Electrical Wholesale Supply Co., Inc. v. Alane Fraser and M.J. Bishop Concrete & Construction, Inc. , 2015 Wyo. LEXIS 121 ( 2015 )

IN THE SUPREME COURT, STATE OF WYOMING
2015 WY 105APRIL TERM, A.D. 2015
August 14, 2015
ELECTRICAL WHOLESALE SUPPLY
CO., INC., an Idaho Corporation,
Petitioner,
v.
S-14-0260
ALANE FRASER, an Individual; and M.J.
BISHOP CONCRETE &
CONSTRUCTION, INC., a Wyoming
Corporation,
Respondents.
Original Proceeding
Petition for Writ of Review
From the District Court of Teton County
The Honorable Timothy C. Day, Judge
Representing Petitioner:
Mitchell H. Edwards and Julie M. Wickett of Nicholas & Tangeman, LLC, Laramie,
Wyoming. Argument by Mr. Edwards.
Representing Respondent Alane Fraser:
Bret F. King of King & King, LLC, Jackson, Wyoming. No appearance.
Representing Respondent M.J. Bishop Concrete & Construction, Inc.:
William R. Fix, Jackson, Wyoming.
Before BURKE, C.J., and HILL, KITE*, DAVIS, and FOX, JJ.
* Justice Kite retired from judicial office effective August 3, 2015, and pursuant to Article 5,
§ 5 of the Wyoming Constitution and Wyo. Stat. Ann. § 5-1-106(f) (LexisNexis 2015), she was
reassigned to act on this matter on August 4, 2015.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KITE, Justice.
[¶1] Electrical Wholesale Supply Co. (EWS) filed this action in circuit court, seeking
payment for electrical materials it supplied to a commercial building remodel in Jackson,
Wyoming. The circuit court denied EWS’s claims, and we granted a writ of review
pursuant to W.R.A.P. 13.01, et seq. after the district court affirmed the circuit court’s
rulings. EWS asserts the circuit court erred by declaring its lien against Alane Fraser’s1
property invalid for failing to follow the statutory notice requirements. EWS also
challenges the circuit court’s denial of its unjust enrichment claim against Ms. Fraser and
the general contractor, M.J. Bishop Concrete & Construction, Inc. (Bishop Construction).
[¶2] We conclude the circuit court applied the wrong statute to the lien notice issue and
erred by granting summary judgment in favor of Ms. Fraser on the lien claim. However,
we agree with the circuit court that EWS did not prove its unjust enrichment claim. We,
therefore, affirm in part, reverse in part, and remand for further proceedings consistent
with this opinion.
ISSUES
[¶3] The dispositive issues in this case are:
1. Whether the circuit court applied the correct lien notification statute under
the circumstances of this case.
2. Whether EWS provided timely notice of its filed lien to the property owner.
3. Whether EWS proved the elements of unjust enrichment.
FACTS
[¶4] Ms. Fraser hired Bishop Construction to remodel her commercial property in
Jackson, Wyoming. Bishop Construction subcontracted with Jackson Hole Electric, Inc.,
also referred to as JHE 2, Inc., (hereinafter JHE) to perform electrical work on the
project. Dusty Jones, vice-president of JHE, opened a general account with EWS, an
electrical materials supplier, in July 2010. He also opened a job account for the Fraser
project, called the Rafter J Café, in November 2010. JHE’s application for the job
account listed and provided addresses for Ms. Fraser as the owner, Bishop Construction
as the general contractor, and JHE as the electrical contractor.
1
Alane Fraser is named as a defendant/respondent in this case. She did not, however, file a brief on
appeal and the record indicates that, during the pendency of this litigation, she sold the property. No issue
is raised regarding the proper parties to this appeal, so while we note this development, we will not further
address it.
1
[¶5] On November 30, 2010, EWS notified Ms. Fraser and Bishop Construction that it
was providing materials for the project. In the notice, EWS provided its contact
information, including the address and telephone number for making payments. The
notice also stated:
6) This document hereby constitutes notice of Electrical
Wholesale Supply Co., Inc.’s right to claim a lien against the
building or improvements upon the real property for materials
furnished.
