by Glenn J. Waldman
The purpose of this article is to assist the probate litigation practitioner through the analytical maze that the “dead man’s” statute often presents, particularly during the pretrial phase of the case, and to propose certain changes to the statute and the Rules of Civil Procedure in order to effectuate the purposes of both while resolving a conflict between them. The statute, presently codified at F.S. §90.602(1), provides:
No person interested in an action or proceeding against the personal representative, heir at law, assignee, legatee, devisee, or survivor of a deceased person, or against the assignee, committee, or guardian of a mentally incompetent person, shall be examined as a witness regarding any oral communication between the interested person and the person who is deceased or mentally incompetent at the time of the examination.
The salutary purpose of the statute is to protect a decedent’s estate from false and fraudulent claims or defenses that are not independently corroborated by a writing or otherwise proved through a disinterested witness.1 It does so, generally, by prohibiting “interested persons”—be they plaintiffs or defendants—from testifying about oral communications between the interested person and the decedent.2
A plain reading of the statute is not particularly helpful in terms of weighing either the risks or rewards in embarking upon an examination of an interested witness regarding an oral, lifetime exchange with the decedent. While the statute is often viewed as a testimonial privilege of a decedent’s estate, it does not, in itself, give guidance to the estate’s attorney whether the prohibition applies in the discovery phase of the case (it is not waived merely by taking a deposition of an interested witness), or whether and how it should be raised, without waiving it, to support a summary judgment motion.
Exceptions, Waiver, and Summary Judgment Motions
Prior to assessing whether to utilize some, or all, preserved testimony of a decedent or of an interested person in the pursuit of an affirmative or defensive summary judgment, an attorney must first determine whether the statute applies to the particular case. The exceptions to application of the statute are wide-ranging:
• It does not apply to testimony by an interested person regarding written transactions or written communications with the decedent.3
• It does not apply to testimony regarding nonverbal conduct, such as execution, delivery, and negotiation of a contract.4
• It does not create immunity from testifying in favor of a personal representative or a devisee having knowledge of the alleged oral communication.5
• It does not apply to actions against corporations based on standard corporate arrangements made by a deceased corporate agent.6
• It does not apply to mixed actions against corporations and decedents’ estates where the action is said to be primarily one against the corporate entity for breach of an agreement.7
• It does not apply in tort actions.8
• It does not apply in federal question cases even where the forum state has such a statute.9
Even where it is determined to apply, as noted by the Fifth District Court in Polk v. Crittenden, 537 So. 2d 156 (Fla. 5th DCA 1989), a summary judgment motion in a dead man’s statute environment presents a particularly delicate issue, largely because of the specter of a waiver of its protection. In Polk, the court wrote, id. at 158, that:
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.
Typically, the interested person’s deposition is filed, as noted in Polk, in connection with a plaintiff’s opposition to a decedent’s estate’s motion for summary judgment, or for some other evidentiary purpose. Some courts have held that so long as a waiver of the statute at trial is possible, it is premature to preclude testimony and/or to dismiss actions upon summary judgment or otherwise. Wallace v. Gilbert, 250 So. 2d 14, 15 (Fla. 2d DCA 1971) (“The Deadman’s Statute can be waived.” “While anticipation of evidentiary problems which might arise at trial is admirable, counsel should have opportunity for argument and should in all events retain their rights to introduce admissible evidence.”).
