Remedies at Law

Question 1

Restitutionary Remedies

Answer 1

A restitutionary remedy seeks to prevent the unjust enrichment of the plaintiff by returning to the claimant any benefits unjustly conferred by the claimant on the defendant.

Question 2

Replevin

Answer 2

Replevin is an action at law for the recovery of specific chattels that have been wrongfully taken or detained.

Not allowed for real property or intangible personal property. Not allowed for Adverse Possession.

Question 3

Replevin - Damages

Answer 3

Note that any damages suffered from the deprivation may also be recovered.

The measure of damages is either the market value of the chattel at the time of the deprivation minus the market value at the time the action is commenced (if the chattel is held for sale) or the value of lost use (rental value or lost profits).

If Chattel is not returned, Plaintiff gets the present value.

Question 4

Ejectment

Answer 4

Ejectment is an action at law to recover possession of real property.

Elements:

(1) proof of legal title;
(2) proof of right to possession; and
(3) wrongful withholding by the defendant.

Question 5

Ejectment - Damages

Answer 5

Entitled to rental value of the property (Mesne Damages)

Question 6

Improvements by Defendant

Answer 6

Common Law: Plaintiff takes back property with improvements (no compensation to defendant)

Florida: Defendant entitled to compensation in an action for betterment if:

• Improvements before commencement of action
• Title derived from judicially appointed authority (government, executor, administrator, registered deed)
• good faith belief title was valid
• assessed value of improvements will be a setoff against plaintiff’s mesne damages

Question 7

Quasi-Contract

Answer 7

Quasi-contracts, or contracts implied in law, are restitutionary actions designed to prevent unjust enrichment of the defendant.

Here, parties have not entered into a contract but the court imposes an obligation on the part of the defendant to repay the plaintiff “for goods sold and delivered,” “for work and labor performed,” or “for money had and received.”

Question 8

The most common examples of situations in which a quasi-contract will be imposed as a remedy in Florida are:

Answer 8

(1) when a payment has been made by mistake;
(2) when the enrichment at issue is the result of fraud, misrepresentation, oppression, or other unlawful conduct; and
(3) when the enrichment at issue is the result of the claimant providing emergency services to the defendant (such as a hospital treating an unconscious patient).

Question 9

Implied-in-Fact Contract

Answer 9

Implied-in-fact contracts are actual contracts that are created by the conduct of the parties, e.g., raising one’s hand at an auction to bid for goods.

At common law, quantum meruit (literally meaning, “for so much as he deserves”) was the proper recovery for breach of an employment contract to cover services rendered.

Question 10

Compensatory Damages

In General

Answer 10

This remedy provides an award of damages in the form of a money judgment to the aggrieved party to compensate for any loss or injury. It is recognized as a substitutionary form of relief in that it gives the plaintiff money as a form of compensation.

Question 11

Compensatory Damages
Tort Cases (Types)

Answer 11

Objective:
Make the plaintiff whole by awarding money to make up for his loss or injury.

(a) General damages are those that arise naturally from the
commission of a tort. They do not need to be pleaded specially in a complaint. Such damages need not be foreseeable to be recoverable.

(b) Special damages must be pleaded specially.
- Injury was caused by the defendant
- Foreseeability is required
- Prove his damages conclusively; no speculation is allowed.

(c) Pain and suffering, which is another form of nonpecuniary harm recognized by the law.

Question 12

Compensatory Damages
Tort Cases
Economic Loss Rule

Answer 12

Purely economic damages (often lost profits) are barred when:
a) there is privity of contract between the parties and there is no alleged physical injury to a person or property that is not the subject of the contract; or

b) the claim at issue is one in strict product liability against a manufacturer or supplier of an allegedly defective product and there is no alleged physical injury to a person or to property other than the allegedly defective product.

Question 13

Compensatory Damages

Contract Cases

Answer 13

In contracts cases, the objective of damages is not only to compensate for loss but also to protect the plaintiff’s expectation interest by awarding a sum of money equivalent to what he would have received had the contract been performed.

Question 14

Compensatory Damages

Although Florida will enforce a liquidated damages provision in a contract, such a provision will not be enforced if it is

Answer 14

determined that the provision is a penalty.

Question 15

Compensatory Damages

Real Property

Answer 15

(a) the cost of repair rule entitles the injured party to recover the cost of restoring the realty to its condition immediately prior to the injury; and
(b) the diminution in value measure of damages entitles the injured party to recover the difference between the value of the real property immediately before and immediately after the injury

Question 16

Compensatory Damages

Limitations on Recovery

Answer 16

• Mitigation
• Collateral Source Rule (Can get recovery twice as long as both are not from same defendant. However, Florida allows off-set from social security benefits, disability insurance payments etc)
• Florida also limits who can recover for wrongful death to close family and personal representative

Question 17

Nominal Damages

Answer 17

Nominal damages are awarded in situations where the plaintiff’s rights have been violated, but no loss is sustained or the extent of injury cannot be measured. Under Florida law nominal damages are presumed to be one dollar.

Question 18

Punitive Damages

Answer 18

A sum of money may be awarded in addition to compensatory damages to punish the defendant for willful, wanton, or malicious conduct and to act as a deterrent against such future conduct.

Question 19

In actions in Florida state courts, a plaintiff may not request punitive damages in a complaint. Instead

Answer 19

The plaintiff must seek leave to amend its complaint to add a claim for punitive damages. A court should allow such an amendment only if the plaintiff submits evidence establishing its prima facie entitlement to recovery of punitive damages under relevant law

Question 20

A defendant may only be held liable for punitive damages under Florida law if it is personally guilty of either

Answer 20

intentional misconduct or gross negligence

Question 21

Interest

Answer 21

There are two types of interest, prejudgment and post-judgment.

(1) Prejudgment interest is calculated from the time the injury occurred to the date of judgment.
(2) Post-judgment interest is calculated from the time the judgment is entered. Post-judgment interest is awarded more often than prejudgment interest.

Question 22

Attorney’s Fees

Answer 22

Under Florida law, attorneys’ fees are not considered to be part of a compensatory damages award. A party is not entitled to recover its attorneys’ fees under Florida law unless there is specific statutory authorization for such
an award or the award of attorneys’ fees is provided for by contract.

Question 23

Liquidated Damages

Answer 23

Liquidated damages are those provided for by contract between the parties and are valid.

LD provisions are not enforced when there are no
damages, even if the contemplated breach occurs.

Party can still get specific performance unless the contract states that the liquidated damages will be the only available remedy

Question 24

A declaratory judgment

Answer 24

allows a claimant to obtain a judicial resolution of a contested issue. There must be an “actual controversy”

Question 25

Attachment

Answer 25

reaches real or other tangible property in the possession of the judgment-debtor

Question 26

Garnishment

Answer 26

reaches property held by a third-party payable to the judgment-debtor including wages and bank accounts