In the even[t] that this job constitutes a “single family
dwelling unit” as also described by the Wyoming statutes,2
the following additional notice is also given:
NOTICE TO OWNER
FAILURE OF THIS PRIME CONTRACTOR OR
SUBCONTRACTOR TO PAY THOSE PERSONS
SUPPLYING MATERIALS OR SERVICES TO
COMPLETE THIS CONTRACT CAN RESULT IN THE
FILING OF A MECHANIC’S LIEN ON THE PROPERTY
WHICH IS THE SUBJECT OF THIS CONTRACT
PURSUANT TO W.S. 29-2-101 THROUGH 29-2-110. TO
AVOID THIS RESULT, WHEN PAYING FOR LABOR
AND MATERIALS YOU MAY ASK THIS PRIME
CONTRACTOR OR SUBCONTRACTOR FOR “LIEN
WAIVERS” FROM ALL PERSONS SUPPLYING
MATERIALS OR SERVICES FOR THE WORK
DESCRIBED IN THIS CONTRACT. FAILURE TO
SECURE LIEN WAIVERS MAY RESULT IN YOU
PAYING FOR LABOR AND MATERIALS TWICE.
[¶6] EWS sent the notice to Ms. Fraser and Bishop Construction by certified mail,
return receipt requested, as then required by Wyo. Stat. Ann. §§ 29-2-110 and 29-2-111
(LexisNexis 2010). Although the mailing addresses used by EWS were incorrect in some
respects, the notices were delivered by the post office and signed for by representatives of
2
By its plain language, the “notice to owner” applied to jobs involving “single family dwelling units.”
That language was presumably intended to comply with Wyo. Stat. Ann. § 29-2-110 (LexisNexis 2010).
The Rafter J Café project was a commercial building, not a single family dwelling unit. This distinction
was not recognized by the circuit court or any of the parties. In fact, Ms. Fraser testified that she believed
the provision applied to her, as owner of the Rafter J Café project. Given everyone involved proceeded as
if the provision applied, we will not consider the legal effect of the limitation contained in the notice
language.
2
the respective addressees. Ms. Fraser and Mr. Bishop specifically acknowledged
receiving the notices.
[¶7] EWS supplied materials to JHE for use on the Rafter J Café project and regularly
submitted invoices to JHE for payment. JHE paid the invoices for the first several
months of the project, but in June 2011 began falling behind in its payments. The unpaid
principal amount was $18,495.94.
[¶8] In the meantime, JHE submitted bills of over $92,000 to Bishop Construction for
electrical work and materials on the job, and Bishop Construction paid JHE in full.
Bishop Construction then billed Ms. Fraser over $1,000,000 for work on the project
(including the electrical work), which she paid in full. Neither Bishop Construction nor
Ms. Fraser requested lien waivers from EWS or JHE when they made their payments.
JHE consolidated its revenue from all of its jobs and used the money to pay outstanding
bills. With regard to its EWS accounts, JHE tended to pay those that had been in arrears
the longest.
[¶9] In accordance with its policy, EWS suspended JHE’s Rafter J Café account in
September 2011 because it was more than sixty days past due. The café opened on
November 11, 2011, and a few days later, November 16, 2011, EWS’s legal counsel
mailed a letter to Ms. Fraser, with copies to Bishop Construction and JHE, giving notice
of its intent to file a lien against her property if the outstanding balance was not paid.
The letter was certified and Ms. Fraser’s teenaged son signed for it on December 6, 2011.
Although Ms. Fraser could not recall when she first saw the letter, she did review it at
some point and learned that EWS had not been paid. Mike Bishop of Bishop
Construction did not remember receiving the letter, but became aware of it when he met
with Ms. Fraser and Mr. Jones in late November or early December 2011 to discuss the
situation. Ms. Fraser offered to pay EWS $15,000 to resolve the issue, but EWS rejected
the offer. Mr. Jones assured her and Mr. Bishop that he would make arrangements to pay
the bill, but he did not. On December 22, 2011, EWS recorded a lien against Ms.
