UNDERSTANDING REMEDIES

Transcription

1 UNDERSTANDING REMEDIES

2 LexisNexis Law School Publishing Advisory Board Paul Caron Professor of Law Pepperdine University School of Law Herzog Summer Visiting Professor in Taxation University of San Diego School of Law Bridgette Carr Clinical Professor of Law University of Michigan Law School Olympia Duhart Professor of Law and Director of Lawyering Skills & Values Program Nova Southeastern University, Shepard Broad Law School Samuel Estreicher Dwight D. Opperman Professor of Law Director, Center for Labor and Employment Law NYU School of Law Steven I. Friedland Professor of Law and Senior Scholar Elon University School of Law Carole Goldberg Jonathan D. Varat Distinguished Professor of Law UCLA School of Law Oliver Goodenough Professor of Law Vermont Law School Paul Marcus Haynes Professor of Law William and Mary Law School John Sprankling Distinguished Professor of Law McGeorge School of Law

3 UNDERSTANDING REMEDIES Third Edition JAMES M. FISCHER Professor of Law Southwestern Law School

4 Print ISBN: ebook ISBN: Library of Congress Cataloging-in-Publication Data Fischer, James M., author. Understanding remedies / James M. Fischer, Professor of Law, Southwestern Law School. -- Third Edition. pages cm Includes index. ISBN Remedies (Law)--United States. 2. Damages--United States. I. Title. KF9010.F dc This publication is designed to provide authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. Matthew Bender and the Matthew Bender Flame Design are registered trademarks of Matthew Bender Properties Inc. Copyright 2014 Matthew Bender & Company, Inc., a member of LexisNexis. All Rights Reserved. No copyright is claimed by LexisNexis or Matthew Bender & Company, Inc., in the text of statutes, regulations, and excerpts from court opinions quoted within this work. Permission to copy material may be licensed for a fee from the Copyright Clearance Center, 222 Rosewood Drive, Danvers, Mass , telephone (978) NOTE TO USERS To ensure that you are using the latest materials available in this area, please be sure to periodically check the LexisNexis Law School web site for downloadable updates and supplements at Editorial Offices 121 Chanlon Rd., New Providence, NJ (908) Mission St., San Francisco, CA (415) (2014 Pub.586)

5 Dedication To Sue, Adam, Evan, Allison, and Zachary with Love, Gratitude, and Affection; without Blame or Responsibility for errors and omissions. JMF iii

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7 Preface to Third Edition Three generations of Prefaces are enough. * * Cf. Buck v. Bell, 274 U.S. 200, 207 (1927) (Holmes, J.). v

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9 Preface to Second Edition The goal of this book is modest a descriptive account of the law of remedies. Much modern scholarship is more ambitious seeking a normative account of the law of remedies, i.e., how much redress should the law allow to vindicate legal wrongs and restore individuals harmed by those wrongs to their rightful position. Yet, to state that a work is descriptive is not to suggest that it is not difficult or complex. A descriptive account can illustrate the chance element of law; the fact that law is often either uncertain or unresolved. This open-endedness is particularly common with remedies. Much of the law here is stated in capacious language leaving much to individual interpretation. Remedies law tends to be situation-sensitive; here, the usual feature is that the facts of the case control the result more than the remedies rule. All this creates a large amount of uncertainty as to how remedies issues will be resolved. Law students (and lawyers) need to be comfortable with uncertainty. It is everpresent in the law, but uncertainty does not undermine the case for knowing the law, such as it is. Chance, after all, does favor the prepared mind. * This book states the law, but also gives examples that illustrate that the law often bends, is bent, and courts often disagree as to how the issue before the court should be resolved. In other words, what is the law? This view of the law reflects, no doubt, the authors own biases. All authors simplify by collecting materials and omitting data based on their own view of what the end product should resemble. I have tried to be attentive to that bias. How successful I have been is, ultimately, for the reader to judge. An early Rolling Stone s song provides a compass that helps in learning, and ultimately understanding, the law of remedies: You can t always get what you want You can t always get what you want And if you try sometime you find You get what you need. ** Sometimes the law of remedies provides full redress, and perhaps even then some for harm sustained. Most often, however, other values conflict with a full recovery (or restoration). Even here, however, the law does not leave the plaintiff unprotected. The law of remedies is a search (and a determination) as to what the law permits as rectification and reparation when legal wrongs have been committed. Although this text is marketed primarily to law students, I have chosen to add extensive footnote references to authorities that support the propositions asserted, as well as references to other work that develop the materials further than can be accomplished in a single volume text that aspires to some degree of comprehensiveness. Any tour through the legal landscape is a sail through waters infested with legal icebergs. This book * Attributed to Louis Pasteur. ** Rolling Stones You Can t Always Get What You Want, Let It Bleed Album (1969). vii

