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Remedies Bar Outline

Law Outlines > Remedies - Bar Exam Outlines

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1. TORT REMEDIES a. LEGAL Remedies i. DAMAGES - Based on the injury to the P [compensatory, nominal, punitive]

1. Three Types a. Compensatory - Place the injured party in the position he would have been in had the injury not occurred. b. Nominal - Awarded when the plaintiff has NO actual injury in order to establish or vindicate the P's rights. c. Punitive - Damages awarded to punish the defendant (3 Rules) i. Actual Damages Prerequisite - In order to get punitive damages, P must have been awarded compensatory or nominal damages first.

1. Note: Punitive damages can also be attached to restitutionary damages for tort cases. ii. Willful, Wanton, Malicious - In a non-contract claim, P must prove by clear and convincing evidence that D engaged in conduct beyond mere negligence. iii. Due Process Concerns - Apply 3 factors to determine if the damages are grossly excessive.

1. Reprehensibility of the D's conduct

2. Reasonable ratio - punitive to actual damages (Single digit)

3. Difference between the punitive damages and the civil statutory penalties/ fines available for similar conduct

2. Four Requirements a. Causation - Actual causation ("but for" test) b. Foreseeablity - Proximate causation, the injury must have been foreseeable a the time of the tortious act c. Certainty - Damages cannot be speculative i. Economic Losses (Special Damages) - must be proved with sufficient certainty. (ex. medical expenses, lost earnings)

1. Past damages - have to be established with more certainty than future damages. (i.e. historical record)

2. Future damages - P must show that the damages are more likely to happen than not. ("All or nothing" rule) ii. Non-economic Losses (General Damages) - Basic certainty rules do not apply. Jury may award ANY amount it wished subject to proper instructions. (Unit of time ok, NOT golden rule)

1. Ex: pain and suffering, permanent disfigurement d. Mitigation - P cannot recover for damages that could have been reasonably avoided. i. Note - Reasonableness is judged at the time of the loss and not in hindsight. 1

e. Attorneys Fees, Prejudgment Interest - Not recoverable absent a statute or contractual agreement. ii. RESTITUTIONARY Remedies - The D has been unjustly enriched at the P's expense

1. LEGAL Restitutionary Remedies a. Unjust Enrichment - Measured by the value of the benefit given to the D. i. Note - Must analyze unjust enrichment whenever the D retains a benefit at the P's expense but the P must choose either compensatory damages or unjust enrichment. ii. Punitive damages - can be attached to restitutionary damages as long as the underlying cause of action is in tort. iii. NOT Applicable to - Encroachment or Nuisance b. Replevin - Action for P to recover possession of specific personal property i. Two part test

1. Right - P has the right to possession

2. Wrongful - There is a wrongful withholding by D ii. Procedure

1. Before - P Can recover chattel before trial

2. Bond - P will have to post a Bond a. D can defeat an immediate recovery by posting a Redelivery Bond (D keeps chattel until trial)

3. Sheriff - Sheriff repossesses the property for P iii. Note - Replevin is almost always coupled with damages for lost use or benefit. iv. Note - May also use self help with reasonable force to recapture. c. Ejectment - Action for P to recover possession of specific real property i. Two part test

1. Right - P has the right to possession

2. Wrongful - There is a wrongful withholding by D ii. Status of Defendant - Ejectment is available only against a D who has possession of property.

1. i.e. Adverse possessor or holdover tenant. Not a trespasser iii. Note - Sheriff ejects D from property iv. Note - Ejectment is almost always coupled with damages for lost use or benefit

2. EQUITABLE Restitutionary Remedies (Apply when D has title to property) a. 4 Rules apply to CT and EL (Remember Equitable Defenses) i. Inadequate legal remedy - i.e. money damages are inadequate

1. D is insolvent OR Property is unique (CT only) ii. Tracing - Must trace D's unjust gain into some property that the D has acquired title to. (i.e. property itself or a bank account) iii. BFPs prevail over P - BFP has superior rights to P, but P may trace the proceeds of the sale into a bank account. iv. P will prevail over Unsecured Creditors 2

1. Note - deficiency judgments in connections with equitable liens have equal rights as unsecured creditors. b. Constructive Trusts - Trust imposed on improperly acquired property to which D has title. D serves as trustee and must return the property to the P i. Note - D must have acquired title to the property as a result of the unjust gain or by use of the unjust gain. ii. Result -D must return the property into which the tracing occurred iii. Increases in Value - Apply when the property increases in value. c. Equitable Liens - Lien imposed on improperly acquired property to which D has title. Property will be subject to an immediate court-directed sale. The monies received go to the P. i. Deficiency Judgment - If the proceeds of the sale are less than the FMV of the property when it was taken, a deficiency judgment will be issued for the difference and can be used against the D's other assets. ii. Decrease in Value - Apply when the property decreases in value. b. EQUITABLE Remedies i. INJUNCTIVE Relief - D is ordered to do or refrain from doing something

1. Permanent v. Preliminary injunctions a. Permanent Injunction is issued after a full trial on the merits b. Preliminary Injunctions are issued pending trial on the merits

2. Preliminary Injunction (5 Elements) a. Irreparable Injury - Establish that you will incur irreparable injury while waiting for a full trial on the merits. b. Balancing the hardships Favors Moving Party - Irreparable injury is weighed against any hardship D will suffer if a temporary injunction is granted c. Likelihood of Success on the Merits - probability of success d. Noticed Hearing - Issued upon a noticed hearing prior to adjudication in order to maintain status quo e. Bond Requirement - court should impose a bond requirement on P to reimburse D if P does not win on the merits

3. Temporary Restraining Order (TRO) a. Immediate Irreparable Injury - Establish that you will incur immediate irreparable injury while waiting for a preliminary injunction hearing. b. Ex Parte - Notice and adversarial proceeding are not required but a good faith effort must be made to give notice and a chance to appear. c. Limited Duration - Limited to 10 days (14 in federal court)

4. Permanent Injunctive Relief (I, Put, Five, Bucks, Down) a. Inadequate Legal Remedy Alternative i. Ejectment - Sheriff may refuse or not be able to recover property ii. Replevin - D can file a redelivery bond and destroy chattel 3

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