Fraser’s property. It sent notice of its lien to Ms. Fraser on December 29, 2011.
[¶10] On May 31, 2012, EWS filed an action in the circuit court in Teton County,
naming Ms. Fraser, Bishop Construction, JHE, and Mr. Jones as defendants.3 The
complaint included causes of action for foreclosure of a construction lien, breach of
contract, unjust enrichment, and third party beneficiary. Mr. Jones and JHE failed to
respond to the complaint and default was entered against them; however, JHE is defunct
and EWS was unable to collect its judgment against either the company or Mr. Jones.
EWS’s third party beneficiary claim was dismissed with its consent.
3
Pursuant to Wyo. Stat. Ann. § 5-9-128(a)(i) and (vi) (LexisNexis 2013), the circuit courts have exclusive
jurisdiction over civil actions seeking $50,000 or less and to foreclose statutory liens of the same value.
3
[¶11] Ms. Fraser filed a motion for summary judgment on EWS’s lien claim. She
argued the lien was not effective because EWS had not complied with the statute which
required it to send her notice of the lien within five days after it was filed. The circuit
court held a hearing on the summary judgment motion and concluded the statute required
mailing of a notice of the lien within five calendar days after recording and EWS had not
complied with its obligation. The circuit court, therefore, granted summary judgment in
favor of Ms. Fraser, declaring the lien invalid. It subsequently denied EWS’s motion for
reconsideration of its summary judgment decision. The circuit court held a bench trial on
EWS’s unjust enrichment claim and entered judgment in favor of Ms. Fraser and Bishop
Construction, concluding they did not have notice that EWS expected them to pay for the
materials.
[¶12] EWS appealed to the district court, which affirmed the circuit court decisions.
EWS then filed a petition for writ of review with the Wyoming Supreme Court, and we
granted the petition.4
STANDARDS OF REVIEW
[¶13] Two orders are at issue in this case and each requires application of a different
standard of review. First, the circuit court granted summary judgment in favor of Ms.
Fraser, declaring EWS’s lien against her property invalid. Summary judgments are
governed by W.R.C.P. 56(c):
The judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.
A summary judgment is subject to de novo review, meaning this Court reviews the same
materials and applies the same standards as the lower court. “We examine the record
from the vantage point most favorable to the party opposing the motion, and we give that
party the benefit of all favorable inferences which may fairly be drawn from the record.”
Baker v. Speaks, 2014 WY 117, ¶ 9, 334 P.3d 1215, 1219 (Wyo. 2014), quoting Hasvold
v. Park County School Dist. No. 6, 2002 WY 65, ¶ 11, 45 P.3d 645, 637-38 (Wyo. 2002)
(other citations omitted).
4
Pursuant to W.R.A.P. 13.01 and Wyo. Stat. Ann. § 5-2-119, a decision of a court of limited jurisdiction
is appealed in the first instance to the district court. The district court’s decision may be appealed to the
Wyoming Supreme Court only when it grants a petition for writ of review or certiorari agreeing to hear
the appeal.
4
[¶14] The circuit court conducted a bench trial on EWS’s unjust enrichment claim. In
general, we apply the following standard when reviewing a district court’s decision after
a bench trial:
“The factual findings of a judge are not entitled to the limited
review afforded a jury verdict. While the findings are
presumptively correct, the appellate court may examine all of
the properly admissible evidence in the record. Due regard is
given to the opportunity of the trial judge to assess the
credibility of the witnesses, and our review does not entail re-
weighing disputed evidence. Findings of fact will not be set
aside unless they are clearly erroneous. A finding is clearly
erroneous when, although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.”
With regard to the trial court’s findings of fact,
“we assume that the evidence of the prevailing party
below is true and give that party every reasonable
inference that can fairly and reasonably be drawn from it.
