election of remedies doctrine in Texas

2001To support its argument, Valley Forge relies on Bocanegra v. Aetna Life Insurance Co., 605 S.W.2d 848, 851 (Tex.1980), which stated the following test: the election of remedies doctrine may constitute a bar to relief when (1) one successfully exercises an informed choice (2) between two or more remedies, rights, or states of fact (3) which are so inconsistent as to (4) constitute manifest injustice.

2001In support of this argument, Sheffield relies on various cases to suggest the election of remedies doctrine is extremely limited and should not apply in this case: Fina Supply, 726 S.W.2d at 541 (stating that the election doctrine is not favored, and its scope should not be extended); Bocanegra, 605 S.W.2d at 851 (stating that an election will bar recovery when the inconsistent right, remedy, or state of facts is so unconscionable, dishonest, contrary to fair dealing, or so stultifies the legal process or trifles with justice or the courts as to be manifestly unjust); B & L Cherry Hill Assocs.

1979In Custom Leasing, Inc. v. Texas Bank & Trust Co., 491 S.W.2d 869, 871 (Tex.1973), the court stated that “the doctrine of election of remedies is not a favorite of equity and that its scope should not be extended.” The court has also referred to the election of remedies doctrine as “ ‘a harsh, and now largely obsolete rule . . .

1979In Custom Leasing, Inc. v. Texas Bank & Trust Co., 491 S.W.2d 869, 871 (Tex.1973), the court stated that “the doctrine of election of remedies is not a favorite of equity and that its scope should not be extended.” The court has also referred to the election of remedies doctrine as “ ‘a harsh, and now largely obsolete rule . . .

2017See Medina , 927 S.W.2d at 602 (holding that when a person is intentionally injured by a co-employee for work-related reasons, the person is not barred by the election-of-remedies doctrine from recovering compensation benefits under the plan administered by his employer as well as common law damages arising from the intentional tort committed by the co-employee).

1997The Texas Supreme Court, in the case of Medina v. Herrera, 927 S.W.2d 597 (Tex. 1996), pointed out that the election of remedies doctrine combines elements of estoppel, ratification, and unjust enrichment.

1985The doctrine of election of remedies does not apply unless the party actually possesses “two valid and available remedies at the time he makes his election.” Poe v. Continental Oil & Cotton Co., 231 S.W. 717, 719 (Tex.Comm’n App.1921, holding approved).

1979It relies on Texas cases holding that the election of remedies doctrine “does not apply unless the claimant actually has two valid and available remedies at the time he makes his election.” Poe v. Continental Oil & Cotton Co., 231 S.W. 717, 719 (Tex.Comm’n.App. 1921, jdgmt. adopted).

2015The election of remedies doctrine is designed “to prevent a party who has obtained a specific form of remedy from obtaining a different and inconsistent remedy for the same wrong,” and “to prevent a double redress for a single wrong.” Whittington v. City of Austin, 456 S.W.3d 692, 710 (Tex. App.—Austin 2015, pet. denied) (citing Fina Supply, Inc. v. Abilene Nat’l Bank, 726 S.W.2d 537, 541 (Tex. 1987); Slay v. Burnett Trust, 187 S.W.2d 377, 393 (Tex. 1945)). 1.

1963Our Supreme Court has stated, in Slay v. Burnett Trust, 143 Tex. 621 , 187 S.W.2d 377 : “ * * * The doctrine of election of remedies is not a favorite of equity.

2022See Custom Leasing, Inc. v. Tex. Bank & Trust Co., 491 S.W.2d 869, 871 (Tex. 1973); Stephens –17– v. Dallas Area Rapid Transit, 50 S.W.3d 621, 628 (Tex. App.—Dallas 2001, pet. denied).

2004See Bocanegra, 605 S.W.2d at 851 ; Stephens v. Dallas Area Rapid Transit, 50 S.W.3d 621, 628 (TexApp.-Dallas 2001, pet. denied) (stating the doctrine combines elements of estoppel, ratification, and unjust enrichment).

2003See Green Oaks, Ltd. v. Cannan , 749 S.W.2d 128, 131 (Tex. App.-San Antonio 1987), writ denied , 758 S.W.2d 753 (Tex. 1988) (per curiam).

