Equity

Question 1

Can divorce or annulment be resolved by default?

Answer 1

No default, must still make an evidentiary submission if defendant fails to appear

Question 2

When are there statutory rights to jury hearings for equitable claims?

Answer 2

1) quiet title actions; and
2) defendant files a plea to an equitable claim
- plea is an affirmative defense

Question 3

How is a review of a decree sought from the trial court?

Answer 3

1) motion to suspend, modify or vacate judgment (21 days)
2) bill of review (6 months) - newly discovered evidence
3) appeal (30 days notice of appeal with trial court)
- divorce (Court of Appeals as a matter of right)
- others are discretionary to Supreme Court

Question 4

To seek an equitable remedy what is required?

Answer 4

1) legal remedy must be inadequate
2) equitable relief must be feasible
- enforceable by contempt
- equitable relief is always discretionary

Question 5

What torts are typical for seeking injunctive relief?

Answer 5

1) continuous trespass or repeated trespass
2) conversion of unique chattel
3) stop unfair competition

Question 6

An injunctive may be available to eliminate what types of nuisances?

Answer 6

Private nuisances may be available, not public.

Question 7

An injunction may be available to prevent what type of waste?

Answer 7

only for destructive waste and permissive waste

not ameliorative waste

Question 8

Is injunctive relief available for defamation?

Answer 8

No injunction, unless private figure and the publication will violate a property right

Question 9

Is injunctive relief available for an invasion of privacy?

Answer 9

No.

Question 10

What is needed to obtain an preliminary injunction?

Answer 10

1) substantial likelihood the moving party will prevail
2) irreparable harm to movant unless status quo is maintained
3) harm to moving party outweighs hardship to opposing party
4) public interest will not be adversely affected

Question 11

Is a bond required for a temporary injunction?

Answer 11

Yes.

Question 12

To obtain specific performance what is needed?

Answer 12

1) valid contract with offer and acceptance
2) contract conditions have been met
3) mutuality of remedies must exist

Question 13

What does mutuality of remedy require for specific performance?

Answer 13

1) both parties are able to perform; and

2) both parties can be bound, not under a disability

Question 14

For a covenant not to compete, equity will grant specific performance if the restrictions are reasonable as to:

Answer 14

1) employer’s legitimate interest in protecting its business
2) employee’s fair opportunity to accept other jobs in the industry
3) public interest
- look at specific activities, geographic limit, duration

Question 15

Rescission of a contract in equity is available when:

Answer 15

1) mutual mistake as to a material fact; or
2) unilateral mistake with misrepresentation (even if innocent) and some other form of inequitable conduct
- restitution is available to recover any value exchanged prior to rescission

Question 16

Rescission ____ a contract and reformation ____ a contract.

Answer 16

Cancels

Modifies

Question 17

In equity to obtain reformation of a contract what is needed?

Answer 17

valid contract and

1) any mistake or
2) unilateral mistake coupled with knowing misrepresentation

Question 18

In equity, when is restitution available?

Answer 18

plaintiff can show that defendant

1) obtained a benefit from plaintiff; and
2) defendant knew or should have knew that plaintiff expected compensation

Question 19

When a plaintiff seeks redress on a quasi contract is a jury allowed?

Answer 19

Yes - quasi contract is considered legal theory for restitution

could also file an equitable claim for restitution

Question 20

What remedies are available to achieve restitution in equity?

Answer 20

1) dollar damage awards
2) constructive trust - to disgorge defendant
3) equitable lien on property
4) specific performance of items

Question 21

In equity, what is the preferred outcome for a partition of property?

Answer 21

partition-in-kind by splitting parcel if it can be conveniently achieved

Question 22

What are defenses to equitable claims?

Answer 22

unclean hands
laches
unconsciousability
impossibility and hardship
fraud
equitable estoppel

Question 23

Define laches

Answer 23

unexcused lapse of time coupled with prejudice to defendant

Question 24

What circumstances may excuse plaintiff’s delay in bringing an equitable cause of action?

Answer 24

1) defendant’s concealment, fraud, or inequitable conduct
2) reasonable lack of awareness
3) waiting for US Supreme Court to decide a test case

Question 25

Does a liquidated damages clause prevent a suit in equity?

Answer 25

No does not prevent access to equity

Liquidated damages limits damages if brought at law

Question 26

If the equitable remedy requires enforcement of performance out of state will it be granted?

Answer 26

No.

Question 27

When should a plaintiff seek a constructive trust over an equitable lien?

Answer 27

When the property acquired at plaintiff’s expense is worth more than plaintiff’s claim and plaintiff should seek to obtain the illicit gain itself.

Question 28

When should a plaintiff seek an equitable lien over a constructive trust?

Answer 28

When the value of the item is worth less than plaintiff’s claim.
Seek equitable lien on the property and a deficiency decree for balance.

Question 29

Is a constructive trust an exclusive remedy?

Answer 29

Yes, cannot seek constructive trust and a deficiency decree.

Question 30

Can a plaintiff seek a constructive or equitable lien on property that the defendant converted?

Answer 30

No, defendant did not acquire title to which a trust or lien could attach.
Only can use specific performance to return the item

Question 31

D wrongfully converts P’s painting and car, sells both and invests the proceeds in a yacht. What are P’s remedies in equity?

Answer 31

Constructive trust or equitable lien in yacht.

Cannot get specific performance of yacht, because P never had title to yacht.

Question 32

Can a preliminary injunction be sought ex parte in equity?

Answer 32

Yes if needed to preserve the status quo

- referred to as restraining orders in VA; TRO in federal practice

Question 33

If people are cutting down trees an owner’s land, and the people say that they have permission from adjacent owner, what can be done?

Answer 33

• Call sheriff for trespasser
• seek injunctive relief - restraining order to stop
• motion to establish boundary line against adjacent owner
• permanent injunction
• constructive trust on the value of the trees sold

Question 34

What defense should always be raised in an equity case?

Answer 34

adequate remedy available at law

Question 35

If a claim is barred by the statute of limitations, can an equitable claim be asserted to avoid statute of limitations?

Answer 35

No. Equity follows law, therefore, if a legal demand asserted in equity is, at law, barred by statute, then it is equally barred in equity.

Question 36

In determining whether to grant a temporary injunction what are the factors?

Answer 36

1) irreparable harm to plaintiff if motion is not granted
2) is there an adequate remedy at law
3) likelihood of success on the merits
4) balancing of equities favors the plaintiff
5) plaintiff is offering bond

Question 37

Is a temporary injunction available to obtain immediate possession of property?

Answer 37

No, because there is an adequate remedy at law (petition in detinue or petition for attachment)