Remedy 21-30 Flashcards
What are damages for trespass to land?
Either:
The diminution in value of the property; OR
The cost to repair the property.
Priority: Low
What is a Temporary Restraining Order (TRO)?
When is it available?
An emergency remedyused to maintain the status quo pending the outcome of a hearing or application.
It is ONLY available when the plaintiff will suffer immediate and irreparable harm.
Priority: HIGH
What must party show to receive a TRO on notice to the other parties?
The court will analyze the same factors as a preliminary injunction.
Priority: HIGH
For an ex parte TRO, what must the moving party do?
Provide specific facts in a sworn statement showing immediate and irreparable injury, injury, loss, or that damage will resultbefore an adverse party can be heard;
Certify in writing any efforts made to give notice to the adverse party and why notice should not be required; AND
Give security in an amount that the court deems proper.
*The United States, its officers, and its agencies are not required to give security.
Priority: HIGH
What must the moving party show for a Preliminary Injunction?
A likelihood of success on the merits;
A likely threat of irreparable harm;
Balancing of hardships (in favor of the moving party);
An injunction is in the public interest;
Notice to the adverse party; AND
Security (post a bond) in an amount the court deems proper.
Priority: HIGH
What must be shown for a Permanent Injunction?
Inadequate legal remedies;
A protectable personal or property interest;
Feasibility of enforcement;
A balancing of hardships (to both parties); AND
No valid equitable defenses.
Priority: Medium
When is an Equitable Lienavailable?
If a defendant:
Wrongfully acquiredtitle to property; AND
Would be unjustly enriched if allowed to keep the property. (The court will force the sale of the property and the plaintiff will receive the proceeds).
Priority: Medium
When is a Constructive Trust (used to prevent unjust enrichment resulting from wrongful conduct) available as a remedy?
If the defendant:
Wrongfully acquiredtitle to property; AND
Would be unjustly enriched if allowed to keep the property.
*The court will require the defendant to hold the property as a trustee, and then return it to the plaintiff.
Priority: HIGH
When is replevin (allows recovery of specific personal property) available as a remedy?
If:
The defendant is wrongfully withholding personal property;
That the plaintiff has a right to possess.
*A plaintiff may recover property before trial IF there is a preliminary judicial hearing and the plaintiff posts bond.
Priority: Low
When is Ejectment(recovery of specific real property) available as a remedy?
If:
The defendant has actual possession of the property;
The defendant is wrongfully withholding the property; AND
The plaintiff has a right to possess the property.
Priority: Medium
