Remedies 2

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Tort Remedies
Legal Remedies - Money Damages - Compensatory Damages:

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Compensatory damages: are based on the injury to the plaintiff. P is entitled to compensatory damages to put her in the position she would be in had the wrong not occurred. It requires actual causation (“but for”), proximate causation (injury was foreseeable at time of tortious act), certainty (not too speculative), & mitigation (reasonable).

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Tort Remedies
Compensatory Damages - Special Damages

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Special damages are awarded for economic losses (e.g. med exp, lost earnings) and must be calculated w/sufficient certainty (past losses - look for history; future damages - “all or nothing” rule).

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Tort Remedies
Compensatory Damages - General Damages:

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General damages are awarded for non-economic losses (e.g., pain & suffering) and jury can award any amount.

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Tort Remedies
Compensatory Damages - Calculation:

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

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Tort Remedies
Legal Remedies - Money Damages - Nominal Damages:

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Nominal damages are awarded when there is no actual injury to the P and are designed to vindicate the P’s rights.

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Tort Remedies
Legal Remedies - Money Damages - Punitive Damages:

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Punitive damages requires that P first have been awarded compensatory/nominal damages, D’s fault must be greater than negligence, and the award is relatively proportionate to actual damages (limited to a single digit multiple unless conduct extreme).

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Tort Remedies - Legal Restitutionary Remedies - Restitution Damages:

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Restitution damages are based on the value of the benefit to the defendant.
(a) If compensatory and restitutionary damages are available, discuss both and award the larger sum. Cannot be awarded both at the same time.
(b) Punitive damages can be attached if the underlying cause of action is in tort.

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Tort Remedies - Legal Restitutionary Remedies - Replevin:

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(2) Replevin allows P to recover possession of specific personal property where P has a right to possession, and D wrongfully withholding the property.
(a) Special rule: P may recover the chattel before the trial if P posts a bond, unless D defeats immediate recovery by posting a “redelivery bond”
(b) The sheriff repossesses the property for plaintiff. (no self help)
(c) Replevin is almost always coupled w/damages (compensatory/restitution) for lost use or benefit to D during the time of the wrongful withholding.

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Tort Remedies - Legal Restitutionary Remedies - Ejectment:

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Ejectment allows P to recover possession of real property where P has a right to possession, and D in possession is wrongfully withholding the property.
(a) Ejectment is almost always coupled with damages (compensatory/restitution).

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Tort Remedies - Equitable Restitutionary Remedies - Constructive trusts:

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Constructive trusts are imposed on improperly acquired property to which D has title (vs. possession) to avoid unjust enrichment. The D serves as trustee and must return the property to the P.
(a) There must be inadequate legal remedy – D is insolvent or property is unique.
(b) Tracing is allowed.
(c) BFP prevails over P.
(d) P prevails over unsecured creditors.

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Tort Remedies - Equitable Restitutionary Remedies - Equitable Lien:

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(2) Equitable liens are imposed on improperly acquired property to which D has title to avoid unjust enrichment. The property is subject to an immediate court-ordered sale and P receives the proceeds. If the proceeds are less than FMV of property when it was taken, P will also receive a deficiency judgment.
(a) There must be inadequate legal remedy alternative.
(i) Basic Alternative for: Money damages because D is insolvent, or for constructive trusts; the property is unique.
(b) Tracing is allowed. (if property has been sold)
(i) Tracing of commingled funds: Where the funds have been commingled w/other funds, the victim may obtain an equitable lien only to the extent of the lowest intermediate balance.
(c) BFP prevails over P
(d) P prevails over unsecured creditors.

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Tort Remedies - Constructive Trust or Equitable Lien:

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(a) If the property value subsequent to taking: i) goes up, use constructive trust, ii) goes down, use equitable lien.
(b) When D’s property cannot be traced solely to P’s property, only equitable lien is avail.
(i) E.g. D misappropriates money and uses it to remodel his house. Since title to the home was not obtained by the use of money, property remedy is an equitable lien on it.)

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Tort Remedies - Equitable Remedies - Injunctive relief:

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Injunctive relief is an order where D is enjoined to do or refrain from doing something.

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Tort Remedies - Equitable Remedies - Injunctive relief - Temporary injunction:

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Temporary injunction requires P to establish that she will suffer irreparable injury while waiting for a full trial, and likelihood of success on the merits.
(a) Balancing of Hardships: Irreparable injury is weighed against any hardship D will suffer if temporary injunction is granted,
(b) If granted, P will be req’d to post a bond in order to reimburse D if P is unsuccessful.

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Tort Remedies - Equitable Remedies - Injunctive relief - Temporary Restraining Order:

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(2) Temporary restraining order also requires irreparable injury while waiting for a hearing for a temporary injunction, and likelihood of success on the merits.
(a) TRO hearings can be ex parte, thus notice and adversarial proceedings are not req’d, but if possible, a good faith effort must be made to give D notice and a chance to contest.
(b) TRO limited to 10 days.

