COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68437 : THE RICHEY BARRETT COMPANY : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : B.E.C. CONSTRUCTION, INC. : : Defendant-Appellant : : DATE OF ANNOUNCEMENT DECEMBER 7, 1995 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Berea Municipal Court Case No. 94-CVF-01060 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: CHRISTOPHER J. McCAULEY, ESQ. DEAN R. STEIGERWALD, ESQ. 5945 State Road 677 West Liberty Street Parma, Ohio 44134-2864 Medina, Ohio 44256 -2- -3- PATRICIA ANN BLACKMON, J.: Defendant-appellant, B.E.C. Construction, Inc., appeals from a judgment rendered in favor of plaintiff-appellee, The Richey- Barrett Company, and assigns the following errors for our review: I. THE TRIAL COURT ERRED IN RULING THAT DEFENDANT- APPELLANT WAS INDEBTED TO PLAINTIFF-APPELLEE IN THE NON-PAYMENT OF INSURANCE PREMIUMS EVEN THOUGH PLAINTIFF-APPELLEE HAD PREVIOUSLY ELECTED TO DEDUCT FROM THE AMOUNT IT CLAIMED IT WAS OWED BY DEFENDANT APPELLANT FROM THE COMMISSIONS DUE THEIR INDEPENDENT SELLING AGENT. II. THE TRIAL COURT ERRED IN NOT RULING THAT PLAINTIFF-APPELLEE WAS NOT DAMAGED AS A RESULT OF IT'S [sic] ELECTION TO DEDUCT THE AMOUNT IT CLAIMED IT WAS OWED FROM THE COMMISSIONS DUE THE SELLING AGENT. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. Richey-Barrett Company (Richey-Barrett) sued B.E.C. Construction (B.E.C.) for money owed to it on account of B.E.C.'s failure to pay its insurance premiums. The premiums were due and owed from a contractor's commercial liability policy sold to B.E.C. by Richey-Barrett's agent, Owens Coughlin. After a trial to the bench, the judge found B.E.C. owed Richey-Barrett $4861.15 plus 10% interest. This appeal followed and for its record an App.R. 9(C) statement was provided. From the statement, the testimony of Jeffrey Gisser and Owen Coughlin was recounted. Gisser testified B.E.C. owed his Company, Richey-Barrett, $4861.15 for delinquent premiums on a contract of -4- insurance it provided to B.E.C. He also testified Richey-Barrett had withdrawn the delinquent payments from Coughlin's commissions. It appears these commissions were due Coughlin for other insurance he had sold not necessarily to B.E.C. When an account was delin- quent, it was the practice of Richey-Barrett to withdraw monies from the agent of the delinquent account. Gisser testified its intent was to return the commissions to Coughlin after it had collected from B.E.C. in its lawsuit. Coughlin testified he sold the insurance to B.E.C. on a policy written by State Auto Insurance Company through Richey-Barrett. He confirmed the delinquency by B.E.C. and the withdrawal of monies from his commissions by Richey-Barrett. He verified his lawsuit against Richey-Barrett. The record does not indicate whether the deduction from Coughlin's commission occurred before Richey-Barrett's lawsuit against B.E.C. The record is equally silent on whether B.E.C. raised the election of remedies argument in the trial court, and whether the trial court ruled on it. Nevertheless, in its first assignment of error, B.E.C. asserts the trial court erred in finding for Richey-Barrett when it elected to attach Coughlin's commissions as payment for its indebtedness. B.E.C. argues the trial court's decision allows Richey-Barrett to collect twice. Richey-Barrett counters and argues B.E.C. did not raise this issue below and waives the argument. Moreover, Richey- Barrett believes the election of remedies argument is nonsensical. -5- The doctrine of election of remedies does not apply to this case. Therefore, we believe it unnecessary to become mired in the quagmire of procedural waiver. It is axiomatic that election of remedies is an affirmative defense that must be pleaded, or it is waived. Civ.R. 8(C) and 12(H); Mossa v. W. Credit Union, Inc. (1992), 84 Ohio App.3d 177. However, under Civ.R. 15(B) when an issue is tried without objection and consented to, this court may consider the matter. Chandler v. General Motors Acceptance Company (1980), 68 Ohio App.2d 30. After all, the reason for the rule of pleading affirmative defenses is notice and avoidance of surprise. Id. at 31. In this case's App.9(C) statement, signed by all, B.E.C. did characterize, without using the words, Richey-Barrett's