Pasekoff v. Kaufman, 79-2372

• Citation: 392 So.2d 971
• Decision Date: 13 January 1981
• Docket Number: No. 79-2372,79-2372
• Parties: Beuleah S. PASEKOFF and Richard L. Grinberg, as Personal Representatives of the Estate of Harold Pasekoff a/k/a Harold J. Pasekoff, deceased, Appellants, v. Madeline KAUFMAN, Sylvia Engels, Deverah Hurwick and Judith Pasekoff Kay, Appellees.
• Court: Court of Appeal of Florida (US)

Page 971

392 So.2d 971

Beuleah S. PASEKOFF and Richard L. Grinberg, as Personal Representatives of the Estate of Harold Pasekoff a/k/a Harold J. Pasekoff, deceased, Appellants, v. Madeline KAUFMAN, Sylvia Engels, Deverah Hurwick and Judith Pasekoff Kay, Appellees.

No. 79-2372.

District Court of Appeal of Florida, Third District.

Jan. 13, 1981.

Rehearing Denied Feb. 13, 1981.

Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellants.

Wolff & Friedman and Julian R. Benjamin, Miami, for appellees.

Before HENDRY, SCHWARTZ and NESBITT, JJ.

SCHWARTZ, Judge.

The proper resolution of this intrafamily dispute over an interest in realty is complicated by the relative intricacy of the operative facts and the inadequacy of the pleadings to reflect the parties' respective positions. We have concluded, however, that the judgment under review, which in effect quieted title to the property in the heirs of Frances Pasekoff over the conflicting claims of the estate of her son, Harold Pasekoff, cannot stand.

Facts and Proceedings Below

The case involves the title to an undivided half-interest in now-improved property in Dade County. (At all pertinent times, the other half has been owned, without dispute, by H. I. Kopelman and his wife.) The 50% interest now in question was conveyed by Sylvia (Pasekoff) Engels, and Burton Engels, her husband, by a warranty deed ¹ dated December 3, 1956, to a grantee described as the "Sam Pasekoff Company ... of the County of Allegheney (sic) ² in the State of Pennsylvania."

The grantee, "Sam Pasekoff Company," was a partnership engaged in the produce business in Pittsburgh, Pennsylvania. As was indisputably established below, in 1956 and for several years before, the business was operated and owed as co-partners by Sam Pasekoff and his son, Harold. ³ That situation continued until April 1, 1958, when Sam conveyed his entire interest in the partnership and its assets to Harold. ⁴ In accordance with this agreement, Harold thereafter owned and ran the "Sam Pasekoff Company" until shortly before his death in 1973. ⁵ Sam Pasekoff himself died in 1965, leaving his entire estate to his wife Frances, who passed away in 1971. Frances' will devised all her property in equal shares to her five children, Harold and the four daughters, including Sylvia Engels, who are the present appellees.

As for the interest in the Dade County realty, the record shows that it was actively managed by the other half owner, Kopelman, who, unlike the Pasekoffs, resided in the area. From 1956 on, half of the net rental proceeds were forwarded to the Sam Pasekoff Company, which, in turn, bore half of the taxes and other expenses. Subsequent to April 1, 1958, both the income and costs were duly reported as such, in tax returns and otherwise, by Harold Pasekoff while he was the sole owner of the "Sam Pasekoff Company" and, after his death, by his estate. On the other hand, the Florida property was not included as an asset of the estate of either Sam or Frances Pasekoff, ⁶ and none of the daughters asserted any claim to the property until their response to the proceedings below.

In 1976, the representatives of Harold's estate brought the present action which they apparently believed would be an unopposed formality against his four sisters to quiet title to the property in question. The complaint alleged that Harold had acquired ownership of the entire half-interest by adverse possession under color of title. See, § 95.16, Fla.Stat. (1975). This allegation, in common with all of the plaintiffs' later-presented theories, did not attempt to distinguish between Harold's ownership of one-half of the 50% interest in question under the 1956 deed as a then-one-half owner of the grantee-partnership, and the interest in the partnership he allegedly received from his father in 1958. Indeed, Harold's estate has never straightforwardly asserted his ownership of half of the 50% interest in question simply as the legal or equitable titleholder of that half. Instead, the complaint seemed to contend that the plaintiffs' "color of title" to the whole 50% interest was based on the 1958 transaction. The defendants happily joined issue on this all-or-nothing basis. They denied the viability of the 1958 "transfer" and the adverse possession claim and counter-claimed for ejectment of Harold's estate on the basis of their own title to the half-interest stemming from the 1956 deed, deraigned from Sam through their mother, Frances. In the skirmishes over the pleadings which followed, the plaintiffs amended their complaint to include a count based on adverse possession without color of title, Section 95.18, Florida Statutes (1975), and the court dismissed the original "with color of title" claim for failure to state a cause of action. ⁷ After these events, and extensive discovery, the plaintiff-estate moved in March, 1978 for leave to file a third amended complaint to include a count for the imposition of a trust in the estate's favor upon the entire one-half interest in question. The trial judge denied the motion.

