LEONARD A. VERSLUIS, APPELLANT,
v.
RICHARD B. WIGGINS: RAY QUALMANN: BARNETT BANKS TRUST COMPANY, N. A., A CORPORATION, PERSONAL REPRESENTATIVE OF THE ESTATE OF ROY C. KELLEY, DECEASED; INDIVIDUALLY AND AS TRUSTEES OF THE WIGGINS-QUALMANN-KELLEY TRUST; AND THE WIGGINS-QUALMANN-KELLEY TRUST, A TRUST, APPELLEES
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Plaintiff appealed a trial court judgment denying his complaint seeking rescission of an alleged oral contract to transfer a condominium project to a trust in exchange for personal liability protection and repayment of his investment. The Fourth District affirmed the judgment, finding no error in the trial court's application of the dead-man statute to exclude certain testimony from the plaintiff.
The trial court properly applied the dead-man statute to exclude evidence of conversations between plaintiff and the deceased Kelley where they were the sole participants. The statute does not become inapplicable merely because other parties to the underlying oral contract remained alive; rather, the exclusion applies only to communications between the plaintiff and decedent alone.
[1] The Dead Man's Statute applies to exclude testimony regarding conversations between a party and a deceased individual, even if other parties to the same contract remain a…
[2] A trial court may exclude testimony about conversations between a party and a decedent if the party and the decedent were the sole participants in those conversations.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The trial court only precluded the conversations to which the plaintiff and the decedent were the sole participants. Plaintiff was allowed to present evidence as to his conversations with the decedent so long as one other person was shown to be present during these conversations.”
Establishes the proper scope of the dead-man statute exclusion—it applies only to private conversations between the living party and deceased, not conversations with third-party witnesses present.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePlaintiff Leonard Versluis transferred a partially completed condominium project and real estate to a trust composed of three individuals: Richard Wig…
The full statement of facts, procedural history, and disposition for this case are member content.
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BERANEK, Judge.
Plaintiff appeals a final judgment denying his complaint which sought recision of an alleged oral contract. The complaint generally alleged that plaintiff transferred a partially completed condominium project including real estate to a trust composed of three individuals in return for promises that he would be held personally harmless from debts arising from the project and be repaid his investment. Plaintiff sued Mr. Wiggins, Mr. Qualmann and the personal representative of the estate of Mr. Kelley who died in 1975. Plaintiff alleged oral promises and breaches by the three defendants. The trial court found against plaintiff on numerous substantive grounds and chose to reject and disbelieve the evidence in support of certain key allegations. Conflicting evidence was presented and no error has been made to appear in this regard.
We affirm and in doing so comment only upon the appellant’s arguments as to an evidentiary point relating to the dead-man statute.
The trial court applied Section 90.05, Florida Statutes (1975), in excluding evidence as to conversations between plaintiff and Mr. Kelley who died before suit was filed. Plaintiff asserts Taylor v. Cory, 53 So. 2d 820 (Fla.1951) and Palm Beach Estates v. Croker, 106 Fla. 617, 143 So. 792 (1932) require a different ruling. Plaintiff basically argues that where any two parties to an oral contract remain alive that the dead-man statute is inapplicable to any conversations with a deceased party to that contract. We disagree. Here the trial court only precluded the conversations to which the plaintiff and the decedent were the sole participants. Plaintiff was allowed to present evidence as to his conversations with the decedent so long as one other person was shown to be present during these conversations. We view the above-cited Supreme Court opinions as consistent with the trial court’s ruling which excluded only the evidence as to conversations between plaintiff and the decedent alone. Also see Rosenberg v. Boston Corporation, 310 So. 2d 40 (Fla. 4th DCA 1975). The trial court correctly excluded the evidence in question and no other error has been made to appear. The final judgment below is thus affirmed.
AFFIRM.
MOORE and GLICKSTEIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Camodeca v. Camodeca, 464 So. 2d 662 (Fla. 2d DCA 1985)…en an interested party and the decedent. Cf. Munroe v. Carroll, 80 Fla. 206, 86 So. 193 (1920) (plaintiffs sought to establish that deed was not an absolute conveyance of land but was a mortgage to secure the payment of a debt); Versluis v. Wiggins, 405 So. 2d 264 (Fla. 4th DCA 1981) (plaintiff sought recission of an alleged oral [*664] contract). We have searched the record and have not found any other clear and convincing evidence to support the imposition of a constructive trust. Therefore, we must reverse…
Authorities Cited
- Palm Beach Ests. v. Bula E. Croker, 106 Fla. 617 (Fla. 1932)
- Rowe v. State, 310 So. 2d 40 (Fla. 2d DCA 1975)