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Remedies
University of Oklahoma College of Law
Tabb, Murray

Remedies
 
Injunctions
Injunction–court command directing enjoined party to do something (mandatory injunction) or refrain from doing something (prohibitory injunction–most common)
 
Temporary Injunction–serves purpose of “preserving status quo”
¨    Temporary Restraining order is example of temporary injunction
 
Permanent Injunction–changes status quo
¨    Permanent in the sense that it remains effective until some specified event occurs
 
Procedural Issues of Injunction
1. Notice
2. Posting Bond
 
5 Substantive Elements of Injunction
1. Must have some RIGHT that you seek to protect
¨    This right must be proved for a permanent injunction
¨    For a temporary injunction, one must only show “a probable right and a probable harm” rather than actually winning on the merits because a temporary injunction merely preserves evidence or maintains the status quo…the merits can be tried later
 
2. Timing–IMMINENT HARM is required
¨    Injunctive relief is not appropriate when harm has already occurred and does not appear likely to reoccur
¨    Equity will not act to prohibit future harm that is considered speculative; courts do not issue “be good” orders but instead require proof of imminent and probable harm.
¨    Injunctions are based on court’s predictions that harm is imminently likely to occur, so the plaintiff must establish a basis for that probability. 
 
3. INADEQUATE REMEDY AT LAW (Quantitative)
¨    There exists a hierarchy of law–there is a preference for legal remedies–Always look to legal remedies (usually damages) first before looking to equitable remedies such as injunctive relief
¨    Equitable remedies are disfavored in the sense that they are viewed as extraordinary remedies–so courts are reluctant to grant equitable relief
          Contempt Power: If an injunction is violated, the violator can be held in contempt of court…this                     contempt power really gives an injunction some teeth. 
¨    Remedy is adequate if it is (1) complete (2) available and (3) effectual
¨    If remedy at law is inadequate, then courts are said to have equity jurisdiction, which means that it would be appropriate to grant equitable relief.
 
4. IRREPARABLE HARM (Qualitative)
¨    Must be harm suffered that can’t be repaired by damages, usually because there is some kind of personal invasion that a person should not be forced to suffer
 
5. BALANCING OF EQUITIES/Public Interest
¨    Courts balance the hardships between the two parties and ask “Who should bear the burden and why?”
¨    Courts also take into account public interest and the effect that an injunction might have on 3rd parties
¨    Courts should also consider whether they can write the order with any degree of specificity
 
Inadequate Remedy at Law
Thurston v. Baldi
¨    P grants D an easement; D violates easement by driving heavy truck over road and ruining the road
Rule: Damages and injunctive relief can be awarded simultaneously so long as they don’t serve the same purpose (are not duplicative)
¨    Requiring D to pay damages for past destruction and enjoining further abuse of the road to prevent future destruction is okay because the two forms of relief serve different purposes
 
Wheelock v. Noonan
¨    P grants D a license to place specified amount rocks on P’s unoccupied lots for specified time period
¨    Injunctive relief is appropriate here because a remedy of damages for trespass is inadequate because a multiplicity of suits would occur in the future if D chooses to continue trespassing and considers future nominal trespass damages as a cost of doing business
 
Equity                                                                                     Law
Discretionary; Fairness                                                            Rights vindicated; enforced
In personam (Equity acts in personam)                                   In Rem
Extraordinary                                                                          Normative
Subordinate to Legal Remedies                                              Preference for legal remedies
Backed by contempt power                                                    N/A
Judge                                                                                       Jury
Bond (w/TRO)                                                                        N/A
Timing is critical (imminence)                                     N/A (except SoL)
Considers public interest (3rd party)                                      N/A (generally)
Forward looking perspective                                                  Backward looking perspective
Judicial resources used on supervision                                    Less Burdensome on the court
 
Irreparable Harm
K-Mart v. Oriental Plaza
¨    P grants D lease with two covenants, one relating to lease space and another stating that construction would not deviate from site plan
¨    D violated covenants thus blocking view of P K-Mart and diminishing goodwill
¨    Court awards mandatory injunction forcing part of D’s building to be cleared for parking
¨    Granting of mandatory injunction is not common but was used here because land is considered to be unique; therefore, damage to RE is more likely to be considered irreparable
Note: A party can’t draft a contract stating that he is entitled to injunctive relief; however, it is smart to draft the contract such that it outlines the reasons you believe a legal remedy is insufficient
 
Muehlman v. Keilman
¨    D operates loud machinery at all hours; P, a neighbor, sues for nuisance
¨    The noise is obviously violating a right; the timing is imminent because it will continue to occur; damages would be inadequate because a multiplicity of suits would be necessary; the harm is irreparable in the sense that no one should be forced to suffer this; the court must balance the equities by balancing D’s right to work with P’s right to enjoy his property and the court must consider how to phrase any injunction with appropriate level of specificity
¨    The court granted $10K damages and an injunction on running machinery before 7 AM–this award of damages and injunctive relief is appropriate because it doesn’t serve same purpose
 
Galella v. Onassis
¨    Paparazzi bothering Jackie Onassis
¨    Statute in this case stated public interest reasons for protection from paparazzi; if such a public interest statute exists, always use it as proof of public interest when balancing equities
 
Specific Performance
¨      Specific Performance = equitable discretionary remedy that is issued to enforce contractual rights/duties
5 Substantive Elements for Specific Performance
1. VALID CONTRACT WITH DEFINITE REQUIREMEN

however, adequacy of consideration is determined at the time of contract formation, and in this case, the consideration was adequate in light of the fact that there was no telling how long the man might live. 
¨    If a court chooses to consider fairness, they must evaluate it at time of contract formation.
¨    D also makes old school mutuality requirement argument saying that since the court could not have compelled the neighbors to work (involuntary servitude) that the court should not be able to compel the transfer of title either. First of all, mutuality is no longer required. Secondly, the neighbors had already completed their service, so the lack of mutuality no longer existed. 
 
Fashioning Relief (with SP)
Dover Shopping Center v. Cushman’s
¨    D contracts with P to open bakery inside P’s shopping center; K sets out requirements for hours of operation and provides that payment will equal $7K plus some percentage of sales. The contract further reserves the right for P to get injunction in case of breach. D shut down store and continued paying rent because they were losing money from operation of bakery; P wants to force D to keep running bakery at a loss. 
¨    Courts are not bound by language reserving a right to injunction (always discretionary)
¨    Court issues mandatory injunction ordering D to reopen bakery inside shopping center because damages are very speculative and the cost of supervision is low in this case. 
General Rule: Courts will not order S.P. of personal services contract because (1) an adequate remedy at law exists unless services are unique (2) such orders are difficult to supervise (3) involuntary servitude
Caveat: Personal services are characterized as being “non-delegable”
Lessons
¨    This is not considered personal services because baking is delegable
¨    P should have negotiated for right to sublease or assign subject to tenants consent (which shall not be unreasonably withheld)
¨    Both sides could have negotiated for liquidated damages (some courts say this takes care of speculative nature of damages, other courts still allow equity to intervene)
 
Wooster Republican Printing v. Channel 17
¨    P, radio station, is trying to force D, a TV station, to specifically perform their contract to sell their business to P. P claims that damages are inadequate b/c the TV station is unique in that it is ripe for growth and only doing poorly because of bad management. D argues that they are not able to perform because the contract called for a conveyance of property from D to P but D later found out that they did not actually own part of the property but only owned an option to purchase the site at the end of the lease term for $10K