Download Remedies in Law: Breach of Contract, Personal Injury, and Contempt and more Exams Law in PDF only on Docsity!
' : -'='
J (^) Final LAW75001 Remedies Rebecca Cochran
Question 1:
Cooper could bring a cause of action based on breach of contract pursuant to the written agreement that Cooper and Winter had entered into. Cooper would first attempt to go after specific performance of the contract in order to get the painting for the $500., In order to justify a remedy for specific performance eight specific things must be met. First there must be a valid contract with offer, acceptance, and consideration, all of which were present in this case. Second, the terms of the contract must be specific enough for it to be specifically performed as it was in this case, the specific painting in exchange for $500. Third, the plaintiff must be ready and willing to cQmplete his end of the bargain, which Cooper was willing to do as he had returned with $500 to pay for the painting. Fourth, the defendant must be able to specifically perform, becuase Winter still had the picture he was clearly able to still perform. Fifth, there must be .an inadequate remedy at law, which poses a bit of a problem for Caoper, legal damages in the form of expectancy or reliance damages may be possible to remedy the problem. Hawever, Cooper could successfully aruge that because this is a unique painting that will appreciate in value over time, legal damages are an inadequate remedy because they wauld not be able to determine how much appreciation wauld take place and would be very attenuated. Sixth, there must be irreparable harm, which Cooper is likely to meet seeing as there are no other paintings like this one because it is the only one. In fact, UCC 2-716 states that specific performance on sale of goods requires that they be either "unique, or other proper circumstances." This is clearly a unique itetm in this case because it is an origional painting and only one of them exist. A unique item is .one that is one of a kind, which this original painting clearly is. Seventh, the court must consider a balancing test as to the harm to each of teh parties in granting the equitable releif in the form of specific releif. In this case, this could pose to be a problem because Cooper stands to get a great benefit of $349,500 for only $500 paid to Winter. Finally, the court must consider any public intersts that may be involved in this case but it really does not come into play. Although Cooper will most likely be able to establish all of these elements for specific performance, it is unlikely that he will win on the case because of the many defenses that Winter can raise. Cooper could also pursue a legal remedy in the form of damages. The general rule of damages is expecdtancy measure of damages, which puts the non-breaching party in as good of a position as he would have been in had the contraCt been performed. In this case, had the contract been performed Cooper would have maintained a paitning that was worth $350,000 and most likely going to appreciate over time. Therefore expectancy damages would have to project the future appreciation of hte painting. Although it is likely that he can maintain a cause of action for breach of contract
raised. (,
, it is unlikley that Cooper will win because of the multiple defenses that can be
Winter can raise a number of equitable defenses to rebut Cooper's claim seeking the equitable remedy .of specific performance, particularly unclean hands and unconscionability. Winter can first raise the defense of unclean hands. The equitable defense of unclean hands is based on the equitable maxim that "one seeking equity must do equity." Therefore, one that comes to court seeking equity cannot have performed an act in bad faith in order to bring about teh cause of action seeking the
'"
Final LAW75001 Remedies Rebecca Cochran
equitable remeqy. This unclean/bad faith act had to have taken place before the cause of action was brought, it must be substantial in nature, and it must be intimately related to the cause of action at hand. In this case Cooper clearly came to court with unclean hands by witholding the fact that he knew what the painting was potentially worth, he cannot under this defense seek equitalbe relief in the form of specific performance because of his bad faith action. Winter can also raise the defense that this was not a valid contract due to unconscionability. Unconscionability is a defense that only pertains to contracts but it can be applied to both equitable and legal cliams. Therefore, this defense can rebut both of the remedies that Cooper is seeking. Unconscionability can raise in either of 2 ways: (1) where there are substantially unequal bargaining powers between the parties, or (2) where there are substantially unequal terms of the contract. This case falls more into the latter of the two. Given the qross differnece between the $500 offered by Cooper for the painting and its worth of $350,000 the contract terms are clearly unconscionable. Furthermore, it can also be argued that there were unequal bargaining powers given the fact that Cooper had a great knowledge of art whereas Winter clearly did not.
