Pled in the Alternative Legal Strategy Information
How pleading in the alternative works: the party includes multiple claims in the same complaint (the claims may be inconsistent with each other), the court does not require the party to choose a single theory at the pleading stage (the party may pursue all alternative theories through discovery), the trier of fact determines which theory prevails (the jury or judge may award relief on one theory while rejecting the others), and the party may recover on only one theory (double recovery is not permitted). Common alternative pleadings: breach of contract + unjust enrichment (if the contract is unenforceable, the plaintiff seeks unjust enrichment as an alternative), fraud + negligent misrepresentation (the plaintiff pleads both knowing and negligent false statements), and breach of fiduciary duty + breach of contract (the plaintiff alleges both duties were violated).
Florida Legal Definition
Pleading in the alternative in Florida is governed by Florida Rule of Civil Procedure 1.110(g) (Claims for Relief). Under Rule 1.110(g): a party may set forth two or more statements of a claim alternately or hypothetically. Under Florida case law: alternative pleading is liberally allowed (the party is not required to elect a theory until the jury is instructed). Under Florida practice: the court may require the party to elect remedies before trial (choosing which theories to submit to the jury), and the party may not recover under more than one theory for the same damages. Under Florida practice: inconsistent defenses are also permitted (the defendant may deny the contract existed and alternatively argue the contract was fully performed).
How It's Used in Practice
Attorneys use alternative pleading strategically. For plaintiffs: plead all viable theories (breach of contract, quantum meruit, unjust enrichment, fraud, and negligence as alternatives), develop evidence on all theories through discovery, and be prepared to elect remedies before trial if required by the court. For defendants: challenge the inconsistent pleading only if one theory negates the other (courts generally allow alternative pleading), assert inconsistent defenses (denial + affirmative defenses), and move to require election of remedies. The attorney advises: alternative pleading preserves all options; the plaintiff should plead every viable theory at the outset to avoid waiving claims; election of remedies occurs later.
Key Takeaways
- Pleading in the alternative: multiple inconsistent theories permitted.
- Rule 1.110(g): FL allows alternative claims.
- Party may not recover double damages.
- Court may require election before trial.
- Plead all viable theories at outset to avoid waiving claims.
Disclaimer: The information and opinions provided are for general educational, informational or entertainment purposes only and should not be construed as legal advice or a substitute for consultation with a qualified attorney. Any information that you read does not create an attorney–client relationship with Barnes Walker, Goethe, Perron, Shea & Johnson, PLLC, or any of its attorneys. Because laws, regulations, and court interpretations may change over time, the definitions and explanations provided here may not reflect the most current legal standards. The application of law varies depending on your particular facts and jurisdiction. For advice regarding your specific situation, please contact one of our Florida attorneys for personalized guidance.
Business Attorneys
Real Estate Attorneys
Litigation Attorneys
Estate Planning Attorneys
Business Sale Closings
How to Sell a Business in Florida
Contact Information:
Tel: 941-867-7818
Email: info@barneswalker.com
Trust • Experience • Results