Tomlinson v. Mixon

Citation626 S.E.2d 43
Decision Date09 January 2006
Docket NumberNo. 4070.,4070.
CourtCourt of Appeals of South Carolina
PartiesElwood Porter TOMLINSON and Frances Goins Tomlinson, Respondents, v. Kenneth B. MIXON, d/b/a Pavillion Custom Homes, and All American Homes of NC, LLC, Defendants, Of Whom All American Homes of NC, LLC is, Appellant.

Robert W. Buffington, of Columbia, for Appellant.

Eric S. Bland, of Columbia and Ronald L. Richter, Jr., of Charleston, for Respondent.


This case involves claims for negligent misrepresentation and breach of contract. The appellant, All American Homes of NC, LLC, a manufacturer of modular houses, contends the trial court erred in not requiring the respondents, Elwood and Frances Tomlinson, to elect their remedy after the jury returned a verdict in their favor on each claim. We reverse and remand.

The Tomlinsons decided to build a home on Lake Wateree and contacted defendant Kenneth B. Mixon, doing business as Pavillion Custom Homes. Mixon held himself out as an All American authorized dealer. An All American business card also identified him as such.

The Tomlinsons later visited the All American factory in North Carolina where they met with David Bridges, a regional sales manager and corporate representative of All American, and reviewed building plans. Before the Tomlinsons left, they asked Bridges whether Mixon was an authorized dealer. Bridges assured them he was. Bridges also told the Tomlinsons All American had checked Mixon out and All American would "stand behind him." The Tomlinsons then contracted to purchase the All American home through Mixon.

After Mixon started construction, All American terminated its relationship with Mixon and never delivered the home to the building site. Calls by the Tomlinsons to All American went unanswered. All the while, the Tomlinsons, in reliance upon the contract, incurred various costs and expenses. They were also threatened with liens against their property.

When the Tomlinsons finally reached Bridges, he told them All American had dismissed Mixon as a builder and it would not build the home that the Tomlinsons had contracted to purchase.

This suit followed with the Tomlinsons alleging, among other things, that they had entered into a contract with All American for the construction of the house in question.

The trial judge advised in her charge to the jury that it was "to consider each [cause of action] as if the others don't exist," that "there is only one recovery for the wrong," and that "at some particular point there will be a mechanism by which to make the appropriate award to the plaintiff[s]." She expressly instructed the jury that it was not to add any damages awarded on multiple claims "in order to provide recovery to the plaintiff[s]."

In a special interrogatory, the jury found Mixon to be All American's agent. The jury returned a verdict in the amount of $46,149.00 on the Tomlinsons' breach of contract claim and $73,416.67 on their negligent misrepresentation claim.1 The trial judge later denied a motion by All American to require the Tomlinsons to elect the remedy upon which they wanted to recover. She then entered judgment on both claims, allowing the Tomlinsons to recover total damages in the amount of $119,565.67.

We hold the trial judge erred in not requiring the election that All American sought.

In Save Charleston Foundation v. Murray,2 this court said the following about the doctrine of election of remedies:

The doctrine of election of remedies involves a choice between two or more different and coexisting modes of procedure and relief afforded by law for the same injury. Tzouvelekas v. Tzouvelekas, 206 S.C. 90, 33 S.E.2d 73 (1945); Walker v. McDonald, 136 S.C. 231, 134 S.E. 222 (1926); Boardman v. Lovett Enterprises, Inc., 283 S.C. 425, 323 S.E.2d 784 (Ct.App. 1984). Its purpose is to prevent double redress for a single wrong. 25 Am.Jur.2d Election of Remedies Section 1 at 646 (1966). Application of the doctrine should be confined to cases where double compensation of the plaintiff is threatened. Id. Section 3 at 650. When an identical set of facts entitle the plaintiff to alternative remedies, he may plead and prove his entitlement to either or both; however, the plaintiff may not recover both. Baeza v. Robert E. Lee Chrysler, Plymouth, Dodge, Inc., 279 S.C. 468, 309 S.E.2d 763 (Ct.App. 1983). "This rule rests on the principle that the plaintiff should have a full opportunity to prove his claim to some form of relief, but he should not receive a double recovery. Id. at 473, 309 S.E.2d at 766.3

