12.6 EQUITABLE REMEDIES
12.601 Injunctions.
A. Jurisdiction. Va. Code § 8.01-620 provides that every circuit court has jurisdiction to award injunctions. Equity may enter an injunction to protect the plaintiff in a suit for specific performance. 34 A court allowing a bill of review may award an injunction to the decree to be reviewed, but only within six months after the date of the final decree under review. 35 Equity may issue an injunction for intentionally assisting a suicide. 36
B. Venue. Venue in proceedings seeking an injunction is governed by Va. Code § 8.01-261(15). Any problem with the venue in which the suit is brought is waived if a defendant fails to timely file an objection to venue within 21 days of service of process or, if the court has extended the time within responsive pleadings may be filed, within that period. 37 If an
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objection is filed, the court will hold a hearing, and, if venue should be in a different court, the case will be transferred to a proper venue. 38
C. Preliminary Injunctions. A preliminary injunction is an extraordinary remedy involving the exercise of very far reaching powers and should be granted only sparingly and in limited circumstances. 39 The purpose is to maintain the status quo ante litem without imposing as excessive burden upon the defendant. 40
Factors to consider by the court awarding a preliminary injunction include:
| 1. | Has the petitioner made a strong showing that it is likely to prevail on the merits? | ||
| 2. | Has the petitioner shown that without such relief it will suffer irreparable injury? | ||
| 3. | Would the issuance of the injunction substantially harm other interested parties? | ||
| 4. | Is the public interest affected by the grant or denial of injunctive relief? |
The court in Blackwelder Furniture Co. v. Selig Manufacturing Co., 41 made it clear that the second and third factors listed above have preeminence in the determination whether to issue a preliminary injunction. As the court explained:
The two more important factors are those of probable irreparable injury to plaintiff without a decree and of likely harm to the defendant with a decree. If that balance is struck in favor of plaintiff, it is enough that grave or serious questions are presented; and plaintiff need not show a likelihood
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of success. Always, of course, the public interest should be considered. 42
D. Bond. No injunction will be issued until plaintiff gives bond with surety in such sums as the court deems proper.
E. Appeals. Va. Code § 8.01-626 allows a party to appeal any decision of the circuit court, whether granting injunction or refusing to do so, within 15 days to the Supreme Court provided, however, that a petition for review shall be initially presented to a judge of the Court of Appeals within 15 days if the issue concerning the injunction arose in a case over which the Court of Appeals would have appellate jurisdiction under Va. Code § 17.1-405 or Va. Code § 17.1-406.
F. Repeated Trespass. In Boerner v. McCallister, 43 a suit in equity to enjoin a trespasser from coming on or over the plaintiff's property and riverbed on the Jackson River, the plaintiff alleged that the defendant had repeatedly trespassed on his property and had expressed his intention to continue such actions, stating a cause for injunctive relief, since prevention of a multiplicity of actions is a special ground of equity jurisdiction.
12.602 Specific Performance. Specific performance may be awarded under the following circumstances:
| 1. | Must not be an adequate remedy of law; | ||
| 2. | The contract must be legally enforceable, and performance must be the specific thing called for in the contract; | ||
| 3. | The plaintiff must not be in default; and | ||
| 4. | Normally involve disputes over real estate. |
A. Discretion of Court. Specific performance is not a matter of absolute or arbitrary right but is addressed to the reasonable and sound discretion of the court. 44 The discretion that may be exercised is not an
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arbitrary or capricious one but one that is controlled by the established doctrines and settled principles of equity, and, generally, where a contract is in its nature and circumstances unobjectionable, it is as much a matter of course for courts of equity to decree a specific performance of it as it is for a court of law to give damages for a breach of it. 45
B. Changed Circumstances. " Courts of equity will not exercise jurisdiction in specific performance where it would impose hardship on people not censurable in conduct, and where the circumstances and conditions of things have been so changed as to work loss and hardship to them." 46
12.603 Rescission and Cancellation of Contracts.
A. Elements and Standard of Proof. Remedy is predicated on fraud, mutual mistake, illegality, or undue influence and must be proved by...