2001In support of this argument, Sheffield relies on various cases to suggest the election of remedies doctrine is extremely limited and should not apply in this case: Fina Supply, 726 S.W.2d at 541 (stating that the election doctrine is not favored, and its scope should not be extended); Bocanegra, 605 S.W.2d at 851 (stating that an election will bar recovery when the inconsistent right, remedy, or state of facts is so unconscionable, dishonest, contrary to fair dealing, or so stultifies the legal process or trifles with justice or the courts as to be manifestly unjust); B & L Cherry Hill Assocs.

2015In addition, the City insists that because the Whittingtons chose to challenge the right of the City to condemn the property instead of electing to exercise control over the deposited funds, the Whitting-tons “made an election of remedies,” which included an.election "to forego any right they might have otherwise had ... to interest on the deposited funds for the duration of the exercise of their election.” See Krobar Drilling, L.L.C. v. Ormiston, 426 S.W.3d 107, 113 (Tex.App.-Houston [1st Dist.] 2012, pet. denied) (discussing doctrine of election of remedies).

2015In addition, the City insists that because the Whittingtons chose to challenge the right of the City to condemn the property instead of electing to exercise control over the deposited funds, the Whittingtons “made an election of remedies,” which included an election “to forego any right they might have otherwise had . . . to interest on the deposited funds for the duration of the exercise of their election.” See Krobar Drilling, L.L.C. v. Ormiston, 426 S.W.3d 107, 113 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (discussing doctrine of election of remedies).

2015Sanderson v. Smith, No. 12-08-00442- CV, 2010 WL 2784302 , at *2 (Tex. App.—Tyler July 14, 2010, pet. denied) (mem. op.); McHaney v. Hackleman, 347 S.W.2d 822, 826 (Tex. Civ.

2015Sanderson v. Smith, No. 12-08-00442-CV, 2010 WL 2784302 , at *2 (Tex.App.-Tyler July 14, 2010, pet. denied) (mem.op.); McHaney v. Hackleman, 347 S.W.2d 822, 826 (Tex.Civ.App.-San Antonio 1961, writ ref'd n.r.e.); see also Tex. R.

2018In reaching that holding, the supreme court explained that the election of remedies doctrine applies where the party against whom it is being asserted “has obtained a specific form of remedy” and is now seeking to obtain a “different inconsistent remedy for the same wrong.” Id.

2015The election of remedies doctrine is designed “to prevent a party who has obtained a specific form of remedy from obtaining a different and inconsistent remedy for the same wrong,” and “to prevent a double redress for a single wrong.” Whittington v. City of Austin, 456 S.W.3d 692, 710 (Tex. App.—Austin 2015, pet. denied) (citing Fina Supply, Inc. v. Abilene Nat’l Bank, 726 S.W.2d 537, 541 (Tex. 1987); Slay v. Burnett Trust, 187 S.W.2d 377, 393 (Tex. 1945)). 1.

2012There is no election where the remedies are neither inconsistent nor repugnant.” Haskell v. Border City Bank, 649 S.W.2d 133, 135-36 (Tex.App.-El Paso 1983, no writ) (citing Lomas & Nettleton Co. v. Huckabee, 558 S.W.2d 863 (Tex.1977)).

2009See Huckabee , 558 S.W.2d at 864 ; Huckabee , 550 S.W.2d at 373 .

2009Though it expressed reservations about the election-of-remedies defense, the Metroflight court concluded that it was bound to follow the Supreme Court = s opinion in Huckabee . [4] See id. at 707 B 08.

2009Though *69 it expressed reservations about the election-of-remedies defense, the Metroflight court concluded that it was bound to follow the Supreme Court’s opinion in Huckabee, 4 See id. at 707-08 .

2003See Green Oaks, Ltd. v. Cannan , 749 S.W.2d 128, 131 (Tex. App.-San Antonio 1987), writ denied , 758 S.W.2d 753 (Tex. 1988) (per curiam).

2000See Green Oaks, Ltd. v. Cannan , 749 S.W.2d 128, 131 (Tex. App.--San Antonio 1987), writ denied per curiam , 758 S.W.2d 753 (Tex. 1988).

1979Slay v. Burnett Trust, 143 Tex. 621 , 187 S.W.2d 377, 393 (1945), quoting Friederichsen v. Renard, 247 U.S. 207, 312 , 38 S.Ct. 450, 452 , 62 L.Ed.2d 1075 , 1083 (1918). [Emphasis added].

