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REMEDIES OUTLINE

I. BASIC REMEDIAL TOOLSa. Types of Remedies

i. Coercive remedies → an injunction or specific performance order is available from a court sitting in equity. 3 types of injunctions: restorative injunctions, prophylactic injunction, and structural.

ii. Damages → to compensate the П for losses sustained in violation of their rights. CL says that damages cannot be too remote, speculative or uncertain.

iii. Restitution → the goal of restitution is to restore property to its rightful owner by returning the П to a position held before a wrong, or to disgorge from a Δ any unjust enrichment occasioned by the wrong to the П.

iv. Declaratory relief → purpose is to obtain a declaration of the rights or legal relations between the parties

II. SCOPE OF LEGAL AND EQUITABLE REMEDIESa. A plaintiff must establish:

i. the substantive entitlement to relief; and ii. a legal basis for the desired remedy; and

iii. factually the requirements for the desired remedyb. Limitations on Remedies

i. Orloff v. Los Angeles Turf Club1. F: Orloff П brought an action for injunctive relief against the Los Angeles

Turf Club Δ after he was ejected from the Turf Club Δ and ordered not to return.

2. R: The Civil Code of CA establishes the law of the state respecting the subjects to which it relates, and its provisions are to be liberally construed with a view toward affecting its objects and toward promoting justice.

III. PREVENTIVE INJUNCTIONSa. A preventive injunction is a court order designed to avoid future harm to a П by

controlling a Δ’s behavior. It is preventive in the sense that it is avoiding the harm.b. Inadequacy of Remedy at Law → courts traditionally cite the maxim that equity will not

grant relief when the remedy at law, usually damages, is adequate. In cases involving interest in real property, courts often say that the uniqueness of each parcel of land makes damages inadequate to compensate losses.

i. Thurston Enterprises, Inc. v. Baldi1. F: Baldi П brought an equitable action to (1) determine the scope of

rights in an easement which Baldi П had deeded to Thurston Δ; and (2) to enjoin Thurston Δ from using heavy trucks for hauling fill onto Thurston’s Δ property by way of the easement.

2. R: In an equitable action to determine the scope of rights in an easement, the remedy will be limited to future conduct affecting the reasonable use of the easement and possession of the servient estate.

ii. Wheelock v. Noonan1. F: Wheelock П gave Noonan Δ a license allowing him to place a few

large rocks on his lots, to be removed in the spring, but instead huge quantities of rock were deposited and not removed as agreed.

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2. R: While a court of equity ordinarily will not redress a trespass, it will do so under peculiar circumstances where the trespass is continuous and a multiplicity of suits at law would be required for complete relief.

3. A continuing trespass requires a showing that the Δ will not follow a demand to vacate.

4. A pattern of repeated trespasses requires a showing that the Δ is likely to continue to repeat the invasions in knowing violation of П’s rights.

c. Irreparable Harmi. K-Mart Corp. v Oriental Plaza, Inc.

1. F: K-Mart П sued to have Oriental Plaza Δ tear down unapproved construction that constricted parking and obstructed the view of K-Mart’s П store from the highway.

2. R: Irreparable harm occurs when money damages cannot compensate for the injury, such as an injury to reputation, goodwill, or real estate interests.

ii. Muehlman v. Keilman1. F: Keilman П brought an action for injunction and damages against

Muehlman Δ, asserting that Muehlman Δ started and raced the engines of his two semi-trailer trucks at all times during the day and night immediately adjacent to Keilman’s П residence and that such actions constituted a nuisance.

2. R: The general rule under Indiana law is that if the П can show great injury and no adequate remedy at law, he is entitled to injunctive relief.

d. Balancing Interests and Practicality Considerationsi. Triplett v. Beuckman

1. F: Triplett П brought an action for injunctive relief against Beuckman Δ requiring Beukman Δ to remove a causeway access to an island which Beuckman Δ had purchased from Triplett П and to replace it with a bridge.

2. R: The owner of the dominant estate has the duty to maintain and repair an easement and cannot make a material alteration in the character of the easement if the alteration places a greater burden upon the servient estate.

ii. Galella v. Onassis1. F: Galella П, a professional free-lance photographer, brought an action

against Onassis Δ and the three US Secret Service agents, seeking damages for alleged false arrest and malicious prosecution and an injunction against the interference with his business by the alleged acts of Onassis Δ is resisting his efforts to photograph her.

2. R: Permanent injunctive relief is available where there is no adequate remedy at law, where the balance of the equities favor the moving party, and where success on the merits has been demonstrated.

iii. eBay Inc. v. MercExchange **e. Public Interest and Tribunal Integrity

i. Graham v. Cirocco**ii. Boomer v. Atlantic Cement Company

1. F: Dirt, smoke, and vibration from the Atlantic Cement Co. Δ became so offensive to surrounding neighbors as to create a nuisance.

