Brown v. Epstein, 1947
| Decision Date | 27 March 1968 |
| Docket Number | No. 1947,1947 |
| Citation | 208 So.2d 836 |
| Parties | Samuel T. BROWN, Bess Brown and Harlin Development Co., Appellants, v. Morris EPSTEIN et al., Appellees. |
| Court | Florida District Court of Appeals |
Appellants have filed a motion to dismiss the cross appeal filed by the appellees, the plaintiffs below, on the ground that such appellees are estopped to urge error in the judgment appealed from herein because they have accepted the benefits of the said judgment.
In support of their motion appellants invoke the 'acceptance of benefits' doctrine to the effect that, where a party recovering a judgment or decree accepts the benefits thereof voluntarily and knowing the facts, he is estopped to afterwards seek a reversal of such judgment or decree on appeal. The leading case in Florida recognizing the doctrine is McMullen v. Fort Pierce Financing & Construction Co., 1933 108 Fla. 492, 146 So. 567. The doctrine has been recognized in many subsequent cases and has been the subject of a number of thorough and scholarly opinions. 1 The McMullen case recognized two so-called exceptions to the above doctrine. The first is that such general rule does not apply where the decree appealed from consists of two separate, distinct and unrelated parts, the disposition of either of which can in no wise affect the decision as to the other. The second is that the general rule does not apply when an amount found in favor of a litigant by a judgment or decree is due him in any event--when there is no controversy over his right to receive and retain it--so that the only question to be determined by the appellate tribunal is whether he is or is not entitled to a greater or additional sum. One or both of these so-called exceptions to the general rule have been also recognized in subsequent cases. 2
In this case the plaintiffs-appellees had brought a stockholders' derivative action under F.S.1965, section 608.131, F.S.A. As a result of several hearings the court made extensive findings of fact and conclusions of law covering in detail its findings on numerous controversies between the parties and thereafter entered a final judgment which covered in detail the issues between the parties. In brief, it entered a judgment in the amount of $8,659.97 in favor of plaintiffs against the defendants (including an allowance of $2,700.00 for attorney's fees and accountant's fees). Plaintiffs' attorneys indicated their intention to enforce the judgment whereupon defendants made known that they intended to appeal that portion of the judgment concerning attorney's fees and accountant's fees in the total amount of $2,700.00 and would pay the balance of the judgment in the amount of $5,959.97. Payment of this portion was made to the plaintiffs who agreed to forbear enforcement of the remaining $2,700.00 of the judgment pending the appeal, without the necessity of defendants filing supersedeas.
Thereupon appellants filed a notice of appeal and assignments of error, following which appellees filed three cross-assignments of error which form the basis of the so-called 'cross appeal' herein sought to be dismissed. 3
While it cannot be said that at the outset of the litigation there was no...
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Grant v. Wester
...Constr. Co., 108 Fla. 492, 146 So. 567 (1933). See also Kuharske v. Lake County Citrus Sales, 44 So.2d 641 (Fla.1949); Brown v. Epstein, 208 So.2d 836 (Fla. 4th DCA 1968). Dance v. Tatum, 629 So.2d 127, 129 (Fla.1993); Giltex Corp. v. Diehl, 583 So.2d 734, 736 (Fla. 1st DCA 1991) ("The gene......
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...Constr. Co., 108 Fla. 492, 146 So. 567 (1933). See also Kuharske v. Lake County Citrus Sales, 44 So.2d 641 (Fla.1949); Brown v. Epstein, 208 So.2d 836 (Fla. 4th DCA 1968). This case falls within the exceptions. The issue of an irrevocable license is separate and distinct from the issue of f......
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Rosen v. Hunter, 68--805
...received funds which they had deposited with the registry of the court pending the final outcome of foreclosure sale. See Brown v. Epstein, Fla.App.1968, 208 So.2d 836. For the reasons expressed herein, we hereby reverse the order being Reversed. 1 The following is an excerpt of the testimo......
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Wynfield Inns v. Edward LeRoux Group, Inc.
...all defendants except LeRoux Group.5 See, e.g., Kuharske v. Lake County Citrus Sales, Inc., 44 So.2d 641 (Fla.1949); Brown v. Epstein, 208 So.2d 836 (Fla.Dist.Ct.App.1968). See also McMullen, 146 So. at 569 (providing example).6 Because we do not reach the merits of Wynfield's appeal on the......