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Atkinson v. Anderson

Florida Court of Appeal, Fourth District

December 14, 2011

Stephen ATKINSON, Appellant,
Deborah B. ANDERSON and Michael O. Anderson, Appellees.

Rehearing Denied Feb. 10, 2012.

John R. Kelso of Levey, Filler, Rodriguez, Kelso & De Bianchi, LLP, Miami Beach, for appellant.

Page 769

Richard F. Hussey of Richard F. Hussey, P.A., Fort Lauderdale, for appellees.


A co-tenant of a condominium unit sued the other co-tenant for ouster from the unit. After the trial court denied a motion for directed verdict, a jury found that the co-tenant had been ousted from the unit and awarded $21,000 in damages. The trial court, however, granted a motion for judgment notwithstanding the verdict, finding that there was no evidence of any communication, by the co-tenant in possession to the ousted co-tenant, that the co-tenant in possession claimed exclusive use. The ousted co-tenant appeals. We reverse, concluding that there was evidence sufficient to support the jury verdict.

Although it is usual to begin with a factual background in an opinion, because we must analyze the evidence in light of the law of ouster as well as the standards for granting a judgment notwithstanding the verdict, we begin with a discussion of the legal principles which we must apply to the factual record in this case.

On motion for directed verdict or judgment notwithstanding the verdict the trial court must " evaluate all facts in evidence and all reasonable inferences that can be drawn from those facts in the light most favorable to the non-movant." Premier Lab Supply, Inc. v. Chemplex Ind., 10 So.3d 202, 205 (Fla. 4th DCA 2009). " ‘ Only where there is no evidence upon which a jury could properly rely, in finding for the plaintiff, should a directed verdict be granted.’ " Stokes v. Ruttger, 610 So.2d 711, 713 (Fla. 4th DCA 1992) (quoting Collins v. School Bd. of Broward Cnty., 471 So.2d 560, 562 (Fla. 4th DCA 1985)). Review of a ruling on motion for judgment notwithstanding the verdict is de novo. Dorestin v. Hollywood Imports, Inc., 45 So.3d 819, 823 (Fla. 4th DCA 2010). The task of the District Court of Appeal in reviewing the propriety of an order granting a JNOV is identical to that in which an ordinary motion for directed verdict is involved— " ‘ the court must view all of the evidence in a light most favorable to the non-movant, and, in the face of evidence which is at odds or contradictory, all conflicts must be resolved in favor of the party against whom the motion has been made.’ " Johnson v. Swerdzewski, 935 So.2d 57, 60 (Fla. 1st DCA 2006) (quoting Collins, 471 So.2d at 563).

On the substantive issue, our supreme court determined that a co-tenant must have communicated his or her intention to exclusively possess the property in order to constitute an ouster of the other co-tenant. In Barrow v. Barrow, 527 So.2d 1373, 1376 (Fla.1988), the court, quoting Stokely v. Connor, 69 Fla. 412, 440-41, 68 So. 452, 459 (Fla.1915), defined ouster as follows:

[A] tenant in common, to show an ouster of his cotenant, must show acts of possession inconsistent with, and exclusive of, the rights of such cotenant, and such as would amount to an ouster between landlord and tenant, and knowledge on the part of his cotenant of his claim of exclusive ownership. He has the right to assume that the possession of his cotenant is his possession, until informed to the contrary, either by express notice, or by acts and declarations that may be equivalent to notice.

The court reiterated that holding adversely could not occur unless " ‘ manifested or communicated’ " to the other co-tenant. Barrow, 527 So.2d at 1375 (quoting Coggan v. Coggan, 239 So.2d 17, 19 (Fla.1970)). Mere possession by one co-tenant, even for a lengthy time, could not be considered an ouster of the other co-tenant without communication of exclusive possession.

Page 770

Id. at 1377. The Barrow definition of ouster was read to the jury in this case as part of the jury instructions.

We now review the facts in this case, taken in a light most favorable to the appellant, to determine whether there is any evidence from which a jury could conclude, as they did, that an ouster took place, i.e., that the Andersons, as co-tenants, engaged in acts of possession of the condominium unit inconsistent with and exclusive of the rights of Atkinson, their co-tenant, and communicated these acts to Atkinson. We conclude that there was evidence from which a jury could make that factual finding.

Stephen Atkinson, the plaintiff/appellant, and his family were long-time friends of Deborah and Michael Anderson, the defendants/appellees, and their family. Atkinson, who lived in Orlando, was an avid boater, and the Andersons, who lived in Broward County, spent time with him boating. In 2003, the Andersons suggested to Atkinson that they jointly purchase condominium unit 704 in Port Condominium, a development under construction and on the water in Fort Lauderdale where Atkinson could also have a boat slip. They intended to use the condominium as a vacation home for their respective families, which included use for Atkinson's five children and for the Andersons' two children. During the time that they were working on the ...

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