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

• Beefy Trail, Inc. v. Beefy King Int'l, Inc.
  267 So. 2d 853· Fla. 4th DCA· 1972-10-18 ·cited 33×
  Beefy Trail, Inc. appealed a directed verdict in a breach of franchise contract action, seeking to recover the franchise purchase price, equipment costs, and organizational expenses. The court reversed and remanded, holding that plaintiff could pursue recovery under a restitution
• Matthews v. Olive M. Matthews
  222 So. 2d 282· Fla. 2d DCA· 1969-04-25 ·cited 33×
  Gerald Matthews appealed a summary judgment dismissing his fraud and contract-based claims against his sister Olive, arising from an alleged oral agreement regarding their family corporation. The court affirmed the dismissal, holding that Gerald's claims were barred by the three-
• Air-A-Plane Corp. v. The United States
  408 F.2d 1030· Ct. Cl.· 1969-03-14 ·cited 33×
  A contractor is not estopped from claiming a cardinal change (breach of contract) by first seeking equitable adjustment under the contract's Changes clause, and is entitled to a trial on such claims.
• Ocala Foundary and Machine Works v. Lester
  49 Fla. 347· Fla.· 1905-01-01 ·cited 33×
  Ocala Foundry appeals a chancery decree denying its claim for a mechanic's lien on machinery repaired for the Ocklawaha Lumber Company. The Florida Supreme Court reverses, holding that retention of possession beyond three months does not extinguish a mechanic's lien and does not
• Comcoa, Inc. v. The Honorable Jack M. COE
  587 So. 2d 474· Fla. 3d DCA· 1991-07-30 ·cited 32×
  Comcoa sought a prejudgment writ of replevin under Florida Statute § 78.068 for leased furniture after the defendant failed to make required payments. The county court judge refused to issue the writ without stated reason, and the circuit court dismissed Comcoa's mandamus petitio
• Geiger Mut. Agency, Inc. v. Louella F. Wright
  233 So. 2d 444· Fla. 4th DCA· 1970-03-30 ·cited 32×
  A landlord sought to evict tenants and enforce a landlord's lien for unpaid rent against a chattel mortgagee who held a security interest in property on the leased premises. The court held that a landlord's lien is superior to subsequently recorded chattel mortgages, but reversed
• Chiodo v. Gen. Waterworks Corp.
  380 F.2d 860· 10th Cir.· 1967-07-03 ·cited 32×
  The court held that the plaintiffs' objections to jury instructions were insufficient to preserve the issue for appeal, and that the rescission claim was properly dismissed for failure to join an indispensable party and for election of remedies. The statute of limitations also ba
• Goldenberg v. Bache & Co.
  270 F.2d 675· 5th Cir.· 1959-09-30 ·cited 32×
  The court held that the plaintiff's action was barred by the statute of limitations, as she failed to bring suit within one year of discovering the violation or three years of the violation itself.
• Balado v. Lykes Bros. S. S. Co., Inc.
  179 F.2d 943· 2d Cir.· 1950-02-06 ·cited 32×
  The court held that the jury charge regarding unseaworthiness was ambiguous and may have misled the jury into believing liability was dependent on the owner's knowledge of the defect.
• Kent v. Sutker
  40 So. 2d 145· Fla.· 1949-01-14 ·cited 32×
  The court affirmed a judgment for the plaintiff, holding that a prior lawsuit dismissed on a technicality (mistake in the form of action) did not bar a subsequent suit on the same claim. The prior dismissal was not an adjudication on the merits, thus not res judicata.
• Helton and Helton v. Sinclair
  113 So. 568· Fla.· 1927-06-11 ·cited 32×
  The court reversed a foreclosure decree, holding that a seller who repossessed personal property under a conditional sales contract could not also pursue the debt owed by the buyer. The case highlights the principle of election of remedies in contract law.
