Opinion
No. 85-1488.
October 8, 1986. Rehearing Denied December 1, 1986.
Appeal from Circuit Court, Palm Beach County; Jack H. Cook, Judge
Amy Shield Levine of Levine Levine, Boca Raton, for appellants.
Larry Klein of Klein Beranek, P.A., and Pariente Silber, West Palm Beach, for appellees.
This is an appeal from a final judgment, following entry of a directed verdict on the issue of liability in favor of the plaintiffs against the defendants. We reverse and remand for new trial, concluding that it was error so to direct the verdict. As the matter must be retried based on the pleadings, including the theory — of persons acting in concert — propounded by the memorandum of law delivered by the plaintiffs on the first day of trial, we shall mention those matters which are likely to arise again. In our view it was error to grant the motion in limine, excluding from the jury's consideration the circumstances of what occurred initially; and it would be further error, on retrial, to exclude evidence of the individual defendant's intent throughout the entire episode. We find no other harmful error in the further points raised by appellants.
GLICKSTEIN, J., and WETHERINGTON, GERALD T., Associate Judge, concur.
DOWNEY, J., dissents with opinion.
I would affirm the judgment appealed from because, in my opinion, the appellees' theory of recovery for the concerted action of the three individuals involved in the alleged tortious conduct was adequately pled and, thus, the claimed surprise at trial was not sufficient to warrant a reversal for failure to grant appellants a continuance. Furthermore, I do not believe the granting of the motion in limine excluding evidence of what occurred initially between the alleged tortfeasors and Michael McPherson demonstrates reversible error.