Grant v. Wester

• Decision Date: 30 September 1996
• Docket Number: No. 95-2506,95-2506
• Citation: 679 So.2d 1301
• Parties: 21 Fla. L. Weekly D2149 James GRANT, Appellant/Cross-Appellee, v. Wallace WESTER and Johnnie Ruth Wester, Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

Page 1301

679 So.2d 1301

21 Fla. L. Weekly D2149

James GRANT, Appellant/Cross-Appellee, v.Wallace WESTER and Johnnie Ruth Wester, Appellees/Cross-Appellants.

No. 95-2506.

District Court of Appeal of Florida First District.

Sept. 30, 1996.

Sherry Grant Hall of Hall & Runnels, P.A., Destin, for Appellant.

Elizabeth M. Simpson and Thayer M. Marts of the Law Office of Thayer M. Marts, Marianna, for Appellees.

BENTON, Judge.

A builder appeals from a judgment denying foreclosure of a mechanic's lien--and denying entitlement to attorney's fees that foreclosure entails under the Construction Lien Law.He also contends that he did not recover all he was due on his claim against the owners for breach of contract; and that the amount awarded on the owners' counterclaim (and set off against his own award) was excessive.We affirm as to the contract claim and as to the counterclaim, but reverse the denial of foreclosure, and remand for a decision regarding attorney's fees "taxed as part of [appellant's] costs, as allowed in equitable actions."§ 713.29, Fla. Stat.(1991).

Before we reach the merits of the builder's appeal, we address the owners' contention on cross appeal that the builder should be prevented from pursuing an appeal (and that fees and costs should be awarded to them), because the builder collected part of the money awarded on the contract claim, and the owners subsequently deposited the rest of the money needed to satisfy the judgment in the registry of the court.The cross appeal does not seek review of the amounts awarded either on the contract claim or on the counterclaim.We find no impediment to the builder's appeal.

A New Home

On October 4, 1991, James Grant contracted with Wallace and Johnnie Ruth Wester to build a new home on land the Westers owned.Most of the work was finished by May 11, 1992, when the Westers gave Mr. Grant (at his request) a "punch list" of items they believed to be incomplete or otherwise unsatisfactory.On May 15, 1992, the Westers began moving into the house.By then a certificate of occupancy had issued and Mr. Grant had addressed each item on the "punch list" to their satisfaction.Once they were fully moved in, however, Mr. Wester told Mr. Grant that the Westers would not make full payment until Mr. Grant added a hot water recovery unit to the air conditioning system and covered the foundation of the house with stucco.Mr. Grant complied with these requests, recalculating unpaid charges accordingly.

Mr. Grant presented a bill for $8,000 (the unpaid portion of the base contract price), plus overages aggregating $2,221.13, less credits aggregating $372.70, for a total of $9,848.43.After he asked to be paid, Mrs. Wester dropped off two more lists of items she said needed attention.Mr. Grant made certain requested repairs, then reiterated his demand for payment, saying that the house was substantially complete.The Westers again refused payment.After delivering an affidavit to the Westers, certifying that all lienors under the contract had been paid in full (and after Mrs. Wester gave him a fourth list, this one of items she said needed repair), Mr. Grant recorded a notice of claim of lien stating an unpaid balance of $9,866 (the amount claimed under the contract rounded down, plus the eighteen-dollar fee for recording the lien).

Lawsuit Filed

His bill still unpaid, Mr. Grant filed the complaint which began the proceedings below on June 19, 1992.Count I sought enforcement of a mechanic's lien under part one of chapter 713, Florida Statutes, and specifically asked for attorney's fees under section 713.29, Florida Statutes.Count II stated a claim for breach of contract.The Westers filed a counterclaim, alleging some twenty-one construction flaws, and also requested attorney's fees.

After a bench trial, final judgment was entered on Count II against the Westers in the amount of $7,740.73 ¹ plus twelve per cent interest from June 10, 1992, through December 31, 1994, and eight per cent interest from January 1, 1995, through July 5, 1995, the date of the judgment, plus costs of $1,023.50.The judgment denied plaintiff's motion for attorney's fees and specifically ordered: "Plaintiff did not prevail in COUNT I of his Complaint to enforce a mechanic's lien pursuant to Part One of Chapter 713 Florida Statutes."On July 13, 1995, Mr. Grant took the present appeal, seeking review of, inter alia, what was described in the notice of appeal as the denial of "Plaintiff's rights under Count I of his Complaint, and [the concomitant denial of]Plaintiff's prayer for an award of attorney[']s fee."

