Remedies

Front 1

Two exceptions to att. fees

Back 1

Statutory authorization

Contractual agreement

Front 2

TX Calvit rule

Back 2

P may recover the highest FMV b/w conversion and trial:
fraudulent,willful or gross neg. conversion
FMV fluc
Suit was brought within a reasonable time

Front 3

True or false:
Plaintiff's choice of legal theory is determinative of the measure of damages.

Back 3

False

Front 4

Allocation of useful life

Back 4

When repair extends the useful life of P asset, P receives a betterment.

Front 5

Measure of damages within a reasonable certainty

Back 5

The existence and amount of damages must be proven with a reas. cert.

Front 6

True or false:
Texas tests excessiveness against the conscience of the court?

Back 6

True

Front 7

True or false:
In tort, foreseeability is not assessed as of the time of breach.

Back 7

False

Front 8

What adjustments are made when there is a lump sum payment?

Back 8

Reduction to present value, must determine a discount rate.
May adjust for inflation

Front 9

How to determine lost or reduced chance

Back 9

Multiply lost chance by the award amount.
For example, if chance of survival was 20% and the P death claim is 1 mill, damages for lost chance will be 200,000

Front 10

True or false:
TX allows recovery for lost chance of survival or cure in medical malpractice cases where neg. treatment simply decreases a patients chance of avoiding death.

Back 10

False

Front 11

Present value rule

Back 11

Determine what sum will cover the cost in the future.

Front 12

Offset method

Back 12

Future interest and inflation rate will offset each other

Front 13

Three approaches to determine present value

Back 13

1. Offset
2. Account for inflation
3. Exclude inflation and discount by a "real" interest rate

Front 14

Exceptions to the economic loss rule

Back 14

Neg. Misrep
legal/accounting malprac.
breach of fid. duty
fraud
tortuous interference
nuisance
wrongful death claims, loss of support
business dispargement

Front 15

T/F:
TX allows an independent claim for Intentional Infliction of Mental Anguish if the actor intends to cause severe emotional distress or severe emotional distress is the primary risk created by the actor's reckless conduct.

Back 15

True

Front 16

What is the difference b/w punitive and exemplary dmgs.?

Back 16

Punitive is to deter and exemplary is to make an example

Front 17

TX recognizes a general duty to not neg. inflict emotional distress.

Back 17

False, must be a breach of some indepedent duty owed to P.

Front 18

T/F?
TX has rejected a COA for fear of asbestos related disease?

Back 18

True

Front 19

T/F?
Consciousness of approaching death is a proper element to be considered in evaluating mental suffering.

Back 19

True

Front 20

T/F?
A "bad" state of mind alone is sufficient to determine punitive damages.

Back 20

False, must be joined by conduct that involves an extreme degree of risk.

Front 21

What is the standard for recovering exemplary damages in TX?

Back 21

Clear and convincing evidence of fraud, malice, or gross neg.

Front 22

What is the cap for exemplary dmgs. in TX?

Back 22

200k or

2 x eco. dmgs + an amount equal to non-eco. dmg. not to exceed 750k

Front 23

T/F
In TX, exemplary dmgs cannot be recovered for a simple breach of K, where the breach is not joined with a tort.

Back 23

True,

When there is a Breach of K there also must be a tort

Front 24

What are three guide posts in determining whether an award is excessive?

Back 24

1. The degree of reprehensibility
2. The disparity b/w the harm or potential harm and the award
3. The severity of the penalty

Front 25

T/F
Prejudgment interest may be assessed or recovered on an award of exemplary dmgs.

Back 25

False

Front 26

T/F?
P may recover for the reasonable cost of mitigation.

Back 26

True

Front 27

Is there a duty to mitigate an intentional tort?

Back 27

No

Front 28

Does D have to plead and prove P failure to mitigate?

Back 28

Yes, this is an avoidance defense.

Front 29

What is the function of interest?

Back 29

Compensation, restitution, and an incentive not to delay payment.

Front 30

T/F
Prejudgment Interest is not compounded

Back 30

True

Front 31

T/F?
Pre-judgment interest is discounted to present value.

