Kornbluh v. Lowenberg

401 So. 2d 880

Opinion

401 So.2d 880 (1981)

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.

No. 80-2029.

District Court of Appeal of Florida, Third District.

July 21, 1981.

Horton, Perse & Ginsberg and Arnold R. Ginsberg, Miami, Colodny & Fass, North Miami, for appellants.

Patton, Kanner, Segal, King & Kubit and J. Alberto Gonzalez-Pita, Miami, for appellees.

Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.

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.