Remedies

Test outlined in BMW v. Gore

(1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.

Defenses against injunction

(1) unclean hands: the party seeking relief must not have been guilty of wrongful conduct with respect to the transactions subject matter (2) laches: the right to equitable relief is cut off when there has been unreasonable delay in initiating the claim, and the delay prejudices the defendant (3) impossibility (4) constitutional issues - free speech / prior restraint

Characteristics of an injunction

* An injunction is an in personam order -- that is, it is enforced by the court through the power of contempt. * The decision to grant or deny an injunction is one made by a court rather than a jury. * Whether and what form of an injunction will be granted is not a matter of right but is within the judge's discretion. * Judges generally exercise that discretion guided by principles of fairness and restraint.

Consequental damages

*Those damages that result as a direct consequence of the conduct that produces the plaintiff's original harm.* They are directly related to the injury-causing incident, even though they may not have been intended or foreseen, and even if the particular manner by which they occurred was not otherwise anticipated. Consequential damages are always classified as "special" damages rather than " general" damages, since they do not necessarily occur in every case.

Ride the Ducks of Philadelphia, LLC v Duck Boat Tours, Inc. May the court grant a preliminary injunction?

A court may grant a preliminary injunction based on: (1) whether the movant will succeed on the merits, (2) the extent to which the movant will suffer irreparable harm absent injunctive relief, (3) the extent to which the non-movant will suffer irreparable harm if the injunction is issued, and (4) the public interest. Loss of market share may be an irreparable harm.

People Express Airlines v Consolidated Rail Corp. (hazardous spill grounds airlines) Whether a plaintiff has a tort action for a defendant's negligent interference with the plaintiff's prospective advantage which results in purely economic losses unaccompanied by property damage or personal injury.

A defendant owes a duty of care to take reasonable measures to avoid the risk of causing purely economic damages to particular plaintiffs comprising an identifiable class with respect to whom the defendant knows or has reason to know are likely to suffer such damages from its conduct.

K-Mart Corp. v Oriental Plaza, Inc. Is injunctive relief merited where there is irreparable harm to real estate or goodwill interests?

A federal district court may grant injunctive relief to correct an injury that would be irreparable absent an injunction. In order for the injury to be irreparable, money damages must be insufficient. Real-estate interests have long been considered unique and susceptible to irreparable harm, which may be prevented by injunctive relief. Similarly, harm to goodwill is not readily measurable or compensable in damages, and thus is more likely to be found irreparable.

Cavel International, Inc. v Madigan (horse meat) May a plaintiff challenging a law obtain an injunction pending appeal, even without a strong showing of likely success on the merits, if the plaintiff would suffer substantial harm without the injunction and the defendant would not suffer substantial harm from the injunction?

A plaintiff's likelihood of success on the merits is only one factor for a court to consider in deciding whether to grant or deny an injunction. While a plaintiff whose case has no merit should not be granted an injunction, a plaintiff whose case has some merit but who has not made a strong showing may nevertheless receive an injunction if the plaintiff would be substantially harmed by the law and the defendant would not be substantially harmed by the injunction.

Preliminary injunction

A preliminary injunction is a court order restraining the defendant from action, or requiring the defendant to affirmatively act, to preserve the status quo. It lasts until there is a final judgment on the merits. Requirements for PI are the same as for TRO: (1) irreparable harm; (2) balance of equities; (3) likelihood of success on the merits PI requires notice to the defendant and a hearing (unlike TRO)

Temporary Restraining Order (TRO)

A temporary restraining order is an injunction to preserve the status quo until a preliminary injunction hearing. The plaintiff establishes: (1) irreparable harm (2) likelihood of success on the merits (3) balance of hardships favors the plaintiff

Mabe v City of Galveston (public bathrooms) Is an injunction against public-interest-related speech on the ground that the speech publishes already public information on public officials an unconstitutional prior restraint under the First Amendment?

An injunction against public-interest-related speech on the ground that the speech publishes already public information on public officials is an unconstitutional prior restraint under the First Amendment.

Anticipatory Repudiation

Anticipatory repudiation occurs where a promisor, prior to the time to perform arrives, unequivocally indicates he will not perform when the time occurs. Anticipatory repudiation gives the non-repudiating party four options: (1) treat the contract as totally repudiated and sue immediately; (2) suspend own performance and wait until performance is due to sue; (3) treat the repudiation as an offer to rescind, and the contract as discharged; (4) ignore the repudiation and urge performance

Compensatory damages

Awarded to compensate an injured party for all legally recognized harms or losses that have been sustained. Damages must be causal, certain, foreseeable, and unavoidable. Compensatory damages are split into two categories: (1) expectation, and (2) consequential

State Farm Mutual Automobile Insurance Company v Campbell Whether an award by a state court of $145 million in punitive damages, where full compensatory damages are $1 million, is excessive and in violation of the Due Process Clause of the Fourteenth Amendment.

Awards of punitive damages by state courts that exceed a single-digit ratio between punitive damages and compensatory damages are usually "grossly excessive" and violate the Due Process Clause of the Fourteenth Amendment.

Boomer v Atlantic Cement Company Are permanent damages appropriate in a situation where the harm caused by a nuisance is significantly less than the benefit to the party causing the nuisance?

