User:CheshireKatz/Remedies

Exam Review

Remedy = The most appropriate curative action available under the statute (or, if unspecified, the common law).

Orloff - Racetrack ejection was held wrongful and though the staute does not provide for injunction, statutory provisions are to be liberally construed where available remedy at law is inadequate.

Cowin - Though the contract was held unconscionable, the statute does not provide for money damages, merely rescission of the contract.

Treister - Though courts may intervene in wrongful decisions of private industry, without a guiding statute, economic necessity must be demonstrated.

Pulliam - Though judges are immune to suits for damages, an injunction may be awarded if there is a serious risk of irreparable harm & no adequate remedy at law

Legal - (principally compensatory damages) 9 forms of action, replevin / ejectment

jury trial, but no contempt power to enforce judgment

Pecuniary (medical bills) and Non-pecuniary (pain & suffering)

Equity (where law inadequate) - injunctions, some monetary damages (backpay - form of reinstatement)

no jury trial*, but contempt available to enforce judgment

Alimony, Child support, Distribution of property, Back & Front Pay

Hanna - No punitive damages where absent from statute. Injury to character constitutes "other non-pecuniary losses" in statute seeking to "make the employee whole" (legal relief)

Compensating for a past harm is a damages remedy, protecting against further harm is an equitable one

Brunecz - Backpay (& reinstatement) are equitable remedies, therefore, when they are sought, a jury trial is not available.

Pollard - Frontpay (covering from judgment to reinstatement) is an equitable remedy, therefore not limited by a statutory cap on compensation.

Injunctions & Specific Performance

• Negative Injunctions - Ct bars action by a party (Party A may not do X)
• Positive Injunctions - Ct compels action by a party (Party B must do Y)

Kinds of Injunctions

Permanent (Final) Injunction - An (equitable) order restraining the person to whom it is directed from performing a specified act or requiring him to perform a specified act.

Interlocutory (Preliminary) Injunction - Limited Injs at commencement or during litigation to prevent further harm until court rules on issue.

• Note: Trials are almost always lengthy processes, so these are granted to prevent irreparable harm prior to final adjudication on merits of case

Injunctions are never automatically granted or denied, multi-part analysis must always be applied (even Patent Infringement, see eBay v. MercExchange)

Traditional 4-Factor Test: 1) Irreparable injury suffered; 2) Remedies at law inadequate to compensate for injury; 3) Balance of hardships b/w PLA & DEF warrants remedy in equity; and 4) Public interest not disserved by a permanent injunction.

4 Classes of Injunctions - Compelling you to do or refrain from some act

• Preventive - Most common (rooted deep in common law), preventing party from doing a future harm (typically, one & done)

  Court order to xfer property or reinstate employee or halt sale of product

• Restorative - Operates to correct the present by undoing the effects of a past wrong. Unlike other injunctions, focuses not only prospectively, but also retroactively.

  Tainted election process repaired by erasing election

• Prophylactic - Seeks to safeguard PLA's rights by directing DEF's behavior, so as to minimize the chance that wrongs might recur in the future. Operates on an ongoing basis.

  Tractor hours of operation

• Structural - Involvement of courts in amending institutional policies & practices of DEF entities

  School desegregation order

Requirements of Injunctions (judge has lots of discretion)

1. Inadequate Remedy at Law (insufficiency, infeasibility, multiplicity, & recurrence)
2. Irreparable Injury has been/will be suffered
3. Balance of Hardships (Preventing IrrepHarm to PLA w/o causing IrrepHarm to DEF)
4. Public Interest not Disserviced

• Mutuality of Remedy required (Injun must be available to both, else neither)
• Not Trumped by Equit Defense (laches, estoppel, unclean hands, unconscionability)
• Prelim Inj require 1-4 PLUS Substantial Likelihood of Success on Merits

Requirements of Specific Performance

1. Inadequate Remedy at Law (insufficiency, infeasibility, etc)
2. Valid K with Specific Terms at Issue (not for personal services!)
3. Balance of Hardships
4. Public Interest not Disserviced
5. Performance Completed (or Assured) by PLA
6. Ability to Complete Performance by DEF
7. Judicial supervision not Burdensome
8. Mutuality of Obligation (SpecPerf must be available to both, else neither)

Inadequate Remedy at Law - Not as practical/efficient to ends & prompt administration of justice as Remedy in Equity.

• Money Dmgs are insufficient (Unique loss, CivRgts violation, Immune/Judgment-proof DEF)
• Money Dmgs are too speculative/inestimable/infeasible to calculate (Future biz profits/losses)
• Recurring impact causing repetition of suits (repeated offense)
• Sweeping impact causing multiplicity of suits (ongoing nuisance)
• Offends public policy to permit, even if damages would make PLA whole

Courts will generally deny a Perm Neg Injun restraining breach of a negative stipulation (effectively compelling performance) where equity would not also grant specific performance.

Process of obtaining injunctions

Typically, draft complaint/motion (unless TRO) containing column A & column B, where interlocutory appeal allowed (NOTICE NOTICE NOTICE)

1. Temporary Restraining Order (TRO) (ex parte - notice formal or in)
   • Better be worth meeting in judges living rm @ midnight, high standard (bulldozers engines revving) for lack of notice
2. Preliminary Injunction (Hearing)
3. Permanent Injunction (Trial)

Where conflicts in affidavits, evidentiary hearing is necessary.

Injunctions

Wheelock - Granted Perm Pos Injun compelling PLA to remove rocks from property where $$$ Dmgs insufficient due to unavailability of boulder-movers in 1800s.

K-Mart - Granted Perm Pos Injun compelling DEF (shopping center) to remove obstruction blocking PLA (tenant) where in breach of bargained-for term in lease, due to unique nature of real estate and less burdensome/more reasonable for landlord to arrange demolition than tenant.

