A recent appellate opinion starts off, “This is a typical South Florida construction dispute.”  (See case citation at the bottom) Let’s see, is it?  No. It’s a garden variety payment dispute where the parties did NOT have a binding contract.  Why? That’s for a different day (because the smart practice is ALWAYS to have a contract!) but it touches on the equitable, unjust enrichment claim. And it touches on competing unjust enrichment claims and the apportionment of those claims. In other words, can both parties be right on their unjust enrichment claims?

An owner hired a general contractor for home renovations. Work started but the relationship soured and the general contractor did not complete the work. The general contractor filed a payment dispute against the owner based on unpaid invoices.  It pled alternative theories of recovery against the owner: breach of contract and unjust enrichment. The owner filed a counterclaim against the general contractor for the same claims. During the non-jury trial, the general contractor presented unpaid invoices along with testimony that the invoices represented the value of services rendered. The owner presented evidence of the completion of work damages.

The trial court found that the parties did NOT have a binding contract. Thus, there was no breach of contract. The trial court found that the parties both satisfied the elements for unjust enrichment claims against one another, but a net judgment was rendered in favor of the general contractor based on the general contractor’s unpaid invoices minus the damages the owner satisfactorily proved.

The owner appealed claiming the trial court “was required to employ an all-or-nothing approach in adjudicating the competing unjust enrichment claims.”   The appellate court disagreed:

This court has held that damages in such [unjust enrichment] cases must not be speculative or the product of conjecture.  They may, however, “be valued based on either (1) the market value of the services; or (2) the value of the services to the party unjustly enriched.” 

Against these principles, we examine the instant case. Here, [the general contractor] produced the unpaid invoices and established the amount billed represented a reasonable value of the services performed. Further, while the court rejected evidence in arriving at its determination of damages, “[c]ompetent, substantial evidence is tantamount to legally sufficient evidence, and a reviewing court must assess the record evidence for its sufficiency only, not its weight.” 

To the extent that [the owner] contend damages must be awarded on an all-or-nothing basis, we agree with the proposition that contractual damages are not ordinarily subject to apportionment.  However, we can find no authoritative source extending this general rule to the doctrine of unjust enrichment. Instead, the opposite holds true. The availability of a remedy in unjust enrichment is qualified to avoid unfair hardshipSee Restatement (Third) of Restitution and Unjust Enrichment § 2 (Am. L. Inst. 2011). Consistent with this premise, principles of restitution, rather than contract, guide any award of damages. 

The Restatement (Third) of Restitution and Unjust Enrichment provides that the measure of “the unjust enrichment of a conscious wrongdoer . . . is the net profit attributable to the underlying wrong.”  The object is, the Restatement explains, “to eliminate profit from wrongdoing while avoiding, so far as possible, the imposition of a penalty.” 

Although this case does not involve profits in the traditional sense, it is analogous. To protect against a windfall, the trial judge credited [the owner] for the damages they established they sustained during construction. This methodology is consistent with the principles embodied in the Restatement and the underpinnings of unjust enrichment law. Accordingly, we discern no error and affirm the judgment under review.

Dooley v. Gary the Carpenter Construction, Inc., 48 Fla.L.Weekly D2143a (Fla. 3d DCA 2023) (internal citations omitted).

There are some interesting takeaways from this case.

First, testimony that the unpaid invoices represented the value of services performed is important. Here, the unpaid invoices coupled with the testimony was competent, sufficient evidence to support an unjust enrichment claim.

Second, unjust enrichment claims can be apportioned. Thus, both parties perhaps may be right to come up with an equitable approach that gets netted out in a final judgment.

Third, have a contract.  A negotiated, agreed-upon contract with terms and conditions. If you have a binding contract then unjust enrichment does not and should not come into play.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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