Remedies

Front 1

Preliminary Injunction/TRO Elements

Back 1

-Substantial likelihood of success on the merits
-irreperable harm absent granting
-balance of hardships must time in the plaintiff's favor
-issuance of injunction must not harm the public interest

Front 2

Equal Protection Cases

Back 2

Clinton--TRO--girl trying to play football, could not demonstrate that that particular girl was more suceptible to injury
Adams--PI--girl trying to wrestle--need to focus on individual girl, should not solve sexual harassment problems by barring girl

Front 3

Permanent Injunction Elements

Back 3

-Actual Success on the merits
-Irreparable absent granting the permanent injunction
-balance of hardships must tip in the P's favor
-issuance of injunction must not harm the public interest

Front 4

Ex Parte TRO

Back 4

Ex Parte TRO may be ordered if it clearly appears from specific facts shown by affidavit or verified complaint that immediate and irreparable injury will result to the applicant before the adverse party can be heard
-only appropriate if providing notice would render further prosecution of the action fruitless

Front 5

Due Process Test-Ex Parte TRO

Back 5

-balance government’s interest in issuing the order and the risk of erroneous deprivation under existing procedures
Things considered under the mitchell test:
1) Participation by a judicial officer
2) Prompt post deprivation hearing
3) Verified petitions with detailed allegations based on personal knowledge
4) Risk of immediate and irreparable harm

Front 6

Damages Requirements

Back 6

-Reasonable certainty as to the existence of the damages
-Reasonable certainty as to the amount of damages

Front 7

Tort Damages Limitor

Back 7

Foreseeability

Front 8

Complete Destruction General Damages

Back 8

-FMV at time of destruction...what a willing buyer would pay a willing seller
-Can't recover loss of use
-allowed prejudgment interest from the time of conversion
-possibly loss profits in a more modern court
-possibly emotional distress

Front 9

Less than complete destruction or property

Back 9

o Plaintiffs who are suing because their property has been damaged less than its full destruction are permitted to receive the amount by which the fair market value has been diminished….the difference in the value of the property before and immediately after the injuries
 OR in appropriate circumstances the reasonable cost of repair with due allowance for any difference between the original value
 The court will set a cap on repairs if it does not make sense 5K to repair something that is only worth $4K
 AND loss of use
 Loss of use is calculated by rental value of the property or if converted to cash the rental value of the cash (interest)

Front 10

Farmers Ins. Co. v. RBL Investmet

Back 10

In case where the FMV after does not fully compensate as the cost of repairs and the difference between the FMV after are greater…alternative method applies…New Car…loss of use was calculated by interest

Front 11

Full Destruction Special Damages

Back 11

Allowed to recover prejudgment interest on the fair market value of the property from the date of conversion
*Possibly loss profits in a more modern court
*May be allowed to recover emotional distress
 Look to pets
 However, courts are hesitant to extent to negligent destruction of property...look for intent, conversion
*Possibly costs associated with replacing the goods

Front 12

Damaged property specials

Back 12

1) Loss of use— measured by
a. Lost profits
b. Cost of renting substitute property
c. Fair rental value of the P’s property
d. interest
2) Emotional harm resulting from interference with personal property rights
*Must be reasonably certain and foreseeable and cannot overlap with general damages
*Best way to mitigate is to rent substitute property
*Usually only awarded for actual losses
*May allow loss of use for longer than repair time if unable to afford repairs or negotiation tactics prolong the process

Front 13

Household Goods

Back 13

 Permit actual value to the owner of the thing lost or damaged, excluding sentimental or fanciful value. When determining actual value
 Cost when new
 Length of time it has been used
 Codition at the time of loss
 Expense to owner of replacing with a like kind and in similar condition
 Any other facts that will assist in determining the worth of the article
 Usually testimony is given by owner

Front 14

Despirito

Back 14

Gave actual value for household goods destroyed

Front 15

Goods w/ Sentimental Value

Back 15

Goods that are coveted awards and symbols of certain achievements accomplished by very few, such awards having not very many willing sellers and no real market…therefore will award actual value
o Items that generate sentimental feelings not just emotions peculiar to the owner
 replacement
 original cost
 cost to reproduce
 sentimental value
 not “mawkishly or unreasonable emotional attachments”
o Plaintiff bears the burden of proof of damages

