Opinion
No. 97-3127.
Opinion filed September 17, 1999.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Richard I. Wennet, Judge; L.T. Case No. CL 95-945-AN.
David S. Romanik and Richard A. Ivers of Romanik Huss Ivers, Pembroke Pines, for appellant.
Marshall J. Osofsky of Lewis, Vegosen, Rosenbach, Silber Dunkel, P.A., West Palm Beach, for Appellee-Southfield Farms Corporation.
We reverse the final judgment awarding Appellee, Southfield Farms Corporation, $80,000.00 plus prejudgment interest for its one-half portion of a joint payment for a horse.
It is undisputed that Appellant and Appellee orally agreed in the fall of 1991 to jointly purchase the horse, Latest Edition. After Appellant completed the purchase and obtained the horse from a third party, Appellee sent Appellant a limited partnership agreement incorporating Appellee's understanding of the terms of their agreement. Appellant disagreed with those terms and refused to sign. Appellant at all times had possession of the horse.
The case was tried on Appellee's claim of breach of a written contract. At trial, the terms of their agreement were contested. Appellee argued that they had agreed that each party would pay one-half of the purchase price, each would be allowed possession of the horse in equal amounts for alternating years, and that the party in possession would be responsible for the costs and expenses of maintaining the horse. Appellant argued that each party agreed to pay one-half of the purchase price, but asserted that Appellee entered into the agreement for investment purposes only, that Appellant would control and manage, as well as retain possession of the horse, and that each was responsible for fifty percent of the caring and competition costs.
At the close of the evidence, the trial judge, although favoring Appellee's version of the facts, recognized and found that the parties were not bound by Appellee's unsigned written limited partnership agreement. Instead, the court found that the parties had an oral agreement to purchase a horse, which was breached by Appellant. The trial court held that Appellee was entitled to recover from Appellant its half of the purchase price, plus interest. The court further ruled that "upon, and only upon," satisfaction of the money damages, Appellant would have sole title and ownership of the horse.
Appellant raises six issues on appeal; we address two.
First, Appellee did not plead breach of an oral contract to purchase as a cause of action. See Lovett v. Lovett, 93 Fla. 611, 112 So. 768 (1927). The action was tried and decided solely upon Appellee's allegations of Appellant's breach of the terms of a written limited partnership agreement. Appellee did not move to amend the complaint to include an issue of breach of an oral agreement to purchase. Further, breach of an oral agreement to purchase was not tried by implied consent. The testimony concerning the parties' oral communications was admitted on the issue of whether there was a breach of a written partnership agreement. See Raimi v. Furlong, 702 So.2d 1273 (Fla. 3d DCA 1997),rev. denied, 717 So.2d 531 (Fla. 1998); Wassil v. Gilmour, 465 So.2d 566 (Fla. 3d DCA 1985). It was Appellant's position that the parties' relationship was that of a simple partnership. Clearly, the issue of breach of an oral agreement to purchase fell outside the scope of the pleadings.
Further, the award to Appellee effectively grants rescission as a remedy. A rescission remedy is problematic here for several reasons. First, neither party pled rescission. Second, there were no allegations of fraud, mistake, or misrepresentation asserted by Appellee in the complaint. Both parties agreed that Appellee's half of the purchase money was used for its intended purpose and that the horse was jointly purchased and owned. Patently, the court did not, and could not, put both parties back to their original pre-purchase positions. We note that the award requires Appellant to return funds she never possessed, as the horse was purchased from, and each party had sent their respective share to, an unrelated third party seller.See generally, Bush v. Palm Beach Imports, Inc., 610 So.2d 68 (Fla. 4th DCA 1992).
Appellant argues on appeal that the trial court, upon recognizing that a joint purchase occurred, should have entered an order of partition based on principles of partnership dissolution. However, the record reflects that neither party requested partition. See Landay v. Landay, 400 So.2d 43 (Fla. 2d DCA 1981), opinion modified on other grounds by, 429 So.2d 1197 (Fla. 1983).
Neither party disputes that the horse was jointly purchased. The parties agree that they became joint owners. Generally, the possession of one joint owner is considered the possession of all co-tenants "until the one in possession brings home to the other the knowledge that he claims the exclusive right or title."Coggan v. Coggan, 239 So.2d 17, 19 (Fla. 1970). Where a tenant out of possession claims damages from a co-tenant in possession, the complainant must show that the possession of the tenant in possession amounts to an ouster. Id. The possession must be such as to evince a claim of exclusive right by the tenant in possession. Id.
Here, although Appellant retained sole possession of the horse after the date of purchase, it cannot be determined on this record whether she claimed an exclusive right, and, if so, whether Appellee was cognizant of such a claim.
If, upon rehearing, the trial court resolves the exclusive possession issue adversely to Appellant, we note that damages would be limited to the reasonable value of the jointly owned property from the date the co-owner in possession evinced a claim of exclusive right, if such claim is not a term of their agreement, together with any incidental damages. See Moraitis v. Galluzzo, 511 So.2d 427 (Fla. 4th DCA 1987), rev. denied, 519 So.2d 987 (Fla. 1988).
Accordingly, we reverse the final judgment and remand for further proceedings consistent with this opinion.
DELL and GROSS, JJ., concur.