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YOU MUST WRITE UP AT LEAST ONE CAUSE OF ACTION I) Tort Remedies In tort cases, the standard remedy is money

y damages. A) Legal Remedies 1) Damages a) Compensatory damages require the damages to be 1) foreseeable, 2) unavoidable, 3) causal, and 4) certain i) Compensatory damages put the injured party in the position they would have been in had the injury not occurred. ii) General damages cover pain and suffering. iii) Special damages cover medical expenses and lost earnings, and must be pleaded. b) Nominal damages require the plaintiff suffered no actual injury. c) Punitive damages are awarded to punish a defendant for willful, wanton or malicious conduct. i) Plaintiff must have been first awarded compensatory, nominal or restitutionary. ii) In order to get punitive damages, the defendants fault must be greater than negligence. iii) Punitive damages must be proportionate to the actual damages. d) Collateral Source Rule requires the excluding of recovery funds from another source such as insurance proceeds. B) Restitutionary Remedies 1) Legal Restitutionary Remedies Assumpsit allows the to waive the tort (nominal damages) and seek restitution remedies (unjust enrichment) a) Restitutionary damages prevent unjust enrichment to the defendant. b) Replevin requires the plaintiff have a right to possession of specific personal property, there is a wrongful withholding by the defendant, and the defendant is unjustly enriched. i) The party seeking to keep the property during the proceedings must post a bond. c) Ejectment requires the plaintiff have a right to possession of specific real property, there is a wrongful withholding by the defendant, and the defendant is unjustly enriched. 2) Equitable Restitutionary Remedies a) Constructive trust requires the court to impose a trust on improperly acquired property to which has title. serves as trustee and must return the property to the . i) Used if the property value increases. b) Equitable Lines require a lien that is imposed on s property to secure payment of a debt owed to by selling s property. i) Used if the property value decreases. ii) When the defendants property cannot be trace solely to the plaintiffs property, only an equitable lien is available. Re: sells s property c) Lowest intermediate balance requires that when withdrawals from comingled accounts cause the balance to sink below the amount of the injured partys claim, the victim may obtain a constructive trust or equitable lien on the lowest intermediate balance. d) First in, first out requires that when a D comingles funds in an account, whatever monies were put in the account first are deemed to be taken out first. i) D puts in his personal money first, and then the embezzled funds, and the money is then comingled. D makes a withdrawal, and the money taken out is considered the Ds personal money. e) First in, last out requires that when a D comingles funds in an account, whatever monies were put in the account first are deemed to be taken out last. i) D puts in his personal money first, and then the embezzled funds, and the money is then comingled. D makes a withdrawal, and the money taken out is considered the embezzled money. C) Equitable Remedies 1) Temporary restraining order is a short-tem court order (10/14 days) to maintain the status quo. 2) Preliminary injunction requires irreparable injury to the plaintiff and a likelihood of success. The defendant must be given notice and a hearing. 3) Permanent Injunction requires 1) inadequate legal remedy, 2) property right or protectable interest, 3) feasibility of enforcement, 4) balancing the hardships and 5) no defenses. (I Put Five Bucks Down) a) Inadequate Legal Remedy requires $ damages too speculative, is insolvent, irreparable harm, multiplicity of COA b) Property Right requires that property must be involved, however includes reputation. c) Feasibility requires that a court must be able to supervise the enforcement of the injunction (mandatory requires X to do something, negative requires X not to do something) d) Balancing the hardships requires there is more detriment than benefit, and hardship to the public is taken into account. 4) Defenses to an injunction a) Laches requires an unreasonable delay by plaintiff in bringing a court action. b) Unclean hands requires the party bring the action is guilty of unfair dealing in the transaction sued upon. c) Freedom of speech prevents an injunction against personal defamations. d) Criminal prosecution will generally prevent an injunction unless irreparable injury to the plaintiff will result. e) Crimes will generally prevent an injunction to enjoin crimes or enforce criminal penalties. f) Protection of political or civil rights generally prevent an injunction being issued because they are difficult to enforce. 5) Contempt requires disobedience to a court order, can be civil or criminal a. Civil Contempt (coercive) to compel compliance with court order. Can be jailed, You hold the keys to get out b. Criminal Contempt can be direct or indirect and is intended to punish a party for a violation of court order. In order to prove criminal contempt, 1) must know of the order, 2) order was properly served, 3) order was/is valid; 4) does not have a good excuse to disobey order. 1. Direct disrespectful violation within the court itself 2. Indirect all other violations outside the court.