Front 16

Campins

Back 16

Gave actual value for rings won through racing

Front 17

Conversion

Back 17

An act of willful interference with the dominion or control over a chattel, done without lawful justification by which any person entitled to the chattel is deprived of its use or possession
-damages are measured at the time of conversion
-destruction of property measures

Front 18

Conversion of Securities

Back 18

The injured party gets the option of claiming the higher of 1) the market value at the time of the conversion or 2) the highest replacement value between the notice of the conversion and a reasonable time for replacement

Front 19

Arora

Back 19

where the converted chattel is essentially a product of creative effort as to which no original or replacement cost can fairly be assigned courts have fixed damages based upon the value of the time it would take to create the chattel

Front 20

Trespass to Chattel

Back 20

Intentionally using or intermeddling with the chattel in possession of another. Situations in which trespass to chattels may be actionable:
1. Dispossessing the other of the chattel
2. Impairment in the condition, quality, or value of the chattel
3. Possessor is deprived of the use of the chattel for a substantial period of time
4. bodily harm is caused to the possessor or harm s caused to some person or thing in which the possessor has a legally protected interest
 Requires that there be some actual damage to be actionable
 The only intent requirement is that you intend to exercise dominion control over the property that is inconsistent with the owner’s right
-not full destruction of property damages

Front 21

Compuserve

Back 21

Compuserve: trespass to chattels for spamming…was placed on their servers…while no physical harm, it effected the quality of the product delivered, business goodwill and reputation people quit because of the spam…cant serve subscriber base as well..here value to the owner is impaired!

Front 22

Replevin

Back 22

If a person’s goods or chattel are wrongfully detained, may sue for a writ of replevin in which the property will be seized and a hearing will proceed to determine rightful ownership
 Usually accompanied by a bond
-defendant is allowed to counterbond

Front 23

DPC Safeguards for Replevin

Back 23

o Complaint contains nonconclusory allegations of ownership
o Request must be presented to a judge who decides whether to authorize the seizure
o P post bond that will protect the D against damages caused by an improper seizure
o D must be entitled to seek dissolution of the order authorizing the seizure during an adversary hearing in which the P bears burden of proof
o D must have opportunity to counterbond in order to regain possession of the property pending a full trial

Front 24

Damages Available Against Replevin Bond

Back 24

o General damages for depreciation in the value of the property
o Loss of use
o Attorney’s Fees
o No punitive or emotional distress

Front 25

What can be sued for along with replevin

Back 25

 Compensatory damages for an diminution in the FMV
 Plus loss of damages
or instead, sue for UE

Front 26

Equitable Replevin

Back 26

Mandatory or prohibitory pretrial injunction
(still an injunction, and still need to meet the criteria)
 Mandatory: Compels D to deliver the property to the P pending the trial on the merits
 Prohibitory: Prohibits the D from alienating, selling, harming or in any other way disposing of the property pending the trial on the merits

Front 27

Arguments for equitable replevin as oppose to writ

Back 27

 D can regain possession of the property pending a trial on the merits by counterbonding
 Legal replevin orders are not enforceable by contempt and a D may be free to secrete, alienate, damage, or destroy the chattel and only have to answer in damages

Front 28

Replevin cases

Back 28

Modern Dust Bag: D’s had paper that P’s said was their paper…if they don’t get the paper now they will not be able to use it, will go to bankruptcy, and will not be able to move it... and therefore P’s damage cannot be definitely determined…legal replevin the D’s could just counterbond

When equitable replevin was not necessary:
Gindin: return of wedding ring…claimed it was unique, sentimental, and the D can counterbond and force to sue for damages
-not enough

Front 29

Real Property Damages (generally)

Back 29

 The difference between the value of the property before and after the injury

Front 30

Real Property Damages
(alternative)