Note: If K-mart had been landowner, monetary damages for removal would have sufficed, given availability of demolition at market.

Muehlman - Granted Perm Neg Injun barring tractor use from 8pm-7am where noise nuisance disturbs sleeping neighbours, due to recurrence/insufficiency of $$$ dmgs and reduced hardship to DEF (only delaying start of workday for one hour)

Triplett - Granted Perm Pos Injun compelling causeway-demolition/bridge-reconstruction by operators where in breach of their easement to use & maintain bridge over landowner's lake, due to nature of Agmt shifting construction responsibilities to easement-holder (reverse of K-mart b/c leases of diff nature)

Galella - Granted Perm Neg Injun barring photographer from 25ft proximity, path-obstructing, & jeopardizing safety of subject where aggressive harassment invaded privacy & inflicted emotional distress, due to recurrence/multiplicity/inestimability of $$$ Dmgs.

Denied Perm Neg Injun barring photography of Onassis generally, due to professional hardship & preservation of DEF's rights to photog in public.

Graham - Denied Perm Neg Injun barring medical office w/i 25mi where in breach of non-compete agreement, due to DEFs showing of overwhelming public health demand for doctors in the area. Public interest trumped hardship & right to K of PLA.

Boomer - Denied Perm Pos Injun compelling manufacturers to cleanup cement dust & refit factory w/preventive tech, due to immense business-crippling expense, social need for cement, and besides DEF is only one of many contributors in community. Instead, orders recurrent money damages for their portion of dust contribution.

Specific Performance

Walgreens - Granted Neg SpecPerf barring shopping center from opening 2nd pharmacy where in breach of non-compete agmt, due to long-term of Walgreens' K & difficulty to calculate damages. Ct held public interest in pharmacy competition unpersuasive and besides shopping center could buyout Walgreens non-compete contract term without burdening the court with supervising compensatory payments.

Van Wagner (Billboard) - Denied Pos SpecPerf compelling lease of billboard to PLA where new building owner refused to honor lease, due to disproportionate harm to DEF, adequacy of money damages, and certainty of valuation given PLA's reconveyance.

Note: Traditional rule extends SpecPerf even when there's a 2nd K.

Niagara-Mohawk - Granted Pos SpecPerf compelling manufacturer to honor termination clause of K for nuclear plant parts, where parts delivered failed to meet specifications, due to great public interest in adequate construction of powerplant by a better adept manufacturer. Termination included replevin - DEF Graver required to ship accumulated materials for the project to Mohawk.

Henderson - Granted Pos SpecPerf compelling decedent's estate to convey land to caretakers of elderly man, where promised by K prior to death, due to completion of performance at death and unique nature of land, despite lack of mutuality (no SpecPerf on personal service Ks). Uniqueness & Completed performance override lack of mutuality here.

Dover Shopping - Granted Pos SpecPerf compelling bakery to reopen & maintain operations, where required by K, due to a lack of adequate remedy at law, despite hardship & burden of judicial supervision to ensure compliance.

Shubert Theater - Denied Pos SpecPerf compelling acrobats to perform act, where promised by K, due to public policy against forced labour.

Granted Neg SpecPerf barring acrobats from working for other theatres, where in breach of non-compete, due to inadequate remedy at law for unique act

Negative Injunctions (limited in terms of function, geographic scope, & duration) are typically ordered where a non-compete agreement exists, direct competitors are available to employ, and the service is unique or non-delegable.

Reinstatement is not typically ordered where personal supervision is involved, unless terminated in violation of federal or state anti-discrimination statute.

Wooster (Ch17) - Granted Pos SpecPerf compelling conveyance of TV Station & Tower lease, where money damages inadequate due to great earning potential and uniqueness of property

To get SpecPerf for sale of goods, item must be one-of-a-kind (or other proper circs)

Sedmark - Granted Pos SpecPerf compelling conveyance of rare Chevy, where in breach of K, b/c though item was not one-of-a-kind, it was not attainable on open market and no substitute available without considerable expense, delay, & inconvenience (therefore proper circs)

Preliminary Injunctions

Interest in IntlocInjuncts is to preserve status quo in anticipation of trial (eg. stop a building from being torn down before trial)

Ride the Ducks - Granted Prelim Neg Inj barring DEF (duckboat tours) from trespassing on ramp exclusively leased by PLA, despite irrep harm to DEF. Ct held high probability of PLA's success plus public Interest in securing Property & K rights. Also DEF invited IrrepDamage on self by unreasonably relying on ramp access.

Tom Doherty - Granted Prelim Neg Injun barring Power Rangers (c)-holder from K'ing with a bigger publisher, where in breach of exclusive K, due to irreparable harm and unique nature of fad

Cassim - Denied Prelim Neg Injun barring HHS from suspending doctor and publishing statement thereof, where desire to warn public, despite potential harm to reputation, due to public health being paramount.

Temporary Restraining Orders

Federal Rule 65 - Distinguishes Temporary Restraining Order from Preliminary Injunction

• TRO → entered ex parte, but only upon a specific showing that immediate and irreparable harm will result before the opposing party could be notified and heard. The order can last only 10 days with a second 10 day extension for good cause.
• PI → hearing is expedited on the calendar, both sides must have a reasonable opportunity to present some evidence and the injunction will last until the full trial on the merits of the case.
• A preliminary injunction is appealable whereas a TRO is not

Fengler - Where essential facts are in dispute, a request for an evidentiary hearing must be granted prior to any preliminary injunction.

Carroll - No ex parte orders where 1stAmend rights implicated and no reason to not give notice proffered.

