Rolly Marine Service, Inc. v. Sullivan
Rolly Marine Service, Inc. v. Sullivan
Opinion of the Court
.... Affirmed.
Concurring Opinion
(dissenting) :
I dissent.
Although the amount in controversy is small, $786.24, the principle is large, and it is my judgment that plaintiff has been deprived of its day in court.
This was a suit upon an open account for boat storage. Contrary to Tillman v. Baskin, 260 So.2d 509 (Fla. 1972), the trial court, upon defendant’s motion, dismissed the suit at the conclusion of plaintiff’s case in a non-jury trial and entered judgment for defendant, all despite the fact that the evidence and all inferences were adequate to establish a prima facie case. I would reverse and remand for a new trial.
Combing through the record, and particularly defendant’s motion, and the memo-randa relied upon by the trial court, it is safely hazarded that this case got off the track when court and counsel confused the actions of open account and account stated. See Hayden, Stone Incorporated v. Van Echteld, 267 So.2d 677 (Fla.App. 1972). Clearly, this was an action upon an open account as plaintiff employed, almost verbatim, Form No. 1.932, Florida Rules of Civil Procedure, 31 F.S.A., which is entitled, “Open Account,” (and not Form No. 1.933, entitled “Account Stated”). The account was attached per Rule instruction. It was the usual everyday bill form and showed six monthly items of $126.00 each for storage of the defendant’s yacht, “Sparky.” It exactly reflected the storage dates and time of accrual and showed a tax of $30.24 and a total due from defendant of $786.24.
Did defendant make out a prima facie case? While it might have been more
I simply fail to see the difficulty with this case. It seems basic, at least to me, that defendant should be called upon to come forward and defend. If he denies that his vessel was there, that issue can be adjudicated. If he challenges the amount of rent charged or suggests that he had previously paid the bill or takes issue with any of the facets of the claim, then the trial court would be in a position to weigh the conflicting testimony and make a proper judgment.
For these reasons I find that I am unable to concur with the majority and say that I would reverse and remand, thereby requiring a full trial upon the merits.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.