Green v. First American Bank and Trust

• Decision Date: 01 April 1987
• Docket Number: No. 85-489,85-489
• Parties: 12 Fla. L. Weekly 906 E.G. GREEN, Trustee, Appellant, v. FIRST AMERICAN BANK AND TRUST, Trustee, Brown Bolte, Henry Gillespie, Frank H. Gillespie, Leo S. Harmonay, James O'Rourke, Nathaniel P. Reed, Alta Weaver Reed, Richard E. Schumacher, and Michael Zarilli, Appellees.
• Court: Florida District Court of Appeals

Page 569

511 So.2d 569

12 Fla. L. Weekly 906

E.G. GREEN, Trustee, Appellant, v. FIRST AMERICAN BANK AND TRUST, Trustee, Brown Bolte, Henry Gillespie, Frank H. Gillespie, Leo S. Harmonay, James O'Rourke, Nathaniel P. Reed, Alta Weaver Reed, Richard E. Schumacher, and Michael Zarilli, Appellees.

No. 85-489.

District Court of Appeal of Florida,

Fourth District.

April 1, 1987.

Rehearing Denied Sept. 17, 1987.

Larry Klein of Klein & Beranek, P.A., and Sidney A. Stubbs, Jr., of Jones & Foster, P.A., West Palm Beach, for appellant.

Robert Lambert, North Palm Beach, for appellees--Bolte, Gillespie, Harmonay, O'Rourke, Reed, Schumacher and Zarilli.

Edna L. Caruso of Edna L. Caruso, P.A., Montgomery, Lytal, Reiter, Denney & Searcy, P.A., and Ronald Sales, West Palm Beach, for intervenor--Knight Enterprises.

DOWNEY, Judge.

Appellant, E.G. Green (Green), appeals from an adverse final judgment in a suit for declaratory relief, seeking a determination of the efficacy of his purported exercise of right of first refusal to purchase a parcel of real property.

It appears that Green and nine other individuals purchased a parcel of real property in Boca Raton, Florida, title to which was placed in the name of First American Bank and Trust Company of Riviera Beach, as trustee. Among other things, the trust agreement provided in Paragraph 2 that, in the event there was a bona fide offer to purchase the property found acceptable by the majority of the beneficiaries of the trust, any or all of the minority beneficiaries should have the right to purchase the interest of the majority on the same terms and conditions as the offer.

On February 7, 1984, Knight Enterprises (Knight) submitted to the trustee a contract to purchase the property for $3,552,500, which included a 10% real estate brokerage commission. Nine of the beneficiaries representing 85% of the beneficial interest, requested the trustee to accept the offer and notify Green and afford him the opportunity to exercise his right of "first refusal." On February 15, 1984, Green's attorney wrote to advise the bank he was exercising his minority right under the trust agreement, and that the attorney was holding Green's check for $100,000 pending the bank's determination that the exercise of the minority right was valid, whereupon the check would be delivered and a formal agreement entered into. ¹ The trustee acknowledged receipt of Green's purported exercise of the right of first refusal by stating that it had received Green's lawyer's letter confirming that he held Green's check for $100,000; that it wished to confirm that Green was now obligated to perform the terms and conditions of the Knight contract. ²

On March 2, 1984, Green and a representative of the bank executed an agreement under which Green would pay an amount equal to the amount offered by Knight less the 10% broker's commission and less the value of Green's existing 15% beneficial interest. There was a proviso that the agreement was subject to approval by the land trust beneficiaries. The majority beneficiaries refused the Green offer because it was 10% less than the Knight offer. No objection appears to have been made in this case regarding Green's withholding the 15% value of his beneficial interest.