Question 2:
2 types of personal injury actions arise upon the death of an individual that result in legal damages. The first, which is provided for by Ohio Revised Code 81.01 is a survival action, the other, provided for by Ohio Revised sections 71.01 and 71.02 is a wrongful death action. Survial actions are an action brought by the estate of the decedent for the injuries and damages that the decedent suffered between the accident/event and his ultimate death. In other words, this is an existing action on behalf of the decedent, not a new cause of action, which according to the statute as well as the majority of common law will pass to the heirs of his estate as determined either by his will or by the intestacy statute. Tyler Guthrie is an heir of the decedent, James Guthrie, therefore, according to the statute he may bring a cause of action on behalf of the estate for the damages that James Guthrie suffered between the accident and his ultimate demise three weeks later. These damages include general damages such as pain and suffering, as well as special damages such as medical bills and lost wages. However, it has been determined that lost wages must be something that is determinable based on past history of the business. Because this is a new business, it will be difficult to determine any of the wages that would have been ascetained as a result of it. However, if James Guthrie did maintain his job at Wright State, those wages for the three weeks that he was unable to work can be collected. ~. The defense may be raised that because James Guthrie was in a coma for those three weeks he did not suffer any pain because he was unconscious and not aware of what was going on. Furthermore, the defense can be raised that the medical bills were paid by the insurance company therefore there were no such damages suffered. Wrongful death actions on the other hand, are a separate cause of action which is brought by a surviving spouse, child, or parent of the decedent. This separate cause
Final LAW75001 Remedies (^) Rebecca Cochran
unconditional fines or jail terms to punish the defendant for his/her violation of the court order (injunction). Coercive civil contempt on the other hand is remedial as opposed to puntive in nature. It is an attempt to coerce the defendant to comply with the injunctive court order as opposed to punishing him/her for their violation. In the case at bar, it will most liklely be found that the contempt that was issued on April 12, April 20, and April 24 as a result of Andy Lorenzi's defiance of the injunction were indirect crimin,al in. nature as opposed to coercive civil. The judge was clearly punishinq Andy Lorenzi for
his defiance of the court order. He was issued an unconditional fine of $100 on April 12,
and then another unconditional punitive fine on April 20 in the amount of $200. Although the judge did warn Lorenzi that another infraction would result in another fine of $500 and 30 days of jail time this is still punitive in nature. Just like any crime that woudl result in punishment as a result of defiance this cannnot be declared coercive simply because the court warned him that he could avail himself simply by compying with the order. Ultimatley this fine of $500 and 30 days of jail time were imposed. As a result of this most likleybe classified as indirect criminal contempt, Andy Lorenzi will be afforded due process rights. The form of due process rights afforded to , one that is being charged for indirect criminal contempt depend on the severity of the punishment. Contempt that is punishable by more than 6 months, results in the defendant being afforded (1) notice, (2) right to counsel, and (3) right to a trial by jury. However, crimes that result in punishment for less than 6 months result in the (1) right to noice, (2) right to counsel, and (3) the right to a hearing as o'pposed to a jury trial. In this case Andy Lorenzi was given the $500 fine and 30 days in jail for his defiance of the order, therefore he will not be afforded the right to jury trial, but instead only to right to a hearing. Although the judge also sentenced him to six months in jail, this was as a result of his direct criminal contempt in the presence of the court not for his indirect criminal contempt of violating the order. The actions that occurred in court on April 24 were direct criminal contempt. Direct criminal contempt occurs where the defendant mocks the court "in the presence of the court." Although not all of it must happen directly in front of the judge, the judge must issue a written finding of what he/she witnessed in the court in order for a direct criminal contempt order to be valid. Courts have determined that "in the presence of the court" can extend as far as the halls of the court and some even say that it carries with the jurors. However, in this case we are not dealing with such a removed situation but rather a criminal contempt that happened right in front of the judge and was in fact directed at the judge. Direct criminal cQntempt is not entitled to a jury trial and can be sentenced and punished on a summary proceeding. Therefore, the 6 month jail term that was imposed for the direct criminal contempt will most likely stand despite the fact that no jury trial was afforded. The validity of an underlying injunction for a trespass does not impact punishment in the form of criminal contempt. In other words, one may not entitle themselves to self help by defying an injunction order simply because they think it was unjustly issued. Criminal contempt will stand despite the fact that the underlying injunction is later overturned, because it is punishing the actual defiance of the court. Civil contempt on the other hand, will not surive if the the underlying injunction is found to be invalid. The theory is that civil contempt is to remedy a wrong that was caused to the private plaintiff, but if the injunction was issued in err to begin with, the private plaintiff suffered no damages to base a claim of civil contempt on.
