Brumlik v. Palmer

FRANK D. UPCHURCH, Jr., Judge. Appellant Timothy Brumlik appeals from a partial final judgment entered in an action to recover real property. Appellees Raymond and Dorothy Palmer, the sellers, and Timothy Brumlik, the purchaser, entered into a real estate sales agreement but failed to close because of various disputes. Brumlik apparently obtained the original deed and recorded it. The Palmers sued seeking ejectment and compensation for damages to the property while in the possession of Brumlik. Brum-lik answered and counterclaimed for specific performance. The court found that the agreement had been mutually breached, denied damages and specific performance, ordered the Palmers to return the deposit, and ordered Brumlik to execute a deed reconveying the property to the Palmers. The trial judge later ordered Brumlik to obtain a deed from a third person, not a party to the proceedings, to whom he had subsequently conveyed the property. The relief granted is not supported by the pleadings or the proof. While counsel for the Palmers did make a motion which was interpreted by the court to be a motion to amend the pleadings to conform to the evidence, the nature of the motion does not appear in the record nor does the amendment or the type of relief sought. Because neither the pleadings, amendments nor proof support the relief granted, we reverse and remand for repleading and retrial. REVERSED and REMANDED. DAUKSCH, C. J., and COBB, J., concur.