Causes of Action
Allege What You Must Prove
Nothing Else Matters!
Causes of Action are your right to compel the court to enforce your God-given rights.
They are your "right to sue".
To do what they are designed to do, they must contain "essential elements".
Consider a recipe for pineapple upside-down cake. Certain ingredients are required. One is pineapple. If you don't include pineapple, you cannot get pineapple upside-down cake.
Every civil case (Criminal tactics and the "essential elements" of crimes are covered in a later lesson. Don't go there yet.) stands or falls on this simple principle. The winner must allege and prove sufficient ultimate facts to present the essential elements required by at least one cause of action. Failure to allege sufficient ultimate facts to present at least one cause of action will result in a Motion to Dismiss for Failure to State a Cause of Action, and the court will grant that motion!
To win a breach of contract case, plaintiff must allege and prove:
- Defendant agreed to the terms of a legally binding promise.
- Defendant failed and refused to perform his promise.
- Plaintiff suffered damages for which the court should award money as compensation.
If any ultimate fact necessary to establish an essential element is missing, plaintiff loses.
Every case, criminal and civil, is a contest of alleging and proving ultimate facts to establish essential elements.
This class lists the essential elements for most civil causes of action. (Criminal elements are examined in the lesson on Criminal Defense Tactics. Don't go there now!) Different causes of action have different essential elements. Breach of Contract, Fraud, Battery, Assault, Slander, etcetera.
More than one cause of action can be filed, but each must present all essential elements by alleging all ultimate facts necessaryt to establish those essential elements.
Watch this 7 minute video ... then finish this class.
Many lawyers never learn this!
It isn't rocket science, but it isn't emphasized in every law school, so stupid lawyers fight with one hand tied behind their backs, not knowing what ultimate facts must be alleged and proven to establish at least one cause of action!
Here's a simple cause of action for breach of contract:
COUNT ONE: BREACH OF CONTRACT
23. This is an action for breach of contract.
24. On the 1st of April 2011 defendant offered to sell his prize bull to plaintiff for $2,000.
25. Plaintiff and defendant signed a written contract agreeing to the terms of the bargain.
26. A copy of the written contract is attached as Exhibit 1.
27. Plaintiff gave defendant $2,000 in cash.
28. The next day, while visiting a local tavern where defendant goes to drink himself silly every day, plaintiff learned that defendant was bragging how the bull died the week before.
29. Plaintiff made demand for the live bull he bargained and paid for.
30. Defendant failed and refused to deliver the bull alive or return the plaintiff's money.
31. Plaintiff suffered $2,000 in money damages as a direct result of defendant's breach, and the breach was material in that it went to the heart of the bargain in that Plaintiff did not get the bull he paid for.
WHEREFORE plaintiff moves this Honorable Court to enter an Order of Final Judgment awarding plaintiff money damages and such other and further relief as the Court may deem reasonable and just under the circumstances
That's it! It's just common sense.
ATTENTION:
You do not need to study all of this class. The following lists various causes of action with their essential elements. Study at least a few of them until you "get the idea" how each stands or falls on its essential elements. Then can come back to this class to "look up" whatever cause or causes of action that may apply to your legal battle.
Here's a clickable index of links to the list:
Abuse of Process
Abuse of Process arises when defendant abuses the legal system to injure plaintiff by obtaining or seeking to obtain a wrongful, unjustified result.
The plaintiff must allege sufficient ultimate facts to establish all essential elements required, or he has failed to "state" this cause of action, and the case will be dismissed on defendant's Motion to Dismiss for Failure to State a Cause of Action.
Suppose Smith sues Jones for fraud just to keep Jones from closing a deal with Miller. Smith believes that when Miller sees that Jones has been sued, Miller will not want to do business with Jones. Smith wants to stop the deal, so he abuses legal process by suing to obtain a wrongful result.
Jones must allege in his suit for abuse of process that:
The underlying wrong is perversion of our legal system. Smith, like the rest of us, owed a duty to Jones (and the rest of us) not to abuse our legal system. He breached that duty. Jones suffered damages.
The cause of action arises to give Jones the right to sue!
Abuse of process may arise where a person sues in civil court or files criminal charges unjustly to achieve an unjustified result.
It is not necessary for Jones to win the lawsuit brought by Smith, provided he can show (in his counterclaim against Smith for abuse of process) that Smith intentionally proceeded against him for an improper purpose.
Proof of maliciousness is not required. Improper purpose is what gives rise to this cause of action, a purpose that abuses the system itself.
Elements
Defenses
Absolute Immunity
So long as the acts of the court or a judge have some relation to the proceeding, the court system and the judge are protected by absolute immunity from suit for abuse of process. Statements amounting to perjury, libel, slander, and defamation do not give rise to an action for abuse of process.
Act After Process Issues
Before the cause of action of abuse of process can arise, the court must issue some form of process (usually the summons that commands a civil defendant to appear in court and answer the complaint). No act occurring prior to issuance of the court's process can give rise to this cause of action.
Intended Purpose
There is no cause of action for abuse of process if process is used to accomplish a proper result (e.g., bringing a civil defendant before the court to answer a complaint that's predicated on a legitimate cause of action), even if the process furthers an invidious purpose separate from its legitimate intent.
Abuse of process is frequently used as extortion, i.e., to compel another to do something he would not otherwise be lawfully compelled to do. If the one using process has a legitimate reason to do so, however, there is no abuse, and the cause of action must be dismissed.
Counterclaim
In jurisdictions where the complaining party need not prevail in the underlying action as a pre-requisite to bringing this cause of action, one may file a counterclaim seeking damages for abuse of process.
Unless the counterclaim itself stands on a solid footing, however (i.e., unless the counterclaim is justified by the facts, rather than being a mere retaliatory tactic without merit in its own right), the party filing the counterclaim may be sued for abusing process.
Check local rules and case law to determine if abuse of process requires as one of its essential elements a termination of the action in favor of the person against which the allegedly abusive process was issued in the first place.
