Britta Liukonen Remedies Page 1 of 14

Britta Liukonen Remedies Page 1 of 14 Auld, Winter ‘00

I. Remedies problems: A. show violation that requires redress B. what remedies are available C. what scope of those remedies are available? II. Types of remedies A. Coercive 1. Injunctions: a personal demand to act or not act in a way A. two types I. mandatory: affirmative act ordered II. prohibitive: action disallowed B. disobey injunction: contempt power (jail, fines, sanctions) 2. Specific Performance A. order that tells the D to perform under a K 3. interlocutory injunctions: A. issues as a temporary measure before trial is held B. issued if, in absence of it, the trial would not longer be meaningful C. can be issued ex parte, even w/o notice; see rules! D. purpose: preserve the status quo (it must do that…but sometimes it’s hard to tell what was the status quo) B. Declaratory Relief: 1. federal and state DJA’s 2. purpose: declare the rts. and responsibilities of the parties to an actual dispute 3. often joined w/ other remedies! 4. it does not: award damages or give restitution 5. must be a justiciable controversy that is ripe for determination C. Damages (money!) 1. purpose: to compensate for P’s losses 2. there are other money remedies besides damages; damages are the monies that compensate the P for D’s acts 3. we consider punies/exemplaries to be damages (but really not compensatory) 4. interest & atty’s fees in proper cases D. Restitution (didn’t cover in class) 1. goal: prevent unjust enrichment 2. different than damages A. damages pay P for what he lost B. restitution takes away what D wrongfully obtained E. note: 1. injunctions are equitable remedies; enforceable w/ contempt power 2. damages are legal remedies

III. Injunctions A. four types: 1. preventative 2. restorative 3. prophylactic 4. structural B. common uses: 1. stop repeated trespass 2. stop nuisance 3. if D’s conduct interferes w/ P’s economic ops. (ex. TM infringement) 4. to stop the systematic violation of the P’s civil rts. (ex. deseg. of schools)

of 14 Britta Liukonen Remedies Page 2 of 14 Auld, Winter ‘00

C. elements: (not really elements, but the equitable considerations ct. will look at in deciding whether to grant the inj) 1. inadequate remedy at law A. factors: I. remedy the effects of future harm, not past harm (A) must be rzbly certain this will happen again b/c if not, it becomes a bare declaration of rights (B) of course, you can use past behaviors to show a likelihood of future harm (C) usually cts. will only order inj. for continuing trespass, but not bare trespass b/c who knows if it will happen again! II. multiple actions for damages may have to be brought if we don’t enjoin III. unique possessions (land, etc) means $ damages not as appropriate IV. damages too speculative and uncertain V. damages inadequate (A) civil rts. violations (B) intangible bsns interests (C) nuisances VI. other special cirx (ct. will consider totality of the cirx) 2. irreparable harm A. types of irreparable harm: I. things that can’t be quantified, like goodwill II. other factors that are substantially similar to inadequate legal remedy III. so why have both? (A) sometimes money damages aren’t adequate, but the harm is so trivial it doesn’t seem irreparable (B) trivial harm is harm (annoyance) but money dmgs would be so small, it wouldn’t really compensate IV. irreparable harm means “great harm” (more than trivial) B. irreparable harm in Texas: Molex I. an injury which cannot be compensate or II. for which compensation cannot be measured by any pecuniary standard 3. balancing tests: A. general factors I. interests of the P’s & D’s II. don’t put one party in too strong/weak bargaining position III. don’t want to grant if clear that one party was depending on getting the equitable remedy IV. don’t want inj that is too broad for cts. to enforce B. relative hardships of P & D (balancing) I. nuisance: must show the activity is unrzbl c/b it is usually and undue hardship to stifle a useful enterprise that is located in a rzbl location II. ex. case where semi-truck driver raced engine all day; ct ordered inj. only btwn certain hours III. Madsen v. Women’s Health Ctr. sct. struck down some of the restrictions b/c the burdened more speech than necessary & were too broad to accomplish the permissible goals of the injunctions; others were no more broad than necessary & were upheld (A) no more burdensome than necessary: applies to each element of the injunction IV. the cts. don’t want to put one party in too strong a bargaining position (A) ex. plant going to build in depressed town

