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Remedies

amkroeker Englisch 119 Karten

Karten in diesem Stapel (119)

  1. 1Specific ReliefSpecific relief remedies the wrong by requiring the defendant to perform a legal duty. Since it is a court order, if the defendant does not comply, the defendant can be held in contempt.
  2. 2Substitutionary ReliefSubstitutionary relief substitutes money for the specific relief. The plaintiff can only levy execution on the judgment.
  3. 3Declaratory ReliefDeclaratory relief tells people what rights exist.
  4. 4Equitable RemedyAn equitable remedy (usually specific relief) takes the form of a court order that is enforceable by the contempt powers of the court. There is no 7th Amendment right to a jury trial in an equitable action.
  5. 5Legal RemedyUsually substitutionary in the form of money. Guaranteed 7th Amendment right to jury trial in actions at law. Not enforceable by contempt, but rather a judgment lien on property, executed by sheriff.
  6. 6InjunctionAn injunction is a remedy in the form of an in personam order. It directs the defendant to act, or to refrain from acting in a specified way, and it is enforceable by the contempt power. The injunction must be obeyed until it is stayed, dissolved, or reversed, even if it is erroneously issued.
  7. 7Temporary Restraining Order (TRO)May be issued ex parte (i.e., without notice) to the enjoined party. Initially expires after 14 days but may be extended another 14 days for “good cause,” or longer with consent. A TRO is likely to be in effect until the final decision in a case.
  8. 8TRO ProcedureComplaint → ex parte hearing by court → if granted, P posts bond & serves TRO on defendant. Enjoined party can file motion to dissolve/modify with 2 days notice.
    If a case is removed to Federal Court while TRO is in play, apply federal procedure rules.
  9. 9Bond Recovery for Wrongful InjunctionElements: (1) Wrongfully enjoined; (2) Rebuttable presumption that defendant can recover against the bond; (3) Compensatory damages limited to harm actually caused and cannot exceed face value of bond.
  10. 10Test for Issuing TRO(1) Substantial likelihood of success on the merits; (2) irreparable harm by (i) inadequate legal remedy or (ii) emergency; (3) balance of hardships tips in favor of the plaintiff; and (4) issuance of the injunction is in the public interest.
  11. 11When is notice required to issue a TRO?Mathew v. Eldridge Balancing Test: Procedural due process is established by (1) the importance of the interest at stake; (2) the risk of an erroneous deprivation of the interest because of the procedures used, and (3) the government's (police powers) interest.
  12. 12When is notice NOT required to issue a TRO?No notice under Marquette for actual or threatened injury. No notice required under Vuitton when risk of imminent sale, removal, or destruction of disputed property. However, speculation is not enough; particularized evidence is required, e.g., a history of similar conduct.
  13. 13Test for Issuing Preliminary Injunction(1) A substantial likelihood that it will prevail on the merits; (2) that it will suffer irreparable injury unless the injunction issues; (3) that the threatened injury to the moving party outweighs whatever damage the proposed injunction will cause the opposing party; and (4) that the injunction would not be adverse to the public interest.
  14. 14Test for Issuing Permanent Injunction(1) P suffered irreparable injury (i.e., trial on merits required before issued); (2) Inadequate legal remedy; (3) Balance of hardships tips for P; (4) Issuance of the injunction is in the public interest.
  15. 15Grounds for Modification and Dissolution of Permanent InjunctionsOn motion, the court may relieve a party due to: (1) mistake; (2) new evidence; (3) fraud; (4) voidness; (5) applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.
  16. 16Swift StandardModifying a consent decree requires a clear showing of grievous wrong evoked by new and unforeseen conditions.
  17. 17Changed Conditions Standard (Post-Swift)Modifications are permitted if the injunction is harmful/no longer equitable in light of changes in the law or the facts.
  18. 18Appealing Permanent and Preliminary InjunctionsDefendant may immediately (1) challenge grant to the trial court judge; or (2) appeal to appellate court.
  19. 19Motions PanelThe motions panel awards pre-appeal injunctive relief to restore/preserve status quo until hearing by merits panel.
  20. 20Merits PanelThe merits panel reviews the appeal from an injunction ruling for abuse of discretion.
  21. 21Appealing Temporary Restraining OrdersGenerally not appealable. Exceptions: (1) TRO extends beyond length granted by FRCP without consent; (2) TRO has the “effect” of a final decision; (3) Δ found in contempt; (4) especially onerous mandatory injunctions.