When the case went to non-jury trial 18 months later, the only remaining count in the complaint was the one based on adverse possession not under color of title. At the conclusion of the plaintiffs' case, which developed the facts already stated, the court granted an involuntary dismissal of this claim. ⁸ Immediately thereafter, and without additional testimony, the defendants moved for and were granted a summary judgment on their counterclaim. The court thereupon entered a single final judgment dismissing the plaintiffs' action with prejudice and declaring each of the four daughters (and Harold's estate) to be the owners of 20% of the disputed interest that is, 10% of the parcel as a whole. In addition, the defendants were awarded a money judgment plus interest in an agreed amount which represented the daughters' share of the profits of the property collected by Harold and the estate after their mother's death. The estate appeals. For two reasons, we reverse.

Error to Enter Judgment for Defendants Because of Failure to Negate Harold's Interest As Co-Partner of Sam Pasekoff Company

As we have seen, the appellees' claim to the property like the plaintiffs' is derived from the common source of the 1956 deed to the Sam Pasekoff Company of Allegheny County, Pennsylvania. In this situation, it was incumbent upon the counter-claimants to establish that they "acquired title from the common source." (e. o.) Nissim Hadjes, Inc. v. DiCostanzo, 197 So.2d 602, 607 (Fla. 3d DCA 1967). See also, Bass v. Ramos, 58 Fla. 161, 50 So. 945 (1909); Florida Finance Co. v. Sheffield, 56 Fla. 285, 48 So. 42 (1909). As to one-half of the interest in controversy, it is clear not only that the appellees did not make this required showing but that, so far as the record presently reflects, title was in fact held by the plaintiff-estate. In 1956, the law in Florida was that, while a partnership could not hold property in the partnership name, ⁹ "(a) deed made to a firm by the firm name, instead of the individual members of the firm, is not for that reason void. It is a latent ambiguity, that may be explained and supplied by parol." LaFayette Land Co. v. Caswell, 59 Fla. 544, 52 So. 140, 141 (1910). Accord, Cawthon v. Stearns Culver Lumber Co., 60 Fla. 313, 53 So. 738 (1910). In this case, the "parol" testimony clearly established that Sam and Harold each owned 50% of the Sam Pasekoff Company in 1956 and that Harold therefore became the vested owner, at least equitably, of 50% of the partnership's share of the property when the deed was issued. Dineen v. Lanning, 92 Neb. 545, 138 N.W. 759 (1912); Silverstein v. Wolf, 151 A. 482 (N.J.1930); Murray, Ferris & Co. v. Blackledge, 71 N.C. 492 (1874); see, Loubat v. Nourse, 5 Fla. 350 (1853).

The appellees make two separate contentions, in contradiction to this analysis, to support their claim that Sam Pasekoff was the sole holder of the title under the 1956 deed. Neither has merit. The first is that, as their brief argues, "(t)here was no evidence whatsoever before the court that the Pennsylvania partnership had anything to do with the Florida property." In the light of the overwhelming and undisputed showing to the contrary not least of which is the deed's specific designation of the grantee as being located in Allegheny County, Pennsylvania we regard this argument as both specious and disingenuous. ¹⁰ The appellees also suggest the Sam Pasekoff's undivided ownership is shown by the fact that Kopelman and Sam, joined by their wives, executed a mortgage on the entire parcel, with Harold as the mortgagee, dated three months before and recorded simultaneously with the deed. The mere execution of a mortgage, however, is no evidence whatever of ownership of the mortgaged property. See, Wagner v. Roberts, 320 So.2d 408 (Fla. 2d DCA 1975), cert. denied, 330 So.2d 20 (Fla.1976). In no sense, therefore, can the mortgage be regarded as a muniment of title from which the defendants could derive ownership of the entire 50% interest, so as to defeat the rights of Harold as the co-owner of the grantee of record, "Sam Pasekoff Company." ¹¹ , ¹²

On this basis, the appellants did not establish their entitlement, as a matter of law, to the entire disputed interest in the property. The summary judgment which so held was therefore erroneously entered for this reason alone. ¹³

Error to Deny Amendment to Raise Constructive Trust Claim

The proposed third amended complaint sought to impress a trust on the property based upon the allegations that (a) in the 1958 dissolution and "gift," Sam intended to and avowedly had conveyed his entire interest in the Florida property to Harold and (b) although the transfer was ineffective to pass legal title, ¹⁴ from that time forward, Harold treated the interest as his own, collecting the profits and paying the expenses totally without complaint from Sam, Frances, or the appellees,...