Third District Court of Appeal
State of Florida
Opinion filed August 26, 2026.
Not final until disposition of timely filed motion for rehearing.
No. 3D25-0823
Lower Tribunal No. 20-23756-CA-01
Norma Dominguez, et al.,
Appellants/Cross-Appellees,
vs.
Nancy Suarez,
Appellee/Cross-Appellant.
An Appeal from the Circuit Court for Miami-Dade County, Vivianne V. del Rio, Judge.
The Law Offices of Erik B. Espinosa, P.A., and Erik B. Espinosa, for appellants/cross-appellees.
DE MELLO LAW, INC., and Julieta Gomez de Mello, for
appellee/cross-appellant.
Before GORDO, LOBREE and GOODEN, JJ.
GORDO, J.
In this partition action, the parties each own an undivided one-third
interest in the subject property—an indivisible single-family home—as joint
tenants with rights of survivorship pursuant to a 2013 deed. The trial court
denied partition following a non-jury trial and instead required Appellee to
obtain a reverse mortgage for the maximum available amount, pay the net
proceeds equally to both Appellants and execute a deed reserving to herself
an enhanced life estate with remainder to the Appellants. The order
contained no findings of manifest injustice, fraud or oppression.
Partition actions are equitable in nature. As such, decisions made by
the trial court are reviewed for abuse of discretion. See Lee v. Lee,
352 So. 3d 420, 432 (Fla. 2d DCA 2022) (“We review the partition court’s
order for an abuse of discretion.”). However, the trial court’s legal
conclusions and application of Chapter 64’s statutory framework to
undisputed facts are reviewed de novo. See Parisi v. de Kingston,
357 So. 3d 1254, 1257 (Fla. 3d DCA 2023) (“A trial court’s legal conclusions
and interpretation of a statute are reviewed de novo.”); Faller v. Faller,
51 So. 3d 1235, 1236 (Fla. 2d DCA 2011) (“We review the trial court’s
application of law to undisputed facts de novo.”).
Partition is a matter of right for co-owners of indivisible property and
may only be denied where manifest injustice, fraud, oppression, waiver or
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estoppel exists. See § 64.051, Fla. Stat. (2026) (“The court shall adjudge
the rights and interests of the parties, and that partition be made if it appears
that the parties are entitled to it.”); Bucacci v. Boutin, 933 So. 2d 580, 584
(Fla. 3d DCA 2006) (“Partition in Florida is governed by [Chapter 64]. The
general rule is that partition is a matter of right.” (citation omitted));
Caruso v. Plunk, 574 So. 2d 1230, 1230 (Fla. 5th DCA 1991) (“Partition is a
matter of right for tenants in common. Exceptions to that right include waiver
and estoppel, but neither was pled nor proven in the instant case.” (citation
omitted)).
The Florida Supreme Court has held that lower courts have the
discretion to refuse partition but has emphasized that courts should exercise
such discretion only in extreme cases or where manifest injustice, fraud or
oppression will result if the partition is granted. See Condrey v. Condrey,
92 So. 2d 423, 427 (Fla. 1957) (“[A] court of equity has the right in its
discretion to refuse to grant [partition]. But . . . litigants should be wary of
relying on the expectation that the court will so exercise its discretion, since
it should be so exercised only in extreme cases or where manifest injustice,
fraud or oppression will result if partition is granted.” (citation omitted)). Here,
Appellee neither pleaded nor established the extreme circumstances
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required for a court to properly refuse the general right to partition—she
merely expressed a desire to continue living in the home.
Further, the creative remedy fashioned by the trial court—a reverse
mortgage with an enhanced life estate—was never framed by the pleadings.
See Bank of N.Y. Mellon v. Reyes, 126 So. 3d 304, 309 (Fla. 3d DCA 2013)
(“[A] judgment which grants relief wholly outside the pleadings is void.”);
Turgman v. Boca Woods Country Club Ass’n, Inc., 198 So. 3d 1125, 1126–
27 (Fla. 4th DCA 2016) (“It is well-settled that a party cannot be awarded
relief that is not framed by the pleadings. . . . We stress that the rule
described above is plain and unambiguous: all relief awarded must be
framed by the pleadings.”); Bank of Am., N.A. v. Nash, 200 So. 3d 131, 135
(Fla. 5th DCA 2016) (citing Fla. R. Civ. P. 1.100(a)) (“Pleadings sufficient to
invoke a court’s jurisdiction, according to the rules of civil procedure, include
a complaint, petition, counterclaim, crossclaim, and a third-party
complaint.”); Butler v. Brown, 338 So. 3d 392, 393 (Fla. 5th DCA 2022)
(“[C]ourts are not authorized to award relief not requested in the
pleadings . . . [t]o grant unrequested relief is an abuse of discretion . . . and
reversible error.”); Morrison v. Smolarick, 334 So. 3d 675, 677 (Fla. 2d DCA
2022) (“Partition is achieved by ordering the physical division of the property
or, if indivisible, by sale after which the proceeds are divided. . . . Neither the
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statute nor the case law provides for [a remedy outside of those
outcomes]. . . . [E]ither the property is divided or, if it cannot be divided, the
funds from its sale are divided.”).
The court’s order also failed to take into account appreciation of the
property and proportionate expenses. This too was error. See
Fernandez v.Marrero, 282 So. 3d 928, 930 (Fla. 3d DCA 2019) (“In a partition
proceeding, there must be an accounting to determine whether each cotenant has paid his or her proportionate share of the expenses of the
property, and to adjust the co-tenants’ accounts accordingly.”).
The parties agree that each owns an undivided one-third interest and
that the property cannot be divided in kind without prejudice—the only
prerequisites for partition by sale. Because the record conclusively
establishes the statutory prerequisites for partition and no recognized
defense applies, we reverse and remand with instructions to order partition
by sale after which the trial court may conduct an accounting. See Sudholt
v. Sudholt, 389 So. 2d 301, 302 (Fla. 5th DCA 1980) (holding that when the
parties are tenants in common “the property is subject to partition . . . nothing
demonstrated . . . justif[ied] the trial court’s denial of partition . . . [and] the
portion denying partition is reversed and remanded to the trial court for
partition of the home”); Moraitis v. Galluzzo, 487 So. 2d 1151, 1152 (Fla. 4th
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DCA 1986) (“At the same time, we note that where property is held in a
tenancy in common, partition is practically a matter of right. . . . Moraitis is
entitled to judgment on his claim for partition and accounting[.]”); Bucacci,
933 So. 2d at 586 (“We . . . remand with directions that the property be
sold . . . that an accounting be had to properly allocate and adjust the
contributions and expenses among the parties during the years of their
ownership of the property . . . and that a distribution of the proceeds
thereafter be made to the parties in proportion to their interest pursuant to
section 64.071, after the payment of all costs, attorney fees and taxes, as
required by section 64.081.”).
Reversed and remanded for further proceedings consistent with this
opinion.
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