1979Slay v. Burnett Trust, 143 Tex. 621 , 187 S.W.2d 377, 393 (1945), quoting Friederichsen v. Renard, 247 U.S. 207, 312 , 38 S.Ct. 450, 452 , 62 L.Ed.2d 1075 , 1083 (1918). [Emphasis added].

2016Whittington v. City of Austin, 456 S.W.3d 692, 710 (Tex. App.—Austin 2015, pet. denied).

2015The election of remedies doctrine is designed “to prevent a party who has obtained a specific form of remedy from obtaining a different and inconsistent remedy for the same wrong,” and “to prevent a double redress for a single wrong.” Whittington v. City of Austin, 456 S.W.3d 692, 710 (Tex. App.—Austin 2015, pet. denied) (citing Fina Supply, Inc. v. Abilene Nat’l Bank, 726 S.W.2d 537, 541 (Tex. 1987); Slay v. Burnett Trust, 187 S.W.2d 377, 393 (Tex. 1945)). 1.

2015Horizon Offshore Contractors, Inc. v. Aon Risk Servs. of Tex,, Inc., 283 S.W.3d 53, 60 (Tex. App.—Houston [14th Dist.] 2009, pet. denied).

2015Horizon Offshore Contractors, Inc. v. Aon Risk Servs. of Tex., Inc., 283 S.W.3d 53, 60 (Tex.App.-Houston [14th Dist.] 2009, pet. denied).

2009See Bocanegra , 605 S.W.2d at 854 B 55 (Campbell, J., concurring); see also Forest Oil Corp. v. McAllen , 268 S.W.3d 51 , 60 & n.3 (Tex. 2008) (stating that settlements are highly favored because they avoid the uncertainties regarding the outcome of litigation and the often exorbitant amounts of time and money to prosecute or defend claims at trial, citing Justice Campbell = s concurring opinion in Bocanegra for a similar proposition). [5] Counsel for Aon confirmed this fact at oral argument.

2009See Bocanegra, 605 S.W.2d at 854-55 (Campbell, J., concurring); see also Forest Oil Corp. v. McAllen, 268 S.W.3d 51 , 60 & n. 3 (Tex.2008) (stating that settlements are highly favored because they avoid the uncertainties regarding the outcome of litigation and the often exorbitant amounts of time and money to prosecute or defend claims at trial, citing Justice Campbell's concurring opinion in Bocanegra for a similar proposition). 5 .

2007See Chapa, 212 S.W.3d at 304 ; Casteel , 22 S.W.3d at 390 (Tex. 2000); Boyce Iron Works, Inc. , 747 S.W.2d at 787; Birchfield , 747 S.W.2d at 367 ; AMX Enters., Inc. , 196 S.W.3d at 206 .

2007See Chapa, 212 S.W.3d at 304 ; Casteel, 22 S.W.3d at 390 (Tex.2000); Boyce Iron Works, Inc., 747 S.W.2d at 787; Birchfield, 747 S.W.2d at 367 ; AMX Enters., Inc., 196 S.W.3d at 206 .

2007See Chapa, 212 S.W.3d at 304 ; Casteel , 22 S.W.3d at 390 (Tex. 2000); Boyce Iron Works, Inc. , 747 S.W.2d at 787; Birchfield , 747 S.W.2d at 367 ; AMX Enters., Inc. , 196 S.W.3d at 206 .

2007See Chapa, 212 S.W.3d at 304 ; Casteel, 22 S.W.3d at 390 (Tex.2000); Boyce Iron Works, Inc., 747 S.W.2d at 787; Birchfield, 747 S.W.2d at 367 ; AMX Enters., Inc., 196 S.W.3d at 206 .

2007See Chapa, 212 S.W.3d at 304 ; Casteel , 22 S.W.3d at 390 (Tex. 2000); Boyce Iron Works, Inc. , 747 S.W.2d at 787; Birchfield , 747 S.W.2d at 367 ; AMX Enters., Inc. , 196 S.W.3d at 206 .

