Cohen v. Roth, No. 81-758

• Court: Court of Appeal of Florida (US)
• Writing for the Court: JORGENSON
• Citation: 417 So.2d 743
• Parties: Stuart COHEN and Jay Cohen, as Personal Representatives of the Estate of Lewis X. Cohen, deceased, and Pearl Cohen, individually, Appellants, v. Bert ROTH and Gertrude Roth, Husband and Wife, Appellees.
• Decision Date: 20 July 1982
• Docket Number: No. 81-758

Page 743

417 So.2d 743 Stuart COHEN and Jay Cohen, as Personal Representatives of the Estate of Lewis X. Cohen, deceased, and Pearl Cohen, individually, Appellants,
v.
Bert ROTH and Gertrude Roth, Husband and Wife, Appellees. No. 81-758. District Court of Appeal of Florida,
Third District. July 20, 1982.

Page 744

Mershon, Sawyer, Johnston, Dunwody & Cole and C. Randolph Coleman, Miami, for appellants.

Cohen, Kokus & Ostrow and John B. Ostrow, Miami, for appellees.

Before NESBITT, DANIEL S. PEARSON, and JORGENSON, JJ.

JORGENSON, Judge.

This is an appeal from a final judgment entered by the trial court denying a partition and other relief sought by the appellants. ¹ For the reasons which follow, we affirm in part and reverse in part.

In the early 1970's, Lewis X. Cohen, now deceased, and Bert Roth made certain real property investments in northeast Dade County. Their oral understanding was reduced to writing in a joint venture agreement which appears as an appendix to this opinion. The properties in question were managed primarily by Bert Roth, with occasional consultation from Lewis Cohen. Throughout the period of co-ownership, the profits were evenly divided. Following the death of Lewis X. Cohen in July, 1979, the estate and Pearl Cohen determined that they no longer wished to participate in the joint venture agreement, resulting in the action below.

We conclude that the trial court properly denied the partition action. Iglehart v. Phillips, 383 So.2d 610 (Fla.1980); Condrey v. Condrey, 92 So.2d 423 (Fla.1957). The joint venture agreement, viewed in its totality, precludes partition where, as here, a unanimous consent provision is present. The agreement specifically establishes in Paragraph 7 that husband and wife are to be treated as a unit. It is clear from this record that there has been substantial performance under the agreement and that the parties have relied upon it. The trial court correctly viewed the Cohens and the Roths as two separate units and did not abuse its discretion in denying partition.

It was error, however, to deny the accounting. The Roths owe a fiduciary duty to the appellants and, thus, must give account of their activity. Donahue v. Davis, 68 So.2d 163 (Fla.1953); Manning v. Clark, 56 So.2d 521 (Fla.1951); Cushman v. Schubert, 110 So.2d 703 (Fla. 2d DCA 1959).

Affirmed in part, reversed in part and remanded for further proceedings in accordance with the views expressed herein.

APPENDIX JOINT VENTURE AGREEMENT

THIS AGREEMENT OF JOINT VENTURE made and entered into by and between BERT ROTH and GERTRUDE ROTH, husband and wife, of 11950 North Bayshore Drive (Apartment 7B), North Miami, Florida, hereinafter referred to as "First Parties", and LEWIS X. COHEN and PEARL COHEN, husband and wife, of 1301 N. E. Miami Gardens Drive (Apartment 606W), North Miami Beach, Florida, hereinafter referred to as "Second Parties";

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WITNESSETH:

WHEREAS, the parties hereto are the owners in fee simple absolute of each of the parcels of property hereinafter described, each of the parties having an undivided one-half interest in and to each of the said parcels of property; and

WHEREAS, the parties are desirous of formalizing their understanding and agreement with respect to the ownership, management, obligations and benefits and profits appertaining to the said parcels of property and derived from the said parcels of property.

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