REMEDIES

Thomas Jefferson School of Law

Summer 2002

Prof. Berenson

Utilizing Modern Remedies by Weaver, Strachan, Partlett, Lively, and Lawrence

Joseph M. Burello

 

I.                     OVERVIEW

A.      Introduction

-          The study of judicial civil remedies is about what lawyers and courts can actually do to help someone who has been, or is about to be, wronged.

B.      Classifications of Remedies

                                                             1.      Substitutionary versus Specific Remedies

-          Substitutionary remedies occur when P receives money as a substitute for the right which was violated.

-          Specific remedies operate to restore to P the exact item or state of being of which she was wrongfully deprived.

-          Specific and substitutionary relief are not necessarily alternatives; it is often necessary to award both specific and substitutionary relief in order to make P completely whole.

                                                             2.      The Four Major Remedial Categories: Damages Remedies, Coercive Remedies, Declaratory Remedies, and Restitutionary Remedies

a.        Damages Remedies

-          Damages are substitutionary remedies. The primary forms are compensatory damages and punitive damages. Other forms include nominal, statutory and liquidated damages. See page 3 for descriptions of each form.

b.        Coercive Remedies

-          Coercive remedies are specific remedies and are capable of being enforced through the court’s contempt power. Coercive remedies are the most effective and powerful remedies wielded by the courts today.

-          The primary forms of coercive remedies are injunction and specific performance. When the court orders to do something it is a mandatory injunction. When it orders someone to refrain it is a prohibitory injunction.

-          The goal or purpose of coercive remedies is to prevent irreparable harm before it occurs.

c.        Declaratory Remedies

-          Declaratory relief is neither substitutionary nor specific, in that no court order or directive results from the action.

-          The goal or purpose of declaratory relief is simply to provide an authorative pronouncement regarding the rights, obligations or legal relationship of the parties.

d.        Restitutionary Remedies

-          The primary specific forms are constructive trust, equitable subrogation, rescission and reformation, accounting for profits, ejectment and replevin. The primary substitutionary forms are equitable lien and quasi contract.

-          The goal and purpose of restitutionary remedies is to prevent defendant’s unjust enrichment, by making defendant give back that which defendant wrongfully or unjustly gained at plaintiff’s expense.

                                                             3.      Legal versus Equitable Remedies

-          The distinction between the two still makes a difference in five contexts. See page 7.

                                                             4.      Provisional versus Final Remedies

-          Provisional injunctive relief, in the form of a preliminary injunction or temporary restraining order, can provide critical protection pending trial on the merits to a plaintiff who makes a very strong showing of the need for such extraordinary relief.

-          Obviously, they can only be justified in exigent circumstances to prevent irreparable harm from occurring before the merits of who’s right and who’s wrong can be adjudicated.

C.      Enforcement of Remedies

-          All a money judgment really gives a victor is an adjudication of liability entered into the official record. Nothing happens, unless P takes further action.

-          Coercive remedies are “in personam” commands which, if not obeyed, can subject D to contempt penalties such as stiff fines or jail, until she obeys the court’s commands.

-          Courts also use the contempt power against lawyers, litigants and witnesses to protect dignity and order in the courtroom.

D.      Choice of Remedies

-          One reason why good lawyers always think, early on, about rights and remedies is that in the vast majority of cases there are alternative claims, legal theories and remedies available – some of which are inconsistent with each other or could become unavailable if the putative P is not carefully advised.

II.                   EQUITY AND EQUITABLE REMEDIES

A.      A Historical Perspective

                                                              1.      The merger of law courts and equity courts did not eliminate the use of equitable remedies or the limitations and conditions applicable top those remedies.

                                                              2.      Over time, as equity courts heard more petitions, they began to develop “rules” or “maxims” governing equitable relief.

a.       He who comes into equity must come with clean hands;

b.       He who seeks equity must do equity;

c.        Equity is a court of conscience;

d.       Equity does not suffer a wrong to go without a remedy;

e.        Equity abhors a forfeiture;

f.         Equity regards as done that which ought to be done;

g.       Equity delights to do justice and not by halves;

h.       Equitable relief is not available to one who has an adequate remedy at law;

i.         Equitable relief is discretionary;

j.         Equity aids the vigilant, not those who slumber on their rights;

k.       Equity regards substance rather than form;

l.         Equity acts in personam;

m.      Equity is equality;

n.       Equity follows the law;

o.       Equity will not aid a volunteer;

p.       Where the equities are equal, the law will prevail;

q.       Equity imputes an intent to fulfill an obligation;

r.        Where the equities are equal, the first in time will prevail.