10 Preface to Second Edition discusses the tips of those icebergs. As every sailor of the law, whether lawyer or judge, knows, much more lies beneath. James M. Fischer Professor of Law Southwestern Law School Los Angeles, California viii

11 Preface to First Edition Remedies are fundamental; yet, remedies are frequently overlooked. We often discuss remedies without realizing that it is a remedy about which we are talking. Consider, for example, the exclusionary rule, which is a staple of constitutional criminal procedure jurisprudence. The exclusionary rule is, at root, a remedy designed to vindicate the values courts have identified in the text of constitutional provisions. It rectifies the harm inflicted by excluding evidence acquired by the state in violation of constitutional and statutory guarantees. It is remedial in its field of operation as much as an injunction or damages award in the cases in which they apply. Should it make a difference whether a legal issue is classified and analyzed as a remedy or as a substantive right or procedural device? There is the argument that the difference is simply one of category classification, no different from tort versus contract, substance versus procedure, or civil versus criminal. Yet, the very persistence of these category classifications tells us that there is more going on here than mere categorization or arrangement. Separate identification of a legal issue in the remedies category helps us focus on the essential nature of that legal issue and its role in the larger legal framework. By looking at an issue as a remedies issue we gain a better understanding of the capabilities of remedies, as well as their limits. The approach taken in these materials is neither doctrinal nor theoretical; rather, the focus is educative. The objective is to identify the basic legal principles, rules, and standards that constitute the law of remedies as applied by courts in the United States. Of necessity, the focus is on general principles and general rules of application. This approach permits readers to begin the analysis of a problem by deciding which facts are relevant. General principles and general rules also enable the reader to discover the more precise rules that determine the particular case. Most importantly, however, general principles and general rules enable the reader to both gain a sense of the ambit of remedies and establish a base from which the relationship between the general and the particular may be investigated to determine whether the specific application of a remedial principle or rule is consistent and coherent with the larger body of substantive and remedies law. Stating rules and principles is easy; it is their application that is difficult. Neither the most complex nor the most basic How to book can avoid that gap between knowledge and application. Yet, if knowledge of rules and principles is not a sufficient condition to the proper application of law, it is necessary condition. Even the most gifted athlete will be frustrated if his performance is crippled because he violates the rules of the game. The knowledge of law, particularly its component rules, principles, guidelines, and standards enables the good lawyer to practice her profession with skill and confidence. Knowing what a client s remedies are, has an obvious connection to the work litigation lawyers do, but remedies are not solely the concern of trial lawyers. Transaction lawyers must know what consequences are likely to result if the transaction fails, or the deal the transaction spawns, is breached. Remedies are not the sum of a lawyer s work, but they are an important constituent part of what good lawyers do and think about when representing their clients. I have attempted to provide in these materials a comprehensive, and I hope, readable ix

