Remedies

Question 1

Irreperable Injury

Answer 1

plaintiff establishes
(1) inadequate legal remedy,
(2) feasible enforcement, and
(3) status quo preservation as a primary concern.

Question 2

TRO Requirements

Answer 2

The plaintiff establishes
(1) irreparable harm and
(2) likelihood of success

Can do ex-parte without notice to other side BUT Must show a good faith effort was made to provide notice to the other side

Question 3

Permanent Injuction Requirements

Answer 3

P establishes
(1) inadequate legal remedy,
(2) protectable property right/interest,
(3) feasible enforcement,
(4) hardship balancing of the equities in the plaintiff’s favor, and
(5) no defenses.

Question 4

Inadequate Legal Remedy

Answer 4

(1) unique property bargained for.
(2) speculative,
(3) insolvent defendant,
(3) need multiple suits

Question 5

Balancing of the Hardships

Answer 5

The balance of the equities weigh in the plaintiff’s favor when the plaintiff’s hardships if the injunction is not issued will be significantly greater than the hardships on the defendant and third parties if the injunction is issued.

Majority View: If the harm to the D or Public outweighs the harm to P, the P may only seek money damages

Question 6

Feasability of Enforcement (injuction)

Answer 6

Feasibility of enforcement depends largely on whether it is a negative or mandatory injunction

(1) negative injunction pose no feasability problems because court can hold them in contempt

(2) mandatory injuction pose feasibility problems because the court must supervise the order to make sure the affirmative act is done

Question 7

Laches

Answer 7

(1) must show that the P unreasonably delayed asserting claim, and the delay resulted in prejudice to the D
(2) laches begins to run from the time the P learns right has been infringed

Question 8

Damages for Nuisance
(Remedies)

Answer 8

Generally: measure of damages for nuisance is the value of the loss and enjoyment and enjoyment of the propert (loss profits), plus cost incurred in trying to abate the nuisance and an award for any discomfort or annoyance to the occupant

Damages must be (1) Forseeable (2) causal (3) certain (4) and unavoidable

• Damages computed from time nuisance began up to commencement of action
• recovery for future losses or damages is not available because the D may discontinue nuisance at any time

Question 9

‘Permanent Nuisance’ Doctrine

Answer 9

Allows plaintiff to recover damages based upon PERMANENT DIMUNITION IN VALUE to property

Question 10

Constructive Trust (remedy)

Answer 10

D improperly acquires title and is directed to serve as trustee to return to P. Use when prop value increases.

Question 11

Constructive Trust Requirements

Answer 11

(1) D has title;
(2) title traced to prop D wrongfully acquired;
(3) D’s retention would be unjust enrichment;
(4) (some jxs) P has no adequate remedy at law.

Priority: P has priority over unsecured creditors but loses to BFPs.
Limitation: may not be used when D improved other prop with Ps prop.

Question 12

Equitable Lien

Answer 12

D improperly acquires title of prop and is directed to conduct immediate cost-directed sale.

Use when prop value decreases

Question 13

Equitable Lien Requirements

Answer 13

(1) D misappropriated under circumstances creating debt or obligation to pay;
(2) P’s prop can be traced to prop held by D;
(3) D’s retention would be unjust enrichment.

Question 14

Unclean Hands

Answer 14

Especially helpful in the equity context
Prevents a party from recovering where that party was involved in bad behavior relating to the underlying transaction.