       Third District Court of Appeal
                                State of Florida

                            Opinion filed June 24, 2015.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D14-1681
                          Lower Tribunal No. 09-85340
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                                Maysville, Inc.,
                            Appellant/Cross-Appellee,

                                         vs.

              The Whiting-Turner Contracting Company,
                            Appellee/Cross-Appellant.



      An Appeal from the Circuit Court for Miami-Dade County, David C. Miller,
Judge.

      Pardo Gainsburg, P.L., and Jeffrey J. Pardo, for appellant/cross-appellee.

      Broad and Cassel, and Michael K. Wilson and George W. ("Trey") Tate III
(Orlando), and Beverly A. Pohl (Fort Lauderdale), for appellee/cross-appellant.


Before WELLS, EMAS, and LOGUE, JJ.

      LOGUE, J.
      In this condominium project dispute between Maysville, Inc. (“Developer”)

and The Whiting-Turner Contracting Company (“General Contractor”), the

Developer filed a two-count complaint against the General Contractor and the

General Contractor filed several counterclaims. The trial court entered judgment

against the Developer on both of its claims. We affirm those rulings without

discussion.

      We reverse, however, the involuntary dismissal of the counterclaims.

Without a motion being made by the Developer, the trial court involuntary

dismissed the counterclaims before the General Contractor had an opportunity to

complete the presentation of its evidence. As the Developer commendably

concedes, the trial court erred. Fla. R. Civ. P. 1.420(b) (2014) (providing for an

involuntary dismissal for lack of evidence only “[a]fter a party seeking affirmative

relief in an action tried by the court without a jury has completed the presentation

of evidence”); Deutsche Bank Nat. Trust Co. v. Santiago, 117 So. 3d 1146, 1147

(Fla. 3d DCA 2013) (“Simply put, it is error to direct a verdict before a plaintiff

has completed presentation of his evidence. . . . [T]he same concept applies to an

involuntary dismissal.”) (internal citation and quotations omitted).

      Affirmed in part; reversed in part; remanded for further proceedings

consistent with this opinion.




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