ROLF'S MARINA, INC., A FLORIDA CORPORATION, APPELLANT,
v.
RESCUE SERVICE & REPAIR, INC., A FLORIDA CORPORATION; EDWARD T. GAGNON AND JEAN GAGNON A/K/A E. JEAN GAGNON, HIS WIFE, APPELLEES
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Rolf's Marina purchased a marina business from the Gagnons with a purchase money mortgage, based on a contract warranting proper zoning. When the zoning was found improper, Rolf's sued for rescission or damages for breach and fraudulent misrepresentation. The trial court forced an election of remedies, but Rolf's selection of rescission became unavailable after it ratified the contract by making a mortgage payment. The appellate court reversed the dismissal, holding that the election of remedies doctrine does not apply when the initially chosen remedy becomes unavailable, and remanded for pursuit of damages claims.
The election of remedies doctrine does not apply when the initially chosen remedy does not exist at the time it is sought or becomes unavailable through circumstances beyond the doctrine's scope. Upon remand, Rolf's Marina may pursue damages for contractual breach and/or damages for alleged fraudulent misrepresentation.
[1] A party is not bound by an election of remedies if, at the time of the initial action, only one remedy was available and that remedy proved to be legally unavailable.
[2] If a party mistakenly elects an unavailable remedy, they are not precluded from pursuing other available remedies upon remand.
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Establishes the core legal principle that election of remedies requires both remedies to be available at the time of the first action, defining when the doctrine does not apply.
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Join FLexlaw to unlock all legal intelligenceRolf's Marina, a Florida corporation, purchased an existing Key Largo marina and marine repair service from the Gagnons for cash, a motor home, and a …
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[*843] HENDRY, Judge.
Appellant, ordered to choose between inconsistent forms of relief, elected a remedy which proved to be legally unavailable. We reverse that portion of the final order which dismissed appellant for failure to state a legal claim, and remand with leave to appellant to pursue its formerly abandoned positions. We affirm the entry of judgment of foreclosure.
Appellant is a Florida corporation chartered to operate an existing Key Largo marina and marine repair service, which was purchased from appellees for cash, a motor home, and a purchase money second mortgage. The contract for sale warrantied that the land upon which the business was located was zoned to allow such an enterprise; in fact, it was not. Appellant’s eventual action sounded in contract for recision, reformation or damages; and in tort, seeking damages for fraudulent misrepresentation.
Upon oral motion on the day of trial, the circuit court properly ordered appellant to make an election between recision or damages, Deemer v. Hallett Pontiac, Inc., 288 So. 2d 526 (Fla.3d DCA 1974), cert. denied, 298 So. 2d 416 (Fla.1974); appellant chose the former. At trial, it was established that appellant had inadvertently affirmed the contract for sale by his tender, months after the zoning problem came to light, of an annual mortgage payment. Since, by that ratification, appellant barred itself thereafter from seeking contractual recision, Jones v. Watkins, 105 Fla. 25, 140 So. 920 (1932); Steinberg v. Bay Terrace Apartment Hotel, Inc., 375 So. 2d 1089, 1092-93 (Fla.3d DCA 1979); it is clear that the remedy elected was illusory. The law does not mandate so harsh a result:
[F]or an action to constitute “election of remedies”, there must be two or more available remedies open to plaintiff at the time he institutes the first action. Gibson v. American Ins. Co., 146 Fla. 171, 200 So. 357. The remedies sought must not only be inconsistent but they must also be coexistent. If the remedy sought in the first instance does not exist at the time it is sought, then there is no election of remedies. The parties are not bound unless, at the time of the first suit, there are two remedies then available from which an election may be made. If, in the first instance, plaintiff proceeds upon an assumed remedy which does not exist at the time, and such effort proves abortive, he is not precluded from resorting to another remedy.
Perry v. Benson, 94 So. 2d 819, 821 (Fla. 1957); Restatement of Contracts § 383 (1932); criticized in Dobbs, Remedies 20 (1973).