Accounting
A cause of action for an accounting arises where there is a fiduciary relationship [a relationship based on trust that the law recognizes] such as where one party has a dispute with a guardian, trustee, receiver, or other fiduciary who has control over assets of the complaining party.
An accounting may also be ordered where issues in a contract case, for example, are so complicated it's not clear if the facts can be ascertained any other way and where terms of the underlying contract provide for an accounting to be ordered in the event of a dispute.
When the complaining party has no separate access to the records of a fiduciary, an action for accounting will almost never be denied.
Elements
This remedy is grounded in "equity". The court has broad discretion in whether or not to grant the relief sought.
Defenses
If the matter for which the other party seeks an accounting is simple on its face, e.g., an oral agreement for performance of a clear-cut duty that involves no fiduciary entrustment of assets, this defense should be raised with a motion to strike or motion to dismiss.
Comments
The remedy of an accounting is almost always granted by a judge or special master appointed by a judge. Accountings are never submitted to a jury, unless the court deems that justice demands that a jury try the facts and reach a determination on the facts. The application of law is the judge's province.
Winding up of partnerships, for example, frequently requires an accounting to determine the respective parties' interests in assets of the terminated partnership.
An accounting may also be necessitated when a closely held corporation's business comes to a standstill because of decision deadlock between directors.
Account Stated
Account Stated arises when parties have engaged in business over an extended period of time and suddenly debtor refuses to deny amount claimed due by creditor.
If creditor demands (e.g., by periodic invoices or demand letters) and debtor does nothing to deny the claim while refusing to pay, creditor has this cause of action to collect the debt based on the parties' prior consistent dealings.
The longer the course of prior dealings, the easier for plaintiff to win, because the parties have established a pattern that is suddenly disrupted by the defendant's wrongful acts or failures to act.
Account Stated is often abused by people unfamiliar with its elements. Many mistakenly believe they can "invoice" someone for a debt, stating in the invoice, "If we do not hear from you within 10 days," or words to that effect, "we will assume you acknowledge the debt." This may work against naïve or poorly-represented defendants, however it will not work where the essential elements of this cause of action do not exist.
Elements
Defenses
The most common way to defeat an action for account stated is to show the debt claimed is new, i.e., there was no prior course of dealing.
If there was a prior course of dealing and a long history of periodic billing that defendant timely and routinely paid over an extended course of time before receiving the invoice(s) in question, defendant is put to the difficult task of proving (1) he did not assent to the amount stated in the invoice or demand, (2) he had no obligation to do so, (3) he never received the goods or services for which the invoice applies, or (4) he paid the debt.
Comments
Failure to respond to a demand letter, without more, is insufficient to give rise to this cause of action.
Suing for account stated, when essential elements are clearly absent, may expose plaintiff to a counterclaim for abuse of process (see above).
Assault
Assault is merely a threat to do physical harm coupled with the present ability to cause the threatened harm.
Assault has nothing to do with slapping, striking, biting, kicking, scratching, or any other physical touching. (Battery is the cause of action arising from actually touching someone, whether physical harm results or not. See Battery below.)
Assault arises from the mere threat of physical harm, if the person threatening has the present ability to carry out his threat.
Plaintiff must allege and prove she had a well-founded fear of "imminent injury".
If I phone from Wisconsin and threaten to break your arm while you're at home in Florida, you have no case for assault. I have no "present ability" to harm you, and you have no "well-founded fear of imminent injury".
If I walk up to you holding a baseball bat and threaten to break your leg, you have a cause of action for assault. If you have witnesses to testify on your behalf, you'll probably win.
The measure of damages you can recover, i.e., how much money the case may be worth, depends on severity of the threat and degree of fear the court believes it would cause a reasonable person in the same or similar circumstances (typically a jury decision).
Elements
Comments
Threat to injure property is not assault.
Defenses
Any communication or act done in pure self-defense is a defense.
Any communication or act done in defense of property is a defense. Thus, if you're in the act of stealing potatoes from my garden, and I run toward you waving a shovel over my head, shouting, "Get out of my garden or I'll pound you with this spade," I have a defense to your cause of action for assault.
Spoken words alone do not constitute sufficient justification for assault. The old adage, "Sticks and stones may break my bones, but words will never hurt me," applies in cases where one person tells another, "You are by far the ugliest mortal I have ever witnessed!"
To respond to such a statement with, "Hold still, you little varmint, while I pound your head with this beer bottle," will subject you to civil liability for the tort of assault.
Caveat
Threatening to cause severe bodily injury may be justified if made in response to a well-founded fear of imminent bodily injury.
Threatening to cause mortal injury by lethal force, however, are only justified in response to threats that cause a well-founded fear of imminent death or severe physical injury.
Threatening to kill a potato thief is not justified.
Assumption of Duty
Beginning an action to benefit another may impose a duty to complete the benefit, i.e., once one assumes a duty he is duty bound to fulfill that duty.
A young man enjoying the sun on a crowded beach hears a cry for help and dashes to the water's edge. If he decides to swim out to rescue the drowning victim, he is deemed to have assumed the duty and is liable for damages if he now fails to exercise reasonable care with regard to that duty.
If he swims only within a few yards of the frantic victim then turns back in fear, the courts can hold him liable for the drowning, because he breached the assumed duty.
Before he begins the attempt, he has no duty under common law. If he makes the attempt but does not exercise reasonable care, the bereaved family of the drowning victim has this cause of action ... especially if his aborted attempt dissuaded others from making the effort.
Our courts have settled this issue.
If you undertake to act for another's benefit in a manner reasonable persons would consider necessary for the safety of the other person or his property, you assume a duty to do so with reasonable care.
Elements
Defenses
Good Samaritan Act
Some jurisdictions have enacted statutory clarifications that limit liability of persons who gratuitously [i.e., without anticipation of financial gain] render assistance, medical or otherwise, in "emergency" situations. These statutes do not remove liability for those who act without reasonable care but clarify the standard of care that must be observed.