D) Remedies Available for Specific Torts 1) Personal Torts a) Destroyed property i) Compensatory damages b) Damaged property i) Compensatory damages Remedies 2012

Dispossession i) Compensatory damages ii) Restitutionary damages iii) Replevin iv) Mandatory injunction v) Constructive trust vi) Equitable Lien vii) Self-help 2) Real Property Torts a) Simple Trespass i) Nominal damages ii) Restituionary damages iii) Injunction b) Destruction/Damage of realty i) Compensatory damages ii) Injunction c) Dispossession i) Compensatory damages ii) Restitution damages iii) Ejectment iv) Constructive trusts/equitable lien d) Encroachment i) Compensatory damages ii) Injunction e) Nuisance i) Compensatory damages ii) Injunction 3) Personal Injury Torts a) Compensatory damages i) Special damages ii) General damages b) Injunction 4) Fraud a) Damages b) Constructive trust/equitable lien II) Contract Remedies In contract cases, the standard remedy is expectation damages. A) Legal Remedies 1) Damages a) Expectation Damages require the placement of the promisee in the position he would have been in had the promise been performed. Must be b) Damages require the damages to be 1) foreseeable, 2) unavoidable, 3) causal, and 4) certain. i) General damages cover pain and suffering. ii) Special damages cover medical expenses and lost earnings, and must be pleaded. c) Consequential Damages (indirect consequence of breach) requires the damages are related to breach and foreseeable at time of formation. (hire mechanic to fix, breach, cause loss of revenue) d) Nominal damages require the plaintiff suffered no actual injury. e) Liquidated Damages require actual damages to be difficult to ascertain and approximations of damages must be reasonable. Invalid if the damages are a penalty. B) Restitutionary Remedies 1) Quasi-Contract requires a court-imposed contract to prevent unjust enrichment. 2) Legal a) Restitutionary damages prevent unjust enrichment to the defendant. (based on benefit to not injury to ) b) Replevin requires the plaintiff have a right to possession specific personal property, there is a wrongful withholding by the defendant, and the defendant is unjustly enriched. i) The party seeking to keep the property during the proceedings must post a bond. c) Ejectment requires the plaintiff have a right to possession specific real property, there is a wrongful withholding by the defendant, and the defendant is unjustly enriched. (Real Property Hold Overs) 3) Equitable a) Constructive trust requires the court to impose a trust on improperly acquired property to which has title. serves as trustee and must return the property to the i) Used if the property value increases. b) Equitable Lines requires a lien that is imposed on s property to secure payment of a debt owed to by selling s property. i) Used if the property value decreases. ii) When the defendants property cannot be trace solely to the plaintiffs property, only an equitable lien is available. Re: sells s property c) Lowest intermediate balance requires that when withdrawals from comingled accounts cause the balance to sink below the amount of the injured partys claim, the victim may obtain a constructive trust or equitable lien on the lowest intermediate balance. d) First in, first out requires that when a D comingles funds in an account, whatever monies were put in the account first are deemed to be taken out first. i) D puts in his personal money first, and then the embezzled funds, and the money is then comingled. D makes a withdrawal, and the money taken out is considered the Ds personal money. e) First in, last out requires that when a D comingles funds in an account, whatever monies were put in the account first are deemed to be taken out last. i) D puts in his personal money first, and then the embezzled funds, and the money is then comingled. D makes a withdrawal, and the money taken out is considered the embezzled money. Remedies 2012 2

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C) Equitable remedies 1) Specific performance requires inadequate legal remedy, definite and certain terms, feasibility, mutuality of obligation, and no defenses. a) Inadequate Legal Remedy requires $ damages too speculative, is insolvent, irreparable harm, multiplicity of COA b) Definite and Certain Terms require that a court must be able to identify precisely what the parties intended. c) Feasibility requires that a court must be able to supervise the enforcement of the injunction (mandatory requires X to do something, negative requires X not to do something) d) Mutuality of Obligation requires that the performance of s obligations be secured to the satisfaction of the court. 2) Defenses to SP a) Laches requires an unreasonable delay by plaintiff in bringing a court action. b) Unclean hands requires the party bring the action is guilty of unfair dealing in the transaction sued upon. c) Unconscionability d) Mistake i) Mutual mistake requires that both parties are mistaken about a basic assumption of fat that materially alters the agreed upon exchange. ii) Unilateral mistake requires that the non-mistaken party know, or should have known, of the mistake. e) Misrepresentation requires either a fraudulent misrepresentation or the innocent party justifiably relined on a material misrepresentation. f) Statute of frauds (watch for part performance to take out of SOF) 3) Rescission requires the cancellation of a contract where it results from duress, fraud, material breach or mistake. regains the consideration provided to . a) Laches b) Unclean hands 4) Reformation requires a court to change a written agreement to conform to partys original understanding where confusion results from mistake or misrepresentation. Make sure there is a valid contract! a) Unclean hands b) Laches c) Sale to BFP reformation is not allowed where it would adversely affect the rights of a BFP D) Covenants not to compete i. Enforceable so long as the covenant protects a legitimate interest of the person whose favor it runs, and the service is unique. ii. Also, the covenant must be reasonable in both Geographical location and Duration. E) Remedies Available for Specific Contract Problems 1) Property Sale Contracts a) Compensatory damages b) Restitution c) Specific performance d) Rescission e) Reformation 2) Land Sale Contracts a) Compensatory damages b) Restitution c) Specific performance d) Rescission e) Reformation 3) Construction Contracts a) Compensatory damages b) Restitution c) Specific performance 4) Personal Services Contracts a) Compensatory damages b) Restitution c) Specific performance

Remedies 2012