Monco of Orlando v. ITT INDUS. CREDIT

District Court of Appeal of Florida
1984 Fla. App. LEXIS 15326, 9 Fla. L. Weekly 2111, 458 So. 2d 332 (1984)

ELI5:

Sections

Rule of Law:

A plaintiff pleading inconsistent remedies is not required to elect a single remedy prior to trial; the election need only be made before the entry of judgment.

Facts:

Monco purchased a Lagun vertical milling machine from Mercury Machine Tool to fabricate replacement parts.
Monco returned the machine to Mercury for testing and repair of technical problems.
Mercury engaged in a fraudulent scheme of 'double financing,' placing multiple serial numbers on single machines to secure loans from various lenders.
ITT, a lender, reclaimed a vertical milling machine from Mercury, believing it to be a 'Shizuoka' model it had financed.
Monco officials went to retrieve their machine from Mercury but found it missing.
Monco located their specific Lagun machine stored in ITT's warehouse.
ITT possessed the machine but refused to return it to Monco, leading to the dispute.

Procedural Posture:

Monco filed suit against ITT in the trial court asserting counts for replevin, conversion, and civil theft.
At a pre-trial conference, the trial court ordered Monco to elect the specific remedy it would pursue before jury selection.
Monco objected but elected to proceed solely on the civil theft count.
The jury returned a verdict in favor of the defendant, ITT.
The trial court entered final judgment for ITT based on the jury verdict.
Monco appealed the judgment to the District Court of Appeal of Florida, Fifth District.

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Issue:

Does a trial court commit reversible error by compelling a plaintiff to elect between inconsistent remedies, such as conversion and civil theft, prior to the commencement of the trial?

Opinions:

Majority - Judge Orfinger

Yes, the trial court erred because the requirement to elect between inconsistent remedies applies only before judgment is entered, not before the trial begins. The court reasoned that Florida Rule of Civil Procedure 1.110(g) explicitly permits the joinder of inconsistent causes of action. While a plaintiff cannot recover on two inconsistent theories (thereby receiving a double recovery), forcing an election before evidence is presented is premature. The court relied on precedents such as Wolfe v. Aetna Insurance Company and General Electric Company v. Atlantic Shores, Inc., rejecting the contrary holding in Deemer v. Hallett Pontiac, Inc. The court emphasized that if a chosen remedy proves illusory or unavailing, a plaintiff should not be precluded from seeking an alternative remedy.

Analysis:

This decision clarifies the procedural timing regarding the 'election of remedies' doctrine in Florida. By ruling that election is only required before judgment, the court protects plaintiffs from being forced into a premature strategic choice that could leave them without relief if their chosen theory fails at trial. It balances the defendant's right to avoid double liability with the plaintiff's right to plead alternative theories based on the same set of facts. The ruling explicitly creates a conflict with a decision from the Third District Court of Appeal (Deemer), signaling a divergence in Florida appellate law at the time regarding this procedural requirement.

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