Term
| Three Sources for Remedial Rights |
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Definition
1. statutes
2. federal and state constitutions
3. common law |
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Term
| To receive remedy, plaintiff must establish --> |
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Definition
1. the particular remedy is appropriate
2. the source may place some limitations upon the remedy |
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Term
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Definition
1. coercive remedies
2. damages
3. restitution
4. declaratory remedies |
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Term
| Preventative Injunction defined |
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Definition
a court order designed to avoid future harm to a plaintiff by controlling a defendants behavior
can be either prohibitory or mandatory |
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Term
| What is the jurisdiction over an injunction |
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Definition
| court maintains jurisdiction over the case while defendant attempts to comply with the order |
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Term
| test for preventative injunctions |
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Definition
1. remedy at law must be inadequate
2. plaintiff will suffer irreparable harm
3. must balance the hardships of the plaintiff against the hardships the injunction will create for the defendant
4. public interest must be considered |
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Term
| Requirements for Inadequacy of Remedy at Law |
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Definition
| met if damages would be too speculative or if multiple damage actions would be necessary because of the nature of the plaintiff's rights |
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Term
| When will a court find the remedy at law to be adequate |
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Definition
the harm can be easily and accurately ascertained in a single action
1. usually happens when the plaintiff has suffered the entire injury by the time of trial and condition giving rise to the harm has abated
2. courts will find the remedy at law adequate where the conditions causing the harm is continuing but can be easily rectified |
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Term
| For inadequacy of remedy at law for trespass plaintiff must show |
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Definition
1. continuing trespass - p must show that the defendant will not honor a demand to vacate
2. repeated trespass - p must show that d is likely to continue to repeat the invasions in knowing violation of the plaintiffs rights
a. plaintiff may demonstrate likelihood of future invasions on the basis of the past behavior or on other grounds
b. whether p has communicated a request to stop trespassing is also relevant |
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Term
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Definition
remedy at law is inadequate precisely because the harm is irreparable and damages do not suffice
looks to the severity of the harm |
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Term
| Blacks dictionary definition of irreparable harm |
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Definition
| includes an injury whether great or small, which ought to be submitted to or inflicted on the other and which because it is so large or so small, or is of such constant and frequent occurrence or because no certain pecuniary standard exists for the measurement of damages, cannot receive reasonable redress in a court of law |
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Term
| Irreparable harm requirements |
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Definition
must be great in nature
1. irreparable harm should not be subject and should establish a real threat not the possibility of a threat
2. irreparable harm will be found if it is foreseeable as long as it is truly imminent
[great danger determined on a case by case basis] |
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Term
| balancing interests and practicality considerations |
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Definition
| A judge weighs the relative hardships of the parties in the matter and may consider any problems of practicality in enforcing an order |
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Term
| What must the judge weigh in balancing interests and practicality considerations |
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Definition
what is the burden of the plaintiffs v. the burden the defendants will have if the injunction is put in place
if hardship for defendant is greater there is less likelyhood the court will grant the injunction |
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Term
| Speech injunctions when balancing the hardships |
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Definition
- a noneconomic burden (if granted the injunction must be narrowly tailored to withstand constitutional scrutiny)
Test: reason for injunction v. value of the first amendment |
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Term
| To gain an injunction against a private nuisance |
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Definition
a plaintiff must establish more than the existence of an intentional nuisance
unreasonableness of the activity must be established because it is an undue hardship to stifle a useful enterprise at a reasonable location by injunction |
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Term
| Public interest standard for injunctions |
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Definition
a. an injunction will be denied if it is contrary to a public policy
b. an injunction will seldom be granted solely if it is in the public interest
c. if injunction affects the integrity of the tribunal |
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Term
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Definition
when the plaintiff is the govt, public interest is the centerpiece of the litigation in a much more direct manner
- it is up to the judge to determine whether govts actions are in the best interest of the public |
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Term
| Interlocutory Injunctions are used when.. |
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Definition
| P needs immediate court action to avoid irreversible loss |
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Term
| Types of Interlocutory Injunctions |
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Definition
1. Temporary restraining orders
2. the preliminary injunction |
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Term
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Definition
| a brief stop-gap measure for a truly urgent situation to preserve the status quo long enough for a preliminary injunction hearing |
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Term
| When can a TRO be ex parte |
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Definition
| only upon a specific showing that immediate and irreparable harm will result before the opposing party could be notified or heard |
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Term
| Can TRO's be issued without notice? |
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Definition
TRO's can be issued without notice to the opposing party under exceptional circumstances
must demonstrate that there will be irreparable harm before the opposing party could be notified or heard
if not justified the court will dissolve a TRO |
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Term
