01-1851 JACKSON V. BARNETT

State: Florida

Court: Florida Third District Court

Docket No: 01-1851 JACKSON V. BARNETT

Case Date: 04/16/2003

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, A.D. 2003 JOHN L. JACKSON, Appellant, vs. ** ** ** CASE NO. 3D01-1851 LOWER TRIBUNAL NO. 98-1019

BARNETT DEALER FINANCIAL ** SERVICES, INC., a Florida Corporation, and MIAMI LINCOLN** MERCURY, INC., a Florida Corporation, ** Appellees. **

Opinion filed April 16, 2004 An appeal from the Circuit Court for Miami-Dade County, Ronald M. Friedman, Judge. Keith E. Hope; John G. Crabtree; Timothy Carl Blake, for appellant. Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterson, P.A., and Mark D. Solov, and Mark P. Dikeman, and Christopher L. Barnett; Adams & Quinton, P.A. and Kenneth L. Paretti, for appellees.

Before GODERICH, GREEN, and FLETCHER, JJ.

PER CURIAM.

Affirmed. See Montero v. Compugraphic Corp., 531 So. 2d 1034, 1036 (Fla. 3d DCA 1988) (stating that: "A litigant cannot, in the course of litigation, occupy inconsistent and contradictory

positions.

Rigg .v Vernell, 428 So. 2d 668 (Fla. 3d DCA 1982);

Federated Mut. Implement & Hardware Ins. Co. v. Griffin, 237 So. 2d 38 (Fla. 1st DCA 1970), cert. denied, 240 So. 2d 641 (Fla. 1970)."). See also McCurdy v. J.C. Collis, 508 So. 2d 380, 384 (Fla. 1st DCA 1987) (doctrine of estoppel against inconsistent positions provides that party who assumed certain position in legal proceeding may not thereafter assume contrary position). GODERICH and GREEN, JJ., concur.

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JACKSON v. BARNETT DEALER #3D01-1851

FLETCHER, Judge (concurring). I would only point out that the appellant benefited (albeit not in an overly substantial manner) from the first position that he took. See State Farm Mut. Automobile Ins. Co. v. Smalley

Transport Co., 696 So. 2d 522 (Fla. 3d DCA 1997)(Intended to be avoided is allowing a party who has gained something from the assertion of its first position to, by the assertion of the second, inconsistent position, gain something more, to which it would not have been entitled under the first position.)

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