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2. R: In an action by a landowner for relief from a permanent, unabatable nuisance, the landowner is entitled to a single recovery of permanent damages for the total economic loss suffered on his property, but no injunction will issue against the wrongdoer except one merely designed to assure the payment of such damages.

iii. United States v. Oakland Cannabis Buyer’s Cooperative1. F: The United States П sued Oakland Cannabis Buyer’s Cooperative Δ

seeking to enjoin the cooperative Δ from distributing and manufacturing marijuana in violation of the Controlled Substances Act.

IV. SPECIFIC PERFORMANCEa. Entitlement

i. Walgreen Co. v. Sara Creek Property Co.1. F: Sara Creek Δ attempted to breach a provision in Walgreen’s П lease

contract prohibiting Sara Creek Δ from leasing space to another pharmacy in the same mall.

2. R: In choosing whether specific performance or money damages are appropriate in a breach of contract case, the costs and benefits of each remedy must be weighed, with the burden of persuasion on the plaintiff seeking the injunction, with the understanding that if the balance is even, the injunction will be denied.

ii. Van Wagner Advertising Corp. v. S&M Enterprises1. F: Van Wagner П contended that S&M’s Δ cancellation of a lease of

billboard space on the side of a building was ineffective because only an owner making a bona fide sale could terminate the lease, and Van Wagner’s П lease had not been terminated by the former owner of the building, Michaels, before she sold it to S&M Δ.

2. R: The point at which breach of a contract will be redressable by specific performance lies not in any inherent physical uniqueness of the property, but instead, in the uncertainty of valuing it.

iii. Niagara Mohawk Power Corp. v. Graver Tank & Manufacturing Co.1. F: Niagara Mohawk Power Corp. П brought an action for specific

performance against Graver Tank & Manufacturing Co. Δ to enforce the terms of a K between the parties that allowed Niagara П to terminate Graver’s Δ contracting services “at any time for any reason.”

iv. Henderson v. Fisher1. F: Henderson П entered into a contract with Baker whereby the former

was to move in with the latter and take care of him for the remainder of Baker’s life.

2. R: A court may order specific performance by the estate of a deceased promisor who passed away before executing and delivering a deed to real property as provided for by contract.

b. Fashioning Reliefi. Dover Shopping Center, Inc. v. Cushman’s Sons, Inc.

1. F: Dover Shopping Center Inc. П brought an action for a mandatory injunction against Cushman’s Sons, Inc. Δ, directing Cushman’s Δ to specifically perform covenants contained in a lease executed between Dover П and Cushman’s Δ after Cushman’s Δ decided to close its retail bakery business located in Dover’s П shopping center.

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2. R: Although specific performance will not ordinarily be granted where the duty to be enforced is difficult to supervise and continues over a long period of time, the modern trend is to grant performance in the case of a clear breach where the difficulties of enforcement are not great.

ii. Shubert Theatrical Co. v. Rath **iii. Wooster Republican Printing v. Channel 17 Inc.

1. F: Wooster Republican Printing П, a corporation that owns and operates newspapers, radio stations and a commercial printing business, brought an action against Channel 17 inc. Δ to enforce a contract to sell the assets, property, and business of Channel 17 Δ.

2. R: As an equitable remedy, specific performance will not be ordered when the party claiming breach of contract has an adequate remedy at law.

c. Contracts for the Sale of Goodsi. Sedmak v. Charlie’s Chevrolet, Inc.

1. F: Sedmak П sued Charlie’s Chevrolet, Inc. Δ for breach of contract and specific performance after Sedmak П allegedly entered into a contract with Charlie’s Δ to purchase a Corvette automobile for $15,000 because, when the automobile was delivered, Sedmak П was told he could not purchase the automobile but would have to bid on it.

2. R: A court may decree specific performance as a buyer’s remedy for breach of contract to sell goods where the goods are unique or in other proper circumstances.

ii. i.Lan Systems, Inc. v. Netscout Service Level Corp. **iii. Weathersby v. Gore

1. F: Weathersby П, a cotton buyer, brought suit against Gore Δ, a cotton farmer, for specific performance of a contract which obliged Gore Δ to sell the cotton produced by him on 500 acres of land during the 1973 crop year.

2. R: Specific performance of contract will not be awarded where damages may be recovered and the remedy in a court of law is adequate to compensate the injured party.

iv. Ace Equipment Co. Inc. v. Aqua Chem, Inc. 1. F: Ace Equipment Co. Inc. П sued Aqua Chem. Inc. Δ for specific

performance of a contract for sale after Ace П allegedly entered into a sales contract with Aqua Chem. Δ for the purchase of a used 6000 KVA General Electric Transformer, and Aqua Chem. Δ then refused delivery of the transformer to Ace П.

V. EQUITABLE DEFENSESa. Laches and Estoppel

i. Stone v. Williams **ii. Danjaq LLC v. Sony Corp. **

iii. Geddes v. Mill Creed Country Club **b. Unclean Hands and Unconscionability

i. Senter v. Furman

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1. F: Senter П, a dentist, brought suit in equity to declare that a house and lot that Senter П conveyed by warranty deed to his nursing assistant, Furman Δ, was held by her under a constructive trust.