(B) good for public interests: town needs industry (C) P sues for minor ezment violation – may be just to get bought out at high price (is the P suing in GF?) C. practicality I. practicality considerations: (A) public interest (1) cts. will consider the public interest, but are careful not to trespass on the province of the legislature (B) judicial integrity (1) don’t want to grant an inj. that is too broad to enforce (2) can’t be too vague (3) scope of injunction: rzbl time/place/manner restrictions are best II. cts. prefer to give $ damages, b/c they have to police/enforce injunctions III. sometimes, its too hard to draft a mandatory inj. (did the D really comply), so its much easier & more preferable to draft a prohibitive inj. IV. injunctions are discretionary! judge weighs the interests of the parties and the practicality of granting D. public interest I. when the gov’t is a P, the gov’t may asset it is representing the public interests (but the ct may disagree) (A) even a private party may represent the public interest indirectly II. general fear of illegal conduct is not enough to enjoin conduct (Rainbow Family party case) D. general rules: 1. duplicative recovery: even if you get money damages for past harm + injunction against future harm, this is okay and is not duplicative (it’s only one full recovery) 2. standard of review: clearly erroneous (high!) 3. liquidated damage provisions: A. parties to a K can agree they will only seek legal remedies ($ damages) and not equitable relief; cts. will generally enforce these provisions B. if parties agree they will seek equitable relief only & agree to issue an injunction, this may or may not be enforced (is only a factor); why? b/c the cts. don’t want to be private police force on contracts E. Texas injunction elements: 1. wrongful act (legally recognized wrong) – not just an annoyance 2. imminent harm (past conduct relevant; fear of possible injury not enough) 3. irreparable injury 4. no adequate remedy at law 5. balancing interests F. Statutory Authorization for injunctions: 1. some statutes prohibit, require or give discretion to grant injunctions for certain wrongs 2. usually the terms are left to the courts 3. Tex. Civ. Prac. & Rem. Code ch. 65 re: injunctions: generally allows injunctions to be analyzed by traditional method G. who is bound by injunction (and subj. to contempt powers)? 1. parties & those in privity with them 2. sometimes 3P’s with notice 3. ex. mom enjoined to give kid to dad; she gives to grandparents; grandparents (if know) in contempt

IV. Specific Performance: A. elements: 1. no adequate remedy at law A. often the courts simply pay this lip-service & actually just weigh the: I. benefits on injunction (spec perf) (A) avoid bilateral monopoly (B) parties determine the cost themselves of buying each other out, rather than ct. deciding damages amt. II. benefits of damages (A) no continuing court supervision B. but the cts are supposed to follow no adequate remedy: I. real property = no adequate remedy, usually (A) but still may not = no adequate remedy at law (billboard case) (B) lease or sale? if only lease, then there probably is an adequate $ remedy (1) but maybe not if the leasehold presents some unique economic opportunity II. sale of personal property & chattels - usually money dmgs. is enough (but not if unique, heirlooms, art, etc.) III. what is unique? (A) physical uniqueness not enough (B) must be economically non-interchangeable!! (C) ex. land is unique not b/c different but b/c of ppl’s ties to land (D) test: (1) is there a substitute available? (2) can we value the P’s right to a rzbl degree of certainty? 2. P will perform under K; likelihood that P is fulfilling & will continue to fulfill his own obligations under the K A. mutuality of remedies (maybe an element) B. general rule: when either party breaches, there are equal remedies for either party (at the time for enforcement) C. exception: if one party has fully performed, mutuality not req’d D. mutuality not req’d at inception of K E. Texas: mutuality may be supplied by I. full performance II. offer to fully perform that is being block by other party 3. the D is able to perform (so decree is enforceable) A. land unique so generally award specific perf; even if breacher made a new K to sell land to 3P, cts. will still grant specific performance B. must be truly impossible to perform I. ex. Wooster TV station case; had to reform K & abate price to complete K, but that was okay and it was not impossible to perform II. a specific performance decree can be substantially similar to the agreed upon performance if the exact performance is not impossible III. often ct will order: specific performance + abatement in purchase price IV. but the ct cannot rewrite the K V. rule: the agreement of the parties is substantially performed 4. balancing A. interests of the parties B. potential difficulties to enforce I. ct doesn’t want to oversee the construction of a building II. personal service K’s are usually not enforced