Final LAW75001 Remedies Rebecca Cochran
Question 4:
The main remedy that Clarence Peterson can go after as a result of May's actoins is for restitution pursuant to May being unjustly enriched. Unjust enrichement/restitution can serves as its own substantive claim, usuually as a claim for quasi-contract/implied in law contract, or it an float around and attach as a remedy to traditional legal or equitable claims. In this case it is likely that the claim to be brought will be the equitable claim for breach of a fidicuary duty. BEcause May was Clarence's attorney she owed a fidicuary duty to him, which she clearly breached upon embezzling. A legal claim may also be brought for embezzlement. Under either of these approaches, because May is insolvent, Clarence will want to pursue the remedy of unjust enrichment/restitution, as opposed to personal damages agaisnt May. Restitution/unjust enrichment can be awarded where the (1) defendant retained a benefit at the expense of the plaintiff and (2) it would be unjust or inequitable for that benefit to be retained by the defendant. In this case it is clear that these 2 eleements were met, where May unjustly retained 20,000 of Clarence's money. However, there are limitations to being afforded a resetitutionary remedy. First and foremost, the unjustly retained benefit must be able to be traced. This becomes a big problem in this given the many different changes that it took. The first 10,000 that was invested into the Old Second Bank account was co-mingled with other funds and the bank account was used extensively. However, three different presujmptoins have been created in order to deal with the tracing problem involved in co-mingled accounts. The first is the "first in first out" rule. Under this rule, whatever was first put into the account will be assumed to have come out first upon expeniture. Thereofre under this appraoch because the unjustly retained 10,000 was put in after May's personal funds, the court will presume that these personal funds came out first, leaving Clarence's
10,000 in tact in the account. Under this appraoch, an equitable lien would be the
appropriate remedy to impose. An equitable lien is appropriate where we know the amount that is unjustly retained but not necessarily where all of it is. INI this case we do nto know how much she had in the account before hand or how much is in teh acocnt now, therefore an equitalble lien would be appropriate becuse we do know that she unjustly retained 10,000. Under the second approach the "jessel's bag" appraoch the court presumes that whatever money comes out of the co-mingled account is from the personal assets of the defendant, leaving the 10,000 in tact in the account. Again, it would still be more appropriate to issue an equitalbe lien in this case because dont necesasrily know how much was in the bank account before the 10,000 was put in or how much is now left in it. Finally, under the "Restatement" approach, the entire co- mingled account is considered to be entitled to the plaintiff on an unjust enrichemnt cliam. This is very pro-plaintiff, and under this approach a constructive trust would be more appropriate. Because the plaintif is entitled to the bank account in whole, the defendant becomes the trustee and holds the entire bank account in trust for the plaintiff who becomes the eneficiary. Ultimatley, constructive trusts are appropriate where the asset is severable, and equitalbe liens are appropriate where the unjust enrichment is not severable. Another limitation that arises is the bona fide purchaser. This comes up concerning the second 10,000, particularly the part that was used to purachse the A TV
T~ Final LAW75001 Remedies Rebecca Cochran
noted that a strong case can be made that the overall essence of the case resonates in legal damages for the emotional distress that she suffered and a chance to make her whole again, which would thus entitle her to a jury trial. On the other hand, Under the Federal Approch, the individual issues are parceled out and handled in their respective forms. In other words, first the legal claims will be tried by a jury and then the judge alone will rule on the equitable claims. Furthermore, any factual determinations that relate to both legal and equitable claims will be determined by the jury before the judge makes any equitable determinations, and the judge will be bound by those factual determinations of the jury. Therefore, under this case the legal questions concerning the emotional distress will be decided by the jury first. ONcde that decisoin has been made, the judge will then make a ruling on the equitlable claims concerning reinstatement of Clarie's position and the claim for backpay.