Boomer is entitled to an injunction that will be lifted once permanent damages are paid by Atlantic. A permanent injunction will not be awarded as defendant's operations provide significantly more economic benefit to defendant than the damage caused to plaintiffs. Generally, an injunction is appropriate in cases where a nuisance would otherwise persist after a trial. However, an injunction in this case would require Atlantic to completely close its operation unless a cleaner method of producing cement could be found. This would be unfair to Atlantic, as the problem of pollution is one that is experienced by all cement factories, not only Atlantic.

Nominal damages

Damages "in name only." They usually reflect very small monetary sums, typically only "one dollar" or some similarly diminutive sum. Nominal damages are obviously not intended to compensate the plaintiff for an actual monetary loss. Rather, they are intended merely to satisfy a formal legal requirement of "damages" which must be proven in situations where no actual monetary amount of damage has been (or, perhaps, can be) proven.

Non-pecuniary damages

Damages which are not readily quantified or valued in money, such as proposed compensation for pain and suffering.

Collateral source rule

Defendants were not permitted to offset from their own liability compensation or benefits that an injured plaintiff received from an independent or collateral source, such as insurance coverage, nor were defendants permitted to introduce evidence of such benefits

Special (tort) damages

Economic losses directly attributable to the tort that some plaintiffs may have and are unique to each specific plaintiff (e.g. medical bills, lost wages, etc.)

Wheelock v Noonan Are equitable remedies available for continuing trespass if any remedy at law would require multiple suits?

Equitable remedies are generally available if there is no adequate remedy at law. Wheelock has no adequate remedy at law because (1) removing the stones himself will require a considerable advance of expense and (2) suing at law for trespass will, by law, only allow him to recover the damages to date, and not the subsequent damages. Wheelock will have to keep bringing lawsuits for future damages if Noonan is not required to remove the rocks.

Status Quo Preservation

For an injunction, status quo preservation is a primary concern

Carroll v President and Com'rs of Princess Anne Can a temporary restraining order that prohibits speech be granted through ex parte proceedings without a showing that serving or notifying the opposing parties would be impossible?

Generally, a prior restraint of expression bears a heavy presumption against constitutional validity. In order to overcome this presumption, procedural safeguards designed to assure the fullest presentation and consideration of the matter must be followed. An adversarial proceeding in which all parties participate is a fundamental instrument for judicial judgment. Challenges to public demonstrations require careful consideration and involve delicate assessments of specific factual situations.

Gonzales v O Centro Espirita Beneficente Uniao do Vegetal Does the burden of proof for obtaining or defeating a preliminary injunction track the burden to succeed at trial?

If a party is required to meet a particular burden to succeed on the merits at trial, the party must meet this burden in order to obtain or defeat a preliminary injunction.

Weathersby v Gore Is specific performance available in breach-of-contract cases where damages would be an adequate remedy?

If a plaintiff can purchase substitute goods or be awarded the difference between the contract price and market price, specific performance is not available to the plaintiff. While contracts to purchase crops have been treated as more susceptible to specific performance than other contracts under Mississippi law, this is not true for cotton contracts where other cotton is readily available on the open market.

Inadequate Legal Remedy

Inadequate legal remedy if: (1) speculative (2) insolvent defendant (3) need multiple suits (4) unique property bargained for REAL PROPERTY: All real property is unique, even if identical to others. Special Seller's Rule: seller of land can get specific performance even though all he is getting is money. PERSONAL PROPERTY: not unique unless one-of-a-kind, very rare, of personal significance to buyer, or circumstances make chattel unique (e.g. severe gas shortage). Uniqueness is tested at time of litigation, not at contract formation.

Thurston Enterprises, Inc. v Baldi Does injunctive relief prevent future conduct rather than remedying past conduct?

Injunctions are issued only to prevent imminent irreparable harm, not reparable harm. An injunction will not be upheld where there is a plain and complete remedy at law. Thus, in an equitable action to determine the scope of rights in an easement, the injunctive remedy will generally be limited to future conduct affecting the reasonable use of the easement and the possession of the servient estate.

Tom Doherty Associates, Inc. v Saban Entertainment, Inc. May loss of prospective goodwill, if imminent and unquantifiable, constitute irreparable harm justifying injunctive relief?

Irreparable harm exists only where there is a threatened imminent loss that will be very difficult to quantify at trial. Case law provides that there is generally no irreparable harm if an alleged loss of goodwill is extremely doubtful, or if lost profits could be compensated with monetary damages. In contrast, irreparable harm has been found where the viability of a plaintiff's business has been threatened, or where a plaintiff may suffer substantial losses of sales beyond those of the terminated product.

Vineberg v Bissonnette Will the defense of laches fail without a credible showing of prejudice?

Laches is an affirmative, equitable defense with two elements: (1) a plaintiff's delay in prosecution and (2) resulting prejudice to the defendant's rights. The prejudice is usually either evidence based (loss of evidence or unavailability of witnesses) or expectations based (conveyance to a bona fide purchaser or expenditure of resources in reliance on the status quo).

Pre-judgment interest

Monetary interest that is calculated on an item of claimed damages from the time of accrual of the claimant's original cause of action until the date of the final judgment on the claim. Pre-judgment interest is typically only awarded with respect to those underlying damage amounts which are ascertainable.