(A) too hard to say what is good enough (B) too close to involuntary servitude (13th am) (C) but the cts. will enforce negative promise against party doing the personal service elsewhere (D) the cts won’t require anyone to accept personal services, either (except sometimes in e’er/e’ee relationship) III. covenants not to compete: must be… (A) unique service (B) rzbl time limits (C) rzbl geographic limits IV. prevent multiplicity of suits C. public policy B. quasi-specific performance: 1. we enforce against another what we would have enforced against D 2. ex. P agreed to take care of Baker until his death in exchange for property; P started to care for Baker, but Baker dies too soon to convey property; family req’d to specifically perform Baker’s side of the K and convey land; (was this a fair K? yes at the time of K- ing) [note: this is quasi-spec perf b/c we enforce against estate what we would have enforced against Baker]

V. Interlocutory Injunctions! A. timeline: TRO  (hearing) preliminary injunction  (trial) permanent injunction 1. if TRO granted, the prelim inj denied, the TRO expires B. TEMPORARY RESTRAINING ORDER (TRO) 1. purpose: preserve the status quo until a hearing can be held on the request for a preliminary injunction 2. procedure is strict b/c not even a hearing! A. imminent harm that doesn’t allow time for an evidentiary hearing B. must attempt to give other party notice C. but may be granted ex parte C. PRELIMINARY INJUNCTION (temporary inj.) 1. purpose: preserve status quo until we finish a trial on the merits of the case 2. often granted to… A. protect property interests (keep P from killing my trees; protect trade secrets) B. enforce K terms (covenants not to compete) C. protect C’al rights, personal rights, public rights (b/c rights are irreplaceable) 3. elements (4) A. P has a substantial likelihood of prevailing on merits (1.probable right) B. there is a substantial threat that irreparable harm will result w/o inj. (ie not compensable by money damages) (2.probable irreparable injury) I. if you don’t mitigate, that is evidence that’s it’s not that urgent & irreparable to you II. copyright infringement: presumption of irrep. harm III. if the threat of harm dissipates, the inj. will be dissolved IV. substantial threat of purely money damages is not irreparable V. must have more than mere “fear” of harm; need proof of substantial threat of harm C. 3.balance hardships: proof that the threatened injury to the P outweighs the threatened harm to the D D. showing that grating the relief does not disserve 4.public interest 4. sliding scale test A. more harm less likelihood of success

B. 5th Cir hasn’t used the alternative test, but would probably accept it C. test: I. no substantial likelihood of success but II. exceptionally strong showing of irreparable harm 5. SOR: abuse of discretion A. clear error in jj if judge based decision on irrelevant factors B. failed to apply correct legal standard C. must apply correct law D. findings of fact not clearly erroneous 6. preservation of the status quo A. status quo: last peaceable, uncontested status of the situation B. sometimes doing nothing is req’d to preserve the status quo D. Procedure: 1. TROs A. can get ex parte only if: I. immediate irrep. harm threatened & II. submit affidavit of attempts to give notice & if no attempt to give notice => will be dissolved III. state why notice should not be req’d B. if granted ex parte, I. ct. must allow hearing to take precedence over all other matters II. can get hearing to dissolve/change TRO by giving 2 days notice to other side C. duration: I. federal ct: 10 days + 10 days for good cause II. Texas: 14 days + 14 days for good cause III. if extended beyond 20/24 days => becomes preliminary inj & must be dissolved b/c proper procedures not complied with (label on order not controlling) D. TRO’s are not appealable I. b/c granted to fast II. only to handle emergencies III. there’s no record for appeal 2. Preliminary injunctions A. hearing req’d: I. if evidence is in dispute II. or unless D clearly waives right to hearing & is content to rest on affidavits III. must be fundamentally fair hearing w/ rzbl opp. to be heard on the merits B. findings of fact must be made I. so you can have effective appeal II. cannot be waived C. must set date for trial when you get prelim inj. order D. duration: last until conclusion of full trial on merits 3. Bonds: A. Federal R. 65c I. you don’t have to have a bond II. even though statute says you do III. but trial ct. must consider bond issue (if not => abuse of discretion) B. bonds often granted… I. if US is seeking relief II. ct concludes there is no real risk of monetary harm to D (?) III. P has very high likelihood of success, very low risk of error to issue inj. IV. P is solvent C. functions of bond:

I. tells P maximum extent of his liability II. assures the D of compensation D. not issuing a bond I. Continuum: bond too much $, so ct. made D sign stmt that they will not be ltd. to amt. of bond II. is a stmt. saying you’ll pay damages enough, so the Ct. won’t make you get bond? (A) D is very solvent (B) possible damages not too high (C) substantial likelihood of success . if you don’t give bond, ct will not let you say “no bond, no recovery” III. rules today: (A) usually bond req’d (B) but usually not the limit on damage amt. (C) parties can request increases/decreases in amt. of bond E. liability on the bond: I. D was “wrongfully enjoined or restrained” II. meaning… (A) inj. shouldn’t have been issued & (B) D was deprived of rts to which he would otherwise have been entitled III. factors (A) GF (B) did D fail to mitigate damages? (C) change in the law (since the granting of the inj) (D) resources of the parties (E) outcome of underlying suit IV. how much? (A) up to bond amt. (B) but you still must prove damages V. not enough bond damages? (A) tort of malicious prosecution (B) can get all actual damages (C) elements (1) prosecuted maliciously (scienter=malice) (2) w/o probable cause (3) later inj. terminated in your favor F. damages in excess of bond amt? I. hard to get damages in excess of bond amt. II. solution? P should appeal bond amt. by interlocutory appeal!!! G. Texas R. 684 I. bond is mandatory! (TRO’s and prelim inj’s) (A) limited exceptions: (B) indigence, divorce (sometimes) II. liability on bond (same as federal)

VI. Contempt! A. enforcement: 1. direct contempt: in front of judge; doesn’t require hearing 2. indirect contempt: (everything else) A. hearing req’d to decide if there was a violation of ct’s order B. if violation => contempt sanctions (fines, jail, etc)

B. criminal or civil? 1. criminal: A. punitive B. non-compensatory fines C. meant to protect ct’s integrity D. does not terminate upon compliance w/ the order E. if separately docketed and prosecuted => usually criminal 2. civil A. remedial (compensatory dmgs) or B. coercive C. terminates upon compliance w/ oder D. ex. daily finds until you comply; jail until you comply E. prison can be civil (if you hold keys to jail by complying) 3. sometimes ct orders a combination; if predominantly criminal, must comport w/ crim procedures C. procedures: criminal 1. contempt must be rzbly specific 2. due process: A. no self-incrim 5th B. proof beyond a rzbl doubt C. rt to jury trial if I. jail over 6 mos (fed & Tx) II. serious fines (federal) III. $500 fines (Texas) D. double jeopardy E. notice of charges F. assistance of counsel G. rt to present a defense 3. direct contempt exception to procedures: A. judge can hold you in contempt right then B. is punitive (criminal) but the ct has the rt to make its contempt order immediately C. but if over 6 mos jail, can still get jury 4. why procedures? b/c w/ criminal indirect, there is the most opp. for abuse D. procedures: civil 1. if direct & ct does right then => can do what he wants to 2. if holds over or indirect => must give A. notice B. hearing E. collateral bar rule: 1. if you disobey injunction, you will be in contempt 2. proper avenue is appeal (you can get interlocutory appeal) 3. rule: you must comply with an injunctive order regardless of the order’s validity until the order is actually reversed 4. once you are in contempt, you can no longer attack the validity of the order 5. exceptions: A. D must have had an opportunity for a meaningful hearing on the merits of the validity of the inj. B. lack of jx (s.m. or personal) I. …but if you collaterally attack, you’d better be right! II. ct has temporary jx to decide whether they have jx III. note: ??