withholding of Coughlin's commissions as an election that barred its suit against it. Although B.E.C. urges us to apply the doctrine of election of remedies, we decline to do so. For the doctrine of election of remedies to apply, at least two remedies must exist at the same time from which the party claiming the remedial rights must choose one. Election becomes applicable as a bar to duplicity in recovery when the remedial remedies are inconsistent not merely cumulative. Frederickson v. Nye (1924), 110 Ohio St. 459. In Frederickson v. Nye, the court held when the remedies are inconsistent, it is the election of one that precludes the other. Furthermore, election of remedial rights bars another when the rights are inconsistent and the election is made with knowledge and intention and purpose to elect." Id. at syllabus 2. -6- In this case, Richey-Barrett's withholding of Coughlin's commissions for the B.E.C. debt and suing B.E.C. for the debt were not inconsistent but cumulative. The standard for determining inconsistency has been so defined: "While the determination of whether remedies are inconsistent with each other depends on the facts in each case, as a general rule, the test is whether the allegations or demands in the one action, or the facts supporting such action necessarily repudiate or are repugnant to those of the other action, regardless of the difference in the forms of action. [Emphasis added.]" Kabbaz v. Prudential Ins. Co. of Am. (Dec. 29, 1988), Crawford App. No. 3- 86-27, unreported, quoting 28 Corpus Juris Secundum (1941) 1066- 1068. The best example of repugnancy of two actions can best be seen in Frederickson v. Nye. In that case, two lawsuits existed. The Seneca County suit affirmed the contract and prayed for money only. The Hancock County suit prayed for a disaffirmance of the contract with Frederickson and urged the holding of the property in constructive trust for the Nyes. In applying the standards to this case, we conclude Richey- Barrett's withholding of Coughlin's commissions and its lawsuit against B.E.C. were cumulative and not inconsistent and repugnant. A cumulation of two courses of conduct designed to collect the debt owed to it by B.E.C. The first course was to hold Coughlin's commissions as security for the debt owed and the second was to sue B.E.C. for the debt it owed with the intent to reinstate Coughlin's commissions. -7- Gisser testified his company withheld commissions due Coughlin from other customers' accounts because Coughlin's customer B.E.C. had defaulted. He further stated his company planned to release the commissions once it collected from its lawsuit against B.E.C. From the description and intent of Richey-Barrett its action can be described as the withholding of the commissions as security for the debt. The holding of a security interest does not affect the existence of an underlying debt and does not bar the bringing of an action to collect that debt. Winters National Bank v. Saker (1979), 66 Ohio App.2d 31. Therefore, the act of withholding the commissions and filing the lawsuit were cumulative not inconsis- tent, thereby making the doctrine of election of remedies inapplicable to this case. Nevertheless, B.E.C. argues the withholding of Coughlin's commission constitutes satisfaction of the debt, and Richey- Barrett is attempting to recover twice by this lawsuit. As we indicated earlier, Richey-Barrett is not precluded from recovering the debt owed to it by B.E.C. B.E.C. cannot benefit from the dispute between Coughlin and Richey-Barrett. Regardless of what happened B.E.C. remains liable for failure to pay its premiums due and owed to Richey-Barrett. In conclusion, we hold in order to establish an election of remedies defense the facts must show a conclusive act of election. It must show knowledge, intent, and purpose to elect as between two inconsistent remedial rights. Inconsistent remedial rights are those that are repugnant to one another not merely cumulative. -8- Judgment affirmed. It is ordered that Appellee recover of Appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Berea Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. JOHN T. PATTON, C.J., and JAMES D. SWEENEY, J., CONCUR. PATRICIA ANN BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- .