2. R: Where a conveyance is used to conceal assets from creditors and one of the parties to the conveyance falls victim to the wiles of the other, no relief can be afforded to the victimized wrongdoer and the parties are to be left as they stand.

ii. North pacific Lumber Co. v. Oliver1. F: North Pacific Lumber Co. П filed suit against Oliver Δ, one of North

Pacific’s П former employees, for breach of a noncompetition clause in an employment contract Oliver Δ entered into with North Pacific П after Oliver Δ left his job with North Pacific П and went to work for another company.

2. R: An employment contract which binds a person not to exercise his profession for a period of time in a particular area may be upheld if it is necessary to protect the legitimate interest of the person in whose favor it runs and does not impose an unreasonable hardship upon the person against whom it is asserted.

iii. Campbell Soup Co. v. Wentz1. F: Wentz Δ contracted to sell carrots to Campbell П but instead sold

them to Lojeski Δ.2. R: Even though a contract may be perfectly legal, entitling both parties

to legal relief, equity will not provide specific relief to any party who has driven too hard a bargain or obtained too one-sided an agreement.

iv. Jones v. Star Credit Corp.1. F: Star П bought a freezer on time for $1,234.80, which in fact has a

market value of only $300. 2. R: Where the possibility of “oppression or unfair surprise” makes it

necessary for a court to grant relief from an unconscionable contract, the UCC provides that the court may either refuse to enforce the contract, excise an objectionable clause, or limit the application of such a clause to avoid an unconscionable result.

c. Election of Remediesi. Head & Seemann, Inc. v. Gregg

1. F: Head & seemann, Inc. П sued Gregg Δ seeking relief for Gregg’s Δ breach of contract, after Gregg Δ represented to Head & Seemann П in writing that she wished to buy a home from them, that she had equity in another home, and that she would pay this amount to Head & Seemann П after selling the other home.

2. R: The election-of-remedies doctrine is an equitable principle barring one from maintaining inconsistent theories of relief, and its underlying purpose is to prevent double recovery for the same wrong.

ii. Altom v. Hawes1. F: Altom П brought a replevin action against Hawes Δ to recover certain

household furniture which her ex-husband sold to Hawes Δ in violation of a separation agreement.

2. R: The bringing of a suit for one remedy is a manifestation of a choice of that remedy but it does not preclude the plaintiff from seeking another

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remedy instead if he has reasonable grounds for so doing and the defendant has not so altered his position as to make it unjust to permit the change.

VI. INTERLOCUTORY INJUNCTIONSa. Substantive Requirements

i. Ride the Ducks of Philadelphia, LLC v. Duck Boat Tours, Inc. **ii. Cassim v. Bowen

1. F: Cassim П sued Bowen Δ, the Secretary of Health and Human Services, requesting a preliminary injunction, after Bowen Δ decided to suspend Cassim П, a Medicare participating physician from the Medicare program.

2. R: When a Medicare physician performs unnecessary surgeries, the government’s interests in stopping such surgeries are more compelling than the physician’s interests in his professional career.

b. Procedural Requirementsi. Sims v. Greene

1. F: Sims П sued Greene Δ and asked the court for a TRO against him because Greene Δ was trying to usurp Sims’ П professional duties as the legitimate bishop of the First Episcopal District of the African Methodist Episcopal Church.

2. R: A preliminary injunction cannot be maintained unless the court issuing it sets out findings of fact and conclusions of law which constitute the grounds for its action as required by Fed. R. Civ. P. 52(a).

VII. CONTEMPTa. Criminal Contempt

i. Walker v. City of Birmingham1. F: Walker П, a member of a civil rights organization, was held in

contempt for violating an injunction prohibiting his organization from parading without first obtaining a permit as required by a Birmingham City Δ ordinance.

2. R: A party, validly enjoined, may not resort to self-help and violate the injunction but must seek a dissolution or modification of the injunction by proper judicial review.

ii. In re Stewart1. F: Stewart Δ was found guilty of contempt after he allegedly demoted

one of his employees who had served on a jury. Stewart Δ failed to reinstate the employee after being ordered to do so by a judge.

2. R: due process requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf.

iii. Ex Parte Daniels1. F: Daniels П, while appearing before a judge pro se, became involved in

an argument with the judge, assaulted the master of the court and was adjudged to be in criminal contempt. She brought a habeas corpus action alleging that she was denied due process because she was denied counsel during the contempt proceedings.

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2. R: In cases of direct contempt and where the judge has personal knowledge of the behavior constituting contempt, the court is allowed to conduct a summary proceeding in which the contemnor is not accorded notice of a hearing.

iv. Matter of Contempt of Greenberg1. F: Greenberg Δ appealed from a conviction of criminal contempt after

he allegedly shouted at the judge and disrupted the court during the trial of one of Greenberg’s Δ clients.