(A) criminal contempt: must still pay fine, whatever even if underlying order invalid (B) civil contempt: if underlying order decl’d invalid, then you get out of jail, don’t have to pay fines, etc. (doesn’t survive if underlying order invalid) C. if the order is transparently invalid I. presumption of validity II. burden on D to show transparently invalid: when there is no colorable nonfrivolous argument to support the order III. hard to show IV. practically: used if trial ct. grants inj, appellate ct vacates & remands case, then trial ct issues very same order! D. C’al rights I. federal: (A) irretrievable surrender of C’al rights (B) only applied in 5th am cases (self-incrimination) (C) has not worked for 1st am speech, assembly cases II. Texas (A) if inj. is unC’al violation of your rights, you don’t have to comply (B) you can’t be held in contempt if inj. found to be unC’al F. civil contempt 1. two types & purposes: A. coercive: coerce compliance B. compensatory: compensate P who was harmed by violation of ct’s order (show to rzbl degree of certainty) 2. civil contempt sanctions do not survive if underlying inj. decree declared invalid A. why? compensatory - b/c P never had a legal right to have order enforced B. coercive – can’t coerce D to do this anymore 3. appealability of civil contempt order A. can’t appeal until underlying action’s jj is final or B. an appeal of the granting of the injunction C. compare: criminal contempt orders can be appealed immediately b/c they are a separate coa, so when contempt sanction ordered, that is a final jj D. if you never comply with the civil contempt order: eventually it will be declared criminal b/c it no longer has any coercive effect & you can appeal E. why appeal civil contempt order? b/c you don’t think you really violated the order (can say too vague, acted in GF, substantial compliance)

VII. Declaratory Judgments A. what is the effect of a dec jj? 1. real, binding jj 2. res judicata & collateral estoppel effect 3. sui generis remedy (neither equitable nor legal) B. generally: 1. don’t have to show no adequate remedy at law 2. reviewable as a final jj 3. is liberally construed by cts. C. elements: 1. actual case or controversy btwn adversely interested parties 2. substantial & immediate controversy 3. the declaration will serve a useful purpose & effectively settle the controversy D. justiciability 1. can’t be moot

2. not hypothetical or anticipated controversies (same in Texas and Feds) 3. standing: you must have a justiciable interest in the outcome of the dispute 4. prudential factors: A. disagreement has fixed and final shape so ct can id the issues B. must know what effect the decision will have on the parties C. some useful purpose will be achieved by deciding the issues D. is there an alternate remedy that would be more effective? (but you do not have to show no adequate remedy at law) E. convenience of the parties and witnesses (if there is another case pending) F. judicial economy & preventing multiplicity of suits (piecemeal litigation) G. is dec-P using the dec action to anticipate a defense when he is the D? E. join all interested parties (must join indispensable parties; best to join all interested so its enforceable against them) F. federalism: if P brings dec action in federal ct for declaration re: C’al of a state statues, raise the fact that there are federalism issues 1. abstention doctrine: state court proceeding pending: federal cts must allow state cts to settle issue first, and will decline jx 2. no state ct criminal proceeding pending: federal cts can take the case, but probably not justiciable A. ex. Morales case (sodomy); just worrying that you will be prosecuted under a state statute is not enough 3. rarely, there will be actual threat of enforcement but no pending state criminal proceeding => that is the time when you can seek dec relief in federal ct re: the C’ality of a state statute G. federal courts can decline jurisdiction if they want to (much discretion; abuse of discretion SOR) 1. cts will abstain under abstention doctrine 2. but can abstain other times, too 3. factors ct. will consider in deciding whether to take case: A. will suit be settled B. serve useful purpose C. procedural fencing/race to ct. house D. increase friction btwn fed & state ct E. alternative, better remedy? F. convenience G. comity and restraint H. judicial economy; no duplicative litigation I. discouraging forum shopping J. potential inequities in disallowing P to pick forum and when to sue H. Texas’ Declaratory Judgments 1. State v. Morales: four situations where you might seek dec relief: i) prosecution shouldn't interfere unless a) unC'al and b) enforcement = irrep. injury to vested property rts. ii) imminent prosecution shouldn't interfere unless a) unC'al and b) enforcement = irrep. injury to vested property rts. iii) Passel exception: a) sought inj. relief only to prevent enforcement