• Royal Palm Corporate Ctr. Ass'n, Ltd. v. Pugliese, III
  89 So. 3d 923· Fla. 4th DCA· 2012-03-21 ·cited 31×
  This consolidated appeal addresses whether Florida trial courts may bifurcate mortgage foreclosure remedies by allowing a lender to pursue money judgments first and defer the foreclosure sale until the lender certifies non-satisfaction of those judgments. The Fourth District Cour
• Van Der Noord v. Katz
  481 So. 2d 1228· Fla. 5th DCA· 1985-12-12 ·cited 31×
  Van Der Noord and Underwood appealed a post-trial judgment notwithstanding the verdict on liability for breach of contract in a mobile home park purchase agreement dispute. The trial court found the sellers breached the contract by failing to meet warranted expense-to-income rati
• Gottschamer v. August
  438 So. 2d 408· Fla. 2d DCA· 1983-09-02 ·cited 31×
  William and Nancy Gottschamer, as guarantors of a promissory note and mortgage, appealed the trial court's determination that their set-off from a foreclosure sale should be based on the appraised market value of the property ($186,500) rather than the amount bid at the foreclosu
• Durbin Paper Stock Co., Inc. v. Watson-David Ins. Co., Inc.
  167 So. 2d 34· Fla. 3d DCA· 1964-07-07 ·cited 31×
  Property owners sued an insurance agent and insurance companies after a fire destroyed their building, claiming the agent had agreed to bind insurance coverage. The trial court directed verdicts for plaintiffs against the insurance companies on an oral contract theory and for the
• Mauricio Gugelmin and Stella Gugelmin v. Division OF Administrative Hearings
  815 So. 2d 764· Fla. 4th DCA· 2002-05-08 ·cited 30×
  The Fourth District Court of Appeal reversed in part a final administrative order in a birth-related neurological injury compensation case, holding that the administrative law judge exceeded his authority by ruling on the legal consequences of compensability findings and by requi
• Abc-Paramount Records, Inc. v. Topps Record Distrib. Co., Inc.
  374 F.2d 455· 5th Cir.· 1967-03-22 ·cited 30×
  The court held that the jury's award of compensatory damages was supported by sufficient evidence, but that the trial court erred in excluding the issue of punitive damages from the jury's consideration.
• First Nat'l Bank IN Wichita v. Frank Luther in Bankr. of Garden Grain & Seed Co., Inc.
  217 F.2d 262· 10th Cir.· 1954-10-27 ·cited 30×
  The court held that the bank's prior pursuit of a common claim, after knowing facts that would support a constructive trust claim, constituted an election of remedies that barred the subsequent constructive trust claim.
• Loew's, Inc. v. Cole
  185 F.2d 641· 9th Cir.· 1950-11-22 ·cited 30×
  The court held that the employer's prior conduct and statements did not, as a matter of law, constitute a waiver or practical construction of the contract excusing the employee's contemptuous refusal to answer questions before a Congressional committee. The court also held that t
• Marks v. Fields
  160 Fla. 789· Fla.· 1948-05-11 ·cited 30×
  The Florida Supreme Court addressed whether a plaintiff could switch from an action in deceit to an action for money had and received after the trial judge directed a verdict in the defendant's favor. The case involved alleged fraudulent misrepresentations about zoning law affect
• Hemphill Co. v. COE
  121 F.2d 897· D.C. Cir.· 1941-05-12 ·cited 30×
  The court held that a second patent application cannot be considered a continuation of a prior one for the sole purpose of supplying a required oath if it does not disclose new invention, especially when an appeal on the first application has already determined its inoperativenes
• State v. Buckwater
  126 Fla. 776· Fla.· 1937-01-08 ·cited 30×
  Florida Supreme Court reversed a lower court decision that dismissed a mandamus proceeding by bond holders seeking to enforce tax collection under the city's original charter provisions. The Court held that while municipalities may have multiple remedies for collecting delinquent
• ALL Child's. Hosp., Inc. v. Dep't OF Admin. Hearings
  863 So. 2d 450· Fla. 2d DCA· 2004-01-14 ·cited 28×
  All Children's Hospital appealed an ALJ's order denying it immunity under Florida's Birth-Related Neurological Injury Compensation Act (NICA) based on inadequate notice from another provider. The court reversed, holding that ALJs lack jurisdiction to determine notice adequacy and
• Piver v. Pender Cnty. Bd. OF Educ.