  22. 22Requesting a StayThe motion is first submitted to the trial court judge. Only when the appellant shows that moving first in the district court would be impracticable may appellant submit directly to the appellate court.
  23. 23Automatic StaysCalifornia provides automatic stay of mandatory injunctions & a stay of prohibitory injunctions upon a showing of hardship. At federal level, there are no automatic stays of an interlocutory or final judgment for injunction actions pending appeal.
  24. 24Test for Granting a Stay(1) Likelihood of success on appeal; (2) Irreparable harm to the moving party if the stay is not granted; (3) Balance of hardships btwn opponents/others if the stay is granted; (4) Public interest in granting the stay.
  25. 25Prior RestraintA prior restraint is an administrative system or a judicial order that prevents speech from occurring. The Court has held that licensing systems constitute a prior restraint if they serve no important purpose or if they leave too much discretion in the hands of the administrators of the system. Prior restraints are presumptively unconstitutional.
  26. 26Prior Restraint on SpeechIf there is going to be a TRO for a prior restraint on speech, it cannot be issued ex parte, unless a showing is made that it is impossible to serve or to notify the opposing parties and to give them an opportunity to participate. The participation of both sides is necessary to narrowly tailor the essential needs of the public order to those permitted by constitutional mandate.
  27. 27Relief from Prior Restraint on SpeechSkokie: If a court issues an injunction against defendants claiming free speech rights, “strict procedural safeguards” require that absent immediate and expedited review by merits panel, the state must allow a stay.
  28. 28Collateral Bar RuleThis collateral bar rule bars someone who violates a court order from arguing that the order was unconstitutional. The collateral bar doctrine is only relevant in criminal contempt proceedings. This is a federal and majority jurisdiction rule, N/A to California.
  29. 29Exception to Collateral Bar RuleMay challenge constitutionality at the contempt proceeding when dealing with (1) Pure speech; and (2) Timely emergency relief was unavailable. If the party chose to violate the order and the order turns out not to be transparently invalid, the party must suffer the consequences of a contempt citation.
  30. 30Contempt AuthorityA federal court has the power to punish by fine or imprisonment (1) misbehavior by any person in its presence; (2) misbehavior by officers in their transactions; and (3) disobedience of writ, process, order, rule, decree, or command.
  31. 31Civil ContemptUsed to coerce; operates prospectively; Per Diem fines and conditional imprisonment okay until ∆ complies/term of grand jury; inability to perform or a resolute unwillingness to perform may lead to criminal contempt.
  32. 32Criminal ContemptUsed to punish; operates retroactively; serious offenses (more than 6 months jail time) or serious fines (more than $5,000 for an individual and $10,000 for an organization/corporation) trigger the right to a jury trial.
  33. 33Violation of Court RulesSummary proceeding: (1) Judge saw or heard (2) conduct constituting contempt (3) in the actual presence of the court.
  34. 34Violation of a Court Order/Consent DecreeNonsummary proceeding: requires notice and a hearing.
  35. 35Special Prosecutor (Criminal Contempt)Courts may appoint a private attorney to prosecute contempt. Principle of restraint says this should be a last resort (i.e., after U.S. attorney denies appointment). The special prosecutor must be disinterested; only ethical duty to public interest in vindication of the court’s authority.
  36. 36Compensatory Civil Contempt Sanctions(1) Clear and unambiguous injunction that a layperson can understand; (2) Noncompliance—lack of reasonable diligence to comply by clear and convincing evidence; (3) Willful intent not required, but in minority jx required for attorney’s fees. Compensatory sanctions operate retroactively. Actual harm or unjust enrichment caused by misconduct is payable to the people who suffered.
  37. 37Coercive Civil Contempt SanctionsIncarceration for civil contempt may continue indefinitely because the contemnor has the ability to secure his release by (1) complying with the court order; or (2) adducing evidence as to his inability to comply.
  38. 38Coercive Civil Contempt Fines(1) Court issues equitable decree; (2) Court finds Δ violated decree & issues conditional order threatening to impose penalty unless Δ purges contempt; (3) Court exacts threat if purging doesn’t occur by imposing a “non-compliance” fine in a fixed amount. Since Bagwell, the ability to purge is the dominant approach to defining the distinction btwn civil and criminal contempt.