Back 30

 Cost of restoring the property to its condition prior to injury
o Restoration costs may be awarded even though they exceed the decrease in market value if there is a reason personal to the owner for restoring the original condition or reasonab to believe that the P will, in fact, make the repairs

Front 31

Henninger

Back 31

allowed for the alternate measure of damages because it was trees and the P’s wanted it unimproved…however to get it back to where it was would be 221K in restoration which is more than the price of the land…not just and reasonable. Court allowed for reasonable restoration costs

Front 32

Nuisance

Back 32

One unreasonably uses his or her property such that it substantially impairs the rights of another to peacefully use his property
 Locality
 Character of the neighborhood
 Nature of use
 Extent of injury
 Effect on enjoyment of life

Front 33

Nuisance Damages Owner v. non owner

Back 33

the owner of the land who is not an occupant may recover only for the impaired value of his property, while an occupant owner may recover both the proprietary and personal loss

Front 34

Nuisance Bases for damages

Back 34

 Permanent effects: diminution in land value due to the nuisance
 Temporary effects: diminished rental value during the period of harm
Other bases:
 Costs of repairing the condition in question
 Personal discomfort
o These need to be reasonable, and some say cannot exceed the diminution in property value
o Personally injury if harmed
*Usually cannot recover both damages to property and discomfort, because usually value of property reflects the discomfort…however, it may be more appropriate if after fixing the discomfort is ongoing.

Front 35

Balance of Hardships on Permanent Trespass (encroachment)

Back 35

In cases of permanent trespass, states are inclined to impose a balancing of the hardships to substitute damages for injunction
• unless the burden to the defendant of removing the encroachment is disproportionate to the hardship to the P in allowing the hardship to remain, an injunction will issue
• Don’t have to balance if it was intentional

Front 36

Glover

Back 36

Glover: mandatory injunction to stop blocking view…view is unique, cant calculate damages, bought knowing the covenant had a prelim injunction hearing AND
• Modern Courts find that a legal remedy for the violation of a restrictive covenant is inadequate
• Damages measured the difference in value between the lot with non-conforming trait and without it

Front 37

Statutory Injunction

Back 37

Statute allows city to sue for injunction to force compliance with ordinance
• Does not have to show irreparable harm or lack of legal remedy
• Courts split on whether they have to balance the hardship
o If you do, here is the test:
 Is the violation of the zoning ordinance substantial
 Does it involve conscious wrongdoing

Front 38

Dignitary Interests (3 Elements)

Back 38

o Time losses (e.g. wages, earning capacity)
o Lost earnings
o Loss of household services
o Expenses incurred by reason of the injury (e.g. medical expenses)
o Past medical expenses
o Future medical expenses
 Nursing Care
 Equipment and devices
o Pain and suffering (consciousness of loss, emotional distress)

Front 39

Battery

Back 39

ntending to cause an unlawful harmful or offensive contact, and such contact
• “the wrong is the harm in and of itself”…10 K for spitting, Angus
o General compensatory damages in a battery action are presumed

Front 40

IIED

Back 40

the D engaged in intentionally or recklessly extreme or outrageous conuct causing the plaintiff to suffer serious emotional distress
• Psychologist’s fees
• Anxiety
• Depression

Front 41

Survivor Statute

Back 41

provide that the claim of the deceased victim survives death and may be pursued by the victim’s estate
Includes:
o Lost wages after injury and before death
o Medical expenses incurred
o Pain and suffering
o Other compensatory damages suffered by the victim from the time of injury to the time of death
o Some allow for loss of life damages, which can go into future benefits that would have been received

Front 42

Wrongful Death Statute

Back 42

create a cause of action in a specified class of persons to compensate them for loss resulting from the victim’s death
Includes:
o Loss of the economic benefit which they might have reasonably have expected to receive from the decedent in the form of support, services, or contributions during the remainder of the lifetime if the decedent had not been killed
o Pecuniary value of the decedent’s life: the expectancy of the lie, the age, condition of health and strength, capacity for labor and earning money through skill, art trade, profession, and occupation
o Also takes into account the decedent’s probably living expenses
o Spousal consortium damages—human companionship, comfort, society, guidance, solace, and protection
o Parental consortium—the education and training which a child may reasonably expect to receive from a paren
o Consrtium of a child—filial consortioum

