5D00-2269 Bauerle v. Brush

State: Florida

Court: Florida Fifth District Court

Docket No: 5D00-2269

Case Date: 09/10/2001

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2001

DONALD C. BAUERLE, JR., ETC., Appellant/Cross-Appellee, v. Case No. 5D00-2269 JANET C. BRUSH, FORMERLY JANET C. BAUERLE, Appellee/Cross-Appellant. / Opinion filed September 14, 2001 Appeal from the Circuit Court for Seminole County, Seymour Benson, Judge. David C. Willis and J. Theodore Schatt of Mateer & Harbert, P.A., Orlando, for Appellant/Cross-Appellee. Jerry R. Linscott and Matthew P. Julian of Baker & Hostetler, LLP, Orlando, for Appellee/Cross-Appellant. PETERSON, J. Donald C. Bauerle, Jr., as Personal Representative of the Estate of Donald C. Bauerle, Sr. (Bauerle), initiated action against Janet C. Brush on a $50,000 promissory note dated April 4, 1995 payable to Donald C. Bauerle, Sr. (Decedent). Brush affirmatively pled lack of consideration alleging that the Decedent had made a gift to her of the money evidenced by the note and never intended to enforce the note.

At trial, Bauerle introduced the note into evidence, testified only as to the amount due under it, and exercised caution in order to avoid waiving the Dead Person's Statute which provides:1 90.602 Testimony of interested persons.-- (1) 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. It was only Brush's cross-examination of Bauerle that elicited the following information which was harmful to her case. The Decedent told his son in April, 1992, that he was loaning money to Roger Torri, Brush's son from a previous marriage, to start a business and that the source of the money was a certificate of deposit (CD) issued by NationsBank in North Carolina. The CD had been created in joint names with right of survivorship by the Decedent and Brush from their separate funds. Brush then called Bauerle as her witness and elicited testimony that in December, 1992, Bauerle and the Decedent sold a heating and air conditioning supply business and covenanted with the purchaser not to compete for a period of five years. Bauerle advised the Decedent that by loaning the money to Torri to start a similar business, he could be violating the terms of the non-compete agreement. Bauerle and the Decedent then devised a plan to avoid violation of the non-compete agreement whereby two notes were prepared. One note

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Fla. Stat.,

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