Election Of Remedies

856 Florida cases classified under this topic, plus 11 listed through its narrower topics · sorted by citation count · see the citation graph · browse and sort

• Ocean Beach Improvement Co. & Edward E. Stevens v. Jenkins
  142 Fla. 273· Fla.· 1940-03-19 ·cited 3×
  The Florida Supreme Court affirmed the dismissal of a bill to cancel tax certificates and a master's deed obtained by S. J. Jenkins through tax foreclosure proceedings. The court held that the tax certificates were properly obtained and enforceable as a lien despite minor discrep
• Safe Harbor Equity Distressed Debt Fund 3, L.P. v. 9775 Dixie LLC
  388 So. 3d 1093· Fla. 3d DCA· 2024-05-15 ·cited 2×
  A trial court does not abuse its discretion by denying specific performance of a deed in lieu of foreclosure when the property value substantially exceeds the debt and the lender's alternate foreclosure remedy provides full recovery. The redemption-waiver provision in the forbear
• Ervin v. Sunita N. Smith
  312 So. 3d 995· Fla. 1st DCA· 2021-02-12 ·cited 2×
  The appellate court reversed a trial court's decision that prevented a personal representative from recovering appellate attorney's fees from estate beneficiaries. The court found the trial court erred in applying collateral estoppel, as the prior ruling against one beneficiary d
• NLG, LLC v. Hazan
  151 So. 3d 455· Fla. 3d DCA· 2014-09-03 ·cited 2×
  A prior unsatisfied judgment on a promissory note secured by a mortgage does not preclude foreclosure of the mortgage, and a quiet title order vacating a sheriff's deed does not extinguish the mortgage lien.
• C.W. Roberts Contracting, Inc. v. Cuchens
  10 So. 3d 667· Fla. 1st DCA· 2009-04-20 ·cited 2×
  The court held that the defendant, as the statutory employer, was immune from a wrongful death suit because the plaintiff's decedent was an employee covered by workers' compensation and the complaint did not sufficiently allege an intentional tort.
• Ehrman v. Mann
  979 So. 2d 1011· Fla. 4th DCA· 2008-03-05 ·cited 2×
  The court held that the doctrine of election of remedies did not preclude enforcement of a settlement agreement because the remedies pursued were cumulative and not inconsistent.
• City of Jacksonville v. Cowen
  973 So. 2d 503· Fla. 1st DCA· 2007-12-17 ·cited 2×
  A police officer dismissed by Jacksonville Sheriff's Office sought arbitration under a collective bargaining agreement. The City argued he waived arbitration by appealing his initial suspension to the Civil Service Board. The court held that because the officer never actively pur
• Law Offs. of David J. Stern, P.A. v. Scor Reinsurance Corp.
  354 F. Supp. 2d 1338· S.D. Fla.· 2005-02-02 ·cited 2×
  A plaintiff's prior suit against an agent does not constitute a binding election of remedies preventing a subsequent suit against an undisclosed principal, and a tortious interference claim is not barred by the economic loss doctrine if it alleges distinct damages and facts from
• Powers v. E.R. Precision Optical Corp. & N. Am. Risk Servs.
  886 So. 2d 281· Fla. 1st DCA· 2004-11-10 ·cited 2×
  Ronald Powers appeals a workers' compensation judge's summary final order barring his claims based on the doctrine of election of remedies, after he obtained a civil judgment against his co-worker and employer for battery. The court affirmed, holding that because Powers alleged t
• City OF Miami v. Arostegui
  864 So. 2d 508· Fla. 1st DCA· 2004-01-08 ·cited 2×
  The court reversed the compensation judge's order requiring the employer to pay permanent total disability supplemental benefits, holding that the Workmen's Compensation Trust Fund was responsible for such payments and the claimant waived the claim by failing to litigate it in th
• Vaughn v. Munn
  826 So. 2d 1094· Fla. 5th DCA· 2002-10-04 ·cited 2×
  The Vaughns sold a waterfront home to Munn for $325,000. Munn later discovered termite damage and water problems, demolished the house, and rebuilt for $343,000, then sued for breach of the sales contract's disclosure warranty and fraud. The appellate court reversed the damages a
• Shear Homes, Inc. v. Sheppard
  764 So. 2d 705· Fla. 1st DCA· 2000-06-19 ·cited 2×
  Shear Homes appeals an order awarding attorney fees and costs to a claimant's attorney in a workers' compensation case. The court holds that when a claimant elects to seek benefits from the Florida Workers' Compensation Insurance Guaranty Association (FWCIGA) following a self-ins
• Innovative Material Sys., Inc. v. Santa Rosa Utils., Inc.