Front 43

Defamation

Back 43

a statement that tends to cause such harm to the reputation of another that it lowers the person in the eyes of the community or deters third persons from associating with him…statement had to be false and to a third party

Front 44

Defamation Details

Back 44

• Libel=defamation in print (sense of touch, smell, sight)
• Slander=defamation via transitory communications (speech & gestures..sense of hearing)
• Per Se: words without reference to extrinsic circumstances, injure the reputation of the of the person to whom they are applied
o Do not need to demonstrate actual damages to the reputation…injury is presumed
• Per Quod: requires allegations of facts and circumstances, aside from the words contain
o Must plead and sustain that the P suffered actual damage of a pecuniary nature (special)

Front 45

4 Categories

Back 45

• Whether libel or slander, or per se or per quo, no special harm is necessary if the words:
o Impute to another the commission of a crime
o Impute to another a loathsome disease
o Impute unchastity
o Tend to inure another in his trade or profession

Front 46

Special Damages in Defamation

Back 46

• What constitutes special damages?
o Damages that are pecuniary in nature and have been actually incurred as a natural and proximate consequence of the wrongful act
 Emotional distress and psychological injury are general damages of defamation
• Injury to the P’s reputation
• Stansing in the community
• Personal humiliation
• Mental anguish and suffering

Front 47

Why Equity is Usually not Available as a Remedy for Defamation

Back 47

o Equity only affords protection to property right
o Old school
o An injuction would deprive the D the right to a jury trial on the issue of the truth of the publication
o Not if have trial
o Adequate remedy at law
o Reputation can be hard t measure, may continue, and may be indigent
o Free speech
o Not if jury trial and deemed not protected

Front 48

First Amendment & Defamation

Back 48

First Amendment and Defamation: An injunction against free speech generally will not be considered an unconstitutional prior restraint if it is issued after a jury has determined that the speech is not constitutionally protected
o Compulsion is unconstitutional
o Lower degree of protection to defamation in the commercial context

Front 49

Cases regarding first amendment and defamation

Back 49

Kramer=absolutist, no equitable remedy available, permanent injunction…dude kept saying he was a bad attorney

Binghan=doesn’t rely care about first amendment…allows without trial on the merits…chic was ruining dudes life and marriage by saying he raped her preliminary injunction

Front 50

Defamation against public characters

Back 50

Defamation against public figures: can only be liable if the D a) knows that the statement is false and it defames the p, or b) acts in a reckless disregard of these matters

Front 51

Damages in Contracts Requirements

Back 51

GOAL: To Give the P the benefit of the bargain by putting him or her in the same position as if the contract had been performed
o In order to be recoverable the damages must be
 Caused by the breach
 Within the reasonable contemplation of the parties at the time of contract formation (Hadley)
• where the contract is silent the court must determine what the parties intended by considering the nature, purpose and particular circumstances of the contract known by the parties
 And reasonably certain as to amount and existence
o The injured party should not recover more from the breach than he would have gained had the contract been fully performed

Front 52

Generally Recoverable

Back 52

• Value of the performance promised
• Lost profits
• Lost assets: look to market value at time of loss (lost service agreement for BBC)
o Market value=the price at which property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of relevant facts
• Emotional Distress/mental suffering

Front 53

Emotional Distress & K

Back 53

• Emotional Distress/mental suffering
o For emotional distress need more than economic injury…don’t get confused where the emotional upset derives from an inherently economic concern
o Generally not recoverable unless the breach also caused bodily harm or the K is of such that serious emotional disturbance was particularly likely
 E.g., handling a corpse, misdiagnosed VD, bailment of things of sentimental vale
 When the contract is expressly for the mental and emotional well being of a person

Front 54

Interests in K

Back 54

position as he would have been in had the contract been performed

Reliance Interest: interest in being reimbursed for loss caused by reliance on the contract by being put in a good position as he would have had the contract not been made