Performance Not Begun
If one makes preparations to render service but does not actually follow through, no duty is created. He is only liable to act with reasonable care after he assumes the duty by beginning.
Battery
Battery arises when plaintiff suffers harm or humiliation as a result of being touched.
The touch may be violent or gentle.
It is battery unless it was invited or legally justified. It need not cause physical injury.
Herein be warned. Merely touching someone may trigger a lawsuit if the touching is deemed offensive!
Elements
Comments
Negligently touching another (i.e., without intent) does not give rise to battery, unless the person touched is unusually sensitive, in which case an action for pure negligence may arise, but not battery. Battery must be intentional.
Defenses
Insanity
Since intent is a requisite element for battery, insanity (or extreme intoxication) may be a defense. The question is degree, i.e., whether defendant possessed the requisite mental capacity to intend his act. A merely intoxicated person may (in some cases) avoid liability for battery yet remain liable for negligence, if it is determined his intoxication was, itself, intentional.
Self Defense
One is authorized to use reasonable force against another to protect oneself from physical harm.
Breach of Contract
Breach of contract arises when defendant acts as if no contract existed!
Elements
What could be simpler?
Enforceability
Contract must be enforceable to provide the basis for a breach of contract case.
A contract in contemplation of marriage (e.g., Harriet tells Harry she will give him title to her farm if he will marry her) is not enforceable in most jurisdictions.
Contracts for sale of goods valued at more than $500 cannot be enforced in many jurisdictions unless committed to a writing signed by defendant.
Contracts for the performance of services that cannot be performed in the space of one year are enforceable only if committed to a writing signed by defendant.
Check your official law for more on enforceability.
Breach
The contract itself determines the breach, because the terms of the contract define the parties' respective duties.
There is no cause of action for damages resulting from the plaintiff's anticipation, if the anticipation is not defined by the terms of the contract. Consequential or incidental damages are not recoverable in a breach of contract action unless they were contemplated by the parties and specifically made part of the contract terms.
Breach of Implied Covenant
Some jurisdictions tighten the obligations of contract by adding what they call an "Implied Covenant of Good Faith and Fair Dealing".
Those courts may award money damages to plaintiff if defendant acts in any way to "interfere" with plaintiff's ability to enjoy the bargain's benefits ... even when the defendant's interference does not expressly breach the contract.
This often arises when there is ambiguity in a contract, and defendant takes advantage of the ambiguity to cause plaintiff's loss and benefit defendant unfairly.
Suppose plaintiff, while visiting defendant's farm, saw a strong-backed horse grazing in a field. In need of a work horse, plaintiff offers defendant $450 dollars for the horse. Defendant accepts the offer. Plaintiff tenders cash. Defendant grabs a halter from a nearby fence post and enters the field whistling for the horse to approach.
The horse does not move.
Defendant walks up to the horse, applies halter, leads the horse through the gate, and hands halter to plaintiff saying, "Congratulations! She's all yours!"
As it turns out the horse is blind and deaf.
The contract per se had no condition other than payment of $450 and delivery of that particular horse, so defendant has not truly breached the contract.
Defendant has, however, breached an implied covenant of good faith and fair dealing, giving plaintiff a cause of action.
Elements
Breach of Fiduciary Duty
This arises when defendant abuses plaintiff's reasonable trust.
If plaintiff reasonably entrusts defendant to perform a duty, and defendant accepts that trust (by word or deed) but fails or refuses to perform, plaintiff has this cause of action to recover his damages.
Good faith forbids self-dealing.
The term "fiduciary" comes from Latin for "faith".
A fiduciary can be a trustee, a guardian, or anyone who accepts an obligation to act on behalf of another, i.e., a person in whom others entrust their faith.
If that faith is abused, this cause of action arises.
Elements
Comments
There is no fiduciary duty arising from an arm's length agreement. The fact that two persons exchange promises and enter into a contract does not impute to them any obligation to act for the benefit or protection of the other. Nor does it require either to disclose facts the other could discover by reasonable diligence.
A fiduciary duty arises only where one party reasonably places trust in another who, by word or deed, acknowledges the obligation of trust.
Conspiracy
This cause of action arises when two or more persons act in concert to damage plaintiff for personal gain.
The conspirators don't even have to communicate with each other, so long as one commits a wrongful overt act with a shared goal to disadvantage the plaintiff!
Each must seek advantage for himself to be liable for plaintiff's damages.
Overt act must be unlawful, willful, or malicious (a broad range of behavior).
When pleading conspiracy, plead at least one additional count seeking damages for the wrongful act. There must be some "underlying wrongful act", such as tortious interference with an advantageous business relationship. A case for conspiracy alone is without a separate wrong will be dismissed.
The gist of conspiracy is not the conspiracy itself. Conspiracy alone can cause no damage. It is the conspired acts of multiple persons that gives rise to this cause of action.
One person cannot conspire.
Elements
Comments
The benefit need not be money or property. The benefit could be destruction of a circumstance previously enjoyed by plaintiff, such as a business opportunity.
The benefit proves intent ... an essential element of this cause of action.
If Harry and Bob conspire to destroy Sam's business, and Bob does the dirty work while Harry sits back in his office participating by nothing more than letting Bob use his car, Harry is responsible for every act Bob commits just as if he were there in person.
The act of one is the act of all!
A mafia boss who orders a hit commits murder, though he is nowhere near when the killing occurs. If he furthers the act of the hit man by promising to pay for the kill, the law treats him as if he personally pulled the trigger.
The same applies in a civil conspiracy.
Constructive Fraud
If a person of weakened mental ability signs a deed transferring his or her home to another for no money or substantially less than the home is worth, a presumption of constructive fraud arises, and this cause of action lies.
Equity will not permit a defendant from benefitting from the trust of another who suffers from mental weakness or other impairment.
Constructive fraud may lie even when defendant had no intent to defraud, if defendant had a duty to act justly but did not do so.
