SECRETARY OF VETERAN AFFAIRS, Appellant, v. Jose TEJEDO, Appellee, 774 So. 2d 709

SHEVIN, Judge. The Secretary of Veteran Affairs, appeals an order setting a redemption amount in his action to compel Jose Tejedo to exercise his right of redemption. We affirm. In Tejedo v. Secretary of Veterans Affairs, 673 So.2d 959 (Fla. 3d DCA 1996), Tejedo, an omitted lienor in a mortgage foreclosure action, appealed a

summary final judgment that required him to redeem the property and set a redemption amount. Tejedo argued, and this court agreed, that there was insufficient record evidence to support the amount set. We reversed the

summary judgment and remanded for the trial court to set the redemption amount. See Tejedo, 673 So.2d at 960. Thereafter, pursuant to this court’s mandate, the court entered an order setting the amount. We are not persuaded by the Secretary’s argument that the order on review was entered in error because he had filed a motion for voluntary dismissal, or, alternatively, because he had paid into the court registry Tejedo’s original judgment. This court’s reversal of the

summary judgment with instructions to set a redemption amount pursuant to appropriate evidence of same is not tantamount to an order denying

summary judgment. In this case, the Secretary had obtained the affirmative relief sought in the action— forcing the right of redemption. See, e.g. Select Builders of Fla., Inc. v. Wong, 367 So.2d 1089 (Fla. 3d DCA 1979). At this point in the proceedings, the voluntary dismissal was not well brought under Florida Rule of Civil Procedure 1.420. Moreover, the Secretary’s eleventh-hour decision to satisfy Tejedo’s judgment lien and extinguish same was inconsistent with its prior posture forcing the redemption.

Having elected to pursue the remedy of forcing the redemption, and having succeeded on that theory, see Tejedo, 673 So.2d 959, the Secretary could not alter its course of action at this late stage in the litigation and assert an inconsistent position. See Kaufman v. Lassiter, 616 So.2d 491 (Fla. 4th DCA), review denied, 624 So.2d 267 (Fla.1993). See also V.I.P. Real Estate Corp. v. Florida Executive Realty Management Corp., 650 So.2d 199, 200 (Fla. 4th DCA 1995)(estoppel bars assertion of inconsistent position in litigation where party succeeded with first position).

Contrary to the dissent’s assertion, Tejedo, did not reverse a judgment such that the lower court’s judgment never stood. Tejedo, 673 So.2d at 960, reversed solely because “there remain[ed] a genuine issue of material fact as to the redemption amount that Tejedo is required to pay.” (Emphasis added.) The opinion reversed for further proceedings consistent with the mandate that Tejedo’s redemption amount to be set “shall be that amount he would have been required to pay had he elected to redeem promptly upon the filing of the mortgage foreclosure complaint.” Id.

This did not undo the Secretary’s success on his theory of redemption, as the only act remaining for the trial court was the establishment of a proper redemption amount. The parties were not returned to the “status ante.” The

summary judgment was not vacated in its entirety, and the voluntary dismissal motion was not properly brought. By permitting the Secretary now to assert an inconsistent position by paying Tejedo’s judgment, as the dissent would condone, Tejedo does suffer prejudice. Tejedo, through the oversight of the parties prosecuting the original foreclosure, was omitted from that action and had to engage in this protracted litigation to establish the Secretary’s clear title to the property at issue. The Secretary could have selected to pay off the judgment at an earlier date and save Tejedo this trouble.

The Secretary chose, instead, to force Tejedo to exercise the right of redemption B an inconsistent position. The trial court was bound by this court’s mandate, and by the procedural posture of the case, to enter the order setting the redemption amount. We, therefore, affirm the order. Affirmed. GREEN, J., concurs.