Rules Flashcards
Temporary restraining order
A temporary restraining order is an EMERGENCY ORDER imposed to maintain the status quo until regular, adversarial hearing may be held on motion for injunction. It can be issued after notice and a hearing or ex parte if sufficient showing of urgency
The moving party must
- give the nonmoving party notice of the TRO, unless it can make a STRONG showing why notice should not be required;
- prove they will suffer irreparable injury where a PI can be obtained, and
- show the likelihood of succeeding on the merits.
Preliminary injunction
A preliminary injunction is an order that maintains the status quo until a trial on the merits can be held and is imposed after notice and a regular, adversarial court hearing.
The moving party must show that
- they are likely to prevail on the merits, and
- they will suffer irreparable injury before the trial can be held unless PI is granted. Irreparable injury is weighed against any hardship to the defendant if the PI is granted.
Specific performance
Specific performance is a mandatory decree or injunction that orders a contracting party to perform that which she has promised to perform under the contract.
To obtain specific performance:
- there must be a contract with definite and certain terms
- the plaintiff must have already performed or be ready and able to perform all of their conditions under the contract
- the legal remedy must be inadequate
- it must be feasible for the court to enforce
- the defendant must not have any defenses (unclean hands, laches, unconscionability, mistake or misrepresentation, SOF)
Replevin
Replevin is used to recover specific chattels WRONGLY TAKEN and DETAINED by a defendant BEFORE TRIAL.
Plaintiff must show that
- Plaintiff has a right to possession
- Wrongful withholding by defendant
Replevin may be inadequate to recover unique chattels because of difficulty in recovering and because defendant can retain by posting bond.
Compensatory damages
Compensatory damages aim to put the nonbreaching party in the position they would have been in had the promise been performed. in most cases, plaintiff will receive expectation damages sufficient to purchase substitute performance (the benefit of the bargain).
Are equitable remedies available?
Consider:
- is the legal remedy inadequate?
- is it feasible to enforce the equitable decree?
- is the hardship to the defendant considerably greater than the benefit to the plaintiff
Incidental damages
Incidental damages are expenses reasonably incurred in inspection, receipt, transportation, care, custody of goods, and other expenses reasonably incident to breach.
Consequential damages
Damages for breach of land sale contract
In a breach of a land sale contract, damages are measured by either the out-of-pocket loss, or the benefit of the bargain (the difference between the contract price and the fair market value of the land).
Rescission
Rescission allows a plaintiff to wipe out the contract and restore the status quo prior to the contract so long as the defendant does not have any legitimate defenses.
Grounds for rescission
- mutual mistake of material fact
- unilateral mistake if other party knew or should have known
- unilateral mistake if hardship by mistaken party is so extreme it outweighs other party’s expectation
- misrepresentation of fact or law by either party as to a material factor that was relied upon
- other grounds, like duress, undue influence, illegality, lack of capacity, and failure or consideration
Unclean hands
Unclean hands is a defense where the plaintiff is guilty of some INEQUITABLE or WRONGFUL conduct regarding the same transaction as to which they are suing the defendant.
Laches
Laches is a defense where the plaintiff took an UNREASONABLE delay in initiating an equitable claim that results in PREJUDICE to the defendant.
The period for laches may be shorter (but never longer) than the comparable statute of limitations. Laches begins to run from the time plaintiff has knowledge that one of his rights has been infringed.
If laches applies, award money damages instead.
Impossibility
Impossibility is a defense where the injunction is impossible to carry out
Inadequacy of legal remedy
The legal remedy is usually considered inadequate with land sales/use, or when the goods are rare or unique, i.e. the plaintiff would not be able to buy replacement goods with a monetary recovery.
Constructive trust
A constructive trust compels a person holding title to wrongfully obtained property to convey the property to its rightful owner. Apply when property acquired at plaintiff’s expense is worth as much or more than claim.
Plaintiff must show
- Defendant has TITLE and defendant’s acquisition of title can be TRACED to property that defendant wrongfully acquired
- Defendant’s retention would result in unjust enrichment
- Plaintiff has no adequate remedy at law (damages inadequate)
Equitable lien
An equitable lien can be placed on defendant’s property to secure payment of debt owed to plaintiff; property placed in a court-directed sale and proceeds go to plaintiff. If less than the fair market value, deficiency judgment issued for the difference.
Plaintiff must show that
- defendant MISAPPROPRIATED plaintiff’s property, creating a debt or obligation to pay
- defendant holds title to which the wrongfully obtained property can be traced
- defendant’s retention of the plaintiff’s property would result in unjust enrichment
- legal remedy is inadequate
Apply when property acquired at plaintiff’s expense is worth as much or LESS than the claim
Ejectment
Ejectment restores possession of real property from which plaintiff was wrongfully ousted; only applies if defendant has possession
Requirements:
- Plaintiff has a right to possession
- Wrongful withholding by defendant
Punitive damages
to punish a defendant for “willful, wanton, or malicious conduct”; generally limited to intentional torts, or cases of reckless misconduct.
Requirements
- Plaintiff must first have been awarded compensatory or nominal damages. (Punitive damages cannot stand alone.)
- Can also be attached to restitutionary damages
- Plaintiff’s fault must be greater than negligence
- Should be relatively proportionate to actual damages (not exceeding 10x compensatory damages)
Due process limitation on punitive damages
Punitive damages that are “grossly excessive” are invalid under the DPC of the Fifth and Fourteenth Amendments.
Key issue: Did the defendant have FAIR NOTICE of the possible magnitude of punitive damages, considering
- Reprehensibility of their conduct
- Disparity between actual/potential harm suffered by plaintiff and the punitive award
- the difference between punitive damages award and the criminal or civil penalties authorized for comparable misconduct
Restitutionary damages (contract)
Where contract was materially breached:
- nonbreaching party can recover the value of their performance, even in excess of contract rate.
- breaching party can recover (not to exceed contract rate and reduced by any damages suffered because of the breach
Where the contract is unenforceable, recovery depends on nature of benefit conferred:
- Specific restitution available for recovery of tangible property
- Where benefit was goods or services, plaintiff was entitled to the value thereof
- In cases of impossibility contract rate is maximum
unconscionability (defense)
determined at time of formation, considering:
- inadequacy of consideration that is either grossly inadequate or coupled with an unconscionable contract or “sharp practices”
- enforcement will cause disproportionate hardship to defendant or public that outweighs the harm the plaintiff will suffer > award damges instead
Statute of Frauds (defense)
Can be a defense if applies (MY LEGS).
But for land sales, if one has rendered valuable part performance (two out of payment, possession or improvements) in reliance on contract, specific performance will be granted
Reformation
modifying written instrument to reflect parties’ original understanding