Grounds for rescission

Must be (1) grounds for rescission; and (2) no valid defenses. 1. Mutual Mistake of Material Fact: rescission granted. If to collateral fact, rescission is denied. 2. Unilateral Mistake: rescission denied, unless non-mistaken party knows or should have known of mistake. 3. Misrepresentation: rescission granted if plaintiff actually relied. 4. Defenses: laches, unclean hands, but not plaintiff's negligence. 5. Election of Remedies: if plaintiff sues for damages first, rescission is not allowed, but if sues for rescission first, damages are allowed. plaintiff can sue for both, but must elect one before judgment. 6. Availability of Restitution: if previously rendered performance but now entitled to rescission, can get restitution and rescission.

Silverman v King (casino dealer) Are punitive damages available for extremely unlikely harm caused by conduct that is intentional but not malicious or predictably dangerous?

No. A good-natured act that has a high probability of danger may be eligible for punitive damages, such as if a pilot aerially buzzes his neighbor's house without malice. However, in order for the unintended consequences of an intentional but non-malicious act to give rise to punitive damages, those *consequences must be reasonably foreseeable*

Clark v International Harvester Co. May a plaintiff recover damages for purely economic losses, such as lost profits or repair costs, in a negligence suit?

No. A manufacturer is responsible for personal injuries and property damage resulting from negligent design or manufacturing. A manufacturer is not, however, responsible for its product's level of performance in the consumer's business unless the consumer agrees. Personal injury and property damages are recoverable in negligence, while purely pecuniary damages are not.

Rockingham County v Luten Bridge Co. Whether, after receiving notice of a party's breach of a contract for services, the non-breaching party may continue to perform the contract to completion and recover the full contract price.

No. After Luten received notice of the County's refusal to go forward with the contract, it did not have the right to continue performance and pile up additional damages and then sue to recover for the price of full performance. The non-breaching party may not incur additional costs after notice is provided and then hold the breaching party for damages which did not need to be incurred.

Harrison v Indiana Auto Shredders Co. Absent an imminent threat to health or welfare, can a properly zoned business be shut down on nuisance grounds without an opportunity to correct its objectionable features?

No. Common-law and statutory nuisance litigation involve two stages of adjudication. First, courts must determine whether a nuisance exists. Some activities, occupations, or structures are so offensive that they constitute nuisance per se, regardless of the circumstances. These include activities that imminently threaten health or welfare. Other activities may be nuisances based on their specific circumstances or location, and these are called nuisances in fact. If a nuisance is found to exist, courts must then decide on the relief to grant the aggrieved parties. This decision requires courts to balance the equities.

Wilson v Hays (Buyer's Remedies) In a buyer's action for breach of contract for the sale of goods, are consequential damages authorized under state law if the buyer presents no evidence of attempting to mitigate damages?

No. Consequential damages resulting from a seller's breach... include losses foreseeable by the seller at the time of contract that could not reasonably be prevented by the buyer. Consequential damages may include lost profits. However, the buyer must show that he attempted to mitigate damages by cover or otherwise.

Norcisa v Board of Selectment of Provincetown May courts enjoin or issue declaratory judgments against criminal prosecution if there is an adequate remedy at law?

No. Courts of equity are not constituted to deal with criminal proceedings and therefore may not aid, restrain, or obstruct criminal proceedings. However, there is an exception for special circumstances, which requires the following three-prong test: (1) a substantial right of the plaintiff's will be impaired to a material degree unless relief is granted, (2) the remedy at law is inadequate, and (3) injunctive relief can be applied with practical success and without imposing an impossible burden on the court or bringing court processes into disrepute

Matter of Estate of Zent (nursemaid services) Is there a presumption of a gratuitous conferral of services in cases alleging implied-in-law contracts?

No. In other situations, services rendered from one family member to another are presumptively gratuitous, but not in an action relying on an implied-in-law contract. Further, there is no presumption of gratuity between non-family members, even if they have lived together as a married couple.

Truck Rent-A-Center, Inc v Puritan Farms 2nd, Inc Can an injured party enforce a liquidated damages provision that provides for the payment of a sum of money that is grossly disproportionate to the amount of actual damages?

No. Liquidated damages are available to parties where it would be difficult to calculate the amount of damages upon breach. However, a liquidated damages provision that provides for the payment of a sum of money that is grossly disproportionate to the amount of actual damages *calls for a penalty* and is unenforceable.

White Construction Co. v Dupont Is a spouse entitled to loss-of-consortium damages for a tangible loss of earnings that the other, injured spouse could recover in his or her own right?

No. Loss-of-consortium damages are available to a spouse regardless of gender. Loss-of-consortium damages may be divided into tangible (loss of support and services provided by a spouse) and intangible (loss of love, companionship, sexual relations, and comfort). With respect to loss of tangible support, a spouse may not recover for earnings that the other, injured spouse could recover for himself. The reason for this rule is to avoid a double recovery in which the injured spouse is awarded for a loss of earnings and then the other spouse is awarded for loss of consortium based on the same loss of earnings. With respect to loss of services, a spouse may recover for the actual cost of obtaining substitute services if she provides evidence of it.