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Definition
| can last for ten days with an extension as long as approved by the non-movant party |
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Term
| Preliminary injunction defined |
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Definition
| replaces the TRO after the court has had a few days to receive some greater amount of evidence in the case. Lasts until the full trial |
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Term
| basic goal of the preliminary injunction |
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Definition
| to preserve the status quo |
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Term
| How to determine the status quo |
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Definition
| the courts will sometimes look to what the last agreeable situation was between the parties |
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Term
| When can preliminary injunctions be issued |
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Definition
can only be issued after the opposing party has received notice and had an opportunity to be heard
can appeal immediately |
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Term
| Traditional Test for Preliminary Injunction |
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Definition
Burden of Proof lied with the Movant and needed to establish each area individually:
a. likelihood of success of the merits
b. an irreparable injury if the relief is delayed
c. a balance of hardships favoring the movant
d. a showing that the injunction would not be adverse to the public interest |
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Term
| Minority test for preliminary injunction |
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Definition
sliding scale test:
1. movant must show:
- success on the merits AND
- some irreparable harm or a serious question on the merits AnD
that the balance of hardships tips decidedly in its favor
the greater the potential irreparability of the harm and the clearer the balance of hardships without the order, the lesser the required showing of strength on the merits of the case |
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Term
| Success on the merits defined |
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Definition
| the success on the merits is only a probability -- does not guarantee the end of the case |
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Term
| Types of Modern injunctions |
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Definition
reparative
prophylactic
structural |
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Term
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Definition
| operates to correct the present by undoing the effects of a past wrong |
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Term
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Definition
| to safeguard P's rights by directing d's behavior so as o minimize the chance that wrongs might occur in the future. Like prophylactic medicine, require the defendant to take extra steps of safeguards to ensure against the repetition of future harm |
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Term
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Definition
courts in certain cases have undertaken supervision over institutional policies and practices were constitutional violations exist in institutions
typically involve long and costly battles that frustrate class plaintiffs, defendants and judges
should not be broad and disconnected from the legal harm |
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Term
| Specific performance goal |
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Definition
| to preserve the respective interests and intentions of the parties in contracting |
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Term
| Steps for Specific performance |
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Definition
1. need to show that a substantive right has been violated
2. entitlement phase - are they entitled as a matter of law
3. measuring phase in terms of remedy |
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Term
| Test for specific performance |
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Definition
1. inadequacy of available legal remedies
2. the likelihood of future performance by the party seeking enforcement of the contract
3. the ability of the breaching party to render performance
4. the balance of interests and relative hardships of the contracting parties
5. and potential difficulties in supervision or enforcement of the decree |
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Term
| Specific Performance for rendering personal services |
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Definition
| Cts. generally refuse specific performance for rendering personal services |
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Term
| Specific Performance will be denied when |
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Definition
1. in situations involving mistake
2. grossly disproportionate consideration
3. duress OR
4. other unreasonable hardship |
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Term
| Historic Mutuality of remedy rule: |
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Definition
| specific performance would not be available to one party unless that remedy was equally available to the other contracting party |
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Term
| Modern Mutuality of Remedy rule: |
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Definition
| treats mutuality of remedies as just one factor in deciding the propriety of specific performance |
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Term
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Definition
remedy at law which would override specific performance
an action for goods wrongfully taken or detained and allows a party entitled to possession to obtain recovery of the property in specie along with the damages for the loss of use of the goods during the period of detention |
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Term
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Definition
| provides specific performance in unique goods and other proper circumstances |
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Term
| what is intended by the other proper circumstances for unique goods under the UCC |
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Definition
| intended to encompass contract matters outside of heirlooms,such as output and requirements contracts where alternate sources or markets are not readily available |
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Term
| Common Law --> Unique Goods |
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Definition
| requires virtually one of a kind goods |
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Term
| to satisfy the uniqueness standard for common law |
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Definition
| where no commercially reasonable substitute is readily available without undue expense, difficulty or delay |
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Term
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Definition
| the purchaser of land should receive specific performance for the land even when there is a second contract for conveyance because land is incapable of duplication and therefore each parcel is regarded as unique |
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Term
| Personal association idea |
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Definition
