Encore, Inc. v. Olivetti Corp. of America

• Citation: 326 So.2d 161
• Decision Date: 07 January 1976
• Docket Number: No. 45338,45338
• Parties: 18 UCC Rep.Serv. 816 ENCORE, INC., a Florida Corporation, et al., Petitioners, v. OLIVETTI CORPORATION OF AMERICA, a Delaware Corporation, Respondent.
• Court: Florida Supreme Court

Page 161

326 So.2d 161

18 UCC Rep.Serv. 816

ENCORE, INC., a Florida Corporation, et al., Petitioners, v. OLIVETTI CORPORATION OF AMERICA, a Delaware Corporation, Respondent.

No. 45338.

Supreme Court of Florida.

Jan. 7, 1976.

Rehearing Denied Feb. 23, 1976.

Henry W. Clar, Miami, for petitioners.

Joe N. Unger, of Smith, Mandler, Smith, Parker & Werner, Miami Beach, for respondent.

FERRIS, Circuit Judge:

Petitioners challenge a decision of the Third District Court of Appeal which affirmed two challenged summary judgments and three post-judgment orders in aid of execution, reported at 291 So.2d 27 (Fla.App.). The reversal of the post-judgment contempt order, which was entered when the proceedings were automatically stayed by virtue of Florida Appellate Rule 4.5(c)(6), is not contested. Several issues are raised, the most fundamental of which relates to the election of remedies doctrine. On that point, the District Court's decision allegedly conflicts with Coronet Kitchens, Inc. v. Mortgage Mart, Inc., 146 So.2d 768 (Fla.App.2d 1962); Rood v. Miami Air Conditioning Co., 193 So.2d 216 (Fla.App.3d 1966); and American Employers' Ins. Co. v. Piedmont Sewing Supply, Inc., 287 So.2d 111 (Fla.App.3d 1973).

The salient facts are that in November, 1969, respondent, as the conditional seller, and the two corporate petitioners, as conditional purchasers, entered into a series of conditional sales contracts which provided in the aggregate for the conditional sale and purchase of 214 coin-operated copying machines of Olivetti manufacture. Each contract provided for the payment of the purchase price in twenty-four monthly installments with interest, with attorneys' fees to be awarded to the respondent in the event of the purchaser's default. Alleging arrearages in monthly contract installments on the purchase price under the several contracts, respondent in July, 1971, brought suit against the four petitioners herein in a two-count complaint. Count One sought money judgment and attorneys' fees for claimed past due monthly contract installments. Count Two, sounding in replevin, sought repossession of the machines remaining in the possession of the petitioner, plus costs and reasonable attorneys' fees.

The initial summary judgment awarded respondent the sum of $114,027.04 for past due contract installments on the purchase price of the 214 copying machines. It is alleged that the total purchase price of the copying machines purchased was $225,267.10 and that there existed a total outstanding balance of $169,196.12 at the time judgment was entered.

The trial judge then held hearings on respondent's motion for reconsideration of the judge's previous ruling requiring respondent to elect to pursue either the delinquent installment payments or repossession of the property, but not both. The motion for reconsideration was granted and the previous order was vacated and set aside. At the same hearing and as part of the same order vacating the order requiring the election of remedies, the trial judge determined that no material issue of fact existed as to Count Two of respondent's complaint, therefore summary judgment was granted respondent for immediate possession of the copying machines.

Writs of execution were issued upon these judgments, judgment levies were made and numerous proceedings in aid of execution were pursued by respondent. ¹ All of the various summary judgments and post-judgment orders in aid of execution were affirmed by the District Court with the exception of the contempt order mentioned above.

Petitioners' primary legal contention is that the respondent's action in this case in seeking, and then obtaining judgment for the total of the purchase price installments then declared and claimed to be due occasioned an election of its remedies and a waiver of its rights to possession of the 214 machines, and affirmed title in the petitioners. Our attention is directed to Coronet Kitchens, supra, where the Second District Court of Appeal held that, 'Any proceeding which treats the relationship of the parties as debtor and creditor necessarily presumes that the title to the property has passed.' 146 So.2d at 770. Petitioners contend that respondent's election to enforce payment of the past due purchase price installments, even if not for the full purchase price, constitutes 'any proceeding' and is just as fatal to petitioners' later action for repossession as the filing of a mechanic's lien proved to be in Coronet Kitchens, if indeed not more fatal.

Respondent first questions the jurisdictional basis of this proceeding, contending that there is no real conflict because of the factual distinction produced by the order in this case awarding only past due installments of the purchase price, and not the full purchase price as was the case in the decisions presented for conflict. Alternatively, respondent submits that the Florida Uniform Commercial Code (Code), adopted by the Florida Legislature in 1967, which purportedly abrogates the election of remedies doctrine, is applicable here and supports the decision below.

After oral argument and upon careful consideration of the briefs and the law, it is apparent that there is no direct conflict, hence no basis for our jurisdiction. The cases cited by petitioner all deal with actions for the total compensation owed the party seeking relief, as opposed to a portion of the total as is the situation Sub judice. There is a difference. The election doctrine is founded on the premise that a party should not in the course of litigation be permitted to occupy inconsistent positions. Campbell v. Kauffman Milling Co., 42 Fla. 328, 29 So. 435 (1900); American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116, 47 So. 942 (1908). Thus, where several inconsistent remedies are available the choice of one necessarily infers an election not to pursue the others State ex rel. Van Ingen v. Panama City, 126 Fla. 776, 171 So. 760 (1937). However, the doctrine of election of remedies applies only where the alternative remedies are repugnant and inconsistent. American Process, supra. It does not preclude the use or pursuit of consistent remedies in proper circumstances. McKinnon v. Johnson, 59 Fla. 332, 52 So. 288 (1910). (Restitution proceedings and ejectment are not inconsistent or co-extensive proceedings, but are consistent in cumulative remedies.)

Disputes involving conditional sales contracts have been the source of numerous decisions addressing the election of remedies doctrine. One of the standards is Voges v. Ward, 98 Fla. 304, 123 So. 785 (1929), which held that upon default a conditional sales vendor may elect to sue on the debt or to maintain an action in replevin for the property. Once having sought recovery of the sales price, however, the vendor could not thereafter retake possession in replevin. The basis of the election doctrine in this instance is discussed in American Process:

'Where an action is brought for the price of all the goods sold, it is a concession that title has passed, and the vendor may not in general also prosecute an action for the recovery of all the same property upon the theory that the title thereto has not passed from him.' 47 So. at 943--44.

The connecting thread of the law weaving these decisions together is clearly that an action for the entire purchase price of property sold under a conditional sale contract is an irrevocable election to treat the transaction as a sale which passes title to and vests it in the buyer. This vesting of absolute title is therefore inconsistent with a subsequent action for repossession, which is considered a recission of the contract. The key word is that the action for the entire price treats the sale as Absolute. A sale is not absolute unless the action is for the entire purchase price. In Commercial Credit Co. v. Miller, 111 Fla. 554, 149 So. 482 (1933), we held that the assignee of a retain title contract who took...