  39. 39Criminal Contempt FinesUnconditional, fixed amount, imposed retrospectively for conduct. Serious criminal contempt fines, even if announced in advance, require a jury trial.
  40. 40Creative Coercive Civil Contempt Sanctions(1) Courts may ratchet up coercion, i.e., shape an appropriate contempt sanction based on noncompliance; (2) Civil contempt sanctions can include more than fines and jail time, e.g., order presence at government institution; (3) When a court issues a structural injunction, it is common for it to appoint a monitor/temporary receiver.
  41. 41Consent DecreeCourts are unsympathetic to less-than-substantial compliance where the contemnor participated in drafting the order because they presumably understood and agreed to reasonable terms.
  42. 42Unclean HandsThe unclean hands defense closes the doors of an equity court to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, regardless of the defendant’s behavior. California (minority jx) extends this doctrine to actions at law, barring both equitable and legal remedies.
  43. 43LachesLaches is an equitable time limitation on a party’s right to bring suit. It is designed to promote diligence and prevent stale claims: (a) Accrual date—plaintiff knew or should have known about potential cause of action; (b) Length of delay—if the delay is longer than the (analogous) statute of limitations, it is presumptively unreasonable under Jarrow v. Nutrition Now; (c) The party asserting laches must show it suffered prejudice as a result of the plaintiff’s unreasonable delay in filing suit.
  44. 44Laches: Prejudice, Environmental Approach, and the Public Interest ExceptionTypes of prejudice: (i) Injurious reliance (change in position from lack of suit); (ii) Loss of evidence or witnesses. Environmental approach: (i) Reliance compared to future reliance; (ii) Degree to which construction is complete. Public interest exception: (i) Do not apply if contrary to public interest; (ii) Do not apply if ∆ has unclean hands.
  45. 45Nominal DamagesNo actual harm; does not preclude attorney’s fees or punitive damages.
  46. 46Compensatory DamagesAttempt to compensate for injury; does not preclude attorney’s fees or punitive damages.
  47. 47Punitive DamagesPunishes certain types of conduct; not nominal or compensatory in nature.
  48. 48Prejudgment InterestPrejudgment interest is available as long as the damages are capable of being calculated with some mathematical accuracy. It may not be awarded, however, for noneconomic tort damages based on the broad discretion of the trier of fact.
  49. 49Federal Prejudgment InterestPrejudgment interest is a substantive rule, which means the state’s pre-judgment interest rule applies in diversity jurisdiction cases. Its use is discretionary in federal question jurisdiction cases. Possible approaches to the latter include: (1) State rate (majority); (2) Same rate as post-judgment rate (majority); (3) No interest; (4) Any other interest.
  50. 50California Prejudgment InterestThe California Constitution says that in all non-contract cases, including torts, the rate is set at 7% simple interest. Contracts cases impose any legal rate of interest stipulated by contract, or if none, a 10% simple interest.
  51. 51Federal Postjudgment InterestPostjudgment interest is mandatory for a money judgment in civil district court cases. The interest is calculated from the date of the entry of the judgment, computed daily until payment, and compounded annually (i.e., calculated on the initial principal and also on the accumulated interest.)
  52. 52California Postjudgment InterestPostjudgment interest is mandatory for a money judgment in civil state court cases. Interest accrues at the rate of 10% per annum on the principal amount of a money judgment remaining unsatisfied. For installments, interest accrues on the date each installment is due. This is a simple interest, paid only on the original principal, not on the interest accrued.
  53. 53Compensatory Damages in Contract CasesGeneral: market value of the performance promised; Special: additional losses incurred as a result of the breach.
  54. 54Compensatory Damages in Tort CasesGeneral: noneconomic—pain and suffering, emotional distress; Special: economic—medical bills; lost wages.
  55. 55Eisele ruleMinority: Reversal per se by awarding special damages in a tort cases without general damages; Majority: Flexible approach allows juries to deny general damages if unsupported by evidence.
  56. 56Emotional Distress in Contract ActionsEmotional distress damages are not available in breach of contract actions unless emotional tranquility was the purpose of the contract.
  57. 57Economic Loss RuleA preexisting contractual relationship, without more, will not support a recovery for mental suffering where the defendant’s conduct results only in economic injury (e.g., medical bills, lost wages, etc.) to the plaintiff. Note that a breach of contract accompanied by an intentional tort, such as fraud, would allow a court to award tort damages.
