Non-Monetary Remedies

Question 1

Equitable Relief

Answer 1

Conditions:

1. P must establish a claim that supports equitable relief
2. claimant must not have an adequate remedy at law
3. any equitable order must be sufficient to guide the court and the D as to what is required AND
4. balancing of equities must justify equitable relief

Question 2

Permanent Injunctions

Answer 2

Purpose is to maintain the status quo until a final judgment can be made. P must show:

1. A substantial likelihood of success on the merits
2. without an injunction, he is about to suffer or will continue to suffer an irreparable injury for which money damages would be inadequate compensation
3. balancing of hardships between the parties supports granting the injunction AND
4. the public interest wouldn’t be disserved by the grant of an injunction

Question 3

Temporary Restraining Orders and Preliminary (Interlocutory) Injunctions

Answer 3

Can be issued ex parte (opposing party has 5 days from the date of issuance to object) if P shows:

1. an irreparable injury if the order is not issued
2. that the threatened injury outweighs the potential harm if the order is issued AND
3. substantial likelihood of success on the merits

Question 4

Specific Performance

Answer 4

Available at the discretion of the court. Must establish

1. a valid contract exists
2. all conditions have been performed
3. no adequate remedy exists at law
4. the decree is enforceable
5. mutual remedies exists AND
6. no valid defense.

Question 5

Contracts for which Specific Performance is Available

Answer 5

1. land sale contracts
2. contracts for the sale of good or rare collectibles
3. contract for the sale of closely held corporate stock
4. non-compete provisions

Question 6

Contracts for which Specific Performance is Not Available

Answer 6

1. employment contracts
2. partnership agreements
3. construction contracts

Question 7

Rescission

Answer 7

Appropriate remedy for fraud or mistake in the inception of a contract, but generally not merely for subsequent breach. Must be sought by the innocent party upon discovery of the fraud. To obtain, a party must tender back what has been received under the provisions of the contract and thus offer to restore the parties to the status quo ante.

Question 8

Reformation

Answer 8

Contract revision is an equitable remedy by which a court modifies or alters a written instrument to make it conform to the parties’ actual intent. The contract must first be valid.

Question 9

Reformation and Fraud

Answer 9

With respect to fraud or mistake in inducement situations, reformation is only available to correct mistakes in the execution of a contract. With respect to a unilateral mistake in execution, courts will not reform a written contract unless the mistake is by both parties.

Question 10

Defenses

Answer 10

1. if contract doesn’t meet the statute of frauds, it cannot be reformed
2. if part performed, reformation can be awarded if the P has substantially performed his part of the contract
3. parol evidence doesn’t preclude evidence about the parties’ intent because the court must attempt to learn the original agreement of the parties.

Question 11

Restitution

Answer 11

A person who has been unjustly enriched at the expense of another is required to make restitution to the other.

Question 12

Quasi Contract Remedy

Answer 12

A restitutionary remedy that imposes an equitable obligation to discharge or pay for a benefit received in exchange for a promise, in order to prevent unjust enrichment.

Question 13

Replevin

Answer 13

Results in restitutionary relief. An action to recover personalty or goods to which the P has title but which are wrongful held by another. The P must post bind and show proof of ownership, requesting the sheriff to seize the property and return it to P before trial. D may recover the property pending trial by posting bond and offering proof of right of possession.

Question 14

Ejectment

Answer 14

Results in restitutionary relief. It results in the P regaining possession of the P’s land not money damages.

Question 15

Constructive Trust

Answer 15

Imposes a constructive or involuntary trust that causes a wrongdoer to transfer to the P title to the property the wrongdoer obtained as a result of misappropriation through conduct such as fraud, mistake, undue influence, or breach of fiduciary duty.

Question 16

Requirements for Constructive Trust

Answer 16

1. D holds legal title to property that rightfully belongs to claimant
2. a confidential or fiduciary duty between P and D was breached by D AND
3. the retention of the property by D would result in unjust enrichment

Question 17

Equitable Liens

Answer 17

A charge imposed against property that makes the property serve as security for debts or obligations owed. May be immediately foreclosed and the property sold to satisfy the debt.

Question 18

Doctrine of Latches

Answer 18

There was an undue delay in asserting a right if:

1. the moving party has waited an unreasonable length of time in asserting its claim AND
2. the non-moving party has suffered prejudice as a result of the moving party’s unreasonable delay

Question 19

Clean/Unclean Hands

Answer 19

No person can obtain affirmative relief in equity with respect to a transaction in which he has himself been guilty of inequitable conduct.

Question 20

Equitable Estoppel

Answer 20

1. the moving party by words or conduct or by silence (if had duty to speak) caused the non-moving party to believe a fact or that a certain state of affairs exists
2. the non-moving party relied on the facts or state of affairs flowing from the moving party’s words, conduct or silence
3. the non-moving party was prejudiced as a result of its reliance AND
4. some intended deception in the conduct or declarations of the party to be estopped or such gross negligence as to amount to constructive fraud, by which another has been misled to his injury, occurred

Question 21

Lis Pendens

Answer 21

Filed with a complaint with the Clerk of the Superior Court and establishes a cloud on title, alerting others that the property is subject to litigation. Must set forth:

1. address and description of property
2. names of the parties AND
3. nature of the dispute