Geddes v Mill Creek Country Club Where a person by his or her statements and conduct induces a party to do something that the party would not have done but for such statements and conduct, will that person be allowed to deny his or her words or acts to the detriment of the other party?

No. This is the doctrine of equitable estoppel. In order to establish equitable estoppel, a party must demonstrate (1) the other person misrepresented or concealed material facts, (2) the other person knew at the time he or she made the representations that they were untrue, (3) the party claiming estoppel did not know that the representations were untrue when they were made and when they were acted upon, (4) the other person intended or reasonably expected that the party claiming estoppel would act upon the representations, (5) the party claiming estoppel reasonably relied upon the representations in good faith to his or her detriment, and (6) the party claiming estoppel would be prejudiced by his or her reliance on the representations if the other person is permitted to deny the truth thereof.

General (tort) damages

Non-economic damages directly attributable to the tort that all plaintiffs would have because they flow as a natural result of the tort (e.g. pain and suffering, disfigurement, etc.)

Expectancy interest

One that seeks primarily to place the plaintiff in the same position that he/she would have been in had the injury not occurred at all. In a typical contract setting, the plaintiff's *expectancy interest is measured by attempting to give the non-breaching plaintiff the same economic gain(s) (i.e., profit) that would have occurred if the contract had been performed by the defendant exactly as the parties had agreed.*

Reliance interest

One that seeks to prevent the victim's loss, as opposed to fulfilling the victim's expectations that existed prior to the occurrence of that loss. In contrast to an " expectancy" interest, a victim's reliance interest is *ordinarily measured solely in relation to the victim's "out-of-pocket" damages rather than attempting to restore the victim to the "benefit of the bargain."*

Avoidable consequences doctrine

Precludes the recovery of damages which could have been averted by the injured party undertaking reasonable steps following the harm

Lost opportunity cost

Refers to the fact that in certain situations a party, by entering into one contract, must necessarily give up the opportunity for additional profit derived from performing a different contract. In reliance upon the "expectancy" to be derived from the other party's mere promise to perform the current contract, the non-breaching party has foreclosed the possibility of receiving any alternative profits by performing a different contract.

Incidental reliance

Refers to those expenses which are *not required as a necessary prerequisite* for the plaintiff's performance under a contract. While these expenses (just like essential reliance expenses) are indeed incurred in reliance on the contract, they are nevertheless collateral to the plaintiff's required performance.

Essential reliance

Refers to those preparations taken by the plaintiff prior to actual performance of a contract that are *absolutely necessary (i.e., essential) to enable the plaintiff to perform the contract.*

What is restitution based upon?

Restitution is based on the prevention or disgorgement of the defendant's unjust enrichment.

Restitution interest

Seeks to disgorge the defendant of any benefits that may have been unjustly acquired at the plaintiff's expense. In this regard, the restitution interest is more often protected through the exercise of various equitable remedies rather than by the award of purely money damages. It is unlike either the expectancy interest or the reliance interest in that its *primary focus is on preventing the defendant's unjust gain rather than compensating the victim for any loss that may have been sustained.*

Out-of-pocket damages

Special category of "compensatory" damages that represent specific, monetary losses incurred by the party seeking compensation. They are classified as "special" damages, but they are also completely pecuniary in nature.

Sedmak v Charlie's Chevrolet, Inc. Can specific performance be awarded for the sale of a limited edition vehicle?

Specific performance can be awarded for the sale of a limited edition vehicle if the injured party can establish that it is unique or other proper circumstances exist. One proper circumstance is when the goods could only be obtained elsewhere at a considerable expense, trouble, or loss, none of which could have been expected at the time of contracting.

Houseman v Dare May specific performance be available as an equitable remedy in a dispute over possession of a pet?

Specific performance is an appropriate remedy if (1) money damages are not adequate to protect the expectation interest of the injured party and (2) the order will not result in inequity to the offending party. Specific performance may be ordered when the breached agreement concerns possession of property that induces a strong sentimental attachment, such as heirlooms. Whether the property has sentimental value is determined by the facts and circumstances.

Henderson v Fisher Is quasi-specific performance available as a remedy under the same circumstances as specific performance?

Specific performance is unavailable when the party who promised the sought performance is deceased. However, quasi-specific performance may be imposed against the decedent's estate by means of a constructive trust on the property at issue. The requirements for quasi-specific performance are identical to those for specific performance: (1) inadequate remedy at law; (2) adequate consideration for the contract; (3) mutuality of remedies, meaning that each party can be required to specifically perform its promise; and (4) the performance sought must be substantially identical to the promised performance.

Balancing the Hardships

The balance of the equities weigh in the plaintiff's favor when the plaintiff's hardships if the injunction is not issued will be significantly greater than the hardships on the defendant and third parties if the injunction is issued

FRCP 65(c)- SECURITY.

The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security.

Feasible enforcement

The court will not issue a decree that would be difficult to supervise. (1) negative injunctions are not difficult to enforce because of court's contempt power; (2) mandatory injunctions that order a D to do an affirmative act pose enforcement problems because of difficulty in supervising D

Likelihood of Success on the merits

The courts require the plaintiff to show that it is probable that she will succeed on the merits of her underlying claim. This requires that the plaintiff show she can likely establish the elements of the underlying claim. The court will not analyze the parties defenses when granting a TRO.

