law-election of remedies | dual, double, multiple recovery for same injury | unjust enrichment |
“An election of remedies does not occur unless a party having two or more inconsistent remedies pursues one
of them to the exclusion of the others.” Fina Supply, Inc. v. Abilene Nat’l Bank, 726 S.W.2d 537, 541 (Tex.
ELECTION OF LEGAL THEORIES AND REMEDIES
TWO DIFFERENT CAUSES OF ACTION: ONE ALLOWING RECOVERY OF ATTORNEY'S FEES, THE OTHER
EXEMPLARY DAMAGES, BUT NO ATTORNEY'S FEES
Shipley Brothers, Ltd v. Republic National Bank (Tex.App.- Houston [1st Dist.] Jun. 11, 2009)(Jennings)
(conversion, theft, and fraud, Texas Theft Liability Act, election of remedies doctrine, remittitur of the
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Before Judge Wilson, Justices Jennings and Bland. Opinion by Justice Terry Jennings
01-07-00911-CV Shipley Brothers, Ltd., Shipley Brothers, Inc., Lone Star Investments, Kenneth Shipley and
Calvin Junek, Jr. v. Republic National Bank and Robert F. Larson
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Hon. Roberta A. Lloyd
Concurring and Dissenting Opinion by Justice Bland (subrogation, double recovery, election of remedies)
ELECTION OF THEORIES AND REMEDIES IN CONTRACT DISPUTE: REPUDIATION, DAMAGES
We address appellant’s issues on the enforceability of the Settlement Agreement first because appellant, when
faced with appellees’ refusal to pay appellant the required $100,000.00, filed a motion seeking to enforce the
Settlement Agreement rather than rescinding it and seeking a judgment based on the jury’s verdict. Having
made that election, appellant cannot now, on appeal, ignore that election and attempt to pursue his underlying
breach of fiduciary duty cause of action. See Hanks v. GAB Bus. Servs., Inc., 644 S.W.2d 707, 708 (Tex.
1980) (holding that a non-breaching party must decide whether to rescind the contract or seek to enforce it
when the material breach occurred rather than waiting until after trial to decide, and stating that a non-
breaching party waives its right to rescind a contract based on the other party’s material breach by (1) treating
the contract as still in effect following the material breach, and (2) filing suit to enforce the contract); Bumb v.
InterComp Technologies, L.L.C., 64 S.W.3d 123, 125 (Tex. App.—Houston [14th Dist.] 2001, pet. denied)
(holding that a nonrepudiating party must either treat a repudiation of a contract as a breach or ignore it and
wait for the time of performance, it cannot do both).
Hernandez v. Labella (Tex.App.- Houston [14th Dist.] Feb. 9, 2010)(Anderson)
(breach of settlement agreement in attorney malpractice case, settlement agreement enforced)(fee forfeiture
for breach of fiduciary duty by lawyer to client, election of remedies in breach of contract case, repudiation of
settlement agreement, anticipatory repudiation, rescission of contract)
REVERSED AND RENDERED IN PART AND REMANDED IN PART: Opinion by Justice Anderson
Before Chief Justice Hedges, Justices Anderson and Boyce
14-08-00327-CV Salomon Juan Hernandez v. Joseph J. Labella and LaBella Dennis & Associates, P.L.L.C.
Appeal from 284th District Court of Montgomery County (name of trial court judge not shown on docket)
Lundy v. Masson, MD (Tex.App.- Houston [14th Dist.] Apr. 29, 2008)(Yates)(fraud, BoFD, election of remedies)
AFFIRMED IN PART/REVERSED AND RENDERED: Opinion by Justice Brock Yates
Before Justices Brock Yates, Fowler and Guzman
14-06-00581-CV Sean Lundy v. Marcos V. Masson, M.D. and Global Orthopaedics, Inc.
Appeal from 269th District Court of Harris County
Trial Court Judge: John Thomas Wooldridge
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