Remedies

Question 1

surgery as mitigation

Answer 1

In tort law, whether surgery is required to mitigate damages is a question of fact for the jury. Failure to mitigate damages is an affirmative defense to be asserted and proven by the defendant. To argue that refusal to undergo surgery or other medical treatment constitutes a failure to mitigate, the defendant must prove that a person of ordinary intelligence or prudence under similar circumstances would have undergone the recommended medical procedure. Some commenters have argued that in order to mitigate damages, a plaintiff is required to submit to surgery that is not major, dangerous, or serious. However, Wisconsin law holds that an injured party, in order to recover fully for his damages, is only required to undergo treatments that a reasonable person in the same situation would agree to undergo. Whether a reasonable person would agree to a specific recommended treatment is a question of fact for the jury.

Note – what is considered a dangerous operation in 1935, will be different in 1985. This is a flexible standard.

Religious convictions? – refuse blood transfusion b/c of religion – should damages be disallowed under failure to mitigate? – defendant doesn’t have to PAY – they can use this – we’re not saying that this individual can’t decide to do this but the defendant shouldn’t have to pay for this

Question 2

Market value – retail vs. wholesale

Answer 2

Market value – retail vs. wholesale

• if a consumer needs to replace something in the market, retail
• if a seller needs to replace something, wholesale

Question 3

fungible goods

Answer 3

• if a product is truly fungible, that’s where FMV is great
• King Service – barge used as a dry dock platform, chattel used as unique thing, it’s a barge not used in the barge market so you shouldn’t get its value in the barge market, the value should reflect its use – if this market value cannot be ascertained, look at value to the owner in which cost of repair may be more effective

Question 4

Commingling of Funds

Answer 4

• Dominant approach: Rule of Jessel’s Bag – Note 5 – the first withdrawals from a commingled fund are presumed to belong to the wrongdoer and the remaining balance is subject to the equitable interest asserted by the claimant
o Modified by Note 6, the Oatway Rule – gives the claimant a choice between the assets traceable to the funds drawn out first or those withdrawn from the account at a later time – the plaintiff can take the identifiable product if that’s most advantageous to the plaintiff
o Example of equitable discretion
o No tracing rules should get in the way of the plaintiff getting the money
o Whatever favors the plaintiffs the most is what will be used

Question 5

Oatway Rule

Answer 5

gives the claimant a choice between the assets traceable to the funds drawn out first or those withdrawn from the account at a later time – the plaintiff can take the identifiable product if that’s most advantageous to the plaintiff

Question 6

Rule of Jessel’s Bag

Answer 6

the first withdrawals from a commingled fund are presumed to belong to the wrongdoer and the remaining balance is subject to the equitable interest asserted by the claimant

Question 7

Lesser Lien Theory

Answer 7

• Subsequent/late deposits of D’s own money are not considered as belonging to the plaintiff- this is to protect other creditors
• If you can’t get all of the money you lost, you can get a money judgment for the remainder but you’re in line with the other creditors

Question 8

Bona Fide Purchaser

Answer 8

This is a defense

• Requires proof that D acquired legal title to the property at issue for value and had no notice of plaintiff’s interest
o Good faith purchaser for value
• Both the P and D are innocent
• Not unjust for a bona fide purchaser to retain title
• Tracing does not function if the person is a bona fide purchaser

Question 9

Change in position

Answer 9

Defense to a claim of restitution
• A court may deny a restitutionary remedy if the defendant would be adversely affected by virtue of circumstances which have materially changed after receipt of the benefit
• Example: person mistakenly delivers goods to another under circumstances which would constitute unjust enrichment. Ordinarily the recipient would be required to make restitution but if the goods are subsequently destroyed by fire, and the recipient was not more at fault than the claimant for the loss, a court would properly decline to order restitution

Question 10

What are defenses to restitution

Answer 10

change in position, bona fide purchaser

Question 11

volunteer?

Answer 11

Did P know about the improvements D was making? Did the person expect money? Is this something that you could have made a contract for? Could D have refused the benefits?

