Remedies Bar Flashcards
Order to look for remedies and what 2 main substantive topics that you might be analyzing
(1) Compensatory Damages
(2) Restitution
(3) Injunction
Contracts
Torts
Define compensatory damages for tort remedies
Compensatory damages aim to restore the injured party to the position they would have been in had the wrongful act not occurred.
4 requirements for compensatory damages in tort
what does certainty apply to and not apply to?
what does foreseeable not apply to as much?
(1) Foreseeable: Applies less to special damages (e.g., loss of business) so these must be pleaded specifically
(2) Certainty: Damages must be able to be calculated with certainty, particularly those that occurred in the past. General damages do not require as much certainty (judge can instruct jury to award as much as required for pain and suffering. For special damages, must be certain.
(3) Causation - injury requiring damages are actual result of D’s conduct
(4) Unavoidable - P must seek to reasonably mitigate
Key Sentence at end of compensatory damages in terms of how judgment given
The judgment must be a single lump sum payment discounted to present value without taking inflation into account.
rule for nominal damages
Nominal damages may be awarded where there is no actual injury but the court seeks to vindicate the plaintiff’s rights
situations in which to bring up punitives
on every exam
- contracts - not allowed
- torts - allowed
- if fraud occurs in contract - jump to tort of fraud
3 requirements for punitives
(1) Actual damages awarded
(2) Willful or wanton conduct (wanton is cruel)
(3) Ratio of compensatory to punitive damages cannot exceed a single digit ratio in order to comport with due process
Rule for Restitution
Restitution seeks to prevent the defendant’s unjust enrichment and is measured by the value of the benefit the plaintiff conferred on the defendant.
If P can get compensatory damages and restitutionary damages - what is rule?
where both compensatory damages and restitutionary damages are available, the plaintiff can recover one but not both
4 types of restitutionary remedies in tort related to unjust enrichment
(1) Replevin
(2) Ejectment
(3) Constructive Trust
(4) Equitable Lien
List the rules for replevin
Under replevin, the court will order the defendant return the property back to the plaintiff. The remedy seeks to avoid the defendant’s unjust enrichment.
The plaintiff must post a bond in the case that the court wrongfully orders replevin, so that the defendant can be compensated for the loss of use. However, the defendant can defeat this by posting a redelivery bond, that would allow the defendant to retain possession of the item until the trial.
The plaintiff may also seek damages for loss of use during the time the defendant wrongfully took the property.
In regards to defenses, there will be no recovery if the item is sold to a BFP.
define ejectment and all rules
under ejectment, the court will order a defendant to return real property to the plaintiff, for instance, one who has been ousted. the plaintiff may also seek damages for loss of use.
- Note: D must be in possession. If crosses your land each day without permission, this is not ejectment, because he is not in possession.
overall header sentence for constructive trust
A constructive trust is an equitable restitutionary remedy that is imposed by the courts where the defendant’s retention of the property would result in unjust enrichment. The court construes the property as the defendant holding it in trust for the plaintiff.
3 requirements for constructive trust
(1) D has lawful title
(2) P’s property can be traced to the specific property, to the cash proceeds from sale of the property, or to new assets the defendant buys with the proceeds
(3) Unjust enrichment
discuss title held by defendant as relates to a thief
a thief does not have lawful title to the specific property, so a CT cannot be imposed on him. in such a case, the P should seek replevin from the thief.
however, a thief does have lawful title to cash proceeds from the sale of the item, so a CT can be placed on the cash.
talk about tracing
the plaintiff can use tracing to trace the proceeds of the wrongfully taken property.
her property
This is useful when the proceeds are more valuable than the property that was wrongfully acquired.
o Example: Thief steals sword. Thief sells sword for $500 and uses the $500 to buy a watch which is worth $750. P may impose a constructive trust on the watch. He may prefer this to replevin, because the watch is worth more than the sword.
talk about when a constructive trust is useful
A CT is useful when the value of the property has increased, as the plaintiff is allowed to recover the total value.
two advantages with a CT in general
priority over unsecured creditors
can obtain increase in value of proceeds
NOTES
o Priority over unsecured creditors
When D insolvent, P can recover the property itself, and gets at the front of the line of unsecured creditors, because the P is recovering his own property to which the unsecured creditors have no claim (though secured creditors have priority over P)
o Increased value in property
If the trust res has increased in value, the P will get the advantage of that increase.
o Note: If you steal ring, use proceeds to buy a house, house goes up in value, through a CT, I can make you give me the entire house and I’ll benefit from it’s increase in value. Think of it like a watch.
o A constructive trust cannot be imposed on property that was merely improved with the plaintiff’s property or merely improved with proceeds from the plaintiff’s property, but an equitable lien can be imposed in such cases.
