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Remedies Outline Cut

Remedies Outline Cut

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Published by Erica Chavez
Condensed Remedies Outline
Condensed Remedies Outline

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Categories:Types, Business/Law
Published by: Erica Chavez on Apr 27, 2013
Copyright:Attribution Non-commercial

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REMEDIESI. TORT REMEDIESCOMPENSATORY DAMAGES
:
“Compensatory damages are designed to compensate plaintiff for loss or injury.” 
Fraud
: If seller commits fraud against a buyer:MAJORITY: Purchaser may recover expectancy damages (what he was told property was worth) whether he sues under tort or contract.MINORITY: Purchaser may only recover out-of-pocket losses (sale price) in tort. Must sue in contract for expectancy.
Injury to personal property
:Destruction of chattel: Damages are measured by: (1) Value at time of destruction, less salvage value, plus interest; OR (2) Replacement cost
 May also recover lost profits
Injury to chattel: Damages are measured by: (1) Diminution in value; OR (2) Cost of repair.
 May also recover lost profits
Conversion: Damages are measured by: (1) Market value at time of conversion, plus interests; OR (2) If value has increased, plaintiff may obtain appreciated value.
 May also recover lost profits
Injury to real property
: Damages may be measured by: (1) Diminution in value and loss of use; OR (2) Cost of repair and loss of use
 May also recover lost profits
Personal injury
:
Economic losses
(Special damages): Plaintiff may recover for all
out-of-pocket 
losses.1.
 Lost wages
2.
 Lost earning capacity
3.
 Medical expenses
4.
 Property damages
5.
 Funeral and burial expenses
Non-economic losses
(General damages): Plaintiff may recover 
 fair and reasonable compensation
for non-economic losses.1.
 Pain and suffering 
2.
 Humiliation
3.
Shock 
4.
 Loss of reputation
5.
 Loss of consortium, society, and companionship
6.
 Emotional distress
: May recover for emotional distress if IIED, or in the following circumstances:(1) Negligent transmission of message; (2) Negligent mishandling of corpse; (3) Zone of danger AND physical manifestation of distress; or (4) Physical injury/victim of intentional tort7.
 Loss of expected financial support 
8.
 Loss of expected inheritance
: Must show evidence supporting projections of high income, savings or investment plans, etc.9.
 Loss money value of services, advice, training and companionship
Wrongful death/survival
:SURVIVAL STATUTE: Recovery for damages decedent would have been able to recover had he survived. Creditors: Recovery under survival statutes go to the estate, and so creditors may reach damagesDEATH STATUE: Recovery for damages family suffered from loss. Creditors: Recovery under death statutes go to the family, and so creditors may not reach damages
Interest
: Awards of prejudgment interest may be available, as determined by statute.
Attorneys’ fees
: Generally attorneys’ fees are not recoverable (except for shareholders in a derivative suit).
Discounting to present value
: A lump sum award for future damages must be discounted to present value.
Limitations
:Duty to mitigate/avoidable consequences: Plaintiff may not recover for losses that could have been avoided through reasonable effortsReasonable certainty: Plaintiff must show damages with reasonable certainty.Collateral source rule: A plaintiff who has been compensated independently (by insurance, friends, employment benefits, etc.) may still recover from defendant. Plaintiff should be encouraged to self-help.
 
NOMINAL DAMAGES
:
“Nominal damages are recoverable when there is no actual injury.” 
NOTE: However, some torts require damages be proved as an element, so nominal damages will not be allowed in those instances.
PUNITIVE DAMAGES
:
“Punitive damages are designed to punish defendant for conduct that is willful 
 
 , wanton, or malicious.” 
Punitive damages may not be grossly excessive. Balance the following:1.
Reprehensibility of the conduct
: The more reprehensible, the more punitive damages may be awarded.2.
Amount of compensatory damages (Ratio)
: Ratios above 9:1 are rarely acceptable, except in cases where compensatory damages are very low.3.
Amount of civil or criminal penalties authorized for comparable misconductRESTITUTIONARY REMEDIES
:
“Restitutionary remedies are designed to restore to plaintiff any benefit defendant received wrongfully to prevent unjust enrichment.” 
Replevin
(LEGAL): Replevin is a legal remedy that permits a plaintiff to recover possession of specific chattel wrongfully taken. NOTE: May also recover compensatory or restitutionary damages for loss of use, etc.Bond: Plaintiff may recover the property before trial, but will have to post a bond. Redelivery bond: Defendant may defeat immediate recovery by posting a redelivery bodn.
Ejectment
(LEGAL): Ejectment is a legal remedy that restores possession of real property when plaintiff was wrongfully ousted
Restitutionary damages/Quasi-contract
(LEGAL): Restitutionary damages are designed to pay to plaintiff the reasonable value of a benefit unjustly obtained, measured by defendant’s gain.
Constructive trust/Equitable lien
(EQUITABLE): Constructive trust: Law imposes a trust/ on property, compelling defendant to reconvey
title
to property unjustly retained. Equitable lien: Law imposes lien on property.1.
Unjust enrichment
: Defendant would be unjustly enriched if he kept the benefit obtained from plaintiff 2.
Must identify specific property that was acquired wrongfully
OR 
Defendant’s property was improved by plaintiff 
(Equitable lien only)
Tracing 
: If defendant has disposed of specific property, plaintiff may place a constructive trust/equitable lien on the property directly traceable to the specific property.Commingling: In cases of commingling, the law presumes that:(1)
 Defendant spends his own money first 
;(2)
 Defendant Invests plaintiff’s money first 
.(3)
 Lowest intermediate balance
: If there are successive deposits and withdrawals, plaintiff is entitled to the lowest intermediate balance. NOTE: May be intent to replenish later deposits.
 Bona fide purchaser 
: Plaintiff loses to a bona fide purchaser. But, can trace to defendant.3.
Legal damages are inadequate
(MAJORITY): Legal damages must be inadequate. Generally this means that the defendant is
insolvent 
. NOTE: Plaintiff may choose constructive trust if the property
increases
in value. NOTE: Plaintiff may choose equitable lien if the property
decreases
in value, and may obtain a deficiency judgment for the rest. NOTE:
 Plaintiff takes priority over other unsecured creditors.
However, any deficiency judgment does not take priority.
 