Restitution Interest: interest in having restored to him any benefit that he conferred on the other party

Front 55

Material Breach

Back 55

Affirm--Sue for damages
Rescind--Return what they received, sue for UE, and

Front 56

Fraudulent Inducement

Back 56

A false representation to the P, material to his or her decision that the D knew was false and intended to decieve in which the P relied upon and was the proximate cause of his or her injuries
-not limited to K damages

Front 57

Negligent Misrepresentation

Back 57

• Fraud elements but no intent
• Can recover out of pocket damages (see above) due to the level of culpability
Notes:
o Some fraud allows for the option between choosing tort damages or restitution

Front 58

Benefit of the Bargain

Back 58

o Benefit of the bargain plus consequential damages
o a plaintiff may recover, the difference between the value represented and the value received.
o It allows the recovery of lost profits if they can be proven with reasonable certainty.
o Seeks to place the party in the same position had the fraud been true

Front 59

Out of Pocket

Back 59

o a plaintiff may recover the difference between the value of what he or she has given to the defendant and the value of what he or she has received.
o designed to compensate the plaintiff for what he or she has lost because of the fraud and not to compensate for what he or she might have gained
o permits recovery of consequential or special damages that are proximately caused by the misrepresentation, including damages incurred by passing up other business opportunities.
o Meant to compensate the plaintiff for what he or she has lost because of the fraud and not to compensate for what he or she might have gained.

Front 60

Specific Performance

Back 60

Specific Performance:
o Still need to abide by same injunctive stuff
o Legal remedy is inadequate if damages would be difficult to estimate or if a monetary award would not remedy the damaged caused
o In assessing the adequacy of damages doubts should be resolved in favor of granting specific enforcement as doing so serves the expectation interests of the contracting parties
Trans Pacific Leasing: there was irreparable harm, because the plane could not be replaced, would be getting a different type of risk, the risk is immeasurable with a plane…breach because they changed the pilot, specific performace oka
-Mutuality of remedy concept (only some abide by this)

Front 61

Economic Loss Rule

Back 61

: Damages for economic loss are not recoverable based on tort theory when unaccompanied by physical property damage or personal injury. If suffering purely economical harm, then a P must sue under contract theory.

Front 62

Jiminez

Back 62

SPL in tort recovery is limited to damages to other property or physical injury to other persons, while the law of contractual warranty governs damage to the product itself
o Component manufacturer…made windows for home that were bad, and damaged other parts of the home…court found the component part to be the product and not the house as a whole, so SPL applies

Front 63

Tort Damages in K Case

Back 63

• Generally, for a breach of a contract tort damages are not recoverable and the C/A only becomes tortuous (and recoverable) when the breach of the contract violates a duty independent of the K arising under tort law
 Directly caused physical injury
 Breach of covenant and fair dealing in insurance contracts
-malpractice

Front 64

Pre-judgment interest

Back 64

Interest awarded for prior economic loss and property damage is within the discretion of the trial court
o Common Law: Could only get prejudgment interest on liquidated damages
o If un-liquidated,ti becomes liquidated with a judgment
o Modern Rule: Unliquidated damages do not preclude an award of prejudgment interest
o Kansas v. Colorado: Court allowed prejudgment interest for unliquidated damages…however to determine when to start the court balanced the equities…important to the court is when they knew they would be accountable for prejudgment interest

Front 65

Post judgment interest

Back 65

o Interest on an award from the measured from date of judgment to the date paid
o Set by statute

Front 66

Present Value/Inflation

Back 66

o Damage awards are paid in lump sum, and thus when taking into account future values a plaintiff may be over compensated if failing to take into account the time value of money
o Some use market rate as discount rate
o Some use market rate minus he inflation rate
o Some use real interest rate…market beats inflation by 1.5-2%

Front 67

Collateral Source Rule

Back 67

Substantive Rule
o A plaintiff's recovery of damages should not be reduced by compensation for his injuries that the plaintiff may have received from an independent third party.

