Brian Fisse, App. v. Heather M. Garvie, Resp. ( 2015 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
BRIAN FISSE, an individual, No. 70603-9-1
Appellant,
v.
HEATHER M. GARVIE, an individual, UNPUBLISHED OPINION
Respondent. FILED: March 9, 2015
Verellen, A.C.J. — Brian Fisse gave $100,000 to Heather Garvie to help her
pay various debts. A jury determined Garvie was unjustly enriched in the amount of
$50,000. Fisse contends his undisputed payment of $100,000 to Garvie requires an
award of the full $100,000. But it was within the jury's discretion, based on all of the
circumstances, to determine the extent to which Garvie was unjustly enriched.
Substantial evidence supports the jury's verdict, and the trial court did not abuse its
discretion in denying Fisse's motions for judgment as a matter of law including
prejudgment interest, additur, and a new trial. We affirm.
FACTS
Fisse gave Garvie $100,000 to pay her credit card debt, her attorney's fees,
and obligations to her ex-husband following a divorce proceeding. Garvie did not
repay Fisse. Fisse sued for breach of contract and unjust enrichment.
No. 70603-9-1/2
The trial court instructed the jury on unjust enrichment and the measure of
damages:
To prevail on a claim of unjust enrichment, Plaintiff Brian Fisse has the
burden of establishing each of the following propositions:
(1) That Defendant Heather Garvie received a benefit;
(2) That Heather Garvie received the benefit at Brian Fisse's
expense; and
(3) That the circumstances make it unjust for Heather Garvie
to retain the benefit without payment to Brian Fisse.[1]
If you find for Plaintiff Brian Fisse on the claim of unjust
enrichment, then he is entitled to restitution, or the restoration of any
benefit conferred on Defendant Heather Garvie.
This means that Brian Fisse is entitled to the reasonable value of the
funds provided to Heather Garvie.[2]
The jury rejected Fisse's theory that the $100,000 payment was a loan to
Garvie but entered a special verdict that Garvie was unjustly enriched. The jury filled
in $50,000 as the amount of damages. Fisse then sought judgment as a matter of
law for $100,000 plus prejudgment interest, additur, and a new trial. The trial court
denied all of his posttrial motions.
Fisse appeals the judgment limited to $50,000 and statutory costs.
1Clerk's Papers (CP) at 45 (emphasis added).
2CP at 48. Neither party objected to these instructions; therefore, we treat
these instructions as the properly applicable law on appeal. Roberson v. Perez. 156
Wash. 2d 33, 41, 123 P.3d 844 (2005); Guiiosa v. Wal-Mart Stores, Inc.. 144 Wash. 2d
907, 917, 32 P.3d 250 (2001) ("Instructions to which no exceptions are taken become
the law of the case.").
No. 70603-9-1/3
ANALYSIS
The core question presented is whether a fact finder must make an all-or-
nothing decision on unjust enrichment liability where money has been given to
another person. Unjust enrichment allows recovery of the value of a benefit retained,
absent any contractual relationship, iffairness and justice require it.3 That a
defendant has received a benefit from the plaintiff is insufficient to justify recovery.
"Liability only attaches where the circumstances of the benefit would make it unjust to
retain it."4
"We review a trial court's denial of a CR 50 motion for judgment as a matter of
law de novo," applying the same standard as the trial court.5 We must determine
whether substantial evidence supports the jury's verdict, viewing the facts and all
reasonable inferences in the light most favorable to the nonmoving party.6 When no
legally sufficient evidentiary basis exists for a reasonable jury to find for a party on an
issue, judgment as a matter of law is proper.7
3 Young v. Young, 164 Wash. 2d 477, 484, 191 P.3d 1258 (2008); Bailie
Commc'ns. Ltd. v. Trend Bus. Svs, Inc.. 61 Wash. App. 151, 160, 810 P.2d 12 (1991).
4 Town Concrete Pipe of Wash., Inc. v. Redford. 43 Wash. App. 493, 499, 717
P.2d 1384 (1986); see also Chandlery. Wash. Toll Bridge Auth.. 17 Wash. 2d 591, 601,
137 P.2d 97 (1943); Norcon Builders. LLC v. GMP Homes VG. LLC, 161 Wash. App.
474, 490, 254 P.3d 835 (2011); Davenport v. Wash. Educ. Ass'n. 147 Wash. App. 704,
728, 197 P.3d 686 (2008).
5 Gorman v. Pierce County. 176 Wash. App. 63, 74, 307 P.3d 795 (2013).
6 Armantrout v. Carlson. 141 Wash. App. 716, 721-22, 170 P.3d 1218 (2007),
reversed on other grounds. 166 Wash. 2d 931, 214 P.3d 914 (2009).
