DIANE G. HOEMKE, APPELLANT,
v.
HERBERT HOEMKE AND ESTHER HOEMKE, HIS WIFE, APPELLEES
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The court reversed a summary judgment for partition of homestead property because the trial court improperly decided the case on matters not raised in the pleadings, specifically a mortgage encumbrance that was never pleaded.
A summary judgment for partition cannot stand when it includes findings on matters entirely outside the issues made by the pleadings.
[1] A summary judgment for partition of homestead property cannot include findings regarding property encumbrances that were not pleaded by the parties.
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Join FLexlaw to unlock all legal intelligence“it is fundamental that a summary judgment based on matters entirely outside of the issues made by the pleadings cannot stand”
The court stated the fundamental principle that summary judgments must be limited to issues raised in the pleadings.
Appellant, a defendant in a partition action, appealed a summary judgment ordering sale of homestead property that was the subject of a prior divorce …
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RYDER, Judge.
Appellant, defendant below, appeals a final summary judgment of partition and argues the trial court erred in ordering a sale of alleged homestead property which was the subject of a prior divorce decree and by issuing a judgment upon a matter entirely outside the issues made by the pleadings.
While we believe partition of property under these circumstances may be proper and is not, in fact, barred by the Constitution, [see, Tullis v. Tullis, 342 So. 2d 88 (Fla. 1st DCA 1977)], it is fundamental that a summary judgment based on matters entirely outside of the issues made by the pleadings cannot stand. Chandler v. Chandler, 330 So. 2d 778 (Fla. 1st DCA 1976), Teta v. Teta, 297 So. 2d 642 (Fla. 1st DCA 1974), and Cortina v. Cortina, 98 So. 2d 334 (Fla.1957). The trial court did, in fact, include in its final summary judgment a finding that subject property was encumbered by a mortgage and that such property should be sold subject to same. The mortgage had not been pleaded, thus, clearly the judgment cannot stand, therefore. The final judgment entered is reversed and the cause remanded to the trial court, without prejudice to the parties, for further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
BOARDMAN, C. J., and OTT, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Cortina v. Cortina, 98 So. 2d 334 (Fla. 1957)
- McCONNELL v. Brumos Porsche Audi Corp., 297 So. 2d 642 (Fla. 1st DCA 1974)
- Dina Teta v. Teta, 297 So. 2d 642 (Fla. 1st DCA 1974)
- Harrington Chandler and Altamease Chandler v. Chandler, 330 So. 2d 778 (Fla. 1st DCA 1976)
- Tullis v. Tullis, 342 So. 2d 88 (Fla. 1st DCA 1977)