This appeal from a preliminary injunction is mostly uninteresting and fact-specific but does raise a couple of interesting points.

Rancho built a fence across what IB claimed as an easement. The trial court granted a preliminary injunction against the fence. Rancho unsuccessfully appealed.

It argued, first, that the trial court had used the wrong standard. The judge had followed Shoen (1990), which requires a “strong likelihood that [the party seeking the injunction] will succeed at trial on the merits.” Rancho argued that the standard had changed, citing the U.S. Supreme Court case of Winter (2008) which says “likely to succeed on the merits.” The Court of Appeals says that the Shoen language is still the law of Arizona. It does not attempt to say which rule is right. (Neither, for that matter, did Shoen or Winter, both of which focused on bitter factual disputes and simply quoted the injunction standard from other cases.)

Shoen also requires “the possibility of irreparable injury . . . not remediable by damages.” IB’s injury would be loss of income and loss of property value. Rancho cited cases for the proposition that injunction isn’t appropriate for purely economic loss; the court’s incisive analysis of them is to explain, in a footnote, that they aren’t binding because they’re out of state. 

But damages uncertain or difficult of calculation can support equitable relief, according to the Restatement. In response, Rancho pointed out that IB’s Complaint had pled for damages “in an amount to be proven at trial” without claiming that that would be difficult. Though it didn’t fly, and probably shouldn’t have (the court ends up deciding that the trial court’s finding of irreparable harm was sufficiently supported by the evidence), we think this an instructive argument. Have you ever thought about why your prayer says what it says? Most lawyers haven’t; to them the prayer for relief is just a form tacked on at the end, maybe by a paralegal or computer, using language somebody at some unknown time took from some other Complaint. There is old authority to the effect that the prayer isn’t technically part of the Complaint but that doesn’t mean that it isn’t important or doesn’t have consequences. But how many prayers like IB’s have you seen? Hundreds? Why do they want damages “in an amount to be proven at trial? The formulation has no legal meaning – unlike, for example, “just and reasonable damages,” though that isn’t necessary, either. “Just and reasonable damages in an amount to be proven at trial” is just an abomination. The truth is, this sort of language was used by lawyers accustomed to having to pray for a specific amount and uncomfortable with not doing so even long after that sort of requirement was, for almost all cases, dropped and/or prohibited. This is one of the things (like our favorite legal dinosaur, Rule 31) that stays in the law because too many people know too little about their profession to know why they have it.

The very least you can do would be to use proper modern English: “in an amount to be proved at trial.” Yes, we know lawyers like “proven,” mostly because it somehow sounds more impressive, and because they can point to the old Scottish verdict “Not Proven.” But “proven” is archaic at best. Leave it to its few remaining jobs, e.g., “proven commodity.”

And where else, by the way, do these people think the damages will be proved? If you said the injunction hearing under Rule 65 then we’ll give you half a point since that’s technically the trial. But how many people who use the language have that – or much of anything else– in mind?

(link to opinion)