Question 1

What does it mean to plead in the alternative in Florida?

Accepted Answer

Pleading in the alternative allows a party to assert inconsistent or contradictory claims or defenses in the same pleading. In Florida: Rule 1.110(g) specifically permits alternative pleading. A plaintiff can: allege breach of contract AND unjust enrichment (even though the claims are inconsistent: breach of contract requires a valid contract, while unjust enrichment typically applies when no contract exists). A defendant can: assert that no contract was formed AND that if a contract was formed, the defendant performed, AND that if the defendant breached, the plaintiff suffered no damages.

Question 2

Why is alternative pleading used in Florida?

Accepted Answer

Purpose: alternative pleading is used because: the facts may be uncertain (at the pleading stage, the party may not know which theory will be supported by the evidence), the law may be uncertain (the party may not know which legal theory the court will accept), and it preserves the party’s rights (failing to plead a theory may result in waiver; by pleading in the alternative, the party preserves all potential theories). Alternative pleading is especially important in: contract cases (where the existence or validity of a contract is disputed), fraud cases (where the facts may support both fraud and breach of contract), and real estate cases (where title, contract, and equitable theories may all apply).

Question 3

Are there limits on alternative pleading in Florida?

Accepted Answer

Limits: the alternative claims must each be legally sufficient (each claim must state a valid cause of action on its own), the party must act in good faith (alternative pleading is not a license to make frivolous claims), and the party must eventually elect a theory (at some point, usually before trial, the party must choose which claims to pursue; the court may require an election of remedies). Rule 11 sanctions (Section 57.105): a party who pleads frivolous or unsupported claims may be subject to sanctions, including attorney fees.

Pled in the Alternative Legal Strategy

Pleading in the Alternative in Florida

What It Means

Why Used

Limits

Related Terms

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