The common law charges each of us with a duty to deal fairly with others. It is from this common law duty of fairness and to protect innocent people from the consequence of their own weakness that the cause of action for constructive fraud was created by our courts.
Defendant's trust may be imputed, implied, or actual.
(See also Fraud and Unjust Enrichment, covered later.)
Elements
Conversion
Conversion arises when defendant takes possession of plaintiff's "tangible personal property" without permission or lawful authority.
Conversion takes place at the moment of possession.
It doesn't matter if defendant retains possession or promptly returns it.
Temporary possession is conversion, even if only for a few seconds.
Defendant cannot un-ring the bell by returning the property.
Tangible personal property includes such things as a bicycle, boat, airplane, or prize bull ... dead or alive.
It does not include land or things attached to land, nor does it include money. (See more in my Property class in the REFERENCE menu.)
The wrong is not in the taking but in the depriving.
(See Replevin below.)
Elements
Defenses
Consent
Conversion cannot lie if plaintiff gave defendant permission to possess, even if plaintiff gave only temporary permission and defendant retained possession beyond the date when it was to be returned.
Failure to Demand
Plaintiff's failure to demand may be a defense in some jurisdictions if defendant can show he lacked intent to convert and would have returned the property promptly if plaintiff had demanded its return, e.g., where defendant reasonably believed he had a right to possess.
Money
Money cannot be converted, unless it is in the form of some unique coins or bills valuable for their own sake and not their denomination. Money is a fungible item (like grains of wheat in a Kansas silo). One dollar bill has the same value as all others. A coin collection, however, can be converted because it has value beyond denomination.
Ownership
If defendant can show plaintiff had no ownership interest in the property at time of conversion, this defense arises.
Declaratory Judgment
A cause of action for declaratory judgment does not seek money damages.
Instead, it seeks to have the court to enter an order declaring something.
A common example is a declaratory judgment to settle a dispute over a property boundary or what is or is not covered by an insurance policy. It is common for insurance companies to file an action seeking a declaration that its policy does not cover certain losses.
For example, one cannot seek the court's declaration that a particular tax is unconstitutional, unless the party seeking declaration can show a special injury to himself that is different from that allegedly suffered by other taxpayers.
Declaratory judgments provide parties with relief from insecurity and uncertainty with respect to rights, status, and other legal or equitable relationships.
In many jurisdictions the cause of action is created by statute so, before filing an action for declaratory judgment, consult your state or federal statutes and applicable case law.
Elements
Defenses
If plaintiff seeks an advisory opinion based on hypothetical facts that are contingent, uncertain, or rest entirely in the future, the court lacks jurisdiction to entertain the complaint, and the complaint should be dismissed.
Defamation
If defendant lies about plaintiff, and plaintiff suffers injury as a direct result, this cause of action can result in plaintiff winning a sizeable money judgment.
The lie must cause shame, contempt, hatred, or loss of reputation due to the defendant's false statement.
If there are no calculable money damages, the action may result in a judgment for "nominal damages", if plaintiff feels it's worthwhile pursuing the action for nothing more than to clear his or her name.
True statements can never give rise to this cause of action, no matter how embarrassing or reputation injuring those true statements may be.
If the false statement is in print (e.g., letter, newspaper article, social media post) the defamation is called "Libel" (see below for more).
If the false statement is spoken (e.g., TV newscaster, politician, or next door neighbor) the defamation is called "Slander". (see below for more).
Both libel and slander constitute defamation.
Elements
The most important thing to consider before filing suit on this cause of action is determining the amount of money damages. The fact someone calls you a thief may be defamation, however unless the defamation causes you actual, measurable damages, a lawsuit for defamation is worthless except to prove the defamatory statement was false (for whatever value that may have by itself).
Plaintiffs suing for defamation frequently spend thousands on costs and legal fees only to recover a nominal amount ... because they cannot prove actual damages (e.g., loss of a job or business opportunity).
If you're a bank president and lost your job because the head teller told the board of directors you're a thief, your damages are provable or presumable.
If you're a newspaper boy embarrassed by one of your delivery customer's shouting, "Thief", as you ride away on your bicycle after delivering his paper, it's not worth your while to sue.
Not all wrongs can be righted in court, and nowhere is this more true than in defamation cases.
Caveat
If you are a "public figure" (e.g., politician or professional athlete) you may be unable to sue for defamation unless you can show the publisher acted with actual malice intending to injure you! [I strongly disagree with this doctrine, however it's been law since U.S. Supreme Court decision, New York Times v. Sullivan, 376 U.S. 254 (1964).]
Defenses
Truth
If an allegedly defamatory statement is true, there can be no action. Plaintiff has the burden of proving falsity. Defendant does not have the burden to prove truth. It is far harder to prove falsehood than truth.
Absolute Privilege
Allegedly defamatory statements made in judicial proceedings are privileged. If this were not so, every party prevailing in a lawsuit could sue the other party for making false statements during the case.
Statements made "out in the hall", however, are not privileged.
First Amendment
Courts may refuse to hear cases brought against representatives of religious orders or denominations because of First Amendment proscription against government being entangled with religion. If an allegedly defamatory statement is so entangled with religion that the court would be unable to sort out the truth without crossing the line, the case may be dismissed ab initio (i.e., from the beginning).
Class of Persons
Pure Opinion
Everyone is entitled to an opinion. Opinions are not actionable if expressed as opinion. If you say to a neighbor, "I think our mailman is a Communist," the mailman cannot sue, because you're entitled to an opinion, right or wrong. If you say, "Our mailman is a Communist," and it gets back to the Post Office and your mailman loses his job, prepare for battle.
Duress
A cause of action for duress arises when defendant "forces" plaintiff to do some act damaging to plaintiff under circumstances that allow plaintiff no reasonable alternative.
If Jones uses a loaded shotgun to force Smith to sign a deed conveying Smith's home to Jones, Smith has this cause of action to set aside the deed and get money for any damages Smith suffered as a direct result.
