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Filing # 91381004 E-Filed 06/19/2019 10:32:59 PM
IN THE 20™ CIRCUIT COURT IN AND FOR
CHARLOTTE COUNTY, FLORIDA
CASE #2017 CA 000181
IRIS BEAUGRAND, etc.,
Plaintiff/Counter-Defendant,
v. BOB O’TOOLE’S NOTICE OF
ROBERT O°TOOLE, FILING APPELLATE BRIEFS
Defendant/Counter-Plaintiff:
/
PLEASE TAKE NOTICE that Defendant/Counter-Plaintiff ROBERT
O’TOOLE has filed the incorporated material made a part hereof consisting of
the briefs submitted by the parties in O ’Toole v. Beaugrand,, Case Number 2D 18-
1935 (2! DCA, February 27, 2019) to be considered by the Court in connection
with the pending motions for summary judgment.
I DO HEREBY CERTIFY that a true and correct copy of the foregoing
was caused to be served by electronic mail on June 19, 2019 upon Steele T.
Williams, Esquire, STEELE T’ WILLIAMS, PA, attorney for plaintiff, Pineapple
Place, 1381 McAnsh Square, Sarasota, Florida, 34236;
Steele TWilliams@Comeast.Net. Respectfully submitted,
BRET SHAWN CLARK, PA
PO BOX 1133
Englewood, Florida 34295
Tel: (941) 404-4704
BretClark@WebNetLawyer.Com
(Bret Hark
Bret Clark, Esquire FB #384038
Attorney for Robert O’ TooleNOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
ROBERT O'TOOLE,
Appellant,
v. Case No. 2D18-1935
IRIS BEAUGRAND,
Appellee.
Opinion filed February 27, 2019.
Appeal from the Circuit Court for Sarasota
County; Andrea McHugh, Judge.
Bret Clark of Bret Shawn Clark, P. A.,
Englewood, for Appellant.
Steele T. Williams of Steele T. Williams,
P.A., Sarasota, for Appellee.
PER CURIAM.
Affirmed.
LaROSE, C.J., and LUCAS, JJ., and LENDERMAN, JOHN C., ASSOCIATE SENIOR
JUDGE., Concur.IN THE SECOND DISTRICT COURT OF APPEAL
STATE OF FLORIDA
CASE NUMBER 2D18-1935
(LT Case Number 2016-CA-006351-NC)
ROBERT O’TOOLE,
Defendant/Appellant,
versus
IRIS BEAUGRAND,
Plaintiff/Appellee.
On Appeal from a Final Judgment of the 12" Circuit Court
in and for Sarasota County, Florida
INITIAL BRIEF FOR APPELLANT
BRET SHAWN CLARK, PA
PO BOX 1133
ENGLEWOOD, FLORIDA 34295
(941) 404-4704
BretClark@WebNetLawyer.Com
By: Bret Clark, Esquire
Florida Bar Number 384038
Attorney for Robert O’Toole
Defendant/AppellantTABLE OF CONTENTS
TABLE OF CONTENTS
TABLE OF CITATIONS
STATEMENT OF THE CASE & OF THE FACTS!
SUMMARY OF THE ARGUMENTS
ARGUMENTS & CITATIONS TO AUTHORITY
Issue #1:
Issue #2:
Issue #3:
Issue #4:
Issue #5:
Are the courts obligated to determine
the true nature and extent of a party’s
interest in land before ordering
equitable relief such as partition?
Do agreements between parties control
the nature and extent of the interests
they have in land irrespective of how
a deed to that land may read?
May a court order partition of land
based solely on a deed that does not
reflect a party’s true interest in the
land or was unlawful?
Are agreements between unmarried
couples that impose financial obligations
on them with respect to land enforceable?
Does a Circuit Court in one county
have subject matter jurisdiction to
determine title to land located in another?
CONCLUSION
CERTIFICATES
ii
ili-iv
1-20
21-23
24-45
25-28
28-32
32-38
38-42
43 - 45
46
47
'Note: References to the record proper containing docketed items are by an “R”
followed by the page number(s). Reference to the separately filed trial transcripts
are by a “TR” followed by the page number(s) of that part of the record.
~ii~TABLE OF CITATIONS
CASES
Armao v. McKemry, 218 So.2d 481 (Fla. DCA 2017)
Bauman v. Rayburn, 878 So.2d 1273 (Fla. Sth DCA 2004)
Biondo v. Powers, 743 So.2d 161 (Fla. 4th DCA 1999)
Cohen v. Century Ventures, Inc., 163 So.2d 799
(Fla. 2d DCA), cert. denied, 169 So.2d 389 (Fla.1964)
Condrey v. Condrey, 92 So.2d 423 (Fla. 1957)
Crossen v. Feldman, 673 So.2d 903 (Fla. 2d DCA 1996)
Dietrich v. Winters, 798 So.2d 864 (Fla. 4% DCA 2001)
Durand v. Durand, 16 So.3d 982 (Fla. 4° DCA 2009)
Evans v. Wall, 542 So.2d 1055 (Fla. 3d DCA 1989)
FCCI Mut. Ins. Co. v. Cayce's Excavation, Inc.
675 So.2d 1028 (Fla. Ist DCA 1996)
Frank v. Eeles, 152 Fla. 869, 13 So.2d 216 (1943)
Geraci v. Geraci, 963 S0.2d 904 (Fla. 2d DCA 2006)
Goedmakers v. Goedmakers, 520 So.2d 575 (Fla.1988)
Harvey v. Mattes, 484 So.2d 1382 (Fla. 5" DCA 1986).
Hawkins v. Hawkins, 895 So.2d 1155 (Fla. 1 DCA 2005)
~ titi~
PAGE
40
43-44
29-30
43
37
39
33,39
37
39
44
35
27
44
4B
41CASES (Continued)
Hudlett v. Sanderson, 715 So.2d 1050 (Fla. 4th DCA 1998)
In re Doe, 932 So.2d 278 (Fla. 2d DCA 2005)
Internal Improvement Fund v. Walton County,
121 So.3d 1166 (Fla. 1 DCA 2013)(Thomas, J., dissenting)
Johnson v. Dowell, 592 So.2d 1194 (Fla. 2d DCA 1992)
Key v. Trattmann, 959 So.2d 339 (Fla. 1s* DCA 2007)
Lallouz v. Lallouz, 695 $o0.2d 466 (Fla. 3d DCA 1997)
Marks v. Stein, 160 So.3d 502 (Fla. 2d 2015)
O'Donnell v. Marks, 823 So.2d 197 (Fla. 4" DCA 2002)
Poe v. Levy's Estate, 411 So.2d 253 (Fla. DCA 1982)
Publix Super Markets, Inc. v. Cheesbro Roofing, Inc.,
502 So.2d 484 (Fla. Sth DCA 1987)
(superseded by statute on other grounds)
Rountree v. Rountree, 101 So.2d 43 (Fla. 1958)
Safford v. McCaskill, 157 Fla. 133, 25 So.2d 210 (1946)
Saporta v. Saporta, 766 So.2d 379 (Fla. 3d DCA 2000)
Schroeder v. Lawhon, 922 So.2d 285 (Fla. 2d DCA 2006)
Thorpe v. Myers, 67 So.3d 338 (Fla. 2d DCA 2011)
Wadlington v. Edwards, 92 So.2d 629 (Fla.1957)
~iv~
PAGE
44
28
44-45
36
34-35
44
25
29
39
44
32-33
40
35
25
25, 28
35CASES (Continued)
Waldeck v. Marks, 328 So.2d 490 (Fla. 3d DCA 1976)
Ware v. Land Title Co. 582 So.2d 46 (Fla. 2d DCA 1991)
Zanakis v. Zanakis, 629 So.2d 181 (Fla. 4th DCA 1993)
STATUTES
Chapter 64
§64.022
§64.051
OTHER AUTHORITIES
Restatement (Third) of Trusts § 7 cmt. c (2003)
PAGE
27, 30
28
35
25
48
25-26
35STATEMENT OF THE CASE
AND OF THE FACTS
The relationship between Robert O’Toole and Iris Beaugrand began with a
phone call he made to his friend while she was convalescing in the hospital. TR at
86-7; 210. She needed help and he offered to help her and her four children move
from where they had been living into a small house she had rented. TR at 87; 210.
He thought that moving into such a cramped house with no functioning air
conditioning in the middle of the summer in Florida posed a hardship to his friend
and her family. TR at 242-3. So he offered to have them stay at the 4-bedroom home
on Bayshore Drive in Englewood, Florida, that he owned, and where he had been
living for a number of years. TR at 243, 254.
Not long after she moved in with O’Toole, Beaugrand came into his bedroom
and the relationship ceased to be purely platonic in nature. TR at 243.
At the time Beaugrand and her kids moved in to O’Toole’s house on Bayshore
she was involved in real estate as a real estate agent and as a mortgage broker in the
mortgage lending industry. TR at 71; 115. By her own reckoning, she makes about
$18,000 to $20,000 per year. TR at 146, 162. O’Toole is self-employed and there is
no record that he had experienced any financial difficulties until after the Beaugrand
family moved into his home. TR at 214; 229.
Beaugrand owned vacant land on Pinto Trail in Englewood. TR at 89-92
(Exhibits FF & GG). Near the end of 2005 she managed to secure a construction
~1~loan, in the face amount of $400,000, to build a horse ranch. TR at 93-97 (Exhibits
HH & II). Construction of the ranch began after the Notice of Commencement was
issued in November, 2005, and was completed when a Certificate of Occupancy was
issued in November, 2007. TR at 97, 379 (Exhibit CCC). O’Toole, Beaugrand and
her children moved in a few days later. TR at 144, 245-6.
According to O’Toole, at some point after the Beaugrands moved into his
home he began to experience financial difficulties. TR at 214. He attributes this, in
part, to having “an additional five people living in my house”. TR 214, 229, 262.
He also felt obliged to help Beaugrand make some of her mortgage payments on the
Pinto Trail construction loan, as she did not have sufficient resources to meet her
obligations. TR at 258-9. Eventually he began having trouble making his own
mortgage payments and fell into default. TR at 214.
Tn 2006 he was served with what later turned out to be one of many foreclosure
suits that flooded into the courts of Florida in the wake of the collapse of the housing
market and, later, of the financial markets the following year. TR at 104-105; 229
(Exhibits C and D). By August, 2007, however, he did manage to reinstate his
mortgage loan and the foreclosure case was dismissed. TR at 105-107 (Exhibits
E&F). At that time, the Pinto Trail Ranch was nearing completion, which eventually
took place 3 months later. See, supra, at 2.Beaugrand suggested to O’ Toole that he refinance his Bayshore home, using
her credit rating to get a loan on more favorable terms that would reduce his monthly
payments. TR at 244. She proposed that he move into the Pinto Trail Ranch with
her and her family, and rent out his Bayshore home, using the rental income to pay
its mortgage and carrying costs, and any other expenses related to that property. TR
at 224-25, 244. Under this arrangement, O’Toole was to pay one-half of the
mortgage (including taxes and insurance included in the mortgage payments) of the
Pinto Trail Ranch. TR at 71, 146, 149, 234, 245, 259-60.