Procedural Rule
o Evidence of collateral source compensation should not be admissible
o A jury should be instructed not to consider compensation for injuries that a plaintiff may have received from an independent third party

Front 68

Bozeman

Back 68

the amount a hospital would normally charge minus the amount it is forced to take due to medicaid
3 approaches:
1) Reasonable value of the services—P’s get the entire amount of the medical expenses that were billed, including write offs
a. This is application of collateral source rule
b. Don’t want break on damages just cause you hurt poor
c. Was established by law
d. Financed through taxes that included the P
2) Actual amounts paid—P’s cannot recover the write off amount
a. Otherwise would overcompensate as these expenses were not incurred
3) Benefit of the Bargain (Bozeman approach)—Allow for P’s to recover write off where they have paid some consideration for it
a. Do not pay any enrollment fee, no wages deducted, and no consideration

Front 69

Off-set the benefit rule

Back 69

When the defendant's tortuous conduct has caused harm to the plaintiff or to his property and in so doing has conferred a special benefit to the interest of the plaintiff that was harmed, the value of the benefit conferred is considered in mitigation of damages, to the extent that this is equitable. Similar rule for contracts

Front 70

Off-set the benefit, wrongful birth

Back 70

3 Approaches:
1) Entitled to recover al costs incurred in rearing the child without any offset of the benefit
2) May recover all damages that flow from the wrongful act, but the calculation of damages includes a consideration of the offset of the benefits conferred on the parents by the child’s birth
a. Deductions for services, love, joy, and the affection received in raising the child
3) Entitled to pregnancy and childbearing expenses, but not child-rearing expenses
a. Implicitly reduced by the joys of a child which are immeasurable…that why no child rearing

Front 71

Mitigation

Back 71

An injured plaintiff has a duty to mitigate damages by taking reasonable steps to reduce the extent of damageso Failure to do so bars recovery for consequences that could have been averted
o A refusal to get an operation is reasonable unless it is free from danger to life and health and extraordinary suffering, and according to the best medial opinon offers a reasonable prospect of restoration

Front 72

Punitive damages

Back 72

Punitive damages may be awarded in a non contract case if the plaintiff establishes by clear and convincing evidence that the defendant has engaged in fraudulent, malicious or oppressive conduct

Front 73

Punitve damages (DPC implications)

Back 73

The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor.
• Degree of reprehensibility of conduct (most important)
o Physical v. economic harm
o Indifference or reckless disregard for health or safety
o Target had financial vulnerability
o Repeated actions
o Intentional malice trickery deceit…or accident?
• Disparity between actual or potential harm suffered and punitive damage award
o Single digit multipliers are more likely to comport with due process
• Difference between punitive award and civil fines

Front 74

State Farm

Back 74

Reckless driver killed a couple people…State Farm refused to pay the plan maximum and pushed for trial pursuant to a nationwide plan to cap payouts…bad faith action against state farm resulted in $1 Million compensatory and $145 Million punitive…does not comport with DPC
• Jury may not use evidence of out of state conduct to punish a D for conduct in state
• Wealth of a defendant can not justify an otherwise unconstitutional punitive damages award

Front 75

Liquidated Damages

Back 75

A contractual provision fixing damages in the event of a breach will be sustained if the amount liquidated bears a reasonable proportion to the probable loss (assessed at the time of contracting) and the amount of actual loss is incapable or difficult of precise estimation. It is not enforceable if the amount fixed is plainly or grossly disproportionate to the probable loss (i.e. if it is a "penalty")
• Cannot have liquidated damages clauses that act like a penalty
o Key indicator: if a contract provides that breaches of different gravity shall be sanctioned with equal severity

Front 76

Attorney's Fees

Back 76

American Rule: In general, the prevailing party may NOT recover attorney’s fees from the losing party.
• Courts have to ensure that if awarding attorney’s fees they are reasonable
o Percentage of fund is reasonable and often used
o Others use lodestar factors
Exceptions:
• Statutes that authorize attorneys fees;
o Civil Rights Act
o Anti trust if awarded treble damages
o Patent litigation
o Civil Right’s Attorney’s Fees Award Act: gives the court discretion to allow a prevailing party attorney’s fees in certain civil rights actions
• By contract;
o In Cali, one way attorney’s fees provisions are thought to be mutal
• Bad faith in litigation and violation of court orders;
• Common Fund Theory;

