Problem Remedies 2011

8/3/2019 Problem Remedies 2011

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REMEDIES 2011 (GORDON)

GENERAL FEEDBACK ON PROBLEM 2:In reviewing your submissions for Problem 2, I see that many of you are incorporating thefeedback given on Problem 1. Key points concern our attention to accessibility. Whether amemo is one page or twelve or twenty-four or fifty, it must have a transparent organization thathelps the reader follow the facts and the arguments. Ordinarily this organization in a motion inKing County or a brief, follows certain standards set out in the applicable rules. King Countymotions have a format that is set out in both the Civil Rules and the Local Rules. Appellatebrief formats are strictly regulated by the Rules of Appellate Procedure. Within theseframeworks an outline format is generally used to organize the legal argument and to show thehierarchy of ideas: big headings with supporting subsections, etc.Starting a memo with the standard format:To:From:Date:Re:and using proper margins and minimum of 12 point font is the place to start. Accessibilitydetermines whether your memo can be easily read and understood apparent from itsgrammar and content.

As for content, these problems do not require research outside of our casebook. If it helps you

analyze the problem, it is not forbidden, however. There are occasions, such as in thisproblem, where research might reveal Restatement (Second) of Contract 348 and theWashington State analysis. Every year a handful of students find this Restatement and itinforms their analysis. This is an achievement and definitely improves the grade for thisassignment.These problems are, first and foremost, meant to challenge you to apply what weve discussedin class not only to come up with a comprehensive response to the problem itself. Whatfollows is some general feedback which may be of interest to you. Some have asked to whatdegree these problems are to be individual work. I believe that discussion of the problemsbetween people in a class just like in a law office may be beneficial. But, in class, as in the

office, when it comes to putting the words down on the page, it is usually an individual effort.To be clear, discussions of the issues may be had without guilt but the expression of thoseissues in written form and the written analysis is to be your individual work. From the time yousit down to write, until the writing is submitted, I am interested in how you, individually, presentthe thoughts you wish to express. I hope this gives you some guidance.Principles of Organization. The same principles of being comprehensive, accurate, andaccessible to the reader apply to this second problem as to the first. Please look over the


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basically reversed the Oklahoma state law principles involved. In Rock Island, the courtordered payment from a bond of $375,000 in land restoration even though the market value ofthe land would only be increased $6,797. Yet, in 1994, in Schneberger v. Apache Corp., theOklahoma Supreme Court reaffirmedPeevyhouse. The moral is unclear, but it demonstratesthe challenges of choosing the measure of compensation: market value or cost of restoration. Trinity Church: Competing Measures of Damage. We need go no further than the TrinityChurch case, however, to see how the competing contract measures of loss of market valueand costs of repair or restoration interact. In Trinity Church, the court found that for thisspecial use property (a property without a market value reflective of its value), the reasonablecost of restoration was properly awarded as the measure of damages. Trinity Church,however, it must be recalled was not a contracts case. Here, because of the notion ofcontractual expectation damages, we may be in an even stronger position to ask that thecourt enforce the expectations of the parties so long as the red tile (rather than the gray tile)was a specification of performance and the costs of performance are not disproportionate tothe total contract amount.Use of Award. As in Trinity Church, the court will not control how our client uses the award.Still, if it seems as though the money will be used for costs of repair, it seems that this mayhelp the court award repair costs even if the diminution in market value is negligible. The courtmight be reluctant to award the cost to complete if Eli does not really intend to complete thecontract. It may not want to award a windfall at the contractors expense. Easy questions,but hard answers.

Personal Satisfaction as a Contract Goal. How does one balance the intangible value ofpersonal satisfaction against market value? This is, after all, your home and yourbathroom. Should a contract you enter for the purpose of pleasing your own esthetic sense besubordinated to what everyone else thinks of your taste which is what market valuereflects? Photographs of someone elses pet are not of interest to you. But the market valueof the paper, the cost of the photographic processing, the mailing expense, are all the same nomatter whose pet is on the picture.

Clearly, a lawyer seeking to enforce a contract with the principal purpose of gratifying thesubjective sense of the purchaser/homeowner would be well-served by spelling out in specificterms the importance of strict compliance with the specifications and plans. You might even if you are concerned about this point emphasize that the actual cost of strict compliance isessential to the contract. Substantial performance of a contract may be fair in manycircumstances. But what if someone builds you a ranch-style split level home instead of theTudor-style home you wanted and claims that it is of equal or greater market value? Theyhave taken your land and put someone elses idea of a home on it, not only depriving you ofthe pleasure of your own design, but using your land. To get what you want, you now have toknock the home down and rebuilt from scratch. Economically wasteful? Personalsatisfaction? Substantial performance? On some level, should expectancy damages simplygive us what we expect and contract for so long as the economic waste is not too great?Otherwise, we are left with people never being able to get what they expect from their


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contracts! Where, as here, the chief element of the contract concerns aestheticconsiderations, isnt that an enforceable right? That seems different from, say, simplyreplacing a brand of pipe where one could argue that the difference does not make a differencefunctionally and there is not any overriding aesthetic component going to the essence of thecontract.

