RALPH C. ERWIN AND PEGGY L. ERWIN, HIS WIFE, APPELLANTS,
v.
MORGAN SCHOLFIELD AND DORIS D. SCHOLFIELD, HIS WIFE, AND SURFCOAST REALTY, INC., APPELLEES
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Sellers of a condominium sought to recover a buyer's deposit as liquidated damages after the buyers allegedly breached the purchase contract. The court held that sellers may pursue alternative remedies (specific performance, breach damages, and liquidated damages) simultaneously in their complaint, with the election between legally inconsistent remedies occurring only before judgment.
Filing an action seeking damages and specific performance does not constitute an irrevocable election of remedies precluding a claim for liquidated damages; sellers may pursue all three alternative remedies initially, and the election between legally inconsistent remedies need only occur before judgment. The deposit award as liquidated damages was proper, but the attorney's fees award was improper as it included fees for abandoned claims.
[1] A seller's initial filing of an action seeking specific performance and damages for breach of contract does not constitute an irrevocable election of remedies that preclu…
[2] Parties may plead and pursue alternative remedies in the same action, even if those remedies are legally inconsistent, as long as an election is not made before judgment.
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Join FLexlaw to unlock all legal intelligence“We hold that the filing of the action seeking damages and specific performance did not constitute an irrevocable exercise of the seller's options nor an election between alternative remedies so as to preclude the latter claim for the deposit as liquidated damages.”
Establishes the core holding that initial pleading does not irrevocably elect remedies
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Join FLexlaw to unlock all legal intelligenceAppellees (sellers) and appellants (buyers) entered into a contract for the sale of a condominium, with buyers depositing approximately ten percent of…
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COWART, Judge.
This case involves an action by a seller under a contract to sell land to recover the buyer’s deposit money as liquidated damages. The parties entered into a contract wherein appellees agreed to sell a condominium to appellants, who deposited with a real estate broker money equal to about ten per cent of the purchase price. Thereafter, a dispute occurred and the sellers instituted an action seeking specific performance and, alternatively, damages for an alleged breach of the contract by the buyers. The buyers answered and filed a third-party complaint against the broker to recover their deposit. Thereafter the sellers, pursuant to motion granted by the court, amended their complaint, alleging the property had been sold to a third party and seeking the deposited money in lieu of actual damages or specific performance.
The trial court ultimately granted the sellers’ motion for summary judgment, awarding the sellers the deposited money as liquidated damages plus interest and attorney’s fees.
The contract in question provided that, upon the buyer’s default, the seller at his option could retain the buyer’s deposit as liquidated damages or proceed at law (for damages for breach of contract) or in equity (for specific performance).
We hold that the filing of the action seeking damages and specific performance did not constitute an irrevocable exercise of the seller’s options nor an election between alternative remedies so as to preclude the latter claim for the deposit as liquidated damages. See Williams v. Duggan, 153 So. 2d 726 (Fla.1963).
Under Florida Rule of Civil Procedure 1.110(g) the sellers could have originally sought all three alternative remedies. See Campbell v. Salman, 384 So. 2d 1331 (Fla. 3d DCA 1980). The remedies sought here by the seller are all factually consistent, in that all three are based on the theory that the buyer breached the contract. The remedies, however, are legally inconsistent. Election between legally inconsistent remedies need only occur before judgment is entered. Williams v. Robineau, 124 Fla. 422, 168 So. 644 (1936); see also Owens v. Smith, 154 So. 2d 878 (Fla. 1st DCA 1963).
The trial court did not err in permitting the complaint to be amended to claim the liquidated damages. Also, full recovery of the deposit as liquidated damages in this instance does not appear to be unconscionable. See Hutchison v. Tompkins, 259 So. 2d 129 (Fla.1972); McNorton v. Pan American Bank of Orlando, N.A., 387 So. 2d 393 (Fla. 5th DCA 1980), pet. denied 392 So. 2d 1377 (Fla.1981); Bruce Builders, Inc. v. Goodwin, 317 So. 2d 868 (Fla. 4th DCA 1975). The summary final judgment was otherwise proper and is hereby affirmed.
However, from the record and statements at oral argument, it appears that the sellers sought and recovered all attorney’s fees expended in this cause, including those relating to the abandoned claims for damages and specific performance, as well as those relating to the prosecution of the second amended complaint seeking recovery of the liquidated damages.
Therefore, we reverse the award of attorney’s fees and remand with directions for the trial court to determine and allow only a reasonable attorney’s fee for services necessary to prosecute the claim for liquidated damages.
AFFIRMED in part; REVERSED in part.
DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.
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Barbe v. Villeneuve, 505 So. 2d 1331 (Fla. 1987)…rties to the same litigation. Barbe cites no authority in support of this assertion, and, again, we must disagree. An election between legally inconsistent remedies can be made at any time prior to the entry of judgment. [*1334] Erwin v. Scholfield, 416 So. 2d 478, 479 (Fla. 5th DCA 1982). Barbe voluntarily and intentionally sought and obtained the default judgment against Atlas and Tash-ea. When a party elects between two or more inconsistent courses and has knowledge of all the pertinent facts, he binds him…
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Monco OF Orlando, Inc. v. ITT Indus. Credit Corp., 458 So. 2d 332 (Fla. 5th DCA 1984)…tween inconsistent remedies need only occur before judgment is entered. Wolfe v. Aetna Insurance Company, 436 So. 2d 997 (Fla. 5th DCA 1983); General Electric Company v. Atlantic Shores, Inc., 436 So. 2d 974 (Fla. 5th DCA 1983); Erwin v. Scholfield, 416 So. 2d 478 (Fla. 5th DCA 1982). Appellee relies on Deemer v. Hallett Pontiac, Inc., 288 So. 2d 526 (Fla. 3d DCA), cert. denied, 298 So. 2d 416 (Fla.1974), as authority for the proposition that the trial court did not err in requiring the election between inco…
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Wolfe v. AETNA Ins. Co. & Ricker-Horn, Inc., 436 So. 2d 997 (Fla. 5th DCA 1983)…until after verdict is rendered, and the directed verdict on one of the counts dispensed with that opportunity. This court has also held that an election between inconsistent remedies need only occur before judgment is entered. Erwin v. Scholfield, 416 So. 2d 478 (Fla. 5th DCA 1982). This argument is thus unavailing, because the directed verdict on the contract count removed any opportunity for Wolfe to elect. We find no error in the striking of Wolfe’s claim for damages resulting from delay in the settleme…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Williams v. Robineau, 124 Fla. 422 (Fla. 1936)
- Hutchison v. Tompkins, 259 So. 2d 129 (Fla. 1972)
- Bruce Builders, Inc. v. Goodwin, 317 So. 2d 868 (Fla. 4th DCA 1975)
- Campbell v. Salman, 384 So. 2d 1331 (Fla. 3d DCA 1980)
- McNORTON v. PAN Am. Bank OF Orlando, N.A., 387 So. 2d 393 (Fla. 5th DCA 1980)
- Williams v. Duggan, 153 So. 2d 726 (Fla. 1963)
- Owens v. Euzema Smith and Irene Smith, 154 So. 2d 878 (Fla. 1st DCA 1963)