INJUNCTIVE RELIEF
: Where legal remedies are inadequate, plaintiff may obtain an injunction.
Temporary Restraining Order
: A T.R.O. is a short-term decree designed to maintain the status quo to avoid
irreparable herm
. It usually lasts only 10 days.1.
Irreparable harm
: Must show irreparable harm if preliminary injunction is not awarded2.
Likelihood of success
: Plaintiff must show he is likely to win on the merits3.
Bond
: Must post a bondEx-parte T.R.O.; Generally notice must be given to the other party. However, in some cases, an expoarte T.R.O. can be issued if notice is impossible or would create irreparable harm.
Preliminary injunction
: A preliminary injunction is a temporary injunction granted after a hearing, designed to maintain the status quo pending completion of the proceedings. Same requirements as above.1.
Irreparable harm
: Must show irreparable harm if preliminary injunction is not awarded2.
Likelihood of success
: Plaintiff must show he is likely to win on the merits3.
Bond
: Must post a bond
Permanent injunction
: An injunction awarded after trial.1.
Substantive merits
: Plaintiff must prove the underlying tort2.
Legal remedies inadequate
: Legal damages are inadequate in the following circumstances (this is an inexhaustive list)
Unique items/irreparable injury
: Damages are inadequate for unique items: Real property, Antiques, Heirlooms, Stock in private company, Routine items in times of shortage, etc.
 Repeated acts
: Damages are inadequate if plaintiff would have to sue repeatedly to enforce the law
 Prospective tort 
: If the wrong has not yet occurred, no legal remedy exists
 Insolvency of defendant 
: Damages are inadequate if defendant is insolvent
Speculative damages
: Damages are inadequate if plaintiff could not prove damages with reasonable certainty3.
Balance equities/no undue hardship
: Must balance equities to ensure that hardship to defendant does not greatly outweigh benefit to plaintiff. If defendant’s conduct was willful, hardship likely is not undue.4.
Feasibility
: A court will not issue an injunction if it would be impractical, or difficult to supervise.Mandatory injunction: A decree ordering defendant to perform. This is difficult to enforce. Negative/prohibitory injunction: A decree prohibiting defendant. This is not difficult to enforce.5.
Property right/Protectible interest
: Traditionally equity protected only property rights. Few courts still follow this rule. Need any protectible interest.6.
Equitable defenses
: Discuss equitable defenses always
Contempt 
: Contempt is the court’s power to enforce injunctions.Criminal contempt: Court imposes fines or jail sentences for violating the injunction. Designed to punish for willful violations
Collateral bar rule
: Defendant
cannot 
defend against the contempt charges on the grounds that the injunction was invalid. Defendant must comply with the injunction and appeal.Civil contempt: Court imposes fine or jail time to coerce defendant to comply. “Defendant holds keys to jailhouse.” Defendant can defend against civil contempt on grounds that the injunction is invalid.
 Special limits
: A court will not award injunction in certain circumstances:Prior restraints: 1
st
Amendment protects speech, and courts will be very hesitant to grant a prior restraint.Criminal conduct: Courts will generally not grant an injunction protecting against criminal conduct. However, most crimes are also torts, so injunctive relief may be granted to prevent tortious conduct.Replevin: If replevin is an adequate remedy, an injunction ordering defendant to return the property is unnecessary because replevin is a legal remedy, and hence legal remedies are adequate. 
 
DECLARATORY RELIEF
:
“Designed to resolve uncertainty of legal rights.” 
EQUITABLE DEFENSES
: The following defenses are available to the equitable remedies: Constructive trust; Equitable lien; Injunctions
Laches
: An equitable remedy will not be awarded if plaintiff brings claim after (1)
Unreasonable delay
(2)
 Prejudicial to defendant 
.
Unclean hands
: If plaintiff is guilty of misconduct
in the same transaction
, he will be precluded from an equitable remedy.
Undue hardship
: An equitable remedy will not be awarded if it creates an
undue
hardship to the defendant 

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