b) not just dec. action to say "this is unC'al" c) there was a rule made (per statute) that was used against P's, so sought inj. relief to prevent enforcement of rule d) since the statue is not being enforced, they won't have a day in ct. under the statute (can't raise arguments in their criminal trial); so they have to have day in ct. now under civil rule iv) no threat of enforcement; no complaint of specific conduct that can be remedied by an inj.(b/c no imminent threat): no dec. jj will be granted 2. Insurance Cases: tort liability (before underlying tort action done) A. duty to defend is justiciable B. duty to indemnify only justiciable if: I. there is no duty to defend and II. the same reasons why there is no duty to defend => there is no duty to indemnify C. interested parties: I. if there is a duty to defend & indemnify, [insurance co] v. [P & D in underlying tort] II. if no duty owed to policy holder, if the ins. co. joins the underlying P, the P may be non-suited 3. notes: A. dec action inappropriate when there are only questions of fact B. don’t deprive P from being the master of his own claim (D not supposed to be prospectively seeking a finding of non-liability) –prudential factor

VIII. Contract Damages LV + OL – (CA + LA) A. LV + OL – (costs avoided + losses avoided) B. elements of damages: 1. LV are general damages 2. OL are special damages A. special damages must be specially pleaded B. P must rzbly try to mitigate special losses C. must be foreseeable 3. CA costs avoided 4. LA losses avoided - must be proved by D to requisite degree of certainty C. buyer’s damages: cover – K price D. hypo:  widgets for $100  seller's costs are $90 (would have cost, but actually spent...)  seller spends $25 in preparation  seller spends $10 on agent to find buyer  seller salvages raw material for $15 (100 + 10) - ([90-25] + 15) = 110 - 80 = $30 check your work: profit would have gotten: $10 + reliance $25 + other loss $10 - mitigation - $15 $30 E. alternatives to BOK damages: 1. employment K's A. damages = present cash value of employment K had it not been breached

B. less rzbl mitigation (even if no actual mitigation) C. doesn't have to actually mitigate - but should try D. avoidable consequences rule (3 parts) I. damages are excluded to the extent the P in fact avoided losses II. damages are exluded to the extent P could have avoided them by expenditure of rzbl effort; comparable work... (A) have to look to suitability of employment (B) has to be a substantially equal job III. damages will be enhanced by adding recovery for losses in special efforts to minimize damages 2. construction contracts: A. substantial performance => value as promised - value now (unintentional deviation) B. no substantial performance => value to fix (- losses avoided, things not pd) C. RSK § 348 I. loss of value to injured party II. if can’t prove loss of value => (I) decreased fmv (probably use if substantial perf) or (II) cost of completing performance or remedying defects (if no subst. perf) F. general alternatives to loss of value K damages: 1. can’t find LV b/c too speculative? use reliance damages A. out-of-pocket expenses (made in reliance on K) B. decreased by amt. P would have lost if D would not have breached - but this must be proved by D to a rzbl degree of certainty C. reliance ltd.: reliance damages cannot exceed K price 2. restitution A. you can get restitution on quasi-K B. amt? based on amt. by which D is unjustly enriched