We do not substitute ourselves for the trial court as a
finder of facts; instead, we defer to those findings unless
they are unsupported by the record or erroneous as a
matter of law.”
The district court’s conclusions of law, however, are subject
to our de novo standard of review.
Morris v. CMS Oil & Gas Co., 2010 WY 37, ¶ 12, 227 P.3d 325, 330 (Wyo. 2010),
quoting Lieberman v. Mossbrook, 2009 WY 65, ¶ 40, 208 P.3d 1296, 1308 (Wyo. 2009)
(citations omitted).
DISCUSSION
A. Which statute governed notification to the property owner of the lien
filing?
[¶15] Under Wyo. Stat. Ann. § 29-2-101 (LexisNexis 2010), “every person performing
any work on or furnishing any materials or plans for any building or any improvement
upon land shall have for his work done or plans or materials furnished a lien upon the
5
building or improvements.”5 Under the statutory lien provisions, a claimant is required to
comply with certain notice requirements. The lien in this case was filed in the county
clerk’s office on December 22, 2011, and EWS’s counsel mailed notice of the lien to Ms.
Fraser on December 29, 2011.
[¶16] Ms. Fraser argued that EWS’s lien was invalid because it did not send notice to
her within five calendar days after the lien was filed in accordance with Wyo. Stat. Ann.
§ 29-1-312(c) (LexisNexis 2012):
(c) Notice shall be sent by the lien claimant to the last record
owner or his agent in the case of a real property lien within
five (5) days after the lien statement is filed.6
[¶17] EWS claimed W.R.C.P. 6(a) applied to make its notification timely. Rule 6(a)
provides:
(a) Computation. – In computing any period of time
prescribed or allowed by these rules, by order of court, or
by any applicable statutes, the day of the act, event, or
default from which the designated period of time begins to
run shall not be included. The last day of the period so
computed shall be included, unless it is a Saturday, a
Sunday, or a legal holiday, or, when the act to be done is
the filing of a paper, a day on which weather or other
conditions have made the office of the clerk of the court
inaccessible, in which event the period runs until the end
of the next day which is not one of the aforementioned
days. When the period of time prescribed or allowed is
5
Wyo. Stat. Ann. § 29-2-101 (LexisNexis 2014) continues to provide the right to a lien, although it has
been revised.
6
The legislature has since amended § 29-1-312(c) to require that notice of the lien be sent to the property
owner within 30 days after filing and to specifically state that failure to send the notice will not affect the
validity of the lien:
(c) Notice shall be sent by the lien claimant to the last record owner or his agent in the
case of a real property lien within thirty (30) days after the lien statement is filed. The
notice shall be in substantially the same format and contain the same information as the
form of notice specified in W.S. 29-10-103. The notice forms shall be made available and
may be obtained at the county clerk’s office of each county. Failure to send the notice
required under this subsection shall not affect the validity of the lien.
Section 29-1-312(c) (LexisNexis 2014).
6
less than 11 days, intermediate Saturdays, Sundays,
and legal holidays shall be excluded in the
computation. As used in this rule, “legal holiday”
includes any day officially recognized as a legal holiday
in this state by designation of the legislature or
appointment as a holiday by the governor.
(Emphasis added).
[¶18] In 2011, Christmas was on Sunday, so Monday, December 26, 2011, was the
recognized legal holiday. Under Rule 6(a), if the holiday and the weekend days are
excluded from the calculation, December 29, 2011, was the fourth day after filing and a
notice sent that day would have been timely. The circuit court rejected EWS’s argument
about application of Rule 6(a) to the calculation of time under § 29-1-312(c).
[¶19] On appeal to the district court, EWS argued, in part, that § 29-1-312 did not apply
to its lien filing and insisted that an earlier version of the statute, Wyo. Stat. Ann. § 29-1-
301(c) (LexisNexis 2009), applied instead. That statute included the following notice
provision:
“(c) Notice shall be given to the last known owner in the case
of a real estate lien by certified mail and made by the lien
claimant promptly after the lien statement is filed.”
