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Election of Remedies Doctrine

A recent case out of Florida’s Third District Court of Appeals provides a worthy discussion of the election of remedies doctrine:

The Florida Supreme Court has stated:

The election of remedies doctrine is an application of the doctrine of estoppel and operates on the theory that a party electing one course of action should not later be allowed to avail himself of an incompatible course. The purpose of the doctrine is to prevent a double recovery for the same wrong. Under Florida law, however, the election of remedies doctrine applies only where the remedies in question are coexistent and inconsistent. . . . [F]or one remedy to bar another remedy on grounds of inconsistency they must procced from opposite and irreconcilable claims of right and must be so inconsistent that party could not logically follow one without renouncing the other.

Barbe v. Villeneuve, 505 So. 2d 1331, 1332-33 (Fla. 1987) (internal citations omitted). In addition, for remedies to be coexistent, the issue is whether they arise out of the same set of facts. Goldstein v. Serio, 566 So. 2d 1338, 1340 (Fla. 4th DCA 1990). Thus, if the coexistent remedies are inconsistent, a party’s election of one remedy prevents the party’s pursuit of the other remedy. “An election between legally inconsistent remedies can be made at any time prior to the entry of judgment.” Barbe, 505 So. 2d at 1333. However, importantly, “[i]f the remedies are deemed to be consistent, only satisfaction of the claim precludes resort to the alternative remedy, whereas if they are inconsistent, the event which operates as an election is entry of the final judgment.” Villeneuve v. Atlas Yacht Sales, Inc., 483 So. 2d 67, 70 (Fla. 4th DCA 1986) (italics in original and emphasis supplied). Courts in Florida recognize that the remedies of rescission and damages are coexistent and inconsistent because rescission is premised upon a disavowal of the contract, while a claim for damages is based upon the affirmance of the contractBliss & Laughlin Indus., Inc. v. Malley, 364 So. 2d 65, 66 (Fla. 4th DCA 1978); Hustad v. Edwin K. Williams & Co. E., 321 So. 2d 601, 603 (Fla. 4th DCA 1975).

Moreover, “[a] plaintiff is not guaranteed success in the choice of remedies, only an opportunity to proceed under a theory which has been pled.” Feinberg v. Naile, 561 So. 2d 1307, 1308 (Fla. 3d DCA 1990). Thus, in Florida, an election is binding and irrevocable even under circumstances where the chosen remedy is improper or nonexistent. Barbe, 505 So. 2d at 1334; Flinn v. Doty, 275 So. 3d 671, 673 (Fla. 4th DCA 2019); United Cos. Fin. Corp. v. Bergelson, 573 So. 2d 887, 888-89 (Fla. 4th DCA 1990).


In a jury trial, the plaintiff is required to choose a remedy after the end of the trial and after the jury has had the chance to resolve any factual issues in dispute. First Nat. Bank of Lake Park v. Gay, 694 So. 2d 784, 786-87 (Fla. 4th DCA 1997).

North Bay Green Investments, LLC v. Cold Pressed Raw Holdings, LLC, 49 Fla.L.Weekly D585a (Fla. 3d DCA 2024).

In North Bay Green Investments, parties proceed to a bench trial. One party was seeking rescission of an agreement, or in the alternative, monetary damages for breach. Prior to the entry of final judgment, the party elected the remedy of rescission. The trial court found that the party failed to establish the basis for rescission and, thus, entered a final judgment in favor of the other party. The trial court found that the party WAIVED its claim for monetary damages by electing the remedy of rescission which it proceeded under.

Here, “there was no verdict to be returned so that appellants could wait and then elect their remedy.” North Bay Green Investments, supra.  In the bench trial, the party was required to elect the remedy of rescission or damages prior to the entry of the trial court’s judgment and “[a]warding both rescission and damages to appellants is the double recovery that the election of remedies doctrine is intended to prevent.” North Bay Green Investments, supra.

When electing remedies, particularly in a bench trial, consider that there is no jury and you don’t have the luxury of waiting until after the jury’s verdict.  Like North Bay Green Investments, you may be forced to elect the remedy prior to knowing how the trial court will rule so pick your remedy wisely!!!

Please contact David Adelstein at [email protected] or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.


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