The issue in court is whether the power of duress was irresistible. Did the plaintiff have an option. If there was any reasonable alternative, this cause of action will not lie.
Suzy telling Tom, "I won't go to the prom with you unless you sign this contract," is insufficient grounds.
If Fingers McGee points a loaded .38 revolver at Mr. Rogers' saintly head and says, "You wants I should blow yer brains out, or is you gonna sign that paper?", this cause of action will lie, and whatever Mr. Rogers signs will be set aside by the court.
Mr. Rogers could have disarmed Fingers McGee by unscrewing a table leg and beating the goon senseless, however courts do not require "unreasonable" alternatives.
Elements
Defenses
Legal Right
It is not coercion to threaten to do what one has a legal right to do.
If a farmer threatens to raise pigs if his neighbor plants corn near the fence between them, the corn farmer might complain he is under duress because pigs are intolerably smelly and noisy. If the pig farmer has a legal right to raise pigs, however, the corn farmer has no cause of action.
See Undue Influence below.
Fraud
Fraud arises when plaintiff relies reasonably on a defendant's false statement.
Plaintiff must allege each ultimate fact specifically, not generally.
Suppose Bob tells Suzie, "There's a giant orange elephant sitting on your car." Suzie jumps suddenly, stumbles, and breaks her leg." Clearly, Bob lied about the elephant, but Suzie did not "reasonably" rely, so she cannot sue Bob for fraud.
Suppose a travel agent promises Phil a two-week trip to Jamaica in a world-class luxury liner for $7,500, knowing the boat is a rusty freighter hauling pineapples. If Phil pays the money before discovering the lie, he has a cause of action for fraud. All essential elements are met. (He also has an action for breach of contract.)
Plaintiff must reasonably rely on the false statement, and must be specific in his allegations of facts.
Elements
Defenses
In Pari Delicto
If plaintiff is guilty of participating in a fraud, courts will deny this claim, because none of us should benefit from doing wrong.
Promise
A promise made with no intention to perform gives rise to this cause of action, but a mere promise to do something in the future does not unless plaintiff can prove defendant never intended to perform, and that can be a steep evidentiary hill to climb.
Puffing
A used-car salesman may claim an automobile is "sweet-running" and "rides like it was floating on clouds". Courts call such opinion statements "puffing" and do not support an action for fraud.
If the salesman claims "actual mileage" is 9,827 miles when he knew it was actually 109,827, a cause of action for fraud will certainly lie and, if buyer can prove the fraud, he may win a money judgment for punitive damages over and above what he paid for the car.
For a false statement to give rise to a cause of action for fraud, the statement must be one of fact and not opinion.
Comments
Omitting a material fact may also give rise to fraud, if the omission was intended to mislead and can be so proven.
If seller of a home omits to advise buyer that the roof leaks when it rains, the omission is material to the value of the house and gives rise to a cause of action for fraud.
Fraud in the Inducement
Fraud in the inducement is a sub-category of fraud that includes all elements of common fraud but applies where plaintiff suffers damages from entering into a contract (e.g., contract to rent, purchase, or perform services) after being persuaded to do so by the lies of another.
As in common fraud, plaintiff's reliance on false statements must be reasonable and "justifiable".
If one justifiably and reasonably relies on false statements of another to enter a contract that causes injury (money damages or other loss) he has a cause of action for fraud in the inducement.
Goods Sold
This cause arises when plaintiff has sold and delivered goods to defendant, and defendant refuses to pay.
That's all there is to it.
If goods are not as plaintiff described, of course, defendant may have a defense for not paying.
Elements
Comments
Always get a receipt for goods delivered if recipient has promised to pay later, so you can show the court the goods were in fact delivered.
Infliction of Emotional Distress
This cause of action exists to compensate victims of conduct that inflames the sense of human decency.
Plaintiff may win money damages whether defendant intended injury or simply acted with reckless disregard.
Although this cause of action includes the word "intentional", know that intention may be imputed to a wrongdoer when it is reasonably foreseeable that intentional acts would cause injury.
If a funeral home incinerates Aunt Betsy's mortal remains by mistake, and Sister Sue is outraged that cemetery interment was not done as requested, the funeral home may have a defense claiming it acted within legal limits of the law.
On the other hand, if the funeral home dumps Aunt Betsy along the side of some lonely country road, the act will be deemed outrageous, indecent, atrocious, odious, uncivilized, and intolerable, and family members and loved ones will likely prevail in court and receive a sizeable judgment.
Elements
Defenses
Legal Rights
The thin line in these cases is whether defendant was within his legal rights to act in the manner that caused injury.
Injunction, Temporary
Injunctions are either temporary or permanent.
They are used to either stop someone or compel them to start or continue.
Temporary injunctions (sometimes called preliminary injunctions) are easy to obtain upon showing immediate necessity based on alleged facts sufficient to establish the essential elements.
* In actions for injunction, the complaint is called a "petition", plaintiff is called the "petitioner", the answer is called a "response", and defendant is called the "respondent". Otherwise it's just another lawsuit.
Temporary injunctions are self-terminating, i.e., they expire after a set time determined by the court according to the necessity.
Suppose a contractor starts using a giant earth-moving machine to scrape a deep pit next to your property line. The first heavy rain will likely cause part of your yard to wash into the pit. The court should issue a temporary injunction to stop further excavation. Law enforcement would be empowered to use force to stop the contractor if necessary.
The order would remain in effect long enough for you to prove the threat of damages is real.
All injunctions derive from the inherent equitable power of courts to issue writs and warrants to empower and command sheriffs (or other law enforcement) to use force, if necessary, to carry out the court's orders.
Elements
Comment
The granting of a preliminary injunction is an extraordinary remedy that should be granted only sparingly upon presentation of adequate proof of the essential elements.
Since injunctions invoke the court's equitable powers, petitioners seeking an injunction must come to court with "clean hands". They cannot have contributed to the condition that threatens them.
