Remedies Flashcards
Compensatory Damages
Requirements - MCPF Mairin will Certainly Pass Florida M - Mitigation C - Certainty P - Proximate cause F - Factual Cause
Goal to make Plaintiff WHOLE, position had the injury/breach not occurred
Personal injury -
“The judgment must be a single lump sum payment that will be discounted to present value w/o taking inflation into account (except under the modern rule)”
Contracts -
Direct Damages - flow inherently from the wrong (ex. expecation measure)
vs
Consequential Damages - related damages FORSeeable @ time of formation; indirect consq of breach (ex. lost profits, ! LOST REPUTATION);
-only available to buyer in K
Nominal Damages
awarded to P w/o actual injury, but to establish or vindicate P’s Rights
-Avail in Contract law too!
Punitive Damages
awarded to punish D when P is more than negligent;
-awarded in amount relatively proportionate to actual damages, no greater than 9:1
-Never given alone, to qualify:
P must 1st win Compensatory OR Nominal Damages; or Restitutionary (only if c/a in TORT)
NOT Avail in Contract Law! So try to frame C/A as FRAUD…
Restitutionary Damages
when D has been unjustly enriched; Look to Value of benefit conferred on D
Compensatory & Restitutionary Damages
Exam - CANNOT GET BOTH!!!
Give P the larger of the two.
Replevin !!
legal restitutionary remedy that allows for recovery of specific personal property wrongfully taken. SHERIFF will re-possess, but sometimes won’t…
P recovers possession of Specific Personal Prop IF
1. P has right to Possession
and 2. there is wrongful witholding by D
- CAN recover chattel BEFORE trial IF:
1. P posts a BOND (to show has $ to compensate D if wrong)
2. D can Defeat immediate recovery by posting a RE-DELIVERY Bond (and then D can keep until AFTER Trial.
*almost always coupled w/ damages (compensatory or restitutionary) for lost use OR benefit to D during time of detention
BFP cuts off claim
Ejectment
legal restitutionary remedy that allows for recovery real property wrongfully taken
P recovers possession of specific real property if: 1. P has right to possession and 2. there is Wrongful witholding by D 3. D Must be IN Possession!! SHERIFF ejects D.
*almost always coupled w/ damages (compensatory or restitutionary) for lost use OR benefit to D during time of detention
Constructive Trust
Equitable remedy implied in law and imposed on property when retention of prop by D would result in unjust enrichment. D must HAVE TITLE (not possession).
D serves as trustee and must return prop to P;
- Stolen money MUST be specifically identified and TRACED to possession of wrongdoer! NOT AVAIL if prop can’t be traced SOLELY to P
- Some juris require INADEQUATE LEGAL REMEDY! (ex. insolvent)
- BFP cuts off claim
- P will prevail over unsecured creditors
- Best choice when Prop has gone UP in value bc want it back! P gets benefit of any enhanced value
- Some juris have REPLENISHMENT theory - can only recover amount intended to be substituted for restitution of claim
Equitable Lien
Equitable CHARGE$ on property imposed by law to prevent unjust enrichment; imposed on improperly acquired property to which D has TITLE (not possession).
MUST show:
1. wrongdoer misappropriated P’s prop under circumstances creating debt/obligation pay
2. P’s prop be identified and TRACED to TITLE held by D, but may still be AVAIL if can’t trace solely to P, to prevent unjust enrichment
and
3. Retention of prop would result in unjust enrichment.
Prop subject to immediate COURT DIRECTED SALE. Money goes to P. IF sale is less than FMV when taken, a DEFICIENCY judgment will be issued for the difference against D’s other assets.
- Tracing permitted
- Some juris req INADEQUATE LEGAL REMEDY!
- BFP cuts off claim
- P will prevail over unsecured creditors
-Best choice when prop has gone DOWN in value bc P gets deficiency for loss in value
Constructive Trust & Equitable Lien RULES
- inadequate Legal Remedy alternative
(insolvent, Unique) - Tracing is permitted
- BFP will prevail over P
- P will prevail over UNSECURED creditors.
(but same footing for deficiency judgment)
Preliminary Injunction
P must establish:
- Irreparable Injury (Time Frame - while waiting for full trial)
- BALANCE against hardship D will suffer if TI granted
and 2. P’s must establish likelihood of success on CLAIM (probability)
- Court should impose a BOND requirement on P to reimburse D if injunction injures him and P does NOT succeed.
- Notice required
Temporary Restraining Order
issues pending a hearing to determine if Prelim injunction should issue
SAME TEST as Prelim Inj, but can be Ex Parte.
-NO NOTICE nor Adversarial Proceeding required, but must make g/f effort if can
Limit 10 days (14 in Fed ct)
Permanent Injunction
IFBD - I’m Feeling Bold & Determined!
Amost always coupled w/ damages for period prior to inj.
- Inadequate Legal Remedy (often LAND)
Sheriff won’t help; D puts redelivery bond & leaves; insolvent, irreparable injury, prior history of litigation by the parties that won’t end. - Feasibility of Enforcement
- harder w/ req action bc hard to supervise and ensure compliance; skill/judgment series of acts over time, out of state D - Balancing of hardships (!nuisance/trespass)
(P’s benefit if granted vs D’s hardship)
a. grant UNLESS Gross Disparity between hardships;
b. NO balancing if D’s conduct was WILFULL!
c. consider Hardship to PUBLIC
d. consider granting money damages instead - Defenses
-Laches
clock runs when P learns of injury & cuts off relief when BOTH UNREASONABLE & PREJUDICIAL
-Unclean hands (related to suit)
-Impossibility (impossible to carry out inj, rare)
-Free Speech (denied bc based on 1A right)
BINDS:
- parties
- EEs and AGENTS acting w/ NOTICE
- others acting in CONCERT w/ D
Contempt
Must obey law, or move to have it Modified or Resolved. Otherwise…
Civil (to coerce)
D holds the keys to the jailhouse through compliance; Money Fine and Imprisonment
Criminal (to punish)
D stays in prison for set time.
Liquidated Damages - DR
Valid if
- D - Damages very difficult to ascertain at time of K formation and
- R - Reasonable forecast of what they would be and Not an excessive penalty
! TRICK - Clause that says you get EITHER liquid dmg or actual damages is VOID!! Give actual Dmg
