Dinter v. Brewer, 81-1891

• Citation: 420 So.2d 932
• Decision Date: 26 October 1982
• Docket Number: No. 81-1891,81-1891
• Parties: Heinz DINTER, Appellant, v. James T. BREWER, Appellee.
• Court: Court of Appeal of Florida (US)

Page 932

420 So.2d 932

Heinz DINTER, Appellant, v. James T. BREWER, Appellee.

No. 81-1891.

District Court of Appeal of Florida,

Third District.

Oct. 26, 1982.

Golembe & Fried and Ronald L. Fried, Miami, for appellant.

Haber & Roth and Martin L. Roth, Miami, for appellee.

Before HUBBART, C.J., and BARKDULL and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

In 1978, Brewer recovered a money judgment against Computer Management Corporation. A deputy sheriff attempted to execute the judgment upon the assets of Computer and was informed by an employee that no officers were present to identify the corporation's assets. The deputy left. When he returned in a few days, Computer's cupboards were bare.

Brewer then deposed Heinz Dinter, the president of Computer, in aid of execution. During the deposition, Dinter admitted that he and his wife, Martha, were the principal officers, directors and shareholders of Computer; that Computer could not pay the judgment; and that Computer's assets had been transferred to a new corporation, System H.D. Corporation, in which Dinter and his wife were the principal officers, directors and shareholders. In 1979, Brewer sued the Dinters for fraud on a judgment creditor.

The trial was without a jury. Mr. Dinter did not appear at trial despite Brewer's efforts to procure his attendance. Martha Dinter did appear. Heinz Dinter's deposition taken in aid of execution was offered in evidence to show that the Dinters wrongfully drained corporate assets with the intent to defraud Computer's creditors. The trial court admitted the deposition against Heinz, but excluded its use against Martha. At the conclusion of the trial, the court entered a money judgment against the Dinters, but thereafter vacated the judgment against Martha. Heinz Dinter's appeal challenges the ruling of the trial court admitting his deposition and, independently, the sufficiency of the evidence against him. Brewer's cross-appeal asserts that the trial court erred in vacating the judgment against Martha.

Our analysis of Dinter's first point begins with the proposition that Heinz Dinter's deposition, being "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted," is hearsay. § 90.801(1)(c), Fla.Stat. (1979). As such, unless it falls within some exception to the rule excluding hearsay, it is not entitled to admission despite its relevancy. § 90.802, Fla.Stat. (1979); State Farm Mutual Automobile Insurance Co. v. Ganz, 119 So.2d 319 (Fla.3d DCA 1960) ("The general rule which bars the admission of evidence falling within the definition of hearsay is so firmly established and so well known that the citation of authority affirming the general principle seems hardly warranted." Id. at 321); see generally McCormick On Evidence 579-84 (E. Cleary ed. 2d ed.1972) ("It was in the first decade after the restoration that the century or so of criticism of hearsay had its final effect in decisions reflecting its use, first as to oral hearsay and then as to depositions." Id. at 580).

Dinter tells us because his deposition does not come within the exceptions to the rule excluding hearsay found in the rules of civil procedure in that (1) he was not a party in the proceeding in aid of execution against Computer, see Fla.R.Civ.P. 1.330(a)(2); and (2) the action for fraud in which the deposition was offered was independent of, rather than supplementary to, the action for damages in which the deposition was taken, cf. Hanisch v. Wilder, 210 So.2d 491 (Fla.3d DCA 1968), his deposition was ipso facto inadmissible. In our view, Dinter's argument completely misses the mark.

Exceptions to the rule excluding depositions as hearsay are found not only in the rules of civil procedure, but in the rules of evidence. While it is true that when considering the admissibility of a deposition we are conditioned to look to Florida Rule of Civil Procedure 1.330, that rule merely supplies certain exceptions to the rule excluding hearsay, that is, when the deposition is to be used in the action for which it was taken, or in a proceeding supplemental to, or a retrial of, that action. ¹ But when the deposition does not come within the exception provided in the civil procedure rule, we must turn to the rules of evidence in our search for an exception. These latter rules "expand the admissibility of depositions taken in the action and in prior actions, but do not limit admissibility as provided for [in the rule of civil procedure]." J. Moore & H. Bendix, 4A Moore's Federal Practice p 32.02 (1976). This "cumulative" relationship between the rules of evidence and the rule of civil procedure which deals with the admissibility of depositions, see 4A Moore's, supra at p 32.08 is explained by Professor Moore in his discussion of the counterpart federal rules: ²

"Rule 804(b)(1) must be read in conjunction with the rules dealing with the admissibility of depositions in civil and criminal proceedings. Rule 32(a)(3) of the Federal Rules of Civil Procedure governs the admissibility of a deposition in the same proceeding in which it was taken. The definition of unavailability is broader in Rule 32(a)(3) [Fla.R.Civ.P. 1.330] than it is in Rule 804(a) of the Federal Rules of Evidence [§ 90.804(a), Fla.Stat.].... The effect of these provisions is to create exceptions to the hearsay rule independent of Rule 804(b)(1). Hearsay which would not be admissible under 804(b)(1) will still qualify for admission if it satisfies these provisions. This is the effect of Rule 802 of the Federal Rules of Evidence [§ 90.802, Fla.Stat., 'Except as provided by statute, hearsay evidence is inadmissible.']. As a practical matter the primary impact of Federal Rule 804(b)(1), with respect to depositions, is only in those cases where the deposition was taken in a proceeding different from the one in which it is being offered as evidence." 11 Moore's, supra at VIII-262.

Thus, the admissibility of Dinter's prior deposition testimony does not, as he contends, depend solely on the rules of civil procedure. It matters not whether Dinter's deposition was taken as a witness or a party, that he had or had not some affiliation with Computer, that the action in which the deposition was introduced was independent of or supplementary to the action in which it was taken, that Dinter was available or unavailable to personally testify, or, indeed, that Dinter's prior statements concerning his complicity in the transfer of Computer's assets to System were in the form of a deposition or, for that matter, even sworn.

"The admissibility of an admission made by the party himself rests not upon any notion that the circumstances in which it was made furnish the trier means of evaluating it fairly, but upon the adversary theory of litigation. A party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of an oath." Morgan, Basic Problems of Evidence 266 (1962), cited in McCormick On Evidence 628-29 (E. Cleary ed. 2d ed.1972).

The admissibility of Dinter's deposition statements, then, rests on the singular fact that the statements were made by him. ³ Simply stated, the applicable rule of evidence, Section 90.803, Florida Statutes (1981), provides:

"The provision of s. 90.802 [except as provided by statute, hearsay evidence is inadmissible] to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness:

....

"(18) ADMISSIONS.--A statement that is offered against a party and is:

"(a) His own statement in either an individual or a representative capacity." (emphasis added).

Having concluded that...