| the concept of uniqueness may range from intrinsically one-of-a-kind irreplaceable items such as family heirlooms or may be defined in relationship to the particular needs and purposes of the parties to the contract |
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Term
| Equitable defenses include |
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Definition
| laches, estoppel, unclean hands, and unconscionability |
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Term
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Definition
| affirmative defense which bars a plaintiff who has not acted promptly in bringing his or her claim |
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Term
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Definition
1. the claimant had an unreasonable delay in asserting rights AND
2. the delay would operate to unduly prejudice the defendant
traditionally not usable against the govt, but today can be used to preserve the rights and property from negligent acts of public policy |
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Term
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Definition
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Term
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Definition
| will not grant equitable relief to a claimant where an innocent party detrimentally relied upon the claimants prior misrepresentations or actions |
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Term
| To establish estoppel, person seeking equitable relief MUST have |
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Definition
1. misrepresented or concealed material facts
2. knew that represented facts were untrue
3. intended that person claiming estoppel would act upon the representations |
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Term
| To establish estoppel, person seeing estoppel MUST have |
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Definition
1. not known that the representations were misrepresented when they were made
2. reasonably relied upon representations i good faith
3. party claiming estoppel would be prejudiced by her reliance |
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Term
| Unclean hands/unconscionability |
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Definition
| bars plaintiffs whose claims are in some way morally tainted even if they are legally sound |
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Term
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Definition
| must be serious, but does not need to rise to the level of fraud/illegality. if found only bar equitable relief |
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Term
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Definition
1. the claimant engaged in serious misconduct WHICH IS
2. directly related to the same transaction forming the basis for which relief is sought |
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Term
| Unconscionability defined |
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Definition
| common law and statutory contract claims only |
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Term
| Courts reaction to Unconscionability |
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Definition
when the court finds that a contract terms are so one sided the court has options:
1. find the entire contract unenforceable
2. remove the objectionable provision
3. simply limit its effect |
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Term
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Definition
Procedurally: considers manner of contract formation whether it was inherently flawed
2. substantive: look at terms of contract to determine if consideration exchanged was excessively lopsided |
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Term
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Definition
does not have to be a clear definitive accept by the plaintiff, if accept something from the defendant you may overrule the possibility of a remedy
some courts have allowed the doctrine to extinguish a substantive cause of action even before the plaintiff filed suit even if the plaintiff never intended to make he acceptance
cannot receive the same remedy from two different parties |
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Term
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Definition
| the method by which courts enforce equitable orders |
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Term
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Definition
1. was the conduct for contempt willful, intentional conduct
2. remember it must be under a court order
3. pay attention to how the sanction are written -- can a person resolve the issue (civil) if not then it is criminal and if indirect need proper procedures |
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Term
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Definition
1. D cannot willfully violate an injunction then defendant against a contempt citation that the injunction is invalid
2. an injunction must be obeyed until declared invalid |
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Term
| Purpose of Criminal contempt |
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Definition
1.vindicate social interest in obedience to lawful court order
2. preserve the integrity of the court |
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Term
| Substance of criminal contempt |
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Definition
| contemnor must intentionally violate a clear/specific court order |
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Term
| Procedure of Criminal contempt |
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Definition
an independent action, separately docketed
1. complainant is the state
2. sanctions survives if prior injunction is vacated |
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Term
| Types of criminal contempt |
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Definition
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Term
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Definition
1. no right to counsel
2. in presence of the court |
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Term
| to determine in presence of the court for purposes of direct criminal contempt |
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Definition
1. nye test
2. adams test
3. rule 42 |
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Term
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Definition
| geographical proximity defines contempt |
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Term
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Definition
| movable presence of court |
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Term
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Definition
a criminal contempt may be punished if:
1. judge certifies that the judge saw or heard the conduct AND
2. it was committed in the actual presence of the court |
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Term
| Indirect criminal contempt |
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Definition
| defiance toward the court through disobedience of a lawful court order |
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Term
| Requirements for Indirect Criminal contempt |
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Definition
1 valid order enjoining the party to act/refrain from acting
2. notice to party of specific terms of injunction
3. ability of party to comply with order
4. intentional/willful noncompliance without justification
must absolutely be afforded constitutional protections for criminal indirect contempt |
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Term
| Sanctions of criminal contempt |
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Definition