Section 29-1-301(c). EWS claimed it sent notice of its lien “promptly” as required by the
statute.
[¶20] Section 29-1-312 went into effect July 1, 2011; however, the session law stated:
The provisions of this act shall apply to all projects
commenced on or after July 1, 2011. Any projects
commenced prior to July 1, 2011, shall be governed by the
lien procedures in title 29 that existed prior to July 1,
2011.
2010 Wyo. Sess. Laws Ch. 92, § 4, p. 425 (emphasis added). Given the Rafter J Café
project commenced in late 2010, it is clear the former notice statute, § 29-1-301(c),
applied to this case. Nevertheless, the district court refused to apply the earlier version of
the statute because EWS had not specifically presented the argument to the circuit court.
[¶21] In general,
7
“issues raised for the first time on appeal . . . will not be
considered by this court unless they are jurisdictional or
issues of such a fundamental nature that they must be
considered.” Byrd v. Mahaffey, 2003 WY 137, ¶ 10, 78 P.3d
671, 674 (Wyo.2003).
Gjertsen v. Haar, 2015 WY 56, ¶ 15, 347 P.3d 1117, 1123 (Wyo. 2015). EWS represents
that it was not aware of the provision making the revised statutory lien act applicable
only to projects commenced on or after July 1, 2011, because that part of the law was not
included in the printed version of the statute. We have confirmed that the printed
versions of the 2010 supplement and the 2011 edition of the Wyoming Statutes did not
include 2010 Wyo. Sess. Laws, Ch. 92, §4, p. 425.7 Consequently, anyone using the
printed versions of the revised statute was missing critical information about its
effectiveness.
[¶22] 2010 Wyo. Sess. Laws, Ch. 92, § 4, p. 425 is, obviously, part of the statute. We
interpret statutes de novo. Horning v. Penrose Plumbing & Heating, Inc., 2014 WY 133,
¶ 10, 336 P.3d 151, 153 (Wyo. 2014). Our usual rules of statutory interpretation provide:
[The] paramount consideration is to determine the
legislature’s intent, which must be ascertained initially and
primarily from the words used in the statute. We look first to
the plain and ordinary meaning of the words to determine if
the statute is ambiguous. A statute is clear and unambiguous
if its wording is such that reasonable persons are able to agree
on its meaning with consistency and predictability.
Conversely, a statute is ambiguous if it is found to be vague
or uncertain and subject to varying interpretations.
Barlow Ranch, Ltd. Partnership v. Greencore Pipeline Co. LLC, 2013 WY 34, ¶ 18, 301
P.3d 75, 83 (Wyo. 2013), citing Michael’s Constr., Inc. v. Am. Nat’l Bank, 2012 WY 76,
¶ 12, 278 P.3d 701, 705 (Wyo. 2012). “When the language is clear, we give effect to the
ordinary and obvious meaning of the words employed by the legislature.” Horning, ¶ 13,
336 P.3d at 154. We apply our rules of statutory construction only when a statute is
ambiguous. Id.
[¶23] The Wyoming Legislature was careful to include, in the enacted legislation, the
provision limiting the applicability of the revised statute to projects commenced on or
after July 1, 2011. The legislature’s clear intent was for § 29-1-301 to apply to projects
under construction prior to the effective date of § 29-1-312. In accordance with the
7
Interestingly, the on-line versions of the 2010 supplement and the 2011 edition do contain Laws 2010,
ch. 92, § 4.
8
principle that courts are charged with enforcing the legislature’s actual intent, enrolled
bills govern over incorrect or incomplete printed versions. See 73 Am. Jur. 2d Statutes §
39 (2015); 82 C.J.S. Statutes § 78 (2015).
[¶24] Application of the correct law to the Rafter J Café project implicates a
fundamental matter that warrants consideration of EWS’s argument. Furthermore, the
circuit court actually discussed § 29-1-301(c) in its detailed decision on EWS’s motion
for reconsideration of its summary judgment, although it did not recognize the provision
limiting the effectiveness of § 29-1-312. We will, therefore, apply the correct rule of law,
as set out in the former statute, to determine the timeliness of EWS’s lien notification.