Question 12

expectancy damages

Answer 12

put P in the position had the contract been performed

Question 13

1983 claim + nominal damages

Answer 13

• In an action under 42 U.S.C. § 1983 for the deprivation of procedural due process, the plaintiff must prove that he actually was injured by the deprivation before he may recover more than nominal damages.

Question 14

Requirements for Declaratory Judgment

Answer 14

•	is there Subject matter jurisdiction – federal declaratory act doesn’t allow you to answer the question 
•is there a case or controversy	
Is there Sufficient immediacy – not yet ripe, you must show you need it NOW 
Prudential considerations (totality of circumstances)

o If it looks like they’re just trying to get a litigation advantage, this is an improper use of declaratory judgment

*you don’t want to get involved in a state action

Question 15

how to show something is not ripe for a

Answer 15

delay in communication between parties, no suit between two parties – court may say renew your request later

Question 16

economic loss rule for products liability

Answer 16

-no tort liability where product does not cause physical harm to a person or to “other property” (other than the product itself)

Question 17

economic loss rule

Answer 17

Under the economic loss rule, a plaintiff may not recover damages for economic losses from a stranger defendant when the D’s tortious action causes economic loss only rather than injury to the plaintiff’s person or property.
-provides predictability in an otherwise uncertain area of law and places a reasonable limit on the tortfeasor’s liability

*The defendant does not have a duty to protect the defendant from strict economic harm

Question 18

Integrated Part Rule

Answer 18

• R 3rd of Torts: Where one component part of a product damages the entire product (engine in a car that flames out and car burns up) the rest of the car is not considered other property
o You don’t separate the component parts
o You can’t say because the engine burned the seats that you have a tort case - instead this is a warranty claim
• BUT: If a component part is added later to existing project, that IS other property
o Is the component part being sold as part of the same deal?
o Look at the scope of the contract of sale

Other approach

“disappointed expectations” – whether the risk of damage was within the scope of the bargain. If damage was within the scope of bargain (could have been in negotiations) then the damage is recoverable only on a contract theory not a torts theory. Is product reasonably expected to affect other property? If so, you can’t seek tort damages on damage to this property.

Question 19

suing for pure economic loss under negligence generally

Answer 19

• no tort liability for pure economic harm (i.e. no physical injury to person or property)
• exceptions

Special relationship triggers a duty where one would not otherwise exist
• Negligent misrepresentation – special relationship
• Lawyer-client
• Notary-public
• Common characteristics: D with special training and particular knowledge that people would be harmed by negligent conduct
• Foreseeability alone can’t trigger a duty — aguilar + socal gas
o We begin from proposition that there is no duty

Question 20

Restitution: Mistake

Answer 20

People are generally entitled to rescission and restitution where there is a contract implied by mutual mistake, which is in substance the same as unjust enrichment.

A person is not entitled to rescind a transaction if he agreed to assume the risk of a mistake for which he would otherwise be entitled to rescission and restitution. The justification for allowing restitution based on mistake is that the agreement otherwise would no accurately reflect the true intentions of the parties.

Question 21

Equitable CLean up

Answer 21

If judge decides that equitable claims/remedies/issues predominate
Jury does nothing
The judge “cleans up” the legal matters
If judge decides that legal claims/remedies/issues predominate:
Jury available for only those (legal) matters
Jurisdictional split on the order
Jury first, judge second or
Judge first, jury second
Remember:

Question 22

mixed cases - federal

Answer 22

Jury first, judge second
Maximum protection of jury trial rights
Judge bound by jury’s determinations of fact

Question 23

consequences of remedy characterization

Answer 23

1. right to jury
2. judicial resources
3. enforcement

Question 24

Traditional Test for Interlocutory Relief

Answer 24

1. substantial likelihood of success on the merits
2. irreparable harm to P likely, not just possible, if no injunction
3. balance of hardships in P’s favor
4. public interest does not disfavor grant