Is it fair, though, to deny an estate its well-grounded summary judgment merely because its counsel may later waive it inadvertently?10 Recent appellate decisions, such as Bauerle v. Brush, 820 So. 2d 310, 314 (Fla. 5th DCA 2001), say “no” and have correctly held that “[w]here the inescapable inference from an interested party would show that the decedent agreed to a material term or condition which is missing from a written contract, the testimony would violate the Deadman’s Statute.” (additional citations omitted) Similarly, whether written, oral, or partially both, where writings and independent witnesses’ testimony may establish some, but not all, of the material terms of a contract with the decedent, the dead man’s statute applies to bar same. Tarr v. Cooper, 708 So. 2d 614 (Fla. 3d DCA 1998) (summary judgment against plaintiff was appropriate in action against deceased party based on oral contract where writings and independent witness established some, but not all, of the material terms);11 Fabian v. Ryan, 486 So. 2d 10 (Fla. 3d DCA 1986) (appellant’s proffered testimony concerning details of option to buy excludable under dead man’s statute where inescapable inference from testimony was that decedent made statements agreeing to terms and conditions of option).12
Consider, however, in moving for summary judgment, whether counsel for the movant/estate, itself, may file and rely upon the deposition of an interested person (perhaps, even the decedent)—without waiving the statutory protection—simply to demonstrate that the agreement was only oral, and only a deux? After all, wouldn’t that situation actually fulfill the intent of the statute? That conundrum was evaluated in Polk, 537 So. 2d at 159. There, it was correctly concluded that the mere use of an interested person’s deposition in such a context does not waive the dead man’s statute “for all purposes as to all matters contained in the deposition.” Id. To hold otherwise would render “summary judgment proceedings a virtual impossibility for parties to whom §90.602 is available as a bar or defense.” Id.13 Ironically, though, where the decedent was deposed during the course of the case, it may be argued against the estate that a conflict between the statute and procedural rules, namely Fla. R. Civ. P. 1.330(a)(3)(A), renders F.S. §90.602(1) not operative.
The Dead Man’s Deposition
Obviously, the dead man’s statutory analysis does complicate where the decedent was deposed during the pendency of the action (and, obviously, before substitution of the estate pursuant to Fla. R. Civ. P. 1.260(a))—whether then a party to the action or not. Rule 1.330(a)(3)(A) of the Florida Rules of Civil Procedure provides, in pertinent part, that:
(a) At the trial or upon the hearing of a motion or an interlocutory proceeding, any party who was present or represented at the taking of the deposition or who had reasonable notice of it so far as admissible under the rules of evidence applied as though the witness were then present and testifying in accordance with any of the following provisions:
(A) that the witness is dead. (emphasis supplied)
Does the circumstance of the decedent having been deposed allow an interested person to affirmatively use the deposition against the decedent’s estate following the death of the decedent—and wouldn’t such allowance entirely vitiate the dead man’s statute? Surprisingly, almost 30 years ago the Third District Court in Cohen v. Glickman, 300 So. 2d 318 (Fla. 3d DCA 1974), answered the former question in the affirmative. In that case, the plaintiff, Mr. Cohen, sued the defendant, Lillian Glickman, and her company. Prior to Ms. Glickman’s death, her deposition was taken by Mr. Cohen’s attorney. At the jury trial, after substitution of Ms. Glickman’s estate as the defendant, Mr. Cohen testified as to the agreement he entered into with Ms. Glickman, and Mr. Cohen’s attorney also read the deposition of Ms. Glickman to the jury. The estate of Glickman, apparently implementing a bold strategy, introduced no evidence and moved for judgment notwithstanding the jury’s verdict. The trial judge entered a final judgment directing a verdict in favor of the estate of Glickman, finding that Mr. Cohen was completely disqualified and barred from tendering any evidence as to the underlying transaction by virtue of the dead man’s statute. Id. at 319. The Third District Court reversed, concluding that, in part, the deposition testimony of Ms. Glickman was admissible at the trial based on Rule 1.330(a)(3)(A).14 What’s more, because the decedent had been deposed, Mr. Cohen was, surprisingly, free to testify about the verbal exchanges with the decedent underpinning the agreement under the theory that the decedent “had her chance” to testify about it.
