Opinion
Case No. 3D01-1851.
Opinion filed April 16, 2003.
An appeal from the Circuit Court for Miami-Dade County, Ronald M. Friedman, Judge. Lower Tribunal No. 98-1019.
Keith E. Hope; John G. Crabtree; Timothy Carl Blake, for appellant.
Stearns, Weaver, Miller, Weissler, Alhadeff Sitterson, P.A., and Mark D. Solov, and Mark P. Dikeman, and Christopher L. Barnett; Adams Quinton, P.A. and Kenneth L. Paretti, for appellees.
Before GODERICH, GREEN, and FLETCHER, JJ.
Affirmed. See Montero v. Compugraphic Corp., 531 So.2d 1034, 1036 (Fla. 3d DCA 1988) (stating that: "A litigant cannot, in the course of litigation, occupy inconsistent and contradictory positions. Rigg .v Vernell, 428 So.2d 668 (Fla. 3d DCA 1982); Federated Mut. Implement Hardware Ins. Co. v. Griffin, 237 So.2d 38 (Fla. 1st DCA 1970), cert. denied, 240 So.2d 641 (Fla. 1970)."). See also McCurdy v. J.C. Collis, 508 So.2d 380, 384 (Fla. 1st DCA 1987) (doctrine of estoppel against inconsistent positions provides that party who assumed certain position in legal proceeding may not thereafter assume contrary position).
GODERICH and GREEN, JJ., concur.
I would only point out that the appellant benefited (albeit not in an overly substantial manner) from the first position that he took. See State Farm Mut. Automobile Ins. Co. v. Smalley Transport Co., 696 So.2d 522 (Fla. 3d DCA 1997) (Intended to be avoided is allowing a party who has gained something from the assertion of its first position to, by the assertion of the second, inconsistent position, gain something more, to which it would not have been entitled under the first position.)
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.