  58. 58Tort Principles of MeasurementPlaintiff must prove (1) fact of damage to a reasonable certainty; and (2) a reasonable basis to estimate the measure of damages.
  59. 59Collateral Source Rule (CSR)The collateral source rule is a substantive rule of damages and a rule of evidence. As a rule of damages, it forces the defendant to pay for the entire loss to the plaintiff, even if the plaintiff has received compensation for some or all of the loss from an independent, collateral source. As a rule of evidence, it precludes the introduction of evidence that could be prejudicial to the plaintiff regarding compensation for the loss that the plaintiff has received from a collateral source.
  60. 60CSR Policy RationalesThe rule does not promote double recovery. Underlying policy rationales are (1) encouraging the purchase of insurance; (2) protection from subrogation clauses; (3) compensating legal fees; and (4) deterring potential tortfeasors. Likewise, juries tend to use economic damages as a metric for noneconomic damages.
  61. 61CSR ExceptionsCSR Exceptions: (1) Free government services (minority rule exception that is N/A to California), e.g., special education classes at public school, Medicaid, welfare, etc. but not things like Medicare or social security; (2) By statute, as a part of tort reform, the collateral source rule does not apply in medical malpractice cases in California.
  62. 62CSR in Contract CasesMajority jx: The fact CSR has a deterrent purpose does not make it punitive in contract cases; Minority jx: CSR prohibited as punitive.
  63. 63Defenses to Compensatory Damages(1) Offset the benefits rule (i.e., offset benefits flowing from the tort or breach); (2) Duty to mitigate tort damages (i.e., doctrine of avoidable consequences); (3) Duty to mitigate contract damages (i.e., good faith effort to find substitute buyer/seller).
  64. 64Negligent SterilizationMajority: Mom recovers cost of pregnancy/delivery, but not raising; California: Mom recovers all costs incurred, including the cost of raising, without any offset for the benefits; Minority: Mom recovers nothing (damages speculative, disparity btwn injury & conduct, children not damage).
  65. 65Doctrine of Avoidable ConsequencesA person injured by another’s wrong is obliged to exercise ordinary care to seek medical/surgical treatment to cure & minimize damages. Failure/refusal to do so bars recovery for the consequences, unless medical care poses risk of death, extraordinary suffering, or no reasonable prospect of success.
  66. 66Punitive Damages in Tort CasesPunitive damages are available in tort cases when (1) D acted at least recklessly and compensatory damages are awarded; or (2) Majority: D acted intentionally and at least nominal damages awarded; Minority: Compensatory damages still required.
  67. 67Grossly Excessive Punitive DamagesGore factors determine whether a punitive damages award violates the due process clause: (1) Reprehensibility of misconduct (to plaintiff only—damage physical or economic?; conduct intentional or reckless?; repeated?); (2) Ratio between compensatory and punitive (anything greater than 9:1 ratio is presumptively unconstitutional. Best if ≤3:1.); (3) Similar civil/criminal penalties (to plaintiff only—may not refer to evidence of dissimilar or out-of-state conduct).
  68. 68Exception to Grossly Excessive Punitive DamagesIn TXO, the Supreme Court held it may be constitutionally permissible to award substantial punitive damages when only a small amount of actual damages has been awarded, e.g., a man firing a gun into a crowd is punished to deter bad acts. >9:1 ratio may be okay when conduct is outrageous (in terms of potential harm) but injury is small.
  69. 69State Variations on Punitive Damages(A) No punitive damages; (B) No punitive damages unless provided by statute; (C) Dollar value caps; (D) Ratio caps; (E) California (majority rule) has no bright-line cap at all. Federal constitution limits only (14th & 5th amendment DP).
  70. 70Liquidated DamagesLiquidated damages enforceable when (1) actual damages uncertain at time of contract; (2) reasonable forecast of actual damages; not so disproportionate as to be punitive. Lump sum amounts usually struck down as punitive; flexible amounts (e.g., based on severity) usually upheld.
  71. 71Compensatory Damages for Physical InjuryCompensatory, lump-sum award for all general/special damages for personal injury, including damages expected to accrue in the future. Prejudgment interest is awarded for past economic loss, but there is no adjustment for future economic loss because interest offsets inflation.
  72. 72Productivity Factor IncreaseCalculated within lost wages, above inflation, including age, experience, skill, education, and industry.