Equitable Defenses

Equitable Defenses

1. Laches - Equity
2. Estopple - Equity & Law
3. Unconscionability - Equity & Law
4. Unclean Hands - Equity

Laches & Estoppel

Elements of Laches (Common Law equivalent of Statute of Limitations)

1. Knew or should have known the facts to bring a claim
2. Delayed
3. Unreasonably
4. Prejudicial to DEF (Evidentiary & Economic)
5. No wrongful conduct by DEF

Classic Laches example is watching a neighbor build a brick wall for months before pointing out it was a foot over the property line.

Discovery Rule (p152 n.4) - Clock begins to run for purposes of bringing a claim when the facts were available that he should have known

A statute's SoL can be applied in an equitable claim, but if so court will likely not apply laches while within the SoL. (p162 n.1)

Stone - Laches defense granted where 5yr-delay in claim of (c) renewals of bio-dad Hank Williams, prejudicial to DEF's b/c many key witnesses have since died

Danjaq - Laches defense granted where 30yr-delay in claim of (c) infringement of James Bond, despite repeated failed prior suits & new releases of (c) material (DVDs, merch). Ct held that massive $$$ investment by producers & expense of collecting discovery materials would be overly burdensome & prejudicial to DEFs.

Equitable estoppel - Misconduct prompting good faith reliance resulting in change of position to worse.

1) Conduct, 2) Reliance, & 3) Prejudice

Note: Doesn't run against the Government (eg. Deputy AG)

Geddes - Estoppel defense granted where PLA agreed to golfcourse being built next to property and once built wants to rescind K, b/c hardship to great on DEF who relied on agmt w/PLA.

Unclean hands & Unconscionability

"Conscience defenese" - No show of prejudice required to bar morally-tainted (though legally-sound) claims.

• Must be related to matter before Ct, not collateral to it, but need not to rise to level of fraud/illegality
• Unconscionability (only K claims) is measured at Time of K-formation to review Agmt as product of fair-bargaining
• In Pari Delicto - a legal concept closely related to Unclean Hands, which literally mean “in equal fault”.

Senter - Remedy denied for unclean hands where illusory real estate transfer gone awry by PLA to escape seizure by malpractice creditors. Ct will not force nurse to return house b/c it would only reward doctor's fraudulent behaviour.

North Pacific Lumber - Remedy denied for unclean hands where non-compete agmt breached by employee who quit due to employer's fraudulent biz practices. Ct held that bad work policies of employer directly related to employee seeking job w/competitors.

Campbell Soup - SpecPerf denied for Unconscionability where farmers breached supplier K & resold to higher bidder b/c one-sided K allowed purchaser to refuse goods but not seller to refuse delivery and also only entitled LiqDams to purchaser. Note: though certain terms unenforceable, K itself was not illegal/uncons.

Contempt

Contempt → Ct power to enforce orders upon party's 1) refusal to comply, 2) litigation rule violations/misconduct, or 3) disruptive conduct

No contempt power to enforce legal relief (non-payment pursuable by wage garnishment, leans, & levies), but remember alimony & child support are equitable!

Distinction b/w equity orders as in personam (against person), where as legal orders are in rem (against property)

Civil Contempt → Empowers litigant to initiate remedial action for DEF's non-compliance with equitable order

• Compensatory Civ Contempt → Entitles litigant to additional compensation (no imprisonment) for demonstrable losses sustained as a result of DEF's prior disobedience
• Coercive Civ Contempt → Entitles litigant to inflict ongoing fine or imprisonment upon DEF to discourage continued disobedience (imprisoned or fine $$$/day until finally comply)

Criminal Contempt → Empowers state to initiate punishment of DEF for non-compliance with equitable order (fines go to state, not adversary, and will stand even if underlying decree is voided on appeal).

• Indirect Crim Contempt – Where disobedience takes place outside the court's presence, DEF is entitled to Constitutional protections of an attorney, a hearing, & a jury trial.
• Direct Crim Contempt - However, where disrespect is in the court's presence, judge may punish the conduct summarily, w/o according traditional Constitutional protections

  Test to waive due process: 1) Misconduct, 2) in presence of court, 3) observed by court, 4) assault to judicial process, & 5) necessitating immediate punishment (McL: better be violent act)

Time Share Systems - Affirmed Comp Civ Contempt of compensatory dmgs against party who delayed in turning over software & deleted some contents. (remedial for litigant)

Darwin Construction - Affirmed Coer Civ Contempt of $5K/day fine against party who had already delayed six days in turning over documents to IRS. (remedial for litigant)

Walker -

Latrobe Steel -

Stewart - Reversed Crim Contempt of $100 fine where employer refused to reinstate employee demoted for serving on jury duty, due to lack of due process required for indirect contempt

Imprisonment

• If jailed for set term (6mos), then criminal contempt
• If jailed until complies with order, then civil contempt.

United Mine Workers - Reversed Crim Contempt of fines imposed after violations where striking mine workers defying injunction did not receive jury trial.

Contract Damages

3 Forms of Damages for Breach of K

1. Expectancy (Benefit of Bargain) - Party's interest in realizing the anticipated value created by the other’s promise (Preferred by Cts unless to hard to calculate or net loss result)
   • Compensate non-breaching party to full performance of K, as if proceeded to anticipated completion w/o breach.
   • If no Perf, then Dmgs = Cost of Completion minus original K price with DEF
   • If defective Perf, then Dmgs = Cost of Repair OR Difference in value b/w performance as is and performance K'd for. (No Cost of Repair if it will cause Undue Expense to DEF)
2. Reliance - Party's interest in recovering losses suffered due to making of K, indep of a corresponding gain to opposite party
   • Compensate non-breaching party to negate effect of breached K, as if returned to position before K was ever made.
3. Restitution - Party's interest in recovering values conferred on other party through efforts to perform K
   • Compensate non-breaching party to balance value of performance as is, as if present state was extent of full performance, preventing unjust enrichment or quantum meruit by breaching party

Example: Roofer installs roof for $10K (present FMV of $6K). Turned down counteroffer of $8K. Purchaser breaches. Restitution would be $6K, Reliance would be $8K, Expectancy would be $10K.