Upon remand, appellant may seek damages for the contractual breach, Tabatchnick’s II, Inc. v. Davis, 386 So. 2d 37 (Fla.3d DCA 1980); Hustad v. Edwin K. Williams & Co.-East, 321 So. 2d 601, 603 (Fla. 4th DCA 1975), cert. denied, 333 So. 2d 41 (Fla. 1976); or for the alleged fraud, Storrs v. Storrs, 130 Fla. 711, 178 So. 841, 844 (1937) (rehearing), after remand, 139 Fla. 270, 190 So. 512 (1939), Williams v. McFadden, 23 Fla. 143, 1 So. 618, 621-22 (1887). (In the context of the tort claim, we direct the trial court’s attention to the recent decision of the Florida Supreme Court in Bessett v. Basnett, 389 So. 2d 995 (Fla.1980).)
Affirmed in part, reversed in part, and remanded.
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Burton Levey v. Getelman, 408 So. 2d 663 (Fla. 3d DCA 1981)…e payments after learning of the City’s offer. Although Levey, by accepting payment, ratified the contract thus barring a claim for recision, he has not waived his right to damages for the fraud. Rolf’s Marina, Inc. v. Rescue Service & Repair, Inc., 398 So. 2d 842 (Fla. 3d DCA 1981). Additionally, the trial court’s grant of summary judgment on the basis that Levey’s claim was barred by res judicata since he had the opportunity to litigate this claim in the condemnation proceeding was erroneous. Levey’s fraud…
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Monco OF Orlando, Inc. v. ITT Indus. Credit Corp., 458 So. 2d 332 (Fla. 5th DCA 1984)…onally, the same court has held that if the remedy selected proves illusory or unavailing, then the plaintiff is not precluded from seeking an alternative, inconsistent remedy in a later action. Rolfs Marina, Inc. v. Rescue Service and Repair, Inc., 398 So. 2d 842 (Fla. 3d DCA 1981). We see no policy consideration in the requirement that multiple actions should be required to provide one remedy, if a plaintiff is entitled to one of several inconsistent remedies. Although not specifically deciding the point,…
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Smith v. Frank Griffin Volkswagen Inc., 645 So. 2d 585 (Fla. 1st DCA 1994)…which does not exist at the time, and such effort proves abortive, he is not precluded from resorting to another remedy. Accord Bush v. Palm Beach Imports, Inc., 610 So. 2d 68 (Fla. 4th DCA 1992); Rolfs Marina, Inc. v. Rescue Serv. & Repair, Inc., 398 So. 2d 842 (Fla. 3d DCA 1981). Therefore, we reverse the orders denying Smith’s motions to elect a further remedy against Griffin and for relief from judgment against Volkswagen, and the final judgment declaring that Smith take nothing by his action, and rema…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- Besett v. Basnett, 389 So. 2d 995 (Fla. 1980)
- Williams v. McFadden, 23 Fla. 143 (Fla. 1887)
- Deemer v. Hallett Pontiac, Inc., 288 So. 2d 526 (Fla. 3d DCA 1974)
- Storrs v. Storrs, 130 Fla. 711 (Fla. 1937)
- Hustad v. Edwin K. Williams & Co.-East, 321 So. 2d 601 (Fla. 4th DCA 1975)
- Steinberg v. BAY Terrace Apt. Hotel, Inc., 375 So. 2d 1089 (Fla. 3d DCA 1979)
- Gale D. Perry v. Benson, 94 So. 2d 819 (Fla. 1957)
- Gibson v. The Am. Ins. Co., 146 Fla. 171 (Fla. 1941)
- Henry F. Jones and his wife v. Watkins, 105 Fla. 25 (Fla. 1932)
- Bunker v. S. Bell Tel. & Tel. Co., 298 So. 2d 416 (Fla. 1974)