MITCHELL A. YELEN, APPELLANT,
v.
CINDY'S, INC., A FOREIGN CORPORATION, APPELLEE
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Mitchell Yelen, acting as trustee for investors, paid a $10,000 franchise fee to Cindy's, Inc. and later sought rescission and return of funds for alleged violations. After Cindy's offered a settlement check for $6,000 with a restrictive endorsement and mutual release agreement, Yelen altered the endorsement to reserve rights and cashed the check anyway. The court held that Yelen's acceptance and deposit of the settlement check constituted accord and satisfaction as a matter of law, barring his subsequent lawsuit for the full amount.
The court held that the circumstances and conditions under which appellant received and cashed the $6,000 check established every element of appellee's defense of compromise and settlement as a matter of law, thereby entitling appellee to summary judgment. Appellant's modification of the endorsement did not prevent accord and satisfaction from occurring upon acceptance and deposit of the settlement check.
[1] Acceptance and deposit of a check tendered in full satisfaction of a controversy, accompanied by a letter stating that such acceptance constitutes agreement to the terms…
[2] Striking out a restrictive endorsement on a check and substituting language indicating acceptance under protest and reservation of rights does not negate the legal effect…
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Join FLexlaw to unlock all legal intelligence“The enclosed check is being tendered to you in full satisfaction of the current controversy existing between you and Cindy's in accordance with the terms of the enclosed mutual release. Your acceptance and depositing of this check shall constitute your and Mr. Karol's acceptance of the terms of said release.”
Establishes the conditional nature of the settlement offer and the clear connection between cashing the check and acceptance of the mutual release.
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Join FLexlaw to unlock all legal intelligenceAppellant Yelen, acting as trustee for a group of investors, entered into a franchise agreement with Cindy's, Inc. and paid a $10,000 franchise fee. A…
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HENDRY, Judge.
Appellant, acting as trustee for a group of investors, entered into a franchise agreement with appellee. Appellant paid appel-lee $10,000.00 as a franchise fee pursuant to the agreement.
A few months after the agreement was entered into, appellant and his group sought to rescind the franchise agreement for alleged violations of the agreement by appel-lee. Appellant demanded the return of the $10,000.00 franchise fee plus $2,718.00 for damages and expenses. Appellee refused to pay the amount claimed, but agreed to pay $6,000.00 in full settlement of the controversy. Appellee took the position for purposes of settlement that the maximum amount returnable, under the franchise agreement, would be $6,000.00.
Appellee sent appellant a check in the sum of $6,000.00 together with a letter1 stating, in pertinent part:
The enclosed check is being tendered to you in full satisfaction of the current controversy existing between you and Cindy’s in accordance with the terms of the enclosed mutual release. Your acceptance and depositing of this check shall constitute your and Mr. Karol’s acceptance of the terms of said release. If this is not acceptable, you should return the check to me.
The conditionally delivered check contained a restrictive endorsement. Appellant struck out the restrictive endorsement on the check and substituted the following language: “Received as partial agreement without prejudice, under protest, with full exclusive reservation of rights.”
After receiving payment of $6,000.00, appellant brought suit against appellee to collect the amount in dispute.
A summary final judgment was entered in favor of appellee on the grounds that there exists no genuine issue as to any material fact and the appellant was entitled to judgment as a matter of law on the issue of accord and satisfaction. This appeal followed.
It is appellant’s contention that the trial court erred in ruling that appellee was entitled, as a matter of law, to a summary judgment. We cannot agree with appellant’s contention and affirm. We hold that the circumstances and conditions under which appellant received and cashed the $6,000.00 check were such as to establish as a matter of law every element of appellee’s defense of compromise and settlement, thereby entitling appellee to a summary final judgment. Miller-Dunn Co. v. Green, 154 Fla. 72, 16 So. 2d 637 (Fla.1944); United States Rubber Products, Inc. v. Clark, 145 Fla. 631, 200 So. 385 (1941); Bryan, Keefe & Co. v. Howell, 92 Fla. 295, 109 So. 593 (1926); Pino v. Lopez, 361 So. 2d 192 (Fla. 3d DCA 1978); MeGehee v. Mata, 330 So. 2d 248 (Fla. 3d DCA 1976). Cf., Hannah v. James A. Ryder Corp., 380 So. 2d 507 (Fla. 3d DCA 1980); Miller v. Jung, 361 So. 2d 788 (Fla. 2d DCA 1978).
