Martucci v. Green Kroll Corp.

No. 85-549 | Fla. Dist. Ct. App. | Feb 12, 1986

Lead Opinion

OWEN, WILLIAM C., Jr., Associate Judge.

Appellant entered into a written contract to purchase a home from the appellee corporation. The contract was contingent upon appellant qualifying to assume the existing mortgage. When he failed to qualify, he asked for return of his deposit. Upon the appellee’s refusal, he brought this suit for declaratory judgment. In the non-jury trial the sole issue was whether appellant had made a bona fide effort to qualify with the mortgagee. His testimony, outlining the efforts that he made, established a prima facie case of good faith effort. Nonetheless, at the close of his case the trial court granted appellee’s motion for involuntary dismissal. It would appear that the court, in doing so, improperly weighed the credibility of plaintiff’s testimony. Tillman v. Baskin, 260 So. 2d 509" date_filed="1972-03-22" court="Fla." case_name="Tillman v. Baskin">260 So.2d 509 (Fla.1972). The judgment and the separate order awarding attorney’s fees are severally reversed and this cause is remanded for new trial.

WALDEN, J., concurs. GLICKSTEIN, J., concurs with opinion.





Concurrence Opinion

GLICKSTEIN, Judge,

concurring.

Because this matter is to be tried again, the writer urges that in reaching the heart of the matter, all concerned recognize the difference between inappropriately seeking to introduce a statement to prove the truth thereof and appropriately offering it to prove that the statement was made.