Summary
holding that in considering a motion for involuntary dismissal, a trial court judge may not weigh the evidence
Summary of this case from Deutsche Bank Nat'l Trust Co. v. StoneOpinion
No. 95-1372.
July 10, 1996.
Appeal from the Fifteenth Judicial Circuit Court, Palm Beach County, Lucy Brown, J.
Robert Resnick, Gulf Stream, for appellant.
Barry S. Franklin, of Franklin Marbin, P.A., North Miami Beach, for appellee.
We reverse the trial court's order involuntarily dismissing the former wife's (appellant) action to modify her alimony award, and remand for a new hearing.
It is proper to enter an involuntary dismissal only when the evidence, considered in the light most favorable to the non-moving party, fails to establish a prima facie case on the non-moving party's claim. Cohen v. Boca Woods Country Club Property Owners Ass'n, 632 So.2d 1142 (Fla. 4th DCA 1994). A trial judge may not weigh the evidence in considering a motion for involuntary dismissal. Palm Beach Mall, Inc. v. Walker, 585 So.2d 1149 (Fla. 4th DCA 1991).
It is apparent from the order that the trial judge weighed the evidence and considered the credibility of the witnesses. As such, we are compelled to reverse.
GLICKSTEIN, WARNER and SHAHOOD, JJ., concur.