remedies part 2 Flashcards
Compensatory damages
Tort: The goal is to put plaintiff in the position he or she would have been in had the injury not occurred
Contract: the goal is to put P in as good of a position as if D had performed (expectation)
Compensatory damages must have been:
CAUSED by defendant (but for D’s act, no injury)
FORESEEABLE at time of the breach of duty/ time of K
CERTAIN: law will not award speculative damages-must prove with reasonable certainty.
** exception: pain and suffering damages
UNAVOIDABLE (law will not allow recovery for any losses that P could reasonably avoid. P must take steps a reasonable person would to avoid loss)
Form of damages judgment
The judgment must be a single lump sum payment that is discounted to present value, without taking inflation into account (except in jurisdictions following the modern rule).
Nominal damages
Damages awarded to establish or vindicate the plaintiff’s rights where the plaintiff has no actual injury.
*permissible in BOTH contract and tort.
but depends on COA- will not be available in certain cases where actual injury must be proven, like negligence
Punitive damages
The purpose is to punish the defendant for willful, wanton, or malicious conduct. It is also possible for plaintiff to receive punitive damages when the defendant’s conduct shows a reckless disregard for others.
P must first be awarded compensatory or nominal damages. Available in tort cases but not contract.
Restitution damages
Seek to avoid unjust enrichment by defendant. Calculated based on the value of the benefit to defendant.
Tort: D must benefit (i.e. has to take something) & can’t get if the property is destroyed
Most commonly given where P not injured but D benefits, but can be where there is both an injury to P and a benefit to D but the benefit to D is greater in value than P’s injury.
due process limit on punitive damages
Rule: punitive damages must not be grossly excessive.
Test- did D have fair ntc of the poss. magnitude?
factors: reprehensibility of D’s conduct, disparity b/w actual or potential harm and the damages award, difference between damages award and criminal penalties.
Generally must not be more than 10 times compensatory.
replevin
legal restitutionary remedy that allows P to recover specific chattels wrongfully taken or detained.
Requirements: a) P has a right to possession;
b) D wrongfully withheld the property.
P can recover the chattel before trial by posting bond. BUT D can defeat by filing redelivery bond.
Ejectment
A legal restitutionary remedy that restores possession of real property to the plaintiff when defendant is wrongfully in possession.
Requirements: a) P has a right to possession;
b) D wrongfully withheld the property
Main examples: holdover tenant, adverse possessor. NOT where D is a trespasser.
Constructive trust
An equitable restitutionary remedy implied in law when allowing defendant to retain the property would result in unjust enrichment.
-D is treated as trustee of the property and his only duty is to convey the property to P.
Requirements
a) Majority- P must show that legal remedies are inadequate (often D insolvent, unique prop.)
b) D must have title to prop P seeks a trust on, but P may trace to proceeds from wrongfully acquired property
i) Can only be imposed on property bought from proceeds if D has title to it
ii) Cannot be imposed on property improved w/ P’s property or proceeds from P’s property
- P is allowed to get the increase in value of prop
- BFP w/ legal title prevails over P
- P prevails over unsecured creditors
- because of req. that D have title, can’t impose on a thief who still has possession of prop he takes from P. Must seek replevin/ejectment. If thief sells stolen property, then can trace proceeds of the prop and impose trust on that new property.
- also- can have title on money in a bank acct
Equitable lien
-Equitable remedy imposed by law in order to prevent unjust enrichment. The lien can then immediately be foreclosed and the property sold.
a) legal remedy must be inadequate (insolvent D)
b) D must have title to prop P seeks a lien on, but P may trace to proceeds from wrongfully acquired property
* *Can impose on property improved with P’s property or proceeds from P’s property**
- If the proceeds are insufficient, P can obtain a deficiency judgment (better to use this if prop value drops b/c no deficiency in constructive trust)
- BFP w/ legal title prevails over P
- P prevails over unsecured creditors
- legal remedy must be inadequate (insolvency)
Note: because of req. that D have title, can’t impose on a thief who still has possession. Must seek replevin/ejectment. If thief sells stolen property, then can trace proceeds of the prop and impose trust on that new property.
permanent injunction
D is ordered to perform an act or to refrain from engaging in certain conduct or activities. It is issued after a full trial on the merits.
- Inadequate legal remedy (ex: replevin may be inadequate b/c of the redelivery bond; ejectment may be inadequate if sheriff refuses to act; damages may not compensate, be too speculative, encourage multiplicity of suits, or D may be insolvent)
- Feasible to enforce an injunction (mandatory injunction difficult to supervise unless it is something simple like executing a deed or conveyance)
- Balance of hardships- hardship to D or public must not outweigh benefit P seeks (must be gross disparity to deny)
- Defenses (laches, unclean hands, interference with free speech, equity cannot enjoin a crime)
Preliminary injunction
An order to maintain the status quo pending trial on the merits but after a court hearing.
Irreparable injury- will P suffer injury while awaiting trial? money damages compensate?
Balance of hardships- P’s harm must outweigh D’s harm if injunction granted
Likelihood of success on the merits
Note: party seeking must generally post a bond to reimburse D if an injunction injures D and P does not succeed on the merits.
Also requires notice.
TRO
Issued pending a hearing to determine whether a preliminary injunction should be issued. Purpose is to preserve status quo.
Test:
Irreparable injury
Likelihood of success on the merits
TROs can be issued w/o notice, but must make a strong showing why it’s not required. Usually, give notice.
Can be ex parte (w/o adversarial proceeding)
Limited to 10 days, 14 in federal court.
difficulties with mandatory injunction enforcement
- if the act is one requiring great taste, skill, or judgment, an injunction will not issue.
- If P is asking for a series of acts over a period of time, the showing must be great to issue an injunction.
- If an out of state act is required, an injunction will issue only if defendant is a resident of the state where the court is located
unclean hands
the plaintiff must not himself be guilty of any wrongful conduct with respect to the transaction or subject matter of the lawsuit
(i.e. only bad conduct related to the lawsuit is relevant)
laches
when a party unreasonably delays in asserting an equitable claim and the delay results in prejudice to the other party
the clock to bring a claim starts to run when P learns of the injury
laches cannot be an issue where SOL runs (b/c then claim barred anyway). only before that.
who is bound by an injunction?
the parties
employees and agents acting with notice
others acting in concert with notice
contempt
civil contempt- money (fine); imprisonment (where D can be released as soon as he complies)
criminal contempt- money or imprisonment where the sentence is fixed
what remedies available if property destroyed?
compensatory damages only
formula: (value at time of destruction - salvage) + interest
what remedies available if property damaged?
compensatory damages only
measure: either diminution in value or cost of repair
what remedies available if dispossessed of property?
damages (market value at time of conversion + interest, or lost use if minor) restitution damages replevin mandatory injunction (if chattel unique) constructive trust equitable lien self-help: reasonable force to recapture
what remedies available if D trespasses on P’s property?
compensatory damages
restitution damages (for value of D’s land)
nominal damages
injunction (to avoid multiplicity of suit)
what remedies available if D dispossesses P of his real property?
ejectment NO injunction (seek ejectment) constructive trust equitable lien compensatory damages restitution damages
