Remedies

Question 1

Order of analysis for remedies essays

Answer 1

First, determine any legal remedies.
Second, determine any restitutionary remedies (legal and equitable).
Third, determine any equitable remedies.

Question 2

Tort remedies

Answer 2

Legal remedies: damages

Legal restitutionary remedies: any legal restitution, replevin, ejectment.

Equitable restitution: constructive trust/equitable lien.

Equitable remedies: injunctive relief.

Question 3

Tort remedies: list three types of damages

Answer 3

(1) compensatory
(2) nominal
(3) punitive

Question 4

Tort remedies: requirements re: compensatory damages

Answer 4

4 requirements:

(1) actual causation
(2) proximate causation
(3) certainty (damages not too speculative)
- PAST losses must be more certain than FUTURE (which must be more likely than not)
(4) unavoidability: P must take reasonable steps to mitigate

Question 5

Tort remedies: requirements re: compensatory damages: ECONOMIC LOSSES

Answer 5

E.g., Medical expenses, lost earnings.

Basic certainty rules apply (past more certain than future; future more likely than not).

Question 6

Tort remedies: requirements re: compensatory damages: NON-ECONOMIC LOSSES

Answer 6

E.g., pain and suffering

Basic certainty rules do NOT apply. Jury can award what it wants subject to proper jury instructions.

Question 7

Tort remedies: requirements re: compensatory damages: FORM of the judgment payment

Answer 7

single lump sum discounted to present value, inflation traditionally NOT taken into account but the modern rule now DOES take inflation into account.

Question 8

Tort remedies: nominal damages

Answer 8

P has suffered no actual injury, but P wants to sue to establish rights.

E.g., a suit over an easement.

Question 9

Tort remedies: punitive damages: three basic rules

Answer 9

(1) CANNOT be alone, must be on top of another form of relief
(2) fault must be GREATER than negligence
(3) relative proportionality with single-digit ratios

Question 10

Tort remedies: restitutionary remedies basic concept

Answer 10

To prevent D’s unjust enrichment

Question 11

Tort remedies: “LEGAL” restitutionary remedies

Answer 11

Amount calculated based on benefit conferred to D

opposite of damages, which is calculated as harm to P

Question 12

Tort remedies: can P recover both compensatory damages and legal restitution?

Answer 12

NO! But on essay analyze both and conclude that P would have larger amount of the two.

Question 13

Tort remedies: can a P recover punitive damages on top of restitution damages?

Answer 13

Yes, but only for torts!

Question 14

Can a P recover punitive damages on top of restitution damages?

Answer 14

Yes, but only for torts!

Question 15

Tort remedies: replevin

Answer 15

A type of legal restitution

P recovers a specific piece of property, P must show:

(1) P has right to possession and
(2) there is a wrongful withholding by D.
* *same as for ejectment for real property

P can recover the chattel BEFORE trial, but P must
post bond. BUT D can then post a “redelivery bond” and then keep the chattel during trial.

Question 16

Tort remedies: ejectment

Answer 16

P recovers specific REAL property (e.g., land)

P recovers specific property, P must show:

(1) P has right to possession and
(2) there is a wrongful withholding by D.
* *same as for replevin for chattel

Question 17

Tort remedies: constructive trusts and equitable liens:

• what category are they in?
• define constructive trust and process
• define equitable lien and process
• explain how to choose which to use

Answer 17

Types of “equitable” restitution remedies

Constructive trust: when D has TITLE that D improperly acquired, and we treat him as a trustee to return the property to itself back to P.
Process: show legal remedies (e.g., damages) inadequate (likely because property super unique or D insolvent).

Equitable lien: when D has TITLE to property that D improperly acquired, the property is sold, proceeds go to P. If less than amount P is owed (which is basically what P paid for it), D then gets a deficiency judgment for personal assets to pay P the remaining.
Process: show legal remedies (e.g., damages) inadequate (likely because D insolvent).

But BFPs always are safe!

How to choose?

• If property value goes DOWN, go with equitable lien (because then P can recover the full purchase price)
• If property value goes UP, go with constructive trust (because then P can recover the property itself, which is more valuable than what P paid).

Question 18

Tort remedies: constructive trusts

Answer 18

Type of “equitable” restitution remedies

Constructive trust: when D has TITLE that D improperly acquired, and we treat him as a trustee to return the property to itself back to P.

Process: show legal remedies (e.g., damages) inadequate (likely because property super unique or D insolvent).

Question 19

Tort remedies: equitable lien

Answer 19

Type of “equitable” restitution remedies

Equitable lien: when D has TITLE to property that D improperly acquired, the property is sold, proceeds go to P. If less than amount P is owed, D then gets a deficiency judgment for personal assets to pay P the remaining.

P must show that (1) that legal remedies inadequate; (2) the defendant misappropriated the plaintiff’s property, (3) the P’s property can be traced to D, and (4) D unjustly enriched.