2. R: Under Fed. R. Crim. P. 42(a), criminal contempt may be punished summarily if the judge certifies that he or she saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court.

v. United States v. United mine Workers of America1. F: the United Mine Workers of America Δ was found guilty of civil and

criminal contempt after the UMW Δ went on strike during a national emergency. The UMW Δ appealed.

2. R: An order issued by a district court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings.

b. Civil Contempt and Coercive Civil Contempti. Time—Share Systems, Inc. v. Schmidt

1. F: Schmidt Δ was found in contempt of a court order not to delete any data prior to a file save was to be performed by Time-Share Inc. П during litigation over rights to ownership of computer software.

2. R: The trial court has inherently broad discretion to hold an individual in contempt when the contemnor has acted contumaciously, in bad faith and out of disrespect for the judicial process.

ii. United States v. Darwin Construction Co.1. F: Darwin Construction Co. Δ brought a motion to set aside or reduce

the fine that was levied against it for civil contempt after Darwin Δ failed to comply with an IRS П summons to produce documents.

2. R: Substantial compliance to a court order is found where all reasonable steps have been taken to ensure compliance, and inadvertent omissions are excused only if such steps were taken.

iii. United Mine Workers v. Bagwell1. F: United Mine Workers Δ violated a trial court injunction several times

and incurred substantial fines, which it challenged as criminal rather than civil sanctions.

2. R: Civil contempt sanctions, if they are substantially serious, must be either coercive or compensatory.

iv. LaTrobe Steel Co. v. United Steelworkers of America1. LaTrobe Steel Co. П obtained an injunction against the United Steel

Workers of America Δ prohibiting the Union Δ and its members from engaging in any work stoppage in sympathy for another strike. The order was violated and the Union Δ was held in civil contempt.

2. R: A civil contempt decree, whether coercive or compensatory, which is based on a violation of an injunction, does not survive the invalidation of the underlying injunction.

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v. Pro—Choice Network v. Walker 1. F: Behn Δ and Rainero Δ appealed fines of $10,000 each for violating a

TRO enjoining them from conducting any blockade of Pro-Choice Network’s П health-care facility.

2. R: A party to a pending proceeding may not appeal from an order of civil contempt except as part of an appeal from a final judgment.

VIII. SPECIAL ISSUES IN EQUITYa. Statutory Limitations on Discretion

i. Tennessee Valley Authority v. Hill1. F: Hill П, US Secretary of the Interior, brought an action to enjoin the

Tennessee Valley Authority Δ from operating a dam across the Little Tennessee River, as the creation of a reservoir that would occur when the dam was operated would cause the extinction of a species of fish in violation of the Endangered Species Act.

2. R: The Endangered Species Act commands all federal agencies to insure that actions authorized, funded or carried out by them do not jeopardize the continued existence of an endangered species.

b. Enjoining Speech or Litigationi. Willing v. Mazzocone

1. F: Mazzocone et al. П filed an action in equity to enjoin Willing Δ from demonstrating on a pedestrian pathway in downtown Philadelphia and declaring, while doing so, that Mazzacone et al. П, who were at one time employed as Willing’s Δ attorneys, had stolen money from her.

2. R: Equity will not enjoin defamation, and an applicant’s indigence is irrelevant to the consideration of whether that person’s remedy at law is adequate.

ii. Mabe v. City of Galveston1. F:The City of Galveston and Park Board of Trustees П brought an action

for injunctive relief against Mabe Δ to prohibit Mabe Δ from distributing pamphlets to the public listing the names and phone numbers of certain members of the Galveston City Council П and Park Board П.

2. R: Any system of prior restraints bears a heavy presumption against its constitutional validity and although in exceptional cases prior restraints may be constitutionally permissible, prior restraint against distribution of pamphlets is particularly suspect.

iii. Pavilonis v. King1. F: Pavilonis П appealed from the dismissal of two civil rights actions she

had filed after a district judge dismissed Pavilonis’s П suits for being hopelessly vague and frivolous and enjoined her from filing any lawsuit in district court without authorization by a district judge.

2. R: Where numerous, unsupported actions are filed against a defendant, the court has equitable and supervisory power to protect the defendant from harassment and the court itself from the burden of processing frivolous papers.

iv. Norcisa v. Board of Selectmen of Provincetown1. F: Norcisa П claimed that her prosecution by the Town Δ for violation of

the Transient Vendor Statute was unconstitutional.

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2. R: Equity will enjoin a criminal prosecution only when such an injunction is necessary to avoid the material violation of a substantial right of the plaintiff, when it is determined that there is no adequate remedy at law, and that injunctive relief can be practically imposed without unduly burdening the criminal process.

c. Enjoining Crimes and Nuisancesi. Enjoining Nuisances

1. Harrison v. Indiana Auto Shredders Co.a. F: Indiana Auto Shredders Co. Δ operated a shredding plant for

the recycling of autos, and Harrison П brought suit to permanently enjoin the operation and for damages alleging nuisance from pollution.

b. R: A permanent injunction will not lie in a pollution nuisance case unless either the polluter seriously threatens public health or causes substantial nonhealth injuries where the business cannot be operated to avoid them.