Muehlman v Keilman Has a plaintiff who shows great damage and no adequate remedy at law demonstrated irreparable harm sufficient for injunctive relief?

The definition of irreparable injury is not harm that can never be repaired. Here, the Keilmans' sleep and thus their health, as well as the Keilmans' enjoyment of their property, have been substantially impaired. The monetary price of good health and the enjoyment of one's home is extremely difficult to establish. Indeed, imagining a truly adequate remedy at law for loss of good health, which is a continuing harm, is difficult. Therefore, the Keilmans have demonstrated great harm and an inadequate remedy at law.

Parker v Twentieth Century-Fox Film Corporation Whether an actress must accept a role in a different film to mitigate damages from the film producer's failure to produce the original film.

The measure of recovery by a wrongfully discharged employee is the amount of salary agreed upon, less the amount which the employee has earned or with reasonable effort might have earned from *substantially similar* employment.

Irreparable Harm (TRO / Preliminary Injunction)

The moving party must show that she will suffer irreparable harm if the interlocutory injunction is not granted, and this harm must outweigh the harm that the defendant would suffer. (discuss facts in time-frame context) * money damages will not fully compensate the moving party* - loss of reputation; - deprivation of constitutional rights; - irreplaceable unique chattels; - damage to health

eBay Inc. v MercExchange Does the decision whether to grant or deny permanent injunctive relief in patent infringement cases rest within the equitable discretion of the district court and must such discretion be exercised consistent with traditional principles of equity?

The plaintiff must demonstrate (1) that it has suffered irreparable injury, (2) that remedies available at law are inadequate to compensate for the injury, (3) that a remedy in equity is warranted after considering the balance of hardships between the plaintiff and defendant, and (4) that the public interest would not be disserved by a permanent injunction being issued.

North Pacific Lumber Co v Oliver Does the doctrine of unclean hands bar suits by a plaintiff whose improper conduct sufficiently affected the equitable relations between the parties such that the source of the plaintiff's claim is tainted?

The point of the unclean-hands doctrine is not to require saintliness from plaintiffs in equity or to provide that unethical plaintiffs do not have rights. The doctrine does not bar suits from a plaintiff simply because the plaintiff has been unethical. Rather, the doctrine bars suits from a plaintiff whose improper conduct is part of the source of his equitable claim. For a plaintiff's claim to be barred, his hands must be dirtied in acquiring the right that he now asserts.

Specific performance Chocolate Cheesecake Is My Favorite Dessert

The remedy of specific performance is a specialized form of injunctive relief that functions to ensure enforcement, as far as is practicable, of otherwise valid contractual obligations (1) valid Contract with definite and certain terms; (2) contract Conditions performed or ready to perform; (3) Inadequate legal remedy; (4) Mutuality of performance; (5) Feasibility of enforcement; (6) no Defenses

Ace Equipment Co. v Aqua Chem May a suit for specific performance for the sale of personalty proceed if the plaintiff has an obligation to deliver the particular item of personalty to a third party and an appropriate substitute item cannot be found?

The transformer is a large piece of used equipment that Ace Equipment purchased at a relatively low price compared with the price at which Ace Equipment sold the transformer to Lunney. Therefore, Ace Equipment is unlikely to find a substantially identical transformer to fulfill its obligation to Lunney and avoid liability for consequential damages. The nature of consequential damages is speculative, and those damages could be heavy. Accordingly, a remedy at law is inadequate, and Ace Equipment has stated a case for the equitable remedy of specific performance.

Lane v Oil Delivery Inc, For the loss of household furnishings, clothing, and other personalty, is the measure of damages the actual or intrinsic value of the property to the owner?

The usual measure of damages for personalty destroyed by a tortfeasor is the market value, if there is one, at the time of the loss. However, with household furnishings and clothing, the secondhand-market value does not adequately represent the injured party's loss. The goal of tort damages is to fully compensate the injured party, allowing the party to replace the lost property with a comparable substitute. While there is a secondhand market in furnishings and clothing, the average owner will replace lost or destroyed furnishings and clothing with new substitutes rather than secondhand merchandise.

Pecuniary damages

Those items of damages incurred by a plaintiff that have at least some pecuniary (i.e., monetary) basis for their determination. They differ from "non-pecuniary" damages in that the actual amount of these damages can be established by evidence of specific monetary losses.

Permanent Injunction (I Feel Bold & Determined)

To obtain a permanent injunction, a plaintiff establishes: (1) *I*nadequate legal remedy (2) *F*easible enforcement (3) *B*alancing of the hardships in plaintiff's favor (4) no *D*efenses

Liquidated damages test

Traditional test to evaluate the validity of a liquidated damages provision is whether, at the time the parties entered into a contract: (1) damages resulting from a breach would be difficult to determine; and (2) the stipulated amount had a reasonable relationship to the potential damages if a breach occured

Property Right / Interest (element for permanent injunction)

Traditionally, only a claim regarding tangible property warrants an injunction. Modernly, any interest is protected

Sims v Greene May a federal court extend a temporary restraining order beyond the period specified in the Federal Rules of Civil Procedure without the restrained party's consent?

