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. . ....

12 June

0 Comments

Sticky

The Bench Trial and Competent Substantial Evidence

Posted by David Adelstein

in Appeal, Standard of Review

In another posting, I discussed the doctrine referred to as the anticipatory repudiation of a contract. The anticipatory repudiation of a contract amounts to a breach of the contract as a party is prospectively repudiating their obligations in the contract. However, for purposes this article, that same case explains the difficulty in overturning a judgment from a non-jury (or bench) trial. This is because of the competent substantial evidence burden where a trial court will be affirmed if there is competent substantial evidence. If you are appealing a judgment from a bench trial, you are dealing with a harder standard or...

29 September

0 Comments

Sticky

Appealing Correct Measure of Damages

Posted by David Adelstein

in Appeal, Evidence

In an earlier article, I wrote how economic damages MUST be supported by substantial competent evidence. In a recent case, Levy v. Ben-Shmuel, 43 Fla.L.Weekly D2229a (Fla. 3d DCA 2018), a plaintiff, after a bench trial, recovered a judgment against a defendant that included money damages associated with a claim for conversion. During trial, and after the plaintiff’s case-in-chief, the defendant moved for an involuntary dismissal arguing the plaintiff failed to meet its burden in establishing the correct measure of damages at trial. On appeal, the plaintiff ultimately conceded that he did not establish the correct measure of damages. The issue...

11 March

0 Comments

Sticky

Moving for an Involuntary Dismissal in a Nonjury Bench Trial

Posted by David Adelstein

in Appeal, Burden of Proof, Standard of Review

Analogous to a motion for directed verdict in a jury trial, in a nonjury bench trial decided by a judge, a defendant can move for an involuntary dismissal after the plaintiff (party introducing evidence in favor of affirmative relief) puts on his/her case. This is a common motion after the plaintiff in a bench trial puts on his/her case. No different than moving for a directed verdict in a jury trial, it is a motion that carries a high burden since every doubt and inference is given in favor of the plaintiff. Florida Rule of Civil Procedure 1.420(b) authorizes motions for...