  721 So. 2d 1233· Fla. 1st DCA· 1998-12-21 ·cited 2×
  The court held that replevin is not mutually exclusive of other causes of action and that the trial court erred in denying leave to amend based on this erroneous belief.
• First Nat'l Bank OF Lake Park v. Luella GAY
  694 So. 2d 784· Fla. 4th DCA· 1997-05-07 ·cited 2×
  First National Bank appeals a judgment for the lessor in a commercial lease dispute, challenging the trial court's requirement that it elect remedies before trial, exclusion of parol evidence regarding property condition, refusal to instruct on 'best efforts,' and omission of an
• Dixie OIL Co. OF Fla., Inc. v. State
  657 So. 2d 1258· Fla. 1st DCA· 1995-07-13 ·cited 2×
  The court held that Dixie Oil Company elected its remedy by accepting damages in the eminent domain proceeding and therefore could not pursue administrative remedies challenging the Department of Transportation's modification of its driveways.
• L.W. v. Grubbs
  974 F.2d 119· 9th Cir.· 1992-09-03 ·cited 2×
  The court held that a state employee can state a claim under 42 U.S.C. § 1983 for a due process violation when state actors affirmatively create a danger that leads to harm by a third party, even without a custodial relationship.
• Haphey v. Linn Cnty.
  953 F.2d 549· 9th Cir.· 1992-01-09 ·cited 2×
  Pursuing a remedy before a state administrative agency for an unfair labor practice does not preclude a subsequent federal court action for violation of federal constitutional rights.
• ARP Films, Inc. v. Marvel Ent. Grp., Inc.
  952 F.2d 643· 2d Cir.· 1991-12-24 ·cited 2×
  The court held that plaintiffs' continued performance under the contract while withholding payments and accountings constituted a material breach, and that the jury's findings were supported by the evidence.
• Ropiza v. Reyes
  583 So. 2d 400· Fla. 3d DCA· 1991-07-30 ·cited 2×
  In this real estate dispute, the court held that a liquidated damages clause giving the seller three alternative remedies upon buyer default is unenforceable under Florida law, but reversed the trial court's judgment on the pleadings because the seller may still pursue a separate
• Jones v. Roadway Express, Inc.
  936 F.2d 789· 5th Cir.· 1991-07-16 ·cited 2×
  The court denied the petition for rehearing, holding that the employee's state-law retaliatory discharge claim was not preempted by federal law and that the case should be remanded to state court.
• Lund v. Albrecht
  936 F.2d 459· 9th Cir.· 1991-06-26 ·cited 2×
  The court held that the partnership dissolution was not finalized until June 4, 1984, and Albrecht breached his fiduciary duty by failing to disclose offers for partnership property. The court also held that Albrecht waived claims regarding competing property interests in the Jun
• In re Holiday Intervals, Inc. v. Jack E. Brown for Holiday Intervals, Inc.
  931 F.2d 500· 8th Cir.· 1991-04-25 ·cited 2×
  The court held that promissory notes, even when included on land sale installment contracts, retain their status as instruments under the UCC.
• Koch Indus., Inc. v. SUN Co., Inc.
  918 F.2d 1203· 5th Cir.· 1990-12-12 ·cited 2×
  The court held that Koch failed to prove breach of contract regarding the pension fund and that Koch's actions after learning of the DeepSea sale precluded specific performance for the right of first refusal.
• Frey Dairy v. A.O. Smith Harvestore Prods., Inc.
  886 F.2d 128· 6th Cir.· 1989-09-22 ·cited 2×
  The court held that the contract's express waiver of tort remedies in favor of limited contract remedies precluded the plaintiff's tort claims, even if the economic loss doctrine or statute of limitations were otherwise applicable.
• Hall v. Allstate Ins. Co.