Question 25

Sliding Scale Test

Answer 25

1. substantial likelihood of success on the merits 2. irreparable harm to P likely, not just possible, if no injunction 3. balance of hardships in P's favor 4. public interest does not disfavor grant Elements 1 & 3 - the less likely P is to prevail on the merits of the underlying claim, the sharper the balance of hardships must tip in P's favor Stronger showing on success on the merits can be compensated by a case where maybe the balance of hardships doesn’t tilt in your favor. Alternative test applies to preliminary injunctions and TROs. Most circuits allow a moving party to prevail under the traditional test or the sliding scale. States that have sliding scale still use the traditional test too.

Question 26

serious questions test

Answer 26

Ninth Circuit’s “sliding scale” test post-Winter is called the “serious questions” test a preliminary injunction could issue where the likelihood of success is such that “serious questions going to the merits were raised and the balance of hardships tips sharply in [plaintiff’s] favor.”

Question 27

injunction bonds

Answer 27

court may issue a preliminary injunction or TRO only if movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party. U.S. government does not pay security (they make good, so probably don’t need to)

Question 28

Additional Considerations in Nuisance cases

Answer 28

- Court can consider that maybe a technology change could occur and the nuisance may end at same point. - Court will also consider compliance with zoning or regulations - courts can consider order of arrival-As noted in Spur Industries v. Del E. Webb (cattle feedlot in Phoenix suburb case), parties order of arrival can serve as a persuasive factor. Court granted injunction forcing feedlot to move, but the developer had to pay for the feedlot to move. This is because of the feedlot was there before the development.

Question 29

What must plaintiff prove to get a permanent injunction?

Answer 29

1. Actual Success on the Merits of the Substantive Claim 2. Inadequate Legal Remedies 3. Irreparable Harm - serious, not trivial 4. Balance of Hardships / Balance of Equities Favors Grant of Injunctive Relief 5. Public Interest Does not Disfavor Grant of the Injunction

Question 30

How to show a legal remedy is inadequate?

Answer 30

Couldn’t achieve desired outcome. Conduct of D repeats – so would end up creating multiple legal actions over time (expensive and time consuming) Calculating damages would be too speculative Undefined “special circumstances” - Loss of constitutional rights or where real property is involved (not chattel). Often argued that it cannot be measured properly in dollars.

Question 31

Public Interest Does not Disfavor Grant of the Injunction

Answer 31

Courts cannot offer an assertion of the public interest contrary to the will of the legislature Look at the effect of the injunction on non-litigant parties

Question 32

Differences between TROs and Preliminary Injunctions: Appealability

Answer 32

Grant or denial of TRO is NOT appealable, while preliminary injunctions are appealable, by either side. Standard of Review is abuse of discretion

Question 33

Differences between TROs and Preliminary Injunctions: Notice

Answer 33

NOTICE: Notice is required for preliminary injunctions; None is required for TRO to be granted (although once granted notice should be given) The hearing can be very flexible for preliminary injunctions. A hearing, with witnesses etc., needs to be held because of the presence of factual disputes that needed to be resolved. If factual disputes are simple or not significant, a hearing just on the papers, meaning without witnesses, may be appropriate. Required of courts under FRCP 52. You can get a TRO ex parte (meaning without notification to the other side). Not true for preliminary injunction, both parties have to be able to show their case in adversarial setting.

Question 34

when can a TRO be granted ex parte

Answer 34

TROs can only be granted ex parte -upon specific showing that immediate and irreparable harm will result before the opposing party could be notified and heard. Ex parte injunctive relief is common in three situations: Where identity of adverse party is unknown or because a party cannot be located in time for a hearing Where plaintiff would face irreparable harm so immediate it would be improper to wait until the defendant was notified and given an opportunity to be heard A narrow band of cases where notice to the defendant would undermine the plaintiff’s action What kinds of facts to show ex parte would be appropriate (where giving notice upsets status quo)? A genuine showing the adverse party would destroy evidence. Domestic violence restraining orders – giving notice could cause violence or death.