determinable fines are payable to the state
fixed punitive fines are always criminal
coercive fines - if not purgeable, then criminal
-preannounce per violation
-involving indirect contempt of complex injunctions
-involving serious contempt
appellate review -- criminal contempt is appealble and can be reclassified |
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Term
| Civil & Coercive Civil Contempt purpose |
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Definition
1. designed to encourage the defendant to act a certain way in the future
2. if a defendant can avoid punishment by acting a certain way then the sanction are considered purgeable which makes the contempt civil vs criminal |
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Term
| Purpose of compensatory civil contempt |
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Definition
| to pay P for loss caused by D's disobedience to injunction |
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Term
| purpose of coercive civil contempt |
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Definition
| to induce d's future compliance with prior injunction |
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Term
| Substance of civil contempt |
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Definition
1. injunction must be clear and binding
2. impossibility/incapacity are possible but not absolute defenses (good faith is not a defense) |
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Term
| Sanctions of Civil contempt |
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Definition
compensatory damages - proven by P with reasonable certainty (always civil)
coercive fines - indeterminate amount - payable to State (if purgeable = civil)
coercive confinement -- indeterminate duration (d has keys in his pocket) |
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Term
| Enjoining speech or litigation |
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Definition
When courts grant prior restraints of speech, the injunctions must be -->
1. narrowly tailored AND
2. meet due process standards to enforce them with contempt |
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Term
| Enjoining Crimes and Nuisances |
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Definition
| plaintiff must establish that the defendants conduct was a substantial and unreasonable interference with the use and enjoyment of the plaintiff's property or public interests |
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Term
| unreasonable interference determined by: |
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Definition
weighing the gravity of the harm against the utility of the plaintiff
THen if met:
- plaintiff must demonstrate --
1. that the threatened harm is immediate
2. that the injury is irreparable
3. that no adequate remedy at law exists AND
4. equitable considerations balance in its favor
important factors for balancing:
1. extent to which a damages award will redress he injury and
2. considerations of the nature and extent of public interest implicated |
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Term
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Definition
civil liability based upon unjust enrichment
is often added remedial option for plaintiff who has a claim in contract or tort, but sometimes it is the sole remedy available to a plaintiff |
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Term
| The Unjust enrichment concept |
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Definition
1. to prevent the unjust enrichment of a party who has received a benefit that in equity and good conscience should not be retained
2. not necessary to prove tortious, illegal, or fraudulent conduct by the defendant to establish that the enrichment is unjust |
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Term
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Definition
| 1. must demonstrate that received a benefit, that by recipt of the benefit he unjustly enriched at the expense of another and the circumstance were such that in good conscience appellant should make compensation |
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Term
| restitution for value of services rendered available in |
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Definition
1. implied in fact contract
2. quasi contract |
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Term
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Definition
| true contract proved by circumstantial evidence rather than by express written or oral terms |
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Term
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Definition
duty imposed in equity upon a party to repay another to prevent his own unjust enrichment
a legal fiction that implies a contract at law as a basis for awarding monetary relief |
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Term
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Definition
| claim to recover the value of services rendered |
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Term
| Majority rule for quantum meruit |
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Definition
if someone sues for quantum meruit for partial performance of a contract she is not suing under the contract and thus the value of the services is measured by the contract value
allows for recovery of the reasonable value of beneficial services rendered or materials furnished under circumstances not covered by express contract where retention of the benefit would constitute unjust enrichment |
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Term
| Requirements for recover under QM |
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Definition
1. claimant furnished valuable services or materials
2. for the person sought to be charged
3. the services and materials were accepted, used and enjoyed by the person sought to be charged
4. the party who provided the services or materials did so with the reasonable expectation of receiving compensation
5. the party who accepted the services had reasonable notice that compensation for the benefits would be expected
6. retention of he benefit without payment of reasonable compensation would constitute unjust enrichment |
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Term
| five factors in measuring restitution |
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Definition
1.the increased assets in the hands of the defendant from the receipt of property
2. the market value of services or intangibles provided to the defendant without regard to whether the defendants assets were actually increased, that is the amount which it would cost to obtain similar services, whether the services prove to be useful or not |
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Term
| benefits acquired by agreement or mistake |
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Definition
| 1. wrongful conduct not required |
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Term
| situations in which a mistake may serve as the basis for restitutionary relief |
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Definition
1. overpayment of debt
2. improvement of property under the mistaken belief or ownership and
3. mistakes about the formation or performance of a contract |
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Term
| Waiver of tort & assumpsit |
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Definition
basically you waive our right to sue for the tortious damage and sue for the amount under the restitution damages (benefit to expand the SOL)
-uses quasi contracts to relieve unjust enrichment
- can be used against a thief |
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Term
