Polk v. Crittenden, 88-633
Decision Date | 12 January 1989 |
Docket Number | No. 88-633,88-633 |
Citation | 14 Fla. L. Weekly 178,537 So.2d 156 |
Parties | 14 Fla. L. Weekly 178 Mary Palmer POLK, et al., Appellants, v. Earl M. CRITTENDEN, Appellee. |
Court | Florida District Court of Appeals |
Walter S. McLin, III, of McLin, Burnsed, Morrison & Johnson, P.A., Leesburg, for appellants.
Michelle T. Morley, of Cauthen, Robuck, Hennings, Milton, Oldham & Cox, P.A., Tavares, for appellee.
Mary Palmer Polk and William F. Polk (personal representatives of William F. Polk, Sr.) appeal from a final summary judgment entered against them which held that appellee, Earl Crittenden, was not personally liable on a mortgage note, and which cancelled a mortgage deed. The Polks were ordered to release Crittenden from any further obligations under a mortgage and Crittenden was ordered to tender title of the mortgaged property to the Polks within 30 days. The basis for the trial court's ruling was its conclusion that there existed between Polk Sr. and Crittenden an oral agreement to reconvey the mortgaged fee in the event a freeze occurred that damaged an orange grove on the property. However, there was no written evidence of this agreement, and it contradicted the absolute and plain terms of the mortgage deed and note executed by Crittenden. The trial court also ruled that proof of the oral agreement was not barred by the parol evidence rule, nor the Dead Man's Statute. § 90.602, Fla.Stat. (1985). We reverse.
The record in this case establishes that Crittenden entered into a contract to purchase a 25 acre citrus grove in Lake County, Florida, from Polk Sr. for $375,000. A closing took place in 1982, at which time Polk Sr. executed a mortgage deed to Crittenden. Pursuant to the terms of the purchase money mortgage (which was consistent with the contract), Crittenden was to pay Polk Sr. an annual payment of $22,666.68 on December 1st of each year for seven years (plus interest at 12% per annum), and on the eighth year, pay the remaining principal balance in full. Crittenden signed the note and mortgage in his individual capacity, without any conditions or limitations. The contract also provided that no other representations or agreements were binding unless incorporated into the contract.
The first annual payment was apparently made. But in December of 1983, a devastating freeze damaged the grove. Crittenden requested Polk Sr. to defer the 1983 principal payment to the end of the balloon mortgage and extend the balloon one additional year. Polk Sr. agreed and accepted a reduced interest payment of $15,000.
In January, 1985, another severe freeze occurred, which killed the remaining citrus trees in the grove. Crittenden again requested a reduced payment. However, Polk Sr. was then dead, and his personal representatives denied Crittenden's request. Crittenden paid the full amount due for 1985.
In 1986 when payment was due on the mortgage, Crittenden filed suit seeking to enforce an alleged oral agreement with Polk Sr. He tendered the payment for 1986 into the registry of the court. He sought to prove through affidavits and his own deposition, that at some time prior to the closing or contemporaneously with it, he and Polk Sr. agreed that Crittenden would not be personally liable on the mortgage note, and that Polk would look only to the property to satisfy the mortgage debt. Further, it was alleged they also agreed that if the grove was destroyed by a freeze, Polk would forgive the mortgage debt and Crittenden would reconvey the fee to Polk.
Polk's personal representatives counterclaimed on the note. They also served Crittenden with a request for admissions. One key request was that required Crittenden admit or deny that his sole proof of the claimed agreement was an oral communication between himself and Polk Sr., and that Polk is now deceased. Crittenden denied this request. He also refused to admit that any part of the claimed agreement was in writing.
In an effort to discover the basis for Crittenden's suit, the personal representatives took Crittenden's deposition. It revealed the substance of Crittenden's oral agreement with Polk as described above. It also established that the agreement was solely oral, between Polk Sr. and Crittenden alone, and could only be established by Crittenden's testimony.
Both parties filed motions for summary judgment. Crittenden filed his own affidavits to establish the oral agreement. He also filed an affidavit of Byron Dean, the realtor in the 1982 grove sale. Dean could only corroborate that in 1982 Crittenden negotiated with Polk Sr. for a non-recourse deal, but he did not know whether this was put in writing, and he could not say of his own knowledge that Polk agreed to it.
