Feinberg v. Naile, 89-2281
| Decision Date | 29 May 1990 |
| Docket Number | No. 89-2281,89-2281 |
| Citation | 561 So.2d 1307 |
| Parties | 15 Fla. L. Weekly D1467 Mark FEINBERG and Rita M. Blanco, Appellants, v. Jean H. NAILE, Appellee. |
| Court | Florida District Court of Appeals |
Mallory H. Horton, for appellants.
No appearance for appellee.
Before BARKDULL, NESBITT and BASKIN, JJ.
Plaintiffs, Mark Feinberg and Rita M. Blanco, appeal the denial of their motion to elect to proceed in equity, seeking the remedy of recision.
Plaintiffs brought suit against Heftler Realty Co., the original builder of a home, and Jean H. Naile, the subsequent purchaser/seller of the property. Appellants alleged that implied warranties of habitability had been breached rendering the house unfit for its intended purpose as a residence. Appellants also sought damages. The case was later noticed for trial by Heftler. When the case was called to trial before a jury, counsel for the plaintiffs requested the jury portion of the case to be stayed against Heftler Realty Co. and asked to go to trial on the question of recision of the transaction against the appellee, Naile. Plaintiffs sought to stay the jury trial against Heftler for the purpose of election of remedies. Specifically plaintiffs argued that they had a legal right to make the election since it appeared on the face of the pleadings that the action against Heftler (damages) and against Naile (recision), called for inconsistent remedies. The court denied plaintiffs' request to elect their remedy and denied a request to voluntarily dismiss Heftler. The cause went to trial before a jury. The jury subsequently returned a verdict against the plaintiffs on their claim against Naile and a verdict for $7,000.00 against Heftler. This appeal follows.
Appellants contend they had a right to seek only the remedy of recision. In an attempt to achieve this end, appellants ultimately sought to voluntarily dismiss Heftler, however, this was denied.
At the start of the trial, the trial court declined to permit the election of remedies to be exercised because of a failure of the plaintiff to join an indispensable innocent third party to the proceedings, an intervening mortgagee. After the court made this announcement the plaintiffs proceeded with the jury trial on the damage issue, preserving the ruling on the election for appeal.
The plaintiffs ultimately made the election to proceed in equity before the commencement of the trial. The fact that they might not prevail in the final result...
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...the equitable relief of rescission. On September 13, 1990, the buyers moved to elect the remedy of rescission. See Feinberg v. Naile, 561 So.2d 1307 (Fla. 3d DCA 1990). The trial court dismissed both the attorney who had represented the buyers in the transaction and the Association based on......
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...of those contracts. To rule otherwise would undermine Portfolio's ability to choose its cause of action. See Feinberg v. Naile , 561 So.2d 1307, 1308 (Fla. 3d DCA 1990) ("A plaintiff is not guaranteed success in the choice of remedies, only an opportunity to proceed under a theory which has......