Remedies

Question 1

Three types of remedies

Answer 1

Legal
Restitutionary
Equitable

Question 2

In determining whether Specific Performance is an appropriate remedy, the Court will consider (5)….

Answer 2

1. The inadequacy of available legal remedies
2. The likelihood of future performance by the party seeking enforcement of the contract
3. The ability of the breaching party to render performance, and
4. The balance of interested and relative hardships of the contracting parties, and
5. Any potential difficulties in supervision or enforcement of the decree.

Question 3

Estate of Lucille Osborne v. Kemp

Party seeking SP must establish…

Answer 3

1. A valid contract exists
2. Party was ready, willing, and able to perform, and
3. The balance of equities tips in favor of the party seeking performance.

Question 4

Balance of Equities in favor of the party seeking performance - For SP to be appropriate, the court must be convinced that the specific enforcement of a validly formed contract would not cause…

Answer 4

even greater harm than it would prevent.

Question 5

Laches

Answer 5

Doctrine that bars a plaintiff who has not acted promptly in bringing the action. “Equity aids the vigilant, not those who slumber on their rights”

Question 6

Test for Laches

Answer 6

Does the delayed claim produce a substantial prejudice to the defendant, look to

1. loss of material evidence
2. faded witness memories
3. economic losses

Question 7

Estoppel

Answer 7

A doctrine that bars a party from asserting a claim or right that contradicts what they have said or done before, or that contradicts what has been legally established as true.

Question 8

Quantum Meruit - “what one has earned”

Answer 8

a reasonable sum of money to be paid for work done when the amount due is not stipulated in a legally enforceable contract.

Question 9

Carbasho v. Musulin

Answer 9

Damages recoverable for the negligent destruction of personal property are limited to FMV at the time of destruction

Question 10

Loss of use is traditionally disallowed because courts assumed that upon destruction of the property…

Answer 10

the person would immediately replace it.

Question 11

How to measure Loss of Use (3)

Answer 11

1. Demonstrate reasonable cost of renting same
2. Rental value of the damaged property OR
3. Profits that could have been made from the use of the property

Question 12

Permanent damages are given where (2)

Miller case

Answer 12

1. cause of injury is fixed

2. property will always be subject to the injury

Question 13

Diminution in value (permanent damages)

Answer 13

FMV of the land before the injury - FMV of land after the injury

Question 14

Tree Value (Laube v. Thomas, special purpose trees)

Answer 14

Where trees have special value, the tree value is measured by the FMV of property before tree destroyed - FMV after tree destroyed.

Question 15

Collateral Source Rule

Answer 15

Compensation or benefits which an injured party receives from a source independent from the responsible party are not deducted from the responsible party’s liability

Question 16

Punitive Damages are awarded to..

Answer 16

punish defendant’s egregious behavior and deter others in the future.

Question 17

Puni’s are available where defendant acts with…

Answer 17

ill will, spite, intent to injure, fraud, gross negligence, reckless disregard

Question 18

CA rule’s on Puni’s

Answer 18

1. Clear and convincing evidence that defendant has been guilty of oppression, fraud, or malice, the plaintiff may also recover exemplary damages
   a. Malice: conduct intended by defendant to cause injury to plaintiff.
   b. Oppression: despicable conduct that subjects a person to cruel and unusual hardship.
   c. Fraud: intentional misrepresentation, deceit, concealment of a material fact.

Question 19

Contempt is the method in which the court enforces…

Answer 19

Equitable orders

Question 20

Civil Contempt

Answer 20

instituted by a private party, as part of an underlying action, to either recover damages occasioned by the disobedience of an order, or to coerce the opposing party into compliance with the order. Clear and Convincing standard.

Question 21

Criminal Contempt

Answer 21

instituted by prosecutor to vindicate society’s interest in the obedience of lawful orders. Must show willful disregard beyond a reasonable doubt.

Question 22

FRCP 65(d) every order granting an injunction and every RO must(3)…

Answer 22

1. State the reasons why it issued
2. State its terms specifically, and
3. Describe in reasonable detail, and not by referring to the complaint or other document, the act or acts restrained or required.

Question 23

Injunctions and TRO/ROs only bind those who receive actual notice of it. Examples:

Answer 23

The parties
The parties officers, agents, ees, attys
Other persons in active concert or participation

Question 24

Temporary damages

Miller

Answer 24

damages that can be remediated