Ambrosio Remedies Summer 2011
REMEDIES
– Principally concerned with the nature and measurement of relief to which a party may be entitled
– Must establish a substantive right in order to get a remedy.
TYPES (Four Basic Types)
1) Coercive Remedies
– A) Where a court determines that the P is entitled to extraordinary relief of an order commanding the D to do or refrain from doing specific acts
· Injunctions
· Specific Performance
– B) Subject to equitable defenses…
· Unclean hands
· Laches
· Estoppel
· Unconscionability
– C) Upon a compelling showing, a P may receive injunctive relief even before full trial on the merits, principle of these types of interlocutory relief is to preserve the status quo to prevent irreparable harm:
· Preliminary injunction
§ Gives the P temporary relief pending trial
· Temporary restraining order
§ Affords immediate relief pending the hearing on the preliminary injunction
· à Designed to preserve the (1) status quo and (2) prevent irreparable harm.
– D) Backed by the CONTEMPT power
– E) Equitable orders are deemed subordinate to the law, i.e., legal remedies are preferred to equitable ones UNLESS the remedy at law is inadequate.
– F) Development of modern injunctions
· Preventative
· Restorative
§ Operates to correct the present by undoing the effects of a past wrong
· Prophylactic
§ Seeks to safeguard the P’s rights by directing the D’s behavior so as to minimize the change that wrongs might recur in the future
· Structural
§ Involvement of the courts in the institutional policies and practices of the D entities
2) Damages
– Purpose is to compensate Ps for losses sustained in violation of their rights
– A) Once a P has established both (1) the claim in substantive law and (2) the entitlement to a particular type of damages, the problem of measurement remains
· Contract/Tort law addresses in different ways
– B) Common law limitations are that damages cannot be too:
· Remote
· Speculative
· Uncertain
– C) Limitations on the types of losses a P can claim:
· Restrictions on the recovery of mental distress damages in the absence of physical injury and limitations on recovery of purely economic losses
· Liquidated damages are not always recoverable
· Other Limitations on Damages:
§ Collateral Source Rule
§ Mitigation Doctrine
§ Avoidable Consequences
– D) Punitive (Exemplary) damages
· Only exception to the compensation goal of damage law
§ à Designed to punish and deter wrongdoers in cases involving egregious conduct
3) Restitution
– Goal is to restore property to its rightful owner by returning the P to a position held before a wrong or to disgorge from a D any unjust enrichment occasioned by the wrong to the P
· But no disgorgement when the D is:
§ (1) A bona fide purchaser for value or (2) when P has acted as an officious intermeddler.
– Measurement is the D’s gains rather than the P’s losses
– Equitable liens, rescission, suits in assumpsit for quasi-K
– Substantive restitution v. remedial restitution
· Substantive concerns the entitlement to a restitutionary remedy
· Remedial concerns the measurement of that remedy
4) Declaratory Relief
– Purpose is to obtain a declaration of the rights or legal relations between the parties
– Often used to determine the constitutionality of a statute or to construe a private instrument so that the interested parties may obtain a resolution of the dispute at an early stage
– Nominal damages
· Awarded when a P establishes a substantive claim but cannot establish damages
1) REMEDIES AT LAW AND IN EQUITY
– Equitable result usually means a resolution that doesn’t come from established principles but simply derives from common sense and socially acceptable notions of fair play
· Original source of concepts such as promissory estoppel and unconscionability
· Include flexible coercive orders
§ Injunctions and specific performance orders
§ Some restitutionary remedies are equitable, such as constructive trusts or rescission and restitution in K
– Damages
· Most prevalent legal remedy
· Some restitutionary remedies are also legal, such as quasi-Ks
– Mixed claim of law and equity
· Legal issue must be tried first by the jury and any remaining equitable issues may be tried by the judge in a manner not inconsistent with the jury verdict
– Entitlement to one legal remedy does not necessarily entitle a P to all remedies
– Sources of remedies as well as their classification dictate the types of remedies that are available
· Both compensatory damages and punitive damages are available as legal remedies in circumstances where either common law or statutory legal remedies are appropriate
– If an act provides for equitable relief, a monetary recovery is not precluded
· It is not the mere fact that money is recovered that makes a remedy legal; the key is the function of the remedy
– DISTINCTION that compensating for past harm is a “damages” remedy and protecting against further harm is an “equitable” one
· A key dividing line between law and equity has historically been that the former deals with money damages and the latter with injunctive relief
§ This distinction has been blurred by court decisions indicating that not all money damages claims will be deemed legal
A. Scope of Legal and Equitable Remedies
– P must first establish the substantive entitlement to relief and then establish a legal basis for the desired remedy
B. Limitations
– Three Sources of Remedial Rights
· Statutes
· Federal and state constitutions
· Common law
§ One or all of the sources may establish a basis for one or more remedies in a particular case
· Sources of a P’s desired remedies is important because
§ The P must establish that particular remedy is permissible
§ The source may place some limitations on the remedy
– Noteworthy limitations
· A P cannot get a double recovery of the same damages simply because there are 2 sources of remedies
· The statute may address its relationship to any common law rights
