WALTER E. WHITNEY, ETC., ET AL., APPELLANTS,
v.
JOSEPH C. BROWN, ETC., ET AL., APPELLEES
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A trustee's appeal of summary judgment in a trust mismanagement action is affirmed because the trustee's own counsel admitted at the hearing that the defendant had produced all documents under her control and the trustee presented no evidence to the contrary.
A trustee cannot successfully appeal summary judgment dismissal when his own counsel concedes that the defendant produced all documents in her control and the trustee offers no evidence to contradict that assertion.
[1] A party who invites the trial court to follow a particular procedure or who concedes a material fact cannot successfully challenge that procedure or concession on appeal.
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“If they're going to produce everything, and she [defendant] has produced everything she had under her control, we don't contest the motion for summary judgment, although we would ask the court to hold off on ruling until they've produced those documents.”
Trustee's counsel's admission at the summary judgment hearing that conceded the defendant's document production and the trustee's lack of contest to the motion.
A trustee brought an action claiming mismanagement of trust assets against a defendant. At the summary judgment hearing, the trustee's counsel admitte…
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PER CURIAM.
A trustee appeals an order granting summary judgment in favor of one of the defendants in an action claiming mismanagement of trust assets. We affirm.
At the hearing on the defendant's motion for summary judgment, the trustee’s counsel admitted:
That’s right, Your Honor. If they’re going to produce everything, and she [defendant] has produced everything she had under her control, we don’t contest the motion for summary judgment, although we would ask the court to hold off on ruling until they’ve produced those documents.
Based on the above statement, and because the dismissed party swore she had produced all documents, and in light of the fact that the trustee came forward with no evidence proving otherwise, we affirm the trial court’s order. As in White v. Soni, 550 So. 2d 75 (Fla. 3d DCA 1989), “the plaintiff invited the trial court to follow the procedure employed....” See Sundale Assoc. Ltd. v. Southeast Bank, 471 So. 2d 100 (Fla. 3d DCA 1985) (error affirmatively invited could not be successfully presented on appeal). At the instant hearing, counsel conceded that the dismissed party was in the action because she had papers that the trustee felt he needed to prove the mismanagement he alleged.
Accordingly, the trial court’s order is affirmed.
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