Eastlake - Construction Ks are service Ks w/ some goods. Breach by Contractor will not be efficiently remedied by forcing specific perform. Too costly to tear down & start over. Better to compensate for measurable difference in value b/w actual value vs. expected value.

Gruber - DEF failed to exercise due diligence to sell the 90K sets of Christmas cards, which amounted to the breach. They didn’t know how many would be sold so they couldn’t get expectancy, but the got out-of-pocket reliance damages amounting to what they spent making the cards minus the net amount they would have received from the sale of 40,000 sets at 6 cents each.

Campbell - Quantum meruit claim for costs of microfilm manufacture

• Cost of performance − Cost to complete, cost to get where expected to be. Get cost of performance unless economic waste or windfall and then get diminished value.
  • Economic waste − Groves… it is never worth spending more than worth
  • Windfall − More than expectancy
• Diminished Value − Difference in value at time k was formed and value expected from full performance

Exception: non-economic/sentimental value → Ugly Fountain exception

Intro

CLASSIFICATION				REMEDIES AVAILABLE	LIMITATIONS
LEGAL RELIEF (Monetary Damages)	Compensatory	Pecuniary	General Losses (hard to estimate)	Uncompensated Labour, Loss of Opportunity
			Specific Losses (easily valued)	Tort - Medical Bills / Lost Wages / Property Damages Contract - Expectancy, Reliance, & Restitution
				Liquidated damages
		Non-pecuniary		Tort - Pain & Suffering, Loss of Enjoyment/Consortium
	Non-Compensatory			Punitive
				Nominal (eg. Trespass)
EQUITABLE RELIEF	Non-Monetary	Injunctions	Permanent (trial)	Preventive Restorative Prophylactic Structural
			Preliminary (hearing)
			TRO (emergency)
		Specific Performance			* Not for Personal Service Ks

"Right" (C/A)

"Remedy"

Substantive C/A: 1) Constitutions 2) Statutes 3) Common Law - Contract - Tort

I) Remedies limited by source of C/A: Legal Relief → Compensatory (Money) Damages Equitable Relief → 1) Injunction A) Inadequate Rem at Law Unique interest, ie. land () Repeated damages actions (Orloff) Hard to calculate damages, speculative Imminent threat / harm B) Irreparable Harm C) Balance of Hardships D) Practicality E) Public Policy/Interest 2) Specific Performance A) Inadequate Rem at Law B) Likelihood of Fut. Perf by PLA C) Perf by DEF D) Balance of Hardships E) Practicality/Burden on CT of Supervising order II) Judicial Immunity

What's Legal vs Equitable Relief?

Two forms of compensatory damages, those you have a receipt for (pecuniary damages) and those you don't.

Legal Relief vs Equitable Relief

Legal remedies are (monetary) judgments

Equitable remedies are decrees, though sometimes monetary (ie. alimony, child support, property divisions)

Legal Relief → Loss → Compensatory Damages (2 categories, both not always available)

Economic (Pecuniary) Loss → Job (earning capacity)

Non-Economic (Pecuniary) Loss → Joy

Tort → Legal Relief → Money Damages → Medical Bills / Lost Wages / Property Damages / Atty Fees / Loss of Future Wages / Pain & Suffering / Emotional Distress

PLA Tortfeasor sued for $100K Lost Wages (Money Damages) for Negligent Accident → Legal Relief (jury trial)

PLA Employee sued for $100K Lost Wages (Back Pay) for Unlawful Termination → Equitable Relief (no jury trial)

Equitable relief - Back Pay & Front Pay

• Brunecz v. Houdaille Ind. - Whistleblower statute gives cause of action and remedies, but which remedies does the statute provide for? No punitive damages.
• Hanna v. WCI Communities, Inc. - State court claim brought in Fed court along with Sarbanes-Oxley claim under Supp Jurisdiction. S-O limits damages, but what about State law? Fed Ct looks to State law & finds it does not provide for state
  • Other cases:

Preventive Injunction (EquitR) - Most common form, EquitR not granted unless LegalR (usually monetary damages) are inadequate.

Attorneys fees

American rule vs European rule (p939)

Generally, in absence of K otherwise, pay your own atty fees (eg. Lease agmts entitle landlords to RezAttyFees).

• (ReZ) FRCP R11 Sanctions, FRCP R37 Non-cooperation w/discovery, FRCP R16 Fees required by law
• (ReZ) Fee-shifting statutes: Civil Rights/Discrimination, Consumer fraud, Whistleblower, Frivolous lawsuits
  • Also attorney's fees may be awarded out of litigation resulting in fund to benefit many

Statutes

1. Prevailing Party: Definition? Under Fed, Judgment (Consent Decree). In some states, "Catalyst" (includes settlement)

   Catalyst theory - The initiator of the lawsuit that

2. Con ? DEF Prevailing Party
3. Stel -
4. Success? Degree of ($$$) or Factually Prevailing Party

   If you fail on 80%, but succeed on 20%.

Declaratory Judgment

Any person may have determined a (matter of legal ambiguity for which he has standing) through declaratory judgment.