Back 31

False

Front 32

T/F
Setting the interest rate is left to the court's discretion.

Back 32

True

Front 33

Interest rate is capped at 18% for a K if not specified.

Back 33

True

Front 34

What is the floor and ceiling for the setting of the prime interest rate to be used.

Back 34

Floor is 5% and ceiling is 15%

Front 35

Post judgment interest is compounded annually?

Back 35

True

Front 36

When is pre-judge interest calc?

Back 36

180th day after D receives written notice of a claim or the date the claim is filed, which ever comes sooner.

Front 37

T/F
Post-judgment compounds semi-annually.

Back 37

False, compounds annually.

Front 38

T/F?
Prejudgement interest may be recovered for future dmgs.

Back 38

False

Front 39

Prejudgement interest must be awarded in WD, PI, or prop. dmg cases at a rate equl to the postjudgment interest rate applicable at the time of judgment.

Back 39

True

Front 40

What is the effect of settlement offer?

Back 40

If the judgment is equal to or less than the offer amount, prejudgment interest does not accrue on the amount of the judgment during the period the offer was open. If the judgment is more than the settlement offer PJI does not accrue on the settlement amount.

Front 41

Equity acts in personum.

Back 41

True

Front 42

When is equity used?

Back 42

When a legal remedy is inadequate

Front 43

What are examples of an inadequate legal remedy?

Back 43

Unique or special entitlements
Repeated acts requiring various suits
Insolvency
Difficult to measure dmgs with rsble cert.
legal delays would deny P the right that is sought

Front 44

What is a unique entitlment?

Back 44

Need not be one of a kind but anytime an equivalent cannot be assured.

Front 45

Is there a right to a jury trial for an equitable action?

Back 45

Yes, but only as to the ultimate issues of fact.

Front 46

T/F
If legal claims are brought with equitable claims, they will be tried together without a jury.

Back 46

True, if the the equity fact issues were decided first by a judge. Does not apply to fed. crts.

Front 47

What is the judicial review for equitable decisions?

Back 47

Abuse of discretion, appellate court may not sub. its judgment for that of the trial judge.

Front 48

Why is a permanent injunction "permanent"?

Back 48

B/c it is a final judgment.

Front 49

T/F
Permanent injunction cannot be modified.

Back 49

False, a change in the facts or the law may support a mod. Must be a substantial and unexpected change.

Front 50

Equity determines a modification.

Back 50

True

Front 51

When is a non-party in contempt of violation of the injunction?

Back 51

Must be in active concert or participation with the named party.

Front 52

What are the requirements of a TRO and Temp. Injunc?

Back 52

1. Likelihood of success on the merits.
2. Whether irreparable injury will result if temp. relief is denied.
3. The balance of hardships.
4. The public interest.
These factors are weighed collectively.

Front 53

Notice is mandatory for a temp. injunc.

Back 53

True

Front 54

When may a TRO be done w/o notice and ex parte?

Back 54

In exigent cirx.. Need to prove specific facts in affidavit or verified complaint that the applicant will suffer immediate and irreparable damages.

Front 55

In TX, a bond is not required for TROs or injunctions.

Back 55

False

Front 56

T/F
Adverse party may appeal an interlocutory order that grants or overrules a motion to dissolve a temp. injunc.

Back 56

True

Front 57

T/F
Texas allows an appeal from a TRO

Back 57

False

Front 58

T/F
Contempt of court must be committed in the actual presence of the court and be seen by the presiding judge.

Back 58

True

Front 59

T/F
All contempt in TX is petty.

Back 59

True

Front 60

What is civil contempt and give an example.

Back 60

Failure to obey a court order. Ex. failed to pay child support.

Front 61

T/F
Compliance will drop civil contempt.

Back 61

True

Front 62

What is the purpose of civil contempt?

Back 62

To achieve compliance

Front 63

T/F
Ignorance of an order is an affirmative defense to civil contempt.

Back 63

True

Front 64

T/F
Proof of non-compliance is a preponderance of the evidence.

Back 64

False, must have clear and convincing proof.

Front 65

T/F
Proof of non-compliance for criminal contempt is beyond a reasonable doubt.

