Jenelle Marsh_Remedies_Fall 2013
INTRODUCTION
I. Role of Remedies
a. Defined:
i. what you get if prove COA
ii. What court can do for litigant wronged
iii. 2 most common
1. Damages (money)
2. Injunctions
iv. Remedies give meaning to obligations imposed by substantive law
b. Goal: put injured in rightful position
Torts
Contracts
Prevent a Tort from Occurring
Restore the Status Quo
Compensate the P for the Loss.
Special (“consequential”) damages when foreseeable and proximately caused–Palsgraf. Public policy.
Deter Future Torts
Establish, Declare, and Vindicate the P’s Rights
Punish Wrongdoers
Fulfill P’s Expectancy of Gain (put the P in the position the P would have been in had the contract not been breached). Benefit of the Bargain
Special Damages to Restore P’s Losses (only consequentials when within contemplation of the parties–Hadley)
Reliance Damages (if P never entered K)
Restitution (D's unjust gain focus)
Punish or Deter the D
Declare Parties’ Contractual Rights or Duties
Terminate Parties’ Contractual Duties
II. Classifying Remedies
a. COMPENSATORY
i. What D pays to put P in “rightful position” (make P as well off as would have been if he had never been wronged)
1. e.g. payment of trees, if destroyed
ii. Contracts: where P would be if D had complied w/ contract
iii. Torts: P's position “but for” the wrong
b. PREVENTATIVE
i. Coercive
1. Injunctions: to do/not do something
2. Spec perf: court telling D to fulfill contract
ii. Declaratory
1. Won't really cover in this class, differ state to state, all statutory
2. Simply a statement of who has what right, can lead to coercive remedy (if Ct uses declaratory statement to enforce)
c. RESTITUTIONARY
i. Instead of looking at what P lost, looks at what D gained
ii. Wrongful gain given to P
iii. Restore benefits D unjustly holds
1. Esp if D is conscious wrongdoer, Cts will allow P to recover D's profits from actions
iv. Goal:
1. Restore the Benefits D Unjustly Holds
2. Punishment and Deterrence
d. PUNITIVE
i. Civil wrong so bad Ct wants to punish D
ii. For deliberate wrongdoing, not just negligence
iii. Some statutes authorize damages in excess of actual damages, can be considered punitive
e. ANCILLARY
i. Ct fees, attny costs
ii. Various means of collecting money are ancillary to all remedies that end in money judgments
f. NOMINAL DAMGES
i. When you can prove there is a legal wrong, but no valuable damage/valuing is hard (as in trespass)
ii. In US, P can get nominal damages for trespass and civil rights' violations
iii. This nominal damages declaration can be used for punitive damages if wrongdoer persists
iv. HYPO: George trespasses on Bill’s land but doesn’t cause harm
1. Nominal damages may be used to establish the property line.
2. Nominal damages may be predicate for later damages.
3. Nominal damages may be predicate to award punitive damages.
4. Nominal damages may be predicate to award attorney fees
v. Ala. Pattern Jury Instructions 11.02 (Nominal damages)
1. Nominal damages are a small amount of money awarded, for example $1, when you are reasonably satisfied from the evidence that (name of plaintiff) has been harmed, but [he/she/it] has not proved the amount that you should award.
