Remedies

Question 1

Writing Approach

Answer 1

1. What is the underlying cause of action? i.e. under what basis is the request for remedies being made? Tort, Contracts, etc.
2. What legal remedies are available?
   
   • adequacy of legal remedies first
   • Torts = money damages
   • Contracts = money damages, restitution
3. Go through restitutionary remedy analysis.
4. Go through adequacy of equitable remedies
   
   • constructive trust, equitable lien, injunctions, replevin,
     and specific performance

Question 2

Torts Legal Remedy - Money Damages

Answer 2

In tort cases, the standard remedy is money damages. Here,

Question 3

Torts Legal Remedy - Compensatory Damages

Answer 3

Compensatory damages seek to put P back where he was before the tort. The damages must be 1) foreseeable, 2) certain (not speculative), 3) unavoidable (steps to mitigate) and 4) caused by the breach. In a personal injury lawsuit this includes economic damages such as past/future medical bills, lost wages, etc. and general damages such as pain and suffering. Here,

Question 4

Torts Legal Remedy - Nominal Damages

Answer 4

Nominal damages are usually small and available when no actual damages can be proved, i.e. when there has been a trespass onto land without any damage to the land resulting. Here,

Question 5

Torts Legal Remedy - Punitive Damages

Answer 5

Punitive damages are to punish or deter. They do not compensate for actual injury suffered by the P, however, there must be some proportionality between the actual or nominal damages and punitive damages. Further, there must be a showing beyond negligence for punitive damages to be awarded. Here,

Question 6

Torts Legal Restitution - Restitution (Money)

Answer 6

Restitution of money damages is awarded to avoid unjustly enriching a defendant. The D must pay the P the reasonable value of the benefit that was unjustly obtained. P does not need to suffer an actual injury for restitution damages to apply. However, P must choose either compensatory damages or restitution, not both. Here,

Question 7

Torts Legal Restitution - Replevin

Answer 7

Replevin allows the P to recover possession of specific personal property before trial that is wrongfully taken by the D. Replevin is almost always coupled with money damages for the loss of use/benefit during the time of detention. The P must post a bond and the D can respond with a counter-bond to keep the property until after the trial. The sheriff must recover the property, no self-help. Here,

Question 8

Torts Legal Restitution - Ejectment

Answer 8

Ejectment allows the P to recover possession of specific real property from which P was wrongfully ousted. Ejectment is almost always coupled with money damages for the loss of use/benefit during the time of wrongful withholding. Here,

Question 9

Torts Equitable Restitution - Constructive Trust

Answer 9

A constructive trust may be imposed where the D has wrongfully taken title and retention would result in unjust enrichment. Constructive trust is the preferred remedy when the property value increases after the taking. The D serves as a trustee who must convey the specific property to the P. However, this remedy is only available if legal remedies are inadequate. Here,

Question 10

Torts Equitable Restitution - Equitable Lien

Answer 10

An equitable lien may be imposed where the D has wrongfully taken title and created a debt or obligation to pay. Equitable lien is the preferred remedy when property loses value or was commingled with other property. Property will be subject to an immediate court-directed sale with the money received going to the P. If the proceeds are insufficient to cover the value of the property, a deficiency judgment will be issued for the difference. Here,

Question 11

Torts Equitable Restitution - Equitable Lien: Commingled Funds

Answer 11

Where a wrongdoer commingles his own funds with misappropriated funds and the balance sinks below the amount of the P’s claim, the P may obtain only an equitable lien on the lowest balance amount the account reach. It is presumed the D withdraws his own money first, then the P’s money. Here,

Question 12

Injunctions

Answer 12

An injunction is a court order to do or refrain from doing something.

Question 13

Temporary Restraining Order (TRO) 10-14 days

Answer 13

The purpose of the TRO is to maintain the status quo pending the issuance of a preliminary injunction. A TRO may be issue ex parte upon showing an urgency to prevent irreparable harm and a likelihood of prevailing on the underlying claim. Here,

Question 14

Preliminary Injunction - PI (prevail+irreparable)

Answer 14

The purpose of a preliminary injunction is NOT to make a final determination of the merits of the case, but rather it is a provisional remedy designed to maintain the status quo pending a trial. A preliminary injunction requires notice and an adversary hearing. The same elements of irreparable harm and a likelihood of prevailing on the underlying claim must be shown. Here,

Question 15

Permanent Injunction - I Frequently Ballet Dance

Answer 15

The court will only grant a permanent injunction if the P shows 1) an inadequate legal remedy, 2) feasibility of enforcement, 3) balancing of the hardship, and 5) that no defenses exist.

Question 16

Permanent Injunction: Inadequate Legal Remedy

Answer 16

The moving party must show that the money damages, or restitution are inadequate to compensate the P for damage that he has suffered. Money damages may be too speculative, D has insufficient funds, or the property is unique. Replevin may be inadequate if D can keep property by posting a bond. Here,

Question 17

Permanent Injunction: Feasibility of Enforcement

Answer 17

A permanent injunction may not be feasible if the court must supervise the enforcement of the judgment. Enforcement is feasible when the court has personal jurisdiction over the D. If the D disobeys the court order he can be held in contempt of the court. Here,

Question 18

Permanent Injunction: Balancing of Hardships

Answer 18

The P’s hardship if the injunction is not granted must outweigh D’s hardship if the injunction is granted. If encroachment is negligent courts will balance but tend to favor P; if intentional, no balancing. If nuisance, courts will balance hardships. Here,

Question 19

Permanent Injunction: Defenses (Lack of Defenses)