Affirmed.
. The “release” mentioned in and mailed with the letter, appeared as follows:
In consideration of the payment of Six Thousand Dollars and 00/100 ($6,000.00) by Cindy’s, Inc. (Cindy’s) to Mitchell A. Yelen, as Trustee for Herbert Karol (Franchisee), the receipt of which is hereby acknowledged, and the execution of this agreement by said Franchisee, the undersigned do hereby release each other, and said parties’ agents, employees, officers and directors, from any and all claims, liability, damages, or causes of action, that they may now have against the other, including, but not limited to those arising from a certain Cindy’s Franchise Agreement numbered 90-112, between the parties hereto, which Agreement is hereby terminated.
This agreement shall be binding upon the parties hereto, and their heirs, successors and assigns.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Rudick v. Rudick, 403 So. 2d 1091 (Fla. 3d DCA 1981)…e accord. The cashing of the checks resulted, therefore, in satisfaction of the accord. Because there was an accord and satisfaction, appellant is precluded from suing either on the original claim or on the accord. See, e. g., Yelen v. Cindy’s Inc., 386 So. 2d 1234 (Fla. 3d DCA 1980), pet. for rev. dismissed, 394 So. 2d 1154 (Fla.1980) (circumstances and conditions under which appellant received and cashed check established compromise in settlement); Hannah v. James A. Ryder, Corp., supra at 510 (noting common…
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Eder v. Yvette B. Gervey Interiors, Inc., 407 So. 2d 312 (Fla. 4th DCA 1981)…y does not thereby prejudice the rights reserved. Such words as “without prejudice,” “under protest” or the like are sufficient. Neither precedent nor commentary is consistent in the treatment of this issue. Illustrative are Yelen v. Cindy’s, Inc., 386 So. 2d 1234 (Fla.3d DCA 1980) and Miller v. Jung, 361 So. 2d 788 (Fla.2d DCA 1978). In Yelen, the restrictive endorsement: “Received as partial agreement without prejudice, under protest, with full exclusive reservation of rights” was held insufficient to defea…
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Mortell v. Keith, 528 So. 2d 1362 (Fla. 3d DCA 1988)…m’s claim as a matter of law. Ennia Gen. Ins. Co. v. Auld, 506 So. 2d 62 (Fla. 4th DCA 1987); Eder v. Yvette B. Gervey Interiors, Inc., 407 So. 2d 312 (Fla. 4th DCA 1981); Rudick v. Rudick, 403 So. 2d 1091 (Fla. 3d DCA 1981); Yelen v. Cindy’s, Inc., 386 So. 2d 1234 (Fla. 3d DCA 1980), pet. for review dismissed, 394 So. 2d 1154 (Fla.1980); Pino v. Lopez, 361 So. 2d 192 (Fla. 3d DCA 1978), cert. denied, 365 So. 2d 714 (Fla.1978). Accordingly, the judgment entered below for the law firm for additional fees is rev…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States Rubber Prods., Inc. v. Clark, 145 Fla. 631 (Fla. 1941)
- Miller-Dunn Co., Inc. v. Green, 154 Fla. 72 (Fla. 1944)
- Pino v. Lopez, 361 So. 2d 192 (Fla. 3d DCA 1978)
- Hannah v. James A. Ryder Corp., 380 So. 2d 507 (Fla. 3d DCA 1980)
- Bryan v. Fredrick H. Howell, 92 Fla. 295 (Fla. 1926)
- McGEHEE v. Mata, 330 So. 2d 248 (Fla. 3d DCA 1976)
- Miller v. Weston E. Jung and Janice L. Jung, 361 So. 2d 788 (Fla. 2d DCA 1978)