Question 35

purpose of TRO vs. purpose of preliminary injunction

Answer 35

TROs purpose is to preserve the case/the status quo until there is a hearing on the preliminary. The preliminary injunction is aimed at preserving the status quo until the final trial on the merits.

Question 36

Ex parte TRO’s and the First Amendment

Answer 36

Usually cannot get an ex parte TRO when free speech rights, even involving hateful speech, are implicated There can be no greater restraint on speech than is necessary The injunction needs to be narrowly tailored No ex parte TRO if it involves free speech rights – D must be (1) Present at the hearing; and (2) Have received formal or informal notice

Question 37

Factors in determining bond amount

Answer 37

(1) Predicted harm to enjoined party if injunction turns out to be wrongfully issued (2) Likelihood of success on the merits The more likely movant is to succeed on the merits 🡪 the lower the bond amount has to be

Question 38

Recovery of damages on the bond

Answer 38

- There is a presumption in favor of recovery by D when an injunction is found to be wrongfully issued - Even given the presumption of recovery, a D seeking damages on the bond after a wrongfully issued injunction does not automatically get the bond amount - Non-movant has to prove the amount of damages proximately caused - Must show damages to a reasonable certainty -Vast Majority: Damages are capped at the bond amount

Question 39

Pre-Appeal INjunctive Relief Test

Answer 39

(1) Likelihood of success on the merits of the appeal (2) Movant will suffer irreparable harm (3) Balance of hardships Hardship to party moving for the pre-appeal relief if it is not granted vs. hardship to the non-movant if the pre-appeal relief is granted (4) Public interest The difference is the time frame

Question 40

Automatic stay of an injunction

Answer 40

FEDERAL: NO CA: If mandatory injunction (that order somebody to affirmatively do something) automatic stay upon filing a notice of appeal If prohibitory injunction (that prohibits certain conduct) 🡪 no automatic stay 🡪 non-movant must seek it

Question 41

Automatic grant of Injunction Pending Appeal

Answer 41

Federal and state court: No | Party has to ask for it

Question 42

Collateral Bar Rule

Answer 42

D cannot collaterally attack the validity of the underlying injunction as a means of escaping contempt; Does not apply to civil contempt sanctions, because an attack on the underlying injunction there is a direct, rather than collateral, attack on the underlying injunction

Question 43

Requirements for Direct Criminal Contempt

Answer 43

A certificate signed by the judge that: (1) Lists the facts of the event; (2) certifies that the judge saw or heard the conduct constituting the contempt; and (3) that it was committed in the actual presence of the court *Federal – narrow presence requirement *State (Daniels)– broad presence requirement expanded the term’s definition to include instances where judge didn’t see everything, but saw and heard “enough”

Question 44

jury trial rights - direct criminal contempt

Answer 44

No, as long as judge puts the party in direct criminal contempt on the spot Jury trial right attaches if contempt sanction issued at a later date than the offense

Question 45

procedure used in direct criminal contempt

Answer 45

Summary: Judge can hold D in contempt in a summary fashion without notice, opportunity to be heard and call witnesses

Question 46

indirect criminal contempt jury rights

Answer 46

Yes, if sanction is “serious” | If jail sentence exceeds six months

Question 47

effect of underlying order being vacated: indirect criminal contempt

Answer 47

Because an indirect criminal contempt sanction is a crime in and of itself 🡪 thus, the violation of a court order, even where the court order is later found to be invalid or improper, remains a crime

Question 48

civil coercive contempt sanctions

Answer 48

Sanctions are conditional D can purge (end) the sanction by obeying the court order

Question 49

right to counsel - civil coercive contempt

Answer 49

Turner: Alternative procedural safeguards to a lawyer must be provided to an indigent person who is jailed to coerce compliance if a lawyer is not provided Adequate notice of importance of ability to pay Fair opportunity to present and dispute relevant information and court findings