B. Did EWS comply with the notification requirement of § 29-1-301(c)?
[¶25] As we stated above, § 29-1-301(c) required the lien claimant to give notice to the
property owner “by certified mail . . . promptly after the lien statement is filed.”
Although the circuit court did not actually apply the earlier statute to EWS’s lien, it stated
that “[a]rguably, the plaintiff ‘promptly’ mailed the lien notice to the defendant.”
[¶26] “Promptly” is not an exact term. The plain meaning of “prompt” is “at once,”
“without delay,” or “quick to act as occasion demands.” Webster’s Third New Int’l
Dictionary 1816 (2002). As the definition recognizes, what is “prompt” depends upon
the situation. The Teton County Clerk recorded EWS’s lien on December 22, 2011, and
EWS’s counsel, who practiced in Laramie, Wyoming, sent certified notice to Ms. Fraser
that a lien had been recorded against her property on December 29, 2011. The week that
passed between the date of filing and the date notice was sent included a weekend and
Monday, December 26, 2011, a legal holiday, which obviously affected EWS’s counsel’s
efforts to learn about the lien recording from the county clerk’s office and to send the
notice by certified mail. Under these circumstances, EWS promptly notified Ms. Fraser
of the lien by certified mail. The circuit court erred by declaring the lien invalid and the
district court erred by affirming the circuit court’s decision.
C. Did the circuit court properly conclude that EWS was not entitled to a
judgment on the theory of unjust enrichment?
[¶27] In addition to its lien claim, EWS presented a cause of action for unjust
enrichment against the defendants.
Unjust enrichment (or quantum meruit) is an equitable
remedy which implies a contract so that one party may
recover damages from another. One seeking damages based
on unjust enrichment must prove four elements:
(1) Valuable services were rendered, or materials furnished,
9
(2) to the party to be charged,
(3) which services or materials were accepted, used and
enjoyed by the party, and,
(4) under such circumstances which reasonably notified the
party to be charged that the plaintiff, in rendering such
services or furnishing such materials, expected to be paid by
the party to be charged. Without such payment, the party
would be unjustly enriched.
Bowles v. Sunrise Home Center, Inc., 847 P.2d 1002, 1004 (Wyo. 1993) (citations
omitted).
[¶28] Bishop Construction moved for summary judgment on EWS’s unjust enrichment
claim, asserting that as a matter of law EWS could not satisfy the fourth element of unjust
enrichment because it did not give Bishop Construction and Ms. Fraser notice that it
would look to them for payment. The circuit court denied Bishop Construction’s motion,
finding there were genuine issues of material fact precluding summary judgment. The
circuit court then held a bench trial on EWS’s unjust enrichment claim. After the trial, it
issued findings of fact, conclusions of law and an order denying EWS’s unjust
enrichment claim because it had failed to prove the fourth element of the cause of action.
[¶29] As we stated in the standard of review section, above, a district court’s factual
findings after a bench trial are subject to the clearly erroneous standard of review. In
addition, given unjust enrichment is an equitable remedy, the trial court had considerable
discretion in ruling on the claim. We will not interfere with the lower court’s decision
unless an abuse of discretion is demonstrated. Windsor Energy Group, LLC v. Noble
Energy, Inc., 2014 WY 96, ¶ 23, 330 P.3d 285, 291-92 (Wyo. 2014) (discussing standard
of review applicable to the district court’s decision after a bench trial on a claim based
upon the equitable doctrine of laches).
[¶30] The circuit court and, to some extent, the parties focused on the notice portion of
the fourth element of unjust enrichment at trial, i.e., whether EWS reasonably notified
Bishop Construction and Ms. Fraser that EWS expected to be paid by them. The circuit
court ruled that neither Bishop Construction nor Ms. Fraser received adequate notice
from EWS that it was looking to them for payment for the electrical supplies purchased
by JHE on its account. The circuit court relied upon Bowles, 847 P.2d 1002, in arriving
at its decision.