Judge Pearson dissented in Glickman, as he did 12 years earlier in Bordacs v. Kimmel, 139 So. 2d 506 (Fla. 3d DCA 1962), and sharply criticized such reasoning:
I do not think that RCP 1.330(a)(3) has the effect of abolishing the Dead Man’s Statute (§90.05, Fla. Stat.) in every case where the deposition of the deceased defendant has been taken by the plaintiff introducing the deposition into evidence. A pretrial deposition by an opponent often covers only so much of the case as the opponent wishes, and unless the deposition admits the cause of action the plaintiff ought not be able to use it to defeat the statute. The matter should rest on the question of whether the defendant has waived the statute.
Glickman, 300 So. 2d 318 (Fla. 3d DCA 1974).
Judge Pearson’s dissent is persuasive. Simply because a decedent was deposed, the dead man’s statute should not be involuntarily trampled under the weight of a decedent’s deposition hoisted onto the back of Rule 1.330.15 Left unresolved (decades have passed since Judge Pearson’s dissents in Bordacs and Glickman), in virtually every commercial case involving alleged oral agreements where a lawyer’s client is deposed, the lawyer must anticipate the possible death of the client before a summary judgment hearing or trial, and engage in a comprehensive and awkward cross-examination of the client. This serves not only to add time and expense to the discovery process, but also steals away other tactical advantages in not having to prematurely expose the client’s entire testimony—particularly in those cases where the direct examination of the client by opposing counsel was cursory or incomplete. Thus, Rule 1.330 and the dead man’s statute should be bilaterally amended to avoid this unfair and undesirable result.
Solving the conflict between Rule 1.330(a)(3)(A) and F.S. §90.602(1) does not require dramatic changes to either. For purposes of the rule, the addition of the phrase “except to the extent otherwise inadmissible or precluded by §90.602(1), Fla. Stat.” should suffice. For purposes of the dead man’s statute, F.S. §90.602(2) should add a subparagraph (c), and should provide:
The deposition of an interested person, including the decedent, whether or not a party at the time of the deposition, may be used in an action or proceeding against the personal representative, heir at law, assignee, legatee, devisee, or survivor of a deceased person, or against the assignee, committee, or guardian of a mentally incompetent person in order to demonstrate that the oral communication is inadmissible or precluded by §90.602(1), Fla. Stat.
In adopting these amendments, the “trap for the unwary” that has marked the path of the dead man’s statute, in some meaningful measure, will be easier to navigate by the probate litigation practitioner while fulfilling the intent of the statute. q
1 Moneyhun v. Vital Industries, Inc., 611 So. 2d 1316, 1320 (Fla. 1st D.C.A. 1993) (“The statute is intended ‘to protect the estate of a decedent against false and fraudulent claims.’ Charles W. Ehrhardt, Fla. Evid. §602.1, at 312 (1992 ed.)”); Day v. Stickle, 113 So. 2d 559, 560 (Fla. 3d D.C.A. 1959) (“Historically speaking, parties and interested persons as witnesses on their own behalf were disqualified from giving testimony because persons having their own behalf were disqualified from cause are of a class especially likely to speak falsely.” (footnote omitted)); Jackson v. Parker, 153 Fla. 622, 630, 15 So. 2d 451, 456 (1943) (“The honest rights of the living are sacrificed in a vain effort to protect a dead man’s estate from false claims.”); Gay v. McCaughan, 272 F.2d 160, 163 (5th Cir. 1960) (“Of course, the purpose of the statute is to prevent any person who might directly benefit from such testimony from giving testimony as to transactions with the deceased.”); and Miller, Will Formality, Judicial Formalism, and Legislative Reform: An Examination of the New Uniform Probate Code “Harmless Error” Rule and the Movement Toward Amorphism, 43 Fla. L. Rev. 167, 246 (April 1991) (“Similarly, the dead man statutes are premised upon the notion that decedents’ intentions with respect to their lifetime transactions are peculiarly unsusceptible to reliable proof, because decedents cannot speak for themselves and the testimony of witnesses is likely to be colored by self-interest.”) (footnote omitted).
