UNITED COMPANIES FINANCIAL CORPORATION, APPELLANT,
v.
VICTOR BERGELSON, PHYLLIS BERGELSON, JOHN A. CORSETTI, SHERYLL L. CORSETTI, ARTHUR J. ABRAMOWITZ, AS TRUSTEE, WILLIAM C. MEYER, GREATER ATLANTIC CORPORATION, JOSEPH DI MAURO, LAWRENCE F. DI MAURO, JOSEPH F. DI MAURO, MARJORIE E. DEAL, JOSEPH C. DEAL, HENRIETTA FRIEDMAN, FIRST AMERICAN BANK OF PALM BEACH COUNTY, N/K/A FIRST AMERICAN BANK AND TRUST, SCHINDALL REALTY, INC. AND JESSIE L. PATTERSON D/B/A BEN ADAMS REALTY AND RICHARD B. VINCENT, ETC., APPELLEES
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United Companies Financial Corporation appealed a trial court decision that awarded appellees ownership of real property in a foreclosure action. The appellate court held that appellees' prior election of a conversion remedy (which yielded monetary damages for the lost property) precluded them from later pursuing the inconsistent remedy of obtaining the property itself, as doing so would constitute a double recovery for the same wrong.
The appellees' election of the conversion remedy precluded recovery on their counterclaim for title. Because appellees received compensation through their conversion judgment for the loss of the property, obtaining the property itself would constitute an impermissible double recovery for the same wrong.
[1] The doctrine of election of remedies prevents a party from recovering twice for the same wrong.
[2] A party who obtains a judgment for damages for the loss of property cannot later seek to recover title to that same property.
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Join FLexlaw to unlock all legal intelligence“The doctrine of elections of remedies exists to prevent a party from recovering twice for the same wrong.”
Establishes the foundational principle underlying the court's decision to bar double recovery
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Join FLexlaw to unlock all legal intelligenceIn September 1981, appellees sued for conversion and damages after Victor Bergelson and Michael Kessler converted real property. Appellees obtained a …
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GARRETT, Judge.
We address the dispositive issue: Did appellees’ election of remedies preclude recovery on their counterclaim? We hold that it did and reverse.
In September of 1981, after a series of complicated real estate mortgage transactions which involved most of the parties, appellees Greater Atlantic Corporation (GAC), Joseph Di Mauro, Lawrence Di Mauro and Joseph F. Di Mauro sued seeking declaratory relief and damages for the loss of real property converted by appellee Victor Bergelson and one Michael Kessler. GAC obtained a final judgment which awarded it damages for the loss of the real property. In November of 1984, after Ber-gelson defaulted on the mortgage on the real property, appellant United Companies Financial Corporation (United) as mortgagor brought suit to foreclose and appellees intervened to file a counterclaim. Appel-lees sought, among other things, to be declared the owners of the real property and have Bergelson’s interest expunged. The trial court ruled in favor of appellees and against United who then appealed.
The doctrine of elections of remedies exists to prevent a party from recovering twice for the same wrong. Villeneuve v. Atlas Yacht Sales, Inc., 483 So. 2d 67, 69 (Fla. 4th DCA 1986), approved, Barbe v. Villeneuve, 505 So. 2d 1331 (Fla.1987). Ap-pellees’ suit for conversion compensated them for the loss of the real property. A favorable judgment in their suit for title of the real property would amount to a double recovery.
The rule applies to bar other or different courses of action when the remedies are inconsistent. Id. (quoting Klondike, Inc. v. Blair, 211 So. 2d 41, 42-43 (Fla. 4th DCA 1968). The remedies sought by appel-lees were inconsistent. They cannot be compensated for the loss of the real property and then later obtain the real property.
We acknowledge that real property cannot be the subject of conversion. American Int’l Land Corp v. Hanna, 323 So. 2d 567, 569 (Fla.1975). Therefore, conversion was a nonexistent remedy. Ordinarily, if a plaintiff proceeds upon an nonexistent remedy, he is not precluded from resorting to another remedy. Rolf's Marina, Inc. v. Rescue Serv. & Repair, Inc., 398 So. 2d 842, 843 (Fla. 3d DCA 1981) (quoting Perry v. Benson, 94 So. 2d 819, 820 (Fla.1957). However, the plaintiff’s effort under the nonexistent remedy must have been aborted to pursue another remedy. Id. Sub judice, appellees’ effort under the conversion remedy was not aborted since that case proceeded to judgment. Appellees obtained the remedy they sought even though it was an improper remedy.
“When a party elects between two or more inconsistent courses and has knowledge of all the pertinent facts, he binds himself to the course he adopts first and cannot later withdraw from this knowing election.” Barbe v. Villeneuve, 505 So. 2d 1331, 1334 (Fla.1987). Appellees cannot now seek a different remedy.
Accordingly, we reverse and remand for further proceedings consistent with this opinion.
WALDEN and POLEN, JJ., concur.
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Fed. Deposit Ins. Corp. for Sunrise Sav. & Loan Ass'n v. Hemmerle, 592 So. 2d 1110 (Fla. 4th DCA 1991)…off of six million dollars for the bid credit that FDIC received at the foreclosure sale. To enter a judgment for FDIC in this Second Guaranty action would be tantamount to a double recovery. See United Companies Financial Corporation v. Bergelson, 573 So. 2d 887 (Fla. 4th DCA 1990) (where a previous suit for conversion had compensated a party for the loss of real property, a favorable judgment in their subsequent suit for title of that real property would amount to a double recovery, which was impermissible…
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Liddle v. A.F. Dozer, Inc., 777 So. 2d 421 (Fla. 4th DCA 2000)…xclusive, so that one implies negation of the underlying facts necessary for the other, then the mere choice of one remedy and, certainly, the pursuit of one remedy to judgment, operates as an election. [See United Companies Fin. Corp. v. Bergelson, 573 So. 2d 887, 888 (Fla. 4th DCA 1990) ]. However, if the remedies are concurrent or cumulative, and logically can coexist on the same facts, the doctrine of election does not apply until the injured party has received full satisfaction for his [or her] injuries.…
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Florraine W. Kelsey v. Pewthers, 685 So. 2d 953 (Fla. 4th DCA 1996)…dress for its breach. Klondike, Inc. v. Blair, 211 So. 2d 41, 42-43 (Fla. 4th DCA 1968). Lastly, the purpose of the doctrine of election of remedies is to prevent a party from recovering twice for the same wrong. United Cos. Fin. Corp. v. Bergelson, 573 So. 2d 887 (Fla. 4th DCA), rev. denied, 584 So. 2d 998 (Fla.1990). This purpose would not be served by disallowing the Pewthers any recovery for Kelsey’s conceded breach of contract. [*957] Therefore, we reverse the award of money damages to the Pewthers. On r…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Barbe v. Villeneuve, 505 So. 2d 1331 (Fla. 1987)
- Am. Int'l Land Corp. v. Hanna, 323 So. 2d 567 (Fla. 1975)
- Klondike, Inc. v. Blair, 211 So. 2d 41 (Fla. 4th DCA 1968)
- Gale D. Perry v. Benson, 94 So. 2d 819 (Fla. 1957)
- Rolf's Marina, Inc. v. Rescue Serv. & Repair, Inc., 398 So. 2d 842 (Fla. 3d DCA 1981)
- Pierre Villeneuve for Lehman Mfg. (Canada), Ltd. v. Atlas Yacht Sales, Inc., 483 So. 2d 67 (Fla. 4th DCA 1986)