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44 Cards in this Set

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Is there constitutional right to jury in equity cases
NO.

(But you can request an advisory jury)
What is the BROAD general approach to take with ANY equity question?
•Is a legal remedy adequate? If not, is equitable relief feasible?

•What kind of equitable relief is requested?

•Are the specific requirements for the remedy sought satisfied?

•Are there equitable defenses to bar the relief?
Statutory right to jury trial in equity in 2 situations:
Statutory quiet title action;

D files plea in equity
Is there a right to equitable relief?
NO.

always discretionary based on balancing of the hardships.
How can a review of decisions on Equitable Claims be sought?
o Motion to vacate or modify – must be DECIDED w/in 21 days of judgment, or court must suspend decree w/in 21 days after entered.
May be based on newly discovered evidence OR any error of law or fact

o Bill of Review - filed w/in 6 months of entry of decision. May be based on newly discovered evidence or error of law on face of record

o Appeal – in dom. relations cases, appeal is a right, heard by Court of Appeals. In ALL other cases, appeal is discretionary – petition Supreme Court
• petition process: file notice of appeal in TC w/in 30 days of the date of the decree, THEN file petition for appeal in SC w/in 3 calendar months
What are the broad, GENERAL requirements for equitable relief?
1. The legal remedy must be inadequate – eg, when money damages won’t make P whole

2. The equitable remedy must be feasible --- and is ALWAYS discretionary
In what situations is the legal remedy for a cause of action considered INADEQUATE? (Eg, when equity applies)
1. Subject matter is unique or rare (includes all R.E.)
2. Where damages would be speculative
3. Where D is insolvent
4. Where multiple lawsuits would be required
5. Where irreparable harm will occur
In what situations is an equitable remedy considered NOT FEASIBLE? (Eg, no equitable relief can will be declined on the basis of feasibility)
1. The person who would be ordered to act OR the property subject to the suit MUST BE IN THE FORUM STATE (Va).

2. the action involved is complex
3. the act involves unusual skills
4. the relief involves matter of judgment or taste
5. relief would require extensive supervision
Will equity enforce PERSONAL SERVICES Ks?
NEVER
Torts for which injunctions are NORMALLY available:
1. continuous or repeated trespass to land
2. conversion of a unique chattel
3. to stop unfair competition
Torts for which injunctions are SOMETIMES available:
1. to eliminate a nuisance -- provided it is a PRIVATE nuisance (but NOT if it is a PUBLIC nuisance)

2. to prevent waste (damage to real property) - but NOT if it’s ameliorative waste (changes character but increases value)
Injunctions USUALLY NOT available for these torts:
1. Defamation and commercial defamation (trade libel)

2. * Invasion of privacy (UNLESS involves unauthorized use of person’s name or picture w/o permission for commercial purposes; VA statute creates cause of action & right to seek injunction; VA does not recognize cause of action for invasion of privacy)
Will equity enjoin PENDING criminal proceedings? WHat about threatened criminal proceedings
NO.

Will enjoin threatened proceedings only under extraordinary circumstances
Is temporary injunctive relief available? When/how?
Temporary injunctive relief = maintain status quo until court can determine controversy

1. granted after hearing both sides. to get relief w/o that, must show immediacy of injury.
2. Bond required from person seeking relief, equal to the amount of the actual impact of the order on the restrained parties.

To get temporary/preliminary injunction, must show (balance hardships):
1. irreparable harm
2. reasonable probability of prevailing on the merits
3. public interest won’t be adversely affected
What must be shown to get specific performance of a contract?
1. A valid contract exists (= consideration and certainty of terms: description of subject matter, price, time/manner of payment, quantity or performance terms)
2. All contract conditions have been met
3. Mutuality of remedy exists (= both parties are ABLE TO PERFORM + both parties CAN BE BOUND)
Will specific performance be ordered for failure to comply with a time is of the essence clause?
Failure to comply can require specific performance, unless equity court ignores strict enforcement of the clause b/c:
a. tardiness is de minimus
b. loss to complying party is slight
c. undue hardship on forfeiting party
d. waived by party seeking enforcement
Will specific performance be ordered despite failure to provide marketable title?
no specific performance unless:
a. deficiency in title is minimal (SP may be granted w. reas. reduction in price, OR
b. Buyer waives deficiency (SP may be granted w/ reas. reduction in price)
can specific performance be ordered with regard to land contracts?
Yes - Doctrine of equitable conversion
What are the tort aspects of an unfair comptetion claim?
unfair comp; misuse of trade secrets; breach of duty of loyalty employer-employee; passing off your product as that of another; interfering w/ business relationships; using info appropriated from former employer to competitively injure them
What are the contract aspects of an unfair comptetion claim?
Covenants not to compete
Define "trade secret" (specific elements required)
Trade Secret = otherwise unavailable + gives owner competitive advantage + kept confidential
When can strict performance be ordered to enforce a covenant not to compete?
specific performance will be ordered if the restrictions are REASONABLE as to (balance the hardships):
i. Employer’s legitimate interests
ii. Employee’s right to a livelihood
iii. Sound public policy
What are the key aspects of agreements not to compete (the ones that must be REASONABLE):
i. Nature of activities prohibited
ii. Geographical limitations
iii. Duration of the restriction

NB: VA will not change an agreement to make it proper. Stands or falls as-written
When will equity RESCIND a K? (What is rescission?)
Rescission = cancellation; voidable K put to an end, parties treated as though it was never made.