2 See Farrington v. Richardson, 153 Fla. 907, 911, 16 So. 2d 158, 160–61 (1944) (“To be excluded from testifying by reason of interest in the event of the action or proceeding, under this statute, the witness must be so interested in the result of the suit that he will gain or lose directly or immediately thereby; or the testimony to be given must be such that the record in the suit may be used as legal evidence for or against the witness in some action to prove or disprove the matters testified about him.” “The disqualifying interest must be present, certain, and vested; not uncertain, remote or contingent.”); and Pollock v. Kelly, 125 So. 2d 109, 113 (Fla. 1st D.C.A. 1960) (same).
It remains to be seen whether nonparties may be deemed “interested.” It is noteworthy that the statute refers specifically to “an” action, not “the” action. Thus, it is possible that, when parsing the words of the statute, a nonparty may be “interested” where the nonparty is involved as a party in companion or related litigation, or where the nonparty holds another status adverse to the estate.; compare Fla. Stat. §731.201(21) (“Interested person means . . . as it relates to particular persons, may vary from time to time and must be determined according to the particular purpose of, and matter involved in, any proceedings.”); Fla. Stat. §733.602(1) (“A personal representative shall use the authority conferred upon him or her . . . for the best interests of interested persons, including creditors.”); and In re The Estate of Anna K. Read, 766 So. 2d 393, 394 (Fla. 2d D.C.A. 2000) (“any creditor . . . is, of course, free to provide self-protection by opening the estate itself as an ‘interested person.’”).
3 Sun Bank/Miami, N.A. v. Saewitz, 579 So. 2d 255, 256 (Fla. 3d D.C.A. 1991), citing Hulsh v. Hulsh, 431 So. 2d 658 (Fla. 3d D.C.A. 1983). In Saewitz, though, Judge Wilkie Ferguson dissented, arguing that when such testimony concerning a writing is offered to supply missing material terms in order to establish a “meeting-of-the-minds,” it violates the dead man’s statute. Id. at 259.
4 Bauerle v. Brush, 820 So. 2d 310, 314 (Fla. 5th D.C.A. 2001).
5 Parson v. Hendley, 416 So. 2d 513 (Fla. 4th D.C.A. 1982), citing In re: Estate of McClintock, 374 So. 2d 93 (Fla. 2d D.C.A. 1979).
6 There is a paucity of Florida cases on this exception. These few decisions—e.g., Viscito v. Fred S. Carbon Co., Inc., 636 So. 2d 194 (Fla. 4th D.C.A. 1994) (plaintiffs/appellants who brought no action against decedent or his estate sought to introduce testimony of a deceased corporate officer’s conversations concerning oral agreement involving a standard distributorship arrangement; Fourth District Court declined to extend the dead man’s statute to the action against only a corporation where action was “not against the estate of Fred Carbon . . . .”); Olshen v. Robinson, 248 So. 2d 534 (Fla. 3d D.C.A. 1971) (Third District Court affirmed dismissal of plaintiff’s complaint because “the transaction was with the deceased personally and not with the deceased as an officer of the corporation.” “No error has been shown.”)—merely state the exception, but none of them establish the proverbial “bright line” of what is actually meant by a “standard corporate arrangement.”
7 See Moneyhun, 611 So. 2d 1316 (in suit by former employee against former employer, testimony of former employee not barred by dead man’s statute only because First District Court determined that “the action at bar is primarily against the corporate entity . . .” and the personal representative of the estate was named only in the event that there was no trustee for the assets of the corporation. Id. at 1320. Further, appellees waived protection of the dead man’s statute in attempting to prove affirmative defenses of statutes of frauds and limitations.); see also Tharp v. Kitchell, 151 Fla. 226, 9 So. 2d 457 (Fla. 1942) (conversation concerning nature of promissory note between deceased officer of corporation and maker of note admissible where action not one primarily against estate). However, no Florida appellate court has dealt squarely with the frequently occurring circumstance where the decedent was the sole or majority shareholder of a closed corporation or family business. In that circumstance, it can be logically argued that a claim by an interested person against such corporation is primarily one against the estate inasmuch as the estate wholly or substantially owns it.
