The election of remedies doctrine clashes with Illinois alternative pleading rules in Evashank v. Miller Brewing Company, 2013 IL App (1st) 112987-U, a case involving a dispute over a misread beer promotional ticket.
The plaintiff was given a promotional sticker at the Coach’s Corner bar that plaintiff thought read “win a million dollars”. It actually said “this summer I want to win a million dollars.” When the plaintiff tried to claim his big bucks prize, the bar and promotional staff said no and plaintiff sued the beer company and promotional group for fraud and breach of contract.
Before trial, the court made the plaintiff to choose whether he was going to pursue his fraud or breach of contract claims against the bar. Plaintiff chose the latter. The court found for the tavern and plaintiff appealed.
Result: Reversed in part.
Election of Remedies
The election of remedies doctrine applies where a plaintiff elects inconsistent remedies for the same injury. The rule provides that the prosecution of one remedy to judgment bars a second action stemming from the same transaction based on an inconsistent theory. The prototypical example: a plaintiff can’t seek to recover breach of contract damages while at the same time (or later) try to rescind that same contract. The remedies are inconsistent.
Illinois courts confine the election of remedies rule to situations where (1) double compensation for the plaintiff is threatened, (2) defendant has been misled by the plaintiff’s conduct in choosing one remedy over another, or (3) where res judicata applies (final judgment on the merits, same parties, same cause of action).
The election of remedies rule bars a plaintiff from recovering on one theory in a case and then later seeking a different remedy in a second case based on the same facts (as the first case). ¶¶ 50-51
But Illinois law does permit alternative pleading. Code Sections 2-604 and 2-613 allow a plaintiff to plead inconsistent theories of recovery and allege contradictory facts at the pleading stage. A plaintiff can also go to trial on inconsistent claims (e.g. fraud and breach of contract). The proofs at that trial will determine which theory, if any, the plaintiff can recover on. ¶¶47-49.
Here, there was only one case. Plaintiff didn’t try to first recover on fraud and then, in a second action, try to recover for breach of contract. While fraud and breach of contract have different pleading and proof elements and proving one (breach of contract) normally prevents proof of the other (fraud), a plaintiff can still proceed to trial on both legal theories; he just can’t recover damages on both.
Since plaintiff should have been allowed to take both his breach of contract and fraud counts to trial, the trial court mistakenly made plaintiff choose his remedy at the pre-trial stage. And while the First District viewed the plaintiff’s fraud claim as weak, it still reversed the dismissal of that count because the trial court misapplied the election of remedies rule.
The Breach of Contract Claim
The trial court properly directed verdict against plaintiff on the breach of contract count. There was no meeting of the minds or consideration. The plaintiff admitted he paid nothing for the “million dollar sticker” and had no expectation of winning a million dollars when he visited the bar. This precluded a finding that there was an enforceable agreement. The sticker was misread; plain and simple. There was no enforceable contract. ¶¶ 49-52.
A case that features a deep analysis of some finer procedural points in a “fun” fact pattern. Some key take-aways include:
1/ An absence of a meeting of minds will prevent enforcement of a contract; especially in the promotional setting;
2/ An advertisement or promotional “offer” is generally construed as an invitation to make an offer – not an offer that invites acceptance.
3/ While Illinois permits alternative pleading, it doesn’t allow recovery on inconsistent remedies (e.g. a plaintiff can’t recover for breach of contract while at same time seek rescission of the contract.);
4/ A plaintiff can’t recover for both fraud and breach of contract (he must choose one or the other), but he doesn’t have to make this choice until after trial.