Sample Form
IN THE FOURTH JUDICIAL CIRCUIT COURT
IN AND FOR HAPPINESS COUNTY, FLORIDA 1
PETER PIPER,
Please note the footnotes and comments provided below.
Petitioner,
v.
BORIS BADGUY,
Respondent.
____________/
Case No. _____________ 2
VERIFIED PETITION FOR TEMPORARY INJUNCTION 3
VERIFIED PETITION FOR TEMPORARY INJUNCTION 3
PETER PIPER petitions this Honorable Court to issue a temporary injunction and in support therefor states:
JURISDICTIONAL ALLEGATIONS
1. This is an action for the equitable remedy of a temporary injunction.
2. Petitioner resides in Happiness County, Florida.
3. The threatened harm to be enjoined is threatened to be imposed in Happiness County.
4. Respondent resides in Happiness County [or has some other legal nexus to Happiness County that invokes the jurisdiction of this Honorable Court 4].
5. This Honorable Court has jurisdiction.
FACTUAL ALLEGATIONS
6. Petitioner has personal knowledge that respondent Boris Badguy has a well-formed plan to act in a manner that will surely cause petitioner serious bodily harm.
7. The threatened act complained of is .................................. 5
8. The threatened bodily harm is ........................................ 6
9. The threat is imminent because .......................... 7
10. An action for money damages alone is insufficient to restore petitioner to his status quo ante after the threatened harm because ..................... 8
11. The threatened harm to petition outweighs any substantial harm to the respondent, because .................. 9
12. There is no substantial public interest that will be contravened by this Honorable Court's issuing an injunction favoring this particular petitioner.
13. There is a substantial likelihood that petitioner will prevail in this action, because the facts obtained on the record by discovery will reveal that ........................ 10
14. Boris Badguy is a registered pharmacist. 11
15. A temporary injunction is necessary to protect petitioner from the threatened harm.
WHEREFORE petitioner Peter Piper moves this Honorable Court to enter an Order enjoining respondent Boris Badguy from [briefly describe the threatened harm once again] and granting such other and further relief as the circumstances and demands of justice may warrant.
UNDER PENALTIES OF PERJURY I affirm that the facts alleged in the foregoing are true and correct according to my own personal knowledge.
Peter Piper, Petitioner
STATE OF FLORIDA
COUNTY OF HAPPINESS
BEFORE ME personally appeared Peter Piper who, being by me first duly sworn, executed the foregoing in my presence and stated to me under penalties of perjury that the facts alleged therein are true and correct according to his own personal knowledge.
Notary Public
My commission expires:
Comments
Bond
Some jurisdictions require petitioner to post a bond to protect the respondent from foreseeable injury.
Breach of Contract
Injunctions do not issue to enforce contracts. The proper action is for specific performance covered later.
Covenant Not-to-Compete
Non-compete agreements are enforced by injunctions. Restrictions apply if services of party to be enjoined are of special value to the community (e.g., doctor).
Domestic Violence
These are issued promptly upon sworn statements of threatened harm.
Injunction, Permanent
Permanent injunctions are much harder to obtain.
Permanent injunctions are issued to continue the initial order of a preliminary injunctions beyond expiration.
They require evidence to show a permanent injunction is necessary to ensure justice and protect the plaintiff going forward.
To obtain a permanent injunction, one must offer a much higher degree of proof demonstrating necessity.
Where a temporary injunction may issue without notice or hearing, a permanent injunction can only issue after notice and pleadings have been served on respondent who is allowed a reasonable opportunity to present evidence in defense.
The elements for both are the same but for one essential: success on the merits of the underlying temporary injunction case.
The granting of a permanent injunction is an extraordinary remedy that should be granted only upon proof of all essential elements.
Elements
Defenses
Defenses for permanent injunction are the same as for a preliminary or temporary injunction.
Invasion of Privacy
Like defamation, this cause of action can bring more problems to plaintiff than merely ignoring the problem. Litigation for invasion of privacy tends to re-publicize facts that are often better left alone.
Everyone has a right to enjoy his or her privacy.
The United States Supreme Court ignorantly interpreted the Constitution to contain the right of privacy which therein nowhere appears. Many states, however, specifically guarantee this right in their state constitutions.
Here are four situations that may give rise to this cause of action.
Elements
To win a cause for invasion of privacy, plaintiff must allege and prove:
Defenses
Public Right to Know
If the public has a right to know some matter that would otherwise be protected by plaintiff's claimed privacy right, this cause of action will not lie. For example, if a local physician suffers from cocaine addiction, the public has a right to know, and physician has no right to sue those who publish this "private" fact.
Hypersensitivity
A person of unusual sensitivity is not protected.
Malicious Prosecution
Malicious prosecution is available to award money damages to persons who are sued or criminally prosecuted without legal grounds.
If an action is brought without sufficient legal justification AND the injured party prevails in the underlying action, this cause of action will lie.
It does not arise until successful conclusion of the underlying case.
The injured party must show the person who brought the underlying action had no probable cause and knew he had no cause (or should have known he had no cause through the exercise of reasonable diligence).
Elements
Defenses
Absolute Immunity
Government prosecutors have absolute immunity from malicious prosecution (unless prosecutor can be shown to have acted with an invidious motive or outside the scope of his or her authority).
Private actors are not immune.
Dismissal on Technical Grounds
If prior case terminated for any reason other than innocence or lack of legal liability of defendant, this cause of action will not lie.
Underlying action must find no fault.
Counterclaim
Malicious prosecution may not be pled as part of a counterclaim, since it must first be proven that defendant in prior case was without fault. That requires complete bona fide termination of the prior case.
Malice
Malice may be either "actual", i.e., state of mind of prior plaintiff to harm prior defendant or "legal", i.e., inferred from circumstances, such as absolute lack of probable cause a reasonable person would recognize.
Nolle Prosequi
If the government prosecutor in good faith enters a nolle prosequi or declination to prosecute in the prior proceedings, the essential element of a bona fide termination in the prior defendant's favor is satisfied.