Question 20

Tort remedies: equitable remedies: injunctions

Answer 20

First assess temporary/preliminary or permanent

• temporary = before trial
• permanent = after full trial on merits

Question 21

Tort remedies: equitable remedies: temporary/preliminary injunction

Answer 21

TRO and PI process:

**TRO: issued pending a hearing to determine whether PI should be granted. Same analysis for both.

Step 1:

• establish irreparable injury (look to time-frame facts, can’t wait until trial) and
• balance of hardships (P without it will face greater burden than D with it)

Step 2:

• establish P’s likelihood of success on the merits
• P posts a bond

TRO limited to 14 days, then another 14 days. Must try to give D notice, but can be done ex parte.

Question 22

Tort remedies: equitable remedies: permanent injunctive relief
4 steps

Answer 22

FOUR STEPS

Step 1: list legal remedies (replevin, ejectment, damages) and why inadequate:

• REPLEVIN: sheriff cannot get chattel, D could post redelivery bond and then abscond with the chattel
• EJECTMENT: sheriff may not be able to act
• DAMAGES: 4 reasons:
  (a) too speculative
  (b) D is insolvent
  (c) irreparable injury
  (d) avoiding multiplicity of actions (look for prior history of litigation between P and D).

Step 2: Feasibility of enforcement

• negative injunction: no enforcement problem
• mandatory injunction: maybe problem if difficult to supervise (e.g., some act that relates to personal taste, an out of state action is required,)

Step 3: Balancing hardships

• gross disparity between P and D hardships
• but no balancing required IF D’s conduct was willful
• consider public

Step 4: Defenses

• Unclean hands (only if P’s bad conduct is related to the case)
• Laches (clock starts when P learns of D’s act)
• Impossibility
• Free speech (if defamation)

Question 23

Tort remedies: civil versus criminal contempt for defying court order

Answer 23

Civil: meant to COERCE, a fine and D goes to jail until agrees to comply

Criminal: meant to PUNISH, stays for set amount of time

Question 24

Contract remedies: the types of LEGAL damages and analysis

Answer 24

Based on injury to plaintiff. Look at causation, foreseeability (at time of contract formation), certainty, and mitigation.

Type 1: Compensatory damages

• Direct: ones that flow directly from harm: EXPECTATION damages.
• Consequential: for related damages foreseeable at time of contract formation.

Type 2: Nominal damages: available

Type 3: Punitive: not available!

Question 25

Contract remedies: analysis for liquidated damages

Answer 25

Step 1: the damages are very difficult to ascertain at time of contract formation. Step 2: the liquidated damages clause is a reasonable forecast and an excessive penalty. If invalid, just go to compensatory damages.

Question 26

Contract remedies: when restitution available

Answer 26

When the contract is UNENFORCEABLE and P can recover what he gave to D. When contract is BREACHED. - when P is breaching party: traditional view, no recovery; modern view, yes but not greater than K rate and offset by damages suffered by D - when P is NON-breaching party: can get money or property back

Question 27

Contract remedies: specific performance requirements

Answer 27

5 steps: (1) contract is valid, with terms more certain and definite than those required for legal remedies (2) plaintiff has performed, is ready and able to perform, or is excused from performing. (3) legal remedy inadequate (damages) (4) feasibility of enforcement (5) defenses: equitable (unclean hands, laches, unconscionability at contract formation) and contract defenses (mistake, misrepresentation, SOF)

Question 28

Contract remedies: rescission

Answer 28

Where original contract is voidable and rescinded General grounds for rescission: contract FORMATION: mistake, misrepresentation, coercion, undue influence, lack of capacity, consideration, illegality, etc. Defenses: unclean hands, laches

Question 29

Contract remedies: reformation

Answer 29

Changes the written agreement to conform with parties' original understanding (1) is there a valid contract? (2) are there grounds for reformation? - MUTUAL mistake, or unilateral mistake where one party knows (3) valid defenses? Unclean hands, laches

Question 30

Unclean hands doctrine

Answer 30

Available where plaintiff - has acted inequitably or unlawfully for the issue at hand, and - the defendant has been injured by that conduct.

Question 31

Purchase money resulting trust and potential defense

Answer 31

Two people supply consideration for a buyer to take title: the titleholder is deemed a trustee and part of the property is for the other person who helped give consideration as a beneficiary. Beneficiary entitled to pro rata share. Imposed by court and hence no writing necessary Potential defense: no trust was intended, like if the beneficiary's contribution was a loan, payment of a debt, or gift. The trustee/title holder bears burden of showing such intent. If both parties are close family members, a gift is presumed. Then beneficiary has burden of showing other such intent.

Question 32

Conversion legal remedy

Answer 32

P entitled to damages for the fair market value of the property at the time and place of conversion.

Question 33

Replevin for contract under UCC

Answer 33

Two way: (1) if the goods were purchased for personal, family, or household purposes, or (2) undelivered, identified goods if, after reasonable effort, the buyer is unable to secure adequate substitute goods. Not available if not sure that the sheriff cannot seize the goods.

Question 34

Continuing nuisance remedies

Answer 34

Damages: - value of loss of use and enjoyment (includes profits), plus costs to abate nuisance, and award for discomfort - damages causation, foreseeable, certain, unavoidable - does not include future losses where the nuisance can be ended at any time Permanent nuisance doctrine: - avoid multiple suits, recover for permanent diminution in value of property - requires proof of physical permanent damage