Damages - Breach of K

3 Forms of K Damages

1. Expectancy (Benefit of Bargain) - Party's interest in realizing the anticipated value created by the other’s promise
   • Compensate non-breaching party to full performance of K, as if proceeded to anticipated completion w/o breach.
2. Reliance - Party's interest in recovering losses suffered due to making of K, indep of a corresponding gain to opposite party
   • Compensate non-breaching party to negate effect of breached K, as if returned to position before K was ever made.
3. Restitution - Party's interest in recovering values conferred on other party through efforts to perform K
   • Compensate non-breaching party to present value of performance as is, preventing unjust enrichment or quantum meruit by breaching party

Roofer installs roof (FMV $6K) for $10K. Turned down counteroffer of $8K.

Eastlake v. Forest City Enterprises, 426 U.S. 668 (1976) - Construction Ks are service Ks w/ some goods. Breach by Contractor will not be efficiently remedied by forcing specific perform. Too costly to tear down & start over. Better to compensate for measurable difference in value b/w actual value vs. expected value.

Difference in Value vs. Cost of Repair

Difference between K & Tort cases

• Cost of performance − Cost to complete, cost to get where expected to be. Get cost of performance unless economic waste or windfall and then get diminished value.
  • Economic waste − Groves… it is never worth spending more than worth
  • Windfall − More than expectancy
• Diminished Value − Difference in value at time k was formed and value expected from full performance

Exception: non-economic/sentimental value → Ugly Fountain exception

Reliance

1. Reflecting detriment in changing position in reliance on defendant’s promise

2. Goal to put plaintiff in as good as a position had there been no k

• Cannot get reliance until k
• Cannot exceed expectancy
• If get expectancy cannot also get reliance

  Reliance is what were willing to put into k to get expectancy

• Can get reliance and restitution

Restitution

Return benefits conferred on the defendant

Can always get restitution unless can get expectancy

Damages - Tort

Valuations of Personal Property in Tort

I. Property of Static Value - FMV of damaged property is ceiling, but can be substituted for a lesser cost of repair, loss of use, & diminution in value.

II. Property of Fluctuating Values (applies similar tests as K's mitigation of damages)

1) FMV at Time of Conversion

2) Highest Price from Time of Conversion to Trial

3) Highest Price from Time of Conversion to Reasonable Time after Discovery

4) FMV at Time of Conversion OR Highest Price from Time of Discovery to Reasonable Time after Discovery (NY Rule)

Note 4 Points: Time of Conversion - Time of Discovery of Conversion - End of Reasonable Time After Discovery - Time of Trial

Sentimental value is not a compensable loss (dogs or grandmother's quilt), except limited family heirlooms where only value is sentiment (championship rings).

Allowing delay of proceeding encourages injustice by speculation.

Lobsterboat - Seller wrongfully repossessed boat 6mos before lobster season, buyer doesn't file until well into lobster season when damages are high. Court limited damages due to failure to mitigate damages through delay in recovering boat.

MVA, No dispute existed as to liability. ColB - Valuing loss of car's use.

• Hypo 1: 30k car, 10k of repairs will take 2 weeks. Get $10k for repairs & $1k for loss of use.
• Hypo 2: 30k car destroyed, "FMV after" is scrap. 2 weeks to replace. 30k for replacement, 1k for loss of use.

Note: Even complete repair can lower value of car, due to worry about latent damages. So, compensation for diminution in value IS also available. (p.500 n.5)

In the case of Real Property, if destruction, FMV before less FMV after. If repairable, 1) cost of restoration upto diminution in FMV before/after OR 2) cost of restoration upto FMV before OR 3) cost of restoration in excess of both where personal use & reasonable cost. If repairs are made, courts are inclined to compensate. However, if just as likely to sell and pocket the difference, then courts are less inclined.

Miller & Cuddahy

Roman Catholic - Built for $3M, 232k cost of repair

Duchane -

Kansas corn case - Salt in the water (nuisance), preventing corn irrigation. Cost of restoration & loss of use.

Limitations on Damages

Frankel - MVA, sought damages for hospital bills and post-

Healy v. White, 173 Conn. 438 - Kid in MVA, seeks $750K Damages & $125K future hospital expenses for permanent Epilepsy. Jury split the verdict offering $350K damages & $60K future hospital.

Sea Captain - Damages for lost earnings & Damages for loss of enjoyment, Difference btwn what can be sued for in NY & NJ

p.469 - Function of damage remedy in tort cases is substituting money for tangible & intangible losses to make victim whole.

In most cases we talk about injury to property, to return wronged by compensating for replacement. However, in personal injury torts, we cover tangible (pecuniary/economic) & intangible (non-pecuniary/non-economic) damages against the victim.

• Pecuniary Dmgs: Lost Earnings, Medical Bills (past, present, & future), Disability Costs, Lost Earning Capacity
• Non-Pecuniary: Pain & Suffering (crapshoot)

Intangibles paid out in 1) Per Diem, 2) Lump Sum, 3) both 1&2, 4) Neither 1nor2, 5) Time-unit arrangement w/o money

Wife - Loss of Consortium 1) Tangible, 2) Intangible

Tort Decedent: Time of Tort → (Pre-death damages) → Time of Death → (Post-death Damages)

Estate of Tort Victim sues under Survival for pre-death damages

Survivors sue under Wrongful Death for post-death damages AND under other causes of action for pre-death (loss of consortium, taking care of victim)

In NJ, all damages available for pre-death, but for post-death damages, must be tangible In TN, Post-death damages can include intagibles such as Loss of Consortium.

