without submitting testimony. Therefore the right to assert that the fee is excessive was waived in the absence of a gross abuse of discretion. This has not been shown.

The judgment against Burda Metals, Inc., is affirmed, and the judgment against Bernard F. Burda is reversed. The cause is remanded for the entry of a proper judgment.

Affirmed in part, reversed in part and remanded.

1 . “We the Jury find for the Plaintiff against the defendant BURDA MBT-ALS, INC., and assess its damages at $1,916.84. So Say We All.”