2. Spur Industries, Inc. v. Del E. Webb Development Co.a. F: Spur Industries Inc. Δ operated a feedlot. It became a

nuisance after Del E. Webb’s П development expanded in its Δ direction.

b. R: Where a developer brings people to a preexisting business which thereby becomes a nuisance that is enjoined, the developer must indemnity the nuisance operator for his loss.

ii. Enjoining Crimes1. Meyer v. Seifert

a. F: Meyer П filed a bill in equity for a mandatory injunction to require the removal of a non-fireproof building erected by Seifert Δ within a fire zone in which the erection of such buildings was prohibited by city ordinances.

b. R: An injunction will issue against a criminal act if the legal remedy for the crime is inadequate and the crime causes interference with property or other equitably protectable interests in the plaintiff.

2. People v. Lima. F: Lim Δ, who reportedly ran a gambling house, contended that

the State П could not bring an action to enjoin the gambling house’s operation as a public nuisance because gambling was not considered a public nuisance under the California Civil Code.

b. R: The courts may not vest within themselves the power to declare the repetition of criminal acts a public nuisance.

IX. CONTRACT DAMAGESa. Introduction

i. Eastlake Construction Co. v. Hess1. F: Eastlake Construction Company П brought an action to recover

monies allegedly owing on a construction contract with Hess Δ, and Hess Δ counterclaimed, alleging damages for breach of contract.

2. R: The general measure of damages for breach of contract is that the injured party is entitled to recovery of all damages that accrue naturally

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from the breach and to be put into as good a pecuniary position as he would have if the contract had been performed.

ii. Gruber v. S-M News Company1. F:Gruber П, a greeting card manufacturer, contracted with S-M News

Company Δ to exclusively sell 90,000 sets of Christmas cards in a design which had been approved by S-M Δ and sued S-M Δ for breach of contract after S-M Δ refused performance.

2. R: If full performance by a defendant would have resulted in a loss to a plaintiff, then this loss must be deducted from plaintiff’s expenditures.

iii. Campbell v. Tennessee Valley Authority1. F: Campbell П entered into an unenforceable contract with the

Tennessee Valley Authority Δ and then sought reimbursement in quasi-contract when payment was refused.

2. R: The measure of damages in quasi-contract on a quantum meruit theory of recovery is the fair market value of the benefit conferred on the defendant.

b. Liquidated Damagesi. Boyle v. Petrie Store Corporation

1. F: Boyle П, who had been fired from his position as CEO of Petrie Stores Corp. Δ after only 2 months on the job, sought to enforce the liquidated damages clause in his employment contract.

2. R: So long as a liquidated damages provision is neither unconscionable nor contrary to public policy, it will be enforced as written.

ii. Truck Rent-A-Center, Inc. v. Puritan Farms 2nd Inc. 1. Puritan Δ broke a lease agreement to rent milk trucks from Truck Rent-

A-Center П. 2. R: A liquidated damages clause in a contract will be sustained if the

amount bears a reasonable proportion to the probable loss and if the actual loss is difficult to determine.

iii. Lake River Corporation v. Carborundum co. 1. F: Carborundum Co. Δ failed to ship the minimum quantity of its product

in breach of its requirements contract with Lake River Corp. П. 2. R: A minimum-guarantee clause in a requirements contract is

unenforceable as a penalty when it is unreasonable and disproportional to actual damages.

c. Land Sales Contractsi. Uzan v. 845 UN Limited Partnership **

ii. Donovan v. Bachstadt1. F: The Donovans П sued for both compensatory and punitive damages

when a defect in title prevented Bachstadt Δ from performing under the contract he had signed to sell them a particular piece of realty.

2. R: A buyer can recover benefit of the bargain damages when the seller breaches an executory contract to convey real property.

X. TORT DAMAGESa. Harm to Personal Property

i. Hewlett v. Barge Bertie1. F: Hewlett П was awarded nominal damages after his barge was denied

by Barge Bertie Δ.

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2. R: A plaintiff is entitled to the cost of repairs of damaged property up to the property’s market value at the time of the casualty.

ii. Roxas v. Marcos1. F: Former Philippine President Marcos Δ appealed from the judgment

for Roxas П, and Roxas П cross-appealed on the proper measure of damages for conversion by Marcos Δ of buried World War II gold treasure discovered by Roxas П.