Under FRCP 65(b), a court may impose a temporary restraining order for *14 days without the restrained party's consent.* If a court extends the order for longer than the 14-day period without the restrained party's consent, the order is no longer a temporary restraining order, but rather becomes a preliminary injunction governed by FRCP 52(a). Pursuant to FRCP 52(a), courts must set out findings of fact and conclusions of law supporting any grant of preliminary injunction. If a preliminary injunction does not meet the requirements of FRCP 52(a), the preliminary injunction is illegal and must be overturned.

Subrogation

Under subrogation, when a plaintiff has paid defendant's debt, the court will "revive" the debt, subrogating (substituting) the plaintiff as the new creditor. The plaintiff is, in effect, assigned of all the rights and remedies the creditor had against the defendant-debtor, subject to all the defenses the defendant has against the creditor.

Contribution

When a plaintiff has paid a liability which the plaintiff shares with the defendant, equity provides a right to seek reimbursement from the defendant for that portion which he ought to pay or bear. Rights of contribution among joint tortfeasors are a common example of this action.

Hadley Rule

When one party breaches a contract, the other party may recover all damages that are reasonably foreseeable to both parties at the time of making the contract, as well as damages stemming from any special circumstances, provided those circumstances were communicated to and known by all parties at contract formation.

County of Cook v Barrett May the doctrine of constructive trust be applied to an elected official?

Yes. A constructive trust arises by operation of law on public-policy grounds, without any agreement or understanding between the parties. *The purpose of a constructive trust is to prevent a person from retaining for his own benefit what he has gained because an innocent party placed some special trust in him.* Even if there was no bad faith on his part, the constructive trust may be imposed, and he may be required to disgorge his benefit. The point of the constructive trust is to prevent unjust enrichment, regardless of whether there is bad faith.

Stauffer v Stauffer Will a constructive trust be imposed on property that has been transferred due to fraudulent misrepresentations?

Yes. A constructive trust is imposed in order to prevent unjust enrichment. Where property has been transferred due to fraud, the transferee holds the property under a constructive trust for the transferor. A confidential relationship need not exist in order for a constructive trust to be imposed. Further, even where a relationship is not confidential in the traditional sense, the relationship may not be at arm's length

Monarch Accounting Supplies, Inc. v Prezioso In an unjust-enrichment action, must the defendant disgorge the entire benefit actually received, not including any future benefit?

Yes. A lease transfers interest in real estate to the tenant, with a reversion to the landlord after expiration of the lease. During the lease term, the landlord may not use or occupy the property without the tenant's permission. If the entire premises is leased, the tenant has exclusive control of the entire premises, absent agreement to the contrary. Further, if the landlord rents any part of the premises to a third party during the lease term, the landlord has been unjustly enriched and must transfer the whole benefit he received, and only that benefit, to the tenant.

Pavilonis v King May a litigant be enjoined from initiating litigation without permission from a court if the litigant has a history of filing frivolous and repetitive complaints with the same deficiencies?

Yes. Courts have the equitable and supervisory power to protect defendants from harassment and to protect courts from the burden of processing frivolous papers. Case law provides examples of plaintiffs being enjoined from initiating litigation without permission where the plaintiffs filed repeated complaints that were intended to harass defendants or to reopen closed cases.

Eastlake Construction Co. v Hess May a party to a construction contract who has received unfinished or defective work, but cannot prove his loss in value, recover damages based on the reasonable cost of completing performance or remedying the defects if the cost is not clearly disproportionate to his probable loss of value?

Yes. Damages for breach of contract should place the injured party in the position he would have enjoyed without the breach. However, in construction contracts, some losses of value are uncertain and difficult to calculate. Furthermore, the cost of completing performance or repairing construction defects will sometimes exceed the value of the improvement to the injured party. Accordingly, the rule is that if the party injured by incomplete or defective construction cannot prove his loss of value, and if the cost of repairing the defects is not clearly disproportionate to his probable loss of value, he may recover the cost.

Aries v Palmer Johnson Are damages for loss of use appropriate if the seller knew the buyer's intended use of the goods at the time of contracting and the buyer proves there were periods when the goods would have been used but were not because the buyer was waiting in good faith for delivery or repair?

Yes. Damages for loss of use are appropriate if (1) the seller knew the buyer's intended use of the goods at the time of contracting and (2) the buyer proves there were periods when the goods would have been used but were not because the buyer was waiting in good faith for the seller to cure defects. This rule also applies where the buyer was waiting in good faith for a delivery that is delayed due to a breach of the contract. Damages are only recoverable for those days when the goods would have been used.

Lorbermeier v General Telephone Company of Wisconsin In tort law, is whether surgery is required to mitigate damages a question of fact for the jury?

Yes. Failure to mitigate damages is an affirmative defense to be asserted and proven by the defendant. To argue that refusal to undergo surgery or other medical treatment constitutes a failure to mitigate, the *defendant must prove that a person of ordinary intelligence or prudence under similar circumstances would have undergone the recommended medical procedure*

Olwell v Nye & Nissen Co. May a plaintiff elect to waive tort recovery and sue under a theory of quasi-contract and unjust enrichment where the defendant has benefited from his wrong?

Yes. In such a case, the law imposes a duty upon the defendant to repay an unjust and unmerited enrichment. A person benefits another by adding to the property of another and by saving the other from expense or loss.