Front 77

Legal Restitution Elements

Back 77

Restitution will be granted to the defendant when:
• The defendant has been enriched by the receipt of a benefit;
• The defendant's enrichment is at the plaintiff's expense or detriment;
• It would be unjust to allow the defendant to retain the benefit

Front 78

Justice Principles

Back 78

• A person should benefit from the labor's of his or her body, and the person who benefited from those labors should be the one to pay.
• When a person pays another by mistake, justice generally requires that the person who received the payment, return the payment to the payor
• A provider of commercial services should be compensated for those services by the person who accepts the benefit of the services, at least when a reasonable person would view the services as not being gratuitously offered
• Because a spouse has a duty to support his or her partner, a spouse should not expect to be compensated for the value of the support given
• Justice does not require or permit compensation when a contract exists between the parties concerning the same subject matter on which the restitution claim is based
• Equity shall not aid a volunteer--one who officiously and/or gratuitously confers a benefit on another, is not entitled to restitution
• In order to act as a defense to restitution, a change in position must have been detrimental to the defendant. A mere change in form is insufficient (e.g., converting money into property worth similar value, paying off debts)

Front 79

Legal Restitution Measurement

Back 79

• Usually measured by the amount of the defendant’s gain
o In comparison tort damages compensate for the plaintiff’s loss; contract damages are measured by putting the plaintiff in the position she would have been had the contract been performed
o Quantum meruit—based on implied contract measured by the reasonable value of the materials or services rendered…while UE is the benefit

Front 80

implied in fact v. implied in law
K

Back 80

• Implied in fact—K where the parties assent to the formation of a contract, but instead of being expressed in words, the intention to incur an obligation is inferred from the conduct of the parties in light of the surrounding circumstances, including the course of dealing
• Quasi Contract—Arises where the law imposes a duty upon a person, not because of any express or implied promise on his part to perform it, but even in spite of any intention he might have to the contrary..a quasi contract requires that a party unjustly enriched pay a reasonable amount for those services

Front 81

Crawford

Back 81

Found based on prior dealings, that there was a implied in fact, because Crawford is accustomed to getting called by the Po’s to tow and impound and then get paid. However, due to the volume an essential term was missing as work like this had never been done before, but still allows for the formation of a K per restatement court can place in reasonable price.

Front 82

Equitable Restitution

Back 82

…not seeking to impose personable liability on the defendant but to restore to the p particular funds or property in the defendant’s possession.

Front 83

Accounting for profits

Back 83

If a Plaintiff is entitled to a constructive trust on particular property held by the defendant, he may also recover profits produced by the defendant’s use of the property even if he cannot identify a particular res containing the profits sought to be recovered

Front 84

Constructive trust

Back 84

When property has been wrongfully acquired, equity converts the holder into a trustee and compels him to account for the gains of such conduct
• To be entitled to a constructive trust, ordinarily must establish four elements
o A confidential or fiduciary relationship
o Express or implied promise
o A transfer made in reliance on that promise
o And Unjust Enrichment
 Additionally, don’t forget adequacy of legal remedy test

Front 85

Lowest intermediate balance rule

Back 85

Any funds removed from the account are presumed to be debtors personal funds to the extent these funds exceed the beneficiary’s equitable interest…the trust beneficiary may retrieve the lowest balance recorded after the funds were co-mingled
 Tracing fictions should only be used if it is equitable
o Burden of proof is on the person asserting trust to show that they are entitled to the property
 If it is co-mingled, burden is shifted as long as can prove it is co migled

Front 86

Equitable lien

Back 86

-can be created by express agreement between the parties which shows an intention to charge some particular property with a debt or obligation or on the basis of right and justice according to the dictates of equity an conscience as where a contract of reimbursement could be implied at law
o Gives a right to foreclose on the property for the payment of the debt
o Do not apply to property generally…they must attach to a specific property based on a specific theory
o Must be supported by direct evidence of contribution to the property on which the lien is asserted
o A contract to pay for services out of a designated fund gives the party performing an equitable lien on that fund when it comes into existence