12 Preface to First Edition overview of the law of remedies. I have selected those rules and principles that I believe are of general application, noting whenever possible significant splits and disagreements regarding the accepted canons of law. In this regard, Newton s law works here as elsewhere: for every stated principle of law, there is an equal, and opposite, statement of the principle elsewhere. I have tried to bring many of these disagreements to the surface by presenting the views evenly. When I believe that a particular view is wrong, I have not, however, hesitated to say so, but always as my opinion, not disguised as a restatement of the law. I cite all, in my opinion, useful sources, oblivious (actually indifferent) to the critique that some sources are beneath academic usage. * If courts use it, this text cites it. I hope readers will find the work useful and interesting. I certainly encourage readers of this work to contact me at Southwestern University School of Law if they have comments or observations regarding the book. James M. Fischer Professor of Law Conventions Used in This Book Footnotes are consecutively numbered within each section. For example, all footnotes within Section 13.0 are consecutively numbered through that Section s subsections e.g., 13.1, 13.2, etc. Footnotes for each section begin with the number one. The first time an authority is cited in a section, it is set forth in full; thereafter, within that same section, the authority is abbreviated, with only the page cite given. For example, a decision will be cited in full the first time it appears in Section 13.0, but only an abbreviated citation if the authority again is referenced in Section 13.1 or 13.2, etc. If that same authority is also cited in Section 14.0, it would again be fully set forth and abbreviated citations used for further references within Section 14.0 s subsections. Unless otherwise noted, all cross references are within the same section only. Thus, a reference in a footnote in Section 13 to footnote 15 is a reference to footnote 15 in Section 13. A reference in a footnote in Section 21 to text and notes 5-7 is a reference to text and notes 5-7 in Section 21. Unless otherwise noted, I have deleted internal quotation marks, footnotes, and internal citations in quoted material reproduced in the text or footnotes. I have also deleted brackets and ellipses when it did not change the meaning of the reproduced material. Occasionally I will make small editorial changes in quoted material when doing so does not interfere with the accuracy of the quote, e.g., change a party s name to plaintiff, without putting the change in brackets. * See Patrick McFadden, Fundamental Principles of American Law, 85 CAL. L. REV. 1749, 1755 n.9 (observing, I hope tongue in cheek: Woe to the scholar who cites American Jurisprudence. x

13 Chapter 1 UNDERSTANDING REMEDIES BASIC REMEDIAL GOALS TYPES OF REMEDIES Legal v. Equitable Remedy Specific v. Substitutional Remedies Damages Injunctions Restitution Declaratory Relief Punitive Damages Nominal Damages Presumed Damages RIGHTS AND REMEDIES Relationship Between Rights and Remedies Common Law Remedies Statutory Remedies Express Remedies Implied Remedies PUBLIC POLICY Chapter 2 GENERAL PRINCIPLES CONCERNING COMPENSATORY DAMAGES THE PURPOSE OF COMPENSATORY DAMAGES Expectancy Interest Reliance Interest Restitutionary Interest General Damages v. Special or Consequential Damages Economic v. Non-Economic Damages VALUE Determining Economic Value Diminution in Value Cost of Repair v. Diminution in Value Burden of Proof Betterment Determining Betterment Allocating Betterment Value as a Function of Time General Rule xi

14 7.6.2 Fluctuating Value Foreign Currency Obligations Value as a Function of Place Place in Chain of Distribution Place in Terms of Physical Location MEASURING COMPENSATORY DAMAGES Certainty Excessiveness Lost Profits The New Business Rule Lost Volume Seller Real or Hypothetical Losses Harsh and Mild Measures Jury Discretion and Judicial Review FUTURE, POST-TRIAL LOSSES Future Damage Future Damages Discounting to Present Value LOSS CAUSATION General Principles Contracts Cause-in-Fact Contract Causation Policy Considerations Tort Causation Lost Chance Occurrence Causation v. Loss Causation Apportionment of Damages ECONOMIC LOSS RULE Purpose and Scope of Rule Property Damage Products and Services Pollution Caused Economic Losses Other Applications NON-ECONOMIC DAMAGES General Principles Negligent Infliction of Emotional Distress Physical Harm Requirement Fear as Recoverable Damage Measuring Non-Economic Loss Excessiveness Discretion of the Decision Maker xii