Negligence
Negligence is failure to exercise reasonable care.
Driving with one's eyes closed is negligence!
It doesn't matter if defendant intends to harm plaintiff if his act does cause harm. We are all liable for injury that results from our acts and failures to act.
A common law adage warns, "Defendants take their plaintiffs as they find them."
We all owe this common law duty to exercise caution to protect others from the consequence of our acts ... intentional or otherwise.
We are responsible for damages caused by what we do, even when the injured person is unusually susceptible to injury. This is known as the "eggshell skull" doctrine developed from an old case where a fellow with an unusually thin skull was seriously injured by an accidental blow to the head so slight it could not have caused a healthy man so much as a headache. Nonetheless, the act resulted in substantial harm to the thin-skulled plaintiff, and the courts found defendant liable.
Elements
Defenses
Comparative Negligence
In many cases, plaintiff is at least partially responsible for his own damages. Plaintiff cannot recover that portion of damages caused by himself. He is said to be comparatively negligent. (See Comparative Negligence in my Affirmative Defenses class.)
Assumption of Risk
Some activities (e.g., karate and sky-diving) are so inherently dangerous that courts allow a defense against plaintiffs who voluntarily engage in such activities. (See Assumption of Risk in my Affirmative Defenses class.)
Quantum Meruit
Quantum meruit arises when plaintiff confers a benefit on defendant under circumstances that would cause a reasonable person to believe plaintiff would be compensated reasonably for doing so.
The Latin phrase means "for what it's worth".
Suppose a fence painter came to your house while you were on vacation and painted your scratched and faded fence a lovely blue color. You arrive home to find your fence looking better, but not the color you'd choose.
The fence painter asks for $7,000 for less than a day's work. You refuse. There is no contract. You'd not have asked for blue if there were.
If the sign painter sues for breach of contract, he loses, because there is no contract.
If he sues for quantum meruit, however, he may win ... but not for $7,000 ... if he can convince the court it was "reasonable" for him to expect payment (a slippery slope indeed under these facts).
Now, suppose you were not on vacation when the fence painter began painting. You sat at the front window of your home enjoying a cup of coffee, reading your morning paper, and watching the labor in plain view. Occasionally, he looked up to see you sitting in your window, smiled, and waved in a friendly manner as if he'd known you all your life. You thought, "How kind of that young man to paint my fence," but did nothing to stop him, secretly hoping he'd paint it all before realizing he was at the wrong house!
The fence painter comes for payment, and you refuse, thinking you got a windfall bargain.
The fence painter sues for quantum meruit seeking $7,000.
He cannot sue for breach of contract, because there was no meeting of the minds, no promise for a promise. (See my Contract Law class in the REFERENCE menu.)
He wins easily on quantum meruit, however, because you knew he was conferring a benefit you accepted without opposing it. If he can convince the court his work had the fair market value of $7,000 you will be ordered to pay.
This only works when there's no underlying contract to give rise to a cause of action for breach of contract. A separate count for quantum meruit should always be made part of the pleadings when there's any likelihood a contract action might fail upon the court's finding there was no contract or that an alleged contract was unenforceable at law (thus removing contract from the equation and opening the door for fair market value recovery for quantum meruit).
Under quantum meruit plaintiff is entitled to nothing more than fair market value of the benefit conferred.
(See also Unjust Enrichment below.)
Promissory Note
This is the easiest of all causes of action to win.
Plaintiff's possession of a signed but unsatisfied promissory note raises presumption of non-payment and shifts the burden of proof to the defendant to show he paid the note in full, on time, with interest.
This can only be shown by receipts, cancelled checks, or other evidence of actual payment.
If defendant cannot prove he paid and satisfied the note, the court will grant judgment for that portion of the note that remains unpaid, together with accrued interest.
If the note also provides that the holder is entitled to recover reasonable attorney fees and costs (as most do) plaintiff recovers judgment for the full amount he is owed plus the cost of bringing suit.
Elements
Defenses
Payment of a promissory note is, of course, an absolute defense.
To prevail, defendant need only produce admissible evidence to demonstrate all funds payable under the terms of the note, including interest, have been fully paid.
Another absolute defense arises where holder of the note negotiated some consideration for the note other than payment, in which case the obligation created by the note disappears and, along with it, the cause of action.
Finally, failure of the plaintiff to produce the original note is an absolute defense in all but a few jurisdictions.
Comment
If the note does not contain a provision that the full amount will become due at once upon the event of any default (i.e., an acceleration clause), the full amount of the note will not be due nor will plaintiff have a cause of action to collect the full amount until the complete term of the note has run, so beware filing suit when only one payment is late, because you can only recover judgment for the amount presently due.
Always be sure you put an acceleration clause and clause for attorney fees and costs in any promissory note you accept from others in lieu of cash.
Quiet Title
An action to "quiet title" arises when an individual holding "legal title" is threatened by some contrary interest in the title.
Such threats may include:
Legal title is limited to evidence by duly executed deed or other written instrument. One who does not hold a deed or other instrument has no standing to bring an action to quiet title, for he has no title to quiet.
This action is frequently brought to remove a "cloud on the title", i.e., some issue that challenges ownership outright or would tend to diminish the property's value.
Elements
Where a mortgage has been obtained by fraud the title owner may be able cancel the mortgage holder's claim.
Where a contractor made improper repairs to a roof resulting in water damage but placed a lien on the property, the title owner may be able to remove the lien.
Replevin
Replevin seeks a court order commanding defendant to return possession of tangible personal property, e.g., bicycle, automobile, furniture, equipment, etc.
If the plaintiff wins his case, the judge signs an order called a writ of replevin. This writ is then served on the Sheriff (or other law enforcement officer) who executes the writ by taking possession of the plaintiff's property and returning it to him.
The Sheriff may require plaintiff to post a bond, then the sheriff will direct one or more of his deputies to visit the place where the subject property is located and take it by force, if necessary, before returning it to the plaintiff as the writ commands.