o Example: Thief steals sword, sells for $500 and uses $500 to improve a table that Thief already owns. P cannot impose a constructive trust, but can seek an equitable lien.
define lowest intermediate balance rule
under both a constructive trust and an equitable lien, the plaintiff is entitled to the lowest intermediate balance, unless she can show that the defendant intended the subsequent deposit be for the plaintiff’s benefit
o Where the property has been commingled with other funds and withdrawals have reduced the account’s balance below the plaintiff’s claim, the plaintiff is entitled to the next lowest intermediate balance.
o With restitution such as a constructive trust and equitable lien, the law assumes the lowest intermediate balancing rule. This means it is presumed that the defendant is taking the D’s money out first, not the money it acquired unjustly.
discuss bailor and bailee relationship
In a bailment relationship, the bailor transfers physical possession of personal property (without transferring title) to the bailee. The bailee is obligated to return the item and to exercise due care.
The bailee can be sued for negligence otherwise.
o Note: Conversion requires the general intent but leaving ring on counter is not general intent. Note as well that you can go after thief for replevin or for monetary damages through conversion.
discuss transfer from a thief to a bfp
a thief does not have title to stolen property which means a transfer to a BFP, one who took for value without notice, does also not give the BFP title.
thus P may sue the BFP for conversion
Each successive transferee of the P’s property is a converter and liable for the value of the chattel on the date of that converter’s acquisition.
Replevin is also appropriate
Note on Tort of Conversion
* A defendant in a suit for conversion cannot claim BFP because the converter does not have lawful title.
discuss choice of remedies - can p get both
If a P recovers full payment from a tort feasor (e.g., through compensatory damages in a conversion matter), she may not recover against another tortfeasor
o In diamond ring example, P can recover compensatory damages from jewelry store owner, but a better bet is to go for the constructive trust because the house which thief bought with proceeds from ring has risen in value, and she will get the house and that value.
define equitable lien and all rules
An equitable lien is an equitable restitutionary remedy where the court grants to the plaintiff a security interest in the defendant’s property. the court may order the property sold and the proceeds of the sale can go to the plaintiff up to the amount of her claim (but not for more than this amount). the court does so in order to prevent unjust enrichment
The D must hold title to the proceeds or improvements
Tracing is allowed in an equitable lien, where the P can trace proceeds of the sale of her property to improvements the defendant has made to his property.
an equitable lien is the preferred approach when the value of the property has decreased, as the plaintiff may seek a deficiency action against the defendant.
like a constructive trust, the plaintiff has priority over unsecured creditors. Also like a constructive trust, sale to a BFP - one who takes for value without notice of the facts giving rise to the EL, cuts off the rights of the plaintiff.
listen to notes on CT and EL
- Example where both CS and EQ apply
o D misappropriates money from P and uses it to buy stocks.
o The court can impose an equitable lien if wanted to obtain security for the money misappropriated.
o The court can impose a constructive trust if the plaintiff wants to claim the stock itself
o If the property had gone up in value, the CT is advantageous. If the property had gone down in value, the equitable lien is advantageous in that the P can seek to recover any deficiency (an action is not allowed after imposition of a constructive trust. - Where the misappropriated money is used not to acquire title to property, but rather to improve it, only an equitable lien is available.
o Example
D misappropriates money from P and uses it to put new roof on home. P is entitled to an equitable lien on the property. P may not obtain a CT since title to the home was not obtained by use of the misappropriated money.
* Transfer to BFP cuts off equitable lien
* Note for both CT and EL, P has priority over unsecured creditors
EXAM TIP
* On essay, analyze both constructive trust and equitable lien and use the facts to explain which better remedy and why
Define an injunction
An injunction is an extraordinary form of relief in which the court orders the defendant to perform or stop performing an act. Injunctions are appropriate where a legal remedy is inadequate.
o NOTE – overlap with contract law where sale of real property with condition of entry but then buyer does not let you on property and puts up barricades – seek TRO to remove the barricades. Same applies to prelim injunction.
o Note: Also seek monetary damages for injuries incurred in the time period prior to obtaining the injunction.
what sentence do you start your tro analysis with
At issue is whether the plaintiff can obtain preliminary injunctive relief
Applies to TRO
Applies to preliminary injunction
define tro and preliminary injunction the rules up to its elements/requirements
A TRO (temporary restraining order) is an order granting preliminary injunctive relief up to the time at which a hearing for a preliminary injunction can be heard. Under the federal rules, a TRO is good for 14 days and may be extended for another 14 days with a showing of good cause. In state court, a TRO lasts for 10 days.
