condensed equity outline

8/12/2019 Condensed Equity Outline

http://slidepdf.com/reader/full/condensed-equity-outline 1/5

EQUITY

• Covers 95% of Equity Material Tested

First / Threshold Question: Is this in the right court? Should it be in the Court of Chancery or

in Superior Court?

1. Chancery’s Equitable Jurisdiction (Q: Is this case properly heard in the Court of

Chancery?)

a. Threshold Issue re: Equitable Jurisdiction: Is there a remedy at law adequate?

i. If so, case does not belong in chancery; probably belongs in Superior

Court

b. Chancery JX grant & limitation (by statute):

i. Section 341 GRANT: The court of chancery shall have jurisdiction to hear

and determine all matters and causes in equity

ii. Section 342 LIMITATION: Court of Chancery shall not have jurisdiction

to determine any matter wherein sufficient remedy may be had by common

law or statute before any other court of this state

Next Question: Should the Court of Chancery issue the equitable remedy P seeks? Is there any

reason to deny the equitable relief sought?

2. Equitable Relief

a. No Right to Equitable Relief:

i. Unlike legal remedies, which issue as a matter of right, the P has no

absolute right to equitable relief.

ii. Decision to issue an equitable remedy lies in the sole discretion of the

Court of Chancery (in the Chancellors or Masters)

b. Equitable Defenses (i.e. the reasons the court will use to deny equitable relief):

1. Latches

2. Unclean Hands

3. Balance of Hardship

4. Ripeness

5. Mootness

6. Impracticality

7. Specificity

8. Equitable Estoppel

9. Waiver

10. Acquiescence11. Ratification

12. Unconscionability

Next Question: Does the P have a proper case for equitable relief (i.e. is P seeking a form of

equitable relief)?

3. Forms of Equitable Relief



a. Injunctions: (MOST TESTED)

i. Definition: An extraordinary equitable remedy that operates in personam

to enforce personal and property rights and prevent future injury.

ii. Injunctive relief is appropriate only to prevent harm that is imminent,

unspeculative, and genuine

iii. Two Classifications of Injunctions:1. Mandatory Injunction: [very rare]

a. Compels D to perform a specific act (e.g. D is ordered to

remove boulders he put on P’s land)

b. Will often see with real estate cases, since real estate is

unique

c. Note to know: No right to strike for public employees

2. Prohibitory Injunction: ( Most likely to see)

a. Directs D not to do a specific act (e.g. D is enjoined from

trespassing upon P’s land)

b. Traditionally awarded more liberally than mandatoryinjunctions

iv. Three Types of Injunctions:

1. Temporary Restraining Order (TRO)

a. Definition: Operates to prevent irreparable injury and to

preserve the status quo pending a hearing on an application

for a preliminary injunction.

b. To prevail, P must establish 3 elements:

i. There is an imminent threat of irreparable injury to

P’s interests in the absence of such relief

1. ** Chancery rules require P to file an

affidavit or verified complaint evidencing

such injury **

2. Generally issued on a limited record

ii. There exists a reasonable probability that P will

succeed on the merits of its complaint at trial

iii. The balance of hardships arising from the issuance

of the TRO tips in P’s favor on the record presented

c. TRO issued for a limited period (generally 10 days or

less) and may be issued w/o notice to D (i.e. issued ex

parte); P must post a security bond

2. Preliminary Injunction (PI):

a. Purpose: preserve the status quo pending a final

determination on the merits.

b. Unlike a TRO, the Preliminary Injunction requires that

D be given notice of P’s application

c. Stays in effect until the trial is resolved; P must post a

bond



d. Is usually considered on a paper record

e. A preliminary injunction is considered an

extraordinary remedy and will be denied where the

remedy sought is excessive in relation to the injury or

unnecessary to prevent the injury threatened.

f. 3 Elements P Must Prove:i. Reasonable probability of success on the merits

1. ** This first element receives greater

weight for the PI than the TRO; this is

what distinguishes their tests **

ii. Immediate threat of irreparable harm in the absence

of an injunction

iii. Balance of hardships tips in plaintiffs favor

1. (I.e. harm plaintiff will suffer if relief is

denied outweighs harm defendant will suffer

if the relief is granted)3. Permanent Injunction:

a. Moving party must prove:

i. Actual success on the merits

1. (Note: Permanent injunctions only issue

after a final determination on the merits)

ii. Irreparable harm

iii. Harm resulting from failure to issue an injunction

outweighs the harm befalling the opposing party if

the injunction is issued

b. Not truly “permanent” b/c can always seek relief from it

later (e.g. if changed circumstances, etc.)

b. Additional Equitable Remedies:

i. Specific Performance: extraordinary remedy

1. Only available if the terms of the contract are definite and money

damages are a poor substitute for performance; often used with real

estate

ii. Equitable Conversion:

1. Rule that “equity regards what ultimately must be done as having

been done”

a. Note: There are no SOL for equity cases

iii. Rescission: cancellation of “unmaking” of an agreement and attempts to

return the parties to the status quo

1. RECENT MBE Q: 40% to 50% unconscionable rates

iv. Reformation: designed to change the written agreement to reflect the true

intent of the parties or to correct a “scrivener’s error”



v. Restitution: requires D to pay over to P a sum of money which D has

acquired under circumstances which might have been deemed unjust

enrichment or a windfall

vi. Contempt: Parties who fail to obey the Court of Chancery’s orders may

be found in contempt of the Court and fined $100 or get 170 days in jail.

c. Other Chancery Actions:i. Accounting

ii. Guardianship

iii. Partition

Next Question: If properly in Chancery, what court procedure rules have to be followed?

4. Court Procedure: Rules of the Court of Chancery

a. Must have a Verified Complaint

b. Must have proper service on an organization you must serve the summons and

complaint to the corporation’s registered agent (i.e. can’t serve the guy cutting thegrass) or personally serve any officer or director of the corporation

c. Times New Roman – 14 point; they will reject it if it doesn’t follow the rule

d. Note: There are no juries in the Court of Chancery.

NOTE: Superior court:

e. Handles 95% of the civil cases with significant amounts in controversy



INJUNCTION GAME PLAN:

1. Injunctive Relief for Tortious Conduct:

a. Identify the Tort:

1. NOTE: Fact pattern may try to emotionally justify conduct, ignore

thatii. Possibly:

1. Waste of Real property:

a. Voluntary, Permissive, or Ameliorative

2. Trespass

a. Could be:

i. Entry or causing another object to enter land

ii. Remaining on the land after permission to enter has

expired

iii. Failing to remove an object from the land of another

where there is a duty to do so

3. Nuisance:****

a. Public: unreasonable interference with a right common

to all members of public

b. Private: Private nuisance is the unreasonable

interference with the use and enjoyment of the land

4. Injuries to Personal Rights:

a. Defamation

b. Right to Privacy

5. Injuries to Economic Interests

a. Trade Libel

b. Inducing Breach of Contractc. Refusal to Deal

d. Misrepresentation of Trade Secrets

e. Trademark and Name Infringement

b. Is there a protectable interest?

c. Is the legal remedy inadequate?

d. Are the hardships balanced?

i. Hardship may not be balanced where the defendants conduct was criminal

or violated an important public policy

e. Does the defendant have any defenses to Equity?

f. Is Enforcement feasible?

Outline in the Answer, graders will award points for outlined answers not filled in

Exams tend to ask about service in conjunction with injunctions

Should list long arm as 3114

condensed equity outline

Documents