Question 50

substantial compliance

Answer 50

- affirmative defense used in a civil contempt action when claiming impossibility - A party is in contempt if he has failed to substantially comply with a court order - Substantial compliance is found where “all reasonable steps have been taken to ensure compliance”

Question 51

Foreseeability of Damages: Breach of K

Answer 51

*Damages must have been reasonably foreseeable to the BP at the time the contract was entered into * General – Presumed to be foreseeable * Special – NBP needs special proof to show BP “had reason to know” special damages could occur

Question 52

general damages

Answer 52

-Flow directly and immediately from the natural consequences of the breach of contract -Irrebuttable presumption of foreseeability by BP I.e. the mere fact of the breach proves general damages

Question 53

Mitigation of damages

Answer 53

non-breaching party must take reasonable steps to mitigate the amount of damages. Non-breaching party cannot just recover damages that could have been avoided by reasonable efforts. There is a duty to mitigate damages. Only has to do with what occurs after the breach occurs. Where plaintiff has acted reasonably to mitigate damages, but you can recover those mitigation costs. We want to encourage people to mitigate and we will reimburse them for steps taken to mitigate that harm Only reasonable steps are required, not extraordinary measures.

Question 54

special damages

Answer 54

- Damages that are more remote or collateral than general damages - They are special to the particular NBP and/or contract - No presumption of foreseeability by BP - P must prove special damages with special proof BP must have had a “reason to know” special damages could occur

Question 55

Lost profits of a new (or relatively new) business

Answer 55

Recoverable, if they can be proved to a reasonable certainty - before and after test - yardstick test

Question 56

before and after test

Answer 56

Compare pre-breach profits to post-breach losses | A business that is brand new will be unable to use this test

Question 57

yardstick test

Answer 57

Look at profits of business operations that are closely comparable to NBP’s The only option for brand new businesses, who have no pre-breach profits with which to compare

Question 58

Three Types of Interests Invaded by Breach of Contract

Answer 58

1. expectancy 2. reliance 3. restitution

Question 59

expectancy interest - how is this calculated

Answer 59

breach of K - damages Puts the NBP in the position he would have been in had the contract been fully performed 1. loss in value due to failure to perform; plus 2. any other loss caused by breach (special damages); minus 3. any cost or other loss that NBP has avoided by not having to perform

Question 60

Reliance recovery

Answer 60

breach of K- damages Reliance interest puts plaintiff back into the position prior to the contract being made is is an alternate (either/or) measure to expectancy damages

Question 61

Loser Contracts

Answer 61

NBP limited to reliance or restitution | NBP cannot recover expectancy because there would have been no gains from full performance

Question 62

restitutionary recovery under K

Answer 62

It is based on what defendant unjustly gained, not what plaintiff lost. Make breaching party give back what they gained.

Question 63

doctrine of avoidable consequences

Answer 63

NBP must take reasonable steps to avoid and mitigate losses caused by the breach Where NBP has acted reasonably to mitigate damages, he can then recover the costs expended in doing so as part of the breach of contract suit

Question 64

bad faith under breach of k

Answer 64

Majority: Bad faith (i.e. a willful breach) not factored into the cost of repair award Minority: Bad faith results in a higher cost of repair award

Question 65

measuring value for breach of K

Answer 65

Cost to Repair OR Difference in Value (The difference in value between what was promised and what was received.) -unless the cost of repair is grossly disproportionate to the value of the benefit conferred by the replacement, in which case NBP is limited to the replacement value

Question 66

aesthetics in determining value in breach of k

Answer 66

If the defect matters aesthetically, courts are more likely to define “value” subjectively and thus increase NBP’s chances of recovering cost of repair Aesthetic: Ugly roof; defective cabinets Not aesthetic: Pipes in the wall; insulation in concrete floor

Question 67

How to measure damages for property destroyed

Answer 67

1. fair market value at the time of the tort + Loss of use (while replacing item) +Consequential damages 2. Actual value to the owner - Excludes sentimental or fanciful value 3. Replacement value

Question 68

Damages for damaged property

Answer 68

P entitled to either (1) the value differential (chattel’s pre-tort value minus chattel’s post-tort value) or (2) the cost of repair “if economically feasible” You also get value for loss of use and depreciation in value after repair.