Elements
Money cannot be replevied, unless it is specific money, e.g., a coin collection.
Real property (i.e., land, buildings, and fixtures affixed to the land or buildings) also cannot be replevied.
Rescission
You cannot escape obligations of contract or other legal commitments by simply tearing up a piece of paper.
If a contract or legal commitment is unlawful or contrary to the principles of equity, an action for rescission can result in an order declaring the contract or obligation void.
Rescission splits the aggrieved party from a legal obligation. It rescinds that obligation and renders it as if it never existed.
Rescission is an equitable remedy to relieve an obligation from fraud, misrepresentation, mistake, impossibility, or similar burden resulting from other than his own wrongdoing.
If rescission is granted, the court should attempt to restore both parties as nearly as possible.
To obtain an order of rescission, the plaintiff comes to equity with clean hands, i.e., he cannot have acted unjustly with regard to the matter.
Elements
Defenses
Adequate Remedy at Law
If plaintiff's damages can be cured by a money judgment, rescission will not lie.
Modification of Contract
If contract or obligation was modified after fraud or mistake was discovered, rescission will not lie unless modification is also result of fraud or mistake.
Specific Performance
Where rescission is an action to avoid a legal obligation, specific performance is an action to enforce one.
Specific performance case arise frequently in land deals where seller contracts to sell, buyer accepts, and seller subsequently refuses to close and deliver a deed.
Specific performance sounds in equity, so again the plaintiff must have clean hands and not have contributed to the problem of which he complains.
Elements
Spoliation of Evidence
If a party destroys material evidence, this cause of action will lie to punish that party.
In a case I was called in on, an employee suffered injuries when a rented ladder collapsed. Before the case could be filed, the rental company destroyed the broken ladder, effectively destroying the injured employee's case. The employee sued the rental company for spoliation and won the full value of his injury, medical bills, loss of future earnings, loss of enjoyment of life, etc.
It didn't matter that the rental company was in no way responsible for the ladder failure. The court found the rental company liable on the theory that it knew or should have known the ladder would be critical evidence. It's destroying the ladder was a breach of duty giving rise to this cause of action.
Elements
Statutory Causes of Action
Many other causes of action are created by statutes, codes, ordinances, or legal obligations.
For example, a cause of action for bad faith will lie against an insurance company that knew (or should have known) it would lose at trial but hoped plaintiff would give up before taking his case to trial. The punitive damages in such cases are severe.
Lemon law statutes exist in many states awarding plaintiff's extra sums against manufacturers and dealers who sell faulty automobiles.
Statutory laws of this kind are constantly being created, so it is beyond the scope of this course to set out all such causes of action and their essential elements. It is up to you to study statutes that may provide these remedies and identify the elements set forth in those statutes ... and be sure to study the controlling appellate court opinions that address each such statutory cause of action.
Tortious Interference
When defendant interferes with an advantage enjoyed by plaintiff, plaintiff has this cause of action to recover damages.
Tortious interference takes two forms:
In both cases the interference must be intentional.
Tortious interference with an advantageous business relationship does not require existence of contract. Mere expectancy that a relationship would have continued but for the interference is sufficient.
Tortious interference with a contractual relationship results where defendant's interference results in breach of plaintiff's contract with another.
Elements
For tortious interference with an advantageous business relationship:
For tortious interference with a contractual relationship:
Discussion
Where interference with a business relationship is lawful competition, the cause of action will fail.
Where interference involves theft of trade secrets or misappropriation and use of proprietary confidential information, plaintiff is entitled to a money judgment to recover the value of the relationship prior to defendant's interference, and a temporary injunction may be obtained to prevent interference from continuing.
Interference with a contractual relationship is more severe. If plaintiff's contract is binding and defendant's intentional acts interfere with that contract, plaintiff's damages are more easily determined and defendant's wrong more clearly identified. It is not lawful competition to encourage one person to breach his contract with another.
Undue Influence
Undue influence lies to prevent defendant from taking advantage of a person of weakened mental ability, where defendant occupies a position of trust with such person.
If a greedy sibling entices his mother to change her will, cutting his brothers and sisters out of their rightful inheritance, and it can be shown that the mother would not have agreed but for her weakened mental ability, this cause of action will prevent the wrong (and in some states prevent the greedy sibling from getting anything from the will).
Other cases involve lawyers, care-givers, and even next-door neighbors who prey on mentally challenged people to wrongfully obtain gain.
Elements
Comments
A legal presumption of undue influence arises if defendant procured the will or other beneficial instrument (e.g., taking an elderly person to the defendant's lawyer to have the will drafted) and the burden of proof shifts to the defendant to prove at least one of those elements is missing.
Unjust Enrichment
Unjust enrichment arises when plaintiff confers a benefit on defendant under circumstances that would cause a reasonable person to believe plaintiff would be compensated for the fair market value of the benefit.
Nobody should be unjustly enriched at the expense of another.
When there's no contract to detail the parties' expectations, this cause of action prevents defendant from being unjustly enriched.
Unjust enrichment is similar to quantum meruit (explained above).
Elements
Conclusion
The right to sue always requires plaintiff to prove defendant owed a duty and that the defendant's breach of that duty directly caused the plaintiff damages.
There may be a few common law causes of action not listed in this class (and many statutory causes of action too numerous to list) but I've covered the ones you'll most often encounter.
Winning requires both parties to know the essential elements and what ultimate facts are required to establish at least one cause of action.
It's not rocket science!
The unauthorized reproduction or distribution of a copyrighted work is illegal.
Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI and is punishable by fines and federal imprisonment. No portion of this course may be published, duplicated, shared, or used by anyone other than the current subscribers.
© 1997-2025 by Dr. Frederick Graves
d/b/a Jurisdictionary®
All Rights Reserved
866-LAW-EASY ( 866-529-3279 )
19420 Heritage Harbor Parkway
Lutz, Florida 33558
lawbook@jurisdictionary.com
