Fenster v. Makovsky
| Decision Date | 09 October 1953 |
| Parties | FENSTER et al. v. MAKOVSKY et ux. |
| Court | Florida Supreme Court |
Theodore R. Nelson and David Drucker, Miami, for appellants.
Abbott, Burris & Langer, Miami, for appellees.
The appellants, who were the plaintiffs below, instituted a suit against the appellees for the partition of a certain apartment house property in Dade County, alleging in their complaint that each of the parties were tenants in common and owned an undivided one-fourth interest therein. The defendants filed a motion to dismiss the complaint on the ground that it failed to state a claim upon which relief could be granted. At the same time they filed an answer in which they denied that the parties were tenants in common and alleged that 'the plaintiffs and defendants owned the property * * * as partners under and by virtue of a certain partnership agreement entered into by and between the parties, a true copy of which is annexed to this answer * * *.'
Paragraph 14 of the 'partnership agreement' referred to in the answer contained the following provisions:
'Should any dispute, difference or disagreement arise between the parties hereto concerning or respecting any manner, thing or cause related to or in connection with the functions of the partnership or the dissolution thereof, or the withdrawal in the event of sale by one of the co-partners and the fixing of the price of the sale, then any dispute, difference or disagreement, as often as the same may arise, shall be disposed of and resolved by arbitration * * *.'
Following this provision Paragraph 14 set out the manner in which the Board of Arbitrators were to be selected by the parties and then concluded with the following language: 'The decision of a majority of the Board of Arbitrators, composed as aforestated, shall be final, binding and conclusive upon the parties hereto, and shall be complied with and abided by in every particular with the same force and effect as though it were the judgment of the highest court of last resort having jurisdiction over the matter in dispute.'
After the motion to dismiss and answer were filed, the defendants caused certain depositions to be taken, but they are not material to the issue here presented. Thereafter, the cause came on for hearing before the chancellor upon the pleadings. Without ruling on the existence or nonexistence of the alleged partnership between the parties, or whether such partnership relation precluded the parties from resorting to partition, the chancellor dismissed the complaint because of the language contained in Paragraph 14 of the agreement; reciting in his final degree that 'Whether or not the contract is one of partnership and whether or not it has been dissolved * * * an equity court should not lend its powers in a partition proceeding to anyone of the parties so long as he has a method of settling his interest in the property, unless some equity is alleged setting up that the machinery set forth in the contract cannot be effectively used or some other equity covercoming the obligation to settle by arbitration as set forth in the contract.'
The cause is here on appeal and the only proper question in the case is with respect to the propriety of the holding by the chancellor that the plaintiffs were barred from maintaining and prosecuting a suit in partition because of the stipulation in the 'partnership agreement'...
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...the law in that it seeks to oust courts of jurisdiction. Steinhardt v. Consolidated Grocery Co., 80 Fla. 531, 86 So. 431; Fenster v. Makovsky, Fla.1953, 67 So.2d 427." 14 "(m) * * * and the awards shall be final and binding upon both parties to the dispute, except insofar as they shall cont......
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...jurisdiction was long-lasting. Duval County v. Charleston Engineering & Contracting Co., 101 Fla. 341, 134 So. 509 (1931); Fenster v. Makovsky, 67 So.2d 427 (1953); Flaherty v. Metal Products Corp., 83 So.2d 9 (Fla.1955). The purpose of both the current statutes is now generally understood ......
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...award. Every reasonable presumption will be indulged to uphold an arbitration proceeding which has resulted in an award. Fenster v. Makovsky, 67 So.2d 427 (Fla.1953); Beach Resorts. Under section 682.14(1)(a), Fla.Stat. (1987), the trial court must modify or correct an award when "there is ......
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Lapidus v. Arlen Beach Condominium Ass'n, Inc., 80-558
...petition for common law certiorari 1 for the following reasons: (a) there is a strong public policy favoring arbitration, Fenster v. Makovsky, 67 So.2d 427 (Fla.1953); Arrieta v. Volkswagon Insurance Co., 343 So.2d 918 (Fla. 3d DCA 1977); (b) denial of a right to arbitration may not be adeq......
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