- Equity will cancel a K if, at the TIME IT WAS ENTERED INTO, there was:
1. mutual mistake as to a material fact (even innocent) OR
2. some other form of inequitable conduct. includes duress, undue influence, lack of capacity, no consideration.
When will equity REFORM a K? (What is reformation?)
Reformation = give effect to a K; conform writings to the orig. intended agreement; requires valid K

1. Equity will reform a K if there is C&C evidence of:
- ANY MUTUAL MISTAKE (even minor – eg, scriverer’s error), OR
- Unilateral mistake coupled w/ knowing misrepresentation (eg, fraud)

S of F no bar to reformation if above is shown
What is restitution and when it is available?
RESTITUTION = set of rules to deal w/ unjust enrichment

- Available if P can show:
D obtained a benefit form the P upon request (or where P expected recompense & D should have known that)
Is restitutional available against the Commonwealth?
NEVER available against the Commonwealth, but is against cities/towns.

Commonwealth can be sued for breach of K and torts, but is immune from suits for equitable causes of action
What are the key aspects of agreements not to compete (the ones that must be REASONABLE):
i. Nature of activities prohibited
ii. Geographical limitations
iii. Duration of the restriction

NB: VA will not change an agreement to make it proper. Stands or falls as-written
When will equity RESCIND a K? (What is rescission?)
Rescission = cancellation; voidable K put to an end, parties treated as though it was never made.

- Equity will cancel a K if, at the TIME IT WAS ENTERED INTO, there was:
1. mutual mistake as to a material fact (even innocent) OR
2. some other form of inequitable conduct. includes duress, undue influence, lack of capacity, no consideration.
When will equity REFORM a K? (What is reformation?)
Reformation = give effect to a K; conform writings to the orig. intended agreement; requires valid K

1. Equity will reform a K if there is C&C evidence of:
- ANY MUTUAL MISTAKE (even minor – eg, scriverer’s error), OR
- Unilateral mistake coupled w/ knowing misrepresentation (eg, fraud)

S of F no bar to reformation if above is shown
What is restitution and when it is available?
RESTITUTION = set of rules to deal w/ unjust enrichment

- Available if P can show:
D obtained a benefit form the P upon request (or where P expected recompense & D should have known that)
Is restitutional available against the Commonwealth?
NEVER available against the Commonwealth, but is against cities/towns.

Commonwealth can be sued for breach of K and torts, but is immune from suits for equitable causes of action
List other remedies avaiable in equity (as restitution)
i. $ awards
ii. Constructive trusts
iii. Equitable liens
iv. Specific restitution
List other forms of equitable relief available:
a. Equitable accounting
b. Receivers
c. Partition of real property
d. Subrogation
e. Contribution
f. Equitable indemnification
g. Creditor’s suits: voluntary transfers (insolvency) and fraudulent conveyances (squirreling)
What are equitable defenses?
prevent P from equitable relief otherwise available
Against whom can equitable defenses be raised?
may be raised against all classes of litigants EXCEPT ANY GOV’T BODY
List the equitable defenses available to defendants:
1. UNCLEAN HANDS
2. LACHES
3. UNCONSCIONABILITY
4. IMPOSSIBILITY/HARDSHIP –
5. FRAUD
6. EQUITABLE ESTOPPEL –
7. FREEDOM OF SPEECH
What is the defense of unclean hands?
– P guilty of improper conduct proximately related to same x-actoin for which P seeks equitable relief. The conduct need NOT be illegal or actionable itself.
What is the defense of laches?
time bar = when P sleeps on a KNOWN INJURY.

Available when: P has delayed bringing suit for an unreasonable time, + the delay was prejudicial to the D (e,g lost evidence)

Minors can’t be subject to defense of laches
What is the defense of unconscionability?
– eg consideration out of proportion to true value of deal
What is the defense of impossibility/hardship?
relief must be w/in capacity of person ordered to do it.
What is the defense of fraud?
must allege KNOWING MISREPRESENTATION of a PRESENT FACT, seeking reliance by the other party. Statements can’t be about intention for future event.
Requires C&C evidence
What is the defense of freedom of speech?
usu. as defense to prevent injunctive relief in defamation and invasion of privacy cases where the result would be to stifle (chill) speech
What is the defense of EQUITABLE ESTOPPEL?
party makes representation which foreseeably induces s/o to act in reasonable reliance, to their detriment.