15 Quality of Evidence Fear of Death Infliction of Emotional Distress DUTY TO MITIGATE DAMAGES General Principles Reasonable Efforts Bodily Injury Claims Employment Claims The Fragile Plaintiff s Duty to Mitigate Equal Opportunity to Avoid Losses Rule Disposal or Repair of Damaged Property Continued Dealing with Defendant Intentional Wrongs Compensation for Mitigation Efforts Special Applications of the Mitigation Principle Leases Lost Volume Seller Profits OFFSETTING BENEFITS Tort Claims Contract Claims Taxes COLLATERAL SOURCE RULE Nature of the Rule Rule of Substance Rule of Evidence Tort or Contract Collateral Source or No Damage Gratuitous Benefits Independent Source United States as Defendant Claims Against Employers Permissible Inquiries into Collateral Sources Payments by Joint Tortfeasors Collateral Source Rule and Tort Reform Legislation PREJUDGMENT INTEREST Ascertainability: Liquidated v. Unliquidated Claims Interest Rate Determination of Rate Simple or Compound Accrual Date TAX CONSEQUENCES OF AWARDS AND SETTLEMENTS xiii

16 17.1 Personal Injury Awards Non-Personal Injury Awards Effect of Settlement Allocation Consideration of Taxability of Damages in Arriving at Damages Awards Enhanced Taxation as Additional Damages Chapter 3 GENERAL PRINCIPLES CONCERNING EQUITABLE REMEDIES THE HISTORICAL RELATIONSHIP BETWEEN LAW AND EQUITY Judicial Power Right of Jury Trial Merger of Law and Equity Procedural or Substantive Remedial Defenses Law and Equity ADEQUACY OF THE REMEDY AT LAW/IRREPARABLE INJURY Justification for the Requirement The Content of the Requirement Frustration of Relief Sought Economic Harm Problems in Measuring the Legal Remedy Nature of the Injury Loss of Chance or Advantage Insolvency Multiple Lawsuits Uniqueness EQUITY ACTS IN PERSONAM EQUITABLE DISCRETION BURDEN ON THE COURT/SUPERVISION NATURE OF RIGHTS PROTECTED STATUTORY EQUITABLE REMEDIES Statute Expanding Equitable Remedies Statute Restricting Equitable Remedies INJUNCTION OF CRIMINAL ACTIVITY INJUNCTIONS AND PRIOR RESTRAINTS Chapter 4 INJUNCTIONS RIPENESS, MOOTNESS, AND STANDING Ripeness xiv

17 30.2 Mootness Voluntary Cessation Capable of Repetition Continuing Effects Standing TEMPORARY INJUNCTIVE RELIEF Forms of Relief Traditional Tests for Issuance of Temporary Injunctive Relief Likelihood of Success on the Merits Irreparable Injury Balancing of Hardships or Equities Public Policy or Public Interest Modern Variations of the Traditional Test Maintenance of the Status Quo Freeze Orders Notice and Hearing Requirement Bond Requirement Consequences of Erroneous Ruling for Temporary Injunctive Relief APPELLATE REVIEW OF ORDERS GRANTING OR DENYING TEMPORARY RELIEF PERMANENT INJUNCTIONS Scope of Injunctive Relief Entitlement to Permanent Injunctive Relief Length of Permanent Injunctive Relief SPECIFICITY OF INJUNCTIVE RELIEF PERSONS BOUND BY INJUNCTIVE RELIEF Parties Parties Officers, Agents, etc In Active Concert or Participation with Personal Jurisdiction over Non Party Duty to Participate MODIFICATION OF INJUNCTIONS Preliminary Injunctions Permanent Injunctions Consent Decrees and Structural Injunctions Effect of Appeal on Power of Trial Court to Supervise or Modify Injunction xv