Present Value & Inflation

Examples of NJ exceptions: Lost wages award reduced for present value and for taxes

Interest accrues on $$$ between breach & payment with judgment in the middle

• Post-judgment interest always awarded (provided w/i SoL, ie. 20 years in NJ)
• Pre-judgment interest only awarded for K disputes where amount in contention is known and none for future wages or other predictive compensation

  In NJ, if tort case given $$$, from the later of 6 months after injury or filing date

  • Bonus of 8% interest if award in excess of offer to settle

Foreseeability

Remedy →

1. Compensable? (Foreseeability)
2. Caused? (Certainty by proof that act resulted in the injury)
3. Calculable? (Certainty by reasonable evidentiary basis of actual (not speculative) losses)

Youst v. Longo (p. 557) (whipped horse case) - PLA (racehorse owner) sued DEF (competing horse owner) for damages in loss of race "caused by mid-race contact. Held: No $. Determining the probable expectancy of winning a sporting event contest is impossible. One racehorse bumps another and prevents the horse from winning. Court says it's too speculative to say that the horse would have won.

Tort case w/ harness racing and allegation that one horse hit another; P says damages are purse of race -- Ct says B.S bc no reas certainty or liklihood that horse would have won

a.REST 774b specifically disallows for horse races

Cannon v. Yankee Products, -- P restrauteur purchased canned peas from D and customer discovered worm in them. Customer freaked out and yelled. P had to refund the $ to that customer and a lot of others who walked out and never came back. According to P, his previously loyal customers hit the road and his business hit the skids. Trial ct awarded P damages based on diminution of sales for 12 months following incident. Held: Trial ct erred b/c damages not foreseeable.

Lost profits may be recovered as an element of damages for breach of K where it appears that the loss was the natural consequence of the breach, that the loss was w/in the contemplation of the parties, and that the profits were not so uncertain as to be incapable of reasonable proof.

Restaurant owner vs customer. Customer finds a worm in a can of peas. Customer runs the owner out of business. Owner can't recover lost profits. Why not? Problem with causation - court says you have not proved that the customer shut down your business; you also have not proved lost profits.

p. 381, Note 4 - Generally, emotional distress damages are not allowed on a pure contract case. However, you can have disclaimers of warranty in a contract to limit any potential damages (but there are certain exceptions in consumer goods contracts).

Redgrave v. Boston Symphony (1st Cir. 1988) (the Concert Cancellation case)

• Facts: PLA (actress) K'd with DEF (orchestra) to sing in "Oedipus Rex" for $30K. PLA's political activities in support of PLO drew protests and orchestra cancelled show. At trial, Producer Mann testified he withdrew "Heartbreak House" offer to PLA after DEF's show cancellation. Evidence also presented that various film productions with which PLA had Ks subsequently folded (& were now insolvent). Trial court awarded her $100K in consequential damages for loss of "future professional opportunities."
• Rule: Consequential damages → 1) Foreseeable Losses (Baxendale), 2) Proximally Caused by Breach, and 3) Rationally computed based on Facts (including deduction for mitigation)
• Issue: Whether consequential damages may be awarded for general & specific harm to an employee's professional career?
• Holding: No consequential damages awards for general reputation harm or speculative opportunity losses. However, to the extent specific foreseeable & proximally-caused lost earnings are established with “reasonable certainty," they are recoverable.
• Outcome: Deleted all but Mann's $12K offer in consequential damages, as PLA failed to produce sufficient that BSO could have reasonably foreseen & was proximal cause of the film productions' collapse.

Collateral source rule (p. 674): If PLA has insurance or other providential coverage for his damages, DEF cannot introduce evidence of this to persuade jury to give less remedy. The good foresight & reasonable care of PLA cannot be used against him. However, in many cases, remedy will be subrogated with damages going to insurer rather than PLA. Whether or not something counts as insurance is determined by contributions to it ie. Social Security)

Limitation on Emotional Distress

Breach of K → No Damages, except rare cases, such as funeral/deceased being mishandled

Intentional Tort → Always

Negligent Tort (mostly subsumed in Pain & Suffering) →

Psych Distress either 1) causing PhysManifestations OR 2) caused by PhysInjuries OR 3) viewing harm to family member from w/i zone of danger

[Ps] v. Campbell - Tort victims suing DEF ins policyholder w/ State farm, awarded $186K. Campbell v. State Farm, breach of InsK for refusal to pay award, instructing Campbell to sell his house to pay award. No emotional distress damages for breach of K, unless tort outcome triggered breach of K, such as bad faith refusal to settle (aka "The Tort of Bad Faith"). Such breach is treated as an intentional tort, reckless infliction of emotional distress. $2.6M compensatory and $145M punitive damages awarded to Campbells. USSC reduced punitive award as excessive and violative of 14Am's Due Process Clause (Ginsburg's dissent p.769) Notes egregious evidence of exploitation by SF

• USSC Maj did not like introduction of evidence unrelated to the Campbell's personal harm.
• Punitive Damages have same effect as criminal penalties, but CivDEFs aren't accorded the sam protections as CrimDEFs, thus risking arbitrariness influenced by evidence w/little bearing on the amount due. Thus, courts should consider (1) degree of reprehensibility of the defendant’s misconduct, (2) disparity b/w actual or potential harm suffered by PLA & PuniDmgs award, and (3) difference b/w PuniDmgs awarded by jury & CivPenalties authorized or imposed in comparable cases.

NJ requires malice...

If it's a breach of K, you only get your economic loss.

Restitution

• Unjust Enrichment CoA (to disgorge benefit to DEF, not to make PLA whole) - 1) PLA conferred benefit on DEF, 2) Services & materials were accepted & enjoyed by DEF, 3) Reasonable Expectation of Payment by PLA, 4) Unjust only if NO compensation. May arise from either wrongful conduct or mistake.

Recovery & restitution does not require wrongful behaviour. Circumstances may even include actual agreement (eg. Tennessee valley authority manager didn't have authority to enter K for docs to be microfiched, so K void, but quasi-k triggered under unjust enrichment).

