Altom v. Hawes

In February 1976, Janice Altom (plaintiff) entered into a separation agreement with her husband, Melvin Altom, pursuant to which Janice was to have exclusive possession of the marital residence and furniture, except for any items that the parties might agree would belong to Melvin. On March 7, 1976, Melvin invited Tracy Hawes (defendant) to the marital residence to view and purchase furniture. Hawes selected several items, paid $1,500 for the items, and took the items with him that same day for use by himself and his wife, Shirley Hawes (defendant). Melvin provided Hawes with a bill of sale. On March 18, 1976, Janice filed suit for divorce. After a default hearing, a decree was entered on May 6, 1976, holding that Melvin had appropriated and sold Janice’s property in violation of the separation agreement. Judgment was entered against Melvin in the amount of $1,500. One month after the decree, Janice had not yet collected on the money judgment. Instead, Janice filed a complaint in replevin against the Haweses. The trial court granted summary judgment for the Haweses. On Janice’s appeal, the Haweses argued that summary judgment was proper because Janice had elected her remedy in pursuing her claim against Melvin as a money judgment and was therefore seeking a double recovery by filing a replevin action. Janice argued that (1) the doctrine of election of remedies only applies where the two remedies sought are inconsistent, which hers were not; and (2) the judgment against Melvin was unsatisfied and therefore could not act as a bar to a subsequent suit.