[¶31] Bowles was the owner of a construction project, Homestead was the original
general contractor, and Sunrise supplied materials for the job on an account opened by
10
Homestead. Homestead did not complete the job in a timely manner, so Bowles hired a
second contractor, Thompson, to finish the project. Homestead, Bowles and Thompson
all charged items to the job account with Sunrise. The account was not paid in full and
Sunrise filed a lien against Bowles’ property and then filed an action against Homestead,
Bowles and Thompson. The action included counts for foreclosure of the lien and unjust
enrichment. Bowles, 847 P.2d at 1003-04.
[¶32] The lien foreclosure claim was dismissed because “Sunrise failed to follow the
strict statutory requirements of Wyoming’s mechanic’s lien laws.” Id. at 1004. The
district court held a bench trial on Sunrise’s unjust enrichment claim, but Homestead
declared bankruptcy so the only remaining defendants were Bowles and Thompson. The
district court entered judgment in favor of Sunrise. On appeal, this Court reversed in
part, concluding that Sunrise had not given sufficient notice to Bowles and Thompson
that it expected them to pay for the materials purchased by Homestead for the project.
However, we affirmed the judgment as it pertained to the items charged by each of them,
concluding they had sufficient notice that they were expected to pay for those materials.
We explained:
Because Homestead: (1) alone opened the account, (2) was
the sole signatory on the account application, (3) was the only
entity billed by Sunrise on the account, and (4) was bound
contractually to supply material and construct Bowles’ office
building, we find that Bowles and Thompson were not
reasonably notified that Sunrise expected to be paid by them
on this account. However, we limit this finding to the
amounts specifically charged by Homestead and its
employees because when Bowles and Thompson charged
supplies themselves they had reasonable notice that Sunrise
expected to be paid for those charges.
Id. at 1005.
Applying Bowles to the circumstances of this case, the circuit court stated:
48. Based upon Bowles, the court concludes that Fraser
and Bishop Construction were not reasonably notified that the
plaintiff expected to be paid by them for electrical supplies
purchased by Jackson Hole Electric on its job account,
because (1) Jackson Hole Electric, through its owner, Dusty
Jones, alone opened the account, (2) Jones was the sole
signatory on the account application, (3) Jones’ entity,
Jackson Hole Electric, was the only entity billed by the
plaintiff on the account, and (4) Jones and Jackson Hole
11
Electric were bound contractually to pay the plaintiff for the
electrical supplies provided for the Rafter J project. Fraser
and Bishop Construction therefore are not liable to the
plaintiff on the theory of unjust enrichment.
The circuit court specifically found that the pre-lien notice sent by EWS on November
30, 2010,
did place Fraser and Bishop Construction on notice that the
plaintiff intended to get paid for providing electrical supplies
for the Rafter J project; but it placed Fraser and Bishop
Construction on notice that the plaintiff intended to get paid
by Jackson Hole Electric, not by Fraser and Bishop
Construction.
(footnote omitted).
[¶33] We have concerns about the circuit court’s analysis of the notice provided by
EWS when it began providing materials for the job in late 2010. The notice, quoted in
Paragraph 5 above, clearly placed the owner and general contractor on notice that, if JHE
did not pay for the materials, they were at risk of having to pay for them. It warned them
that they should obtain lien waivers prior to paying JHE in order to prevent having a lien
placed on the property. The Bowles opinion does not describe the notice sent by Sunrise
to the owner or second contractor, stating only that it failed to comply with the lien
statutes. By contrast, we do know the contents of the lien notice in this case. It informed
Ms. Fraser and Bishop Construction that EWS expected to be paid; EWS had the right to
a lien on the property to secure payment for the electrical materials; and the owner was at
risk of having to pay twice for the materials if lien waivers were not secured from the
general contractor, the subcontractors and/or the materialmen.