Both parties testified that these were the terms of their agreement. Id.
O'Toole did not want to move out of his own home. TR at 256. He testified
that he was “falling in love” with Beaugrand and she convinced him that it would be
cheaper for them to move into her house and rent out his house. Id.
As part of the closing on the refinance of the mortgage loan on his home on
Bayshore, O’Toole executed a deed to his property so as to hold title in his name
and Beaugrand’s name jointly, with rights of survivorship. TR 122-3 (Exhibit M).
Beaugrand testified that placing title to the property in both of their names was a
requirement of the mortgage loan. TR at 123.
O'Toole testified that the purpose of placing the property in both of their
names with rights of survivorship was as a means of estate planning whereby
Beaugrand would protect his children’s interest in his homestead should something
~3~happen to him. TR at 222. In her testimony, she acknowledged she was aware that
the deed meant that, should O’Toole predecease her, she would take title to the
Bayshore property. TR at 124. She was non-committal in her testimony as to
whether she felt obligated to protect the interests of his heirs with respect to
Bayshore, stating that she “would have to see what kind of money would have been
left over” after paying off the mortgage on the property. Id. She said the issue was
“speculation”, “I don’t know” and she “didn’t think about that.” Id.
The closing on the refinanced loan on Bayshore took place in November 2007.
TR at 119 (Exhibit M). The existing loan was paid off, as was a judgment for child
support arrears of over $9,000 owed by O’Toole through November, 2007. TR at
117-27 (Exhibits N-Q). In January of the following year, Beaugrand took out a
$30,000 equity line on the Bayshore property. TR 130 (Exhibit R). She claimed in
her testimony that the funds borrowed on the equity line had been used to pay off
O’Toole’s child support debt that had already been liquidated at the closing that took
place two months previously. TR at 68.
On cross examination, Beaugrand conceded that the child support obligation
had been satisfied at the closing in November, 2007 but seemed to recall that an
additional amount due had accumulated between then and January, 2008, two
months later, that was paid off by her Equity Line. TR at 128-31. Beaugrand was
unable to provide documentation as to neither the amounts she drew on her equity
~4e~line nor the amounts, and had no recollection of those amounts, stating that the
balance due was approximately $20,000. TR 135-8. She denied that she used any
of the draws on the account to satisfy her own obligations. TR at 128, 137.
O’Toole testified that he received no draws from Beaugrand’s line of credit
and had no access to that line. TR at 262-3. He did testify that he paid off
approximately $1,000 in child support out of his own pocket in January, 2008. TR
at 263. He says that any draws she made from her line were used by her for her own
personal obligations. TR at 263-4. Beaugrand admits that she made her payments
on the equity line, but at times O’Toole made these payments. (Beaugrand: “I have
stacks of receipts where I paid”). TR at 140-41.
Pursuant to their agreement, O’Toole moved into the Pinto Trail Ranch, where
each had agreed to pay equal shares of the mortgage payments. TR at 71, 149, 259.
As circumstances developed, there was no net income from the rental of the
Bayshore house to help with their finances, and the property either broke even or
lost $100-$200 per month. TR at 225.
Additionally, the amount of the mortgage payments on the Pinto Ranch was
more than O’Toole expected. TR at 257. At the time of their agreement, he was
told by Beaugrand that the mortgage payments would be under $2,000, and was not
expecting them to be closer to $3,000 per month. Id.According to his testimony, O’Toole also began to make up Beaugrand’s one-
half share of the mortgage payments on her Pinto Ranch. TR at 228. According to
his testimony, he made her mortgage payment “98 per cent of the time.” TR at 228-
9. Beaugrand concedes that he paid at least some of her obligations, including the
Pinto Mortgage payments. TR at 142, 147.
O’Toole testified that Beaugrand, who in addition to a monthly mortgage
obligation of nearly $3,000 also carried the burden of a horse ranch and caring for 4
children on an income of between $18,000 to $20,000 per year, was undergoing
financial difficulty, including being unable to collect child support, which had
diminished as her children became older and child support was reduced. TR at 259,
163. According to O’Toole, he found himself assuming the burden of her share of
expenses related to maintaining the household, as well as supporting a horse ranch
accommodating six horses (and a pony). TR at 260, 158.
As noted above, the parties agreed to evenly divide expenses incurred while
they were living together at the Pinto Ranch (specifically the mortgage payments)
and O’Toole confirmed she agreed to reimburse him for the funds he had been
advancing on her behalf. TR at 259. According to his testimony, the couple had
discussed the growing amounts Beaugrand owed him “many times”. TR at 329.
In December, 2015, about nine months before the couple separated, O’Toole
purchased a “short sale” property located in Charlotte County (The Bayshore and
~6~Pinto Trail properties are located in Sarasota County). TR at 165-72 (Exhibits 4 and
Y-BB). Beaugrand’s mother loaned him $45,000 towards the purchase price and
closing costs. TR at 80, 245, 269 (See also, Exhibit DD). O’Toole paid the rest.
TR. at 238-40, 245, 345. According to O’Toole, a signature purporting to be his on
a handwritten paper concerning the loan by Beaugrand’s mother does not belong to
him as he did not sign the document. TR at 237.
Beaugrand was precluded from acquiring an interest in this property under
regulations concerning short sales where the loan is federally insured. TR at 169,
173-74 (Exhibits Z1-3, AA1-4). This was because she represented the buyer in the
transaction and collected a real estate commission at closing. Id.
Beaugrand did not contribute any of her own money to acquire title to the
Charlotte County Property. TR at 269
In the month following the closing, Beaugrand had O’Toole sign a hand-
written quit claim deed to this property purporting to transfer title into both of their
names as joint tenants. TR at 175 (Exhibit CC). This document was prepared by
Beaugrand. TR at 175,272. O’Toole, who admits he is not knowledgeable about
real estate transactions, testified that he relied upon Beaugrand as the real estate
agent and she “told me what to do and I did as instructed”. TR at 216; 336-7.
Beaugrand testified that, despite the short sale regulations recounted above
that prevented her from buying the property, she had been told by her broker that
~70she could legally transfer title to this property into her name, if she waited 90 days
after the closing before recording the quit claim deed. TR 75-77. The deed to the
Charlotte County Property O’Toole bought is dated December 19, 2015. TR at 174-
5 (Exhibit BB). Beaugrand’s handwritten quit claim deed to this property is dated
January 20, 2016, 32 days later. TR at 175 (Exhibit CC).
In the summer of 2016, the relationship between O’ Toole and Beaugrand had
deteriorated to the point that he was obliged to leave the Pinto Trail Ranch. TR at
346-8; 355. Because his own home was occupied by tenants, he moved into the
Charlotte County Property, which is now his homestead. Id.
A few weeks after he moved out, Beaugrand sent O’Toole an email making
certain demands concerning the properties at issue in this case. TR at 353-4; 357
(Exhibit VV). She demanded that he refinance the Bayshore property and remove
her name from the first mortgage on that property. Id. She also claimed that she
was “in possession of the original Loan Document” indicating that $56,000 was
borrowed from her mother to purchase the Charlotte County Property where he was
living. Exhibit VV. She demanded that this amount be repaid and that the house be
sold, ifnecessary. Id. She gave him 60 days to refinance the Bayshore property and
30 days to meet her demands on the Charlotte County Property. Id.
When he failed to meet these demands, she sued him.NATURE OF THE CASE(S)
Iris Beaugrand filed two lawsuits.
The Charlotte County Case
One lawsuit was filed in the Twentieth Judicial Circuit, where the Charlotte
County Property is located. R247-250 (Exhibit EE). That lawsuit was in two
counts. The first count was for “Partition and accounting” in which she
acknowledges that the property was being used as O’Toole’s homestead but asks
that the property be sold to pay off, first, the loan to her mother of $45,000, then any
liens on the property, then her legal fees, with the remainder being “equitably split
between the parties”. R247-248. She also asks for an accounting of the income,
profits and expenses associated with the property. R248.
The second count of the case filed in the Charlotte Circuit Court is entitled
“Promissory Note”. Id. This count alleges that O’Toole executed an attached
handwritten paper in favor of Beaugrand’s mother in a face amount of $45,000.
R249-50. Beaugrand alleges that she “owns and holds” this paper as a note by virtue
of a power of attorney granted to her by her mother. R249. In this count Beaugrand
inexplicable alleges that O’Toole owes her $46,000. Id.
Taken together, the two counts ask for the forced sale of O’Toole’s homestead
to, inter alia, satisfy O’Toole’s debt to Beaugrand’s mother.The Sarasota County Case
In the Twelfth Judicial Circuit (the lower tribunal here), Beaugrand filed a
simple two-page “COMPLAINT FOR PARTITION AND ACCOUNTING.” R8-
9. In this case, she asks for a judgment “partitioning the property”, and thereafter
“requests the Court to order that the proceeds pay the first mortgage on the property,
then the Plaintiff's attorney’s (sic) fees and costs” and then that “any remaining
proceeds be equitably split between the parties, and further order an accounting of
the income, profits and expenses of the property.” R9.
In response, O’Toole filed a 13-page pleading (with exhibits) asserting his
answer, affirmative defenses, and counterclaims to the complaint filed by
Beaugrand. R13-28. With respect to the Bayshore Property, in Count One he asked
for a declaratory judgment concerning the respective rights or interest of the parties
to the property, find her interests to be in the nature of a constructive trust or resulting
trust, asked for reformation of the deed to reflect the true nature of the interests of
the parties to the property, awarding him a “special equity” to the property upon any
forced sale of it, and asking for “such additional and further relief by law or in equity,
and deemed appropriate in the premises”. R20.
Count Two of the counterclaim also asked for declaratory relief concerning
the excess payments O’Toole had made over the years towards the carrying costs of
the Pinto Trail Ranch. R20-21. He claimed the right to be reimbursed for his excess
~10~payments by way of a “special equity, credit or equitable lien” and requested that
judgment be entered “for the unreimbursed amounts expended by him either by way
of damages or in quantum meruit”. R21.
Count Three of O’Toole’s counterclaims also asked for a declaratory
judgment concerning title to the Charlotte County Property (his homestead) finding
that Beaugrand’s interests were in the nature of a constructive or resulting trust, and
for a reformation of the deed to reflect the true interests of the parties in the property.
R21-22. He also asked for a “special equity” in the proceeds, should the court order
the forced sale of it. R22.
Other claims asserted in the pleadings are not germane to this appeal.
COURSE OF THE PROCEEDINGS
A bench trial was convened before the Circuit Court Judge assigned to hear
the Sarasota County Case. TR at 11. At that time the pleadings before the Court
were those filed in that case, as summarized above, not the pleadings filed in the
Charlotte County case. TR at 26 (statement of counsel for Beaugrand).
Trial of the Charlotte County Case
At the trial the parties make reference to a stipulation between them whereby
the issues in the Charlotte County Case were to be decided in the Sarasota County
Case. TR at 26, 48, 395-96, 398, 439. But while the stipulation is discussed, and
~l1~parts of it are even quoted at one point, TR at 439, the stipulation itself was not of
record at the time of the trial (it was filed after the trial of the case), R6 (Docket
Sheet entry for April 26, 2018), nor is it part of the record on appeal.