The bank notified Green that the majority beneficiaries did not regard his proposal as a valid exercise of his minority interest right, but that the majority would give Green ten additional days to meet the Knight offer. Green's response through counsel was that Green's "offer" was the same as Knight's in all material respects. Thereupon, the trustee and nine other beneficiaries of the trust, hereinafter referred to collectively as the trustee, filed this suit on May 7, 1984, seeking a judicial declaration as to whether Green had properly exercised his right of first refusal and a determination as to whether the property should be conveyed to Green or Knight. Knight intervened, assuming the same legal position as the trustee, that Green had not properly exercised his right of first refusal because he had deducted the brokerage commission. In opposition thereto Green's affidavit stated that, in deducting the commission from the purchase price, he had relied on a recent trial court decision in another case, in which he was a participant. However, that decision was reversed by the Fourth District Court of Appeal. ³ Green stated that he had always been willing to effectively exercise his minority right and was then willing to match the Knight offer. However, Green's deposition was taken the day after his affidavit was filed, wherein he testified that he never intended to pay the same purchase price as Knight had offered because he intended from the beginning to deduct the brokerage commission provided in the Knight contract and he never communicated an offer to the trustee to fully meet the Knight offer until the previous day, January 8, 1985. This, of course, was well after the extension of time granted by the other beneficiaries for him to meet the Knight offer.

The trial court entered a summary final judgment in favor of the trustee, essentially holding that Green had not properly exercised his right of first refusal because he had not agreed to the same terms and conditions contained in the Knight contract. Green's offer was for $2,717,662.50, whereas Knight's offer was for $3,552,500--the difference being that Green deducted the brokerage commission provided in the Knight contract and his 15% interest as a beneficiary of the trust. ⁴ The trial court found that Green's counsel's original letter of February 15, 1984, constituted a valid exercise of Green's minority option right, but subsequently Green's proposed agreement negated, waived or retracted the valid exercise of the option by offering less money, because of Green's unilateral mistake of law.

Green timely perfected this appeal from said judgment, which was not stayed because Green elected not to post a supersedeas bond. In advising the trustee that he would not supersede the judgment pending appeal, Green also advised the trustee that, if the other beneficiaries decided to sell to Knight pending appeal, he would be cooperative and not impede the sale, so long as he retained his rights to pursue money damages against the trustee if he was successful in the appellate proceedings. In view of that, the trustee closed the sale to Knight in April, 1985, and disbursed the proceeds thereof to the ten beneficiaries of the trust. Knight moved for dismissal of the appeal, contending that Green is now estopped to attack the judgment because he has accepted the benefits thereof in that he has accepted his 15% of the proceeds of the sale to Knight.

There is a 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. That rule and its rationale are elucidated in an opinion authored by Judge John Wigginton in Carter v. Carter, 141 So.2d 591, 592-593 (Fla. 1st DCA 1962), wherein the court stated:

It is a well established principle of law prevailing in this state 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. His conduct amounts to a release of errors. His acceptance of payment or enforcement of the judgment or decree is a waiver of error, and estops the successful party from appealing. If under such circumstances an appeal were permitted which resulted in a reversal of the judgment or decree subjected to review, there would be no means by which the status quo of the parties could by restored, and would give the prevailing party an inequitable and unjust advantage over his unsuccessful adversary. The foregoing principle applies to appeals from decrees awarding alimony or questioning the propriety of a divorce or other provisions of the decree the same as it does to other civil suits, in the absence of a contrary statute or court rule.

(Footnotes omitted.) See also McMullen v. Fort Pierce Financing & Construction Co., 108 Fla. 492, 146 So. 567 (1933).

In Carter the court held that appellant wife could not pursue an appeal from the final judgment of divorce because she had accepted all of the money and property awarded to her under the decree; having accepted the benefits thereof, she was estopped to question the validity of any part of the judgment. Shortly after its decision in Carter, the same court decided Rayle v. Merrill, 141 So.2d 288, 288-289 (Fla. 1st DCA 1962), in which the court set forth the reasons for the rule as follows It was there [in Carter ] pointed out that if under such circumstances an appeal were permitted which resulted in a reversal of the judgment or decree subjected to review, there would be no means by which the status quo of the parties could be restored, and would give the prevailing party an inequitable and unjust advantage over his unsuccessful adversary. Appellant's entitlement to payment of the judgment awarded him by the decree under assault was dependent upon the validity of the decree in its entirety. Having accepted payment of the judgment, appellant is now estopped to question its correctness.

The Florida Supreme Court, in McMullen, recognized two exceptions to the rule, one of which could be applicable here. That 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, citing note in 29 L.R.A. (N.S.) page 30.

146 So. at 569.

Adverting to the facts of this case, the trustee filed suit for declaratory relief to determine whether Green had properly...