Gruber v S-M News Company Where the seller under an exclusive dealership agreement refuses to sell any of the manufacturer's products, is the manufacturer entitled to damages for its expected profits or its out-of-pocket expenses?

Yes. Lost profits, or expectation damages, constitute one measure of damages for breach of contract. The claimant of lost profits bears the burden of proving the amount with reasonable certainty. Out-of-pocket expenses incurred in reliance of the breaching party's performance constitute an alternative measure of damages. The court adopts the principle set forth in the Restatement that such expenses should be reduced by any amount that the claimant would have lost had the breaching party performed in full. The breaching party bears the burden of proving such losses.

Graham v Cirocco Are non-competition covenants unenforceable as a matter of public policy if their enforcement would result in shortages of physicians in medically necessary specialties?

Yes. Non-competition covenants are enforced where they are reasonable. For instance, in Foltz v. Struxness, 215 P.2d 133 (Kan. 1950), the court upheld a non-competition covenant for a physician-employee where there was an adequate number of physicians in the restricted city. However, non-competition covenants may be unenforceable as against public policy, which is a question of law to be reviewed de novo by appellate courts.

Mathias v Accor Economy Lodge, Inc. Must a punitive damages award imposed against a defendant be supported by sufficient evidence that the defendant's actions amounted to willful and wanton conduct?

Yes. On appeal, Motel 6 claims that the jury's punitive damages award was excessive. In support of its claim, Motel 6 cites State Farm Mutual Automobile Ins. Co. v. Campbell in which the U.S. Supreme Court mentioned that there is a "presumption against an award that has a 145-to-1 ratio." However, the Court's mention of the ratio was not a mandate that all juries must limit their punitive damages awards to fit neatly within a ratio. *Rather, an award of punitive damages must be sufficiently supported by evidence that the defendant's actions amounted to willful and wanton conduct.*

Kenco Homes, Inc v Williams (mobile home) Under the Uniform Commercial Code, when a non-breaching seller cannot reasonably resell the breached goods on the open market, is he entitled to damages in the amount of the full profit that he would have made from full performance by the buyer?

Yes. Ordinarily, the seller would be entitled to the difference between the market price for the breached goods and the unpaid contract price, together with incidental damages and less the expenses saved because of the breach. However, if this measure of damages is inadequate to put the seller in as good a position as performance would have, the measure of damages is the profit that the seller would have made from full performance, plus incidental damages. If the seller cannot sell the breached goods on the open market, such as when the seller rightly does not acquire the goods in consequence of the breach, the difference between the market price and the contract price is inadequate to put the seller in as good a position as performance would have.

Wangen v Ford Motor Co. Are punitive damages available in a products-liability case based on strict liability or negligence if the defendant's conduct has shown a reckless disregard of others' rights or interests?

Yes. The availability of punitive damages has never depended on a defendant's intentional conduct. There has also never been a rule that the same facts justifying compensatory damages must also be sufficient to justify punitive damages. Rather, punitive damages are available even where the facts justifying compensatory damages support a theory of negligence or strict liability rather than intentional tort. *A negligent or strictly liable defendant may be subject to punitive damages if the defendant's conduct showed a reckless indifference to, or disregard of, the rights of others.*

Commonwealth of Puerto Rico v SS Zoe Colocotroni Is the correct measure of damages for a sovereign or its agency suing for environmental destruction the reasonable cost to be incurred by the sovereign in rehabilitating the affected area?

Yes. The diminution of value is irrelevant because the sovereign is not necessarily concerned with market value regarding damaged environments, but rather with ecological value. Environments of great ecological value may have little or no commercial value. If environments had commercial value, they would likely already be developed and lack environmental value. A more appropriate standard is the cost to be reasonably incurred by the sovereign or its designated agency in restoring or rehabilitating the environment to its preexisting condition, or as close to its preexisting condition as possible without grossly disproportionate expense.

Meyer v Seifert (non-fireproof building) May an equity court grant an injunction where a plaintiff has an equitably protectable interest and there is no adequate legal remedy, even if the enjoined conduct is prohibited by criminal law?

Yes. The existence of a criminal prohibition of the enjoined conduct neither gives rise to, nor bars, equity jurisdiction. A plaintiff with no property interest or other equitably protectable interest directly harmed by the conduct at issue cannot obtain an injunction simply because the conduct violates criminal law. However, a plaintiff who has an equitably protectable interest at stake may obtain an injunction if the legal or criminal remedy is inadequate.

Hewlett v Barge Bertie Is the measure of damages for damaged property the amount required to restore the property to its prior condition?

Yes. The fact that the property was previously declared a constructive total loss is irrelevant and does not give the defendant the right to damage the property with impunity. The plaintiff-owner is still entitled to have the property without damage. Even if there is no market value, the property may have measurable value to the owner. *The applicable principle is that the owner is entitled to have the damaged property restored to its prior condition, even if the damage is minimal.*

Estate of Lucille Osborn v Kemp Will specific performance be awarded if: (1) there is a valid contract; (2) the plaintiff is ready, willing, and able to perform; and (3) the balance of equities tips in the plaintiff's favor?

