Affirmed. See Montero v. Compugraphic Corp., 531 So.2d 1034, 1036 (Fla. 3d DCA 1988) (stating that: “A litigant cannot, in the course of litigation, occupy inconsistent and contradictory positions. Rigg v. Vernell, 428 So.2d 668 (Fla. 3d DCA 1982); Federated Mut. Implement & Hardware Ins. Co. v. Griffin, 237 So.2d 38 (Fla. 1st DCA 1970), cert. denied, 240 So.2d 641 (Fla. 1970).”). See also McCurdy v. J.C. Collis, 508 So.2d 380, 384 (Fla. 1st DCA 1987) (doctrine of estoppel against inconsistent positions provides that party who assumed certain position in legal proceeding may not thereafter assume contrary position).

GODERICH and GREEN, JJ., concur.

(concurring).

I would only point out that the appellant benefited (albeit not in an overly substantial manner) from the first position that he took. See State Farm Mut. Automobile Ins. Co. v. Smalley Transport Co., 696 So.2d 522 (Fla. 3d DCA 1997)(Intended to be avoided is allowing a party who has gained something from the assertion of its first position to, by the assertion of the second, inconsistent position, gain something more, to which it would not have been entitled under the first position.)