JULIO F. ALVAREZ, BARBARA C. ALVAREZ, JAMES M. ALVAREZ AND ROSE MARY ALVAREZ, APPELLANTS,
v.
PHILLIP A. PULEO AND SAMUEL FAXON BISSETT, JR., APPELLEES
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The Alvarezes appealed a trial court's dismissal of their complaint based on its requirement that they elect between two inconsistent remedies before trial began. The Florida Second District Court of Appeal reversed, holding that election of remedies need only occur before judgment is entered, not before trial.
A trial court errs when it requires a party to elect between inconsistent remedies prior to trial. Election of remedies need only be made before judgment is entered, allowing parties to plead and litigate inconsistent remedies throughout trial.
[1] A party may plead and litigate inconsistent remedies.
[2] The doctrine of election of remedies is a procedural rule intended to prevent a double recovery for the same wrong.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A party may plead and litigate inconsistent remedies.”
Establishes the core holding that plaintiffs are not required to choose between inconsistent legal theories before trial
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Join FLexlaw to unlock all legal intelligenceThe Alvarezes filed a complaint containing two counts: Count I sought to have a lease construed as a mortgage, and Count II sought specific performanc…
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RYDER, Acting Chief Judge.
Julio and Barbara Alvarez and James and Rose Alvarez, the plaintiffs below, contest a final judgment in which the trial court granted Phillip Puleo and Samuel Bis-sett’s motion for involuntary dismissal of the Alvarezes’ complaint. We reverse and remand for a new trial on the ground that the trial court erroneously required appellants to elect their remedy prior to the beginning of trial.
On the day trial was to begin, upon appellees’ motion the court informed appellants that they had to choose going forward on Count I of their complaint, a request that the court construe a lease as a mortgage, or Count II, a request for specific performance which included allowing appellants to exercise an option to purchase the property. It was error for the court to require that appellants choose which theory to take to trial. A party may plead and litigate inconsistent remedies. Cordell v. World Insurance Co., 358 So. 2d 223, 224 (Fla. 1st DCA 1978) (trial court erroneously required plaintiff to elect remedy prior to filing of defendant’s answer).
The doctrine of election of remedies is a technical rule of procedure or judicial administration. Security & Investment Corporation of the Palm Beaches v. Droege, 529 So. 2d 799, 802 (Fla. 4th DCA 1988). The main purpose of the doctrine is to prevent a double recovery for the same wrong. Barbe v. Villeneuve, 505 So. 2d 1331, 1332-33 (Fla.1987); De Pantosa Saenz v. Rigau & Rigau, P.A., 549 So. 2d 682, 684-85 (Fla.2d DCA 1989); Security, 529 So. 2d at 802.
Accordingly, this court has previously questioned the propriety of a trial court compelling a plaintiff to elect remedies prior to trial rather than prior to entry of the judgment. De Pantosa Saenz, 549 So. 2d at 684, n.
2. We recognize that the third district has ruled that an election of remedies may be required before trial. Deemer v. Hallett Pontiac, Inc., 288 So. 2d 526 (Fla.3d DCA), cert. denied, 298 So. 2d 416 (Fla.1974).
Nevertheless, in keeping with the intent of the doctrine, we are persuaded by those rulings from other districts which have held that election of remedies need only be made before judgment is entered. Moneo of Orlando, Inc. v. ITT Industrial Credit Corp., 458 So. 2d 332 (Fla. 5th DCA 1984) (acknowledging conflict with Deemer, 288 So. 2d at 526). See also Parsons v. Motor Homes of America, 465 So. 2d 1285, 1289 (Fla. 1st DCA 1985) (relied upon Moneo, 458 So. 2d at 332; election between inconsistent remedies need only occur before judgment is entered).
Accordingly, we reverse and remand for a new trial.
Reversed and remanded for a new trial.
THREADGILL and PATTERSON, JJ., concur.
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Burr v. Norris, 667 So. 2d 424 (Fla. 2d DCA 1996)…punitive damages would not have entailed additional discovery or other delay in getting the case to trial. Plaintiffs are also allowed to plead inconsistent or alternative actions and need only elect remedies before final judgment. Alvarez v. Puleo, 561 So. 2d 437 (Fla. 2d DCA 1990); De Pantosa Saenz v. Rigau & Rigau, P.A., 549 So. 2d 682 (Fla. 2d DCA 1989), review denied, 560 So. 2d 234 (Fla.1990); see also Keegan v. Ennia General Ins. Co., 591 So. 2d 300 (Fla. 3d DCA 1991) (awarding treble damages for civil…
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Gilfus v. McNally Cap., LLC. (M.D. Fla. 2023)…ggregate his claims to satisfy the jurisdictional amount in controversy. Doc. 191. Election of remedies is generally made after verdict and before judgment. Wynfield v. Edward LeRoux Group, 896 F. 2d 483 (11th Cir. 1990); see also, Alvarez v. Puleo, 561 So. 2d 437 (Fla. 2d DCA 1990) (holding that a party may plead and litigate inconsistent remedies). In support of the contrary position, Defendant relies on Deemer v. Hallett Pontiac, Inc., 288 So. 2d 526 (Fla. 3d DCA 974), in which the appellate cou…
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Newman v. Am. Home Assurance Co., Inc. (S.D. Fla. 2024)…the language of the statute when discussing their damages. ECF No. [169-1] at 14. ---PAGE 14--- alternative and inconsistent facts and remedies against several parties without being barred by the election of remedies doctrine.”); Alvarez v. Puleo, 561 So. 2d 437, 437 (Fla. 2d DCA 1990) (“A party may plead and litigate inconsistent remedies."). Thus, the fact that the Amended Complaint requests prejudgment interest does not foreclose Plaintiffs' ability to also request statutory interest given that, as menti…
Authorities Cited
- Barbe v. Villeneuve, 505 So. 2d 1331 (Fla. 1987)
- Deemer v. Hallett Pontiac, Inc., 288 So. 2d 526 (Fla. 3d DCA 1974)
- Parsons v. Motor Homes OF Am., Inc., 465 So. 2d 1285 (Fla. 1st DCA 1985)
- Sec. & Inv. Corp. of the Palm Beaches v. Droege, 529 So. 2d 799 (Fla. 4th DCA 1988)
- Monco OF Orlando, Inc. v. ITT Indus. Credit Corp., 458 So. 2d 332 (Fla. 5th DCA 1984)
- Cordell v. World Ins. Co., 358 So. 2d 223 (Fla. 1st DCA 1978)
- Saenz v. Rigau & Rigau, P.A., 549 So. 2d 682 (Fla. 2d DCA 1989)
- Bunker v. S. Bell Tel. & Tel. Co., 298 So. 2d 416 (Fla. 1974)
- Dawson v. ITT Cont'l Baking Co., 298 So. 2d 416 (Fla. 1974)