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University of Mississippi School of Law
Hoffheimer, Michael

Hoffheimer Remedies Fall 2010

I. Remedies

a. Bedrock Foundations

i. Parties are entitled to basic whole value recovery

ii. Parties elect their remedy

1. HWVR, options are limited by law

iii. It is not standard for winner to recover att’y fees or time invested in litigating case

1. System tries to deal with this in other ways BUT undercuts whole value recovery

b. Historical Classifications of Remedies: Common Law v. Equity

i. To get into Common Law party needed: damages + jury trial

1. (1) wri de curso

a. “form of action” + payment to chancellor

i. Replevin, trespass, debt, detinue,

2. (2) Extraordinary Writs at Common Law

a. First

i. Petitioned the Common Law Court itself, not through Chancellor

ii. Used to regulate institutions inferior to Common Law courts and subject to supervisory review powers of C/L courts

b. The Four Extraordinary Writs

i. (1) habeas corpus

1. order directed at some one in custody of some one else’s body to come to court to explain the custody, and legality of custody

a. child custody, police custody

ii. (2) mandamus

1. order from common law to some one within court’s supervisory authority to do something (mandate) which they have a ministerial duty to do (legal duty)

2. goes to judge without a jury

a. i.e. – clerk not accepting papers

b. this can be used creatively

iii. (3) prohibition

1. flipside of mandamus: order from common law court to some one within the court’s supervisory wuthority to stop doing something which is within their ministerial duty not to do.

2. Goes to judge without jury

iv. (4) certiorari

c. Bottom line:

i. These are exceptions to the rule that in CL courts claimant has a right to jury trial

ii. Equity

1. Often considered a place to go when no adequate remedy at C/L

a. Injunctions, specific performance, etc.

iii. Mixed Suits

1. Claim = specific performance/injunction and in alternative, or additionally, money damages

a. Is claim is primarily injunctive relief/specific performance then Chancery

b. If you later drop the equitable relief portion claim must stay in Chancery court

2. Remember: if prohibition or mandamus then can go either court but no jury trial in either

c. Important Pleading Points

i. General & Special Damages

1. Special damages need to be specifically pleaded in complaint

ii. Tort v BoK

1. There is often the option to bringing action under either (except personal injury or wrongful death)

2. Insurance – always think about availability of insurance

a. Often if claiming a tort then general liability insurance will kick in

b. BoK losses are generally non-insurable

c. BUT in tort there is shorter SOL & difficulties of expert testimony

II. Federal Torts Claim Act (FTCA)

a. United States cannot be sued except to extent they allow themselves to be sued

i. § 1346(b)(1): for injury or loss of property, or personal injury or death caused by negligent or wrongful act or omission of any employee of Gov’t while acting within scope of his/her office, under which the US, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred”

1. claim determined by law of place where act or omission occurred

b. 2 important rules:

i. (1) no punitive damages against US gov’t even if private person would be liable for punitive damages

ii. (2) no jury trial

c. FTCA is a technical statute – look up law

III. Compensatory Damages

a. General rules

i. (1) Compensatory damages are designed to put party in position they would have occupied had they not been wronged

1. Aka, in their rightful position

2. Measured by fair market value, often the replacement cost, plus other losses

a. Loss of use, rental, consequentials

3. An objective value – no personal, idiosyncratic values but possibly peculiar history value

ii. (2) MUST put on evidence to prove damages

iii. (3) One Satisfaction Rule: the value of damages is both what a party is entitled to and a limit on what they may recover

iv. (4) the law is cheap

1. if different ways to calculate value then must go with cheapest calculation

b. Determining Value

i. Objective, fair market value

1. Though individual sentiments will not be valued, particular aspects of property can be valued

a. For example – the pink Cadillac of Elvis

2. Replacement cost is competent evidence to prove FMV

ii. HWVR, may get the “lemon effect”

