Nesbitt v. Brothers of the Order of Hermits of St. Augustine

District Court of Appeal of Florida

Nesbitt v. Brothers of the Order of Hermits of St. Augustine

619 So. 2d 344, 1993 Fla. App. LEXIS 5477, 1993 WL 165638

CourtDistrict Court of Appeal of Florida

DecidedMay 18, 1993

DocketNos. 92-2283, 92-2079

StatusPublished

This text of 619 So. 2d 344 (Nesbitt v. Brothers of the Order of Hermits of St. Augustine) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Nesbitt v. Brothers of the Order of Hermits of St. Augustine, 619 So. 2d 344, 1993 Fla. App. LEXIS 5477, 1993 WL 165638 (Fla. Ct. App. 1993).

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Opinion

SCHWARTZ, Chief Judge.

We agree with the position of the defendant Order, asserted on cross-appeal, that as a matter of law the plaintiff-appellant Nesbitt is not entitled to recover. Nesbitt sued as the third party beneficiary of a contract in which the Order agreed to pay the college expenses of Nesbitt’s children in return for one O’Malley’s voluntary dismissal of a federal court suit O’Malley was maintaining against the Order. Since it is uncontradicted that O’Malley did not dismiss the suit, the Order had no obligation to pay the expenses claimed. See Binz v. [345]*345Helvetia Florida Enterprises, Inc., 156 So.2d 703 (Fla. 3d DCA 1963), cert. denied, 162 So.2d 665 (Fla.1964); Cohen v. Rothman, 127 So.2d 143 (Fla. 3d DCA 1961), cert. discharged, 138 So.2d 328 (Fla.1962). Accordingly the judgment against the Order is reversed with directions to enter judgment in its favor.

Reversed.

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SCHWARTZ, Chief Judge.

We agree with the position of the defendant Order, asserted on cross-appeal, that as a matter of law the plaintiff-appellant Nesbitt is not entitled to recover. Nesbitt sued as the third party beneficiary of a contract in which the Order agreed to pay the college expenses of Nesbitt’s children in return for one O’Malley’s voluntary dismissal of a federal court suit O’Malley was maintaining against the Order. Since it is uncontradicted that O’Malley did not dismiss the suit, the Order had no obligation to pay the expenses claimed. See Binz v. [345]*345Helvetia Florida Enterprises, Inc., 156 So.2d 703 (Fla. 3d DCA 1963), cert. denied, 162 So.2d 665 (Fla.1964); Cohen v. Rothman, 127 So.2d 143 (Fla. 3d DCA 1961), cert. discharged, 138 So.2d 328 (Fla.1962). Accordingly the judgment against the Order is reversed with directions to enter judgment in its favor.

Reversed.

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619 So. 2d 344, 1993 Fla. App. LEXIS 5477, 1993 WL 165638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nesbitt-v-brothers-of-the-order-of-hermits-of-st-augustine-fladistctapp-1993.

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