2. R: The measure of damages in a conversion case, where the converted property fluctuates in value, is the highest value of the property between the time of conversion and the reasonable time after the person learns of such conversion.

iii. Lane v. Oil Delivery, Inc.1. F: Mr. and Mrs. Lane’s П house, jewelry, clothes, and furniture were

destroyed by a fire that was caused by Oil Delivery, Inc.’s Δ negligence.2. R: If personal property is destroyed through the defendant’s negligence,

and its market value cannot be determined, then the measure of damages is its actual or intrinsic value to the owner, excluding sentimental or fanciful value.

iv. Carbasho v. Musulin **v. Long v. McAllister

1. F: Long’s П automobile was damaged when McAllister’s Δ vehicle rolled down an incline and struck it.

2. R: If a motor vehicle is totally destroyed or the reasonable cost of replacement exceeds the market value of the vehicle after the injury, the measure of damages is the lost market value plus the reasonable use value of the vehicle for the period of obtaining a replacement.

b. Harm to Real Propertyi. Miller v. Cudahy Co.

1. F: Cudahy’s Δ salt mining operations resulted in Miller’s П inability to irrigate his farm.

2. R: The measure of damages for a temporary injury is the reasonable cost of repairing the property.

ii. Roman Catholic Church of the Archdiocese of New Orleans v. Louisiana Gas Serv. Co.

1. F: The Roman Catholic Church of the Archdiocese of New Orleans П appealed an award which did not fully compensate them for the cost of restoring a building that they owned which was damaged in a fire caused by Louisiana Gas Service Company Δ.

2. R: When a person sustains property damage due to the fault of another, he is entitled to recover damages, including the cost of restoration that has been or may be reasonably incurred, or, at his election, the difference between the value of the property before and after the harm. If, however, the cost of restoring the property in its original condition is disproportionate to the value of the property or economically wasteful, unless there is a reason personal to the owner for restoring the original condition or there is reason to believe that the plaintiff will, in fact, make the repairs, damages are measured only by the difference between the value of the property before and after the harm.

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iii. Laube v. Thomas1. F: After Laube П contracted to buy Thomas’ Δ farm, Thomas Δ cut down

and removed one hundred walnut trees that, according to the terms of the sale, were reserved for Laube П.

2. R: The proper measure of damages for the wrongful destruction of trees that have no special use is the commercial market value of the trees at the time of taking.

iv. Kroulik v. Knuppel1. F: Knuppel Δ removed gravel from land Kroulik П obtained by adverse

possession.2. R: The proper measure of damages for the appropriation of minerals by

a nonwillful trespasser is the value of minerals in place. v. Commonwealth of Puerto Rico v. The SS Zoe Colocotroni **

c. Personal Injury Damagesi. Frankel v. United States

1. F: Frankel П, guardian of Marilyn Heym, brought suit to recover for Marilyn’s injuries suffered in an auto accident concurrently caused by an employee of the United States Δ which left her permanently mentally incapacitated.

2. R: The negligence of one parent does not bar recovery by the other parent for the loss of services of their child or for medical expenses incurred in caring for him.

ii. Wilburn v. Maritrans GP Inc.1. F: Wilburn П sued to recover for damages he sustained when a huge

wave hit the ship on which he was working and swept him overboard during a storm.

2. R: A plaintiff may recover compensatory damages for loss of future earning capacity if he produces competent evidence suggesting that his injuries have narrowed the range of economic opportunities available to him. The evidence, however, must be sufficient to support an award of damages.

iii. Healy v. White1. F: The father of seven-year-old Healy П was awarded damages for

future medical and education expenses to be incurred because of a car accident caused by White Δ.

2. R: A damage award for future expenses is valid if supported by sufficient evidence.

iv. Debus v. Grand Union Stores of Vermont1. F: Debus П sued Grand Union Stores of Vermont Δ when a pallet of

boxes full of cans of pet food fell on top of her. 2. R: Per diem damage arguments to the jury are allowed and are not

overly prejudicial if they are made under the ordinary supervision and control of the trial court.

v. White Construction Co. v. Dupont1. F: After Mrs. Dupont’s П husband suffered permanent disability from

being run over by a loader, Mrs. Dupont П was awarded $1,026,000 in damages for loss of consortium.

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2. R: A wife in a loss of consortium action may not recover damages for the tangible loss of support or savings which the husband might recover in his own right.

d. Damages for Inquiries Resulting in Deathi. Moragne v. States Marine Lines, Inc.

1. F: After Moragne, a longshoreman, was killed while working aboard a vessel, his wife Moragne П, filed a wrongful death action against States Marine Lines, Inc. Δ the vessel’s owner.

2. R: An action lies under general maritime law for death caused by violation of maritime duties.

XI. LIMITATIONS ON COMPENSATORY DAMAGESa. Foreseeability

i. Redgrave v. Boston Symphony Orchestra1. F: After protests arose over Vanessa Redgraves support of the Palestine

Liberation Organization, the Boston Symphony Orchestra canceled her scheduled performance at the BSO.