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Tort Remedies - Equitable Remedies - Injunctive relief - Permanent injunction:

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(3) A permanent injunction* requires (5 parts): “I Put Five Bucks Down”
(a) Inadequate legal remedies: the 3 legal remedy alternatives would be:
(i) Replevin inadequate because the sheriff may be unable to recover it or D can file a redelivery bond an run off with or destroy the chattel in the interim
(ii) Ejectment inadequate because sheriff may refuse to act
(iii) Money damages inadequate because 1) Too speculative, 2) D is insolvent 3) Irreparable injury (fact inquiry; injury related to “unique” property = irreparable injury), 4) Avoiding a multiplicity of actions (hint: prior history of litigation between same parties relating to this type of action).
(b) Protectable property right (any legitimate property interest) or protectable interest is involved.
(c) Feasibility of enforcement:
(i) Negative injunction has no enforcement problem.
(ii) Mandatory injunction may have enforcement problems based on i) difficulty of supervision, or ii) concern w/effectively ensuring compliance.
(iii) Mandatory injunction will be denied if the act involves great taste, skill or judgment, a serious of acts over a period of time, or an out of state act is required by a non-resident D.
(d) Balancing the hardships: (esp imp in nuisance and trespass to land) 4 Rules:
(i) There must be a gross disparity between P’s benefit and D’s hardship.
(ii) Even then, there will be no balancing if D’s conduct was willful.
(iii) Always consider awarding money damages
(iv) Hardship to the public is also taken into account (discuss D’s and public’s hardship and deny injunction and award P money damages).

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Tort Remedies - Equitable Remedies - Injunctive relief - Permanent injunction - Defenses:

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(i) Unclean hands is avail only if P’s alleged improper conduct is related to the lawsuit.
(ii) Laches is concerned with the effect of passage of time. The clock starts to run when P learns of the injury, and delay bars right to relief when delay is both unreasonable and prejudicial to D. (never greater than SOL; if applicable, consider awarding money damages).

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Contract Remedies - Legal Remedies - Compensatory Damages:

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(1) Compensatory damages require actual causation, foreseeability (@ K formation), certainty, and mitigation.
(a) Direct Damages those damages that flow inherently from the wrong.
(b) Consequential damages* are available for related damages foreseeable at the time of formation. (fav fact pattern: reputation).

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Contract Remedies - Legal Remedies - Nominal Damages:

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Nominal damages are allowed.

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Contract Remedies - Legal Remedies - Punitive Damages:

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Punitive damages NOT allowed. (If D’s conduct is willful, see if you can characterize this as a tort case).

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Contract Remedies - Legal Remedies - Liquidated Damages Clause:

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(4) Liquidated damage clauses are valid if 1) damages are very difficult to ascertain at the time of K formation, and 2) this was a reasonable forecast of what they would be.
(a) If the clause is valid, only liquidated amount available.
(b) If invalid, only actual damages available. (Clauses providing either actual or liquidated damages are invalid and only actual damages are avail).

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Contract Remedies - Restitutionary Remedies - Legal restitutionary Remedies:

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(1) Restitution is available for the value of the benefit to the D.
(2) Replevin is available if the D is insolvent or the property is unique.
(3) Ejectment
(4) Quasi-contract is a legal restitutional remedy that is substitutional in nature. P is awarded a sum of money measured by the reasonable value of the D’s ill-gotten gain to avoid unjust enrichment.

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Contract Remedies - Restitutionary Remedies - Equitable restitutionary Remedies:

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(1) Constructive trusts
(2) Equitable liens.

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Contract Remedies - Equitable Remedies - Specific Performance:

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Specific performance* requires the D to perform the contract. P must show: “Cha Cha Is My Favorite Dance”
(1) Contract is valid,
(2) Conditions of P have been satisfied – already performed, ready and able to perform or excused from performing
(3) Inadequate legal remedy – damages are speculative, D is insolvent, multiple suits are necessary, thing bargained for is unique (All land is unique. Personal property is not unique unless one of a kind or very rare, personal significance, or circumstances make chattel unique. Tested at time of litigation, not K formation)
(4) Mutuality of remedy: Court will reject the mutuality argument it if it feels secure that P can and will perform. Grant SP and have the decree provide for simultaneous performance.
(5) Feasibility of enforcement – personal services K NOT specifically enforceable (involuntary servitude)
(6) No defenses – Equitable defenses: unclean hands, laches, unconscionability; Contract defenses: mistake, misrepresentation, SOF.

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Contract Remedies - Equitable Remedies - Recission:

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iii) Rescission occurs where the original contract is considered voidable and rescinded. It requires 1) grounds for rescission (mistake, misrepresentation, coercion, undue influence, failure of consideration, lack of capacity, illegality) and 2) there are no valid defenses (unclean hands, laches; negligence is not a good defense). “Good Dog”.

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Contract Remedies - Equitable Remedies - Recission - Grounds:

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Grounds:
(a) Mistake:
(i) Mutual mistake – rescission granted; collateral mistake (going to quality, desirability, or fitness of property for a particular purpose) – rescission denied
(ii) Unilateral mistake – rescission denied, unless 1) non-mistake party knows or should know of the mistake. Modern trend exception: if mistaken party would suffer undue hardship if there is no rescission.

(b) Misrepresentation: rescission granted if P shows she actually relied upon the misrepresentation.
(c) Negligence of P is not a good defense.

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Contract Remedies - Equitable Remedies - Election of Remedies:

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(a) If P sues for Damages first rescission is not allowed
(b) If P sues for rescission first damages are allowed.
(c) P can even sue for both at the same time but must elect the preferred remedy before judgment.

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Contract Remedies - Equitable Remedies - Reformation:

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iv) Reformation changes the written agreement to conform w/the parties’ original understanding. It requires 1) a valid contract, 2) grounds for reformation, and 3) no defenses (unclean hands, laches; negligence of P, SOF, Parol Evidence Rule* will NOT work). “Very Good Dog”
(1) Reformation is not allowed where it would adversely affect the rights of a subsequent BFP.