Caruso v. Plunk

574 So. 2d 1230, 1991 Fla. App. LEXIS 1522, 1991 WL 22981

Opinion

COBB, Judge.

In this case the plaintiff below, Christina M. Caruso, brought an action against Carl Plunk, seeking rescission of a quit-claim deed she and her husband had executed involving two acres of land. Alternatively, she sought partition of the property.

We affirm the trial court’s denial of rescission, but reverse its denial of partition. Partition is a matter of right for tenants in common. Condrey v. Condrey, 92 So.2d 423 (Fla.1957). Exceptions to that right include waiver and estoppel, but neither was pled nor proven in the instant case. At trial, Plunk testified that the property, owned in common by Caruso and Plunk, was divisible. We therefore remand for appropriate proceedings pursuant to Chapter 64.

AFFIRMED in part; REVERSED in part; and REMANDED.

DAUKSCH and PETERSON, JJ., concur.