7 CR 50(a)(1); Faust v. Albertson. 167 Wash. 2d 531, 538, 222 P.3d 1208 (2009)
("A judgment as a matter of law requires the court to conclude, 'as a matter of law,
that there is no substantial evidence or reasonable inferences to sustain a verdict for
the nonmoving party.'" (quoting Indus. Indem. Co. of the Nw. v. Kallevig. 114 Wash. 2d
907, 915-16, 792 P.2d 520 (1990))).
No. 70603-9-1/4
Fisse's syllogism is: (1) Fisse gave Garvie $100,000; (2) the jury determined
Garvie was unjustly enriched; and (3) therefore, Fisse's damages for unjust
enrichment must be $100,000 as a matter of law. But he cites no authority for this
all-or-nothing approach to damage awards in money payment, unjust enrichment
cases. The parties do not dispute Fisse gave Garvie $100,000, but it does not follow
that Garvie was unjustly enriched for the full $100,000. The fact finder has the
discretion to decide the extent to which the "circumstances make it unjust"8 for Garvie
to retain all or any portion of the money she received from Fisse.
Contrary to Fisse's contention, the record provides substantial evidence to
support the jury's verdict limited to $50,000. Among other circumstances, testimony
reflects that Garvie regularly cooked meals for Fisse, Fisse regularly stayed the night
at Garvie's house, Fisse did not pay rent when he stayed at Garvie's house from time
to time, and Fisse did not pay any of Garvie's household bills. The jury could
reasonably determine that, under all of the circumstances, it was only unjust for
Garvie to retain a portion of the money she received from Fisse. The jury could also
reasonably determine, consistent with Garvie's theory at trial, that part of the
$100,000 was intended as a gift and thus not subject to restitution. Therefore, it was
within the jury's province to determine that only $50,000 was unjustly retained by
Garvie.
Fisse cites Restatement (First) of Restitution, arguing that when "the benefit
received was money, the measure of recovery ... is the amount of money
8 CP at 45.
No. 70603-9-1/5
received."9 But that rule does not support recovery for the entire amount given to
Garvie if the jury determined the circumstances make it unjust to retain only part of
the payment.10 Therefore, because itwas the jury's role to weigh all of the
circumstances to determine what amount Garvie was unjustly enriched, and because
substantial evidence supports the jury's verdict, the trial court did not err in denying
Fisse's motion for judgment as a matter of law.
Fisse challenges the trial court's denial of prejudgment interest, arguing
prejudgment interest should have been awarded. We disagree.
We review a denial of prejudgment interest for abuse of discretion.11
Prejudgment interest is recoverable for either liquidated claims or claims that are
ascertainable with certainty prior to the entry of judgment.12 A liquidated claim exists
when "'the amount of prejudgment interest can be determined from the evidence with
9 Restatement (First) of Restitution § 150 (1937).
10 Section 150 of the Restatement (First) of Restitution "does not determine
the amount which a successful party is entitled to recover." ]d. § 150 cmt. a; see also
Coast Trading Co. v. Parmac. Inc.. 21 Wash. App. 896, 902-03, 587 P.2d 1071 (1978)
(holding that, under an unjust enrichment theory, a portion of money that had been
paid to another was not unjustly retained); see generally McGrath v. Hilding. 41
N.Y.2d 625, 629-30, 363 N.E.2d 328 (1977) (holding that a theory of unjust
enrichment based upon a woman's expenditure of funds to remodel her ex-
husband's home requires an analysis of the extent to which the enrichment was
unjust under all of the circumstances, including the woman's conduct); Schirmer v.
Souza. 126 Conn. App. 759, 763, 12 A.3d 1048 (2011) ("With no other test than
what, under a given set of circumstances, is just or unjust, equitable or inequitable,
... it becomes necessary ... to examine the circumstances and the conduct of the
parties and apply this standard.").
11 Polygon Nw. Co. v. Am. Nat'l Fire Ins. Co., 143 Wash. App. 753, 790, 189
P.3d 777 (2008).
12 Bailie Commc'ns. Ltd.. 61 Wash. App. at 162.
No. 70603-9-1/6
exactness and without reliance on opinion or discretion.'"13 Damages "that cannot be
calculated without the use of discretion are not liquidated."14 The claim's original
character—rather than the court's ultimate method for awarding damages—
determines whether prejudgment interest is available.15
The trial court here properly denied prejudgment interest. Fisse's claim and
resulting award were based upon the amount that Garvie unjustly retained. The
claim's original character gave the jury discretion to apply an equitable standard.