Front 87

subrogation

Back 87

if a D would be UE except for the UE is unenforceable due to it being cast upon the D by illegal means, a court may subrogate one party into the rights of the other
o Cedar Lane—defaulting home owner installment land contract would have had UE claim against party foreclosing, however the improvements were made with embezzled funds…the company whose funst were embezzled were subrogated into their place in order to enforce the UE

Front 88

Tort & restitution

Back 88

in cases where a D tortfeasor has benefited by his wrong, the P may elect to wave the tort and bring an action for restitution
o Olwell—in being bought out of the company, an owner had rights to an egg machine…instead of suing for conversion sued for Restitution…recovered benefit of use as oppose to the cost of machine

Front 89

officious intermeddler

Back 89

One who officiously confers a benefit upon another is not entitled to restitution
o Look for volunteering to do work that benefits you and then passing the buck
o Look for volunteer activity in general
o In collecting against the government for rendering government services…don’t want private citizens to determine how to expend public funds
o Narrow exception for restitution for emergency services performed by an actual doctor

Front 90

No expectation of compensation

Back 90

A Plaintiffs lack of expectation of payment can defeat a restitution action
o Payment does not have to be monetary it can be others.
o Dusenka: the wife of a man who helped him out during life and at his business sued for services rendered after not getting a piece of the estate…court held there was no expectation of compensation and would not have changed her ways even if knew of the devise
o Kuder—in K claims relative to spousal support…where K fails due to pre existing duty, look for UE claim

Front 91

Preclusion by K

Back 91

Restitution is unavailable to a plaintiff who is seeking to avoid an unprofitable contractual expectation.
Exceptions:
o when a defendant has materially breached a contract the Plaintiff is discharged from performance and can sue for contract damages or rescind the contract and sue for restitution.
 Exception to this exception: When the breach is failure to pay the contract price the P cannot avoid a bad deal by bringing a non contractual action in restitution
o Fraud
o Bad Faith
o Mutual Rescission
o Recission
o If you have an unenforceable K due to SOF you can still have restitution!!???

Front 92

change in position

Back 92

If the defendant that has been unjustly enriched has materially changed their position in a manner that is irrevocable such that the beneficiary cannot be returned to the status quo, then it may act as a bar to a restitution claim.
o However, a mere change in the form of the proceeds does not qualify when the beneficiary has retained the value
o Can recover to the extent that the beneficiary will not be damaged
• Have to demonstrate loss in value
• Make argument for services

Messersmith—spent unjust enrichment (paid more than what was owed on stocks) paid bills and house…considered retained

Front 93

Innocent Third Party Creditor

Back 93

A creditor of another who has received from a third person any benefit in discharge of the debt is under no obligation to make restitution therefore, although the discharge was given by mistake of the transferor as to his duties, if the transferee made no misrepresentation and did not have notice of the transferor’s mistake
• St. Mary’s Medical Center—Insurance made a wrong payment to the hospital as beneficiary’s policy had lapsed…insurance makes distinction between payment to the insured and payment to the hospital….innocent third party exception as it shifts no extra burden to insurers and St. Mayrs has already exchanged value for it

Front 94

Unclean Hands

Back 94

In order to assert a defense of unclean hands, the plaintiff must have been guilty of some misconduct in regard to the same transaction to which he is presently suing the defendant
• Cant seek to enforce a non-compete if they engaged in hiring the employee via the same behavior

Front 95

Estoppel

Back 95

• Admission statement or act inconsistent with the claim afterward
• Action by the other party in reasonable reliance on the admission statement or act
• Injury to the party when the first party is allowed to contradict or repudiate its admission statement or act

Front 96

Laches

Back 96

• Knowledge or reasonable opportunity to discover that the p has a cause of action
• Unreasonable delay by the p in commencing the cause of action
• Damage to the d resulting from the unreasonable delay

• Mirrors the SOL at law