Hodges v. Surratt
| Decision Date | 13 December 1978 |
| Docket Number | No. 77-1745,77-1745 |
| Citation | 366 So.2d 768 |
| Parties | Raymond H. HODGES, as Personal Representative of the Estate of Charles Albert Giramaire, Deceased, Appellant, v. Rachael B. SURRATT, Samuel Walter Surratt, Jr., and Flagship Bank of Zephyrhills, Appellees. |
| Court | Florida District Court of Appeals |
Jerry A. DeVane of DeVane & Allen, Lakeland, for appellant.
H. Clyde Hobby of McClain & Hobby, Dade City, for appellees Surratts.
Tom Ross of Sumner, Tyner, Williams, McKnight & Ross, Dade City, for appellee Flagship Bank of Zephyrhills.
The personal representative of the Estate of Charles A. Giramaire brought an action against Mr. and Mrs. Surratt jointly for fraud, undue influence, conversion and imposition of a constructive trust. The action was brought against Mrs. Surratt individually for breach of fiduciary duty and to void or set aside the various transfers of real and personal property that resulted therefrom. In due course, the case came on for trial by jury. At the conclusion of the plaintiff's case, the lower court granted Mr. Surratt's motion for directed verdict and ultimately entered a final judgment in his behalf. The case against Mrs. Surratt was submitted to the jury and resulted in the return of the following special verdict:
(1) Do you find from the greater weight of the evidence that the Defendant, Rachael B. Surratt, exerted undue influence on (Giramaire) in order to obtain the signature of (Giramaire) on the Bank Account Signature Card? Yes.
(2) Do you find from the greater weight of the evidence that the only purpose for which (Giramaire) signed the Bank Account Signature Card was to permit the Defendant, (Mrs. Surratt) to pay the bills of (Giramaire)? Yes.
(3) If you have answered yes to either (1) or (2) above, do you find from the greater weight of the evidence that any of such acts of (Mrs. Surratt) caused any damage to the plaintiff? Yes.
The jury also awarded $25,000 damages against Mrs. Surratt.
The lower court ultimately entered judgment for Mrs. Surratt notwithstanding the above verdict.
We reverse and set aside the judgment of the lower court in favor of Mr. Surratt and Mrs. Surratt. We reinstate the jury verdict against Mrs. Surratt. In addition, we reverse the directed verdict entered in favor of Mr. Surratt. We find no error in the summary judgment entered before trial in favor of Flagship Bank of Zephyrhills.
The facts of the case are as follows. Mr. and Mrs. Surratt, appellees, were neighbors of Mr. Giramaire. According to their testimony, Mr. Giramaire executed a will in 1971 that was prepared by Mrs. Surratt and executed on May 31, 1971 at a time when Giramaire's wife was still alive. A copy of this will was received into evidence. Paragraph 6 of the 1971 will provided:
In the event my wife, Vivian Gertrude Giramaire, (predeceases) me, then I hereby give, devise and bequeath to Rachael Britts Surratt and Samuel Walter Surratt, Jr. all my estate, whether real, personal or mixed, wheresoever located, of which I may die seized or possessed . . . .
Rachael Surratt was appointed as executrix of this 1971 will in the event Mrs. Giramaire was unable to serve for any reason. After Mrs. Giramaire's death, Mr. Giramaire consulted an attorney (appellant/Hodges) and a new will was prepared and executed on May 19, 1972. The 1972 will expressly revoked all prior wills. Mr. and Mrs. Surratt were not mentioned in this will and had no knowledge thereof until after Mr. Giramaire was hospitalized. Under the 1972 will the residue of the estate was left to the Bank of Pasco County, in trust, for the sight conservation work and other assistance to the blind by the Lions Club of Zephyrhills, Florida. In the 1972 will Hodges was appointed to be executor with a bank trust department named to be executor if Hodges could not serve.
Giramaire became ill and was taken to the hospital by another neighbor Mr. Sbraccia on November 19, 1975. At Mr. Giramaire's instance Mr. Sbraccia evaded the inquiry of the Surratts that evening as to the whereabouts of Mr. Giramaire. Upon learning that the Surratts had entered Mr. Giramaire's home Mr. Sbraccia decided to tell them of his hospitalization and did not want to be further involved. Once the Surratts learned of Giramaire's hospitalization they began to visit him with great frequency. Mr. Surratt testified that he was "there every day" and stated that his wife was at the hospital practically all of the time even more than he was.