The Washington State Analysis. In Washington, such contract disputes are often resolvedby seeing how much the cost of repair is compared with the total amount of the contract. Isthe cost of specific performance or repair/restoration to strict compliance disproportionatelylarge when compared with the balance of the contract? Clearly, our client, Eli, has a hardercase if the cost of redoing the tile work is $60,000 instead of $6,000. These cases, althoughcontract cases, often seem to raise questions of fact involving fault in the context ofreasonable reliance. For instance, if Eli stood back and watched the entire house beinginstalled with the wrong color tile and acquiesced or begrudgingly went along, it is possible thatenforcement of the specification for red tiles may have been waived or acquiesced in or thatthe contractor proceeded in reliance upon Elis conduct. In such a case, you may see thecontractor allege accord and satisfaction, reflecting that there had been an agreement to alterthe performance in terms of some mutual benefit (for example, to make one up, that thecontractor agreed to provide the more expensive gray tile with no additional charge.) All ofthese are the kinds of factual disputes that can arise. If the tile replacement was only a smallpart of the contract, the court would be more likely to specifically enforce performance. Still, ifthe entire contract was one for tiles and the tile contractor put in the wrong color contrary tospecifications, it is quite possible that the court would find that substantial performance had notoccurred. Then the court would have to decide whether the appropriate remedy would bediminished market value or costs of repair.Here, given that the contractor failed to follow the detailed specifications, it appears hebreached the contract. The Restatement (Second) Contracts provides that to determinewhether a breach is material, the court evaluates the extent to which the injured party will bedeprived of an expected benefit and the extent to which that party can be adequatelycompensated for the portion of benefit of which he is deprived. Eli must prove that he wasdeprived of a benefit, and that the $6000 can adequately compensate him for the benefit ofwhich he was deprived.Washington has adoptedRestatement (Second) of Contract 348 as the appropriate rulefor determining damages in construction contract cases: if a breach results in unfinishedconstruction and the loss in value to the injured party is not proved with sufficientcertainty, recovery of damages may be had based on the (a) diminution in the marketprice or (b) the reasonable cost of remedying the defects if that cost is not clearlydisproportionate to the probable loss in value to him.You do not have to do research for these problems outside of our casebook materials.The Uniform Commercial Code. Some of you looked to the UCC for insight into this


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problem. If the goods delivered pursuant to a contract fail in any respect to conform to thecontract, a buyer may reject the non-conforming portion within a reasonable time afterdelivery. RCW 62A.2-601(c); RCW 62A.2-602. But are we dealing with a contract for goods orservices? Is it a reasonable time after the contract to wait until the tiles are installed? Was itElis job to wait at the house and make sure the tiles were the right color before installation? In

practical terms, should a prudent contractor wait until the homeowner is there to sign off on thetile color before installation? That procedure might save lots of headaches later on but, is itstandard? In this case, the UCC does not answer the questions we need to ask.Remedies. Of course, every situation asks what remedies are available? Enforcement ofexpectancies? Specific enforcement (coercive) remedies? Here, for instance, it might at firstblush make sense to simply order the contractor to tear out the tile and put in new tile. But, inreality, compelling a contractor to do such work might well constitute enforcement of apersonal service contract (like ordering an opera singer to sing) and might be unsound aspublic policy and practically speaking if there is hostility (which there probably would beafter litigation) between the parties. Probably it would not be a good idea to have the

contractor go back into the house to do this work for what if the tile installation is less thanperfect? (It could be too difficult to compel the contractor to do the work and too hard on theparties to force them to deal with one another.) Mediation? Does the contract provide forattorneys fees for the prevailing party in cases of a clear breach (failure to followspecifications) such as occurred here? What would you suggest?The above are some of the issues lurking in Problem 2. Obviously, it would be difficult, if notimpossible, to touch on all of these in a one page response. With subheadings, however, youcan demonstrate your awareness of these issues. This exercise will be useful for the Barexam, as well as in practice.Concluding Thoughts. Once again, I have asked the impossible: a one page responsewhere, here, the feedback is nearly six pages long!Do not be disheartened. No one can cover six pages in one page without recourse tomicroscopic font (forbidden!), so that is not the goal of the assignment. The goal of theassignment is to help you think through some of the issues associated with contractmeasures of damages: reliance and expectation damages, primarily. When is marketvalue the proper measure? How does the law and your own sense of fairness reconcilethese ideas? {See the Restatement. Remember the Restatement is not a statute, but ascholarly summary of the state of the common law by the American Law Institute. So, itis a good way to get a sense ofhow courts wrestle with and resolve issues.) Some ofthe big ideas are set out above and a memo that touches on some of these big ideas isexercising the kind of reflection, selection, and editorial discretion that this assignmentcalls for.

Some years ago, a student was disheartened because the student believed that they hadso badly bungled the assignment that I had prepared this memo for them alone. Thismemo represents reflections over a period of years and is intended to supplement our


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classroom discussion on the subject using Problem 2 as a springboard. Even if youhave not done Problem 2, you should review and study this Feedback. It is not acriticism of your work, but, rather, an extension of our classroom work together.

By providing this General Feedback, I am able to save time in my written, individualcomments. So, please review this and I think you will be able to see where your ownwork-product can be enhanced.

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Problem Remedies 2011