Payments Made

During the pendency of the appeal, Mr. Grant took steps not only to protect his asserted lien (by filing a notice of lis pendens the day after filing notice of appeal) but also to collect the money awarded by the judgment.At his instance, seeFla. R. Civ. P. 1.550(a), on July 18, 1995, the circuit court clerk issued process commanding the sheriff to levy on the Westers' "goods and chattels, lands and tenements" in the sum of $11,402.05, ² together with eight per cent interest accruing from July 5, 1995, until payment.A deputy sheriff collected $8,184.51 from the Westers' "construction bank account" and gave the check to Mr. Grant.

The Westers responded with an emergency motion to set aside lis pendens and writ of execution and motion to satisfy the final judgment, which recited: "The Defendants are ready to pay said judgment in full and request that Plaintiff give a satisfaction of judgment to Defendants."The Westers objected to giving a satisfaction of judgment that did not expressly reserve the right to pursue the present appeal.On July 21, 1995, the trial court entered an order staying "the Writ of Execution issued by the Clerk" and setting the Westers' emergency motion for hearing.

At the hearing on July 27, 1995, the trial court ordered the Westers to pay $3,125.29, the balance the trial court calculated was owed on the judgment at that time, into the registry of the court, and, we are advised, the Westers did so.The trial court's order on the emergency motion, which was ultimately entered on August 14, 1995, also ruled that no interest would accrue after the money was deposited, continued the stay of execution granted on July 21, 1995, pending this court's disposition of the present appeal, and denied a request that a supersedeas bond be posted.³

Acceptance of Benefits

Mr. Grant has thus received money under one part of the judgment.⁴CompareErwin v. Brooks, 297 So.2d 314(Fla. 2d DCA1974)withMcDaniel Gift Shop, Inc. v. Balfe, 179 So.2d 588(Fla. 1st DCA1965).An old case teaches the "general rule that one cannot ordinarily accept a benefit under a judgment or decree and then appeal from it, when the effect of his appeal may be to annul the decree as a whole."Capital Fin. Corp. v. Oliver, 116 Fla. 790, 793, 156 So. 736, 737(1934);McMullen v. Fort Pierce Fin. & Constr. Co., 108 Fla. 492, 495, 146 So. 567, 568(1933);Green v. First American Bank and Trust, 511 So.2d 569, 572(Fla. 4th DCA1987)("long standing principle or rule that one who recovers a judgment and accepts the benefits provided therein may not thereafter seek to reverse the judgment"), review denied, 520 So.2d 584(Fla.1988);State Road Dep't v. Hartsfield, 216 So.2d 61(Fla. 1st DCA1968);Sedgwick v. Shaw, 188 So.2d 29, 31(Fla. 2d DCA1966), (citing2 Enc.Pl. &Pr. 174-176;2 R.C.L. §§ 44, 45, pp. 61-63;3 C.J. § 552, pp. 679-680);Carter v. Carter, 141 So.2d 591, 592-593(Fla. 1st DCA1962);Rayle v. Merrill, 141 So.2d 288(Fla. 1st DCA1962).But

case law reveals that there are two exceptions to this stated rule: 1) where the relief denied is separate and severable from the relief granted; or 2) where the appellant is entitled in any event to at least the amount received.McMullen v. Fort Pierce Fin. & Constr. Co., 108 Fla. 492, 146 So. 567(1933).See alsoKuharske v. Lake County Citrus Sales, 44 So.2d 641(Fla.1949);Brown v. Epstein, 208 So.2d 836(Fla. 4th DCA1968).

Dance v. Tatum, 629 So.2d 127, 129(Fla.1993);Giltex Corp. v. Diehl, 583 So.2d 734, 736(Fla. 1st DCA1991)("The general rule that a party is estopped to seek reversal of a judgment, where the party recovering judgment or decree accepts the benefits thereof, does not apply when the amount found in favor of the litigant by the 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 court is whether he is or is not entitled to a greater or additional sum.");Hunt v. First Nat'l Bank of Tampa, 381 So.2d 1194(Fla. 2d DCA1980);Brown v. Epstein, 208 So.2d 836(Fla. 4th DCA1968).But seeMcMullen, 108 Fla. at 495-96, 146 So. at 568-69(exception only applies "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 acceptance of benefits doctrine has been abolished in dissolution of marriage actions.Fla. R.App. P. 9.600(c)("The receipt or payment of funds under an order awarding separate maintenance, child support, alimony, attorney's fees, or costs shall not prejudice the rights of appeal of any party.").In Carson Lumber Co. v. St. Louis & S.F.R. Co., 209 F. 191, 193-194(8th Cir.1913), the court said:

It is undoubtedly the general rule that a party who obtains the benefit of an order or judgment, and accepts the benefit or receives the advantage, shall be afterwards precluded from asking that the order or judgment be reviewed.Nevertheless, this rule is not absolute where the judgment or decree is not so indivisible that it must be sustained or reversed as a whole.It has no application to cases where the appellant is shown to be so absolutely entitled to the sum collected upon the judgment that the reversal of it will not affect his right to the amount...