Assumpsit

• Money had & received (Resale)
• Goods sold & delivered

Stole machine & sold it for ($550) much less than its value to PLA ($10,000). CoAs:

1. Tort of conversion values stolen prop at FMV
2. Assumpsit (had & rec'd) values stolen prop at resale value (benefit to DEF)
3. Assumpsit (sold & delivered) values stolen prop at FMV (loss to PLA)

"Waver of Tort - Suit in Assumpsit"

• Legal → 1) Tort of conversion → FMV of Property (Loss to PLA)
• Restitution 2) "Money Had & Received" → Resold (acting as agent) → Disgorge DEF's profits (Gain to DEF)
• Restitution 3) "Goods Sold & Delivered" → FMV of Property at point of Conversion (Benefit to DEF)

$10k - PLA - Tort, $10k - DEF - UnjEnrich $1k - PLA - Tort, $10k → DEF - UE> Mining - $10k → PLA, $550 → DEF - Tort>UE

Col A - Coke Cylinder Sale

1. Br of K → Not the case here, but if Exp / Imp in fact → Damages, unless inadequate rem at law, though here cylinders are readily available at market
2. Tort → There must be no legal K!
3. Unj Enrich → There must be no legal K!

Unauthorized use/conversion of egg machine over 3 years (in '39, FMV of $600 Sale, FMV of $900/3yrs Rental, DEF's Gain of $1560). No #2, as machine was not resold. Ct awards $1560.

Injunctions

4 Classes of Injunctions - Compelling you to do or refrain from some act

Preventive - Most common form (rooted deep in common law), preventing party from doing a future harm (typically, one & done)

• Court order to xfer property or rehire employee or halt sale of product

Restorative - Operates to correct the present by undoing the effects of a past wrong. Unlike other injunctions, focuses not only prospectively, but also retroactively.

• Tainted election process repaired by erasing election

Prophylactic - Seeks to safeguard PLA's rights by directing DEF's behavior, so as to minimize the chance that wrongs might recur in the future. Operates on an ongoing basis.

Structural - Involvement of courts in amending institutional policies & practices of DEF entities

• School desegregation order

Process of obtaining injunctions

Typically, draft complaint/motion (unless TRO) containing column A & column B, where interlocutory appeal allowed (NOTICE NOTICE NOTICE)

1. Temporary Restraining Order (TRO) (ex parte - notice formal or in)
   • Better be worth meeting in judges living rm @ midnight, high standard (bulldozers engines revving) for lack of notice
2. Preliminary Injunction (Hearing)
3. Permanent Injunction (Trial)

Where conflicts in affidavits, evidentiary hearing is necessary.

Don't send letters to judge, it's unprofessional (at minimum, must CC)

Contempt

Contempt of court

• Contemptible actions
  1. Refusal to comply with Equitable Orders or Judgments
  2. Litigation Rule Violations or Misconduct
  3. Disruptive Conduct
• Kinds

  Criminal (Direct or Indirect) - Even if underlying law overturned/invalidated, when Crim contempt, still valid

  • Direct - 1) Misconduct, 2) in presence of court, 3) observed by court, 4) assault to judicial process, & 5) necessitating immediate punishment

    Under such circumstances, many constitutional due process requirements are waived (very rare, better be act of violence)

  • Indirect -

• Civil -

Penalties

• Criminal - Fine, imprisonment, or both
• Civil - Compensatory damages or Coercive orders (fine, imprisonment, or both)

Contempt powers for failure to comply with (equitable) personal order (but not legal judgments)

1. Civil (remedial for litigants) - a) Coercive function and/or b) Compensatory function
2. Criminal (punish for society) - Retribution/Deterrence

When you are ordered to stop or act in interest of equity, you must comply or risk contempt

Normally money judgments not enforceable by contempt, but alimony is equitable, so Deadbeat Dads.

Must demonstrate capacity to apply.

Doctor Elizabeth Morgan ordered to produce the child, she refused, held in contempt

Stubblefield - Employee fired/demoted for serving on jury duty, employer in violation of court order

• If judge fines him $500 or jails him for 6 months, then criminal contempt
• If judge fines him $100/day or jails him until he reinstates employee, then civil contempt.

Laches

Laches (only when seeking equitable relief and even then SoL may also apply; Cts might apply laches in extreme cases pursuing legal relief)

1. Unreasonably delay
2. Prejudice - a. Evidentiary (witness dead) & b. Economic (investment expended)

Danjak LLC v. Sony (James Bond Thunderball) - Waits to sue until being released for home video, but court rules that waiting to sue while watching an infringer invest time & money into developing idea.

Classic Laches example is watching a neighbor build a brick wall for months before pointing out it was a foot over the property line.

K-Mart was not at fault for letting it go 11 weeks b/c they had no way of knowing and therefore meets measure of reasonable delay.

Equitable estoppel - Misconduct prompting good faith reliance resulting in change of position to worse.

1) Conduct, 2) Reliance, & 3) Prejudice

Doesn't run against the Government (eg. Deputy AG)

No prejudice required for unclean hands (equitable) defense

Pg 180 suggests this could be applied to legal relief as well.

Unclean hands only applies to defendant

Unconscionability (legal & equitable) defense

Interlocutory Injunction Test (are you going to do some immediate irreparable harm prior to trial?)

• Likelihood of success on merits
• Irreparable harm
• Balancing hardships
• Public interest

Interest in IntlocInjuncts is to preserve status quo in anticipation of trial (eg. stop a building from being torn down before trial)

Duckboats ramp exclusive K case, likelihood of tortious interference & trespass, such that even if you calculate losses, loss of goodwill could put them out of business

Power Rangers -

Misc

Barge-Bertie

White Construction tractor trailer drives over husband

Hendersons

Frankel

Mrs. Payette

Mr. Stauffer & Sister-in-law -

Henderson v. Fisher - Agree to take care of older man in xchanj for house, request to compel xfer of house

Get the rocks off my property!