2. R: A professional performer may receive consequential damages if she proves with sufficient evidence that a breach of contract proximately caused the loss of identifiable professional opportunities.

ii. Sprang Industries, Inc. v. The Aetna Casualty and Surety Co.1. F: When Torrington Construction Co.’s bid was accepted for the

construction of a highway, it subcontracted with Sprang П for the delivery of steel for its construction needs. Sprang’s П subcontractor delayed in unloading the steel, forcing Torrington to perform the work itself. Torrington sued for damages caused by Sprang’s П delay in performance.

iii. Evra Corp. v. Swiss Bank Corp. 1. F: Evra П sued Swiss Bank Δ for consequential damages caused by the

Bank’s Δ failure to electronically transfer funds upon Evra’s П request. 2. R: A party may not recover consequential damages when such were

consequences of the defendant’s negligence which were avoidable by the plaintiff.

b. Certaintyi. Cannon v. Yankee products Co., Inc.**

ii. Youst v. Longo**c. Avoidable Consequences

i. Rockingham County v. Luten Bridge Co.1. F: Shortly after awarding Lutten П a contract to construct a bridge, the

County Δ canceled the contract. 2. R: After an absolute repudiation or refusal to perform a contract by one

party to a contract, the other party cannot continue to perform and recover damages based on full performance.

ii. Parker v. Twentieth Century-Fox Film Corporation1. F: After Twentieth Century-Fox Δ failed to honor its agreement to Parker

П to star her in a locally produced musical, it offered her a starring role under essentially the same terms in a “western” to be filmed in Australia.

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2. R: Where an employer offers different or inferior substitute employment to a wrongfully discharged employee, the employee retains the right to reject the offer without having the possible earnings of the offered substitute employment charged against him in mitigation charges.

iii. Garcia v. Wal-Mart Stores Inc.1. F: Garcia П sued Wal-Mart Δ for injuries she sustained after being

knocked over by a cart, and Wal-Mart Δ appealed based on the district court’s failure to include language on mitigation of damages in instructions to the jury.

2. R: Mitigation of damage instructions do not need to be given when a plaintiff cannot afford the recommended treatment which would have mitigated the damages or when it would not have been reasonable for the plaintiff to employ another to do her job in an attempt to mitigate economic damages.

iv. Lobermeier v. General Telephone Company of Wisconsin1. F: Lobermeier П sustained a ruptured eardrum while talking on GTE’s Δ

telephone as a result of a lightning-induced electrical charge.2. An injured party is obligated to exercise that care usually exercised by a

person of ordinary intelligence and prudence, under the same or similar circumstances, when deciding to seek or to forego medical treatment.

d. Collateral Source Rulei. Helfend v. Southern California Rapid Transit Dist.

1. F: Helfend П claimed damages for personal injuries suffered in the collision of an RTD Δ bus with his auto.

2. R: If an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which he would otherwise collect from the tortfeasor.

ii. Hueper v. Goodrich1. F: Hueper П sued Goodrich Δ to recover medical expenses gratuitously

rendered to his minor son, who injured in a car accident.2. R: the collateral source rule is applicable to derivative claims of parents

for gratuitous medical services provided to their minor children. XII. RESTITUTIONARY REMEDIES

a. The Unjust Enrichment Concepti. Pyeatte v. Pyeatte

1. F: Mrs. Pyeatte П contended that Mr. Pyeatte Δ was responsible in restitution for the value of his education, which was subsidized by her.

2. R: Restitution based on quasi-contract is available if services were rendered pursuant to an expectation of compensation therefore.

ii. Cross v. Berg Lumber Co.**iii. Monarch Accounting Supplies, Inc. v. Prezioso

1. F: Monarch Accounting Supplies Inc. П leased an office building from Prezioso Δ, who subsequently leased a portion of the same premises to another party.

2. R: The measure of damages under the doctrine of unjust enrichment is the net benefit received by the defendant.

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b. Benefits Acquired by Agreement or Mistakei. Alder v. Drudis

1. F: After Alder П invented a three-dimensional motion picture device known as a polyscope, he contracted with Drudis П to finance the development of the device.

2. R: The plaintiff seeking restitution may return any consideration he has received in order to receive restitution.

ii. Kelner v. 610 Lincoln Road, Inc.1. F: After 610 Lincoln Road’s Δ jewels were stolen in a burglary, Kelner П,

an attorney, was retained on a contingency fee basis to recover insurance proceeds for the jewels.

2. R: An attorney’s recovery is not limited to quantum meruit where the attorney is employed on a contingency fee basis and discharged by his client without cause.

iii. Rosenberg v. Levin1. F: Rosenberg П contended he could recover in quantum meruit for his

work as Levin’s Δ attorney, as such recovery was not limited by the amount called for in their employment contract after Rosenberg П was discharged without cause.

2. R: An attorney discharged without cause may recover in quantum meruit only the maximum fee called for in his contract.

iv. Ward v. Taggart1. F: A real estate broker falsely purporting to represent a seller failed to

submit a buyer’s offer but instead purchased the land for himself at a lower price and immediately resold it at a substantial profit to the buyer.