[2] The general rule is that attorney's fees are not to be awarded, however they may be awarded by contract, common law, litigation for public interest, or by statute. In this case, the statute provides for attorney's fees, therefore we will be able to claim them. In order to make a claim for attorney's fees we will have to prove that we were (1) a prevailing party, and (2) the reasonable costs. To be a prevailing party, there must be a material alteration in the relationship between the parties based on the merits of the case. This does not necessarily have to be a win in court, it can also be based on a settlement decree. Therefore we will have to put forth evidence proving our win of some sort. Secondly, the reasonable costs are determined by the "lodestar" amount, which makes a presumption that the appropriate attorneys' fees are: the reasonable amount of hours to litigate the case multiplied by the reasonable price per hour to litigate the case. In order to establish the lodestart amount, we will want to submit to the court any records we have concerning the amount of time spent on the case, the cost per hour, the size of our firm, the length of discovery and pleadings that we performed, as well as evidence of the difficulty of litigating the claim that was brought. Finally, the court may in its discretion adjust the attorneys fee award based on the degree of the win in this case. Therefore, we will want to submit evidence to the court that the main claim in this case was to get Claire reinstated and her backpay. Therefore showing that upon winning on this claim we substantially achieved our goal and that a loss on Claim II is not a very significant factor in this case. By proving that Claim I was the main goal we will show to the court that we had a great degree of win and therefore potentially entitling us to the entire lodestar amount.
[3] Puntive damages are awarded for damages that result from an "evil mind" particualry where intentional conduct has taken place. That clear has occurred in this case because Clarie's employer was making intentional comments that resulted in the claim for liED. However, the ability to recover punitive damages in this case will depend on which theory of vicarious liability this state depends on in. This case will most likley be brought against the corporation of Friendly's as opposed tOiClaire's supervisor individually. The first theory (majority) holds that an employer can only be held vicariously liable for punitive damages if they either (1) took part in facilitating the egregious conduct, or (2) intentionalily and knowingly hired or retained someone that was dangerous or likely to cause such egregious conduct. Under this theory it is unlikley that Friendly's will be held vicariously liable for the punitive damages basd on the actions of Claire's supervisor.. Mere neglect is not enough to establish vicarious
Final LAW75001 Remedies (^) Rebecca Cochran
liabilyt under this theory. The second theory (minority) finds that mere negligence is enough to establish vicarious liability for puntive damges to an employer. Under this theory Friendly's will most likely be vicariously liable for the punitive damages. Furthermore, punitive damages may not be "grossly excessive." In determining if punitive damages are grossly excessive, the court is to look at: the duration of the bad conduct (in this case it went on for quite a long time, it was not just a one time occurrence), the relationship of the punitive award to teh compensatory damages, the relationship of the parties (in this case given the fact that the defendnat was Claire's emplyer in an authoritaive position this justifies higher punitive damages), the degree of reprehisibility of hte crime (given that it was an intentional embarassment of Claire with extermely mean comments in front of customers the degree of reprehensibility is high, and the defendant's financial condition (in this case because it is a corportaion they are likely to have great economic rercources at tehir disposal). Moreover, the punitive damages will be found to be grossly excessive if it affects another state's laws. because the defendant in this case will most likley be a corporation that is multi-state punitive damages much like the BMW v. Gore case will be grossly excessive and unconstitutional.
END OF EXAM
~,