  73. 73General Damages for Physical Injury(1) Pain and suffering, i.e., subjective physical discomfort and emotional response; (2) Loss of enjoyment of life, i.e., objective loss of ability to participate in and derive pleasure from the normal activities of daily life, including recreational activities.
  74. 74Per Diem Calculation of Pain and SufferingMajority/CA rule: Permits per diem calculation of pain and suffering (note: CA medical malpractice cap 250k); Substantial Minority rule: Does not permit because it is unduly prejudicial illusion of certainty of constant pain.
  75. 75Lost Earning Capacity FormulaLost earning capacity = earning capacity (adjusted overtime) x number of years until retirement x (1 - tax rate). Note: Only federal reduces the wages/salary for taxes. States do not reduce the award for taxes.
  76. 76Earning CapacityLost wages not limited to job, if any, plaintiff had pre-injury; not limited to actual salary/wage. Not capped at current salary/job; includes changes in benefits, opportunities for raises, chances of getting fired. E.g., homemaker gets damages for domestic duties; students/children get damages for future lost employment. Note: The duty to mitigate requires tort victims find alternative employment whenever possible.
  77. 77Years until RetirementStatistical average; plaintiff-specific facts include pre-existing injury, kids, other plans.
  78. 78Compensatory Damages for Emotional DistressTraditional rule: Emotional distress damages recoverable only when caused by a physical injury. Incrementally extended to physical contact, imminent threat of injury, witnessing physical injury to a close family member, intentional infliction of emotional distress, and finally negligent infliction of emotional distress.
  79. 79Negligent Infliction of Emotional DistressThis exception to the traditional rule is applied in circumstances involving contractual relationships for services that carry with them deeply emotional responses in the event of breach. Physical symptoms always required for reocvery.
  80. 80Loss of Spousal/RDP ConsortiumEach spouse has a separate and actionable right for loss of the material support and services of the other, including loss of companionship, sexual relations, and ability to bear children.
  81. 81Loss of Parental/Child ConsortiumThe minority jurisdiction, N/A to California, recognizes the loss of parental consortium, i.e., the right of a minor or disabled child to the intangible benefits of the companionship, comfort, guidance, affection, and aid of the parent (or grandparent). An even smaller minority recognizes loss of child's consortium for the parent of an injured child under theory that children are going to care for their elderly parents.
  82. 82Tort Claims at Common Law(1) Tort claims dies with tortfeasor; (2) Tort claim dies with victim; (3) Family’s tort claims die with victim.
  83. 83Survivorship StatuteTort claim survives the death of the tortfeasor and victim. The plaintiff becomes the victim’s estate. Majority: general/special recovery; Minority/CA: limited to special damages.
  84. 84Wrongful Death StatuteSeparate cause of action for family members. Not entitled to damages recovered by the estate (i.e., no double recovery).
  85. 85RestitutionPrima facie case for unjust enrichment: (a) defendant received a benefit; (b) at plaintiff’s expense; (c) under circumstances that would make it unjust for defendant to retain the benefit without paying legal/equitable restitution.
  86. 86Legal RestitutionQuasi-contract “at law” creates an obligation to pay money for the benefit.
  87. 87Equitable RestitutionConstructive trust returns the particular property or specific pot of money.
  88. 88Quantum Meruit RecoveryThe legal test for recovery in quantum meruit is not the value of the benefit, but the value of the services that benefited the defendant.
  89. 89Quantum Meruit FMV Exception for Tortious Acquisition(1) Tortious acquisition of the benefit: required to pay for what other lost, even if more than he benefited; (2) Conscious tortious acquisition of the benefit: also deprived of any profit derived from using the property; (3) No more at fault than claimant: he is not required to pay in excess of fair market value of the benefit.
  90. 90Constructive TrustA constructive trust is one that arises by operation of law against one who, by fraud, breach of fiduciary duty, or bad faith, has obtained or holds the legal right to property which he ought not in equity and good conscience hold and enjoy. The wrongful recipient is declared a constructive trustee for the benefit of the claimant’s property and its traceable product.
  91. 91Test for Imposing a Constructive TrustTo warrant imposition of constructive trust over debtor’s property, a claimant must (1) prove unjust acquisition by clear and convincing evidence; and (2) be able to trace the dollars into property or a pro rata share of commingled proceeds.