The pleading filed by Beaugrand in the Charlotte County Case was not filed
in the Sarasota County Case, nor was the pleading filed by Beaugrand in Sarasota
amended, or otherwise supplemented to bring it before the trial court. TR at 26
(statement of counsel for Beaugrand). Evidence of its existence in the record before
this Court can be found by way of an Exhibit introduced at trial by O’Toole and a
post-trial motion, R247-250 (Exhibit EE); R580 at §2, text accompanying n. |
(Robert O’Toole’s Motion to Dismiss for Lack of Subject Matter Jurisdiction), but
the pleading itself was never made part of the pleadings in the case sub judice.
During opening arguments, the trial judge inquired as to whether she was
being asked to decide the Charlotte County Case, or whether her decisions “would
just impact that lawsuit”. TR at 48. Beaugrand’s counsel replied in the affirmative
as to the former when he stated that the court would be deciding “those partition
issues here for economy’s purposes”. Id. O’Toole’s counsel (the undersigned)
replied in the affirmative as to the later, not the former, inasmuch as, if the court
made findings on his request for declaratory relief concerning the Charlotte property,
those findings would impact the Charlotte County Case. TR at 48-49.
~12~Based on these statements, the judge then said she would “listen carefully
about” the Charlotte Property, and then proceeded with the trial. TR 49.
At the close of the evidence presented at trial, the court revisited the issue of
the adjudication of the Charlotte County Case. TR at 395. Upon inquiry, counsel
for O’ Toole acknowledged the existence of a stipulation to try claims related to the
Charlotte County property in the Sarasota County Case but again stated that he did
not interpret the stipulation “to mean that this Court has a claim for partition of that
property properly before it.” TR at 396. The trial judge responded by stating that,
“without it being pled in the Complaint, unless you stipulate that I am to make a
ruling on that today, I’m not inclined to do that.” TR at 396.
The judge then directly inquired if O’Toole acquiesced in the court making a
decision partitioning the Charlotte County Property “even though it’s not — it was
not part of the plaintiff's pleading.” TR at 398. Counsel repeated his position that
partition was not appropriate, but that, in fashioning equitable relief that would
resolve all of the issues in the case, the result could be that the Charlotte County
Property could be ordered to be partitioned. Id.
But, eventually, counsel stipulated that the trial judge “be allowed to order
partition” of the Charlotte County property. TR at 399.
That stipulation appeared to unravel during closing arguments.
~13~Beaugrand objected as O’Toole was presenting arguments that the quit claim
deed placing her on title to the Charlotte County was void and could not be enforced.
TR at 431-32. The grounds for the objection was that that argument was not included
in the pleadings. Id. This prompted the court to rule as follows:
THE COURT: All right. This is what I'm going to find. At this point
this 808 property was -- I was going to try by consent. I don't find that
there's a meeting of the minds between the parties on the Court making
a determination on this 808 property. I think that it's not in the
pleadings. The agreement is messy between the two of you on what
you're all consenting to be tried before the Court, and so for that reason
I'm only going to consider what's in the pleadings and you'll have to go
to Charlotte County for it. I don't know if there's another mechanism
to get it before this Court since I have heard a lot of evidence and could
take judicial notice and use some of the testimony in this case if you
were to agree to a change of venue, but at this point I am not going to
make a ruling on anything outside the pleadings.
TR at 433-34. At that time, counsel for O’Toole advised that the parties did agree
to consider all claims between them, including claims related to the Charlotte County
Property which, by definition, involved the validity of the quit claim deed Beaugrand
had induced O’ Toole to execute that purported to grant an interest in the property to
her. TR at 434-435. The court eventually responded as follows:
*** there's nothing before this Court as I sit here today ready to, you
know, rule at the end of a trial. This warranty deed — this is the first
invalidity of it and how that impacts partition, how it impacts partition,
how it impacts the entire case, has really not been focused on much. So
I guess * * * It’s just putting the Court in a very awkward position.
~14~TR at 435. In response, counsel for O’Toole suggested that the parties brief the case
and submit those for consideration by the court before a ruling was made. TR at
435-36. After making the observation that “the purpose of pleadings is to put the
other party on notice of what * * * will be argued in court” the judge then went on
to state that “[w]hat I’m not willing to do is to extend the trial for briefing, et cetera”.
TR at 437. Counsel then clarified that he was not asking that the trial be continued,
but that the court should be briefed before making a decision. TR at 437, 448. This
invitation was declined:
Mr. Clark, I considered your request to brief this, but, you know, all of
these issues and the depositions were done well ahead of the trial. I
don’t feel that it’s necessary to give that extension.
TR at 452. At that time, the judge made her rulings in the case, recounted in their
entirety infra at page 17. None mentioned the Charlotte County Case.
Trial of the Sarasota Case
Testimony of the two parties and substantial documentary evidence was
adduced at the trial, which Mr. O’Toole submits is fairly represented in the fact
section appearing at pages | through 8 of this brief.
Beaugrand presented her cases as being simple, straightforward cases where
she was entitled, as a “matter of right” to partition of O’Toole’s homestead property
in Charlotte County, and the Bayshore home where he used to live, in essence,
because she “does not want to be in a situation of owning property with her ex-
~15~boyfriend”. TR at 22-35; 29 (“matter of right”), 35 (“boyfriend” comment); see also,
R94-96 (Beaugrand’s Trial Memorandum of Law — Partition).
By contrast, O’Toole argued that the resolution of the case was not determined
as a matter of right, but by what, in equity, was fair. TR at 41. He recounted the
financial entanglements of the parties, asked for a declaratory judgment to determine
what the underlying rights and interests of the parties were to the properties involved
based on those entanglements, and asked that an accounting be had to “settle
accounts” as between them. TR at 35-55, 55 (as to “settle accounts” comment); see
also, R86-93 (Robert O’Toole’s Trial Brief).
While she conceded that there was an accounting requested for the Bayshore
property and the Charlotte County Property, Beaugrand objected to “an accounting
of the parties’ overall relationship”. TR at 55-6. This prompted the trial judge to
review O’Toole’s pleadings which she concluded did not ask for an “accounting of
money contributed to the relationship, but, rather obviously money related to the
upkeep, maintenance or purchase of” the three properties that were the subject of his
counterclaims, an accounting for which the judge did find was properly pled within
the wherefore clauses of O’Toole’s counterclaims. TR at 58.
Most of the exhibits and testimony presented at trial detailed the transactions
as between the parties regarding the three properties in question, and their
agreements and understandings concerning them. Some sparse financial records
~16~related to the accounting for the properties were introduced at trial, which primarily
consisted of limited “samples” offered by Beaugrand as proof that she did contribute
some funds towards the properties. TR at 388-393, 393 (as to exhibits being a
“representative sample”)(R548-567 - Exhibit 17).
A notice to produce documents at trial, related to the accounting for the
properties, was served on Beaugrand by O’Toole. TR at 375; R83. The notice
required her to produce all documents showing funds she had contributed towards
the three properties. R83 at A (1)-3). In response she produced a box containing
what her counsel described as a “menagerie of documents” that were “all over the
place” and that did not constitute a complete set of papers responsive to the request.
TR at 375-377; 380-85; 383 (as to the “menagerie” comment).
After closing arguments, the Court pronounced judgment.
DISPOSITION BELOW
Immediately after the conclusion of closing arguments, the trial judge
announced her ruling on the merits, which consists, in its entirety, of the following:
At this time I am going to rule in favor of the plaintiff on Count
1 for both the partition and the accounting. As to the counterclaim,
claims 1, 2 and 3, which pertain to the three separate properties, the
Bayshore property, the Pinto property, and the 808 property, Count 4 -
- or Counterclaim 4 not being before the court anymore regarding the
Gallery unit property, I am also going to rule in favor of the plaintiff.
~17~TR at 452. The court reserved on the issue of attorney fees, and asked counsel for
Beaugrand to prepare and submit a final judgment. TR at 452-53.
Prior to the entry of the judgment submitted by Beaugrand to the trial judge,
O’Toole filed a motion to dismiss the Charlotte County Case and Count 3 of his
counterclaim (concerning title to the Charlotte County Property) for lack of subject
matter jurisdiction. R580-584. The transcript of the hearing on that motion appears
at pages 600-619 of the Record on Appeal.
In the motion and at the hearing counsel for O’Toole acknowledged that he
had attempted to acquiesce in having the court consider the Charlotte County Case
but had determined that to do so was in error, as the Sarasota Circuit Court lacked
subject matter jurisdiction over that case and the Charlotte County Property. Id.
The trial judge noted that paragraph three of the proposed final judgment that
had been submitted states that the judgment only “recommends” that the Charlotte
Circuit Court enter the partition judgment against the Charlotte County Property and
opined that this part of the judgment “is not binding on the Circuit Court in the
Charlotte County case”. R603. Counsel for O’Toole responded that this paragraph
of the judgment was inappropriate as it would be void for lack of subject matter
jurisdiction over that case. R603-4.
Counsel for Beaugrand stated that the parties “never agreed to confer partition
subject matter jurisdiction” of the Charlotte County Case in the Sarasota Circuit
~18~Court. R605. Citing to no legal authority in response to the motion, counsel argued
that the claim raised by O’Toole concerning title to the Charlotte County Property
required only “personal jurisdiction of the parties” and that the court had “in
personam jurisdiction of the parties to determine all the counterclaims asserted in
the case.” R607. After hearing additional arguments, the trial judge denied the
motion, ruling as follows:
It may be that this does turn out to be error, but I'm going to sign -- I
agree with Mr. Williams’ analysis and I'm going to sign the judgment
as presented to the Court and I will deny the Motion to Dismiss
scheduled for today.
R613. The judge then asked counsel for Beaugrand if there were any amendments
he was seeking to the version of the judgment he had presented to her to sign. R614.
He replied that there were. Id. She signed it anyway. Id.
At the conclusion of the trial, the lower court made no findings of fact or
conclusions of law concerning the disposition of this case.
The final judgment prepared for the trial judge contains a bare recital that the
parties “each own an undivided interest as tenants in common” in O’Toole’s
Bayshore property and that the property “is indivisible and cannot be partitioned in
kind”. R586. The judgment orders the property to be sold at judicial sale and,
despite the prayer for relief that the net proceeds be equitably divided, orders that,
after paying off both mortgages on the property, attorney fees and the costs of the
sale, that the net proceeds be “equally” distributed to the parties. R586 at 2.
~ 19 ~Paragraph 3 of the judgment is the portion that “recommends” a judgment be
entered in the Charlotte County Case. R586 at 93.
This part of the judgment recommends no findings, as to the basis for any
underlying interests of the parties in the Charlotte County Property, but does contain
a repetition of the phrase that the parties have an undivided interest in the property
as tenants in common and that the property is “indivisible and cannot be partitioned
in kind”. R587-8 at 3(a) and (b). This portion of the judgment also recommends
the judicial sale of this homestead property, and that $45,000 be used to pay
Beaugrand’s mother, with the balance of the proceeds, after paying costs of the sale
and attorney fees, being “split between the parties”. R588 at §3(d).