  880 F.2d 394· 11th Cir.· 1989-08-10 ·cited 2×
  The court held that an insured's claim for an insurer's refusal to pay a judgment accrues upon entry of that judgment, not upon the insurer's prior denial of coverage. However, a claim for refusal to defend accrues when the insurer denies coverage and refuses to defend a pending
• Hays v. Postmaster General OF the United States
  868 F.2d 328· 9th Cir.· 1989-02-17 ·cited 2×
  The district court erred by dismissing the case without considering whether to transfer it to the Federal Circuit, as required by 28 U.S.C. § 1631, when it lacked jurisdiction over discrimination claims not raised before the MSPB.
• Browd v. Everclear Photocopy, Inc.
  536 So. 2d 1083· Fla. 4th DCA· 1988-11-16 ·cited 2×
  Browd appealed a final judgment that included a dismissal of his Deceptive and Unfair Trade Practices Act claim, which he had elected not to pursue at trial. The court held that including a judgment on a claim that was dropped without submission to the jury and without objection
• Gardner v. Nimnicht Chevrolet Co.
  532 So. 2d 26· Fla. 1st DCA· 1988-09-09 ·cited 2×
  A prevailing party in civil litigation resulting from a consumer transaction involving a violation of the Florida Deceptive and Unfair Trade Practices Act is entitled to attorney's fees, even if they elect a remedy other than the specific count alleging the statutory violation.
• Dykes M. Young v. Dep't of Admin.
  524 So. 2d 1071· Fla. 1st DCA· 1988-04-20 ·cited 2×
  Dykes Young appealed administrative and circuit court decisions denying him monthly retirement benefits from his deceased mother's state pension account. The court held that when other designated beneficiaries disclaimed their interests under Florida's disclaimer statute, Young,
• In re Witte
  841 F.2d 804· 7th Cir.· 1988-03-18 ·cited 2×
  The court held that a vendor's repossession of property under an installment land sales contract constitutes a forfeiture, which bars subsequent claims for damages, even if those damages have been reduced to a judgment.
• In re Evcco Leasing Corp. v. ACE Trucking Co.
  828 F.2d 188· 3d Cir.· 1987-09-03 ·cited 2×
  The court held that Evcco did not waive or is not estopped from invoking the protection of N.J.Stat.Ann. § 2A:17-1, which requires levy on personalty before realty.
• Morales v. Merit Sys. Prot. Bd.
  823 F.2d 536· Fed. Cir.· 1987-07-14 ·cited 2×
  The court held that an employee's election of a negotiated grievance procedure is not valid if made by the union without the employee's authorization, especially when agency notice of appeal rights requires such authorization.
• Gilmore v. Waterman S.S. Corp.
  790 F.2d 1244· 5th Cir.· 1986-06-04 ·cited 2×
  The court held that by asserting both admiralty and diversity jurisdiction, the plaintiff elected to proceed in admiralty, thus waiving the right to a jury trial.
• Ferguson v. Hosp. Corp. Int'l, Ltd.
  769 F.2d 268· 5th Cir.· 1985-08-26 ·cited 2×
  An employer's failure to comply with the notice provisions of the Texas Workers' Compensation Act, particularly notice to the State, prevents the employer from claiming subscriber status and the exclusive remedy defense. Post-injury notice does not cure pre-injury non-compliance.
• Ayares-Eisenberg Perrine Datsun, Inc. v. SUN Bank OF Miami
  455 So. 2d 525· Fla. 3d DCA· 1984-08-21 ·cited 2×
  The Florida Third District Court of Appeal reversed a summary judgment for Sun Bank in a secured creditor dispute, holding that a secured creditor cannot pursue dual remedies simultaneously against a debtor and must complete one remedy before pursuing another. The court remanded
• Johnson v. MID States Screw & Bolt Co.
  733 F.2d 1535· 11th Cir.· 1984-06-08 ·cited 2×
  The court held that a fraud claim based solely on violations of the Georgia Bulk Sales Act fails to state a claim, but affirmed the transferor's duty to indemnify the transferee for payments made to creditors.
• State v. Atl. Int'l Inv. Corp.