Jackie Onasis -

Right to refuse admittance at racetrack (Orloff)

Treister v. American Academy Of Orthopaedic Surgeons

Enforcement of contractual duty to enter arbitration before litigation

Norris Laguardia Labor Strikes

KMart

Oliver -> Van Wagner -> Asch

Niagara Mohawk Power Corp. v. Graver Tank & Mfg. Co., 470 F. Supp. 1308 (N.D.N.Y. 1979)

• For PrelimInjunc, moving party must show possible irreparable injury per balancing of hardships test.

• Although it was possible that NY courts would place good-faith limitation upon exercise of unilateral convenience termination clause, where it could be concluded on basis of existing precedents that such a restriction would probably not be imposed, owner had shown probability of success on merits for purposes of determining whether owner would be entitled to specific performance of termination clause of contract.

• Language in contract for construction of primary containment liner for nuclear power plant to effect that purchaser shall have the right to terminate the contract at any time for any reason by giving the contractor two days' prior written notice to such effect was clear and unambiguous and, therefore, parol evidence altering or contradicting those terms was inadmissible.

• Under NY Law, where any breaches of contract prior to sending letter of termination were partial rather than total, contractor was not discharged from its own contractual obligations and would not have been justified in rescinding the contract for any such breaches.

• Owner has obligation to facilitate work of contractor and to not do anything that would obstruct or impede the contractor's work but obstructions or delays are actionable only if they were not within parties' contemplation when they made their agreement.

• Under NY Law, any changes in design of containment liner for nuclear power plant made by architect throughout the time that project was under construction were not of sufficient magnitude so as to amount to actionable breach of contract.

• Under NY Law, Power Corp showed probability of successfully proving that any prior breaches of construction contract which it may have committed would not bar it from utilizing unilateral unrestricted termination clause for purposes of determining whether preliminary injunction would issue.

• Although Fed Law was controlling as to appropriate standard to apply in deciding whether to grant a preliminary injunction in breach of contract case, court would be required to look to state law to determine whether there was underlying basis for granting equitable relief of specific performance in circumstances of case.

• Under NY UCC, K for construct & erection of primary containment liner for nuclear power plant was not a K for "sale of goods." NY UCC § 2-716.

• Under NY Common Law, courts may grant a decree of SpecPerf only if there is a valid K between the parties; plaintiff has substantially performed under contract and is willing and able to perform its remaining obligations; defendant is able to perform its obligations; and plaintiff has no adequate remedy at law and when these elements are present, granting of specific performance is within sound discretion of the court.

• Under NY law, any breach that might have previously been committed by power corporation was relatively minor and, therefore, would not bar a decree of specific performance.

• Where replevin was not adequate legal remedy in action relating to specific performance of unilateral termination clause in contract for construction of primary containment liner for nuclear power plant, that remedy would not have to be exhausted before equitable relief in nature of specific performance was granted. CPLR NY 7101 et seq., 7102(c), par. 7, (d), pars. 2, 3.

• While ordered seizure could not be granted with respect to materials located outside NY, court, in action seeking specific performance of termination clause of contract for construction of primary containment liner for nuclear power plant, by virtue of fact that it had personal jurisdiction over owner of plant, a party to contract, had authority to grant decree of specific performance requiring owner to ship materials especially accumulated for the project, no matter where such articles might be located.

• Where owner of nuclear power plant showed probability of successfully demonstrating an underlying basis for granting of equitable relief of specific performance of unilateral termination clause of contract for construction of primary containment liner for nuclear power plant and where owner of plant also demonstrated possible irreparable injury which would occur as a consequence of difficulty in determining monetary damages owner would suffer as result of a delay in scheduled commercial operation date for nuclear power plant, owner's motion for preliminary injunction would be granted and until trial on merits, contractor would be directed to specifically perform under termination clause of contract.

• Courts of equity are reluctant to grant specific performance in situations where such performance would require judicial supervision over a long period of time.

Graham v. Sereco

Boomer v. Atlantic Cement Co., 26 NY2d 219 (1970) - Injunction denied

Source of the Right Limits the Remedy

Specific Performance

1. Inadequate remedy at law
2. Likelihood of Fut. Perf by PLA
3. Perf by DEF
4. Hardships
5. Practicality/Burden on CT of Supervising order

NOTE: No specific performance of K for personal service contract (involuntary servitude). However, negative covenants, such as non-compete agreements are enforceable.

Dover Shopping Center vs. Kushman's

Walgreens - Seeking Enforcement of Exclusivity K clause

Niagara Mohawk - Seeking Nuclear Power Plant Liner (uniquely constructed)

Channel 17 - TV Station

Henderson - Land, House, & Furniture within

Van Wagner - Seeking Rights to Unique Billboard at Midtown tunnel (BUT just going to lease it, so calculable)

Sale of Goods typically provides Ability to Cover, therefore there is an adequate remedy at law. However, LAND IS UNIQUE.

Rare Corvet (1 of 6000) case - "Unique or other proper circumstance" meaning basically where there is no ability to cover. Similar custom made car is near impossible to obtain.

Page 99, what if purchaser contracted to resell unique item? In re: land, SpecPerf still required, but others perhaps not (see Van Wagner)

Shubert Theatrical Co. v. Rath, -

Kennedy's concurrence in Ebay

Hank Williams

Shrinkwrap

Minor League Baseball team is fungible like the TV station (Ch 17)

Software product is not unique.