5-M Ltd. v. Dede, s. 77-396
| Decision Date | 27 October 1978 |
| Docket Number | Nos. 77-396,77-397,s. 77-396 |
| Citation | 86 Wis.2d 287,272 N.W.2d 110 |
| Parties | 5-M LTD., Plaintiff-Respondent, v. Eldred DEDE, Defendant-Appellant and Third Party Plaintiff, E. R. Steinman, Sidney Perssion, and Morris Katz, Third Party Defendants Respondents. 5-M LTD., a Wisconsin Corporation, Plaintiff-Respondent, v. Eldred DEDE, Defendant-Appellant and Third Party Plaintiff, E. R. Steinman, Defendant-Respondent and Third Party Plaintiff, Sidney Perssion and Morris Katz, Third Party Defendants Respondents. |
| Court | Wisconsin Court of Appeals |
Lichtsinn, Dede & Haensel, S. C., Milwaukee, with Eldred Dede, Milwaukee, of counsel, for defendant-appellant.
Fiorenza, Weiss, Amato & Persa, S. C., Milwaukee, by John A. Fiorenza, Dominic S. Amato and Paul M. Lohmann, Milwaukee, of counsel, for plaintiff-respondent.
Before DECKER, C. J., CANNON, J., and R. W. HANSEN, Reserve Judge.
The facts in this case are not complex. 5-M, Ltd. entered into an offer to purchase agreement with Concordia Fund, Inc. for the purchase of a certain hotel in Milwaukee. 5-M made a $10,000 downpayment to be held in trust by Dede. Prior to the original closing date Dede delivered the $10,000 downpayment to Concordia Fund as requested by Steinman, Concordia's president. This transfer was made without the knowledge or approval of 5-M and was used to pay Concordia's employees' wages due that day. The offer to purchase transaction was never consummated. 5-M commenced an action against Concordia and Schroeder, Concordia's assignee of property and assets for the benefit of creditors. In this action 5-M sought return of the $10,000 downpayment because of Concordia's breach of the offer to purchase agreement. Judgment was entered against Concordia and Schroeder for $10,000 with costs. That judgment has to date been uncollectible.
5-M had also commenced an action against Dede for breach of fiduciary duty and an action against Dede and Steinman based on civil conspiracy which caused injury to 5-M. These suits were consolidated for trial. Dede's motions to dismiss the complaints were denied and it is from that order that Dede appeals.
Simply stated, the issue presented is whether the doctrine of election of remedies is applicable. This equitable doctrine embodies the principle that a plaintiff may not pursue one remedy on the basis of one legal theory and subsequently pursue a different remedy for the same wrong on the basis of an inconsistent legal theory. The issue becomes whether the legal theory relied upon by the plaintiff is inconsistent with the legal theory presented by the same plaintiff in a prior action arising from the same facts.
The Wisconsin Supreme Court has indicated that it does not favor a broad application or applicability of the doctrine of election of remedies. Bank of Commerce v. Paine, Webber, Jackson and Curtis, 39 Wis.2d 30, 40, 158 N.W.2d 350, 353 (1968). In that case the court explained the concept of inconsistency required before the doctrine of election of remedies becomes applicable.
For one proceeding to be a bar to another for inconsistency, the remedies must proceed from opposite and irreconcilable claims of right and must be so inconsistent that a party could not logically assume to follow one without renouncing the other. Two modes of redress are inconsistent if the assertion of one involves the negation or repudiation of the other. In this sense, inconsistency may arise either because one remedy must allege as fact what the other denies, or because the theory of one must necessarily be repugnant to the other. (Emphasis supplied.)
The next step then is to determine whether there exists a true inconsistency, for without such inconsistency the doctrine is completely inapplicable.
What remedies are available to a beneficiary when a trustee in breach of trust transfers the trust corpus to someone other than a bona fide purchaser? This question has been dealt with in detail in 4 Scott on Trusts §§ 295 and 295.1 (3d ed. 1967). We quote at length and with approval from that discussion.
If a trustee in breach of trust transfers trust property to a person who is not a bona fide purchaser, the beneficiaries can maintain a suit against the trustee and transferee jointly. . . . The...
To continue reading
Request your trial
-
Head & Seemann, Inc. v. Gregg, 80-1572
...effects. Bank of Commerce v. Paine, Webber, Jackson & Curtis, 39 Wis.2d at 40-42, 158 N.W.2d at 354-55; 5-M Ltd. v. Dede, 86 Wis.2d 287, 289, 272 N.W.2d 110, 111 (Ct.App.1978). The classic application of the election of remedies doctrine is that a defrauded party has the election of either ......
-
Lakefield Telephone Co. v. Northern Telecom Inc.
...two theories of relief are premised on the same identical acts of a defendant. The Court also would apply 5-M Ltd. v. Dede, 86 Wis.2d 287, 289, 272 N.W.2d 110 (1978), which holds that the election of remedies doctrine arises when remedies proceed from opposite and irreconcilable claims of I......
-
Hildebrand v. Krizenesky
...aff'd, 107 Wis.2d 126, 318 N.W.2d 381 (1982). While the doctrine has been criticized at times, see, e.g., 5-M Ltd. v. Dede, 86 Wis.2d 287, 289, 272 N.W.2d 110, 111 (Ct. App. 1978), it has not been renounced by courts of this state. Head & Seemann, 104 Wis.2d at 165, 311 N.W.2d at 671-72. Th......