The Doctrine of Election of Remedies in Missouri

Modern procedural rules have eased a litigant's task in many respects. The development of a unitary action and procedure for civil suits has eliminated many troublesome questions of the boundaries of law and equity. Liberal standards for pleadings and amendments have reduced the number of lawsuits lost because of technicalities. Yet, doctrines with their roots in earlier systems of procedure continue to provide malpractice traps for the unwary. One such doctrine is election of remedies. A variety of choices, often made very early in a dispute, may result in a party having elected to advance only one legal theory, develop one set of facts, or pursue one remedy, to the exclusion of all other theories, facts, or remedies. The basic concept of the doctrine of election is that a party shall not be permitted to insist at different times upon the truth of two inconsistent and repugnant positions, according to the promptings of his own interest. The doctrine of election of remedies is difficult to understand for two reasons. First, it is a stand-in for a number of other preclusionary rules, including estoppel, waiver and res judicata. Second, the doctrine has contradictory requirements depending on the preclusionary rule for which it is a substitute. For example, one common approach defines election of remedies as the selection of one of several inconsistent remedies or existing modes of procedure and relief allowed by law on the same state of facts. However, another approach to election of remedies shifts the focus from inconsistency in remedies to inconsistency in facts. Yet both these approaches have been advanced separately as the doctrine of election of remedies. The law would be much clearer if the doctrine were simply abolished. However, as the Missouri Court of Appeals for the Eastern District recently commented: The doctrine of election of remedies may well be an anachronism existing in the time when a party may plead inconsistent claims or facts. Absent further direction from our Supreme Court, however, we [must] apply that doctrine. This is not a new criticism; legal authors have advocated abolishment of the rules for years. Despite this criticism from both within and without, the Missouri courts do still apply the doctrine(s) of election of remedies. The Missouri Supreme Court has attempted in recent years to sort out the variants of the doctrine and clarify their content. However, as long as the cryptic term election of remedies remains in the lexicon, confusion is likely. Accordingly, this article is designed to sort out the varying principles and applications of the rule. The article begins with an examination of the varying meanings of inconsistency when applied to the requirement that a plaintiff elect between inconsistent claims upon submission to the jury. This area of election of remedies is perhaps the most confusing and one in which the courts are least apt to articulate the underlying justifications for the rule. The second aspect of election of remedies to be examined is the use of the doctrine as a substitute for estoppel or waiver. Finally, the article examines situations in which prior litigation will constitute an election of remedies.