Bordacs v. Kimmel, 61-362
| Decision Date | 03 April 1962 |
| Docket Number | No. 61-362,61-362 |
| Citation | 139 So.2d 506 |
| Parties | Andy BORDACS, as Executor of the Estate of Gladys Bordacs, Deceased, Appellant, v. Carolyn V. KIMMEL, Appellee. |
| Court | Florida District Court of Appeals |
Shevin, Goodman & Holtzman and J. H. Kaiser, Miami, for appellant.
Claude Pepper and Albert Harum, Miami, for appellee.
Before PEARSON, TILLMAN, C. J., and HORTON and BARKDULL, JJ.
In this appeal, the appellant-defendant seeks review of a final decree of specific performance and urges many points for consideration.
The primary question to be determined by this appeal is: Did the appellant waive the provisions of § 90.05 Fla.Stat., F.S.A. [commonly known as the 'dead man's statute'] by using the depositions of the appellee in support of a motion for summary decree, not only for the purposes of the summary decree hearing but also for the purpose of the final hearing after the summary decree was denied? This question must be answered in the affirmative. The mere taking of a deposition will not waive the protection of § 90.05 Fla.Stat., F.S.A. See: Small v. Shure, Fla.1957, 94 So.2d 371; 35 Fla.Jur., Witness, § 127. But, after a deposition is taken, if it is used in support or defense of a motion for summary judgment, the protection afforded by the statute is waived. Embrey v. Southern Gas and Electric Corp., Fla.1953, 63 So.2d 258; Macknett v. Rogers, Fla.App.1960, 119 So.2d 72. Once a waiver of the provisions of § 90.05 Fla.Stat., F.S.A., is made in a pending cause, it is waived for all further proceedings in the same action. 56 Am.Jur., Waiver, § 24; 92 C.J.S. Waiver p. 1069. Among the other points raised by the appellant is the sufficiency of the evidence to support the finding of a constructive trust, requiring the redelivery of the real property to the appellee. Viewing the evidence with the presumptions in favor of the prevailing party, as we must [Meola v. Sparks, 138 Fla. 364, 189 So. 408; Carolina Lumber Company v. Daniel, Fla.App.1957, 97 So.2d 156; 2 Fla.Jur., Appeals, § 314] it appears that the funds which purchased the property in question were earned solely by the appellee and that the appellee paid substantially all the mortgage payments on the property involved. These facts, coupled with the unrefuted testimony that at the time of the conveyance to the deceased the appellee received a deed of reconveyance [which became lost prior to the recording], clearly is sufficient evidence to support the finding of the chancellor that there was, in fact, a constructive trust requiring the reconveyance of the property to the appellee. The other points raised by the appellant have been examined and found to be without merit.
We therefore affirm the decree of the lower court granting reconveyance of the property involved to the appellee.
Affirmed.
The question of defendant's waiver of the benefits of the 'Dead Man's Statute' appears to be governing on this appeal. Having held that the defendant waived the benefits of the statute (as the trial judge did and as affirmed here), the findings of the trial judge are sufficiently supported by the evidence. I have reached a different conclusion upon the question of defendant's waiver of the benefits of the statute, and I would remand the cause to the chancellor for a reconsideration of the evidence under what I consider to be the correct rule of law.
In order to set forth my conclusion it is necessary to give the background of the ruling as I understand it from the record.
1. The defendant took the deposition of the plaintiff for discovery purposes.
2. The defendant moved for a summary final decree. This motion contained no reference to the merits of the controversy and was limited as follows:
'* * * on the grounds that it affirmatively appears from the pleadings and depositions of the parties, heretofore filed in this cause, that there is no genuine issue...
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