ALAN M. KORNBLUH AND SIDNEY CROWN, APPELLANTS,
v.
CELIA LOWENBERG, AS PRESIDENT OF AND TRUSTEE FOR GILBROS ASSOCIATES, A DISSOLVED FLORIDA CORPORATION; AND CELIA LOWENBERG, INDIVIDUALLY, APPELLEES
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SCHWARTZ, Judge.
After a non-jury trial on the complaint and answer, the lower court entered a money judgment in favor of the defendants and against the plaintiffs, even though no counterclaim or any other pleading or demand for such relief had ever been filed. This was plainly improper. Pond v. McKnight, 339 So. 2d 1149 (Fla.2d DCA 1976); see also, Cortina v. Cortina, 98 So. 2d 334 (Fla.1957); Dysart v. Hunt, 383 So. 2d 259 (Fla.3d DCA 1980), review denied, 392 So. 2d 1373 (Fla. 1980). The appellees’ reliance on Fla.R. Civ.P. 1.190(b) in support of the action taken below is entirely misplaced. This rule provides for the amendment of existing pleadings to reflect issues tried by express or implied consent; it does not permit the creation of pleadings from the whole cloth. The judgment under review is therefore reversed. Upon remand, the trial court should allow the filing of additional pleadings by both sides and thereafter proceed to an appropriate determination of the issues thus presented.
Reversed and remanded with directions.
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Miceli v. Gilmac Developers, Inc., 467 So. 2d 404 (Fla. 2d DCA 1985)…t may not decree relief that has neither been requested by way of any pleading nor tried by consent. Pond v. McKnight, 339 So. 2d 1149 (Fla. 2d DCA 1976). See also Antoniadis v. Earca, N.V., 442 So. 2d 1001 (Fla. 3d DCA 1983); Kornbluh v. Lowenberg, 401 So. 2d 880 (Fla. 3d DCA 1981). Accordingly, we reverse the final judgments entered by the trial court and remand this case for proceedings consistent with this opinion. SCHEB, A.C.J., and SCHOONOVER, J., concur.…
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Suwannee Cnty. v. Enoch E. Garrison, Jr., 417 So. 2d 1070 (Fla. 1st DCA 1982)…has been maintained or repaired continuously and uninterruptedly for four years by the governmental entity, the road shall be deemed to be dedicated to the public, and title to the road becomes vested in the public entity. . Kornbluh v. Lowenberg, 401 So. 2d 880 (Fla, 3rd DCA 1981). . This court has applied the rule that when attorney’s fees are authorized by a statute, they must be specifically claimed in the pleadings. Johnson v. Johnson, 346 So. 2d 591 (Fla. 1st DCA 1977). Other districts have taken the…
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Yiannis B. Antoniadis v. Earca, N.V., 442 So. 2d 1001 (Fla. 3d DCA 1983)…this case. As such, the trial court lacked the authority to fashion this parking space remedy which was not raised by any of the pleadings, was not tried by consent, and was unrelated to the subject matter of the lawsuit. See Kornbluh v. Lowenberg, 401 So. 2d 880 (Fla. 3d DCA 1981); Pond v. McKnight, 339 So. 2d 1149 (Fla. 2d DCA 1976). The final judgment is therefore affirmed in all respects except for paragraphs 6 and 7 of the relief ordered therein (R.174) which paragraphs are hereby stricken therefrom.…
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- Cortina v. Cortina, 98 So. 2d 334 (Fla. 1957)
- Dysart v. Hunt, 383 So. 2d 259 (Fla. 3d DCA 1980)
- Pond v. Cora M. McKNIGHT, 339 So. 2d 1149 (Fla. 2d DCA 1976)