Question 69

How is cost of repair capped

Answer 69

(i) Value differential Least P-friendly (ii) Chattel’s pre-tort value Most common (iii) No cap P can potentially get cost of repair damages that exceed the actual cost of repair

Question 70

loss of use damages

Answer 70

Costs incurred as a result of being unable to use the chattel while it is repaired

Question 71

recovery for damage to pets

Answer 71

Treated as chattel, you are limited to fair market value of pet, not value to you or sentimental value. Some states have statutes allowing for recovery. See Carbasho Minority: Pet’s sentimental value should be compensable via damages

Question 72

What is pre-tort value?

Answer 72

1. FMV | 2. Personal/actual value - Chattel’s value to that specific P, P’s specific use of the chattel

Question 73

temporary damage to real property

Answer 73

(1) Value differential (between land’s pre and post-tort value); or (2) Restoration cost (reasonable cost of repair) Jurisdictional split on “cap” on recoverable repair cost: -Diminution in value (basically measure of value differential), or -Pre-tort market value of property. – this is preferable -Damage to residential property is often uncapped, because of P’s “reasons personal” for restoration + Loss of use of land during repair + Discomfort and annoyance

Question 74

personal injury claim requires

Answer 74

P must prove actual harm in a negligence action in order to recover personal injury damages

Question 75

categories of compensable damages in personal injury claim

Answer 75

1. pain and suffering 2. medical expenses 3. lost wages and lost earning capacity We presume pain and suffering, so those are more like general damages, while medical expenses and lost wages must be proved like specialized damages.

Question 76

lost earning capacity

Answer 76

future looking -What P could have earned had the injury not occurred minus what P is going to earn regardless, post-injury - “narrowing of economic opportunities.” So if you return to same job, but can’t move up now, you will be compensated. Stops at expected retirement, you “work life age,” as opposed to medical expenses and pain and suffering which continue for whole life.

Question 77

wage loss

Answer 77

Wage loss is looking to the past. Compensation for the time you lost off your work.

Question 78

lump sum vs periodic

Answer 78

Typically it is just one lump sum for past and future, while some states allow periodic payments. A periodic award of damages requires court supervision. Typically legal courts don’t like to do supervision, unlike the courts of equity. Leaves people undercompensated due to inflation or unexpected costs. periodic: Ensures a steady funding stream for P that can be indexed to increased cost of medical care and inflation

Question 79

If P is exposed to a substance that does not currently manifest as a harm but increases his probability of contracting cancer down the road, can P sue D?

Answer 79

Two jurisdictional approaches: (1) Harm is cancer (CA) P can sue only if testimony establishes that his chance of cancer is >50% (2) Harm is present fear/emotional distress P can thus recover for emotional distress even if chance of cancer is <50%

Question 80

If D doctor negligently misdiagnoses P as not having a disease when P in fact has the disease, thus decreasing P’s chance of survival, can P sue D?

Answer 80

If P’s initial chance of survival was >50% Cause of action allowed in all jurisdictions If P’s initial chance of survival was <50% - Two jurisdictions: (1) Harm is loss of a chance --->compensable (2) Harm is dying from the disease --> P was likely going to die anyway --> not compensable

Question 81

Remittitur

Answer 81

to lower the amount of the jury award, trial judge does this upon jury’s verdict. Plaintiff has the option of accepting remitted verdict or seeking a new trial on damages.

Question 82

additur

Answer 82

Court will not usually play around w/ the amount in a category of damage, but most frequently it is where the jury has left out an element of damages (like not awarding medical expenses)

Question 83

tort damages reqs

Answer 83

but for cause proximate cause - foreseeable plaintiff and foreseeable type of harm

Question 84

purpose of punitive damages

Answer 84

Rather awarded to punish defendants for egregious conduct and deter others from future offenses.