  92. 92Insurance Proceeds Tracing ExceptionRestatement (Third) of Restitution: Claimants of insurance proceeds are limited to the amount of their loss if the claim is from assets that would otherwise go to innocent dependents of a deceased recipient who paid the insurance premiums with wrongfully obtained money.
  93. 93Lowest Intermediate Balance RuleThe constructive trust beneficiary may retrieve the lowest balance recorded after the funds were commingled. Courts refuse to employ the lowest intermediate balance fiction where the commingled account is comprised largely of funds acquired from other fraud victims.
  94. 94Equitable LienIf a recipient is unjustly enriched by a transaction in which the claimant’s assets or services are applied to enhance the value of particular property owned by the recipient, the claimant may be granted an equitable lien on the property.
  95. 95Defenses to Equitable Restitution(1) The beneficial services were conferred gratuitously (i.e., as a gift or as a volunteer); (2) Bona fide (third party) purchaser for value
  96. 96Declaratory JudgmentRemedy: To determine status, rights, obligations, scope, and/or meaning of a law, contract, will, deed, or patent; Effect: The judgment is conclusively binding on the parties through res judicata/issue preclusion; Judicial Review: SCOTUS may exercise appellate jx over a high state court’s declaratory judgment; Defenses: (1) Statute of limitations (on concurrent legal remedy); (2) Doctrine of laches.
  97. 97Declaratory Judgment ActThe facts alleged must show a “real and substantial” controversy between the parties having adverse “definite and concrete” legal interests of sufficient immediacy to warrant a declaratory judgment. E.g., the plaintiff must “reasonably fear an imminent suit” from the prosecutor or declaratory defendant.
  98. 98Disfavored Declaratory JudgmentsDiscretion is typically not exercised when: (1) the action to interpret state law, filed in federal court, is duplicative of an action already in state court between the same parties; (2) the party seeks a declaration that an action taken by another party, that already happened, was negligent or a breach of contract; (3) the actions a declaration that a government actor, with qualified immunity, violated a constitutional right; (4) no threat of arrest/jail time, prosecution, or enforcement by private party.
  99. 99ConversionConversion requires an intent to exercise dominion or control over goods which is inconsistent with the true owner’s right. The intent required is not a matter of conscious wrongdoing, but willfulness entitles plaintiff to punitive damages.
  100. 100Compensatory Damages for ConversionThe general measure of damages for conversion is the market value of the personal property at the time of conversion. If the plaintiff is a merchant, the wholesale price may be the fair market value, but if the plaintiff is a consumer, the retail price may be the fair market value. Plaintiff is also entitled to prejudgment interest for compensatory damages.
  101. 101Fair Market Value at Time of ConversionIn a suit for conversion, plaintiff bears the burden of proof as to the amount of damages. The value of the personal property at the time and place of conversion must be shown to prove the extent of damages. The evidence must be sufficient for the jury to “reasonably and competently” assess damages.
  102. 102Measure of Damages for Conversion of Property with Fluctuating ValueWhen converted goods have a fluctuating value, such as stocks, courts have supplemented the general rule to provide a more equitable remedy to the injured party. In a falling market, it would be inequitable to provide the injured party with less than the value of the stock at the time of the conversion. In a rising market, it is most equitable to both the perpetrator and the injured party to determine damages within a reasonable time after the injured party should have known of the conversion. Plaintiff may choose either measure of damages for property with value that fluctuates.
  103. 103Measure of Damages for Conversion of Property with no Secondary MarketThe "used household items” exception permits recovery of the actual value (i.e., replacement value/the cost of a new item), excluding sentimental value.
  104. 104Measure of Damages for Conversion of Property with Objective Sentimental ValueSentimental value is recognized where items are generally capable of generating sentimental feelings, not just emotions peculiar to the owner. The California/majority rule recognizes sentimental value damages generated by heirlooms, family papers, photographs, and trophies. Indy car championship rings fall under the rubric of trophies. Courts award damages based upon the consideration of the “blood, sweat, and tears” expended to win these objects.
  105. 105Measure of Damages for Damaged Property needing RepairsWhen one is entitled to a judgment for harm to chattels not amounting to destruction in value, the damages include compensation for (a) the difference between the value of the chattel before the harm and the value after the harm or the reasonable cost of repair or restoration, and (b) loss of use, e.g., cost of renting a substitute and/or loss of profit from no use until repairs or a new purchase is made. Note: If the cost of repairs are greater than the diminished market value, plaintiff may only recover the latter.
