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Election of Remedies, Inconsistent Theories of Recovery

Some matters in the law only really lawyers care to think about. Examples of this are the rules of (1) election of remedies and (2) election of inconsistent theories of recovery. 

The election of remedies doctrine is where a party has the right to pursue one of two inconsistent remedies and makes an election, institutes suit, and prosecutes it to the final judgment, that party cannot thereafter pursue another and inconsistent remedy. Trimble v. Pranca, 167 S.W.3d 706, 711 (Mo. 2005). An example of this would be converstion versus replevin. With a conversion claim, a party is generally suing for the monetary value of personal property that has been wrongfully taken/converted. With replevin, the party is instead suing for the return of the property as opposed to its monetary value. These remedies are inconsistent in that they are duplicative. One must either choose to sue for one or the other. If they were permitted to sue for both, they would “gain” because they would recoup more than their loss. 

Under the election of inconsistent theories of recovery doctrine, a party must election between theories of recovery that are inconsistent, before submitting the case to the trier of fact. Id. If two counts are so inconsistent that proof of one necessarily negates, repudiates, and disproves the other, it is error to submit them together. Id. The determination of when two theories are inconsistent is heavily dependent upon the facts of the case. Id. A common example of when this comes into play is when someone is invokving both legal (i.e., money damages) and equitable relief (e.g., estoppel, injunctions, etc.). Equity may usually only be invokved if money damages would be insufficient to provide redress for the wrong. Accordingly, certain equitable claims may negate or repudiate any legal claims.