Wilson v. Rooney

101 So. 2d 892
CourtDistrict Court of Appeal of Florida
DecidedApril 2, 1958
Docket373
StatusPublished
Cited by19 cases

This text of 101 So. 2d 892 (Wilson v. Rooney) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilson v. Rooney, 101 So. 2d 892 (Fla. Ct. App. 1958).

Opinion

101 So.2d 892 (1958)

Rosalie G. WILSON, Appellant,
v.
L.F. ROONEY, Appellee.

No. 373.

District Court of Appeal of Florida. Second District.

April 2, 1958.
Rehearing Denied April 29, 1958.

*893 Melvin J. Richard, Miami Beach, for appellant.

J.A. Franklin, of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellee.

SHANNON, Judge.

The appellant, plaintiff below, brought a suit in chancery against the appellee, defendant below. The plaintiff, in her bill, sought to have a house in the name of the defendant declared to be hers, accounting be made by the defendant for the approximate amount of $48,000, and a money decree be entered against the defendant for the living expenses of plaintiff during her normal life expectancy. To this bill, defendant filed an answer generally denying *894 the allegations in the complaint and, in some instances, explaining the various allegations in the complaint. He also filed counterclaim wherein he sought recovery for the use of the house by plaintiff. The evidence is voluminous and consisted of taking testimony before the trial court, taking depositions, and filing exhibits. By his final decree the Chancellor found that the house in question is the property of the defendant and that the plaintiff has no right, title or interest in same. The decree also found that the plaintiff is wrongfully withholding from the defendant the possession of the house and has wrongfully withheld possession from a certain date and that the use value of the premises occupied by the plaintiff is $350 a month. He also found that the furniture, which was sold to the defendant by the plaintiff by bill of sale is the property of the defendant. In conclusion the Chancellor found that the equities in this case are with the defendant and that the plaintiff is not entitled to any relief prayed for and further, that the defendant was entitled, on his counterclaim, to the sum of $3,500, as the use value on the house from a certain date and the further sum of $350 for each thirty-day period that the plaintiff continued to occupy the same. The Chancellor, by a separate order, taxes the costs against the plaintiff. Included in the order is an item of $173.25, representing the amount paid to a court reporter for taking the deposition of the plaintiff. From this decree, and the findings of the Chancellor, the plaintiff appeals.

The plaintiff sets out seven points in her brief and argues each one, but for the sake of clarity, as well as brevity, the points may be summarized into four, namely:

1. Whether the defendant had promised the plaintiff the property sought or had taken any steps to effectuate this.

2. Whether the defendant had proved their relationship was meretricious, and hence the Chancellor erred in granting the defendant's counterclaim.

3. Whether the Chancellor erred in denying the plaintiff's proffered evidence consisting of a wire recording of telephone conversations between the two parties, and

4. Whether the court erred in allowing an item of $173.25, costs, in taking plaintiff's deposition.

The plaintiff testified that she had been married four times, to the last husband twice, the last divorce being on June 18, 1954. She met the defendant in California in 1953 and, according to her own testimony, in March of 1954, she was living with the defendant as husband and wife, and he eventually brought her to Naples, Florida, and established her in his house. On the question of whose name the house was in, in connection with the deed that was alleged by the plaintiff to have been given to her by the defendant, we quote from the testimony of B.V. Booth, from whom this property was purchased:

"Q. In the presence there of Mrs. Wilson did Mr. Walker ask Mr. Rooney how the contract was to be prepared and how the deed was to be made? A. Well, for some reason — I can remember it very distinctly that Mr. Walker — I mean the thing was practically closed — said — I mean our discussions were through with regard to taxes and so forth — said to Mr. Rooney, he said, `In whose name is this to be — is the title to be made out or the deed rather', see? Well, I remember it distinctly, Mr. Rooney's answer. He said, `Definitely in my name.'
"Q. Was Mrs. Wilson present at that time? A. Yes, she was there and Mrs. Booth and Walker I think was all.
"Q. Did you have a contract prepared by your attorney thereafter covering the sale of the property? (Record 381)
"A. Yes, I think Ben Parks — .
"Q. I hand you a paper which has been identified as Defendant's exhibit *895 1 for identification and ask if you recognize that paper? A. This was the option agreement? Yes, I recognize it.
"Q. Was that signed by you and Mrs. Booth? A. That's right.
"Q. And by Mr. Rooney? A. Yes.
"Q. And who appears as witnesses there? A. Well, Mr. Walker and Mrs. Wilson and —."

Mrs. Wilson testified that she went to Tulsa, Oklahoma, in June of 1954, and the defendant gave her a deed to the home in Naples with an accompanying letter which provided that the deed would not be recorded in the lifetime of the defendant. She testified that she did not look at the deed, and eventually placed the same in a lockbox in Naples, where the instruments remained until she, according to her testimony, redelivered the same to the defendant for recordation. This issue was denied by the defendant, and his evidence showed, at the time the plaintiff testified that she obtained them from the bank's lockbox, the bank's records indicated the plaintiff had been into her box twice during the Fall of 1955, on the 28th day of October and December 5th. On October 28th, according to defendant's evidence, he arrived in Naples late in the afternoon and left there on November 27th and from the time he was in Naples, she did not enter her safety deposit box as she says, upon a joint visitation to the lockbox. There is some testimony corroborating the plaintiff, and there is some testimony corroborating the defendant in various details with regard to his giving her the deed and later, getting it back from her. Regardless, the house does not and never has stood in the name of the plaintiff. The Chancellor heard all of the witnesses and concluded that the plaintiff had failed to meet the burden of proof and held with the defendant.

Upon this issue then the appellant seeks to have this court substitute its opinion in lieu of the Chancellor's. As has been said many times by our Supreme Court, where the evidence is conflicting, it is the duty of the Chancellor to determine the credibility of the witnesses and the probative force of the evidence, and unless the appellant makes it clearly appear that substantial error was committed by the Chancellor, or that the evidence clearly shows his conclusions to be erroneous, the court should affirm the Chancellor. See Peterson v. Hancock, 146 Fla. 410, 1 So.2d 255, 256, where our court said:

"The evidence was conflicting and it was the duty of the Chancellor to determine the credibility of the witnesses and the probative force of the evidence. In such cases the decree will not be disturbed by the appellate court, unless the appellant makes it clearly to appear that substantial error was committed by the Chancellor in his conclusions, or that the evidence clearly shows them to be erroneous."

We have taken the home as an illustration of the various property rights which the plaintiff claims.

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Bluebook (online)
101 So. 2d 892, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-rooney-fladistctapp-1958.