The remainder of the judgment summarily disposes of the remaining claims
in the case in favor of Beaugrand and against O’Toole, save for one.
The judgment is silent as to the accountings ordered by the court.
~20~SUMMARY OF THE ARGUMENTS
In this case, Bob O’Toole finds fault with the manner by which the judgement
here on review summarily strips him of title to the home where he now lives, and
the one where he used to live before moving in with his ex-girlfriend, Iris Beaugrand.
The judgment orders that his houses be sold, while his ex-girlfriend gets to keep her
house (where they lived together for almost nine years) even though he made most
of the mortgage payments for that house.
Bob thinks that this judgment is unfair. He asked the judge who heard his
case to be fair in resolving the financial entanglements he had with Iris after they
broke up. He asked that their accounts be settled up fairly. His lawyer said this
meant he was asking the court to “do equity”, which the court ended up not doing.
Instead, the judge said this case is real simple. All she had to do was look at
the deeds his ex-girlfriend had him sign, which looked like they gave Iris an equal
share to the house where he used to live, and the one where he lives now.
For some reason Iris did not think to also put his name on the deed to her
house. He did not think to ask her why she didn’t. He trusted her. After all, she
was a real estate agent and mortgage broker so she must have known what to do.
Plus he was in love with her.
~21~In this appeal his lawyer says that is not the way things are supposed to work
in cases such as this. The case is not so simple. This is not a case where a judge
hears evidence and makes no findings of facts or conclusions of law, and refuses to
let the two people involved submit briefs to help her make a good decision that is
fair to both sides — a decision that is well reasoned and explains what she is doing
and why she is doing it so that everyone understands it - even the judge herself.
This is not a case where a judge renders a simple verdict in a simple case for
one side and against the other. But that is what happened.
And so we now have an appeal of what the judge said. Bob is told by his
lawyer that the judge did not follow the law when she ordered “partition” of the
house where he lives and the one where he used to live. The judge was not supposed
to just look at the deeds and not look at anything else. She was supposed to look at
the underlying agreements between him and Iris. She was supposed to do what was
fair based on what he and Iris agreed they were supposed to do.
She was supposed to do “equity” the lawyer says.
Now Bob will read in this brief that the judge did not do equity like she was
supposed to. She just did what was easy and simple, not what was fair. There are a
number of angels dancing on the heads of pins in the brief that has been filed on his
behalf in this case that express how what the judge did was wrong.
~20~But what they all come down to is that the deeds his ex-girlfriend had him
sign did not really sign away all of his rights, and allow her to keep all of hers. One
has to look past the deeds themselves to do what is fair in a case such as this. The
law is not so cruel as to make him forfeit his rights, while she keeps hers.
The judge was not even supposed to have the power to foreclose on the place
where he lives because, well, the law says she is not allowed to do that given what
his lawyer says was “subject matter jurisdiction” and all. Besides which, the judge
didn’t have the right paperwork in front of her to do that. But, well, she did it
anyway, and so it looks like he is going to have his last refuge taken away from him,
even though his lawyer says it is his homestead and that’s just not right.
Bob’s lawyer told him not to pack his bags just yet.
Have a little trust, he told him, despite what has happened so far.
Let’s see what the Court of Appeals has to say in the case of O’Toole versus
Beaugrand. There may just be some fairness left in this world after all.
~23~ARGUMENTS & CITATIONS TO AUTHORITY
O Toole v. Beaugrand is an important case that clarifies the existing state of
both substantive and procedural law concerning the rights and responsibilities of
parties to real property that, in this case, arises in the context of unmarried couples
who find themselves having to separate their financial entanglements on the
unfortunate occasion of a separation from their emotional ones.
The need for this clarification becomes apparent from a review of the record
of this case that reveals a multitude of errors by the lower court in a case that was
presented, on the one hand, as an over-simplified case merely seeking partition of
land as a “matter of right”, and, on the other, a more complex case seeking equitable
relief that more broadly addresses the real issues at stake.
In choosing the path of least complication, the lower court ignored precedent
that provided guardrails for a more reasoned and studied disposition of this case that
would have produced a fair result that equity demands in circumstances such as the
one presented here. Regrettably, the court eschewed those guardrails that would
have led it down a path that would have ended with a fair and just result.
In the course of correcting the errors committed by the lower court, O’Toole
v. Beaugrand will provide more clarity in the adjudication of the rights and
responsibilities of parties owning land, both in the context of unmarried couples
formerly in committed relationships, and cases in other contexts yet to be decided.
~24~Issue #1: Are the courts obligated to determine the true nature and extent of
a party’s interest in land before ordering equitable relief such as partition?
That the answer to this question in the affirmative, as a matter of law, should
be open and obvious, yet was not followed in the trial court, is an indication of a
fundamental misconception below as to the proper consideration and disposition of
this case. The decision of the trial court to not apply this basic requirement of law
to the facts in the case is an error of law subject to de novo review. Thorpe v. Myers,
67 So.3d 338, 342 (Fla. 2d DCA 2011).
Actions for partition are based in equity and are governed by Chapter 64,
Florida Statutes. Marks v. Stein, 160 So.3d 502, 506 (Fla. 2d 2015), citing Schroeder
v. Lawhon, 922 So.2d 285, 292 (Fla. 2d DCA 2006). §64.051 provides that the
“court shall adjudge the rights and interests of the parties” and, where “the rights and
interests of a plaintiff are established” the court “may order partition to be made”
and order that “the interest of the plaintiffs, and such of the defendants as have
established their interests to be allotted to them.”
The plain meaning of this statute requires a court in equity to determine, as a
threshold matter, what legal rights a party has to land in any case where that person
asserts rights in the land, and asks for the equitable remedy of partition to enforce
those rights. Once a party, such as Beaugrand, bears her burden of proof as to the
nature and extent of her interest in the two parcels of land involved in this case, a
~25~court sitting in equity “may order partition to be made”, and will partition the land
“if it appears that the parties are entitled to it”. §64.051.
In this case the lower court made no findings as to the nature and extent of the
interest Beaugrand has in either the Bayshore property or O’Toole’s homestead, and
left precious few hints on the record that would form a solid evidentiary basis for the
conclusory statement inserted into the final judgment that the parties each “own an
undivided interest as tenants in common” in these properties. See, supra at page 19,
R586. Indeed, the evidence of record does not support a finding, implied by this
recital in the judgment, that Beaugrand acquired an interest in either property that
equals that owned by O’Toole.
The evidence introduced at trial, undisputed by Beaugrand, was that she paid
absolutely no consideration for any interest in O’Toole’s Bayshore home. She
herself testified that the purpose of placing her name on the title to the Bayshore
Property was to facilitate the refinancing of it, not that she was purchasing an interest
init. See, supra at page 3. She all but conceded that she had no interest in title to
the property when she eschewed any claim to that effect, and demanded instead that
it be refinanced and her name taken off the mortgage. See, supra at 8 and referenced
record evidence appearing at TR at 353-4; 357 (Exhibit VV).
Similarly, even if the court below had subject matter jurisdiction to determine
the issue (but see, infra at 43-45), the evidence shows that Beaugrand provided no
~26~consideration that would support an acquisition of an interest in the Charlotte County
Property, much less an investment equal to O’Toole’s, even if the court could get
beyond the fact that the deed she fashioned to have O’Toole purport to convey any
interest in that property to her was patently illegal.
As noted above, the statute on partition requires the court to adjudge the
interests of the parties and that partition be made if it appears the parties are entitled
to it, and the judgment is to set forth the “interest to be allotted” to each party “with
an ownership interest in the property.” Geraci v. Geraci, 963 S0.2d 904, 906 (Fla.
2d DCA 2006). Where, as here, a party does not acquire an interest in property by
the payment of consideration for that interest, they are not regarded as holding title
as a joint tenant, and they do not become a full one-half owner of that property.
Waldeck v. Marks, 328 So.2d 490 (Fla. 3d DCA 1976).
The statutes and these cases obliged the trial court to first determine, based on
the evidence, what interest, if any, Beaugrand had purchased in these properties and,
if she had acquired any at all, what percentage ownership in the land she had thereby
acquired by her investment. While this Court would defer to any findings of fact
made by the lower court, this record does not reveal that any true findings on this
threshold issue were ever made and, to the extent the bare recital in the skimpy final
judgment qualifies as a “finding” of fact, that finding must be supported by
~27~substantial competent evidence. Thorpe, 67 So.3d at 341 (citation omitted).
Additionally, this Court is
not required “to disregard record evidence that disproves the lower
court's findings or that reveals its ruling to be an abuse of discretion.”
In re Doe, 932 So.2d 278, 284 (Fla. 2d DCA 2005).
67 So.3d 342. As noted above and in Thorpe, “to the extent that the circuit court
based its rulings on its interpretation of the pertinent statute,” this Court employs a
de novo standard of review. Id., citing Ware v. Land Title Co. of Fla., Inc. 582 So.2d
46, 46-47 (Fla. 2d DCA 1991) (applying de novo review).
Issue #2: Do agreements between parties control the nature and extent of the
interests they have in land irrespective of how a deed to that land may read?
The discussion above (and record below) strongly suggest that the lower court
in this case did not make a finding, based on the evidence, that would allow the court
to discern the nature and extent of Beaugrand’s interests in either the Bayshore
Property or the Charlotte County Property, and instead simply took the deeds of
conveyance of this land at face value. This was error.
As discussed above, a partition case involves a number of steps, starting with
a determination of the interests that each party has in the land to be partitioned. That
interest is determined by the agreement or understanding between the parties that
gave rise to the instrument of conveyance, the latter of which being merely the means
to effectuate the former - not the other way around.
~28~O'Donnell v. Marks, 823 So.2d 197 (Fla. 4° DCA 2002) is illustrative and
sets forth the step by step process the lower court was to follow in adjudicating this
case. For reasons not germane to the illustration of the point here raised, the court
found that when the property in question was purchased, the intent of the parties was
to create equal shares in it by way of a joint tenancy with rights of survivorship, even
though one party paid more than one-half of the costs to acquire and maintain it. 823
So.2d 198-9. That is step one of a two-step process.
The next step requires the court to determine the reimbursable expenses
incurred for the acquisition and maintenance of the property, and then calculate each
party's proportionate share of those expenses based on that party’s percentage of
ownership. Id., citing Biondo v. Powers, 743 So.2d 161 (Fla. 4th DCA 1999). That
amount is then subtracted from the amount the other party otherwise would have
received from the sale and given to the party that paid the expenses. Id.
Biondo itself illustrates more clearly how the agreement of the parties, and not
the instrument of conveyance, drives the determination of the respective rights in
land owned by the parties. In that case, the two parties purchased property as equal
partners, but the land was titled in the name of only Biondo. Later, there were a
series of conveyances and mortgages that eventually reposed title in both their names
as tenants in common. 743 So.2d 162-3.