8 Tom v. Messinger, 235 So. 2d 333 (Fla. 2d D.C.A. 1970) (testimony of one of automobile passengers, who was suing executrix of deceased, alleged driver of automobile at time of accident, that deceased took over the wheel at last stop before accident was not a “transaction” within meaning of dead man’s statute).
9 81 Am. Jur. 2d Witnesses §565 (2003 ed.) (“Accordingly, state dead man’s statutes are applicable in diversity actions, but not in federal question cases”) (footnotes omitted); see also Estate of Aguirre v. Koruga, 42 Fed. Appx. 73, 75, 2002 WL 1579746 (9th Cir. (Wash.)) (“In diversity cases where state law supplies the rule of decision, federal courts apply the competency rules that the forum state would apply. Fed. R. Evid. 601.”).
10 It is settled that a party may not “open the door” as to otherwise protected oral communications, yet still exclude the remainder which may be prejudicial. Smith v. Silberman, 557 So. 2d 78, 81 (Fla. 3d D.C.A. 1990). However, where it has not yet been waived, to deny an otherwise proper summary judgment runs counter to the precept that, certainly in commercial cases, summary judgments are not disfavored. Martin Petroleum Corporation v. Amerada Hess Corporation, 769 So. 2d 1105, 1108 (Fla. 4th D.C.A. 2000) (“Although it is true that, generally speaking, issues of negligence cannot be resolved on the summary judgment, commercial litigation is another matter. Where a claim such as this one is filed, and after full discovery . . . and there are thus no genuine issues of material fact, summary judgment should be granted. A party should not be put to the expense of going through trial, where the only possible result will be a directed verdict.”) (additional citations omitted); Estate of Herrera v. Berlo Industries, Inc., 840 So. 2d 272 (Fla. 3d D.C.A. 2003) (“Summary judgment may be granted, even though discovery has not been completed, when the future discovery will not create a disputed issue of material fact.”), citing A & B Discount Lumber & Supply, Inc. v. Mitchell, 799 So. 2d 301 (Fla. 5th D.C.A. 2001), and Crespo v. Florida Entertainment Direct Support Organization, Inc., 674 So. 2d 154 (Fla. 3d D.C.A. 1996).
11 In Tarr, the plaintiff/appellant, Mr. Tarr, appealed an adverse summary judgment in favor of Ms. Cooper, the personal representative of the estate of Richard L. Rawlins. The dispute involved Mr. Tarr’s alleged oral agreement with Mr. Rawlins, a certified aircraft mechanic, to inspect a single engine aircraft located in Georgia and, if passing the inspection, to negotiate a lower price and complete the purchase. Mr. Rawlins did so, but Mr. Tarr later alleged that Mr. Rawlins failed to discover that the aircraft had severe corrosion of the wing. Shortly after the discovery of that problem, Mr. Rawlins was killed in an automobile accident. Thereafter, Mr. Tarr brought his claims against the estate for damages, which the estate refused to pay. On Ms. Cooper’s motion for summary judgment on the theory that the dead man’s statute prohibited Mr. Tarr from proving the terms of the oral agreement with Mr. Rawlins, the trial court applied the statute and entered summary judgment against Mr. Tarr. In affirming the summary judgment ruling, the Third District Court held: “After careful consideration, we conclude that the trial court was correct. Several writings and the testimony of an independent witness established some, but not all, of the material terms of [Mr. Tarr’s] oral contract with [Mr. Rawlins]. Since there is no admissible evidence to support some of the essential elements of [Mr. Tarr’s] case, we conclude that summary judgment must be affirmed . . . .”