1. Property for sale used for valuing FMV may not be exact replacement – used

2. Value is not being based on property not being sold, only on that property being sold in market

a. Party can get experts to testify about property not being sold to refute FMV

iii. Special purposes property

1. Not generally an active market or substitute to get FMV so no limit on recovery

a. Trinity Church case

iv. Emotional distress

1. To value look to individualized harm and then compare to other jury awards

c. Time of valuation

i. General rule

1. Damages are computed at time of loss regardless of P’s normal practices

2. Crops: damages are computed at time of harvest, when a market value first exists

ii. Volatile Market Valuation

1. When looking to fluctuating market 3 rules:

a. (1) traditional rule: time of loss

b. (2) Highest value b/w time of loss and time of trial, time of filing suit, or other similar date

c. (3) Federal/NY rule: highest value b/w time learned of loss & rsbl time thereafter in which property could have been replaced

iii. Value of time & labor (plating, construction)

1. General Rule:

a. Must take into account that resale value normally includes cost

b. Remember – to put party in position would have been despite destruction

iv. Work in progress

1. Damages (these numbers must be equal) are either:

a. Costs already expended plus profit OR

b. finished value (FMV) less cost of completion

c. NOTE: if these numbers do not add up then must keep working

d. Sale of Goods: Reliance & Expectation as Measures of the Rightful Positions

i. First thoughts

1. Remember: for breach of K party is entitled to benefit of bargain

a. Difference b/w contract price and FMV replacement

b. Differnece b/w value of goods promised and goods delivered

ii. Seller’s Damages in Breach of K for Sale of Goods

1. § 2-703: Seller’s Remedies in General

a. (d) resell and recover damages as provided in 2-706

b. (e) recover damages for non-acceptance provided in 2-708

2. § 2-706: Resale and Recover

a. the seller may resell goods or undelivered balance thereof

b. where resale made in good-faith and in Commer

e. Fraud

i. Traditionally in tort for fraud, P entitled to recover loss but not expected benefit of bargain

ii. Exceptions

1. § 2-712: Remedies for Fraud

a. remedies for material misrepresentation or fraud include all remedies available under this article for non-fraudulent breach.

2. MS (and other state) RULE

a. Allow P to choose b/w the “out-of-pocket” measure ( or the “benefit of bargain” measure whether sue in fraud or K

b. This is not rule in all states

3. R 2d Torts – § 549

a. Victim of fraud may always recover “reliance” damages

i. (1) difference b/w what party paid and value of what was received (BoB)

ii. (2) incidental reliance expenses

iii. Remember: In these situations there can be a point when the expectations are not rsbl

1. Trolling for fraud

IV. Consequentials

a. Generally

i. Special Damages Rule: special/consequential damages are such damages and extra expense that are the natural and proximate result of the breach

1. Hoff: Probable and reasonable

ii. Vocabulary

1. General damages: value of what P lost from initial impact of D’s wrongdoing

2. Consequential/special damages: everything that happens to P as consequence of this initial loss

iii. Pleading of Special Damages

1. Federal & state rules require pleading of special damages

a. Includes consequentials & medical expenses, NOT pain & suffering

iv. UCC Rules

1. Seller’s incidentals: § 2-710

a. (1) incidental damages to seller may include any commercially rsbl charges, expenses or commission incurred in:

i. stopping delivery

ii. the transportation, care, and custody of goods after the buyer’s breach

iii. connection with return or resale of the goods, or

iv. otherwise resulting from breach

b. (2) consequential damages include any loss resulting from general or particular requirements and needs of which the buyer at the time of contracting had reason to know & which could not have rsbly be prevented by resale or otherwise

2. Buyer’s Incidentals and Consequentials: § 2-715

a. (1) Incidentals include

i. expenses rsbl incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected

ii. any commercially rsbl charges, expenses, commissions in connection w/ effecting cover AND

iii. any other rsbl expense incident to the delay or other breach

b. (2) consequentials damages include

i. any loss resulting from general or particular requirements and needs of which seller at time of contracting had reason to know and wich could not have rsbly been prevented by cover or otherwise; and

ii. injury to person or property proximately resulting from any breach of warranty