CANNON SAND & ROCK, INC., APPELLANT,
v.
MAULE INDUSTRIES, INC., APPELLEE
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Cannon Sand & Rock appealed a dismissal order entered after it settled a dispute with Maule Industries over a subcontracting arrangement. The court affirmed the dismissal, holding that Cannon was precluded from appealing a judgment it had consented to and benefited from through settlement.
The court affirmed the dismissal, holding that Cannon was precluded from seeking review of a judgment entered with its consent or under which it had accepted benefits under the established principle that parties cannot appeal judgments they have consented to or benefited from.
“one may not seek review of a judgment entered with his consent or under which he has accepted benefits”
Establishes the fundamental principle precluding Cannon from appealing the settled judgment despite having reserved the right to appeal at the hearing
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Join FLexlaw to unlock all legal intelligenceCannon was a sub-subcontractor supplying sand and aggregates to Maule, a subcontractor on a construction project. After Cannon experienced performance…
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The appellee Maulé Industries, Inc. was a subcontractor on a construction job, and the appellant Cannon Sand & Rock, Inc. was a sub-subcontractor thereof for the furnishing of certain sand and aggregates for the production of concrete.
Cannon filed suit in equity to enjoin Maulé from taking over the operation, following certain delays in performance by Cannon. A preliminary injunction was granted. Later it was dissolved and the cause was transferred to the law side of the court where Cannon sought damages against Maulé for alleged interference with performance by Cannon. Maulé counterclaimed against Cannon for damages for alleged breach of contract.
Summary judgment was entered in favor of Maulé against Cannon on the main case. On the counterclaim, summary judgment was granted in favor of Maulé on liability, reserving for trial the issue of damages on the counterclaim.
Thereafter the parties entered into a settlement. The fact that a settlement had been made and the provisions thereof were made known to the court. That was done at a hearing attended by counsel for both parties, at which Cannon announced it was reserving its right to appeal from the summary judgment which had been entered against it, and that certain monies involved in the settlement were to be escrowed and held pending the outcome of such appeal. On the basis of the disclosures made at that hearing which took place on September 8, 1966, the cause was dismissed, but the dismissal order was not signed until December 15, at which time it was entered nunc pro tunc as of September 8.
After the September 8 hearing which resulted in dismissal of the cause, Cannon did institute an appeal from the summary judgment. Subsequently that appeal was dismissed by this court, Peterson v. Continental Can Co., 194 So.2d 170.
The present appeal by Cannon is from the order dated December 15, 1966, dismissing the cause, which order was as follows:
“The parties having amicably settled their differences as evidenced by the transcript filed in this cause by the Court Reporter, dated September 8, 1966, and there being no subsequent Order thereon, it is
“Ordered and Adjudged that this cause be and the same is hereby dismissed nunc *638pro tunc as of September 8, 1966, with prejudice, and each party is to bear its own costs.
“Done and Ordered in Chambers at Miami, Dade County, Florida, this 15th day of December, 1966.”
On its appeal from the foregoing order Cannon seeks a review of the prior summary judgment which was entered in August of 1966 from which, as stated above, it had instituted an appeal which subsequently was dismissed.
No basis is shown for reversal of the December 15, 1966, order of dismissal of the cause. Moreover, having joined in the settlement, and, on the basis thereof, jointly with the opposing party sought and obtained the dismissal, Cannon is precluded from seeking review thereof on appeal, under the established principle that one may not seek review of a judgment entered with his consent or under which he has accepted benefits. In re Fredcris, Incorporated, Fla.App.1958, 101 So.2d 49; Union Trust Co. v. Baker, Fla.App.1962, 143 So.2d 565; 2 Fla.Tur. Appeals, § 46.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Sierra v. Pub. Health Tr. OF Dade Cnty., 661 So. 2d 1296 (Fla. 3d DCA 1995)…le of this decision is that a plaintiff may not avail himself of the benefits of an order and subsequently assign such order as error. Omni-Vest, Inc. v. Reichhold Chem., Inc., 352 So. 2d 53 (Fla.1977); Cannon Sand & Rock Inc. v. Maule Indus., Inc., 203 So. 2d 636 (Fla. 3d DCA 1967). Appellees herein moved to dismiss the Sierras’ complaint. The trial court denied the motion and stayed the case pending either a determination by NICA on the merits or the filing of an action for medical malpractice. Thereafter,…
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Lewis v. Berry, 390 So. 2d 145 (Fla. 3d DCA 1980)…PER CURIAM. Affirmed. Cannon Sand & Rock, Inc. v. Maule Industries, Inc., 203 So. 2d 636 (Fla. 3d DCA 1967).…
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Haft-Gaines Co. v. The Honorable Thomas J. Reddick, 350 So. 2d 818 (Fla. 4th DCA 1977)…n terminated after the final order of dismissal, pursuant to the joint stipulation, both as to subject matter and person. Shelby Mutual Insurance Company v. Pearson, 236 So. 2d 1 (Fla.1970). See also Cannon Sand and Rock Company v. Maule Industries, 203 So. 2d 636 (Fla. 3rd DCA 1967). The Writ of Prohibition is hereby granted. The trial court has no jurisdiction and the scheduled jury trial may not take place. ALDERMAN, C. J., and DOWNEY, J., concur. . The terms and contents of this letter are disputed.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re Petition for Involuntary Dissolution of Fredcris, 101 So. 2d 49 (Fla. 3d DCA 1958)
- Union Tr. Co. v. Dixie Lucille Black Baker, 143 So. 2d 565 (Fla. 2d DCA 1962)