Back 65

True

Front 66

What is the purpose of restitution?

Back 66

Seeks to prevent the unjust enrichment to Def.

Front 67

T/F
Restitution looks at the wrongdoing of the D.

Back 67

False, wrongdoing is immaterial. Looks at the measure of D's benefit.

Front 68

What is recission?

Back 68

Restores the parties to the status quo ante.

Front 69

What are the types of rest.?

Back 69

Quasi-K
Equitable lien
Constructive Trust
Subrogation
Reformation of instruments, to make them read as intended.
Accounting for profits

Front 70

T/F
Volunteers or officious intermeddlers arent entitled to rest.

Back 70

True

Front 71

T/F
Rest. is only available for enforceable K.

Back 71

False

Front 72

What is the SOL for extra-K actions for UE

Back 72

2 years

Front 73

T/F
Restitution may be combined with damages.

Back 73

True, damage claim must be able to stand alone. Can't have a breach of K claim with an unenforceable K claim.

Front 74

What is disgorgement?

Back 74

A tool for public enforcement of agencies, not usually for private citizens.

Front 75

What is the express neg. rule?

Back 75

Must expressly state the word negligence in an exculp. clause.

Front 76

T/F
Contribution does not exist at common law.

Back 76

True

Front 77

TX has limited indemnity to the following:

Back 77

1. Created by K
2. Vicarious liab.

Front 78

Subrogation

Back 78

Substitute ones rights with another.

Front 79

T/F
The constructive trustee does not have to be "the wrongdoer".

Back 79

True, it is enough, in good equity and conscience, ought not to retain the benefit.

Front 80

What are the elements of laches?

Back 80

The existence of prejudicial conduct and actual prejudice.

Front 81

T/F
Laches is an equitable concept.

Back 81

True

Front 82

T/F
Thieves hold title.

Back 82

False

Front 83

Waiver

Back 83

Knowing relinquishment of a right.

Front 84

What is the TX rule for discounting medical expenses?

Back 84

Recovery is based on P's actual cost of medical expenses that are paid or incurred.

Front 85

Los and enjoyment of life

Back 85

Generally included in P/S

Front 86

T/F
TX allows recovery for disfigurement.

Back 86

True

Front 87

T/F
LOC damages are not recoverable by a parent in a wrongful death action for a child.

Back 87

False

Front 88

T/F
Siblings and stepparents do not have a LOC claim.

Back 88

True

Front 89

Who has a claim for wrongful death?

Back 89

Stat. beneficiaries.

Front 90

What is the SOL on a survival claim.

Back 90

2 years upon tort

Front 91

Mental Anguish from wrongful death

Back 91

The emotional response to the death.

Front 92

Loss of society from WD

Back 92

Loss of positive benefits

Front 93

T/F
Awarding loss of inheritance and loss of support based on the same assets is a double recovery.

Back 93

True

Front 94

T/F
Decedent's recovery or settlement of future lost earnings will not preclude the WD P from recovering loss of support.

Back 94

False

Front 95

Does the discovery rule apply to WD?

Back 95

No

Front 96

Survival claim

Back 96

Decedents COA survives to the estate.

Front 97

T\F
Punitives are not available for WD and survival claims

Back 97

False

Front 98

What is the measure of damages for destruction of personalty?

Back 98

FMV at the time and place of destruction.

Front 99

What about damage and can be repaired?

Back 99

Loss of use and diminution of value or rsble repair costs

Front 100

What does a conversion action do with title?

Back 100

Effectively transfers title to D b/c they paid damages for the conversion. P does not get lost use.

Front 101

T/F
Conversion is a better remedy than replevin when the prop. depreciates.

Back 101

True

Front 102

What is Accession?

Back 102

When someone other than the owner enhances the prop.

Front 103

Confusion

Back 103

Commingling prop. so that it loses its sep. identity.

Front 104

What are mense profits?

Back 104

Intermediate profits that occur b/w two periods in time. Usually worth of prop. to P during the time the P was out of possession.

Front 105

T\F
When calc. mense profits you subtract the increase in FMV due to D good faith improvements.

Back 105

True