HARRY B. SMITH AND ROBERT LEVY, ETC., APPELLANTS,
v.
PHYLLIS SILBERMAN, APPELLEE
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The estate of a decedent appeals an order finding the deceased made an inter vivos gift of bonds to his wife. The Florida appellate court reverses, holding that a successor judge who takes over a case must hear all evidence on the disputed issue, not just the previously excluded testimony that the appellate court had directed be admitted.
A successor judge may not weigh and compare evidence heard before a prior judge and, absent stipulation, must hear all evidence before entering judgment. The successor judge was required to hear both the widow's testimony and the estate's evidence to properly assess credibility and weight the testimony on the gift issue.
[1] A successor judge may not weigh and compare evidence heard before a prior judge absent a stipulation between the parties.
[2] Absent a stipulation, a successor judge who does not hear all the evidence may not enter a judgment.
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Join FLexlaw to unlock all legal intelligence“Absent a stipulation between the parties, a successor judge who does not hear all the evidence may not enter a judgment.”
Establishes the fundamental rule that a successor judge must hear all evidence when no stipulation exists between parties.
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Join FLexlaw to unlock all legal intelligenceA decedent allegedly gave his wife two $100,000 bonds as a gift during a dinner conversation. The original trial judge excluded the widow's testimony …
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PER CURIAM.
The decedent’s estate appeals an order finding the deceased made an inter vivos gift to his wife. We reverse.
In Smith v. Silberman, 557 So. 2d 78 (Fla. 3d DCA 1990), this court reversed the original judgment in this ease with directions that the trial court admit the widow’s previously excluded testimony regarding a dinner conversation during which her husband allegedly presented her with a gift of two $100,000 bonds. Upon remand, the original trial judge recused himself. The successor judge considered the record but heard only the widow’s oral testimony. Thus, evidence which refuted the widow’s statement was restricted to that contained in the record of the prior proceedings before the original judge. The successor judge held the bonds to have been a gift.
On appeal, the estate claims it was error for the successor judge to limit the estate’s evidence to that already contained in the record made before the original judge while permitting the widow to testify. The widow counters that the successor trial judge complied with this court’s mandate which required him to hear only her previously excluded testimony.
The general rule is that a successor judge may not weigh and compare evidence heard before a prior judge. Absent a stipulation between the parties, a successor judge who does not hear all the evidence may not enter a judgment. E.g., Reaves v. Reaves, 546 So. 2d 744 (Fla. 2d DCA 1989); Tompkins Land and Housing, Inc. v. White, 431 So. 2d 259, 260 (Fla. 2d DCA 1983). In this case, the parties made no stipulations as to the evidence. Thus, the successor judge was required to hear all evidence on the gift issue for himself.
The prior directions and mandate of this court were directed to the original trial judge since he had heard and credited all of the testimony except that of the surviving wife. When the successor judge became responsible for the completion of the case, it required that he not only hear and evaluate the surviving wife’s testimony, but the estate’s evidence as well which, when properly evaluated, might change the result. The successor judge necessarily had to hear and evaluate all of this testimony directed to the issue of the gift in order to perform the quintessence of the function of a trier of fact in assessing not only the credibility of the testimony but the weight which it was accorded. The successor judge’s failure to hear the estate’s proffered evidence was therefore reversible error. Accordingly, we reverse and remand for further proceedings consistent with this opinion.
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State v. Balezos, 765 So. 2d 819 (Fla. 4th DCA 2000)…ike Happ, the original trial judge made a factual finding, as suggested by Kennedy, that the prosecutor’s intent was not to create a mistrial. A successor judge may not reweigh and compare evidence heard before a prior judge. See Smith v. Silberman, 586 So. 2d 467, 468 (Fla. 3d DCA 1991); State v. Garcia, 422 So. 2d 926, 927 (Fla. 3d DCA 1982). Without further evidence and testimony from which the successor judge could make a contrary conclusion, the successor judge erred in granting the motion to dismiss on…
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Punales v. Punales, 846 So. 2d 607 (Fla. 4th DCA 2003)…ased upon evidence heard by the predecessor.” Beattie v. Beattie, 536 So. 2d 1078, 1079 (Fla. 4th DCA 1988) (citations omitted). A stipulation between the parties allowing the successor judge to act may overcome this presumption. Smith v. Silberman, 586 So. 2d 467, 468 (Fla. 3d DCA 1991) (citations omitted). Furthermore, even if a proposed judgment were prepared by the predecessor judge, the successor judge could not sign and enter the judgment without hearing the evidence. Hartney v. Piedmont Tech., Inc., 81…
Authorities Cited
- Tompkins Land & Hous., Inc. v. Terryceia Vann White, 431 So. 2d 259 (Fla. 2d DCA 1983)
- Reaves v. Reaves, 546 So. 2d 744 (Fla. 2d DCA 1989)
- Smith v. Silberman, 557 So. 2d 78 (Fla. 3d DCA 1990)