18 Chapter 5 GENERAL PRINCIPLES GOVERNING RESTITUTION RESTITUTION RESTITUTION FOR UNJUST ENRICHMENT The Volunteer Principle Bypassing the Person Benefitted Mistaken Payment Expectation of Payment or Compensation Irreparable Injury Plus-Minus Rule Benefits v. Harms VALUATION OF THE BENEFIT APPORTIONMENT OF BENEFIT Feasibility Defendant s Culpability Wrongdoer s Contribution of Time and Effort RESTITUTION FOR WRONGDOING Tortious Conduct Breach of Contract Other Examples of Restitution in Contractual Settings RESTITUTIONARY DAMAGES Chapter 6 RESTITUTIONARY ACTIONS INTRODUCTION DISGORGEMENT INDEMNITY SUBROGATION Derivative Claim Superior Equities Principle Priorities Make Whole Requirement Settlement or Compromise Loss of Subrogation Rights Commercial Transactions Waiver of Subrogation Splitting the Cause of Action Duties to Fund Creators CONSTRUCTIVE TRUST Trust by Analogy or Metaphor Elements of Constructive Trust Irreparable Injury Requirement xvi

19 54.4 Reasons for Seeking a Constructive Trust Scope of Constructive Trust Purchase of Life Insurance Failure to Maintain Life Insurance Priority Time Interest Attaches Fraudulent Conveyance v. Constructive Trust Equitable Accounting Equitable Lien TRACING PRINCIPLES FOR CONSTRUCTIVE TRUSTS, EQUITABLE LIENS AND EQUITABLE ACCOUNTING Equitable Principles Nature of Tracing Limitations on Tracing Strict Rule in Bankruptcy Lowest Intermediate Balance Rule Tracing and Equal Treatment REPLEVIN Nature of the Action Identification of Property (Accession & Confusion) EJECTMENT QUASI CONTRACT Nature of Quasi Contract Elements of Quasi Contract Connected Relationships Recovery by Party in Breach of Contract Chapter 7 REMEDY DEFENSES COMPARED WITH LIABILITY DEFENSES LACHES AND STATUTES OF LIMITATION Laches Statutes of Limitation Accrual Discovery of Injury or Harm Continuing Injury or Violation Tolling Merger of Law & Equity UNCLEAN HANDS AND IN PARI DELICTO Unclean Hands In Pari Delicto Attribution of Wrongdoing xvii

20 62.4 Merger of Law and Equity DURESS UNCONSCIONABILITY Procedural Substantive EQUITABLE ESTOPPEL, WAIVER, AND ELECTION Equitable Estoppel Waiver Election ILLEGALITY DEFENSES TO RESTITUTION Change in Position Hardship ASSERTION OF DEFENSES AGAINST THE GOVERNMENT Laches Equitable Estoppel Unclean Hands Equitable Tolling Chapter 8 REMEDIES FOR BODILY INJURIES BODILY INJURY REMEDIES LOST INCOME Loss Earnings Loss of Earning Capacity Self-Employed Plaintiffs Children Homemaker Aliens Subject to Deportation MEDICAL EXPENSES Scope of Recovery Discounted Billing Ownership of Claim Medical Monitoring PAIN AND SUFFERING Nature of the Loss Ability to Apprecate Calculation of the Award Excessiveness Loss of Enjoyment of Life Disfigurement Hedonic Damages xviii

21 73.5 Adaptation LOSS OF CONSORTIUM Loss of Services Loss of Relationship Parental and Filial Consortium Domestic Partners REMEDIES WHEN THE PLAINTIFF DIES Survival Actions Wrongful Death Actions CONCEPTION-RELATED CLAIMS Wrongful Birth/Wrongful Life Wrongful Conception/Wrongful Pregnancy Chapter 9 REMEDIES FOR INJURY TO PERSONAL PROPERTY PHYSICAL DAMAGE Complete Destruction Partial Destruction Loss of Use Loss in Market Value VALUE TO OWNER PETS DAMAGES FOR LOSS OR INTERFERENCE WITH POSSESSION Conversion Replevin Trespass to Chattels RETURN OF POSSESSION Replevin Superior Title or Equity in Another Statutes of Limitation Pre-Trial or Judgment Remedy Equitable Replevin Genetic Material UNJUST ENRICHMENT AND RESTITUTION GOOD FAITH IMPROVERS OF PERSONAL PROPERTY Chapter 10 REMEDIES FOR INJURY TO REAL PROPERTY PHYSICAL DAMAGE Temporary or Permanent Injury Economic and Noneconomic Losses Damage to Buildings xix