Yes. The plaintiff *must prove these factors by clear and convincing evidence*, because specific performance is an extraordinary remedy that is not usually awarded. A valid contract must have sufficiently definite terms. For the balance of equities to tips in favor of specific performance, there must be no adequate legal remedy

Johnson V Penny (rock removal) Is restitution the proper remedy for unjust enrichment that results from an involuntary transfer without an express contract?

Yes. The proper remedy for unjust enrichment is restitution. A defendant who has been unjustly enriched must disgorge the benefit. The value of the benefit received by a defendant may be estimated by the reasonable value of the services provided. However, the measure of damages is not necessarily the cost of the services. In this way, unjust enrichment is distinct from quantum meruit, a doctrine of implied contract under which a plaintiff may recover the value of the services provided.

Cross v Berg Lumber Co. May a plaintiff in a replevin action seek incidental damages based on a restitution theory?

Yes. The proper remedy in a replevin action is the return of the property plus incidental damages. The amount of damages may be the quantum of the plaintiff's injury. However, the plaintiff may instead seek damages based on a restitution theory, under which the defendant must disgorge the amount by which he is unjustly enriched. At common law, this is known as waiving the tort and proceeding in assumpsit. In plain language, the plaintiff seeks compensation not in the amount of her injury but instead in the amount of the defendant's unjust enrichment.

Boyle v Petrie Stores Corporation Are liquidated-damages provisions, negotiated at arms length, enforceable absent unconscionability or contrariness to public policy?

Yes. The purpose of liquidated damages is to eliminate uncertainty and to provide precision regarding the amount and calculation of otherwise speculative potential damages. If the parties agree on a liquidated-damages provision after negotiation at arms length, then the provision represents the parties' reasonable estimation of what damages would be owed for injuries sustained if the contract were breached.

Laube v Thomas Is the measure of damages for the loss of timber trees their current market value?

Yes. There is no all-purpose measure of recovery for the loss of trees. Rather, there are a number of alternative measures that may be adopted based on context. If the trees are put to a special purpose, such as for windbreaks, shade, or ornamental use, the measure of damages is usually the difference in the realty's value before and after the loss of the trees. If the trees can be replaced, such as if the trees are aesthetic trees or fruit trees, the measure of damages may be the reasonable cost of replacement. In other cases, the measure of damages is the commercial market value at the time of the loss.

Donovan v Bachstadt Upon the seller's default of a real estate contract, is the buyer entitled to compensatory damages?

Yes. Therefore, this court holds that a buyer may recover compensatory damages where the seller breaches a contract to sell real estate. *Compensatory damages are intended to place the plaintiff in the position he would have been in if the contract were executed. In this way, the plaintiff is able to enjoy the benefit of the bargain.* Compensatory damages are limited to what the parties to the agreement reasonably foresaw as a consequence of a breach

Ward v Taggart Does an acquisition by fraud become a constructive trust held for the victim of the fraud, for which the victim may receive exemplary damages?

Yes. This is true even where, as in this case, the fraudulent party is not the agent of the other party. The law and public policy does not permit a person to profit from his own wrong. Here, Taggart profited from his fraudulent misrepresentations, which also violated his duty as a real-estate broker to be honest and truthful in his dealings. Accordingly, these profits are held in constructive trust for Ward, who was Taggart's victim. Further, exemplary damages are available to Ward because restitution pursuant to a constructive-trust theory would have little deterrent effect.

Kroulik v Knuppel When a non-willful trespasser appropriates minerals, is the correct measure of damages the value of the minerals in the ground, measured by the amount of royalties that the landowner could have received from the appropriator?

Yes. This royalty-based valuation permits the landowner to recover what he would have realized by contracting for the extraction of the minerals, but does not unduly punish the non-willfully trespassing extractor, who was merely negligent. The extractor will then retain the profits from the sale of the extracted minerals. When a willful trespasser appropriates minerals, the correct measure of damages is the value of the minerals after extraction, measured by their sale price, minus extraction costs. Sometimes willful trespassers will be required to pay the value of the minerals at surface without deducting the costs. This method of valuation does not permit the extractor to retain profits.

Hueper v Goodrich In a claim for medical expenses, does the collateral-source rule bar evidence regarding the fact that the plaintiff's injuries were treated free of charge?

Yes. Under this rule, a plaintiff may recover damages from a tortfeasor even if the plaintiff has received reparations for the injury from a third-party source. Traditionally, the rule has been applied to situations where a plaintiff has received insurance proceeds, employment benefits, gifts of money or medical services, welfare benefits, or tax advantages. The rationale for the rule is that a tortfeasor should not benefit from a plaintiff's payment of insurance premiums or receipt of gifts from third parties.

Collins Entertainment Corp. v Coats and Coats Rental Amusement If a seller whose buyer breached a contract enters a subsequent contract for the product, may the seller still sue for damages for lost volume?

Yes. Whether a seller has lost volume is a question of fact. To demonstrate lost volume, the seller must prove that (1) the person who bought the resold product would have been solicited by the seller had there been no breach, (2) the solicitation would have been successful, and (3) the seller could have performed the additional contract.

Carbasho v Musulin Are damages for the loss of a pet, like damages for the loss of any other personal property, limited to the fair market value of the pet?

Yes. While people have personal relationships with and emotional attachments to their pets, which are not fungible, the common law categorizes pets as personal property.