TIMOTHY BRUMLIK, APPELLANT,
v.
RAYMOND PALMER AND DOROTHY PALMER, HIS WIFE, APPELLEES
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The court held that the relief granted was not supported by the pleadings or the proof presented.
The parties entered into a real estate sales agreement but failed to close due to disputes. The trial court found a mutual breach, denied damages and …
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FRANK D. UPCHURCH, Jr., Judge.
Appellant Timothy Brumlik appeals from a partial final judgment entered in an action to recover real property.
Appellees Raymond and Dorothy Palmer, the sellers, and Timothy Brumlik, the purchaser, entered into a real estate sales agreement but failed to close because of various disputes. Brumlik apparently obtained the original deed and recorded it. The Palmers sued seeking ejectment and compensation for damages to the property while in the possession of Brumlik. Brum-lik answered and counterclaimed for specific performance.
The court found that the agreement had been mutually breached, denied damages and specific performance, ordered the Palmers to return the deposit, and ordered Brumlik to execute a deed reconveying the property to the Palmers. The trial judge later ordered Brumlik to obtain a deed from a third person, not a party to the proceedings, to whom he had subsequently conveyed the property.
The relief granted is not supported by the pleadings or the proof. While counsel for the Palmers did make a motion which was interpreted by the court to be a motion to amend the pleadings to conform to the evidence, the nature of the motion does not appear in the record nor does the amendment or the type of relief sought. Because neither the pleadings, amendments nor proof support the relief granted, we reverse and remand for repleading and retrial.
REVERSED and REMANDED.
DAUKSCH, C. J., and COBB, J., concur.
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Marlyn Tracey v. Wells Fargo Bank, 264 So. 3d 1152 (Fla. 2d DCA 2019)…Bachanov, 436 So. 2d 236, 238 (Fla. 3d DCA 1983) (remanding for new trial and amendment of the complaint when the plaintiffs were permitted "to amend their complaint to add a claim for punitive damages halfway through the trial"); Brumlik v. Palmer, 407 So. 2d 1058, 1059 (Fla. 5th DCA 1981) ("Because neither [*1174] the pleadings, amendments[,] nor proof support the relief granted, we reverse and remand for repleading and retrial."). Florida courts have unfailingly remanded for a new trial even when the erron…1 / 2
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Weinstock v. Ronda C. Weinstock, 634 So. 2d 775 (Fla. 5th DCA 1994)…ears that additional evidence is available and justice seems to require a more complete development of the rights of the parties under the law, the cause may be remanded with directions to take further evidence on the issue). . SeeBrumlikv. Palmer, 407 So. 2d 1058 (Fla. 5th DCA 1981) (because neither the pleadings, amendments nor proof supported the relief granted, cause was reversed and remanded for repleading and retrial). .See, e.g., Dozier v. Dozier, 606 So. 2d 477 (Fla. 1st DCA 1992) (evidence was insuf…