~29~But the court looked to the original agreement of the parties when they
purchased the property, as confirmed by the testimony of Powers, that they remained
equal partners in the land, even though Powers paid 85% of the acquisition and
carrying costs of the property. 743 So.2d 164. The result was that, in allocating the
proceeds from the sale of the property, Powers did not have an 85% share of the
property and Biondo only 15%, but rather, she was entitled only to reimbursement
of her half of the expenses from Biondo’s one-half share. Id.
The Waldeck case cited in the previous section of this brief illustrates again
that the intent of the parties controls what their interests are in land, not the
instruments of conveyance, only in that instance, the court did not find that the
parties owned equal interests in the land. In that case, Waldeck conveyed a one-half
interest in land that he and Marks intended to develop. 328 So.2d 492.
Marks, however, paid no consideration for that interest and, for that reason,
“the trial court was in error in considering the parties as joint tenants at the beginning
of this litigation.” 328 So.2d 493. Instead, the court found that the interests of the
parties in the land were through a partnership or joint venture agreement, under
which their respective equities in th
Preview
Filing # 91381004 E-Filed 06/19/2019 10:32:59 PM IN THE 20™ CIRCUIT COURT IN AND FOR CHARLOTTE COUNTY, FLORIDA CASE #2017 CA 000181 IRIS BEAUGRAND, etc., Plaintiff/Counter-Defendant, v. BOB O’TOOLE’S NOTICE OF ROBERT O°TOOLE, FILING APPELLATE BRIEFS Defendant/Counter-Plaintiff: / PLEASE TAKE NOTICE that Defendant/Counter-Plaintiff ROBERT O’TOOLE has filed the incorporated material made a part hereof consisting of the briefs submitted by the parties in O ’Toole v. Beaugrand,, Case Number 2D 18- 1935 (2! DCA, February 27, 2019) to be considered by the Court in connection with the pending motions for summary judgment. I DO HEREBY CERTIFY that a true and correct copy of the foregoing was caused to be served by electronic mail on June 19, 2019 upon Steele T. Williams, Esquire, STEELE T’ WILLIAMS, PA, attorney for plaintiff, Pineapple Place, 1381 McAnsh Square, Sarasota, Florida, 34236; Steele TWilliams@Comeast.Net. Respectfully submitted, BRET SHAWN CLARK, PA PO BOX 1133 Englewood, Florida 34295 Tel: (941) 404-4704 BretClark@WebNetLawyer.Com (Bret Hark Bret Clark, Esquire FB #384038 Attorney for Robert O’ TooleNOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT ROBERT O'TOOLE, Appellant, v. Case No. 2D18-1935 IRIS BEAUGRAND, Appellee. Opinion filed February 27, 2019. Appeal from the Circuit Court for Sarasota County; Andrea McHugh, Judge. Bret Clark of Bret Shawn Clark, P. A., Englewood, for Appellant. Steele T. Williams of Steele T. Williams, P.A., Sarasota, for Appellee. PER CURIAM. Affirmed. LaROSE, C.J., and LUCAS, JJ., and LENDERMAN, JOHN C., ASSOCIATE SENIOR JUDGE., Concur.IN THE SECOND DISTRICT COURT OF APPEAL STATE OF FLORIDA CASE NUMBER 2D18-1935 (LT Case Number 2016-CA-006351-NC) ROBERT O’TOOLE, Defendant/Appellant, versus IRIS BEAUGRAND, Plaintiff/Appellee. On Appeal from a Final Judgment of the 12" Circuit Court in and for Sarasota County, Florida INITIAL BRIEF FOR APPELLANT BRET SHAWN CLARK, PA PO BOX 1133 ENGLEWOOD, FLORIDA 34295 (941) 404-4704 BretClark@WebNetLawyer.Com By: Bret Clark, Esquire Florida Bar Number 384038 Attorney for Robert O’Toole Defendant/AppellantTABLE OF CONTENTS TABLE OF CONTENTS TABLE OF CITATIONS STATEMENT OF THE CASE & OF THE FACTS! SUMMARY OF THE ARGUMENTS ARGUMENTS & CITATIONS TO AUTHORITY Issue #1: Issue #2: Issue #3: Issue #4: Issue #5: Are the courts obligated to determine the true nature and extent of a party’s interest in land before ordering equitable relief such as partition? Do agreements between parties control the nature and extent of the interests they have in land irrespective of how a deed to that land may read? May a court order partition of land based solely on a deed that does not reflect a party’s true interest in the land or was unlawful? Are agreements between unmarried couples that impose financial obligations on them with respect to land enforceable? Does a Circuit Court in one county have subject matter jurisdiction to determine title to land located in another? CONCLUSION CERTIFICATES ii ili-iv 1-20 21-23 24-45 25-28 28-32 32-38 38-42 43 - 45 46 47 'Note: References to the record proper containing docketed items are by an “R” followed by the page number(s). Reference to the separately filed trial transcripts are by a “TR” followed by the page number(s) of that part of the record. ~ii~TABLE OF CITATIONS CASES Armao v. McKemry, 218 So.2d 481 (Fla. DCA 2017) Bauman v. Rayburn, 878 So.2d 1273 (Fla. Sth DCA 2004) Biondo v. Powers, 743 So.2d 161 (Fla. 4th DCA 1999) Cohen v. Century Ventures, Inc., 163 So.2d 799 (Fla. 2d DCA), cert. denied, 169 So.2d 389 (Fla.1964) Condrey v. Condrey, 92 So.2d 423 (Fla. 1957) Crossen v. Feldman, 673 So.2d 903 (Fla. 2d DCA 1996) Dietrich v. Winters, 798 So.2d 864 (Fla. 4% DCA 2001) Durand v. Durand, 16 So.3d 982 (Fla. 4° DCA 2009) Evans v. Wall, 542 So.2d 1055 (Fla. 3d DCA 1989) FCCI Mut. Ins. Co. v. Cayce's Excavation, Inc. 675 So.2d 1028 (Fla. Ist DCA 1996) Frank v. Eeles, 152 Fla. 869, 13 So.2d 216 (1943) Geraci v. Geraci, 963 S0.2d 904 (Fla. 2d DCA 2006) Goedmakers v. Goedmakers, 520 So.2d 575 (Fla.1988) Harvey v. Mattes, 484 So.2d 1382 (Fla. 5" DCA 1986). Hawkins v. Hawkins, 895 So.2d 1155 (Fla. 1 DCA 2005) ~ titi~ PAGE 40 43-44 29-30 43 37 39 33,39 37 39 44 35 27 44 4B 41CASES (Continued) Hudlett v. Sanderson, 715 So.2d 1050 (Fla. 4th DCA 1998) In re Doe, 932 So.2d 278 (Fla. 2d DCA 2005) Internal Improvement Fund v. Walton County, 121 So.3d 1166 (Fla. 1 DCA 2013)(Thomas, J., dissenting) Johnson v. Dowell, 592 So.2d 1194 (Fla. 2d DCA 1992) Key v. Trattmann, 959 So.2d 339 (Fla. 1s* DCA 2007) Lallouz v. Lallouz, 695 $o0.2d 466 (Fla. 3d DCA 1997) Marks v. Stein, 160 So.3d 502 (Fla. 2d 2015) O'Donnell v. Marks, 823 So.2d 197 (Fla. 4" DCA 2002) Poe v. Levy's Estate, 411 So.2d 253 (Fla. DCA 1982) Publix Super Markets, Inc. v. Cheesbro Roofing, Inc., 502 So.2d 484 (Fla. Sth DCA 1987) (superseded by statute on other grounds) Rountree v. Rountree, 101 So.2d 43 (Fla. 1958) Safford v. McCaskill, 157 Fla. 133, 25 So.2d 210 (1946) Saporta v. Saporta, 766 So.2d 379 (Fla. 3d DCA 2000) Schroeder v. Lawhon, 922 So.2d 285 (Fla. 2d DCA 2006) Thorpe v. Myers, 67 So.3d 338 (Fla. 2d DCA 2011) Wadlington v. Edwards, 92 So.2d 629 (Fla.1957) ~iv~ PAGE 44 28 44-45 36 34-35 44 25 29 39 44 32-33 40 35 25 25, 28 35CASES (Continued) Waldeck v. Marks, 328 So.2d 490 (Fla. 3d DCA 1976) Ware v. Land Title Co. 582 So.2d 46 (Fla. 2d DCA 1991) Zanakis v. Zanakis, 629 So.2d 181 (Fla. 4th DCA 1993) STATUTES Chapter 64 §64.022 §64.051 OTHER AUTHORITIES Restatement (Third) of Trusts § 7 cmt. c (2003) PAGE 27, 30 28 35 25 48 25-26 35STATEMENT OF THE CASE AND OF THE FACTS The relationship between Robert O’Toole and Iris Beaugrand began with a phone call he made to his friend while she was convalescing in the hospital. TR at 86-7; 210. She needed help and he offered to help her and her four children move from where they had been living into a small house she had rented. TR at 87; 210. He thought that moving into such a cramped house with no functioning air conditioning in the middle of the summer in Florida posed a hardship to his friend and her family. TR at 242-3. So he offered to have them stay at the 4-bedroom home on Bayshore Drive in Englewood, Florida, that he owned, and where he had been living for a number of years. TR at 243, 254. Not long after she moved in with O’Toole, Beaugrand came into his bedroom and the relationship ceased to be purely platonic in nature. TR at 243. At the time Beaugrand and her kids moved in to O’Toole’s house on Bayshore she was involved in real estate as a real estate agent and as a mortgage broker in the mortgage lending industry. TR at 71; 115. By her own reckoning, she makes about $18,000 to $20,000 per year. TR at 146, 162. O’Toole is self-employed and there is no record that he had experienced any financial difficulties until after the Beaugrand family moved into his home. TR at 214; 229. Beaugrand owned vacant land on Pinto Trail in Englewood. TR at 89-92 (Exhibits FF & GG). Near the end of 2005 she managed to secure a construction ~1~loan, in the face amount of $400,000, to build a horse ranch. TR at 93-97 (Exhibits HH & II). Construction of the ranch began after the Notice of Commencement was issued in November, 2005, and was completed when a Certificate of Occupancy was issued in November, 2007. TR at 97, 379 (Exhibit CCC). O’Toole, Beaugrand and her children moved in a few days later. TR at 144, 245-6. According to O’Toole, at some point after the Beaugrands moved into his home he began to experience financial difficulties. TR at 214. He attributes this, in part, to having “an additional five people living in my house”. TR 214, 229, 262. He also felt obliged to help Beaugrand make some of her mortgage payments on the Pinto Trail construction loan, as she did not have sufficient resources to meet her obligations. TR at 258-9. Eventually he began having trouble making his own mortgage payments and fell into default. TR at 214. Tn 2006 he was served with what later turned out to be one of many foreclosure suits that flooded into the courts of Florida in the wake of the collapse of the housing market and, later, of the financial markets the following year. TR at 104-105; 229 (Exhibits C and D). By August, 2007, however, he did manage to reinstate his mortgage loan and the foreclosure case was dismissed. TR at 105-107 (Exhibits E&F). At that time, the Pinto Trail Ranch was nearing completion, which eventually took place 3 months later. See, supra, at 2.Beaugrand suggested to O’ Toole that he refinance his Bayshore home, using her credit rating to get a loan on more favorable terms that would reduce his monthly payments. TR at 244. She proposed that he move into the Pinto Trail Ranch with her and her family, and rent out his Bayshore home, using the rental income to pay its mortgage and carrying costs, and any other expenses related to that property. TR at 224-25, 244. Under this arrangement, O’Toole was to pay one-half of the mortgage (including taxes and insurance included in the mortgage payments) of the Pinto Trail Ranch. TR at 71, 146, 149, 234, 245, 259-60. Both parties testified that these were the terms of their agreement. Id. O'Toole did not want to move out of his own home. TR at 256. He testified that he was “falling in love” with Beaugrand and she convinced him that it would be cheaper for them to move into her house and rent out his house. Id. As part of the closing on the refinance of the mortgage loan on his home on Bayshore, O’Toole executed a deed to his property so as to hold title in his name and Beaugrand’s name jointly, with rights of survivorship. TR 122-3 (Exhibit M). Beaugrand testified that placing title to the property in both of their names was a requirement of the mortgage loan. TR at 123. O'Toole testified that the purpose of placing the property in both of their names with rights of survivorship was as a means of estate planning whereby Beaugrand would protect his children’s interest in his homestead should something ~3~happen to him. TR at 222. In her testimony, she acknowledged she was aware that the deed meant that, should O’Toole predecease her, she would take title to the Bayshore property. TR at 124. She was non-committal in her testimony as to whether she felt obligated to protect the interests of his heirs with respect to Bayshore, stating that she “would have to see what kind of money would have been left over” after paying off the mortgage on the property. Id. She said the issue was “speculation”, “I don’t know” and she “didn’t think about that.” Id. The closing on the refinanced loan on Bayshore took place in November 2007. TR at 119 (Exhibit M). The existing loan was paid off, as was a judgment for child support arrears of over $9,000 owed by O’Toole through November, 2007. TR at 117-27 (Exhibits N-Q). In January of the following year, Beaugrand took out a $30,000 equity line on the Bayshore property. TR 130 (Exhibit R). She claimed in her testimony that the funds borrowed on the equity line had been used to pay off O’Toole’s child support debt that had already been liquidated at the closing that took place two months previously. TR at 68. On cross examination, Beaugrand conceded that the child support obligation had been satisfied at the closing in November, 2007 but seemed to recall that an additional amount due had accumulated between then and January, 