Answer 19

The D can raise defenses of Laches, Unclean Hands, Freedom of Speech, and Criminal act to block a permanent injunction. Here,

Question 20

Permanent Injunction: Defenses - Laches

Answer 20

Laches refers to the P sitting on his rights. If the P’s inaction encouraged or allowed the D to act to his detriment, then the courts will not allow the permanent injunction. Here,

Question 21

Permanent Injunction: Defenses - Unclean Hands

Answer 21

A P must come into equity with “clean hands.” A P who is guilty of misconduct related to the transaction will be barred from obtaining a permanent injunction. Here,

Question 22

Permanent Injunction: Defenses - Freedom of Speech

Answer 22

A permanent injunction will not be issued if the D is exercising his right to free speech or the injunction would be characterized as a prior restraint. Here,

Question 23

Permanent Injunction: Defenses - Criminal Act

Answer 23

Equity will not enjoin crime. Here,

Question 24

K Damages - Expectation Damages

Answer 24

Expectation damages relate to the benefit the P expected to get out of the contract. It puts P in the place he would have been had the breach never occurred. Here,

Question 25

K Damages - Consequential Damages

Answer 25

Consequential damages are special damages awarded to P in addition to expectation damages for foreseeable damages at the time the K was entered into, suffered as a consequence of D’s breach. Here,

Question 26

K Damages - Incidental Damages

Answer 26

Incidental damages are those damages that are suffered by the P as a direct result of the breach. Such damages include storage fees, shipping fees, etc. Here,

Question 27

K Damages - Liquidated Damages

Answer 27

Liquidated damages are specified in the K. For a liquidated damages clause to be valid, actual damages must be difficult to calculate, and the amount specified in the clause must be a reasonable approximation. P cannot recover BOTH actual and liquidated damages. Here,

Question 28

K Restitution

Answer 28

If a K fails due to breach or unenforceability after P rendered part or complete performance, then P can get restitution damages under a quasi contract for the value of the benefit conferred, or the P can get the specific property back if it is unique and D is insolvent. This is to avoid D’s unjust enrichment.

If P is the breaching party, traditionally they could not recover any benefit conferred e.g. down payment on K, but modernly recovery is allowed if it is not greater than the K amount and recovery is reduced by D’s damages. Here,

Question 29

Specific Performance - Cha Cha Is Fairly Difficult

Answer 29

Specific performance is a court order for the D to perform under the terms of the K. P must be able to show 1) certain/definite K terms, 2) conditions satisfied, 3) inadequate legal remedy, 4) feasibility, and 5) defenses don’t apply. If the court orders specific performance and the property delivered is defective then the P’s purchase price will be discounted accordingly. Here,

Question 30

Specific Performance: Certain and Definite Terms

Answer 30

The K must be valid and the terms must be more certain and definite stating party obligations that would normally be required for an action seeking money damages. Here,

Question 31

Specific Performance: Contract Satisfied by P

Answer 31

A P will not be able to obtain SP unless she has fulfilled ALL her conditions under the K and is ready to perform or is excused from performing. Here,

Question 32

Specific Performance: Inadequacy of Legal Remedy

Answer 32

Money damages MUST be inadequate for the court to order SP. Money damages may be too speculative, D has insufficient funds, or the property is unique. Here,

Question 33

Specific Performance: Feasibility of Enforcement

Answer 33

The court must be able to enforce the K and supervise problems that may arise. Enforcement is difficult when the K terms are indefinite and long-lasting or when the defendants, land, or chattels are outside the court’s territorial jurisdiction. Here,

Question 34

Specific Performance: Defenses to Performance

Answer 34

D can raise the defenses of laches, unclean hands, and unconscionability to block specific performance. Here,

Question 35

Specific Performance: Defenses to Performance - Laches

Answer 35

Latches refers to P sitting on his rights. If the P’s inaction encouraged or allowed D to act to his detriment, then courts will not allow specific performance. Here,

Question 36

Specific Performance: Defenses to Performance - Unclean Hands

Answer 36

A P must come into equity with “clean hands.” P who is guilty of misconduct related to the transaction will be barred from obtaining specific performance. Here,

Question 37

Specific Performance: Defenses to Performance - Unconscionability

Answer 37

An unconscionable K must be more than a bad deal, it has grossly unfair terms as tested at the time of K formation. Here,

Question 38

K Rescission

Answer 38

Rescission occurs when the original contract is voided and the deal is called off. Grounds for rescission include 1) mistake (mutual/unilateral) 2) misrepresentation (innocent/fraud) 3) coercion, 4) undue influence, or 5) illegality. Here

Question 39

K Rescission - Defenses: Laches

Answer 39

Laches refers to the P sitting on his rights. If the P’s inaction encouraged or allowed D to act to his detriment, then the courts will rescind the K. Here,

Question 40

K Rescission - Defenses: Unclean Hands

Answer 40

A D who is guilty of misconduct concerning the transaction will be barred from obtaining a rescission. Here,

Question 41

K Rescission - Defenses: Election of Remedies

Answer 41

P must sue for rescission first, and if the K is upheld he can sue for money damages. If P sues for money damages first (not rescission), this is considered an affirmation of the validity of the K. Here,

Question 42

K Rescission - Defenses: Estoppel

Answer 42

Rescission may be barred by reasonable detrimental reliance on the voided K. Here,

Question 43

Reformation

Answer 43

Reformation occurs when there is a valid K, but the writing must be changed to make it conform to the parties’ previous understanding or agreement. Grounds for reformation include 1) mistake,(mutual/unilateral), 2) misrepresentation (innocent/fraud) 3) unclean hands or 4) laches. Here,