Remedies

Question 1

Nuisance - damages

Answer 1

Damages is generally the diminution in value of property due to the nuisance

If the nuisance is a continuing one and the court deems it “permanent,” then the court will award the plaintiff all past and future damages, which prevents plaintiffs from returning to the court to collect damages in the future.

Question 2

Permanent Injunction

Answer 2

A permanent injunction requires the following elements: (1) irreparable harm, (2) and balancing the equities. Courts also sometimes consider feasibility of enforcement

In balancing the equities, generally the defendant and third parties should not suffer undue hardship as a consequence of the injunction. The court will weigh the social utility of the defendant’s conduct against the harm caused to the plaintiff and others

Question 3

Actual damages - torts

Answer 3

Actual damages compensate a plaintiff for the injury suffered.

Actual damages generally include medical expenses, parasitic damages (i.e. pain and suffering), and lost wages

Question 4

Expectation damages - Contracts

Answer 4

The goal of expectation damages is to place the non-breaching party in the same position they would be in had the other party not breached.

Question 4

Consequential damages

Answer 4

Consequential damages include damages that reasonably and foreseeably flow from the breach or from the tort.

Requirements:
(1) must be foreseeable - the natural and probable consequence of the tort or contemplated by the parties at the time the contract was formed
(2) must have been caused by defendant’s breach or tort, and
(3) must be ascertainable with reasonable certainty

Question 5

Incidental damages - contracts

Answer 5

Incidental damages compensate a non-breaching party for the steps taken by that party to remedy a breach (i.e. cost of finding a replacement seller)

Question 6

Reliance damages - contracts

Answer 6

The goal of reliance damages are to place a non-breaching party in the same position they would have been in had the contract never been formed in the first place

These damages are applicable if a party incurs expenses in reasonable reliance upon the breaching party’s promise to perform

Reliance damages CANNOT exceed full contract price

Question 7

Essay strategy

Answer 7

(1) analyze causes of action
(2) Discuss legal damages
(3) discuss equitable remedies and defenses
(4) discuss restitution remedies

Question 8

Legal damages

Answer 8

Compensatory damages (Tort - actual damages, Contracts - expectation damages)

Consequential damages (Tort/Contracts)

Incidental damages (Contracts)

Reliance damages (Contracts)

Nominal Damages (Torts/Contracts) - harm is slight but elements are met

Punitive damages (Torts/ rarely Contracts)

Restitution Damages (Torts/Contracts)

Question 9

Restitution Damages

Answer 9

Measured by benefit conferred upon D by P. Goal is to avoid unjust enrichment.

Usually granted when other damages are adequate

Question 10

Temporary Restraining Order

Answer 10

A TRO is a short-term injunction that is typically sought at the first stage of the plaintiff’s request for injunctive relief.

Purpose is to maintain the status quo pending a hearing for a preliminary injunction, and it may be issued ex parte upon a sufficient showing of urgency.

Limits - 14 days (Federal Rules), 15 days (CA)

Elements:
(1) Likelihood of success on the merits
(2) Irreparable Harm (P would suffer irreparable harm if injunction is not issued)
(3) Balance of Hardship (Hardship for 14 days)

Question 11

Rescission

Answer 11

Unmaking of contract (puts parties in position they would be in if contract was never made)- generally available as a remedy for:
(1) mistake (unilateral or mutual)
(2) fraud/misrepresentation

P must: (1) give notice to D, (2) return any benefits received from D

P can then obtain a replevin (recovery of specific property that was transferred to D) or restitution (monetary compensation for value of property services conveyed by P upon D)

Question 12

Preliminary Injunction

Answer 12

Notice and hearing are required

Elements: (1) plaintiff will suffer irreparable harm if injunction is not issued; (2) likelihood of success on the merits; (3) balance of hardship (P will suffer greater hardship if injunction is not issued than D would if injunction is issued; D can also reference hardship to third parties to help his side of the argument)

(4) Enforceability

Question 13

Permanent Injuinction

Answer 13

Granted after a plaintiff has prevailed on their case. Elements: (1) irreparable harm, (2) balance of hardships

Question 14

Specific Performance

Answer 14

Non-breaching party can ask court to order breaching party to perform. Elements:

(1) contract was valid
(2) terms of contract are sufficiently definite
(3) performance is due (all conditions satisfied or properly waived)
(4) money damages inadequate
(5) enforcement feasible

MAKE SURE TO MENTION DEFENSES!!!

Question 15

Laches

Answer 15

Unreasonable delay in pursuing an equitable remedy, resulting in prejudice to the other party

Question 16

Reformation

Answer 16

Judicial rewriting of contract to reflect parties’ true intent

Allowed for mutual mistake

Allowed for unilateral mistake (if a party knew of the mistake and either fraudulently induced it or did nothing to correct it)

Question 17

Unclean Hands

Answer 17

Bars a plaintiff from seeking equitable relief if the plaintiff was engaged in unethical behavior with respect to the contract

Question 18

Constructive Trust

Answer 18

Judicially created remedy that imposes a duty to convey property to plaintiff if defendant would be unjustly enriched by retaining the property

Elements:
(1) D holds title to the property to be conveyed
(2) D’s retention would unjustly enrich D
(3) Legal damages are inadequate

Tracing - a party can trace his property from its original form to the purchase of a house and recover the house from the defendant

Constructive Trusts are in FULL SATISFACTION of the claim - if there is an increase in value, Plaintiff can retain it

Question 19

Equitable Lien

Answer 19

An equitable lien is a judicially created remedy that imposes a lien on the defendant’s property. The plaintiff is not seeking to take ownership of defendant’s property, but rather
claiming a creditor-like interest in the defendant’s property.

Same elements as Constructive Trust
Not in Full Satisfaction of Claim
- plaintiff only entitled to amount of money D received from P

Use if value of property is less than what D took from P (because P can seek more money from D)

Question 20

Replevin

Answer 20

Allows P to recover personal property from D

Question 21

Expectation Damages for Breach of Real Property Contract

Answer 21

Generally, when the seller breaches a real property contract, the buyer is entitled to recover the difference between the contract price and the market value as of the date of the breach of contract.

Question 22

Reliance Damages - Land Sale Contracts

Answer 22

In land sale contracts, the reliance damages are often the out-of-pocket expenses including any down payment or earnest money paid to the seller.

Question 23

Trespass Damages

Answer 23

Diminution in FMV OR cost of repair