For the doctrine of election of remedies to apply, therefore, two or more remedies must be available to the complaining party at the time of the election and these remedies must be inconsistent.4 An inconsistency exists where, if an election is not made, a party will receive a double recovery.5

Here, the Tomlinsons recovered damages on claims of breach of contract and negligent misrepresentation. These recoveries rest on the same set of facts, viz., that All American represented its dealer Mixon to be its agent;6 that the Tomlinsons contracted with All American through its dealer and agent Mixon to manufacture a modular house and have it delivered to and constructed upon the Tomlinsons' property on Lake Wateree; that All American failed to perform when it refused to deliver the house to the building site and complete the construction started by its agent, notwithstanding All American represented it would stand behind him; and that the Tomlinsons suffered damages as a consequence.

To avoid a double recovery, the Tomlinsons, therefore, should elect on remand which one of the two claims they wish to recover their damages upon.7


SHORT, J., concurs.

ANDERSON, J., dissents in a separate opinion.

1. Although the jury's verdict for the breach of contract claim is $46,149.00 on the verdict form, slightly different amounts are contained in the record and in one of the briefs, but these discrepancies appear to be mere scrivener's errors.

6. During argument on the motion for a directed verdict, counsel for the Tomlinsons appeared to recognize that the question of whether Mixon was All American's agent served as the underpinning of its causes of action for breach of contract and negligent misrepresentation. After counsel pointed to Bridges's statement that All American would "stand behind Mixon and his work," counsel said in reference to that statement: "That's the basis of [the] negligent misrepresentation claim. It's also the basis of the contract claim, because they say we will stand behind his work. We make a promise."

7. See Brown v. Felkel, 320 S.C. 292, 465 S.E.2d 93 (Ct.App.1995) (holding the doctrine of election of remedies barred a plaintiff's claim against his accountant for the negligent promotion of his investments in, and loans to, another where the plaintiff earlier recovered from the accountant actual damages sustained as a result of the accountant making these investments and loans in an action premised on breach of contract).

ANDERSON, J. (dissenting):

I respectfully dissent. I disagree with the reasoning and analysis of the majority. The holding of the majority misconstrues and misapplies the law extant in regard to the doctrine of election of remedies. I VOTE to AFFIRM the jury verdicts.

The jury rendered verdicts for Elwood Porter Tomlinson and Frances Goins Tomlinson (the Tomlinsons) against All American Homes of NC, LLC (All American) on a breach of contract claim in the amount of $46,146.00 and a negligent misrepresentation claim in the amount of $73,416.67. All American contends the trial court erred as a matter of law in failing to require an election of remedies. I disagree.


The Tomlinsons, who reside in Charlotte, North Carolina, planned to build their retirement home on a lot near Lake Wateree, South Carolina. In early 2001, the Tomlinsons contacted Kenneth Mixon, who worked as a manufactured home dealer, about a Cape Cod style home. Mixon told the Tomlinsons about All American Homes, a manufacturer of pre-built, modular homes which are sold to authorized builders/dealers, who in turn sell them to the end customer. The houses are made of wood, in sections, delivered to the sites and placed on foundations. The customer must purchase a home through a dealer.

Mixon suggested the Tomlinsons go to the company's factory. A meeting was scheduled. The Tomlinsons met with David Bridges, the regional sales manager for All American. Mixon promised to meet them there, but he did not attend due to car trouble. At the meeting, All American approved proposed changes for the home and gave the Tomlinsons assurances concerning Mixon. All American assured the Tomlinsons that Mixon had been checked out, he was an All American dealer in good standing, and Bridges would "stand behind him." Bridges does not recall any discussions regarding Mixon. However, the Tomlinsons declared that Bridges' assurances concerning Mixon affected their decision to proceed with the transaction.

The Tomlinsons appeared to have entered into a contract with Mixon on or about March 9, 2001, even though the meeting did not occur until later and Mixon had not yet been approved as a dealer for All American. The Tomlinsons issued a check made payable to Pavillion Homes in the amount of $10,000 dated March 9, 2001. The Authorized Builder Application of Mixon is dated April 23, 2001. Bridges believed the meeting occurred after May 18, 2001.

The assurances the Tomlinsons received at the meeting with All American only affected their going forward with building and not the entering into the contract itself. Although unsigned by Mixon, the written agreement lists a pre-tax...

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