2008, two months later, that was paid off by her Equity Line. TR at 128-31. Beaugrand was unable to provide documentation as to neither the amounts she drew on her equity ~4e~line nor the amounts, and had no recollection of those amounts, stating that the balance due was approximately $20,000. TR 135-8. She denied that she used any of the draws on the account to satisfy her own obligations. TR at 128, 137. O’Toole testified that he received no draws from Beaugrand’s line of credit and had no access to that line. TR at 262-3. He did testify that he paid off approximately $1,000 in child support out of his own pocket in January, 2008. TR at 263. He says that any draws she made from her line were used by her for her own personal obligations. TR at 263-4. Beaugrand admits that she made her payments on the equity line, but at times O’Toole made these payments. (Beaugrand: “I have stacks of receipts where I paid”). TR at 140-41. Pursuant to their agreement, O’Toole moved into the Pinto Trail Ranch, where each had agreed to pay equal shares of the mortgage payments. TR at 71, 149, 259. As circumstances developed, there was no net income from the rental of the Bayshore house to help with their finances, and the property either broke even or lost $100-$200 per month. TR at 225. Additionally, the amount of the mortgage payments on the Pinto Ranch was more than O’Toole expected. TR at 257. At the time of their agreement, he was told by Beaugrand that the mortgage payments would be under $2,000, and was not expecting them to be closer to $3,000 per month. Id.According to his testimony, O’Toole also began to make up Beaugrand’s one- half share of the mortgage payments on her Pinto Ranch. TR at 228. According to his testimony, he made her mortgage payment “98 per cent of the time.” TR at 228- 9. Beaugrand concedes that he paid at least some of her obligations, including the Pinto Mortgage payments. TR at 142, 147. O’Toole testified that Beaugrand, who in addition to a monthly mortgage obligation of nearly $3,000 also carried the burden of a horse ranch and caring for 4 children on an income of between $18,000 to $20,000 per year, was undergoing financial difficulty, including being unable to collect child support, which had diminished as her children became older and child support was reduced. TR at 259, 163. According to O’Toole, he found himself assuming the burden of her share of expenses related to maintaining the household, as well as supporting a horse ranch accommodating six horses (and a pony). TR at 260, 158. As noted above, the parties agreed to evenly divide expenses incurred while they were living together at the Pinto Ranch (specifically the mortgage payments) and O’Toole confirmed she agreed to reimburse him for the funds he had been advancing on her behalf. TR at 259. According to his testimony, the couple had discussed the growing amounts Beaugrand owed him “many times”. TR at 329. In December, 2015, about nine months before the couple separated, O’Toole purchased a “short sale” property located in Charlotte County (The Bayshore and ~6~Pinto Trail properties are located in Sarasota County). TR at 165-72 (Exhibits 4 and Y-BB). Beaugrand’s mother loaned him $45,000 towards the purchase price and closing costs. TR at 80, 245, 269 (See also, Exhibit DD). O’Toole paid the rest. TR. at 238-40, 245, 345. According to O’Toole, a signature purporting to be his on a handwritten paper concerning the loan by Beaugrand’s mother does not belong to him as he did not sign the document. TR at 237. Beaugrand was precluded from acquiring an interest in this property under regulations concerning short sales where the loan is federally insured. TR at 169, 173-74 (Exhibits Z1-3, AA1-4). This was because she represented the buyer in the transaction and collected a real estate commission at closing. Id. Beaugrand did not contribute any of her own money to acquire title to the Charlotte County Property. TR at 269 In the month following the closing, Beaugrand had O’Toole sign a hand- written quit claim deed to this property purporting to transfer title into both of their names as joint tenants. TR at 175 (Exhibit CC). This document was prepared by Beaugrand. TR at 175,272. O’Toole, who admits he is not knowledgeable about real estate transactions, testified that he relied upon Beaugrand as the real estate agent and she “told me what to do and I did as instructed”. TR at 216; 336-7. Beaugrand testified that, despite the short sale regulations recounted above that prevented her from buying the property, she had been told by her broker that ~70she could legally transfer title to this property into her name, if she waited 90 days after the closing before recording the quit claim deed. TR 75-77. The deed to the Charlotte County Property O’Toole bought is dated December 19, 2015. TR at 174- 5 (Exhibit BB). Beaugrand’s handwritten quit claim deed to this property is dated January 20, 2016, 32 days later. TR at 175 (Exhibit CC). In the summer of 2016, the relationship between O’ Toole and Beaugrand had deteriorated to the point that he was obliged to leave the Pinto Trail Ranch. TR at 346-8; 355. Because his own home was occupied by tenants, he moved into the Charlotte County Property, which is now his homestead. Id. A few weeks after he moved out, Beaugrand sent O’Toole an email making certain demands concerning the properties at issue in this case. TR at 353-4; 357 (Exhibit VV). She demanded that he refinance the Bayshore property and remove her name from the first mortgage on that property. Id. She also claimed that she was “in possession of the original Loan Document” indicating that $56,000 was borrowed from her mother to purchase the Charlotte County Property where he was living. Exhibit VV. She demanded that this amount be repaid and that the house be sold, ifnecessary. Id. She gave him 60 days to refinance the Bayshore property and 30 days to meet her demands on the Charlotte County Property. Id. When he failed to meet these demands, she sued him.NATURE OF THE CASE(S) Iris Beaugrand filed two lawsuits. The Charlotte County Case One lawsuit was filed in the Twentieth Judicial Circuit, where the Charlotte County Property is located. R247-250 (Exhibit EE). That lawsuit was in two counts. The first count was for “Partition and accounting” in which she acknowledges that the property was being used as O’Toole’s homestead but asks that the property be sold to pay off, first, the loan to her mother of $45,000, then any liens on the property, then her legal fees, with the remainder being “equitably split between the parties”. R247-248. She also asks for an accounting of the income, profits and expenses associated with the property. R248. The second count of the case filed in the Charlotte Circuit Court is entitled “Promissory Note”. Id. This count alleges that O’Toole executed an attached handwritten paper in favor of Beaugrand’s mother in a face amount of $45,000. R249-50. Beaugrand alleges that she “owns and holds” this paper as a note by virtue of a power of attorney granted to her by her mother. R249. In this count Beaugrand inexplicable alleges that O’Toole owes her $46,000. Id. Taken together, the two counts ask for the forced sale of O’Toole’s homestead to, inter alia, satisfy O’Toole’s debt to Beaugrand’s mother.The Sarasota County Case In the Twelfth Judicial Circuit (the lower tribunal here), Beaugrand filed a simple two-page “COMPLAINT FOR PARTITION AND ACCOUNTING.” R8- 9. In this case, she asks for a judgment “partitioning the property”, and thereafter “requests the Court to order that the proceeds pay the first mortgage on the property, then the Plaintiff's attorney’s (sic) fees and costs” and then that “any remaining proceeds be equitably split between the parties, and further order an accounting of the income, profits and expenses of the property.” R9. In response, O’Toole filed a 13-page pleading (with exhibits) asserting his answer, affirmative defenses, and counterclaims to the complaint filed by Beaugrand. R13-28. With respect to the Bayshore Property, in Count One he asked for a declaratory judgment concerning the respective rights or interest of the parties to the property, find her interests to be in the nature of a constructive trust or resulting trust, asked for reformation of the deed to reflect the true nature of the interests of the parties to the property, awarding him a “special equity” to the property upon any forced sale of it, and asking for “such additional and further relief by law or in equity, and deemed appropriate in the premises”. R20. Count Two of the counterclaim also asked for declaratory relief concerning the excess payments O’Toole had made over the years towards the carrying costs of the Pinto Trail Ranch. R20-21. He claimed the right to be reimbursed for his excess ~10~payments by way of a “special equity, credit or equitable lien” and requested that judgment be entered “for the unreimbursed amounts expended by him either by way of damages or in quantum meruit”. R21. Count Three of O’Toole’s counterclaims also asked for a declaratory judgment concerning title to the Charlotte County Property (his homestead) finding that Beaugrand’s interests were in the nature of a constructive or resulting trust, and for a reformation of the deed to reflect the true interests of the parties in the property. R21-22. He also asked for a “special equity” in the proceeds, should the court order the forced sale of it. R22. Other claims asserted in the pleadings are not germane to this appeal. COURSE OF THE PROCEEDINGS A bench trial was convened before the Circuit Court Judge assigned to hear the Sarasota County Case. TR at 11. At that time the pleadings before the Court were those filed in that case, as summarized above, not the pleadings filed in the Charlotte County case. TR at 26 (statement of counsel for Beaugrand). Trial of the Charlotte County Case At the trial the parties make reference to a stipulation between them whereby the issues in the Charlotte County Case were to be decided in the Sarasota County Case. TR at 26, 48, 395-96, 398, 439. But while the stipulation is discussed, and ~l1~parts of it are even quoted at one point, TR at 439, the stipulation itself was not of record at the time of the trial (it was filed after the trial of the case), R6 (Docket Sheet entry for April 26, 2018), nor is it part of the record on appeal. The pleading filed by Beaugrand in the Charlotte County Case was not filed in the Sarasota County Case, nor was the pleading filed by Beaugrand in Sarasota amended, or otherwise supplemented to bring it before the trial court. TR at 26 (statement of counsel for Beaugrand). Evidence of its existence in the record before this Court can be found by way of an Exhibit introduced at trial by O’Toole and a post-trial motion, R247-250 (Exhibit EE); R580 at §2, text accompanying n. | (Robert O’Toole’s Motion to Dismiss for Lack of Subject Matter Jurisdiction), but the pleading itself was never made part of the pleadings in the case sub judice. During opening arguments, the trial judge inquired as to whether she was being asked to decide the Charlotte County Case, or whether her decisions “would just impact that lawsuit”. TR at 48. Beaugrand’s counsel replied in the affirmative as to the former when he stated that the court would be deciding “those partition issues here for economy’s purposes”. Id. O’Toole’s counsel (the undersigned) replied in the affirmative as to the later, not the former, inasmuch as, if the court made findings on his request for declaratory relief concerning the Charlotte property, those findings would impact the Charlotte County Case. TR at 48-49. ~12~Based on these statements, the judge then said she would “listen carefully about” the Charlotte Property, and then proceeded with the trial. TR 49. At the close of the evidence presented at trial, the court revisited the issue of the adjudication of the Charlotte County Case. TR at 395. Upon inquiry, counsel for O’ Toole acknowledged the existence of a stipulation to try claims related to the Charlotte County property in the Sarasota County Case but again stated that he did not interpret the stipulation “to mean that this Court has a claim for partition of that property properly before it.” TR at 396. The trial judge responded by stating that, “without it being pled in the Complaint, unless you stipulate that I am to make a ruling on that today, I’m not inclined to do that.” TR at 396. The judge then directly inquired if O’Toole acquiesced in the court making a decision partitioning the Charlotte County Property “even though it’s not — it was not part of the plaintiff's pleading.” TR at 398. Counsel repeated his