V.I.P. Real Estate Corp. v. Florida Executive Realty Management Corp., s. 93-2913

Decision Date15 February 1995
Docket NumberNos. 93-2913,93-2944,s. 93-2913
Citation650 So.2d 199
Parties20 Fla. L. Weekly D434 V.I.P. REAL ESTATE CORPORATION, and the Sloan-Kendall Group, Inc., Appellants, v. FLORIDA EXECUTIVE REALTY MANAGEMENT CORP., Appellee.
CourtFlorida District Court of Appeals

Richard B. Warren, Randy D. Ellison, and Scott Stoloff of Broome, Kelley, Aldrich & Warren, P.A., West Palm Beach, for appellants.

Larry M. Mesches of Larry M. Mesches, P.A., West Palm Beach, for appellee.

PER CURIAM.

This was a civil action in which three real estate brokers, the parties to this appeal, each claimed entitlement to an interpleaded real estate commission.

Appellee Florida Executive Realty Management Corp., hereinafter Florida Executive, served a copy of a single demand for judgment to both appellants, V.I.P. Real Estate Corporation (V.I.P.) and The Sloan-Kendall Group, Inc. (Sloan-Kendall). Neither appellant accepted the offer. Subsequently, the appellants jointly served an offer of judgment on appellee, which was not accepted.

It is uncontroverted that appellee was awarded the entire interpleaded fund, which was at least twenty-five percent more than it had asked for in its demand for judgment.

All parties moved for attorney's fees and costs pursuant to section 768.79, Florida Statutes (1993). In addition, appellee relied on section 57.041, Florida Statutes (1993), as the prevailing party.

The trial court granted appellee's motion for fees and costs and held that appellants were estopped from challenging the validity of appellee's Demand for Judgment by virtue of the joint Offer of Judgment served by them. As the appellants correctly contend, the rule of estoppel which forbids the successful assertion of inconsistent positions in litigation only applies where the inconsistent position first asserted was successfully asserted or where the party against whom the positions are asserted relied to its detriment on the earlier inconsistent position. See Dimino v. Farina, 572 So.2d 552 (Fla. 4th DCA 1990); Olin's, Inc. v. Avis Rental Car System of Florida, Inc., 104 So.2d 508 (Fla.1958); Metropolitan Dade County v. Jones Boatyard, Inc., 611 So.2d 512 (Fla.1993); MacKay v. Florida Power & Light Co., 524 So.2d 1068 (Fla. 4th DCA 1988). In Dimino, this court explained that a prior inconsistent position is not considered to have been successfully maintained by a party if it neither gave the party any advantage nor in any way disadvantaged the adverse party. 572 So.2d at 557.

Appellee has not demonstrated any reasonable reliance on the appellants' offer of judgment that could form a basis for equitable estoppel. In fact, appellants filed their offer of judgment under section 768.79, Florida Statutes (1993), after the appellee had filed its demand under that statute. In addition, the appellee was not disadvantaged in any way by the appellants' offer, nor did the appellants receive any advantage as a result of having made the offer. Under these circumstances, the doctrine of judicial or equitable estoppel does not apply to estop the appellants from asserting the invalidity of the appellee's demand for judgment even though they subsequently made a joint offer of judgment to the appellee. The trial court therefore erred in finding that the appellants' service of an offer of judgment estopped them from challenging the validity of the appellee's demand for judgment; however, we find that error harmless.

Appellants next argue that the trial court erred in awarding fees and costs, because appellee's demand for judgment was invalid. They base their argument on two grounds: first, that the statute does not contemplate joint offers to two or more adverse parties and, second, that the statute does not apply to interpleader actions.

In the recent case of Government Employees Ins. Co. v. Thompson, 641 So.2d 189 (Fla. 2d DCA 1994), submitted by the appellee as supplemental authority, the court held that an offer made under section 768.79, Florida...

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13 cases
  • Nichols v. State Farm Mut.
    • United States
    • Florida District Court of Appeals
    • June 13, 2003
    ...to Coast Real Estate, Inc. v. Waterfront Props., Inc., 668 So.2d 686 (Fla. 4th DCA 1996); V.I.P. Real Estate Corp. v. Florida Executive Realty Mgmt. Corp., 650 So.2d 199 (Fla. 4th DCA 1995)). For example, in Rosado v. Bieluch, 827 So.2d 1115 (Fla. 4th DCA 2002), review denied, No. SC02-2489......
  • Secretary of Veteran Affairs v. Tejedo
    • United States
    • Florida District Court of Appeals
    • December 29, 1999
    ...Lassiter, 616 So.2d 491 (Fla. 4th DCA), review denied, 624 So.2d 267 (Fla.1993). See also V.I.P. Real Estate Corp. v. Florida Executive Realty Management Corp., 650 So.2d 199, 200 (Fla. 4th DCA 1995)(estoppel bars assertion of inconsistent position in litigation where party succeeded with f......
  • Wassman v. Travelers Casualty & Surety Co.
    • United States
    • Florida District Court of Appeals
    • October 12, 2001
    ...claims to the same thing or fund. Lowry v. Downing Mfg. Co., 73 Fla. 535, 74 So. 525 (1917); V.I.P. Real Estate Corp. v. Florida Exec. Realty Management Corp., 650 So.2d 199 (Fla. 4th DCA 1995). It is an equitable remedy, which permits the stakeholder to bring the fund into court so that th......
  • Herzog v. K-Mart Corp.
    • United States
    • Florida District Court of Appeals
    • June 14, 2000
    ...plaintiff. See, e.g., Bodek v. Gulliver Academy, Inc.., 702 So.2d 1331 (Fla. 3d DCA 1997); V.I.P. Real Estate Corp. v. Florida Executive Realty Mgmt. Corp., 650 So.2d 199, 201 (Fla. 4th DCA 1995); Gross v. Albertson's, Inc., 591 So.2d 311 (Fla. 4th DCA 1991). On the authority of these cases......
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1 books & journal articles
  • Legal theories & defenses
    • United States
    • James Publishing Practical Law Books Florida Causes of Action
    • April 1, 2022
    ...M.D., P.A. , 731 So.2d 148, 149 (Fla. 4th DCA 1999). 3. V.I.P. Real Estate Corporation v. Florida Executive Realty Management Corp. , 650 So.2d 199, 200 (Fla. 4th DCA 1995) (“[T]he rule of estoppel which forbids the successful assertion of inconsistent positions in litigation only applies w......

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