B.      The Development of Equity in the United States

                                                              1.      With merger, most jurisdictions have abolished distinctions between legal and equitable actions. Rule 2 of the Federal Rules of Civil Procedure is illustrative providing that “there shall be one cause of action known as the ‘civil action.’”

C.      Equitable Remedies Today

                                                             1.      Standards for the Availability of Equitable Relief

a.        Conscience and Equity

a.        Equitable remedies are only available when “equity” and “conscience” demand them. Court’s use the maxims as well as their own sense of morality.

b.        Equitable Remedies Are Granted In Personam

a.        When a court renders an “in personam” judgment, it orders the defendant to do, or refrain from doing, some act. A defendant who refuses to comply can be held in contempt and subjected to prison or fine.

c.        Inadequacy of Legal Remedy/Irreparable Harm

a.        Equitable relief is not available except when plaintiff’s legal remedy is inadequate. This principle is also known as the “irreparable harm” requirement.

b.       CASE: Fortner v. Wilson, (1950). Fortner’s rule was codified in Uniform Commercial Code, § 2-716: “specific performance may be decreed where the goods are unique or in other proper circumstances.”

c.        CASE: Schiller v. Miller, (1993). Injunctions may not be granted for the retention of personal property unless it is found to be unique or otherwise peculiar, and unless the plaintiff demonstrates that there is no adequate remedy at law.

d.       There is no general rule for determining when harm is or is not irreparable, in some circumstances equitable relief is so routinely granted that categories of inadequacy have emerged. The basic categories are:

                                                                                                                                       i.      Inability to restore or buy a substitute with money. This category is comprised primarily of property which is unique or unduly difficult to replace with an equivalent or important personal interest or civil rights.

                                                                                                                                      ii.      Absence of other remedy.

                                                                                                                                    iii.      Damages are too difficult to estimate.

                                                                                                                                    iv.      Problems with collecting a money judgment.

                                                                                                                                     v.      Multiple judicial proceedings will be necessary.

                                                                                                                                    vi.      Other procedural or practical difficulties with legal remedies (e.g., pre-trial delay, jurisdictional problems, immunity rules, etc.).

d.        Equitable Relief is Discretionary

a.        A court may deny equitable relief even though plaintiff’s legal remedy is inadequate.

b.       CASE: Georg v. Animal Defense League, (1950). Even though the presence of the proposed animal shelter may result in some annoyance to appellants, their remedy is not by way of injunction but they are relegated to an action for damages.

c.        CASE: Grossman v. Wegman’s Food Markets, Inc., (1973). Contracts which require the performance of varied and continuous acts will not, as a general rule, be enforced by courts of equity, because the execution of the decree would require such constant superintendence as to make judicial control a matter of extreme difficulty.

D.      Equitable Defenses

                                                             1.      Unclean Hands Doctrine

a.        The “unclean hands” doctrine states that “he who comes to equity must come with clean hands.” Equity will deny relief to a plaintiff who comes with “unclean hands.”

b.       CASE: Sheridan v. Sheridan, (1990). No one shall be allowed to benefit by his own wrongdoing, nor enrich himself as a result of his own criminal acts.

c.        CASE: Seagirt Realty Corp. v. Chazanof, (1963). Exception to unclean hands. The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains.

d.       CASE: American University v. Wood, (1920). A court of equity is a court of conscience, and will exercise its extraordinary powers only to enforce the requirements of conscience. It is no part of its function to aid a litigant in the promotion of a fraud upon the public.

e.        “Unclean hands,” includes all misconduct and wrongdoing that is sufficiently related to the plaintiff’s claim. Almost any conduct considered to be unfair, unethical or improper – including, of course, the illegal – can be raised as a bar against equitable relief.

                                                             2.      Unconscionability

a.        Since equity developed as a “court of conscience,” courts feel free to deny equitable relief on the grounds of conscience.

b.       CASE: Campbell Soup Co. v. Wentz, (1948). The contract involved is too hard a bargain and too one-sided an agreement to entitle the plaintiff to relief in a court of conscience.