  835 F.2d 1076· 4th Cir.· 1987-12-22 ·cited 28×
  The court held that the teacher's speech regarding the principal's tenure was a matter of public concern, thus constitutionally protected under the First Amendment. The court also found the record insufficient to determine if the teacher had compromised his claim by signing a sta
• W.M. Schlosser Co., Inc. v. The United States
  705 F.2d 1336· Fed. Cir.· 1983-04-22 ·cited 28×
  The court held that it lacks jurisdiction over the appeal because the appellant failed to submit a certified claim to the contracting officer as required by the Contract Disputes Act, and this failure cannot be cured by retroactive certification or by ignoring the election to pro
• Trudy Unger v. Consol. Foods Corp.
  693 F.2d 703· 7th Cir.· 1982-11-26 ·cited 28×
  A prior state court judgment on a discrimination claim must be given preclusive effect under 28 U.S.C. § 1738, even in a Title VII action, unless specific exceptions apply.
• Tuttle/White Constructors, Inc. v. The United States
  656 F.2d 644· Ct. Cl.· 1981-07-29 ·cited 28×
  The court held that docketing an appeal with the ASBCA constitutes a binding election of forums under the Contract Disputes Act, requiring litigation there before seeking judicial review.
• Cities Serv. Helex, Inc. v. The United States
  543 F.2d 1306· Ct. Cl.· 1976-10-20 ·cited 28×
  The court held that plaintiffs, by continuing to perform and accept benefits under the contract after alleged material breaches and by actively seeking to enforce the contracts' continuation through litigation, elected to keep the contracts alive and thus could not claim those pr
• Twin City Fed. Sav. & Loan Ass'n v. Transamerica Ins. Co.
  491 F.2d 1122· 8th Cir.· 1974-02-14 ·cited 28×
  The court held that the doctrine of election of remedies did not bar the plaintiff's claim, but vacated the judgment because the district court exceeded the scope of the parties' submission by making factual findings and legal conclusions not presented for decision.
• Int'l Union of Elec., Radio & Mach. Workers, Afl-Cio v. Gen. Elec. Co.
  332 F.2d 485· 2d Cir.· 1964-05-26 ·cited 28×
  The court held that the company presented forceful evidence that its right to subcontract work was not subject to the general arbitration clause in the collective bargaining agreement.
• S & W Holding Co. v. Kuriansky
  317 F.2d 666· 2d Cir.· 1963-05-21 ·cited 28×
  The court held that the referee erred in setting the allowance for use and occupancy below the contractual rent and in applying the security deposit to satisfy this claim before determining its proper application.
• Mountain v. Nat'l Airlines, Inc.
  75 So. 2d 574· Fla.· 1954-10-19 ·cited 28×
  Pilots hired as strike replacements sought a declaratory decree to clarify their employment status under collective bargaining agreements and recovery for alleged interference with re-employment, but the Florida Supreme Court affirmed dismissal, holding the declaratory relief cla
• Ore S.S. Corp. v. D/S A/S Hassel and five other cases
  137 F.2d 326· 2d Cir.· 1943-07-26 ·cited 28×
  The court held that the shipowners failed to exercise due diligence to make the vessel seaworthy, making them liable for cargo damage, and that the filing of the libel, not the issuance of process, institutes an admiralty suit.
• McKinnon v. Johnson
  59 Fla. 332· Fla.· 1910-01-01 ·cited 28×
  This case concerns whether D. L. McKinnon acquired title to land through adverse possession under color of a sheriff's deed executed in 1898. The Florida Supreme Court affirmed a judgment for the heirs of P. P. Johnson in ejectment, holding that McKinnon failed to establish the c
• Higgins v. Dyck-O'Neal, Inc.
  201 So. 3d 157· Fla. 1st DCA· 2016-06-09 ·cited 27×
  The First District Court of Appeal reversed a default judgment against homeowners, holding that a lender who included a prayer for deficiency relief in a foreclosure action and had the court reserve jurisdiction to enter such a judgment cannot subsequently pursue a separate commo
• Odham v. Petersen
  398 So. 2d 875· Fla. 5th DCA· 1981-04-29 ·cited 27×
  Neighbors of a property owner challenged a county zoning board's decision granting a special exception for greyhound dog kennels. The circuit court required them to elect between certiorari and trial de novo review, they chose certiorari, and the court denied their petition. The
• Inez Stengel GAY v. McCAUGHAN
  105 So. 2d 771· Fla.· 1958-05-28 ·cited 27×
  Inez Gay appealed the dismissal of her suit challenging contempt and personal judgment orders entered against her in an earlier curatorship proceeding. The Florida Supreme Court reversed, holding that the orders lacked jurisdictional authority because Gay's status as a curator-pe
• The AETNA Cas. & Sur. Co. v. Hanna
  224 F.2d 499· 5th Cir.· 1955-06-30 ·cited 27×
  An insurer's obligation to pay damages under a liability policy does not extend to the costs of complying with a mandatory injunction or the expenses of litigating such an action, especially when the policy excludes intentionally caused injury and the insured breaches notice prov
• Jones v. Martin Elecs., Inc.
