McKee v. Fairmont Homes, Inc.

BARKDULL, THOMAS H., Jr., Associate Judge. Appellant, plaintiff in the trial court, seeks review of an adverse order involuntarily dismissing [pursuant to Rule 1.35(b), Florida Rules of Civil Procedure], 30 F.S. A. its complaint seeking damages for breach of contract. The motion to dismiss, coming at the conclusion of the plaintiff’s evidence, entitled the plaintiff to all reasonable in [734] ferences to be drawn from the evidence that had been presented. However, it was incumbent upon the plaintiff to establish a prima facie case in order to defeat the motion. See: Wall v. Bureau of Lathing & Plastering of Dade County, Florida, Fla.App.1960, 117 So.2d 767. This controversy arose out of the contract wherein the plaintiff undertook to construct a road facility on property owned by the defendant. It was stipulated at the trial that in order for the plaintiff to prevail it would have to establish that a road was constructed in accordance with a “grade” set by the engineer, McLaughlin. A review of the record [and resolving all inferences and deductions in favor of the plaintiff] fails to reveal any evidence which would have tended to establish that the plaintiff had, in fact, constructed a road the “grade” of which was in accord with McLaughlin’s survey stakes. In accordance with the undertaking of the contract sued upon and the stipulation of the parties, it was incumbent upon the plaintiff to establish at least substantial compliance with the terms of the contract, as interpreted by the parties in their stipulation at the time of trial. This it failed to do, and the trial court was correct in sustaining the motion to dismiss. Affirmed. KANNER, Acting C. J., concurs. BARNS, PAUL D., Associate Judge, dissents.