Because the jury calculated damages using its discretion, Fisse's claim is neither
liquidated nor ascertainable with certainty prior to the entry of judgment.16
Fisse cites the Restatement (Third) of Restitution and Unjust Enrichment,
arguing liability in restitution for the payment of money normally includes prejudgment
interest from the date of payment.17 But "when the amount of the defendant's liability
is liquidated only upon judgment," as here, "prejudgment interest is more likely to be
13 Stevens v. Brink's Home Security, Inc., 162 Wash. 2d 42, 50, 169 P.3d 473
(2007) (quoting Bostain v. Food Exp., Inc., 159 Wash. 2d 700, 723, 153 P.3d 846
(2007)).
14 Dep't of Corr. v. Fluor Daniel. Inc., 160 Wash. 2d 786, 789, 161 P.3d 372
(2007): Aker Verdal A/S v. Neil F. Lampson, Inc.. 65 Wash. App. 177, 191.828P.2d
610 (1992) ("[W]hen determining the measure of damages requires the exercise of
discretion by the fact-finder, the claim is unliquidated.").
15 Irwin Concrete. Inc. v. Sun Coast Props., Inc., 33 Wash. App. 190, 200, 653
P.2d 1331 (1982).
16 Eg^, Kiewit-Grice v. State. 77 Wn. App 867, 873, 895 P.2d 6 (1995) ("'[A]
defendant should not be required to pay prejudgment interest in cases where he is
unable to ascertain the amount owed." (quoting CKP. Inc. v. GRS Const. Co., 63 Wn.
App. 601, 614, 721 P.2d 63 (1991))).
17 Restatement (Third) of Restitution and Unjust Enrichment § 53(4)
(2011).
No. 70603-9-1/7
denied."18 Because Fisse's claim was unliquidated and unascertainable prior to the
entry of judgment, prejudgment interest was unavailable. Therefore, the trial court
did not abuse its discretion in denying prejudgment interest.
Fisse contends the trial court erred in denying his motions for a new trial and
additur. We disagree.
We review a denial of a new trial or additur for abuse of discretion.19 "Juries
have considerable latitude in assessing damages, and a jury verdict will not be lightly
overturned."20 "We will not disturb a jury award 'unless it is outside the range of
substantial evidence, shocks the conscience of the court, or was the result of passion
or prejudice.'"21 We presume the amount of damages awarded by the jury's verdict
was correct.22 But if the record reflects the damages awarded by a jury verdict "were
so excessive or so inadequate as unmistakably to indicate that the amount of the
verdict must have been the result of passion or prejudice," a new trial or additur may
be an appropriate remedy.23
18 Id § 53 cmt. e.
19 Locke v. City of Seattle. 162 Wash. 2d 474, 486, 172 P.3d 705 (2007): Mutual
of Enumclaw Ins. Co. v. Gregg Roofing. Inc.. 178 Wash. App. 702, 727, 315 P.3d 1143
(2013).
20 Herriman v. May, 142 Wash. App. 226, 232, 174 P.3d 156 (2007).
21 RWR Mgmt., Inc., 133 Wash. App. at 274 (quoting Stevens v. Gordon, 118
Wash. App. 43, 54, 74 P.3d 653 (2003)); see also Bunch v. King County Dep't of Youth
Servs.. 155Wn.2d165, 179, 116P.3d381 (2005): Herriman, 142 Wash. App. at 232
("A trial court has no discretion to disturb a verdict within the range of evidence.").
22 RCW 4.76.030; Bunch. 155 Wash. 2d at 179 ("We strongly presume the jury's
verdict is correct.").
23 RCW 4.76.030: Robinson v. Safeway Stores. Inc.. 113Wn.2d 154, 161,776
P.2d 676 (1989).
No. 70603-9-1/8
The trial court here did not abuse its discretion in denying Fisse's motions for a
new trial and additur. As discussed above, although the parties do not dispute that
Fisse gave Garvie $100,000, Garvie testified that she regularly cooked meals for
Fisse; Fisse regularly stayed at her house; Fisse did not pay rent when he stayed at
her house; and Fisse did not pay any of her household bills. The jury's verdict—that
only $50,000 was unjustly retained—is well within the range of evidence presented.
No evidence in the record suggests that the jury's damages award is so inadequate
as to indicate it must have been the result of passion or prejudice. Therefore, the trial
court did not abuse its discretion in denying Fisse's motions for a new trial and
additur.
We affirm.
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WE CONCUR:
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