22 90.4 Removal of or Damage to Fixtures Condemnation Through Eminent Domain Damage to Public Property NATURAL RESOURCE DAMAGE Environmental Injury Stigma Damages Damage to Trees and Shrubs EJECTMENT TRESPASS Temporary or Permanent Damages Injunction Restitution NUISANCE Temporary or Permanent Damages Temporary Nuisance Damages Permanent Nuisance Damages Annoyance and Discomfort Damages Injunction Public v. Private Restitution WASTE GOOD FAITH IMPROVERS OF REAL PROPERTY Chapter 11 REMEDIES FOR INJURY TO RELATIONSHIPS ECONOMIC RELATIONSHIPS SOCIAL AND PROFESSIONAL RELATIONSHIPS PERSONAL RELATIONSHIPS Alienation of Affection Criminal Conversation Seduction Breach of Promise to Marry HEART BALM STATUTES Personal Tort Committed by Fiduciary Intentional Infliction of Emotional Distress Fraud WRONGFUL ADOPTION xx

23 Chapter 12 REMEDIES FOR DEFAMATION PRESUMED DAMAGES REPUTATIONAL INJURY General Principles Libel-Proof Plaintiffs Incremental Harm Rule Reputation Damages Without Defamation Claim NON-REPUTATIONAL DAMAGES ENJOINING A LIBEL DISPARAGEMENT Chapter 13 REMEDIES FOR INJURY TO PERSONAL RIGHTS PRIVACY CIVIL RIGHTS/CONSTITUTIONAL TORTS LITIGATION TORTS BREACH OF FIDUCIARY DUTY Chapter 14 FRAUD AND MISREPRESENTATION NATURE OF FRAUD Common Law Fraud Promissory Fraud Negligent Misrepresentation Non-Disclosure as Fraud FRAUD ISSUES Materiality Loss Causation Economic Loss Rule Reliance DAMAGES Out-of-Pocket or Benefit-of-the-Bargain Measure Consequential Damages Pecuniary Loss Requirement Distress Damages Attorney s Fees and Punitive Damages Statutory Fraud Actions Fiduciary Actions INJUNCTIVE RELIEF RESTITUTION PERSONAL RELATIONSHIPS xxi

24 Chapter 15 RESCISSION (DISAFFIRMANCE) OF BARGAIN NATURE OF RESCISSION FORMS OF RESCISSION Law Equity DEMAND FOR RESCISSION Notice Requirement Tender Requirement Pecuniary Loss Requirement ELECTION OF REMEDIES Interim Relief Judicial Estoppel Election RESTORATION OF THE STATUS QUO SCOPE OF REMEDY OF RESCISSION Rescission Damages Disgorgement of Benefits Received Punitive Damages Losing Contracts GROUNDS FOR RESCISSION Chapter 16 BREACH OF CONTRACT REMEDIES GENERAL PRINCIPLES OF CONTRACT REMEDIES BAD FAITH BREACH Tort-Based Remedies Contract-Based Remedies Preliminary Negotiations DISTRESS DAMAGES Chapter 17 BREACH OF EMPLOYMENT CONTRACT EMPLOYMENT CONTRACTS Common Law Principles Statutory Rights Restitution Remedies EMPLOYEE S DAMAGES AGAINST EMPLOYER EMPLOYEE REINSTATEMENT TO POSITION EMPLOYER S DAMAGES AGAINST EMPLOYEE EMPLOYER S INJUNCTION AGAINST EMPLOYEE EMPLOYER S REMEDIES FOR EMPLOYEE S BREACH OF DUTY. 774 xxii

