Remedies Rules Flashcards
Specific Performance – Very Many DICE games are decided by specific performance
- *V**ALID CONTRACT
- *M**UTUALITY of remedy – traditionally, a mutual remedy was required for specific performance, but modernly, specific performance can be granted without mutual remedy
- *D**EFENSES – No defenses must exist to the contract (including unclean hands, laches, mistake, misrepresentations, statute of frauds, or unconscionability).
- *I**NADEQUATE legal remedy available
- *C**ONDITIONS in the contract satisfied
ENFORCEMENT feasible by court
Types of Injunction – Try Praying Peacefully
TEMPORARY restraining order
PRELIMINARY Injunction
PERMANENT Injunction
Getting a Permanent Injunction – In Prisons Felons Bake
- *I**NADEQUATE legal remedy
- *P**ROPERTY right – traditionally, a property right was needed, but now only a legitimate protectable interest
- *F**EASIBILITY of enforcement
BALANCING hardships - Plaintiff’s BENEFIT versus the Defendant’s HARDSHIP
Getting a Preliminary Injunction – Sing Blues Loudly
- *S**TATUS QUO – Is Preliminary Injunction necessary to maintain status quo?
- *B**ALANCING hardships
- *L**IKELIHOOD OF SUCCESS – plaintiff must show that a permanent injunction is likely to be obtained
TORTS REMEDIES: COMPENSATORY DAMAGES
These are based on the injury to the plaintiff and are to put the plaintiff in the position she would have been in if the injury would not have occurred.
4 REQUIREMENTS (Focus on the injury to the Plaintiff):
1. Causation: The tortuous conduct actually caused the injury.
2. Foreseeability: The injury must have been foreseeable at the time of the tortious act.
3. Unavoidable: Plaintiff could not have avoided the injury. (Think: Mitigation).
4. Certainty: Damages cannot be too speculative.
o Plaintiff must show→ Past losses must be established with more certainty than future.
o Plaintiff must show→ Future losses must be shown that they are more likely to happen than not – “all or nothing rule”.
o A record helps to provide certainty
TORTS REMEDIES: SPECIAL DAMAGES VS. GENERAL DAMAGES
Special Damages: These are the economic losses. The basic certainty rules do not apply here. Calculation for special damages must be made with sufficient certainty. (Medical expenses / Lost earnings).
General Damages: Non-economic losses. The basic certainty rules do apply here. The jury may award any amount it wishes, subject to proper instructions (Pain and Suffering, Permanent Disfigurement).
TORTS REMEDIES: NOMINAL DAMAGES
Awarded when Plaintiff has no actual injury.
TORTS REMEDIES: PUNITIVE DAMAGES
Awarded to punish the defendant for willful, wanton or malicious conduct.
Plaintiff must first be awarded compensatory, nominal or restitution damages. Once these are awarded, than can add the punitive damages last!
- *Requirements**:
1. The defendant’s conduct must be reprehensible.
2. There must be disparity between the actual or potential harm suffered by the plaintiff and the punitive award.
3. Defendant’s fault must exceed negligence (i.e., intentional).
4. Damages must be awarded in an amount relatively proportionate to actual damages – (as actual damages go up, punitive damages go up). Supreme Court would limit Punitive Damages to a single digit multiple of actual damages (unless conduct facts are extreme)
TORTS REMEDIES: RESTITUTIONARY DAMAGES
Based on the benefit to the defendant, as judged by the value to the defendant
Cannot get both compensatory & restitutionary— write about both, show how both are potentially available to plaintiff, and then say that s/he is not entitled to both (award higher recovery)
Can get punitive damages as well as restitutionary if the underlying cause of action is a tort
TORTS REMEDIES: REPLEVIN
Type of restitutionary damages
Plaintiff recovers possession of specific personal property. Must establish that:
- Plaintiff has a right to possession, and
- There is a wrongful withholding by Defendant.
a. If Plaintiff can recover chattel before trial, Plaintiff must post a bond. - Sheriff, not Plaintiff, repossesses the property.
Bring up damages for lost use (compensatory) or benefit to Defendant (restitution) during the time of detention.
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TORTS REMEDIES: EJECTMENT
Plaintiff recovers possession of specific real property. Must establish that:
- Plaintiff has a right to possession; and
- There has been a wrongful withholding by Defendant (same test as replevin).
Only awarded against a Defendant who has possession of the property; not a mere trespass.
Property cross-over: Comes up a lot with a holdover tenant.
Sheriff ejects Defendant from the property
TORTS REMEDIES: CONSTRUCTIVE TRUSTS
Where the Defendant has improperly acquired property to which defendant has title. The defendant serves as “trustee” and must return the property to the plaintiff.
o Purpose is to prevent unjust enrichment. Defendant has acquired title to the property at the expense of another through fraud, undue influence, and/or mistake. (Remember: Title to the property can be a thief who has title to cash in his possession).
o In order to be imposed, defendant must currently have title to the property! (personal or real)
o Tracing: If the property is sold, the plaintiff can trace the property to whatever form it takes, as long as the trust res can be identified However, where withdrawals from a commingled account cause the balance to sink below the amount of the injured party’s claim, the victim may obtain an equitable lien only to the extent of the lowest intermediate balance of the account.
TORTS REMEDIES: EQUITABLE LIENS
Will be imposed on Defendant’s property to secure a debt – occurs with improperly acquired property to which Defendant has title. Must show that:
1. The wrongdoer misappropriated the plaintiff’s property under the circumstances creating a debt or an obligation to pay;
2. Plaintiff’s property can be traced to the property held by the defendant; and
3. The retention of property would result in unjust enrichment.
o There will be an immediate Court ordered sale of the property the monies received go to the plaintiff. If the proceeds of the sale are less than the FMV of the property when it was taken, a deficiency judgment will issue for the difference and can be used against defendant’s other assets.
Constructive Trusts and Equitable Liens can be used ONLY when the fact pattern indicates that he defendant has title to the property.
TORTS REMEDIES: INJUNCTION
The Defendant is ordered to do or refrain from doing something. It is almost always coupled with damages incurred in time period prior to obtaining injunction. 3 types:
PERMANENT INJUNCTION
o AFTER a full trial on merits one must show that s/he will incur irreparable injury while waiting for a full trial on the merits which is why P needs relief now.
o Parties, Employees and agents acting with notice & third parties acting with notice are bound by injunctions:
PRELIMINARY INJUNCTION: Issued PENDING trial on the merits. Court considers:
o Whether a preliminary injunction is necessary to maintain the status quo;
o Balancing of Hardships; and
o Plaintiff’s Likelihood of Success: Plaintiff must establish this probability.
TEMPORARY RESTRAINING ORDER (TRO): Pending hearing on temporary injunction. Must establish:
o Irreparable injury and Plaintiff’s likelihood of success.
PERSONAL PROPERTY TORTS REMEDIES
Interference with Chattels
o Compensatory damages: Actual damages suffered by impairment of the property or loss of its use; Loss of use only if the chattel is not easily replaceable.
o Restitutionary damages: If the defendant benefits from the use.
o Constructive trusts / Equitable liens: If the defendant is insolvent and has title and/or tracing facts involved
Damaged Property
o Compensatory damages: The difference between the value of the property immediately before and immediately after it was damaged + reasonable cost of repairs + damages resulting from the loss of use of the property, including loss of profit
Lost/Destroyed Property
o Compensatory damages: Full value of the chattel before destruction less salvage or difference between pre- and post- tort value
o Value: Typically market value, but if chattel is a unique item, may be measured by value to the owner
o May be able to get punitive damages if there is malicious conduct
