The plaintiff in a lawsuit is allowed to seek as many remedies as are available to her and may choose the one which is most beneficial to her. The doctrine of election of remedies requires:
- The existence of two or more remedies;
- Inconsistency between the remedies; and
- Choice of one or more of the remedies.[1]
A suit for damages is an alternative to a suit for rescission or restitution—a plaintiff may not avoid the contract and get placed in the position she found herself before the contract and receive a monetary damages award. The defense that the plaintiff must choose between alternative remedies, must be asserted in the defendant’s answer, or it is waived. NRCP 12.
[1] Second Baptist Church of Reno v. First Nat. Bank of Nevada, 89 Nev. 217, 510 P.2d 630 (1973).
