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Flashcards in Equity Deck (37):
1

Can divorce or annulment be resolved by default?

No default, must still make an evidentiary submission if defendant fails to appear

2

When are there statutory rights to jury hearings for equitable claims?

1) quiet title actions; and
2) defendant files a plea to an equitable claim
- plea is an affirmative defense

3

How is a review of a decree sought from the trial court?

1) motion to suspend, modify or vacate judgment (21 days)
2) bill of review (6 months) - newly discovered evidence
3) appeal (30 days notice of appeal with trial court)
- divorce (Court of Appeals as a matter of right)
- others are discretionary to Supreme Court

4

To seek an equitable remedy what is required?

1) legal remedy must be inadequate
2) equitable relief must be feasible
- enforceable by contempt
- equitable relief is always discretionary

5

What torts are typical for seeking injunctive relief?

1) continuous trespass or repeated trespass
2) conversion of unique chattel
3) stop unfair competition

6

An injunctive may be available to eliminate what types of nuisances?

Private nuisances may be available, not public.

7

An injunction may be available to prevent what type of waste?

only for destructive waste and permissive waste

not ameliorative waste

8

Is injunctive relief available for defamation?

No injunction, unless private figure and the publication will violate a property right

9

Is injunctive relief available for an invasion of privacy?

No.

10

What is needed to obtain an preliminary injunction?

1) substantial likelihood the moving party will prevail
2) irreparable harm to movant unless status quo is maintained
3) harm to moving party outweighs hardship to opposing party
4) public interest will not be adversely affected

11

Is a bond required for a temporary injunction?

Yes.

12

To obtain specific performance what is needed?

1) valid contract with offer and acceptance
2) contract conditions have been met
3) mutuality of remedies must exist

13

What does mutuality of remedy require for specific performance?

1) both parties are able to perform; and
2) both parties can be bound, not under a disability

14

For a covenant not to compete, equity will grant specific performance if the restrictions are reasonable as to:

1) employer's legitimate interest in protecting its business
2) employee's fair opportunity to accept other jobs in the industry
3) public interest
- look at specific activities, geographic limit, duration

15

Rescission of a contract in equity is available when:

1) mutual mistake as to a material fact; or
2) unilateral mistake with misrepresentation (even if innocent) and some other form of inequitable conduct
- restitution is available to recover any value exchanged prior to rescission

16

Rescission ____ a contract and reformation ____ a contract.

Cancels
Modifies

17

In equity to obtain reformation of a contract what is needed?

valid contract and
1) any mistake or
2) unilateral mistake coupled with knowing misrepresentation

18

In equity, when is restitution available?

plaintiff can show that defendant
1) obtained a benefit from plaintiff; and
2) defendant knew or should have knew that plaintiff expected compensation

19

When a plaintiff seeks redress on a quasi contract is a jury allowed?

Yes - quasi contract is considered legal theory for restitution

could also file an equitable claim for restitution

20

What remedies are available to achieve restitution in equity?

1) dollar damage awards
2) constructive trust - to disgorge defendant
3) equitable lien on property
4) specific performance of items

21

In equity, what is the preferred outcome for a partition of property?

partition-in-kind by splitting parcel if it can be conveniently achieved

22

What are defenses to equitable claims?

unclean hands
laches
unconsciousability
impossibility and hardship
fraud
equitable estoppel

23

Define laches

unexcused lapse of time coupled with prejudice to defendant

24

What circumstances may excuse plaintiff's delay in bringing an equitable cause of action?

1) defendant's concealment, fraud, or inequitable conduct
2) reasonable lack of awareness
3) waiting for US Supreme Court to decide a test case

25

Does a liquidated damages clause prevent a suit in equity?

No does not prevent access to equity
Liquidated damages limits damages if brought at law

26

If the equitable remedy requires enforcement of performance out of state will it be granted?

No.

27

When should a plaintiff seek a constructive trust over an equitable lien?

When the property acquired at plaintiff's expense is worth more than plaintiff's claim and plaintiff should seek to obtain the illicit gain itself.

28

When should a plaintiff seek an equitable lien over a constructive trust?

When the value of the item is worth less than plaintiff's claim.
Seek equitable lien on the property and a deficiency decree for balance.

29

Is a constructive trust an exclusive remedy?

Yes, cannot seek constructive trust and a deficiency decree.

30

Can a plaintiff seek a constructive or equitable lien on property that the defendant converted?

No, defendant did not acquire title to which a trust or lien could attach.
Only can use specific performance to return the item

31

D wrongfully converts P's painting and car, sells both and invests the proceeds in a yacht. What are P's remedies in equity?

Constructive trust or equitable lien in yacht.
Cannot get specific performance of yacht, because P never had title to yacht.

32

Can a preliminary injunction be sought ex parte in equity?

Yes if needed to preserve the status quo
- referred to as restraining orders in VA; TRO in federal practice

33

If people are cutting down trees an owner's land, and the people say that they have permission from adjacent owner, what can be done?

- Call sheriff for trespasser
- seek injunctive relief - restraining order to stop
- motion to establish boundary line against adjacent owner
- permanent injunction
- constructive trust on the value of the trees sold

34

What defense should always be raised in an equity case?

adequate remedy available at law

35

If a claim is barred by the statute of limitations, can an equitable claim be asserted to avoid statute of limitations?

No. Equity follows law, therefore, if a legal demand asserted in equity is, at law, barred by statute, then it is equally barred in equity.

36

In determining whether to grant a temporary injunction what are the factors?

1) irreparable harm to plaintiff if motion is not granted
2) is there an adequate remedy at law
3) likelihood of success on the merits
4) balancing of equities favors the plaintiff
5) plaintiff is offering bond

37

Is a temporary injunction available to obtain immediate possession of property?

No, because there is an adequate remedy at law (petition in detinue or petition for attachment)