  106. 106Legal ReplevinComplaint → ex parte hearing before judge → explains ownership of disputed goods → posts bond → sheriff enters property & seizes goods → adversary hearing → counterbond posted to recover property pending trial. Constrained by statues and due process.
  107. 107Due Process Constraints on Legal ReplevinMitchell defines the procedural safeguards necessary to satisfy minimal constitutional due process requirements: (1) The complaint must contain nonconclusory allegations of ownership/possessory rights (bare assertion not enough); (2) The request for replevin must be presented to a judge who decides whether to authorize the seizure; (3) Plaintiff must post a bond to protect the defendant against damages caused by an improper seizure; (4) Defendant must be entitled to an immediate adversary hearing in which the plaintiff bears the burden of proof; (5) Defendant must have the opportunity to counterbond in order to retain possession of the proper pending trial. Note: Modern Dust Bag denied counterbond when necessity for articles was personal, immediate, & continuing.
  108. 108Compensatory Damages for ReplevinIf granted replevin of personal property, plaintiff is allowed to recover general compensatory damages for depreciation in FMV and special compensatory damages including loss of use and attorney’s fees. No emotional distress. No punitive.
  109. 109Equitable ReplevinThe equitable replevin remedy compels the defendant to deliver a chattel when it has been demonstrated that the plaintiff has a special need for it. It operates in personam and is enforceable through the court’s contempt power.
  110. 110Measure of Damages for Trespass to LandIf permanent, the measure of damages is the market value of the realty before the injury less its market value after the injury. When the injury is nonpermanent, the measure of damages is the cost of restoring the property to its original condition, up to its full market value before injury, OR the diminution in market value, whichever is more. Minority rules: Must be homestead/must choose lesser recovery.
  111. 111Special Damages for Trespass to LandIn addition to general compensatory damages, other types of damages are available in trespass actions: (1) Cost of rent until repairs are complete; (2) Lost profits if for a business; and/or (3) Emotional distress and punitive damages if willful.
  112. 112EjectmentEjectment is a legal remedy for trespass that affords a plaintiff specific relief after there has been a trial on the merits.
  113. 113EncroachmentEjectment is the proper remedy for removal of an encroachment on the land of another where (1) a party is legally entitled to possession of the land in question; and (2) possession of the realty has been wrongfully detained.
  114. 114Possession by InjunctionThe sheriff will usually return an execution unsatisfied and refuse to deliver possession by taking down the encroaching structure because it would subject him to an unreasonable risk to do so. Therefore, there is no adequate remedy at law. In equity, the obligation to remove can be placed directly on the party through a mandatory injunction. This is an exception to the general rule that equity will not grant possession by injunction. Defenses: (1) Doctrine of laches; (2) Hardship tips in defendant's favor, i.e., encroachment is unintentional and truly minimal. If the injunction is denied, the court will order a forced sale of the land or a lien on encroaching structure.
  115. 115NuisanceAs a matter of substantive law, a nuisance is defined as an unreasonable interference with the use and enjoyment of land as distinct from an interference with possession, which has traditionally been allocated to the trespass action.
  116. 116Defenses to NuisanceAffirmative defenses: (1) coming to the nuisance; (2) statute of limitations; (3) doctrine of laches; (4) right to farm statutes, i.e., statutory immunity from being held liable for public nuisance if running a reasonable agricultural business.
  117. 117Statute of Limitations for NuisanceTemporary sporadic nuisance: Multiple claims are permissible; Permanent: One claim only and the statute of limitations begins running when nuisance starts
  118. 118Nuisance Injunctions(1) Unconditional, balancing of hardships tips in favor of plaintiff if the nuisance is at all “substantial”;(2) Experimental decree, e.g., Boomer dissent wanted to give cement plant 18 months to find solution; (3) Conditional, dissolvable, e.g., Boomer majority gave option to avoid injunction by paying permanent damages; (4) Conditional, purchasable, e.g., Spur gets injunction based on proof of nuisance liability & paying cost of compliance.
  119. 119Damages for NuisancePermanent nuisance: Diminished market value or diminution in rental value; Repairable nuisance: [Majority] Cost of repair or diminished market value, whichever is less [Minority/CA] Cost of repair, as long as repair conceivably at reasonable cost by reasonable means. Note: Most courts routinely allow the plaintiff to recover both depreciated value and physical discomfort or illness.

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