W. CLYDE BOZEMAN AND WIFE, ADA LEONA BOZEMAN, APPELLANTS,
v.
O. L. ROBERTS AND WIFE, EUPHAMIE ROBERTS, APPELLEES
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Property owners appealed a declaratory judgment fixing a disputed boundary line between their adjacent parcels. The court affirmed the trial court's decision, rejecting arguments that a survey agreement constituted binding arbitration and that the declaratory judgment action was improper.
The contract was not an arbitration agreement, and the trial court properly exercised jurisdiction in the declaratory judgment action. The Robertses were not estopped from repudiating the survey agreement after objecting to the surveyor's methodology.
“Our examination of the contract in question affirmatively reveals that it was not an agreement for arbitration of the boundary line dispute between them, nor was it so intended by the parties when it was executed.”
Establishes that the survey agreement was not a binding arbitration agreement, defeating the appellants' primary argument on appeal.
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Join FLexlaw to unlock all legal intelligenceThe Bozemanns and Robertses owned contiguous parcels of land with a disputed boundary line. The parties had entered into a contract to employ a qualif…
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Defendants have appealed a final declaratory decree rendered in an action brought pursuant to F.S. Chapter 87, F.S.A., by which the chancellor fixed a disputed boundary line separating contiguous parcels of land owned by the parties herein.
Appellees instituted this action seeking a declaration of their rights under a deed by which they hold title to the property in dispute. They allege that a bona fide controversy has arisen between the parties respecting the trae boundary line separating their respective parcels of land. Appellants answered the complaint admitting the existence of the controversy, and incorporated in their answer a counterclaim praying that the boundary line be fixed in accordance with a particular survey on which they rely as representing the true boundary line. Appellants’ answer also alleges that prior to the institution of the suit the parties entered into a contract to employ a qualified surveyor to locate the boundary line, and they agreed to be bound by the result of this survey. Appellants further allege that *24appellees breached the contract by refusing to recognize or abide by the result of the survey made in accordance therewith.
Appellants first contend that the contract between the parties was in legal effect an arbitration agreement, and the chancellor erred in failing to adopt the boundary line shown by the survey which was made as a result of the agreement. Our examination of the contract in question affirmatively reveals that it was not an agreement for arbitration of the boundary line dispute between them, nor was it so intended by the parties when it was executed. Appellees testified that before the survey was completed, they'objected to the manner in which it was being made because the surveyor failed or refused to follow the original United States Government survey and field notes. Under the circumstances the chancellor was correct in concluding that ap-pellees were not estopped to repudiate the agreement,1 and in further concluding that the contract between the parties was not one for arbitration of an existing dispute.
By their second point on appeal appellants contend that the trial court was without jurisdiction to determine the boundary line dispute existing between the parties in an action for declaratory decree brought pursuant to F.S. Chapter 87, F.S.A. Appellants admit that no question regarding the propriety of the action was raised or questioned in any manner in the trial court. Furthermore, the record reveals that by their counterclaim appellants sought the identical relief prayed for by appellees in their complaint. The circuit court’s jurisdiction to determine boundary line disputes cannot be questioned, and if the form of action seeking a settlement of this dispute should more properly have been by ejectment rather than for declaratory relief, the impropriety was waived by appellants and cannot be raised for the first time on this appeal.
The decree appealed is affirmed.
RAWLS, C. J., and WIGGINTON and CARROLL, DONALD K., JJ., concur.
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Sunland Hospital/State OF Florida v. Garrett, 415 So. 2d 783 (Fla. 1st DCA 1982)…e will have none of this. It is familiar general law that an appellate court will not reverse on a point not preserved in [*785] the tribunal of first resort. Hartford Fire Insurance Co. v. Hollis, 58 Fla. 268, 50 So. 985 (1909); Bozeman v. Roberts, 188 So. 2d 23 (Fla. 1st DCA 1966). A corollary of that, in workers’ compensation appeals, is that we will not reverse for a readily correctable technical error that the deputy was not asked to correct within the time available for correction. Section 440.25(4)(a)…
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Allman v. Meredith Corp. & Md. Cas. Co., 451 So. 2d 957 (Fla. 1st DCA 1984)…83, 784-85 (Fla. 1st DCA 1982): It is familiar general law that an appellate court will not reverse on a point not preserved in the tribunal of first resort. Hartford Fire Insurance Co. v. Hollis, 58 Fla. 268, 50 So. 985 (1909); Bozeman v. Roberts, 188 So. 2d 23 (Fla. 1st DCA 1966). A corollary of that, in workers' compensation appeals, is that we will not reverse for a readily correctable technical error that the deputy was not asked to correct within the time available for correction. Section 440.25(4)(a)…
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State of Fla. & Bd. of Trs. of the Internal Improvement Tr. Fund v. Fla. Nat'l Props., Inc., 338 So. 2d 13 (Fla. 1976)…and quiet title actions, but declaratory judgment is also an appropriate means for resolution of such a controversy. State Board of Trustees of Internal Improvement Trust Fund v. Pineta Co., 287 So. 2d 126 (Fla.3d App.Dist.1973); Bozeman v. Roberts, 188 So. 2d 23 (Fla.1st App.Dist.1966). Contra, Stark v. Marshall, 67 So. 2d 235 (Fla.1953) (alternative basis for decision). The form of action cannot, however, alter the “established maxim of statutory construction that courts have the judicial obligation to sus…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Watrous v. Morrison, 33 Fla. 261 (Fla. 1894)