Singer v. Scholz Homes, Inc.

• Decision Date: 15 February 1973
• Citation: 303 N.E.2d 86,36 Ohio App.2d 125
• Parties: , 65 O.O.2d 141 SINGER et al., Appellants, v. SCHOLZ HOMES, INC., Appellee.
• Court: Ohio Court of Appeals

Page 125

36 Ohio App.2d 125

303 N.E.2d 86, 65 O.O.2d 141

SINGER et al., Appellants, v. SCHOLZ HOMES, INC., Appellee.

Court of Appeals of Ohio, Second District, Montgomery County.

Feb. 15, 1973.

Syllabus by the Court

1. The doctrine of election of remedies is not favored in Ohio. Accordingly, and in harmony with that long-established policy, the rules of civil procedure freely permit amendments.

2. After a lessor's judgment for damages for a lessee's anticipatory breach of a 60-year lease is reversed on appeal because of errors in the court's charge, and the premises are sold while the appeal is pending, the lessor may file an amended complaint for unpaid rent to the time of the sale.

Coolidge, Wall, Matusoff, Womsley & Lombard, Dayton, for appellants; Peirce Wood, Dayton, of counsel.

Lucas, Prendergast, Albright, Gibson, Brown & Newman, Columbus, for appellee; H. Callard, Columbus, of counsel.

CRAWFORD, Presiding Judge.

This case is a sequel to a previous case before this court. In the former case plaintiffs claimed damages for defendant's anticipatory breach of a sixty-year lease, and recovered a verdict for damages of $43,733.

We reversed that judgment on appeal, finding that the court erred in its instruction upon the measure of damages, as well as in other respects. We remanded the case to the court of common pleas for a new trial in accordance with our opinion.

Plaintiffs thereupon moved for leave of the court of common pleas to file an amended complaint for unpaid rent in the sum of $41,788.75. While not alleged in the proffered amended complaint, both parties recognized in their briefs that plaintiffs had sold the leased premises, and the unpaid rent asked for in the amended complaint was the amount accumulated up to the time of sale.

The court of common pleas overruled plaintiffs' motion to amend and, plaintiffs not desiring to plead further, dismissed the case. Plaintiffs now appeal that ruling and judgment.

Defendant argues that the trial judge was bound to make such a ruling because of the 'law of the case' which, it is claimed, we established by our prior judgment. Apparently, the trial court agreed. 14 Ohio Jurisprudence 2d 648, Courts, Section 219; 32 Ohio Jurisprudence 2d 32, Judgments, Section 280. We must respectfully reject the validity of this contention.

In the other appeal, we were dealing with the argument of plaintiffs that they should recover the full rent specified in the lease up until the time of trial instead of accumulating the damages for the entire term. In this connection, we said:

'Appellees (plaintiffs) could not go in both directions. Having elected to sue for damages, they are precluded from claiming the stipulated rent for the short period in question.'

Defendant has seized upon the words 'Appellees could not go in both directions' as signifying that they could not in a later trial seek a different remedy. We believe it is obvious that what we were saying was that they could not go in both directions at the same time. It certainly had no reference to an election of remedies. Counsel for defendant advanced the argument that if plaintiffs had wanted to amend to seek a different remedy, they should have sought permission from this court, and that, not having doen so, they had waived any such right, if it existed. We fail to see what authority we would have had to grant any such request. Upon being pressed, counsel apparently agreed that it would have been improper for us to do so.

The question of an election of remedies was not presented to us in the other case. Defendant's counsel implies as much by arguing that the request should have been presented to us by plaintiffs. Hence, we could not have established any 'law of the case' on that point.

The question in issue, then, is whether plaintiffs were foreclosed by the doctrine of election of remedies from making the desired amendment. In Frederickson v. Nye (1924), 110 Ohio St. 459, 144 N.E. 299, the Supreme Court held in paragraph two of the syllabus:

'In order that an election of one remedial right shall be a bar to the pursuit of another, the same must be inconsistent and the election made with knowledge and intention and purpose to elect. The mere bringing of a suit is not determinative of the right, but the party making the election must have received some benefit under the same, or have caused detriment to the other party, or pursued his remedy to final judgment.'

Somewhat later the court held in Norwood v. McDonald (1943), 142 Ohio St. 299, 52 N.E.2d 67, in paragraphs ten and eleven of the syllabus:

'10. Where a plaintiff obtains a judgment granting him one of two alternative or mutually exclusive remedies for the assertion of the same right or the same relief, he is precluded from thereafter maintaining an action based on the other remedy; but where a judgment is for the defendant in a suit based upon one of two mutually exclusive remedies, the plaintiff is not precluded from thereafter maintaining an action based on the other remedy.

'11. A plaintiff's choice of a fancied remedy which never existed and the futile pursuit of it because of a mistaken as to the facts or the law, though the first action proceeds to judgment, does not preclude such plaintiff from thereafter invoking a proper remedy, in the absence of facts which create an estoppel.'

An excellent recent discussion of the 'harsh' and 'technical' doctrine of election of remedies and the liberalizing flexibility effected by the rules of civil procedure, appears in 18A Ohio Jurisprudence 2d 637, Election of Remedies, Section 7.

In our present case, the trial court noted that the Ohio Rules of Civil Procedure were, to quite an extent, adopted from the federal rules, and made reference to the case of United States v. Bernstein (C.C.A.10, 1958), 256 F.2d 697. The court held, at page 705 of that case, the following:

'The doctrine of election of remedies is not a rule of substantive law. It is a rule of procedure or judicial administration. It is technical * * *.'

'It has been consistently criticized as harsh and not a favorite of equity. * * *' 'It has been applied to suits by the government with caution.'

Headnote eleven of the Bernstein case states:

'There is no room for application of doctrine of election of remedies under Federal Rules of...