25 Chapter 18 BREACH OF CONSTRUCTION CONTRACT CONSTRUCTION CONTRACTS OWNER S REMEDIES FOR CONTRACTOR S BREACH Incomplete Performance Defective or Deficient Performance CONTRACTOR S REMEDIES FOR OWNER S BREACH Anticipatory Breach by Owner Partial Performance by Contractor Change Orders Delay in Completion or Disruption in Work LOSING CONTRACTS AND RESTITUTION Chapter 19 BREACH OF CONTRACT TO SELL OR PURCHASE REAL PROPERTY BREACH OF CONTRACT TO SELL OR PURCHASE REAL PROPERTY BUYER S REMEDIES Damages Specific Performance Restitution SELLER S REMEDIES Damages Specific Performance Restitution INSTALLMENT LAND SALE CONTRACTS Chapter 20 SPECIFIC PERFORMANCE INTRODUCTION CERTAINTY ABILITY TO PERFORM MUTUALITY OF REMEDY FAIRNESS FLEXIBILITY ABATEMENT DAMAGES Chapter 21 AGREED REMEDIES INTRODUCTION LIQUIDATED DAMAGES Damages or Penalty xxiii

26 181.2 Penalty or Condition Timing of Decision LIQUIDATED DAMAGES: COMPENSABLE DAMAGE REQUIREMENT LIQUIDATED DAMAGES AS EXCLUSIVE OR NON-EXCLUSIVE REMEDY LIQUIDATED DAMAGES AS OVERCOMPENSATORY OR UNDER COMPENSATORY SPECIFYING INJUNCTIVE RELIEF BY CONTRACT NEGATING REMEDIES BY CONTRACT Contracts for the Sale of Goods Other Contracts As Is Clause Chapter 22 CONTEMPT NATURE OF CONTEMPT TYPES OF CONTEMPT Criminal Contempt Civil Contempt CLASSIFICATION OF CONTEMPT AS CRIMINAL OR CIVIL Nature of Sanction Ability to Comply Initiation by Court or Party Consequence of Incorrect Characterization ELEMENTS OF CIVIL CONTEMPT Order Prior Knowledge Order Must Be Clear and Definite Non-Compliance Clear and Convincing Evidence COERCIVE CIVIL CONTEMPT Procedure for Obtaining Coercive Sanction Coercive Imprisonment Ability Versus Willingness to Comply Coercive Fine Excessiveness Recipient of Collected Fines COMPENSATORY CONTEMPT ATTORNEY S FEES DEFENSES TO CONTEMPT COLLATERAL BAR RULE xxiv

27 198.1 Scope and Nature of Collateral Bar Rule Exceptions to Collateral Bar Rule Jurisdiction to Determine Jurisdiction Rule ATTEMPTED CONTEMPTS Anticipatory Contempt Evasion of Anticipated Order Chapter 23 PUNITIVE DAMAGES INTRODUCTION PURPOSE OF PUNITIVE DAMAGES Punish Deter Compensation SCOPE OF PUNITIVE DAMAGES Socially Deplorable Conduct Fraud Intentional Infliction of Harm Bodily Injury Property Damage Economic Loss Other Invasion of Right Aiding and Abetting Breach of Contract Equity Arbitration Public Entities and Not-For-Profit Organizations Vicarious Liability Multiple Punitive Damages Awards ACTUAL INJURY REQUIREMENT WEALTH OF THE DEFENDANT DUE PROCESS LIMITATIONS ON AMOUNT OF AWARD The Supreme Court s Jurisprudence Reprehensibility of the Conduct Ratios Between Compensatory Award and Punitive Damages Award Comparable Misconduct Penalties Other Factors STANDARD OF REVIEW OF AWARD MULTIPLE DAMAGES AWARDS Augmented Damages Augmented Damages and Punitive Damages Statutory Damages and Actual Harm xxv

28 208.0 DISCRETION AS TO THE SCOPE AND THE SIZE OF AWARD TORT REFORM PUNITIVE DAMAGES Chapter 24 ATTORNEYS FEES ATTORNEYS FEES THE AMERICAN RULE EXCEPTIONS TO THE AMERICAN RULE Statutory Authorization Contractual Authorization Common Fund Third Party Tort Bad Faith Inherent Power PREVAILING PARTY AWARD OF FEES Calculation of Fees Limitations on Attorneys Fees Awards Substantially Justified Actual Damages Award as Limit on Fees Award Retainer as Limit on Fees Award Pro Se Attorney Litigants STANDING TO COLLECT FEES AWARD TABLE OF CASES TC-1 INDEX I-1 xxvi