III. Substitution and Specific Remedies
a. Substitutionary:
i. replace lost thing (most often with money, though occasionally with similar kind of thing)
b. Specific:
i. replace the actual thing (e.g. get vase back that was stolen)
ii. Prevent threatened harm to plaintiff
iii. Repair the harm in kind
iv. Examples: replevin, ejectment, injunction
IV. Legal and Equitable Remedies
a. Historically, courts of law and equity, each with own substantive law, procedural law, and remedies (and separate set of rules for determining where case would go)
i. Basic rule: P could not have equitable remedy if legal remedy would suffice (equity courts got to decide if legal remedy adequate)
b. Today, almost all states have completely merged the two, though some exceptions exist:
i. Right to jury trial usually only guaranteed in cases that would have been legal before the merger
ii. Remedies are still classified as legal or equitable
iii. Legal remedy still preferred, if adequate
1. Equitable remedies require more Ct supervision, so disfavored and more difficult to get
2. Equitable decisions are made by Ct not a jury
3. Specific equitable relief constitutes a greater intrusion on the D’s liberty than a monetary award
c. Legal
i. L/R Overview:
1. Right to jury
2. In rem–executed on property (as opposed to on the person)
3. Review – could a reasonable man have found the facts
4. Compensatory damages
5. Punitive damages
6. Replevin (a specific remedy that is legal)
d. Equitable (make person do something)
i. E/R overview:
1. No right to jury
2. In personam (on the person)
3. Contempt for enforcement of equitable remedies
4. Review – abuse of discretion
5. Types:
a. Specific performance
b. Injunctions
ii. Standards:
1. Conscience and equity
2. Granted in personam
3. Requires an inadequate legal remedy, irreparable injury
Consider hardship on the parties
IV. Discretionary
iii. Equitable relief is discretionary:
1. Standard of review: abuse of discretion
a. Where a lower court has made a discretionary ruling (such as whether to allow a party claiming a hardship to file a brief after the deadline), that decision will be reviewed for abuse of discretion. It will not be reversed unless the decision is unreasonable.
b. Trial court makes an error of law (de novo review of law)
c. Facts incorrectly found (clearly erroneous)
v. Important Differences:
1. Enforcement –
a. Judgment for legal remedy which is levied against property.
b. Contempt for enforcement of equitable remedies.
2. Jury trial – Available for legal remedies but not equitable remedies
iii. Greater willingness for judges to think “creatively” with equitable remedies than legal remedies
vi. Declaratory judgments: neither E or L
g. Restitution: can be either E or L
COMPENSATORY DAMAGES
I. Defined: what D pays to put P in “rightful position” (make as well off as if never wronged)
II. In K,
If repair decrease FMV, might get repair PLUS change in FMV after repair
j. Investment Costs
a. IF can prove planned to hold/ invest, can get compensation for not being able to invest
1. Look at past yearly increases in value
2. Can also look at interest rate
k. Consequentials/special damages:
a. Loss of use: limited to reasonable time to replace thing
b. Cost of searching for replacement (if has to travel out of town, those costs, e.g.)
c. In torts, consequentials must be foreseeable to D (Palsgraf)
d. In K, more cautious about consequentials (Hadley limit)–need more than in torts
l. Sept 11th Litigation
a. WTCP doesn't want to use change in value; wants replacement cost–which is $16 billion
b. NY Lesser of Two Rule for property damage: can get replacement or reduction in FMV, whichever is less
1. Exception: specialty property (no market for it, p. 20 test)
1. Unique; specially built for specific purpose for which designed
2. Must be specific use for which the improvement designed
3. Hard to value/not really a market for property
c. APPLICATION:
1. Here, reduction in FMV is less, so that is given = value of the lease (as indicated by the lease agreement, signed only ~1 month earlier
1. IF had signed long time earlier, might try to show change in market value but here signed lease agreement clear indication of market value (2.59)
2. Not any longer fitting under specialty exception, though may have originally fit description
1. There IS a market for it, can be valued, so not specialty
d. Second Argument: WTCP wanted lost profits from contracts for rent
1. Ct said NO because would be getting double recovery (FMV already includes value of rent)
e. Loss of USE
1. Not given by Ct
2. Good argument that Ct missed this (rebuilding would take ~10 years and no other buildings for them to find right away, could argue had to rebuild)
1. Might not be able to get 10 years (time to rebuild or to rent another building) but seems like should have gotten something for this loss
2. Would have to consider reasonableness of finding another building to rent/replacing
f. Foreseeability (or proximate cause) issue: TP (third party) Contracts
1. Ct did not give cost of this because third party contracts were not foreseeably harmed by injury
m. Loss of Use Damages (Type of Special/Consequential Damages)
a. During reasonable period for repair (or reasonable time to replace)
1. Only difference in repair/replace damages is time frames may vary (both must be reasonable)
b. Proof – reasonable certainty (because loss of use are special/consequential damages)
c. Mitigation of damages where P could have taken steps to lessen damage (avoidable consequences), get reasonable expenses of mitigating–e.g. traveling to find replacement
