Summary
reversing final judgment quieting title to a roadway in favor of a private owner but remanding for a new trial where there was no competent evidence on whether the roadway was included within a recorded declaration; "[b]ecause the issue was fairly raised in the pleadings and its determination necessary to completely resolve the dispute between the parties in this action, we remand to the trial court for further proceedings so that additional evidence may be taken"
Summary of this case from Tracey v. Wells Fargo BankOpinion
No. 93-1165.
May 11, 1994. Clarification Denied May 25, 1994.
Appeal from the Circuit Court, Broward County, Jack Musselman, J.
Thomas E. Byrd of Byrd and Murphy, Fort Lauderdale, and Balocco and Zann, Fort Lauderdale, for appellant/cross-appellee.
James C. Brady of Brady Coker, Fort Lauderdale, for appellee/cross-appellant.
This is an action to quiet title and for declaratory relief. We affirm in part and reverse in part.
Enterprise Leasing Company (appellant/cross-appellee) filed suit to quiet title in a roadway situated on its property within the City of Lauderdale Lakes, Florida (appellee/cross-appellant). The City filed a counterclaim for declaratory relief asking the court to declare the roadway a dedicated thoroughfare for public travel, or, in the alternative, that the public enjoyed an easement of passage over the roadway. Following a bench trial, final judgment was entered quieting title in favor of appellant and declaring the L-shaped roadway private property and not a public road.
We reverse that part of the judgment which finds that exhibit B of the Declaration of Covenants and Restrictions and Unity of Title Agreement includes the entire L-shaped roadway because there was no competent evidence presented to support such a finding. In fact, there was no competent evidence which would support a finding either way. Because the issue was fairly raised in the pleadings and its determination necessary to completely resolve the dispute between the parties in this action, we remand to the trial court for further proceedings so that additional evidence may be taken. See Griffin v. Bolen, 149 Fla. 377, 5 So.2d 690 (1942) (in order to avoid a multiplicity of lawsuits it is appropriate for a trial court to resolve all issues properly raised in the litigation).
Exhibit B contained an incomplete legal description and was inconclusive on its face to resolve this issue. We note that both parties recognized the paucity of evidence presented at trial and submitted post-trial affidavits from witnesses addressing the issue of whether exhibit B contemplated the entire L-shaped roadway. Those witnesses may, if available, and at the discretion of the trial court and the litigants, give sworn testimony at any subsequent proceedings.
We have carefully considered the other issues raised by the parties, including the City's claims of estoppel and laches, and find no error in the trial court's determinations.
Affirmed in part, reversed in part and remanded.
ANSTEAD and POLEN, JJ., concur.