IX. Tort damages A. damages to personal property 1. rules A. tort for harm, conversion, etc. B. default rule: decrease in market value of the property (fmv) I. if permanent taking or destruction of property (either - they're the same) (A) damages = fmv at time/place of taking or destruction (B) if fmv isn't adequate, then ct. can award replacement value II. if not permanently destroyed: (A) decrease in fmv (before-and-after rule) (B) if diminution in value isn't adequate, then ct. can award rzbl cost of repair (1) must be economically feasible to repair the item (would a rzbl person repair it? chevy vega case) (2) if property enhanced by repairs, D has burden to show this (3) amt? cost of repair + rental value while being repaired (if aggregate is grtr than value of chattel, that’s okay combine wreck case) (4) rzbl and necessary costs of repair (A) P must prove (B) not presumed b/c they already got repairs and that’s what it cost (5) can still get $ for residual diminution in value (e.g. foundation repairs) III. no market value (A) dented old barge: no answer…we don’t know what to award

(B) if there is no mkt. for a comparable item, then you can get replacement cost (if this is one of a kind); can only elect replacement costs if there is no market (barge used for dock) (C) personalty & clothes: (1) no market (2) so get cost of replacement (but not sentimental value) (3) D doesn’t have to pay costs of depreciation if he can prove it IV. “rzbl sentiment” …value to the owner (USAC racing rings case) (A) jewelry: (1) intrinsic value = value to the owner (2) but different extrinsic value (B) intrinsic value: they would be worth that to anyone with the item (anyone with an Oscar they were awarded would think it was worth more than cost of replacement) (C) q. of fact (D) rule: you can consider sentimental value for certain kinds of items; a rzbl person would attach sentiment to this item; if a rzbl person would attach sentiment to this item, then the jury can consider sentiment, too; objectively, this is a sentimental object (heirlooms, trophies, photos, handicrafts, etc.) V. things that cannot be replaced: same rules, generally C. fluctuation in value I. general rule: get market value at time of tort II. exception (Calvit rule) D’s willful conduct caused reduction to P in market price: (A) highest value btwn time of tort and time of filing suit (Calvit rule) (B) highest replacement value of the goods B. Real property 1. permanent injury: diminution in fmv 2. temporary: restore to pre-tort condition A. rzbl cost of repair B. repair must be economically feasible C. can get lost use/enjoyment during repair D. cts will not award if very small decrease if fmv & large cost of repair I. b/c this would be windfall II. exception: P needs property to be in a certain way to use it III. sometimes if it’s personal residence b/c ppl are funny about their home 3. crop damages A. total loss of crop: manufactured crop – expenses to manufacture B. crop not totally destroyed: reduction in value of crop – expenses avoided C. trees: accident? then stump value; if purpose or reckless, manufactured value D. minerals: GF? rent royalties; bad faith: market value C. Personal injury 1. loss of earning capacity or loss of earnings 2. pain and suffering A. must be consciously experienced B. can recover for future P&S if rzbl probability of future P&S 3. disfigurement (separate from P&S and m/a) 4. physical impairment (loss of enjoyment of life) A. per diem (how much per day) B. job offer approach (how much would I have to pay you) C. note allowed: golden rule (what would you want?)

5. mental anguish (m/a) A. m/a? more than mere disappointment, anger, resentment; prove your routine is different; mental sensation of pain B. NIMA (negligent) must be attached to another breach of duty C. IIMA (indy tort coa) I. intentional or reckless II. extreme and outrageous conduct III. prox cause IV. severe emotional distress 6. loss of consortium (spouse) & loss of companionship and society (kids/parents) A. must est. D liable for injured family member (kids, parents, spouses only) B. must show injured family member suffered serious physical injury 7. loss of services (my wife can’t do my laundry) 8. medical expenses: rzbl past and future D. interest 1. pre-jj A. starts 180 days after claim letter OR on date suit filed B. ends on day before final jj rendered 2. settlement offers: A. more than jj: no pre-jj interest while offer open B. less than jj: no pre-jj interest on amt. of the settlement offer while open 3. post jj interest: applies to all jj’s until fully paid E. atty’s fees 1. bad faith litigator 2. contract cases (oral and written!) 3. get amt. that is rzbl