[¶34] Although we have misgivings about the circuit court’s rationale, we do not need to
make a definitive ruling on the adequacy of EWS’s notice for purposes of the unjust
enrichment claim because the record does not demonstrate that either Bishop
Construction or Ms. Fraser was unjustly enriched by the electrical materials supplied by
EWS. The second part of the fourth element of unjust enrichment requires a showing that
the party to be charged would be unjustly enriched if it were not required to pay.
Element four is the heart of an unjust enrichment claim.
The receipt of a benefit must be unjust as to the party to be
charged. Unjust enrichment is an equitable remedy that is
appropriate only when the party to be charged has received a
benefit that in good conscience the party ought not retain
without compensation to the party providing the benefit. “The
words ‘unjust enrichment’ concisely state the necessary
12
elements of an equitable action to recover money, property,
etc., which ‘good conscience’ demands should be set over to
the appellee by appellants pursuant to an implied contract
between them.” Landeis v. Nelson, 808 P.2d 216, 218
(Wyo.1991). As stated at 66 Am.Jur.2d Restitution and
Implied Contracts § 8 (2001):
The phrase “unjust enrichment” is used in law to characterize
the result or effect of a failure to make restitution of, or for,
property or benefits received under such circumstances as to
give rise to a legal or equitable obligation to account therefor.
It is a general principle, underlying various legal doctrines
and remedies, that one person should not be permitted
unjustly to enrich himself at the expense of another, but
should be required to make restitution of or for property or
benefits received, retained, or appropriated, where it is just
and equitable that such restitution be made, and where such
action involves no violation or frustration of law or
opposition to public policy, either directly or indirectly.
Boyce v. Freeman, 2002 WY 20, ¶ 15, 39 P.3d 1062, 1065-66 (Wyo. 2002). See also,
Symons v. Heaton, 2014 WY 4, ¶ 16, 316 P.3d 1171, 1176 (Wyo. 2014); Redland v.
Redland, 2012 WY 148, ¶ 146, 288 P.3d 1173, 1205-06 (Wyo. 2012).
[¶35] The evidence in this case clearly established that Bishop Construction paid JHE
for all of the electrical services and materials billed on the Rafter J Café project. In turn,
Ms. Fraser fully paid Bishop Construction for all of the labor and materials it billed on
the project. JHE applied its business revenues as it saw fit and chose not to use the
proceeds of the Rafter J Café project to pay off the EWS account. Given the general
contractor and the owner paid all amounts due to JHE, it cannot be said that ‘good
conscience’ demands they pay EWS for the materials JHE installed in the project. They
were not unjustly enriched by the materials from EWS. The party who was unjustly
enriched by EWS’s materials was JHE because it received full payment and did not apply
the funds to pay off the job account.
[¶36] In Bowles, we discussed a case with facts very similar to the case at bar,
Morrisville Lumber Co. v. Okcuoglu, 148 Vt. 180, 531 A.2d 887 (1987). We described
the facts and holding of the Vermont case as follows:
The Okcuoglus had contracted with a builder to construct a
vacation home. The builder opened two accounts, a general
account and a job account, with a materials supplier
(Morrisville) and then purchased supplies for the Okcuoglu
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project. Problems arose between the Okcuoglus and the
builder which resulted in termination of the builder before the
home was complete. Okcuoglu paid the builder only two-
thirds of the contract price but was forced to expend
additional funds, beyond the contract price, to have the home
completed. Unable to collect on the accounts from the
builder, Morrisville sued the Okcuoglus based on unjust
enrichment. Morrisville, 531 A.2d at 888. The Vermont
Supreme Court declined to permit damages based upon unjust
enrichment because the Okcuoglus paid for all the benefits it
received; therefore, they were not unjustly enriched.
Morrisville, 531 A.2d at 889.
Bowles, 847 P.2d at 1005. Like the Okcuoglus, Bishop Construction and Ms. Fraser paid
for all of the benefits they received. Consequently, the circuit court did not abuse its
discretion by ruling that EWS was not entitled to relief under the equitable doctrine of
unjust enrichment.
[¶37] Affirmed in part, reversed in part, and remanded for further proceedings consistent
with this opinion.
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