On the day Mr. Sbraccia took Giramaire to the hospital he was given various personal effects, i. e., some papers, a billfold, checkbook and keys to the house and car. Giramaire requested that Sbraccia deliver all these items to his attorney, appellant/Hodges. Later, Sbraccia sought to return the items to Giramaire and extricate himself from further involvement due to his long-standing acquaintance with the Surratts. Mr. Giramaire tearfully prevailed on Mr. Sbraccia to deliver everything to his attorney, Mr. Hodges.
On the Saturday following Giramaire's hospitalization Mrs. Surratt called Hodges. Hodges was not at home. He eventually returned her call that evening. According to Hodges "(s)he told me that Mr. Giramaire was first of all she wanted to know if I had made a will for him told me he was in the hospital and not expected to live." Hodges promised to go to his office the next day (Sunday) and check on it. He did so, but could not find the will. He called Mrs. Surratt to tell her this. On Monday he found a copy of the will. He called Mrs. Surratt and told her that he had found a copy.
Mrs. Surratt's testimony on this point was at the very best forgetful. The following colloquy occurred:
Q. Did you also tell Mr. Hodges at this point that you understood he had prepared a will for (Giramaire)?
A. I told him I understood that he (Giramaire) had been to him to seek advice. I don't remember what I said about a will or what.
Counsel then referred to Mrs. Surratt's prior deposition testimony as follows Q. On page 11, line 23 (of the deposition) do you remember the following question and your answer
Q. And did you further tell him that Mr. Hodges had prepared a will for Mr. Giramaire.
A. I said I understood he had.
A. I probably did say that.
Sbraccia testified that Giramaire had asked him to go into his house and clean out the refrigerator. When Sbraccia did so, he found the refrigerator to have been already cleaned out. Mrs. Surratt testified that it was she who went into Giramaire's house and cleaned out his refrigerator. Although Mrs. Surratt testified that she did not find a copy of the 1972 will in Giramaire's house until after Giramaire's death, the record points strongly to a contrary conclusion. In further cross-examination of Mrs. Surratt, counsel once again made reference to her deposition:
Q. On page 13, line 21 do you recall the following question and answer
Q. And in this conversation . . . with Mr. Raymond Hodges at the time Mr. Giramaire was hospitalized, did you also tell Mr. Hodges that you believed he had prepared the will Because you had a copy ?
and your answer
A. Correct. (Emphasis supplied.)
Mr. Surratt's testimony on this point is also informative:
Q. (Y)ou say that this (the 1972 will) was found by Mrs. Surratt in the house, is that correct?
A. Yes, sir.
Q. And at what time was this?
A. I couldn't tell you the time.
Q. Was it during the period of time that Mr. Giramaire was in the hospital?
A. I presume it was but I couldn't tell you the time.
Mrs. Surratt testified that she could not remember whether or not she read the 1972 will when she found it. She testified that "I could not say whether . . . I read it or not." She also testified that "I couldn't swear that I did or didn't (read it)." In addition, Mr. Surratt stated that he "seen (sic) it . . . looked at it but . . . haven't ever read it."
The Surratts claimed an oral agreement was made with Giramaire on November 28, 1975 by which they were to receive all of his property in return for looking after him for the remainder of his life.
On the next day November 29 Giramaire signed two documents. The first document was a power of attorney. This document was totally handwritten on one lined sheet of stenographic pad paper and read as follows:
I hereby appoint Rachael B. Surratt with my power of attorney to act (with) full power (and) authority.
This document was notarized and the notary acknowledgment was typed. However, it is quite clear from the record that the document was notarized out of Giramaire's presence. Moreover, the nurse who witnessed the execution of the document specifically testified that the notary was not present for the execution of the document.
The second document executed on November 29 was a bank signature card. This was an authorization by the depositor for adding Mrs. Surratt as an additional authorized signatory to the account.
Both of these documents were witnessed by Dr. Brownlee and Nurse Parsons. Their testimony was quite clear that the power of attorney and bank signature card were executed at the same time and were given or signed only for the purpose of allowing Mrs. Surratt to pay current bills and handle the affairs of Giramaire while he was in the hospital not for the purpose of turning over all assets to the Surratts. As stated by Nurse Parsons:
Q. How did you come about to sign the power of attorney?
A. . . . Mrs. Surratt asked . . . if we would just witness her signature So she could pay his current bills while he was in the hospital and he wouldn't have to worry about his lights and water and so forth (being) shut off. (Emphasis supplied.)
Nurse Parsons also stated that:
Mrs. Surratt wanted to take care of his current affairs to relieve him of the responsibility and the worry while he was in the hospital.
On December 2, Mrs. Surratt utilized the power of attorney to convey to Mr. Surratt all of Giramaire's real and personal property the only...
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