A TRO requires notice to the opposing party, unless the proponent of an ex-parte proceeding shows reasonable efforts to contact the opposing party or reasons why no notice should be given. Further, the plaintiff should put forth an injunction bond in case the court erroneously grants the order, so that the proceeds from the fund will cover the defendant for such an order.
3 requirements for a TRO or a prelim injunction
(1) Irreparable injury (from date of filing until date of preliminary hearing or date of trial) (why it is an emergency? what is the harm that will occur if forced to wait for a prelim or for a trial?);
(2) Likelihood of success on the merits; AND
(3) Balancing of the hardships between the plaintiff and the defendant (and public), that favors the plaintiff, where the court looks at the hardship upon the plaintiff if the request is denied versus the burden on the defendant/court if the request is granted. A court will not conduct a balancing test if the defendant’s conduct was willful.
Note: TROs are not appealable while preliminary injunctions are
key sentence for preliminary injunction
A preliminary injunction is used to preserve the status quo between the parties until a trial can be heard on the merits.
The test for a preliminary injunction is similar to that of a TRO
* Note: Including notice and bond
On exam, analyze both TRO and preliminary injunction. Analyze each element just once, and then reference back to analysis in prelim injunction section. Identify difference between the 2 remedies and when each one would likely be sought and why (or perhaps both should be sought)
define 4 requirements for a permanent injunctoin
A permanent injunction is an extraordinary form of relief available where a legal remedy is inadequate.
4 requirements
(1) Inadequate legal remedy (unique goods, real property);
(2) Balancing of the hardships between the P and the defense (and public) that favors the P where the court weighs the hardship to the P if the injunction is not granted vs hardship to D and public if granted; the court will not conduct the balancing test if the D’s conduct was willful;
(3) Feasibility of enforcement where court assesses the degree of difficulty in enforcing its order. Negative injunctions (ordering the defendant to stop doing something) are easier to enforce; the court may use its civil contempt powers if the defendant does not cease the activity. On the other hand positive injunctions where the defendant must perform an act or those involving non-parties or individuals in another jurisdiction lend this requirement more difficult to meet; AND
(4) No defenses that would invalidate the request.
4 defenses to a permanent injunction
(1) Laches
- Where P unreasonably delayed in bringing suit causing prejudice to the D
(2) Unclean Hands
- Where P’s conduct was wrongful as related to the transaction at hand
(3) Impossibility
- Where the D cannot perform the act or refrain from performing the act
(4) Freedom of speech
- where the D must be permitted to exercise his First Amendment constitutional rights of freedom of expression
Can you seek a TRO/prelim inj/perm inj for invasion of privacy or other personal rights?
yes
listen - exam tips
o Exam Tip – Issue Spotting
If the call of the question isn’t specific, the facts will guide if a plaintiff should seek a TRO, prelim injunction, permanent injunction (or specific performance).
TRO/prelim injunction when the act P is trying to prevent is imminent and cannot be undone
define contempt
Contempt is a court ordered sanction in either the civil or criminal context. Civil contempt imposes jail or a fine to coerce the defendant to abide with the court order.
For a fact pattern on misappropriation of money, what 4 types of damages do you seek?
(1) Compensatory damages for conversion
(2) Restitution for any unjust enrichment
(3) Constructive trust - if you can trace the money
(4) Equitable lien - if money is used to improve the property
If your personal property is completely destroyed what are the damages?
If the chattel is completely destroyed, you recover the value of the chattel at the time it was destroyed, less any salvage, plus interest
If injury to chattels, what do you recover?
Cost to repair or the decrease in value
If you have been dispossessed of your chattel - what four types of damages should you seek?
(1) Conversion, for FMV at time of conversion along with interest and payment for expenses in pursuing property
(2) Replevin
(3) Constructive Trust
(4) Equitable Lien
(5) Unjust enrichment through quasi contract
Tort damages to real property listen
several types of tort to real property
Trespass without damages
Trespass causing severance
Trespass causing other injury
Trespass causing ouster
Encroachment
Destruction or damage to real property
Destruction of, or interference with easements
Waste (voluntary and permissive)
For trespass - what are the types of damage you will seek?
- If no injury, nominal damages and an injunction
- If severance, damages, restitution, injunctive relief
- If trespass causing ouster, I will seek ejectment and compensatory damages for loss of use
- for encroachment - compensatory damages and injunctive relief
- for someone destroying my property - I will seek a TRO, I will see compensatory damages measured by the difference in the value of the land before and after tort
- if someone is interfering with my easement - I will seek compensatory damages and injunctive relief
- if someone committed waste - either voluntary or permissive - I will seek damages for the decrease in value of the land or the cost to repair, and I will seek injunctive relief