position that partition was not appropriate, but that, in fashioning equitable relief that would resolve all of the issues in the case, the result could be that the Charlotte County Property could be ordered to be partitioned. Id. But, eventually, counsel stipulated that the trial judge “be allowed to order partition” of the Charlotte County property. TR at 399. That stipulation appeared to unravel during closing arguments. ~13~Beaugrand objected as O’Toole was presenting arguments that the quit claim deed placing her on title to the Charlotte County was void and could not be enforced. TR at 431-32. The grounds for the objection was that that argument was not included in the pleadings. Id. This prompted the court to rule as follows: THE COURT: All right. This is what I'm going to find. At this point this 808 property was -- I was going to try by consent. I don't find that there's a meeting of the minds between the parties on the Court making a determination on this 808 property. I think that it's not in the pleadings. The agreement is messy between the two of you on what you're all consenting to be tried before the Court, and so for that reason I'm only going to consider what's in the pleadings and you'll have to go to Charlotte County for it. I don't know if there's another mechanism to get it before this Court since I have heard a lot of evidence and could take judicial notice and use some of the testimony in this case if you were to agree to a change of venue, but at this point I am not going to make a ruling on anything outside the pleadings. TR at 433-34. At that time, counsel for O’Toole advised that the parties did agree to consider all claims between them, including claims related to the Charlotte County Property which, by definition, involved the validity of the quit claim deed Beaugrand had induced O’ Toole to execute that purported to grant an interest in the property to her. TR at 434-435. The court eventually responded as follows: *** there's nothing before this Court as I sit here today ready to, you know, rule at the end of a trial. This warranty deed — this is the first invalidity of it and how that impacts partition, how it impacts partition, how it impacts the entire case, has really not been focused on much. So I guess * * * It’s just putting the Court in a very awkward position. ~14~TR at 435. In response, counsel for O’Toole suggested that the parties brief the case and submit those for consideration by the court before a ruling was made. TR at 435-36. After making the observation that “the purpose of pleadings is to put the other party on notice of what * * * will be argued in court” the judge then went on to state that “[w]hat I’m not willing to do is to extend the trial for briefing, et cetera”. TR at 437. Counsel then clarified that he was not asking that the trial be continued, but that the court should be briefed before making a decision. TR at 437, 448. This invitation was declined: Mr. Clark, I considered your request to brief this, but, you know, all of these issues and the depositions were done well ahead of the trial. I don’t feel that it’s necessary to give that extension. TR at 452. At that time, the judge made her rulings in the case, recounted in their entirety infra at page 17. None mentioned the Charlotte County Case. Trial of the Sarasota Case Testimony of the two parties and substantial documentary evidence was adduced at the trial, which Mr. O’Toole submits is fairly represented in the fact section appearing at pages | through 8 of this brief. Beaugrand presented her cases as being simple, straightforward cases where she was entitled, as a “matter of right” to partition of O’Toole’s homestead property in Charlotte County, and the Bayshore home where he used to live, in essence, because she “does not want to be in a situation of owning property with her ex- ~15~boyfriend”. TR at 22-35; 29 (“matter of right”), 35 (“boyfriend” comment); see also, R94-96 (Beaugrand’s Trial Memorandum of Law — Partition). By contrast, O’Toole argued that the resolution of the case was not determined as a matter of right, but by what, in equity, was fair. TR at 41. He recounted the financial entanglements of the parties, asked for a declaratory judgment to determine what the underlying rights and interests of the parties were to the properties involved based on those entanglements, and asked that an accounting be had to “settle accounts” as between them. TR at 35-55, 55 (as to “settle accounts” comment); see also, R86-93 (Robert O’Toole’s Trial Brief). While she conceded that there was an accounting requested for the Bayshore property and the Charlotte County Property, Beaugrand objected to “an accounting of the parties’ overall relationship”. TR at 55-6. This prompted the trial judge to review O’Toole’s pleadings which she concluded did not ask for an “accounting of money contributed to the relationship, but, rather obviously money related to the upkeep, maintenance or purchase of” the three properties that were the subject of his counterclaims, an accounting for which the judge did find was properly pled within the wherefore clauses of O’Toole’s counterclaims. TR at 58. Most of the exhibits and testimony presented at trial detailed the transactions as between the parties regarding the three properties in question, and their agreements and understandings concerning them. Some sparse financial records ~16~related to the accounting for the properties were introduced at trial, which primarily consisted of limited “samples” offered by Beaugrand as proof that she did contribute some funds towards the properties. TR at 388-393, 393 (as to exhibits being a “representative sample”)(R548-567 - Exhibit 17). A notice to produce documents at trial, related to the accounting for the properties, was served on Beaugrand by O’Toole. TR at 375; R83. The notice required her to produce all documents showing funds she had contributed towards the three properties. R83 at A (1)-3). In response she produced a box containing what her counsel described as a “menagerie of documents” that were “all over the place” and that did not constitute a complete set of papers responsive to the request. TR at 375-377; 380-85; 383 (as to the “menagerie” comment). After closing arguments, the Court pronounced judgment. DISPOSITION BELOW Immediately after the conclusion of closing arguments, the trial judge announced her ruling on the merits, which consists, in its entirety, of the following: At this time I am going to rule in favor of the plaintiff on Count 1 for both the partition and the accounting. As to the counterclaim, claims 1, 2 and 3, which pertain to the three separate properties, the Bayshore property, the Pinto property, and the 808 property, Count 4 - - or Counterclaim 4 not being before the court anymore regarding the Gallery unit property, I am also going to rule in favor of the plaintiff. ~17~TR at 452. The court reserved on the issue of attorney fees, and asked counsel for Beaugrand to prepare and submit a final judgment. TR at 452-53. Prior to the entry of the judgment submitted by Beaugrand to the trial judge, O’Toole filed a motion to dismiss the Charlotte County Case and Count 3 of his counterclaim (concerning title to the Charlotte County Property) for lack of subject matter jurisdiction. R580-584. The transcript of the hearing on that motion appears at pages 600-619 of the Record on Appeal. In the motion and at the hearing counsel for O’Toole acknowledged that he had attempted to acquiesce in having the court consider the Charlotte County Case but had determined that to do so was in error, as the Sarasota Circuit Court lacked subject matter jurisdiction over that case and the Charlotte County Property. Id. The trial judge noted that paragraph three of the proposed final judgment that had been submitted states that the judgment only “recommends” that the Charlotte Circuit Court enter the partition judgment against the Charlotte County Property and opined that this part of the judgment “is not binding on the Circuit Court in the Charlotte County case”. R603. Counsel for O’Toole responded that this paragraph of the judgment was inappropriate as it would be void for lack of subject matter jurisdiction over that case. R603-4. Counsel for Beaugrand stated that the parties “never agreed to confer partition subject matter jurisdiction” of the Charlotte County Case in the Sarasota Circuit ~18~Court. R605. Citing to no legal authority in response to the motion, counsel argued that the claim raised by O’Toole concerning title to the Charlotte County Property required only “personal jurisdiction of the parties” and that the court had “in personam jurisdiction of the parties to determine all the counterclaims asserted in the case.” R607. After hearing additional arguments, the trial judge denied the motion, ruling as follows: It may be that this does turn out to be error, but I'm going to sign -- I agree with Mr. Williams’ analysis and I'm going to sign the judgment as presented to the Court and I will deny the Motion to Dismiss scheduled for today. R613. The judge then asked counsel for Beaugrand if there were any amendments he was seeking to the version of the judgment he had presented to her to sign. R614. He replied that there were. Id. She signed it anyway. Id. At the conclusion of the trial, the lower court made no findings of fact or conclusions of law concerning the disposition of this case. The final judgment prepared for the trial judge contains a bare recital that the parties “each own an undivided interest as tenants in common” in O’Toole’s Bayshore property and that the property “is indivisible and cannot be partitioned in kind”. R586. The judgment orders the property to be sold at judicial sale and, despite the prayer for relief that the net proceeds be equitably divided, orders that, after paying off both mortgages on the property, attorney fees and the costs of the sale, that the net proceeds be “equally” distributed to the parties. R586 at 2. ~ 19 ~Paragraph 3 of the judgment is the portion that “recommends” a judgment be entered in the Charlotte County Case. R586 at 93. This part of the judgment recommends no findings, as to the basis for any underlying interests of the parties in the Charlotte County Property, but does contain a repetition of the phrase that the parties have an undivided interest in the property as tenants in common and that the property is “indivisible and cannot be partitioned in kind”. R587-8 at 3(a) and (b). This portion of the judgment also recommends the judicial sale of this homestead property, and that $45,000 be used to pay Beaugrand’s mother, with the balance of the proceeds, after paying costs of the sale and attorney fees, being “split between the parties”. R588 at §3(d). The remainder of the judgment summarily disposes of the remaining claims in the case in favor of Beaugrand and against O’Toole, save for one. The judgment is silent as to the accountings ordered by the court. ~20~SUMMARY OF THE ARGUMENTS In this case, Bob O’Toole finds fault with the manner by which the judgement here on review summarily strips him of title to the home where he now lives, and the one where he used to live before moving in with his ex-girlfriend, Iris Beaugrand. The judgment orders that his houses be sold, while his ex-girlfriend gets to keep her house (where they lived together for almost nine years) even though he made most of the mortgage payments for that house. Bob thinks that this judgment is unfair. He asked the judge who heard his case to be fair in resolving the financial entanglements he had with Iris after they broke up. He asked that their accounts be settled up fairly. His lawyer said this meant he was asking the court to “do equity”, which the court ended up not doing. Instead, the judge said this case is real simple. All she had to do was look at the deeds his ex-girlfriend had him sign, which looked like they gave Iris an equal share to the house where he used to live, and the one where he lives now. For some reason Iris did not think to also put his name on the deed to her house. He did not think to ask her why she didn’t. He trusted her. After all, she was a real estate agent and mortgage broker so she must have known what to do. Plus he was in love with her. ~21~In this appeal his lawyer says that is not the way things are supposed to work in cases such as this. The case is not so simple. This is not a case where a judge hears evidence and makes no findings of facts or conclusions of law, and refuses to let the two people involved submit briefs to help her make a good decision that is fair to both sides — a decision that is well reasoned and explains what