  438 So. 2d 868· Fla. 1st DCA· 1983-09-12 ·cited 2×
  Atlantic International Investment Corporation sought damages for an alleged taking of its property rights in Cape Atlantic Estates (CAE) due to environmental permitting delays and regulatory actions. The Florida District Court of Appeal reversed the trial court's finding of a tak
• Sporl v. Honorable George E. Lowrey
  431 So. 2d 245· Fla. 1st DCA· 1983-05-06 ·cited 2×
  The Board of Adjustment of the City of Gulf Breeze sought a writ of prohibition to prevent the circuit court from exercising jurisdiction over a certiorari petition challenging the Board's grant of variances to Exxon Corporation. The court denied the Board's petition, holding tha
• Gillman v. Nemeroff
  423 So. 2d 961· Fla. 4th DCA· 1982-12-01 ·cited 2×
  In this consolidated appeal involving a failed real estate transaction, the court addressed issues of specific performance, remedy election, and broker's commission claims. The court affirmed the trial court's refusal to allow dismissal of a specific performance action and reinst
• COE v. Mich. Dep't OF Educ.
  693 F.2d 616· 6th Cir.· 1982-11-29 ·cited 2×
  The court held that plaintiffs could not litigate simultaneously in state and federal courts under the EHCA and that their claims were barred by res judicata.
• Marshall v. Quik-Trip Corp.
  672 F.2d 801· 10th Cir.· 1982-03-12 ·cited 2×
  The court held that an employer's obligation to pay back wages under the FLSA is not satisfied when employees refuse or fail to cash checks for those wages, and equitable relief should be granted to prevent the employer from withholding such sums.
• ST. Paul Fire & Marine Ins. Co. v. Mich. Nat'l Bank OF Detroit
  660 F.2d 196· 6th Cir.· 1981-09-23 ·cited 2×
  A surety, after paying a subcontractor and taking an assignment of the subcontractor's claim against a bank for untimely dishonor of a check, cannot recover from the bank if the subcontractor received full satisfaction and released the surety.
• In re Gross v. Gross
  654 F.2d 602· 9th Cir.· 1981-08-24 ·cited 2×
  Debts obtained by false representations are nondischargeable, and the bankruptcy court can examine fraud beyond the state court record.
• Dunham v. Brevard Cnty. Sch. Bd. & Dep't of Educ.
  401 So. 2d 888· Fla. 5th DCA· 1981-07-22 ·cited 2×
  Dunham appealed the dismissal of her sex discrimination claim under the Fair Labor Standards Act against the Brevard County School Board. The Fifth District reversed, holding that the trial court was bound by a prior Fourth District decision establishing state court jurisdiction
• Hunt v. Hiland
  366 So. 2d 42· Fla. 4th DCA· 1978-11-08 ·cited 2×
  The court held that the lessors' actions constituted a premature election of remedies and wrongful eviction because the lease required written notice of default before termination or reentry, which had not been provided.
• Krutel v. Irwin Stolberg
  356 So. 2d 1299· Fla. 3d DCA· 1978-03-28 ·cited 2×
  Defendants sold a one-third stock interest in a plumbing company to plaintiff based on financial statements that were materially false and incomplete. The trial court granted rescission under Florida's securities laws and awarded the plaintiff the difference between his investmen
• Zdenka Slomovic v. Petryk
  341 So. 2d 208· Fla. 4th DCA· 1976-12-17 ·cited 2×
  A Florida appellate court held that a mortgagee cannot avoid the penalties of the Balloon Mortgage Statute by electing to sue on a promissory note while ignoring the related mortgage. The mortgagee's failure to include the required statutory legend on a balloon mortgage resulted
• Dell v. Heard
  532 F.2d 1330· 10th Cir.· 1976-03-30 ·cited 2×
  The court held that the trial court did not err in dismissing the complaint, as the plaintiff was barred by the election of parties doctrine and the community property statutes did not create a new cause of action against the husband.
• Burrus v. Am. Cas. Co.
  518 F.2d 1267· 7th Cir.· 1975-07-18 ·cited 2×
  A party who prosecutes one of two coexisting but inconsistent remedies to a final judgment is precluded from thereafter suing on the other remedy.
• Riess v. Murchison
  503 F.2d 999· 9th Cir.· 1974-09-12 ·cited 2×
  The court held that a party suing for total breach, even if later found to be only a partial breach, does not excuse the other party's subsequent non-performance; the breaching party remains liable for damages.