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Definition
1. money had and received
2. goods sold and delivered |
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Term
| money had and received test |
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Definition
| used for quasi-contract in order to create a fictional agency relationship between the wrongdoer who converted property and its owner |
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Term
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Definition
| quasi-contract theory then is for an implied contract of sale between these parties for purchase of the converted item at its fair market value |
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Term
| Property torts you can wave to sue in assumpsit |
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Definition
1. conversion
2. trespass to chattel
3. trespass to realty
cannot waive defamation |
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Term
| constructive trusts defined |
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Definition
| a flexible restitutionary device that imposes an equitable duty on the defendant to convey property acquired under certain circumstances to the rightful owner |
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Term
| factors of a constructive trust |
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Definition
1. imposed to benefit a party that had wrongfully been deprived
2. fictional relationship
3. a constructive trust is only an appropriate remedy when the benefit that has been acquired is a result of entirely the unjust enrichment on the claimant |
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Term
| ways of unjust enrichment that can be used under a constructive trust |
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Definition
1. breach of fiduciary or confidential relationship
2. acquisition of title to property by fraud
3. various other wrongdoings
4. mistake
5. duress
6. embezzlement
7 conversion
8. misuse or misappropriation of information |
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Term
| Defendants title placement in a constructive trust |
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Definition
| defendant has legal title and defendants title was gained through use of misappropriated property |
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Term
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Definition
| defendant has legal title to the benefited property |
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Term
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Definition
| a constructive trust allows the claimant to obtain any increase in value of the embezzled/misstaken property |
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Term
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Definition
| operates as an encumbrance on property -- available only when the P can trace misappropriated property to its product |
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Term
| when is an equitable lien the preferred remedy |
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Definition
1. when the property has declined in value And
2. when there is not a severable interest in the defendants property against which the plaintiff is making the equitable claim
wrong must be connected to the property itself |
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Term
| Declaratory judgment defined |
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Definition
| gives courts the power to determine the rights or legal relations of parties to a justiciable controversy |
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Term
| what are parties required to have in order to get a declaratory judgment |
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Definition
| there must be genuine conflicting claims capable of a justiciable controversy |
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Term
| to determine whether there is a controversy |
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Definition
1. a court should consider whether there exists an immediate controversy between parties having adverse legal interests
2. must be ripe
3. also consider prudential factors including whether the declaration will serve a useful purpose and will effectively settle the controversy |
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Term
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Definition
| to make injured parties whole |
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Term
| Harm to personal property |
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Definition
| when there is a market for the item, courts tend to use the market value in 3 scenarios |
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Term
| 3 scenarios for harm to personal property |
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Definition
1. where the personality is destroyed at the time and place of destruction (from conversion)
2. where the property is damaged but not destroyed and repairs and costs are economically feasible -- plaintiff usually gets the cost of repair
3. the chattel is damaged and not destroyed but the repair costs is not economically feasible -- plaintiff doees not get the repair costs |
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Term
| Formulas for distinction between property destroyed and property damaged |
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Definition
1. pre-damage value minus salvage
2. fair market value before tort minus fair market value after the tort (plaintiff gets the difference) |
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Term
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Definition
if there are multiple markets where plaintiff can get replacement item, court should use the market the plaintiff would use to get replacement item
usually get fair market value for destroyed property |
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Term
| fair market value defined |
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Definition
the price a willing buyer and seller would find in an arm's length transaction with each party fully informed
if damages exceed value of property prior to incident to cause damage then the court is most likely going to give value at the time right before the destruction fo the property |
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Term
| If lack of fair market value |
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Definition
a. most common for unique personal property
majority: allows the owners to recover the actual value of the property to the owner even if it exceeds market value |
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Term
| to prove value if no market: |
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Definition
owners can use:
1. replacement costs
2 depreciation
3. expert opinion
4. amount of insurance carried on the item
sentimental value is not included, court rejects replacement value in second hand market |
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Term
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Definition
majority: limit recovery to the fair market value of the actual value of the pet death (cannot recover for emotional distress, sentimental attachment or loss of compansionship its owner suffers)
sometimes companionship/mental anguish may get more -- loss of use (more value for breeds or service animals) |
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Term
| Clothing/Household goods: |
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Definition
1.measured at the persona value of the owners, but cars are valued at fair market value
