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BAR EXAM SC: Equity
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I. Equity will not suffer a wrong to be without a remedy; II. Equity acts in personam, not in rem; III. Equity follows the law; a. If the legal remedy is not adequate, equitable remedy will be applied IV. Equity is equality; a. Equity seeks to secure equality among persons who are equally obli...

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  • April 10, 2024
  • 8
  • 2023/2024
  • Exam (elaborations)
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  • bar exam sc equity

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SC: Equity 2023


EQUITABLE MAXIMS
Page
I. Equity will not suffer a wrong to be without a remedy;
|1 II. Equity acts in personam, not in rem;
III. Equity follows the law;
a. If the legal remedy is not adequate, equitable remedy will be applied
IV. Equity is equality;
a. Equity seeks to secure equality among persons who are equally obligated or who are equally entitled
to claim a benefit or share in a fund.
V. Equity regards as done what ought to be done;
a. Rights of the parties must be clear;
b. The plaintiff must have done everything which ought to have been done to secure the action
requested.
VI. Equity regards substance rather than form;
a. Equity, where appropriate, ignores technicalities
VII. Equity disfavors forfeitures or penalties;
a. South Carolina courts have held that forfeitures or penalties are not favored in either law or equity
VIII. One who seeks equity must do equity;
a. Court may impose equitable obligations on a party as a condition for granting equitable relief.
IX. One who comes to equity must do so with clean hands;
a. “Unclean Hands” Elements:
i. Dishonest, unfair conduct;
ii. Related to subject matter of lawsuit; and
iii. Prejudice and injury to defendant
X. Equity aids the vigilant and the diligent.
a. Laches defense!

INHERENT EQUITABLE POWERS

I. Cases
a. Ex parte Dibble (Ct. App. 1983)
i. Courts have the inherent power to do all things reasonably necessary to insure that
just results are reached to the fullest extent possible.
b. Buckley v. Shealy (2006)
II. Equitable tolling legal statute of limitations
a. Non-statutory tolling theory which suspends a limitations period.
b. Based upon fundamental notions of practicality and fairness and is “typically” applied where a litigant
was prevented from filing a suit because of an extraordinary event beyond his or her control.
c. Examples of where equitable tolling was applied:
i. Plaintiff actively pursued his judicial remedies by filing a timely byt defective pleading;
ii. Extraordinary circumstances outside the plaintiff’s control made it impossible for the plaintiff
to assert his claim within the statutory limitations period;
iii. The plaintiff, by exercising reasonable diligence, could not have discovered essential
information about his claim; or
iv. The defendant is shown to have misled or prevented the plaintiff in some extraordinary way
from discovering the facts essential to the filing of a timely lawsuit, although equitable tolling
does not require deception or misrepresentation by the defendant.
III. Contempt: Court’s power is essential to the preservation of order in judicial proceedings, and to the
Is the party in contempt?
enforcement of the courts’ judgments, orders, and write, and consequently, to the due administration of
Is it criminal or civil
justice.
contempt?
a. Civil:
Is it direct or indirect?
i. An order to bring a party in line with a prior order
1. i.e., Court ordering husband to pay child support, husband does not; court sentences
husband to weekend jail time until arrears are paid.
ii. The person held in civil contempt is often referred to as having the keys to his own jail cell
and is typically abatable when the person complies with the prior order.
b. Criminal:
i. Designed to punish the person for a fixed period of time and are normally not abatable

, SC: Equity 2023

ii. Key difference between civil and criminal contempt is that the contemnor cannot purge
himself of criminal contempt by telling the Court he intends to follow the prior order.
c. Compensatory:
Page i. A monetary award for the plaintiff when the defendant has injured the plaintiff by violating a
|2 previous order.
d. Punitive:
i. Either civil or criminal
ii. Typically carries a fixed term or fine owed to the court, which cannot be abated (which
characterizes criminal contempt)
e. Direct:
i. Contemptuous conduct occurring in the presence of the court
ii. Contemnor may be immediately adjudged and sanctioned summarily
f. Indirect (constructive):
i. Contemptuous conduct occurring outside the presence of the court
ii. There must be formal proceedings to determine if contempt is present and, if the length of
sentence is greater than 6 months, defendant has the right to a jury trial
1. ** Note a civil contempt sanction of imprisonment for over 6 months may be imposed
without due process protection where was proof of the contemnor’s failure to obey a
previous court order and the contemnor has the ability to end his confinement by
payment of what he owes.
iii. Other constitutional protections:
1. Presumption of innocence;
2. Must be proven guilty beyond a reasonable doubt;
3. Must be accorded the right to refuse to testify against himself;
4. Must be advised of all charges;
5. Have a reasonable opportunity to respond to them;
6. Be permitted the assistance of counsel and the right to call witnesses;
7. Be given a public trial before an unbiased judge; and
8. Be afforded a jury for serious contempt.
iv. Ex Parte Jackson (Ct. App. 2009): defendant violated Columbia city code; represented herself
in hearing to show cause why she should not be held in contempt. She was found to be in
contempt and sentenced to 90 days in jail. On appeal, court noted the determination of
whether contempt is civil or criminal hinges on the underlying purpose of the
contempt ruling, where the intent is to punish the defendant, the contempt is criminal.
Court also noted that because the sentence was limited to a definite sentence, it was further
proof of criminal contempt. Criminal contempt triggers additional constitutional safeguards
which the defendant in this case was denied. Court of appeals reversed.
1. ** Court added that this holding was specifically limited to the issue of
constructive contempt, and that constructive contempt is contemptuous conduct
occurring outside the presence of the court, whereas direct contempt is defined as
contemptuous conduct that occurs in the presence of the court.

EQUITABLE REMEDIES

I. Injunctions: A court order commanding or preventing an action. To get an injunction the
complainant must show that there is no plain, adequate, and complete remedy at law and that
an irreparable injury will result unless the relief is granted.
a. Types
i. Temporary restraining orders
1. Can be granted ex parte, normally only available in highly unusual conditions when it
is absolutely necessary to preserve the status quo until a preliminary injunction
hearing may be had.
2. No TRO shall be granted to suspend the general and ordinary business of an
individual, partnership, association, or corporation
a. May only be suspended by injunction after notice.
3. S.C.R. Civ. Pro. § 65(b):
a. Require notice unless there is immediate and irreparable harm that will result
before notice can be served
b. Automatically expire within 10 days (can be extended by showing of good
cause or consent of restrained party)

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