§ If a statute eliminates an existing right at common law, it may not be constitutional under some state law
§ If the statute only limits the remedies available for the common law right and substitutes other remedies, it will probably pass muster under state and federal constitutional law
– Rule of Statutory Construction
· A new right, one not existing at common law, is created by statute and a statutory remedy for the infringement thereof is provided, such remedy is exclusive of all others
Jurisdictional Remedy Limitations
– Statutes may limit the availability of remedies by the language used in the remedial provisions of acts
– Legislators have occasionally sought to control the remedies available to a court by imposing a jurisdictional remedy
· Ex: Norris-LaGuardia Act
COercive remedies
ii. Injunctions
– Injunctive actions, look to prevent future conduct rather than to remedy past conduct
· Injunctions are issued only to prevent imminent irreparable harm
– REQUIRES: Incompleteness and inadequacy of the remedy at LAW
· Balance of the equities must favor the moving party
– Upon a compelling showing, a P may receive injunctive relief even before full trial on the merits, principle of these types of interlocutory relief is to preserve the status quo to prevent irreparable hard
· Preliminary injunction
§ Gives the P temporary relief pending trial
· Temporary restraining order
§ Affords immediate relief pending the hearing on the preliminary injunction
– Backed by the CONTEMPT power
– 4 Types OF INJUNCTIONS:
· 1) Preventative
§ Purpose is to prevent the D from inflicting future injury on the P
§ P must prove that:
· D was likely to do harm absent the order
· Legal remedies would be inadequate
· Such harm would be irreparable
· 2) Restorative
§ Operates to correct the present by undoing the effects of a past wrong
· 3) Prophylactic
§ Seeks to safeguard the P’s rights by directing the D’s behavior so as to minimize the change that wrongs might recur in the future
· 4) Structural
§ Involvement of the courts in the institutional policies and practices of the D entities
– Source of protection: Injunctive relief is appropriate either as implicit in the statute or on common law principles of equity
– Injunctions are discretionary (absent a statute), not a matter of right
· A P is not entitled to an injunction simply upon proof that an interest has been invaded and that the harm is great and irreparable
§ Proof of the wro
ements of the P’s rights
§ Continuing trespass requires a showing that the D will not follow a demand to vacate and is likely to continue the invasion knowing violation of the P’s rights, i.e., repeated violations of rights.
– Trespass by trash
· Remedy at law is considered adequate if the D simply littered the P’s land with trash
§ P can pay for someone to remove the trash then sue the D for the cost incurred
C. Waste of Money
– Injunctive relief is appropriate if the waste is ongoing, even if there are legal remedies available, if the injunction is necessary to halt immediate serious injury to the detriment of the inheritance
D. Nuisance
– Noise, in and of itself, has been held to be sufficiently constitute a nuisance
· Courts frequently enjoin private nuisances if the loss in the use or enjoyment of the property is great
§ If the interference is slight, equity will not intervene
– 1) Injunctive relief is available to abate the nuisance only if there is a sensible injury
· Otherwise, equity will not grant relief even if there is a technical trespass cognizable at law
– 2) Whether a court should enjoin activity which constitutes a public or private nuisance concerns the substantive entitlement to relief
· P must establish that the D’s conduct was a substantial and unreasonable interference with the use and enjoyment of the P’s property or public interests
–
– STD= To obtain an injunction against a private nuisance, a P must establish more than the existence of an intentional nuisance
· Unreasonableness of the activity must be established because it is an undue hardship to stifle a useful enterprise at a reasonable location by injunction
§ If there is sufficient social value to the activity, then it should continue to operate while it pays its way with damages to those privately harmed
· Court evaluates unreasonable interference by weighing the gravity of the harm against the utility of the conduct
§ If this standard is met, the P must further demonstrate:
· That the threatened harm is immediate
· That the injury is irreparable
· That no adequate remedy at law exists
· That equitable considerations balance in its favor
o The extent to which a damage award will redress the injury
o Considerations of the nature and extent of public interest implicated
· Ground for denial of injunction, notwithstanding the finding both that there is a nuisance and that Ps have been damaged substantially, is the large disparity in economic consequences of the nuisance and of the injunction
§ Where a nuisance has been found and where there has been any substantial damage shown by the party complaining an injunction will be granted
– Injunctions against a nuisance are never automatic nor a matter of right
· An injunction case always involves some degree of future prediction
§ Judge must determine both the probability and degree of future threatened harm absent the injunction
§ Legal consequences of a particular prediction is easily applied only at the two extremes
· Equity will not enjoin a completed act but injunctions are granted to halt clearly continuous invasions of an important interest where the remedy at law is inadequate
– Nuisance cases sometimes involve activities that fall within the scope of criminal law
· Problem is then whether a civil court should issue an injunction to prohibit behavior that could be sanctioned by the criminal justice system
§ Modern approach generally holds that equity will not enjoin conduct merely because it offends a criminal statute