2007See Chapa, 212 S.W.3d at 304 ; Casteel, 22 S.W.3d at 390 (Tex.2000); Boyce Iron Works, Inc., 747 S.W.2d at 787; Birchfield, 747 S.W.2d at 367 ; AMX Enters., Inc., 196 S.W.3d at 206 .

2005See Star Houston, Inc. v. Shevack, 886 S.W.2d 414, 422 (Tex.App.-Houston [1st Dist.] 1994), writ denied per curiam, 907 S.W.2d 452 (Tex.1995) ("A party who seeks redress under two or more theories of recovery for a single wrong must elect, before the judgment is ren dered, under which remedy he wishes the court to enter judgment.”). .

2005See Star Houston, Inc. v. Shevack, 886 S.W.2d 414, 422 (Tex.App.-Houston [1st Dist.] 1994), writ denied per curiam, 907 S.W.2d 452 (Tex.1995) ("A party who seeks redress under two or more theories of recovery for a single wrong must elect, before the judgment is rendered, under which remedy he wishes the court to enter judgment."). [27] RGM states in its brief that T & S's answer adding reformation was filed after RGM had filed its summary judgment motion.

2005See Star Houston, Inc. v. Shevack, 886 S.W.2d 414, 422 (Tex.App.-Houston [1st Dist.] 1994), writ denied per curiam, 907 S.W.2d 452 (Tex.1995) ("A party who seeks redress under two or more theories of recovery for a single wrong must elect, before the judgment is ren dered, under which remedy he wishes the court to enter judgment.”). .

2005See Star Houston, Inc. v. Shevack, 886 S.W.2d 414, 422 (Tex.App.-Houston [1st Dist.] 1994), writ denied per curiam, 907 S.W.2d 452 (Tex.1995) ("A party who seeks redress under two or more theories of recovery for a single wrong must elect, before the judgment is rendered, under which remedy he wishes the court to enter judgment."). [27] RGM states in its brief that T & S's answer adding reformation was filed after RGM had filed its summary judgment motion.

2003Reynolds argues from Grimes v. Andrews , 997 S.W.2d 877, 881 (Tex. App.-Waco 1999, no pet.).

2003Reynolds argues from Grimes v. Andrews, 997 S.W.2d 877, 881 (Tex.App.-Waeo 1999, no pet.).

1995See Seegers v. Spradley, 522 S.W.2d 951, 957 (Tex.Civ.App.—Beaumont 1975, writ ref'd n.r.e.) (holding that plaintiff cannot recover both actual damages and specific performance of contract); Redding v. Ferguson, 501 S.W.2d 717, 720 (Tex.Civ.App.—Fort Worth 1973, writ ref'd n.r.e.) (concluding that when party obtains final judgment for damages, party can no longer demand specific performance of contract).

1995See Seegers v. Spradley , 522 S.W.2d 951, 957 (Tex. Civ.

1979The Waco Court of Civil Appeals, Huckabee v. Lomas & Nettleton Co., 550 S.W.2d 371 *707 (Tex.Civ.App. — Waco 1977), reversed on the ground that the election of remedies doctrine did not apply because the causes of action asserted against Lomas & Nettleton and American States were distinct causes of action arising out of independent transactions with different entities. 550 S.W.2d at 373 .

1979The Waco Court of Civil Appeals, Huckabee v. Lomas & Nettleton Co., 550 S.W.2d 371 *707 (Tex.Civ.App. — Waco 1977), reversed on the ground that the election of remedies doctrine did not apply because the causes of action asserted against Lomas & Nettleton and American States were distinct causes of action arising out of independent transactions with different entities. 550 S.W.2d at 373 .

1979Thus it is said that the claimant’s “supposition that he had a particular remedy and his effort tó enforce it is immaterial, and does not constitute an election, unless the remedy in fact existed.” *708 Bandy v. Cates, 97 S.W. 710, 711 (Tex. Civ.App.1906, writ ref’d); see Schenck v. State Line Telephone Co., 238 N.Y. 308 , 144 N.E. 592, 593 (1924) (per Cardozo, J.).

1963Tex.Civ.App., 273 S.W.2d 950 , wr. ref., n. r.e.; Slay v. Burnett Trust Company, 143-Tex. 621, 187 S.W.2d 377 ; Bandy v. Cates,. 44 Tex.Civ.App. 38 , 97 S.W. 710 , er. ref.;.