Polk's personal representatives supported their motion for summary judgment with Crittenden's deposition. In the motion they specifically reference the lines in the deposition where Crittenden admitted the agreement was oral and that it was provable solely by communications between himself and Polk Sr., heard only by himself. They filed Crittenden's deposition with their summary judgment motion.
The first hurdle Crittenden must clear in this case is avoiding the application of the Dead Man's Statute, section 90.602, which would have barred oral testimony concerning Polk Sr.'s collateral agreement. The statute which codifies this ancient rule of evidence in Florida provides (in pertinent part) (1) No person interested in an action or proceeding against the personal representative ... of a deceased person ... shall be examined as a witness regarding any oral communication between the interested person and the person who is deceased ... at the time of the examination.
(2) This section does not apply when:
* * *
* * *
(b) Evidence of the subject matter of the oral communication is offered by the personal representative ... of a deceased person ...
§ 90.602. Both parties agree that the Dead Man's Statute should have barred Crittenden's testimony or affidavits unless Polk's personal representatives waived its application by filing Crittenden's deposition in connection with their motion for summary judgment.
Perhaps because the Dead Man's Statute has in many cases served to bar relevant testimony and thereby has thwarted the full hearing of a matter, the courts have seized upon the waiver provisions of the statute and have given it a broad interpretation. For example, if the personal representative waives the statute in one phase of the litigation, it is deemed waived for the remainder. Briscoe v. Florida National Bank of Miami, 394 So.2d 492 (Fla. 3d DCA 1981); Boling v. Barnes, 216 So.2d 804 (Fla. 2d DCA 1968), cert. discharged, 225 So.2d 510 (Fla.1969). A more difficult question, presented in this case, is the extent of the waiver where a deposition of the barred witness is not only taken, but filed in the proceeding.
In re Estate of Bechtel, 348 So.2d 927 (Fla. 2d DCA 1977), cert. denied, 360 So.2d 1247 and 360 So.2d 1249 (Fla.1978), and Boling, the Second District held that a barred proof introduced by way of an affidavit or deposition by the party who has the right to bar the proof, or without objection by the opposing party in one phase of the proceeding, waives the statute as to a repeat of the same testimony in a later stage of the proceeding. In both cases, the courts were concerned with a repeat of the same proofs which had been admitted earlier. They did not consider whether filing a deposition waives the statute as to all matters contained therein, although admittedly the language used in those cases is broad enough to support such a view.
However, this issue was addressed in Bordacs v. Kimmel, 139 So.2d 506 (Fla. 3d DCA 1962) and In re Estate of McCoy, 445 So.2d 680 (Fla. 2d DCA 1984). In McCoy, the appellate court reversed a directed verdict against an incompetent's guardian. The attorney for the guardian deposed the interested parties under the statute whose testimony would be barred by section 90.602. Portions of the depositions established the incompetent's case to set aside a deed: lack of consideration and a close, fiduciary relationship. In another part of the deposition, the potentially barred witnesses said the incompetent told them she wanted the grantee of the challenged deed to be her heir. In remanding for trial, the court said that if the attorney for the guardian used any part of the deposition, she would waive any objection to the other matters covered in the deposition. Similarly, in Bordacs, the court held that use of a deposition filed to support a motion for summary judgment waived the bar of section 90.602 for all the matters covered in the deposition, at the final hearing.
It appears to us that the indiscriminate waiver approach adopted by Bordacs and McCoy is not soundly based on either the language of section 90.602 nor precedent. The McCoy court expressly stated it relied upon Herring v. Eiland, 81 So.2d 645 (Fla.1955). Herring reviewed prior Florida precedents and concluded, primarily on principles of basic fairness, that a personal representative could not call and examine a barred witness and use only the favorable matters elicited, without waiving the bar as to "all the facts regarding the transaction." Id. at 648. Use of barred evidence makes admissible "all germane and relevant" evidence to support the opposing party's position.
In this case, the deposition of Crittenden was used by the personal representatives for the sole purpose of establishing that...
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