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University of Kansas School of Law
Hines, Laura J.

Spring 2011
1.       Equity and Equitable remedies
a.        Historical perspective/development of equity in US- law courts in equity whih c was chancery courts and NOW law and equity courts merged.  Equity courts had maxims. merger of law and eq. one form of action – civil – FRCP rule 2.
b.       Equitable remedies today –
                                                               i.      Conscience and equity- eq. rems available when conscience demand them. 
1.       PROB – building lot controversy – do equit maxims dictate a result? Make one party tear down? Make another be forced to accept damages?  – 1) are damages in adequate – do we want equity? MUST SHOW THAT MONEY WILL NOT SUFICE TO ACHIEVE JUSTICE.  Money would be a forced sale and is not fair.  ASK the maxims?  HAD HER PROP deliberately gone into his, an injunction is clear that his behavior with intent gets a court order.  LAND IS UNIQUE/IRREPLACEABLE– so this is irrep, she cant buy the same thing with money damages.
1. Must come into equity with clean hands
2.he who seeks equity myst do equity
3. It’s a court of conscience
4. It does not suffer a wrong to go without a remedy
5. If abhors a forfeiture
6. It regards as done whtat which outth to have been done
7. It delights to do justice and not by halves
8. Its not available to one who has an adequate rem at law –  is there???
9. Its discretionary
10. It aids the viligant not those who slumber on their rights – did she?
11. It regards substance rather than for m
12. It acts in personam
13. It is equality
14. It follows the law
15. It will not aid a volunteer
16. It imputed an intent to fulfill obligations
17. Where equities are equal, the first in time will prevail.
a.        SO for the bldg lot – how would court frame injunction order against deets? Get off by such a date, restore prop to prev state, LEGAL would be – pay this by this time.
b.       COULD ENJOIN LITIGATION – P in KY seeks injuncto stop D from prosecuting a n action in TN, where suit is going. enter order in personam against D.
                                                              ii.      Equitable remedies are granted in personam –this is when court orders D to do or refrain from something.  CAN BE IN CONTEMPT if you don’t do the equitable rem (crim sanction, can go to jail til you comply).
                                                            iii.      Inadequacy of legal remedy/irreparable harm – NO EQUIT relief when Ps legal rem is inadequate – ie LAND IS UNIQUE/ HARM IS IRREP AND CANT GO BUY THE SAME LAND WITH MONEY . INADEEQUACY AND IRREPARABILITY – req. in equitable relief; INAD. And legal rems needed WHEN:
1.       prop is UNIQUE (like land in PARDEE,
a.        radio station – p Ks to buy station and it’s the MARKET LEADER, CANT PUT A DOLLAR VALUE ON THIS TO MAKE HIM WHOLE FOR NOT GETTING THE STATION, get  injunction: its unique;
b.       JEWELRY- restraining order stopping selling them, or money dmgs; what if bought for investment; ASK did they view this as unique/ irreplaceable or a fungible asset?
c.        sculptor to make a one of kind sculpture, NOT made yet, and then ks to make new sculptures elsewhere – HARD to sepc enforce ,
2.       or dmgs diff. or impossible to calculate (Merril Lynch – don’t know what clients will be doing, what dmgs, are going to be; how do you measure a referral);
3.       or when d is insolvent.
a.        money would be inadequate for Rahm who wants to be mayor. Money wouldn’t remedy him of his IRREPERABLE HARM.
b.       PARDEE – MONEY INAQEQUATE for someone cutting your lumber. LAND IS UNIQUE. harm = IREPERRABLE bc their victim couldn’t be compensated monetarily for it
                                                                                                                                       i.      Smoke in the workplace – can you put a dollar onhis damages?
                                                                                                                                      ii.      IF you were a timber comp and already planning on cutting trees, this wouldn’t be unique to them. ASK how Ps view it
c.        FORTNER – cant get the car he contracted to buy. theres not irrep harm that may be caused.  MIGHT BE HARD FOR HIM TO GET CAR BUT IT CAN be done! sale of personal prop =nothing unique here. No Specific perf for personal prop. Unless there is something unique in article sold, or something that would prevent money damages from giving full relief, specific perf. will not be granted.  P  had other AQEDUATE LEAGL REMS. AND THIS IS NOT IRREP HARM, THERE IS ANOTHER OF THIS CAR HE CAN GET. NOT UNIQUE.
d.       Merril Lynch – for injunctions, P must show a) that it will suffer IRREP harm w/o it and b) either i) the likelihood of success on the merits or ii) sufficiently serious questions going to merits to make them a fair ground for litigation and balance of hardships tipping in its favor. No injucnt, damages sufficient, bc not irrep. harm that may be caused. P ALREADY CONTACTED clients in the noncompete, even though K’s they woldnt.  Also, financial loss will not be immeasurable, unaccountable
                                                            iv.      Equitable relief is discretionary – even if you satisfy the reasons for ER, you may still be denied it.
