Lesperance v. Lesperance

• Citation: 233 So.2d 859
• Decision Date: 24 March 1970
• Docket Number: No. 69--446,69--446
• Parties: Loretta LESPERANCE, Appellant, v. Don E. LESPERANCE, Appellee.
• Court: Court of Appeal of Florida (US)

Page 859

233 So.2d 859

Loretta LESPERANCE, Appellant, v. Don E. LESPERANCE, Appellee.

No. 69--446.

District Court of Appeal of Florida, Third District.

March 24, 1970.

Rehearing Denied May 4, 1970.

Lurie & Goethel, Miami, for appellant.

Street & Greenfield, Miami, for appellee.

Before PEARSON, C.J., and BARKDULL and SWANN, JJ.

PER CURIAM.

This is an appeal from a judgment entered after a non-jury trial in which the trial judge found that the defendant was guilty of 'fraud, deceit, overreaching and undue influence in gaining possession of plaintiff's property without consideration. * * *' The basis of the appeal is that the court failed to apply the law of the rescission of contracts. Appellant holds that law to be controlling upon the facts of this case. In the alternative appellant argues that if the case is one of fraud, then fraud was not proven by clear and convincing evidence.

Our review of the record convinces us that the trial judge correctly found that the law applicable to this case is set out in Adams v. Saunders, 139 Fla. 730, 191 So. 312 (1939), and Rich v. Hallman, 106 Fla. 348, 143 So. 292 (1932). In the latter case the Supreme Court of Florida held:

'In view of the age and infirmity of the donor, the confidential relation existing between the donor and the donee, the influence shown to have been exerted over the donor by the friends of the donee and by the donee herself, and in view of other facts and circumstances peculiar to this case, we feel impelled to hold that the duty was on the donee to show that the assignment of the note and mortgage brought in question was bona fide and that it was not secured by undue influence, deceit, or other improper means. Peacock v. DuBois, 90 Fla. 162, 105 So. 321; Nelson v. Brown, 164 Ala. 397, 51 So. 360, 137 Am.St.Rep. 61; Haslinger v. Gabel, 344 Ill. 354, 176 N.E. 340; Allore v. Jewell, 94 U.S. 506--513, 24 L.Ed. 260, pages 263, 264; 12 R.C.L. 972; Black on Rescission and Cancellation, §§ 249 and 253.

'All these authorities support the general rule founded on public policy that, where a mutual confidential relation exists and a gift is made to one in whom the confidence is reposed, it is prima facie void because of such relation. The law presumes, in other words, when such relation exists, that the gift was obtained by undue influence or other improper means. When persons occupy positions of trust and confidence as did the parties to this cause, they are held to a strict measure of...