  932 So. 2d 1100· Fla.· 2006-06-15 ·cited 26×
  The Florida Supreme Court held that an employee who receives workers' compensation benefits for a workplace injury but does not pursue the compensation claim to conclusion on the merits is not estopped from filing a separate civil tort action against the employer if the employer'
• Janiece S. Nolan v. Cleland
  686 F.2d 806· 9th Cir.· 1982-09-08 ·cited 26×
  The court held that a federal employee's resignation may be deemed involuntary and a constructive discharge if a history of unlawful discrimination created an aggravated situation making working conditions intolerable.
• Hinton v. Iowa Nat'l Mut. Ins. Co. & Steve Dellinger
  317 So. 2d 832· Fla. 2d DCA· 1975-07-23 ·cited 26×
  Betty Hinton obtained a judgment against truck owner Ralph Quinlan in a personal injury case arising from an accident, then attempted to sue the truck driver Steve Dellinger and his insurer for the same accident. The Florida District Court of Appeal affirmed dismissal of the seco
• Martha Phillips et vir v. Hall
  297 So. 2d 136· Fla. 1st DCA· 1974-06-18 ·cited 26×
  A negligence plaintiff who recovered a judgment against an employer (Publix) for an employee's negligent act cannot subsequently sue the employee for the same negligence. The court held that a master-servant relationship is distinguishable from joint tort-feasorship, and where a
• Tang v. App. Div. OF the NEW York Supreme Court
  487 F.2d 138· 2d Cir.· 1973-10-19 ·cited 26×
• Barrow Dev. Co., Inc. v. The Fulton Ins. Co.
  418 F.2d 316· 9th Cir.· 1969-11-04 ·cited 26×
  The court held that a removal petition must contain a short and plain statement of facts establishing federal jurisdiction, and a complete absence of such allegations cannot be cured by amendment after the removal period has expired.
• Williams v. Duggan
  153 So. 2d 726· Fla.· 1963-05-15 ·cited 26×
  The Florida Supreme Court held that filing a claim in a workers' compensation case does not constitute an irrevocable election of remedies merely by filing, even if the claim is later dismissed without adjudication on the merits. The Court reversed the district court's contrary h
• Lichter v. Goss
  232 F.2d 715· 7th Cir.· 1956-05-08 ·cited 26×
  The court held that plaintiffs' election to proceed with the contract after encountering delays constituted a waiver of any right to claim discharge from their obligations.
• Brinson v. Se. Utils. Serv. Co.
  72 So. 2d 37· Fla.· 1954-03-12 ·cited 26×
  An employee injured in the course of employment obtained a judgment against a third party but also sought workers' compensation benefits. The Florida Supreme Court held that where the employer's insurance carrier failed to timely sue the third party within the statutory period, t
• Division of Administration v. Ness Trailer Park, Inc.
  489 So. 2d 1172· Fla. 4th DCA· 1986-05-28 ·cited 25×
  The Florida Department of Transportation appeals an amended final judgment awarding severance and business damages in a condemnation proceeding for airport expansion. The court reverses the award of severance damages but affirms the business damages award, holding that severance
• Roberts v. Sears
  573 F.2d 976· 7th Cir.· 1978-04-03 ·cited 25×
  The court held that the patent licensee's duty to challenge patent validity under Lear, Inc. v. Adkins does not apply to a complete assignment of patent rights obtained through fraud, and that a jury's award of past profits does not preclude a subsequent claim for rescission and
• Hustad v. Edwin K. Williams & Co.-East
  321 So. 2d 601· Fla. 4th DCA· 1975-10-24 ·cited 25×
  The court held that by seeking damages for breach of contract, the franchisees affirmed the contract's validity and could not later disaffirm its termination provisions.