12 See also Houston Fire and Casualty Insurance Company v. Ivens, 36 F.R.D. 450 (M.D. Fla. 1963) (summary judgment granted for administratrix in aviation insurer’s suit for declaratory judgment in which only proof insurer offered to show that flight was one for which charge was made within exclusionary provisions was testimony that fell under bar of dead man’s statute).
13 In Polk, the Fifth District Court acknowledged that its view was not universally held, but still adopted the analysis in the dissenting opinion of Judge Tillman Pearson, a founding member (circa 1957) and former chief judge of Florida’s Third District Court, in Bordacs v. Kimmel, 139 So. 2d 506 (Fla. 3d D.C.A. 1962). Judge Pearson wrote, id. at 508, that: “The question then is: Must a defendant waive the benefits of the Dead Man’s Statute in order to call to the court’s attention, upon motion for summary decree, the fact that there is no evidence to prove plaintiff’s case except that barred by the statute? It seems to me that the extension of the principle of waiver to cover this use of the deposition at a summary judgment proceeding is against the spirit of the summary judgment rule. The purpose of summary judgment is to allow the chancellor to dispose of a case prior to trial, rather than to put the parties and the court to the expense of an unnecessary trial. I can think of no better way that the office of the rule can be exemplified than by preventing a trial at which the plaintiff would be unable to prove his case because of the existence of a rule of evidence.
“I would therefore hold that the use of the plaintiff’s deposition for the purpose of showing that no other evidence existed to the conversations which were claimed to be the basis of the action did not waive the benefit of the Dead Man’s Statute upon the trial of the merits of the cause.”
14 The court also found that the decedent’s deposition testimony was admissible under the dead man’s statute itself, because the decedent was, during her deposition, “examined on . . . her own behalf regarding the oral communication.” Fla. Stat. §90.602(2)(a) (modern language). Glickman may be viewed as an anomaly because the appellate court may have been influenced by the fact that the attorney for the estate did not timely object to the direct testimony of Mr. Cohen or the reading of the decedent’s deposition; but, admittedly, the issue of waiver was not addressed in the opinion and the Third District Court has not receded from it.
15 The interplay between Rule 1.330(a)(3)(A) and Fla. Stat. §90.602(1) also requires an evaluation—not undertaken in Glickman—of whether the dead man’s statute is a procedural statute or a substantive law (a latter finding which would provide an independent basis for the statute to trump the rule). Kerr Construction, Inc. v. Peters Contracting, Inc., 767 So. 2d 610, 612–13 (Fla. 5th D.C.A. 2000). Notwithstanding that analysis, even the holding in Glickman must be revisited where the deposition of the decedent was taken at a time when the decedent was, while alive, not a party to the lawsuit. Brown v. Tanner, 164 So. 2d 848 (Fla. 1st D.C.A. 1964) (a deposition of a party, since deceased, was inadmissible against defendants who were joined as parties after deposition was taken, citing to treatises on evidence by Justice Jones and Professor Wigmore). Glickman proponents, though, may take it a step further and point to Saudi Arabian Airlines Corp. v. Dunn, 438 So. 2d 116 (Fla. 1st D.C.A. 1983), which distinguished Tanner by noting, id. at 119, that “it did not involve consideration of other independent evidentiary grounds for admitting the deposition,” namely Fla. Stat. §90.803(18)(b) (hearsay exception for party’s statement of which the party has manifested an adoption or belief in its truth).
Glenn J. Waldman is a shareholder of Waldman Feluren Hildebrandt & Trigoboff, P.A., Weston. He is a civil trial lawyer, a state and federal court mediator, and a certified arbitrator. Mr. Waldman’s practice includes complex commercial litigation, probate and estate litigation, intellectual property law, and health care and insurance law. He received his bachelor’s degree in economics, magna cum laude, in 1980 and his law degree, cum laude, from the University of Florida in 1983.