                                                             3.      Laches

a.        Laches is any unreasonable delay by the plaintiff in instituting or prosecuting an action under circumstances where the delay causes prejudice to the defendant.

b.       CASE: Stone v. Williams, (1989). Plaintiff in asserting her rights was guilty of unreasonable delay that prejudiced the defendant because there was no excuse for the delay in filing suit and evidence was lost.

c.        CASE: City of Eustis v. Firster, (1959). The test of laches is whether there has been a delay which has resulted in the injury, embarrassment, or disadvantage of any person, but particularly the persons against whom relief is sought.

d.       CASE: Nahn v. Soffer, (1991). In determining whether the doctrine of laches applies in a particular case, an examination is made of the “length of delay, the reasons therefor, how the delay affected the other party, and the overall fairness in permitting the assertion of the claim.”

                                                             4.      Estoppel

a.        Estoppel is a doctrine that can be used both offensively and defensively.

b.       CASE: Feinberg v. Pfeiffer Company, (1959). A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promise and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.

c.        CASE: O’Sullivan v. Bergenty, (1990). Any claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury.

E.       The Right to Trial by Jury

                                                              1.      CASE: Dairy Queen, Inc. v. Wood, (1962). Where both legal and equitable issues are presented in a single case, only under the most imperative circumstances, circumstances which in view of the flexible procedures of the Federal Rules we cannot now anticipate, can the right to a jury trial of legal issues be lost through prior determination of equitable claims.

                                                              2.      CASE: Ross v. Bernhard, (1970). The right to jury trial attaches to those issues in derivative actions as to which the corporation, if it had been suing in its own right, would have been entitled to a jury.

                                                              3.      CASE: C & K Engineering Contractors v. Amber Steel Company, Inc., (1978). Because plaintiff’s suit for damages for breach of contract was based entirely upon the equitable doctrine of promissory estoppel, the gist of the action must be deemed equitable in nature and, under well established principles, neither party was entitled to a jury trial as a matter of right.

III.                 Enforcement of Equitable Decrees

A.      Contempt Defined

                                                              1.      “Contempt” is broadly defined as an offense against the dignity of a court.

                                                              2.      CASE: In re Little, (1972). The vehemence of the language used in court is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.

B.      Civil v. Criminal

                                                             1.      Civil and Criminal Contempt Distinguished

a.        CASE: United States v. Professional Air Traffic Controllers Organization, (1982). The purpose of a criminal contempt proceeding is the vindication of the court’s authority by punishment through the fine or imprisonment of the contemnor for his past conduct. Civil contempt proceedings are for the purpose of coercing compliance with the orders of the court and/or to compensate complainant for losses sustained by defendant’s noncompliance. A definite fine which is neither compensatory, nor conditioned on future violations of the court order is punitive and can be imposed only in criminal contempt proceedings.

b.       CASE: Yates v. United States, (1957). When a witness is jailed for civil contempt, it is inappropriate to hold the witness in jail after the grand jury’s term ends. Since the witness can no longer purge the contempt, no coercive reason remains for keeping the witness in jail. However, the judge may hold the witness in criminal contempt, and impose a punishment for a continued refusal to testify.

c.        CASE: Bagwell v. International Union, (1992). The punishment, whether fine or imprisonment, is deemed to be criminal if it is determinate and unconditional, and such penalties “may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings.” The punishment is deemed to be civil if it is conditional, and a defendant can avoid such a penalty by compliance with a court’s order. Civil contempt sanctions are either compensatory or coercive. Compensatory, civil contempt sanctions compensate a plaintiff for losses sustained because a defendant disobeyed a court’s order. Coercive, civil contempt sanctions are imposed to compel a recalcitrant defendant to comply with a court’s order.

                                                             2.      Civil Contempt Damages

a.        CASE: Time-Share Systems, Inc. v. Schmidt, (1986). If any actual loss or injury to a party in an action or special proceeding, prejudicial to his right therein, in caused by such contempt, the court or officer, in addition to the fine or imprisonment imposed therefore, may order the person guilty of the contempt to pay the party aggrieved a sum of money sufficient to indemnify him and satisfy his costs and expenses, including a reasonable attorney’s fee incurred in the prosecution of such contempt. Indemnity must be based on proof of damages actually suffered or it cannot be sustained.

b.       CASE: Vermont Women’s Health Center v. Operation Rescue, (1992). When imposed as a coercive sanction, the fine must be purgeable – that is, capable of being avoided by defendants through adherence to the court’s order. Further, the situation must be such that it is easy to gauge the compliance or noncompliance with an order. The fine will be due only upon a further violation of the injunction by one of the class of persons to which it is directed, with service or actual notice of its provisions.

C.      Procedural Requirements

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