Remedies

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Tort remedies checklist

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1. Legal remedies
a. Damages

2. Restitutionary remedies
a.Restitutionary damages
b.replevin
c.ejectment
d.construtive trusts/equitable leins

3. Equitable remedies
a.injunctive relief
3. Equitable remedies

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Compensatory damages requirements

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1. causation
2. foreseeability
3. certainty
4. unavoidabiility

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Form of judgment payment

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The judgment must be in a single lump sum payment that will be discounted to present value without taking inflation into account (except under the modern rule).

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Nominal damages

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Nominal damages are awarded where the plaintiff was no actual injury. They serve to establish or vindicate the plaintiff's rights.

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Punitive damages rules

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1. Plaintiff must have first been awarded compensatory or nominal damages

2. Defendant's type fault must be greater than negligence

3. Generally awarded in an amount relatively proportionate to actual damages

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Restitutionary remedies

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These remedies are based on the theory that the defendant should not be unjustly enriched.

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Replevin requirements

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Under replevin the plaintiff recovers possession of specific physical property. Replevin requires that:
1) plaintiff has a right to possession
2) there is a wrongful withholding by the defendant.
3) plaintiff will have to post a bond
4) defendant can defeat an immediate recovery by posting a redelivery bond.

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Ejectment- legal restitutionary remedy

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Under ejectment the plaintiff recovers possession of specific real property. Plaintiff must establish that:
1) plaintiff has right to possession
2) there is a wrongful withholding by defendant

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Constructive trust- equitable restitutionary remedy

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Imposed on improperly acquired property to which the defendant has title. Defendant serves as "trustee" and must return the property to the plaintiff.

Use when property value subsequent to taking goes up.

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Equitable Lien - equitable restitutionary remedy

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Imposed on improperly acquired property to which defendant has title. Property will be subject to an immediate court-directed sale. The monies received go to the plaintiff. If the proceeds of the sale are less than the fair market value of the property when it was taken, a deficiency judgment will issue for the difference and can be used against defendant's other assets.

Use if property value subsequent to taking goes down or if defendant's property cannot be trades solely to plaintiff's property.

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Rules for equitable restitutionary remedies

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1. Inadequate legal remedy alternative:
a. defendant is insolvent
b. for constructive truth : the property is unique

2. Tracing is allowed

3. Bona fide purchasers prevail over plaintiff.

4. Plaintiff will prevail over unsecured creditors

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temporary injunctive relief

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In issue is whether plaintiff can obtain temporary/preliminary injunctive relief. To do so, plaintiff must meet a 2-part test:
1) Irreparable injury
2) Likelihood of success

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Temporary restraining order

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Issued pending a hearing to determine whether preliminary injunction should issue. The test is identical to that for preliminary injunction. TRO proceeding can be ex parte. Thus, notice and adversarial proceeding not required. Limited to 10 days (14 days in federal court).

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Permanent injunction checklist

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I'll Put Five Bucks Down

1) Inadequate legal alternative
a. replevin
b. ejectment
c. money damages

2) Property right/ protectable interest requirement
a. Traditional rule: Equity will grant relief only where a protectable property right is involved.
b. Modern view: Any protectable interest will suffice.

3)Feasibility of enforcement
a. Negative injunction: no problem
b. Mandatory injunction: There may be an enforcement base don the difficulty of supervision, or concern with effectively ensuring compliance.

4) Balancing of hardships: Plaintiff's benefit vs. Defendant's hardship if relief granted

5) Defenses
a. Unclean hands
b. laches

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Who will be bound by an injunction?

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1. Parties
2. Employees or agents acting with notice
3. Others acting in concert with notice

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Available remedies for destroyed property

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Compensatory damages

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Remedies for damaged property

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compensatory damages

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Remedies for dispossession

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1) compensatory
2) resitutionary (if defendant benefits)
3) Replevin
4) mandatory injunction ( if chattel unique and damages and replevin won't work
5) constructive trusts (if defendant is insolvent and/or tracing facts are involved)
6. self help (reasonable force to recapture)

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Remedies for rSimple trespass

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1) nominal damages
2) resitutionary damages
3) injunction (avoiding multiplicity of actions)

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Remedies for destruction/damage of real property

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1) compensatory damages
2) injunction

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Remedies for dispossession of realty

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1) compensatory damages
2) Restitutionary damages
3) Ejectment
4) constructive trusts/equitable liens

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Remedies for enrcroachment

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1) Compensatory damages
2) injunction

NO RESTITUTION

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Remedies for Nuisance

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1) compensatory damages
2) Injunction

NO RESTITUTION

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Remedies for Personal injury torts

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1) compensatory damages
2) injunction

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Remedies for Fraud

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1) damages
2) constructive trusts/liens

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Contracts- compensatory damages

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The 4 requirements are causation, foreseeability (tested at the time of formation), certainty, mitigation.

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Liquidated damages validity test

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Part 1: Damages are very difficult to ascertain at the time of contract formation
Part 2: This was a reasonable forecast of what they would be. If amount is excessive this would be a penalty.

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Contract - specific performance checklist

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Crack Cocaine Is My Favorite Drug.

1) Contract is valid/ certain & definite: Plaintiff must be able to show the contract is valid.

2) Contract conditions of plaintiff must be satisfied: Plaintiff must be able to show her contract conditions have been fulfilled (already performed, read and able to perform, or excused)

3) Inadequate legal remedy alternative

4) Mutuality of remedy

5) Feasibility of enforcement

6) Defenses

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Rescission analysis

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Good Dog

1) Determine if there are grounds for rescission:
a. mistake
b. misrepresentation
c. coercion
d. undue influence
e. lack of capacity
f. failure of consideration
g. illegality

2. Determine if there are valid defenses:
a. unclean hands
b.laches

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Reformation analysis

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Very Good Dog

1. Determine if there is a valid contract

2. Determine if there are grounds for reformation
a. Mutual Mistake
b. Misrepresentation

3. determine if there are valid defenses
a. Unclean hands
b. Laches

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Remedies for personal property sale contracts

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1) Compensatory damages
2) Restitution
3) Specific Performance
4) Rescission
5) Reformation

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Remedies for real property sale contracts

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1) Compensatory damages
2) Restitution
3) Specific performance
4) Rescission
5) Reformation

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Remedies for construction contracts

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1) Compensatory Damages
2) Restitution
3) Specific performance

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Remedies for personal service contracts

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1) Compensatory
2) Restitution
3) Specific performance