McDaniel Gift Shop, Inc. v. Balfe

• Decision Date: 14 September 1965
• Docket Number: No. G-156,G-156
• Parties: McDANIEL GIFT SHOP, INC., a Florida corporation, Appellant, v. Jacqueline L. W. BALFE, Julia Brafman Ritzwoller, Zella C. Ritzwoller, Daniel Memorial Home for Children, a corporation, Home for the Aged, Inc., and St. Luke's Hospital Association, a corporation, Appellees.
• Court: Florida District Court of Appeals

Page 588

179 So.2d 588

McDANIEL GIFT SHOP, INC., a Florida corporation, Appellant, v. Jacqueline L. W. BALFE, Julia Brafman Ritzwoller, Zella C. Ritzwoller, Daniel Memorial Home for Children, a corporation, Home for the Aged, Inc., and St. Luke's Hospital Association, a corporation, Appellees.

No. G-156.

District Court of Appeal of Florida, First District.

Sept. 14, 1965.

Thames & McCollum, Jacksonville, for appellant.

Greene, Greene & Kennelly, Bedell, Bedell & Dittmar, Clifford Inglis, and Loftin & Wahl, Jacksonville, for appellees.

CARROLL, DONALD K., Judge.

The appellant has filed a motion to dismiss the cross-appeal filed by the three individual appellees, the plaintiffs below, and to strike the cross-assignment of error filed by the said appellees in this appeal, on the ground that those appellees are estopped to urge error in the judgment appealed from herein because they had accepted the benefits of the said judgment.

The rule invoked by the appellant in support of its said motion is the 'acceptance of benefits' doctrine, firmly established in Florida, that a party who has accepted the benefits of a judgment or decree of the lower court is estopped from urging on appeal the illegality of the said judgment or decree.

The action involved in this appeal was filed in the said Circuit Court by the said individual appellees, Jacqueline L. W. Balfe, Julia Brafman Ritzwoller, and Zella C. Ritzwoller, against the appellant and the other appellees--namely, Daniel Memorial Home for Children, Home for the Aged, and St. Luke's Hospital Association. This action was listed and referred to as Case No. 63-1563-L in the said court. In the judgment appealed from by the appellant herein the court found that there is due from the appellant-defendant to the said plaintiffs rent in the amount of $9,516.58 for a certain 26-month period, together with interest thereon in the sum of $718.83 'but defendant is entitled to a credit against the share of the plaintiffs in the amount of $2,640.78,' which credit is explained in the next paragraph of this opinion.

The individual appellees' single cross-assignment of error, which the appellant has moved to strike, asserts that the said Circuit Court erred in entering the judgment appealed from in allowing the appellant 'a credit of $2,640.78, being the amount of a judgment recovered by plaintiffs' in the said court in Case No. 63-1562-L.

The facts pertinent to the appellant's said motion to dismiss and to strike are set forth in an affidavit of its attorney which has been filed in this appeal, stating substantially as follows: After the present appeal was instituted, the said appellees on November 18, 1964, swore out and secured the issuance of a writ of execution on the judgment appealed from. They placed the writ in the hands of the sheriff of Duval County with instructions to levy on the goods of the appellant. In order to prevent such levy, the appellant on January 12, 1965, secured an order from the court fixing the amount of the supersedeas bond at $10,000 and providing for a stay of the said execution until January 15, 1964. On January 14 the appellant posted the required supersedeas bond.

The foregoing facts stated in the said affidavit are generally confirmed in an affidavit of the attorney for the individual appellees, except that the latter attorney therein stresses the fact that '* * * no such levy was actually physically made by the Sheriff' and the fact that, due to the said posting by the appellant of a satisfactory supersedeas bond, '* * * execution was never effectuated by the Sheriff of Duval County, Florida, upon the goods of Appellant.'

The ground of the appellant's said motion to dismiss and strike as stated in the said motion, is that '* * * the judgment below was in favor of the Plaintiffs and the Plaintiffs have accepted the benefit of said judgment by suing out a writ of execution and undertaking to levy thereon, thereby requiring Appellant to post a supersedeas bond herein, and the Plaintiffs below are now estopped to urge any error in said judgment by the filing of Cross Assignment of Error.'

In order to pass upon this contention, it is necessary for us to study in some depth the acceptance-of-benefits doctrine to determine whether it may properly be invoked to estop the said appellees under the circumstances stated above.

The leading case in Florida recognizing the said doctrine is undoubtedly McMullen v. Ft. Pierce Financing and Construction Co., 108 Fla. 492, 146 So. 567 (1933). In that case the appellant, McMullen, had purchased certain lands in his name as trustee for the appellee, a corporation, which paid the purchase price and spent considerable money in the reclamation and development of the lands. The company filed a bill of complaint to have the trust declared and to compel the conveyance to it of the lands by McMullen. The latter filed a counterclaim for a large sum due him for his services as trustee. The Circuit Court rendered a decree awarding to the company the relief it had prayed for, and awarding $4,500 to McMullen on his counterclaim. Pursuant to leave granted in the decree, McMullen filed a petition to sell the land. At the hearing on the petition the company tendered into court the sum necessary to pay the decree. Thereafter, at the same hearing, McMullen's attorney filed a petition claiming the said sum as an attorney's fee earned in the suit, moving the court to pay the said sum directly, and alleging that he had theretofore on the same date filed with the court written authority from McMullen for the payment of the said sum to the said attorney. The court entered an order allowing the lien for the attorney's fee on the judgment and directed the payment of the amount of the decree to McMullen's said attorney.

Thereafter McMullen appealed from the final decree, from certain pre-decretal orders, and from the order supplementary to the final decree, insofar as the court ordered that such payment should be satisfaction of the said decree.

Near the end of its opinion in this McMullen case the Supreme Court gave the following as its reasons for dismissing McMullen's appeal:

'It is...