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University of Toledo School of Law
Kennedy, Bruce M.

Bruce Kennedy – Remedies, Spring 2011 (Text: Remedies: Cases and Problems 4th Edition, Shoben, Tabb and Janutis)
I. Types of Remedies
 *P must establish both a violation of a substantive right and establish the basis for any desired remedy.
            1.Coercive Remedies
                    Injunction, specific performance – available from a court sitting in equity, judge decides.
                                            Types of injunctions:
·         Preventative injunctions – prospectively
·         Restorative injunction – corrects the present by undoing the effects of a past wrong
·         Prophylactic injunction – seeks to safeguard the p’s rights by directing the d’s behavior to  minimize chance wrongs might occur in future
·         Structural injunction – ex school desegregation, courts involved in institutional policies
                     Coercive remedies, like all equitable remedies are subject to the equitable defenses: unclean hands, laches, estoppel and unconscionability. (LEU2)
2. Damages – purpose is to compensate P’s for losses sustained in violation of their rights
        1. establish  a claim in substantive law
        2. establish entitlement to a particular type of damages
        3. measurement
        Damages cannot be too remote, speculative or uncertain. Other limits; the collateral source rule and avoidable consequences rule.    Punitive damages 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 the wrong, or by disgorging D of any unjust enrichment. The measurement of restitution is the D’s gains rather than P’s losses. P could actually get more  back than they  lost. Other types of restitutionary remedies include : equitable liens, rescission and suits in assumpsit for quasi-contract.
4. Declaratory Remedies – the purpose of declaratory remedy is to obtain a declaration of the rights or legal relations between parties. This remedy is often used to determine the constitutionality of a  statute or to construe a private instrument so that the parties may obtain a resolution of the dispute at an early stage.
II. Scope of Legal and Equitable Remedies
      1.Limitations on Remedies
            3 sources of remedial rights – statutes, federal and state constitutions and CL. Source of a P’s desired remedies is important b/c (1) the  P must establish that a particular remedy is permissible and (2)the source may place some limitations upon the remedy.
           Orloff v. Los Angeles Turf Club (pg 14) –Black man ejected from a race club. Turf Club said statute specified stated remedy and statute should be narrowly construed. Court said-NO, the statues here involved do not purport to exclude all other remedies.
Cowan equipment Co. v. GMC (pg 19.)
            Cowan claim was for unconscionability of K and sued for – $ damages and out  of pocket expenses. GM challenges – said under UCC unconscionability of K not a cause of action, but a defense and nothing more.
            When you don’t have a right, you don’t have a remedy.
Treister v.  American Academy of Orthopedic Surgeons (pg 22) – Orthopaedic Surgeon denied membership Court said we believe that courts must refrain from interfering in the affairs of a private organization absent  showing of economic necessity.
 2.  Consequences of Remedy Characterizations – the significance of a given remedial label is that is can affect matters such as insurance coverage, right to jury trial and methods of judicial enforcement of the remedy.
            Both compensatory damages and punitive damages are available as legal remedies in circumstances where either CL 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
            Brunez v. Houdaille pg 36
            “the fact that appellant amended his complaint to give up his claim for reinstatement does not convert his claim under (OH law) in a legal one triable to a jury.”
            ‘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’.
III. Preventative Injunctions- a court order designed to avoid future harm to a plaintiff by controlling a D’s future behavior. The injunction is “preventative” in the sense of avoiding harm. The wording may be prohibitory-“do not trespass”, or mandatory – “remove the obstruction.”
            5 requirements of Traditional Injunctions: (NIB PP)
·         Inadequacy – P must show no adequate remedy at law (i.e. you can’t get an injunction if damages are an adequate remedy)
·         Unless the injunction is issued P will suffer irreparable harm
·         Injunction must alleviate more harm than it causes  (balancing interests)
·         Practicability
·         Public Interest
            Ex. cases of no adequate remedy at law:
            Thurston enterprises, Inc. V. Baldi(pg 45)
            One dude granted another dude an easement on his land, the 2nd dude jacked up the first dude’s land by use of the easement (big trucks).
            “Nonetheless, equitable jurisdiction lies only when there is no plain and complete remedy at law. Applying these jurisdictional rules to easements, in an equitable action to determine the scope of the rights in an easement, the remedy will ordinarily be limited to future conduct affecting the reasonable use of the easement…”
            Wheelock v. Noonan (pg 47)
            One dude put way more rocks on 2nd dude’s land than was K’d for and then refused to move em.
            “But it is further said that he could sue at law for trespass…But in a case like the present, would that be an adequate remedy?[no] in each action the damages could not easily be anything more than the fair rental of the lot. It is difficult to  see what other damages could be allowed, not b/c they would not exist, but b/c  they would be quite uncertain in amount and possibly somewhat speculative in their character.”
            *damages at law not adequate whan they are wrongful (ex. Fraud, such as in Wheelock)
            Ex. Case of Irreparable Harm:
            K-Mart v. Oriental Plaza, Inc. (pg 51)
            Oriental Plaza, Inc, switched the plans for a parking lot and built one that K-mart hadn’t approved of. The lower court ordered mandatory injunctive relief in P’s favor (D to tear down part of the parking lot). Court of appeals affirmed. “The necessary conc

quo pending trial b/c otherwise irreparable harm will result. (courts should not issue an injunction w/o showing of loss beyond economic loss compensable with damages.)
b.      P further must make some showing of the strength of the claim in the underlying suit.
2.      Procedural Requirements
a.      TRO can be entered ex parte, but only upon a specific showing that immediate and irreparable harm will result before the opposing party could be notified or heard. Order can last only 10 days, with a second 10-day extension for good cause
b.      Preliminary injunction hearing is expedited on calendar, both sides must have a reasonable opportunity to present some evidence. A preliminary injunction then lasts until the full merits on the case.
V. Modern Injunctions
            1. Restorative injunction – principally operates to correct the present by undoing the effects of a past wrong. (ex tainted election process)
            2. Prophylactic injunction – seeks to safeguard the P’s rights by directing the D’s behavior so as to minimize the chance that wrongs might occur recur in the future. (ex. An employer being ordered to take specific steps to educate employees on harassment based on race – court would only order measures if it seemed that future infractions of P’s rights are likely w/o extra protections.)
            Vasquez v. Bannsworth, Inc. (pg 294)
            Bundy v. Jackson (pg 298)
3.      Structural Injunctions – modern phenomenon born of necessity from developments in Constitutional law. Substantive rights concerning the treatment of individuals by institutions (right not to suffer inhumane treatment in a prisoner public mental health hospital. Courts undertake supervision over the institutional policies and practices. SI’s are often long and costly battles.
Brown V. Board of Education (Brown II) (pg. 305
                    Hutto v. Finney (pg308)
                    Note 6 pg – 316
VI.  Specific Performance- specialized form of injunctive relief that functions to ensure enforcement of contractual obligations
1.      Entitlement: – A court exercises discretion in determining whether SP is an appropriate remedy by considering the following factors (IFABS):
a.      Inadequacy of available legal remedies
b.      Likelihood of future performance by party seeking enforcement of K
c.       Ability of breaching party to render performance
d.      Balance of interests and relative interests of  parties
e.      Potential difficulties in supervision or enforcement of decree
        *When the subject matter of the dispute involves unique or non-fungible items, such as heirlooms or land, courts typically have considered substitutionary relief of money  to be inadequate.