2. R: By waiving the tort and suing in assumpsit, a defrauded individual may recover the defrauding individual’s unjust enrichment in quasi-contract, as well as exemplary damages where appropriate, as a deterrent.

v. Winslow, Cohu & Stetson, Inc. v. Showronek1. F: Winslow, Cohu & Stetson, Inc. П brokers, sought to recover the value

of securities which were inadvertently registered in Showronek’s Δ name and delivered to Showronek Δ who, through no wrongdoing, sold the securities and made a substantial profit.

2. R: Under the doctrine of unjust enrichment, a broker is entitled to a constructive trust of the sale proceeds of stock mistakenly delivered to a client who innocently sells the stock, realizing a substantial profit.

c. Waiver of Tort and Suit in Assumpsiti. H. Russell Taylor’s Fire Prevention Service Inc. v. Coca Cola Bottling Corp.

1. F: When Coca Cola Bottling Corp. Δ failed to return certain cylinders owned by Russell Taylor’s Fire Prevention Service, Inc. П, Taylor П sued Coca Cola Δ for the cylinders or their value, even though more than three years had expired since Coca Cola’s Δ failure to return Taylor’s П property on demand.

2. R: The appropriate statute of limitations for timely filing of a claim upon an alleged breach of implied contract of sale is the four-year period set forth in the California Commercial Code §2725(1).

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ii. Felder v. Reeth1. F: Reeth Δ was sued for the value of various goods for which he did not

pay but counterclaimed, alleging that Felder П wrongfully took possession of his hydraulic plant, converted it to his own use, and sold it.

2. R: Where, in a case of conversion, the tort is waived and the action is treated as a sale, the measure of damages is the market value of the property upon resale by the wrongdoer.

iii. Olwell v. Nye & Nissen Co.1. F: Nye & Nissen Co. Δ used Olwell’s П egg washing machine without the

owner’s permission or knowledge in order to make up for a manpower shortage during World War II.

2. R: If the wrongdoer is consciously tortious in acquiring a benefit at the expense of the injured party, he is liable for what the injured has lost and is deprived of any profit he may have gained.

d. Constructive Trusti. County of Cook v. Barrett

1. F: Alleging that Barrett Δ, a former client, received bribes during his tenure as Clerk, the County of Cook П sought an accounting of the amounts received by Barrett plus a constructive trust on behalf of county citizens.

2. R: A constructive trust and an accounting are appropriate equitable remedies to elicit detailed information regarding alleged bribes received by an elected official and to recover such funds by a government body that is the elected official’s employer.

ii. Stauffer v. Stauffer1. F: When the facts of his adulterous relationship became known to his

wife, Mr. Stauffer П agreed to transfer their joint property of land and house to Mrs. Stauffer Δ for $1 at the insistence of Mrs. Stauffer Δ.

2. R: Even in the absence of a confidential relationship, a repentant spouse is entitled to reconveyance of property through the remedy of a constructive trust where the other spouse is unjustly enriched because of undue influence.

iii. Simonds v. Simonds1. F: Contrary to the terms of the separation agreement, Frederick

Sidmonds failed to maintain a life insurance policy with his first wife, Mary Sidmonds П as the beneficiary while Frederick’s second wife Δ and daughter Δ were innocent beneficiaries of other policies.

2. R: If an insured, upon lapse or cancellation of insurance, followed by replacement with new insurance, has a contractual obligation to designate a particular person as beneficiary, equity will consider the obligee as a beneficiary and will prevent unjust enrichment of other innocent beneficiaries through a constructive trust.

iv. Brand v. Lipton1. F: Brand П sued for the imposition of a constructive trust upon Jets

season tickets as he had Donnenfeld Δ refused to distribute the tickets as he had promised he would prior to gaining control over the tickets.

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2. R: A motion to dismiss an action for a constructive trust upon tickets will be denied if a party agrees to act as constructive trustee, to administer the tickets, and the transfer of the tickets was made in reliance on that promise which was subsequently breached.

e. Equitable Liensi. Middlebrook v. Lonas

1. F: Middlebrooks П sought imposition of a constructive trust on the proceeds of a loan she made to the Lonases Δ, who refused repayment.

2. R: A promise to repay a loan without a present intent to do so constitutes a fraud and allows for imposition of a constructive trust.

ii. Robinson v. Robinson1. F: Ann Robinson П, divorcing Wylie Robinson Δ, asserted rights in

property belonging to Wylie’s Δ parents, Earl Δ and Alice Δ, on which Ann П and Wylie Δ had made improvements.

2. R: One permitting another to make improvements on his property is liable for the value thereof.

XIII. LIMITATIONS ON RESTITUTIONARY REMEDIESa. Tracing

i. G & M Motor Company v. Thompson1. F: Thompson Δ embezzled money from G & M П, his employer, using a

portion of these funds to pay premiums on a life insurance policy, and the trial court imposed a constructive trust on the insurance proceeds.

2. R: Where a portion of the premiums of a life insurance policy is paid with wrongfully acquired money, the original owner of that money is entitled to share proportionately in the proceeds of the policy.