Question 85

Factors juries consider for punitive damages

Answer 85

1. Nature and reprehensibility of D’s conduct 2. Seriousness of harm resulting from misconduct 3. D’s awareness harm would result 4. Duration of misconduct, D’s conduct upon discovering misconduct, and any efforts to conceal misconduct. 5. Profitability of misconduct 6. D’s net wealth-Can be considered, but can’t just be awarded based on net wealth 7. Relationship between actual harm and amount of punitive damages 8. Total deterrent effect of other damages and punishment imposed upon D.

Question 86

tort reform movement

Answer 86

(1) Bifurcation: Requiring a separate proceeding (before the same jury) for punitive damages after the main trial (2) Higher burden of proof: P must exceed the typical POE standard (3) Cap on award amoun

Question 87

Constitutional Limits on the Award Amount

Answer 87

(1) Degree of reprehensibility of D’s conduct (similar actions in the past? must be similar situations not dissimilar State Farm) (2) Disparity between actual/potential harm suffered by P and the punitive award -Analyze ratio between punitive award and compensatory award in the same case 🡪 if punitive award vastly exceeds the compensatory award 🡪 the award is excessive Single digit multipliers are more likely to comply w/ due process. (3) Disparity between civil (and potentially criminal) penalties for similar conduct and the punitive award - not typically used

Question 88

remedy and substantive claim

Answer 88

Restitution is both an equitable remedy and its own substantive claim that a P could bring if there was no tort or breach of contract

Question 89

Elements of Restitution

Answer 89

1. Defendant has been enriched 2. At the plaintiff’s expense 3. Defendant’s retention of that enrichment must be unjust

Question 90

Types of Restitution

Answer 90

1. Quasi-contract - legal 2. constructive trust - equitable 3. equitable lien - equitable

Question 91

types of quasi-contract

Answer 91

Quantum Meruit Waiver of Tort and Suit in Assumpsit

Question 92

quasi contract

Answer 92

Law implies a contract where it would be unjust to allow D to retain benefits without paying for them Not an express nor an implied-in-fact contract 🡪 if it was, P would pursue contract damages

Question 93

quantum meruit

Answer 93

The value of services rendered by Plaintiff requested by D but that D did not pay for Measured in terms of how much D saved, rather than the fair market value of services provided by P (think how much money he saved in healthcare costs)

Question 94

Waiver of Tort and Suit in Assumpsit

Answer 94

A plaintiff may elect to waive tort recovery and sue under a theory of quasi-contract and unjust enrichment where the defendant has benefited from his wrong P will do so when the damages, measured by what D has unjustly gained, are greater than when measured by what P has lost

Question 95

constructive trust

Answer 95

Use: When it is appropriate to convey an entire piece of property to P to avoid D’s unjust enrichment A figurative “trust” where P is the “beneficiary” and D is the “trustee” P gets a court order for D to convey the entire title to identifiable property (usually money) to P

Question 96

When P would elect a CT over simply getting $ back

Answer 96

When D has used $ and purchased something that has increased in value If D does not have the funds to pay a $ judgment Rightful owner may compel conveyance of title to the subject property. Therefore the beneficiary will have first priority position over the general unsecured creditors of the D. Equitable interest will prevail except against secured creditors who are bona fide purchasers for value.

Question 97

tracing

Answer 97

Constructive trust requires claimant to identify specific property which would form the res of the trust. So they must be able to trace the disposition or exchange of the titled property. you trace the unjustly taken thing to what it was used for.

Question 98

equitable lien

Answer 98

A high-priority lien (security interest) given to “favored creditor” P against property held by D

Question 99

enforcement of equitable lien

Answer 99

D can either pay off the lien amount or P can potentially foreclose on the property, forcing a sale to pay off the lien

Question 100

EL v Constructive trust

Answer 100

Severable interest? An equitable lien may be preferred where claimant cannot establish a severable interest in D’s property. Property change in value? If traced property has declined in value after being misappropriated, an equitable lien is usually more advantageous than constructive trust. The equitable lien claimant would be entitled to a deficiency judgment against the wrongdoer for the balance of the claim. Claimant may prefer constructive trust where property has increased in value, while an equitable lien only gives aggrieved party a security interest to the extent the benefits are unjustly held by the defendant. Need money now? An equitable lien may be less expedient than a constructive trust because it requires foreclosure of property in order to realize payment, unless the debtor pays the claimant for the worth.