she is doing and why she is doing it so that everyone understands it - even the judge herself. This is not a case where a judge renders a simple verdict in a simple case for one side and against the other. But that is what happened. And so we now have an appeal of what the judge said. Bob is told by his lawyer that the judge did not follow the law when she ordered “partition” of the house where he lives and the one where he used to live. The judge was not supposed to just look at the deeds and not look at anything else. She was supposed to look at the underlying agreements between him and Iris. She was supposed to do what was fair based on what he and Iris agreed they were supposed to do. She was supposed to do “equity” the lawyer says. Now Bob will read in this brief that the judge did not do equity like she was supposed to. She just did what was easy and simple, not what was fair. There are a number of angels dancing on the heads of pins in the brief that has been filed on his behalf in this case that express how what the judge did was wrong. ~20~But what they all come down to is that the deeds his ex-girlfriend had him sign did not really sign away all of his rights, and allow her to keep all of hers. One has to look past the deeds themselves to do what is fair in a case such as this. The law is not so cruel as to make him forfeit his rights, while she keeps hers. The judge was not even supposed to have the power to foreclose on the place where he lives because, well, the law says she is not allowed to do that given what his lawyer says was “subject matter jurisdiction” and all. Besides which, the judge didn’t have the right paperwork in front of her to do that. But, well, she did it anyway, and so it looks like he is going to have his last refuge taken away from him, even though his lawyer says it is his homestead and that’s just not right. Bob’s lawyer told him not to pack his bags just yet. Have a little trust, he told him, despite what has happened so far. Let’s see what the Court of Appeals has to say in the case of O’Toole versus Beaugrand. There may just be some fairness left in this world after all. ~23~ARGUMENTS & CITATIONS TO AUTHORITY O Toole v. Beaugrand is an important case that clarifies the existing state of both substantive and procedural law concerning the rights and responsibilities of parties to real property that, in this case, arises in the context of unmarried couples who find themselves having to separate their financial entanglements on the unfortunate occasion of a separation from their emotional ones. The need for this clarification becomes apparent from a review of the record of this case that reveals a multitude of errors by the lower court in a case that was presented, on the one hand, as an over-simplified case merely seeking partition of land as a “matter of right”, and, on the other, a more complex case seeking equitable relief that more broadly addresses the real issues at stake. In choosing the path of least complication, the lower court ignored precedent that provided guardrails for a more reasoned and studied disposition of this case that would have produced a fair result that equity demands in circumstances such as the one presented here. Regrettably, the court eschewed those guardrails that would have led it down a path that would have ended with a fair and just result. In the course of correcting the errors committed by the lower court, O’Toole v. Beaugrand will provide more clarity in the adjudication of the rights and responsibilities of parties owning land, both in the context of unmarried couples formerly in committed relationships, and cases in other contexts yet to be decided. ~24~Issue #1: Are the courts obligated to determine the true nature and extent of a party’s interest in land before ordering equitable relief such as partition? That the answer to this question in the affirmative, as a matter of law, should be open and obvious, yet was not followed in the trial court, is an indication of a fundamental misconception below as to the proper consideration and disposition of this case. The decision of the trial court to not apply this basic requirement of law to the facts in the case is an error of law subject to de novo review. Thorpe v. Myers, 67 So.3d 338, 342 (Fla. 2d DCA 2011). Actions for partition are based in equity and are governed by Chapter 64, Florida Statutes. Marks v. Stein, 160 So.3d 502, 506 (Fla. 2d 2015), citing Schroeder v. Lawhon, 922 So.2d 285, 292 (Fla. 2d DCA 2006). §64.051 provides that the “court shall adjudge the rights and interests of the parties” and, where “the rights and interests of a plaintiff are established” the court “may order partition to be made” and order that “the interest of the plaintiffs, and such of the defendants as have established their interests to be allotted to them.” The plain meaning of this statute requires a court in equity to determine, as a threshold matter, what legal rights a party has to land in any case where that person asserts rights in the land, and asks for the equitable remedy of partition to enforce those rights. Once a party, such as Beaugrand, bears her burden of proof as to the nature and extent of her interest in the two parcels of land involved in this case, a ~25~court sitting in equity “may order partition to be made”, and will partition the land “if it appears that the parties are entitled to it”. §64.051. In this case the lower court made no findings as to the nature and extent of the interest Beaugrand has in either the Bayshore property or O’Toole’s homestead, and left precious few hints on the record that would form a solid evidentiary basis for the conclusory statement inserted into the final judgment that the parties each “own an undivided interest as tenants in common” in these properties. See, supra at page 19, R586. Indeed, the evidence of record does not support a finding, implied by this recital in the judgment, that Beaugrand acquired an interest in either property that equals that owned by O’Toole. The evidence introduced at trial, undisputed by Beaugrand, was that she paid absolutely no consideration for any interest in O’Toole’s Bayshore home. She herself testified that the purpose of placing her name on the title to the Bayshore Property was to facilitate the refinancing of it, not that she was purchasing an interest init. See, supra at page 3. She all but conceded that she had no interest in title to the property when she eschewed any claim to that effect, and demanded instead that it be refinanced and her name taken off the mortgage. See, supra at 8 and referenced record evidence appearing at TR at 353-4; 357 (Exhibit VV). Similarly, even if the court below had subject matter jurisdiction to determine the issue (but see, infra at 43-45), the evidence shows that Beaugrand provided no ~26~consideration that would support an acquisition of an interest in the Charlotte County Property, much less an investment equal to O’Toole’s, even if the court could get beyond the fact that the deed she fashioned to have O’Toole purport to convey any interest in that property to her was patently illegal. As noted above, the statute on partition requires the court to adjudge the interests of the parties and that partition be made if it appears the parties are entitled to it, and the judgment is to set forth the “interest to be allotted” to each party “with an ownership interest in the property.” Geraci v. Geraci, 963 S0.2d 904, 906 (Fla. 2d DCA 2006). Where, as here, a party does not acquire an interest in property by the payment of consideration for that interest, they are not regarded as holding title as a joint tenant, and they do not become a full one-half owner of that property. Waldeck v. Marks, 328 So.2d 490 (Fla. 3d DCA 1976). The statutes and these cases obliged the trial court to first determine, based on the evidence, what interest, if any, Beaugrand had purchased in these properties and, if she had acquired any at all, what percentage ownership in the land she had thereby acquired by her investment. While this Court would defer to any findings of fact made by the lower court, this record does not reveal that any true findings on this threshold issue were ever made and, to the extent the bare recital in the skimpy final judgment qualifies as a “finding” of fact, that finding must be supported by ~27~substantial competent evidence. Thorpe, 67 So.3d at 341 (citation omitted). Additionally, this Court is not required “to disregard record evidence that disproves the lower court's findings or that reveals its ruling to be an abuse of discretion.” In re Doe, 932 So.2d 278, 284 (Fla. 2d DCA 2005). 67 So.3d 342. As noted above and in Thorpe, “to the extent that the circuit court based its rulings on its interpretation of the pertinent statute,” this Court employs a de novo standard of review. Id., citing Ware v. Land Title Co. of Fla., Inc. 582 So.2d 46, 46-47 (Fla. 2d DCA 1991) (applying de novo review). Issue #2: Do agreements between parties control the nature and extent of the interests they have in land irrespective of how a deed to that land may read? The discussion above (and record below) strongly suggest that the lower court in this case did not make a finding, based on the evidence, that would allow the court to discern the nature and extent of Beaugrand’s interests in either the Bayshore Property or the Charlotte County Property, and instead simply took the deeds of conveyance of this land at face value. This was error. As discussed above, a partition case involves a number of steps, starting with a determination of the interests that each party has in the land to be partitioned. That interest is determined by the agreement or understanding between the parties that gave rise to the instrument of conveyance, the latter of which being merely the means to effectuate the former - not the other way around. ~28~O'Donnell v. Marks, 823 So.2d 197 (Fla. 4° DCA 2002) is illustrative and sets forth the step by step process the lower court was to follow in adjudicating this case. For reasons not germane to the illustration of the point here raised, the court found that when the property in question was purchased, the intent of the parties was to create equal shares in it by way of a joint tenancy with rights of survivorship, even though one party paid more than one-half of the costs to acquire and maintain it. 823 So.2d 198-9. That is step one of a two-step process. The next step requires the court to determine the reimbursable expenses incurred for the acquisition and maintenance of the property, and then calculate each party's proportionate share of those expenses based on that party’s percentage of ownership. Id., citing Biondo v. Powers, 743 So.2d 161 (Fla. 4th DCA 1999). That amount is then subtracted from the amount the other party otherwise would have received from the sale and given to the party that paid the expenses. Id. Biondo itself illustrates more clearly how the agreement of the parties, and not the instrument of conveyance, drives the determination of the respective rights in land owned by the parties. In that case, the two parties purchased property as equal partners, but the land was titled in the name of only Biondo. Later, there were a series of conveyances and mortgages that eventually reposed title in both their names as tenants in common. 743 So.2d 162-3. ~29~But the court looked to the original agreement of the parties when they purchased the property, as confirmed by the testimony of Powers, that they remained equal partners in the land, even though Powers paid 85% of the acquisition and carrying costs of the property. 743 So.2d 164. The result was that, in allocating the proceeds from the sale of the property, Powers did not have an 85% share of the property and Biondo only 15%, but rather, she was entitled only to reimbursement of her half of the expenses from Biondo’s one-half share. Id. The Waldeck case cited in the previous section of this brief illustrates again that the intent of the parties controls what their interests are in land, not the instruments of conveyance, only in that instance, the court did not find that the parties owned equal interests in the land. In that case, Waldeck conveyed a one-half interest in land that he and Marks intended to develop. 328 So.2d 492. Marks, however, paid no consideration for that interest and, for that reason, “the trial court was in error in considering the parties as joint tenants at the beginning of this litigation.” 328 So.2d 493. Instead, the court found that the interests of the parties in the land were through a partnership or joint venture agreement, under which their respective equities in th