1.       Gerog v. Animal Defense League – dog kennel. Zoning for animal shelter. board wanted to abandon this location and bought a new 25 acre tract north.  Were sued for injunction to restrain the league from constructing bc they will bark, etc., unnec annoyance.  Another area couldn’t be selected in areas from the city.  ER IS DISCRETIONARY- can deny it even if the legal rem is inadequate, like here should get dmgs, NO ER for annoyance from a dog shelter.  if this will function AT ALL it will annoy someone
a.        bldg lot – even if encroaching shes getting irrep injury, and its NOT compensable in money, are there reasons to be denied?
2.       Grossman v. Wegmans Food markets – Ps appeal from judgment that dismissed action to compel D to continue to occupy lease as grocery store.  It said vacating but would continue to pay rent until premises are re-rented.  P Thinks that with this out of biz the other biz around will close.  courst of eq are reluctant to grant spec perf where such perf in situations where such perf would req judicial supervision over a long period of time.  Not spec enforceable lease, ks which req the perf of varied and continuous acts will not be enforced by courts of eq bc execution would req such superintendence as to make judicial control a matter of extreme difficulty. (ie would another T make profits to cover the lease, bc P was not…. hard to monitor; CANT see dmg to other Ts here from them leaving w/o taking a long time….)ER are discretionary – need to think about wisdom and desirability of granting relief.
a.        PROBS – shopping center lease: shopping center applied to have prop rezoned to be a shopping center.  Want a letter from developer, who wants a new lease for it.  Then its approved and D refuses the lease.  There IS a bidding agreement. order

tion, promise to convey to P is fully performed.  when eq relief is sought, not the enforce an obligation arising from illegal transcation (as obligation has been fulfilled) but to protect a status of legal ownership, wrongs to creditors prior to the acquisition of title in issue may NOT be raised by D. in PP, land records need to show ownership/accurate. This is false in ownership; misleading many ppl.  CLEAN HANDS only applies when P has acted unjustly in the VERY transaction he complains of. Seagrit and protection of defrauded creditors. Dissent: fraud even though long time ago and Ps diff party than in orig illegal transaction.
a.        MAYBE best would be you can have titiel but were gonna tell creditors and tye can go into the assets they deserve.
b.       Bros and jointly held prop – one sued other for land partition (spilt up) and accouting, claimed unclean bc other embezzled money from acct htat received income from prop and which prop expenses were paid.  Ps bros conduct related to  matter of the litigation?  NO-. embezzling money is sep from just spending that money, who owns and how to partition it.
c.        Diocese– remove trustees from foundation funds Bc of self dealing. BUT diocese not given scholarship as supposed to.  How for Trustees and dicese – condition removal of ER removal of diocese BUT make church begin using it as they MUST; make public to shame them into spending as should. Interest of innocent third party…
4.       American U v. Wood – unclean hands NOT bar every wrongdoing, req wrongdoing be of the COMPLAINT to bar him from relief; must be connected to litigation AND have relation to rights of parties ARISING OUT OF THE TRANSCATION.  EQ is court of conscious and will enforce reqs of conscience. Cant aid litigant in wrongdoing to public. P was wrong, even though d was wrong, P was fraud in conducting biz: misrep and ads affect public. Cant protect suitor from harming public.  P suing for Ds fraud about their biz, but P itself was being fraud. too to its students about their biz. MAYBE they could issue injuction IF P stops being fraudulent TOO? Make their program look bad, prob would drop suit… IN UNCLEAN – crt can condition the remedy.
5.       ASK – how bad was it? How realted is it to the unclean? What is the balancing in the fairness, burndens or relief, etc?
                                                              ii.      Unconscionability – ER shouldnt be employed by a crt where its unconscionable
1.       Campbells v wentz – spec enforce k? no, a party who succeeds in getting an agreement this tough, should not ask court for its enforcement. eq does not enforce unconscionable bargains  even though ks legal. imposs to obtain these carrots on open mrkt. K too one sided. provisions that campbell is excused from accepting carrots under certain circss, but the grower still cant sell them elsewhere, etc.