Question 101

equitable lien amount

Answer 101

(1) Objective value of labor and materials I.e. quantum meruit + materials (2) Increased value of the property resulting from P’s labor

Question 102

attorneys fees under nominal damages

Answer 102

If all P seeks is nominal damages in conjunction with a constitutional rights case and P prevails 🡪 P’s attorney’s fees get paid for by the government If P seeks substantial compensatory damages and is only awarded nominal damages 🡪 court might determine P has not prevailed and thus will not get attorney’s fees paid for by government

Question 103

punitive damages + nominal damages

Answer 103

some states do not allow an award of punitive damages w/o underlying award of compensatory damages. There are situations where getting nominal damages can support get punitive damages. The ratio may be higher than the 9:1, since you’d end up getting $9. There are cases where nominal damages support punitive, where behavior is really bad.

Question 104

main purpose of nominal damages

Answer 104

Main role of nominal damages though is to declare the rights of the party – Plaintiff was correct, defendant incorrect. Client simply wants vindication from the court that they were right.

Question 105

def of nominal damages

Answer 105

Clearly established substantive right, but no available remedy except a declaration of that right.

Question 106

declaratory judgment def

Answer 106

A federal and state statutory remedy that declares the rights or legal relations of the party.

Question 107

Reqs for declaratory judgment

Answer 107

(1) Must be a concrete dispute between the parties - Cannot get a DJ about a hypothetical problem - Federal: Must be a justiciable “case or controversy” rather than an advisory one (2)DJ must serve a useful purpose At minimum: Must move parties towards resolution of the dispute (3) Federalism concerns - first is there SMJ? second - DJ should not be used to subsume an ongoing administrative proceeding nor to interfere with an ongoing state-law case

Question 108

why is DJ a mild remedy

Answer 108

No court order for D to do or stop doing something No money ordered to change hands But: does have res judicata effect P can use it against D if D acts contra to the DJ

Question 109

DJ Act

Answer 109

The Declaratory Judgment Act is the enabling act providing procedural mechanism for federal courts to declaratory judgments. Must have federal or diversity jurisdiction Must meet case or controversy requirement – no bright line for this.

Question 110

Advantages to declaratory judgments

Answer 110

Determines legal relationships of parties at an early stage before serious harm is done. Considered “milder” than an injunction. It is not coercive like injunctions, but does influence parties to take steps to avert incurring liability or prosecution. Can be used in tandem w/ other remedies

Question 111

purpose of injunction

Answer 111

Serve a preventive function 🡪 designed to control a D’s behavior to avoid future harm, rather than compensate P with money damages once the harm has occurred

Question 112

considerations of bad faith in granting injunctive relief

Answer 112

Hayden dislikes this 🡪 court using injunctive relief to punish D 🡪 which is not the purpose of injunctions

Question 113

court can only issue TRO if

Answer 113

(1) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss or damage will result to P before D can be heard in opposition; and (2) P’s attorney certifies in writing any efforts made to give notice and the reasons why notice should not be required

Question 114

purpose of direct criminal contempt

Answer 114

To punish for misconduct in presence of the court

Question 115

expiration of TRO

Answer 115

A TRO’s initial period cannot exceed 14 days Can be extended for up to 14 more days without D’s consent if cause is shown Any extension beyond 28 days requires the consent of D

Question 116

when should punitive damages be awareded

Answer 116

When D’s conduct is: Egregious; wanton; willful; reprehensible; malicious D’s motive for acting is crucial D must act with harm-causing intent, not just intent to commit the tort