2. replacement cost is a factor to be considered in determining the actual value to the owner along with the original cost of the property, the quality and condition at the time of loss and depreciation |
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Term
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Definition
measured at the fair market value
some courts allow for recovery for both the cost of repairs and diminished value under the limited circumstances where a plaintiff could show actual proof of diminished value following repair and that the automobile had significant value prior to accident |
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Term
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Definition
| courts consider factors such as the original cost, the cost to replace or reproduce and the age and condition of the item at the time of loss or destruction |
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Term
| objectively sentimental property |
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Definition
| permitted recovery of sentimental value to whose primary value is sentiment because there can be a notion of value that can actually be assessed |
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Term
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Definition
| plaintiffs have a duty to mitigate damages including damages from loss of use |
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Term
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Definition
Plaintiff: shown by
a. expert testimony
b. owners opinion
2. can be rejected if speculative |
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Term
| reparable personal property |
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Definition
| owner is entitled to recover the cost of repair if economically feasible -- if not economically feasible -- p can recover he diminuation in the value of the property |
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Term
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Definition
| damages intended to compensate plaintiff's for the loss of the use of their property while the property was being replaced |
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Term
| how to demonstrate the cost of loss of use |
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Definition
1. the reasonable cost of renting a substitute
2. the rental value of the damaged property or
3. the profits that could have been made from the use of the property |
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Term
| personal injury damages given |
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Definition
1. pain and suffering (only general and do not have to plead)
2. loss wages and impair future earning capacity
3. medical expenses
4. economic earnings
5. loss of consortium (derivative action available to spouse) |
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Term
| Types of personal injury damages |
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Definition
general: for the natural course of events from the injuries in the complaint
2. special -- future medical expenses
must be plead and proven with particularity and typically require expert testimony to support |
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Term
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Definition
past -- have to show the expenses under a reasonable standard
future -- reasonably certain, show cost and should be measured at present value (includes being measured by life expectancy) |
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Term
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Definition
1.both parents and minors have a cause of action
2. courts generally divide the elements of damages between the actions appropriately
3. double recovery for the same damage not permitted |
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Term
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Definition
| lost wages are for a plaintiff lost wages from a specific job for a period of time in which the plaintiff is unable to work because of her injuries and envision that the plaintiff will be able to return to a job |
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Term
| Future earnings for permanent injuries |
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Definition
calculated for the time period of the injured party's work life expectancy
takes into account:
1. skills and training
2. broader industry factors and opportunities |
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Term
| Diminished earning capacity |
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Definition
1. compensates a plaintiff for narrowing of the range of her economic opportunities as a result of her injuries
2. damages for lost or diminished earning capacity compensate injured plaintiffs for reductions in the market value of their services in the workplace in general
3. measured by the reduction in the value of the power to earn rather than the difference in earnings |
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Term
| To determine earning capacity |
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Definition
| measured by the difference between the injured plaintiff's earning capacity before the injury and after the injury |
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Term
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Definition
general damage award
because it is indeterminable, courts apply all sorts of different statutes to aid in making sure that plaintiff's pain and suffering is not excessive |
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Term
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Definition
1. derivative claim
2. based on claimants emotional suffering as a result of the injured plaintiffs injuries |
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Term
| loss of consortium includes |
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Definition
1. love
2. companionship
3. affection society
4. comfort
5. services
6. solace |
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Term
| claims for damages for injuries resulting in death |
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Definition
survivors and wrongful death
almost exclusively statutory with limited damages |
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Term
| elements that must provide the following elements |
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Definition
1. pecuniary losses to the surviving spouse and children
2. medical and burial expensees and
3. loss of consortium and grief of the surviving spouse |
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Term
| purpose of punitive damages |
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Definition
| to punish and deter only egregiously bad conduct |
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Term
| punitive damages available when |
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Definition
| the defendant acts with a malicious intent or an evil motive such as spite, ill will, malice or the intent to injure or defraud or where the defendants act with gross recklessness or a willful disregard for the rights of others |
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Term
| Factors considered by the judge when determining the amount of punitive damages |
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Definition
| range from the relationship of harm and the amount of punitive damages and the defendants net worth |
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Term
| Conduct that gives rise to punitive damages |
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Definition
| malicioius, wanton, willful, or sufficiently egregious conduct |
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