United States of America v. Head Inc et al

Filing 93

ORDER finding that plaintiff is not entitled to judgment in its favor on its unjust enrichment claim against defendant Head and that plaintiff is entitled to judgment on its unjust enrichment claim against defendant APAC in the amount of $1,750.00. The Court shall issue judgment in this case based upon the jury's verdict and these findings. Signed by Honorable Vicki Miles-LaGrange on 4/24/2012. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
THE UNITED STATES FOR THE USE
AND BENEFIT OF MMS
CONSTRUCTION & PAVING, L.L.C.,
an Oklahoma limited liability company,
Plaintiff,
vs.
HEAD, INC., an Ohio corporation;
WESTERN SURETY COMPANY,
a South Dakota entity; and
APAC-CENTRAL, INC., a Delaware
corporation,
Defendants.

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Case No. CIV-10-1340-M

ORDER
On February 16, 2012, following a four day jury trial, the jury returned a verdict in favor of
plaintiff on its breach of contract claim and false representation/deceit claim against defendant Head,
Inc. (“Head”) and in favor of plaintiff on defendant Head’s counterclaim against plaintiff for breach
of contract. The jury also returned an advisory verdict in favor of plaintiff on its unjust enrichment
claim against defendant Head and in favor of plaintiff on its unjust enrichment claim against
defendant APAC-Central, Inc. (“APAC”). The jury awarded plaintiff damages in the sum of
$651,575.65 as to its claim for breach of contract, awarded plaintiff damages in the sum of
$150,000.00 as to its claim for false representation/deceit, awarded plaintiff damages in the sum of
$350,000.00 as to its claim against defendant Head for unjust enrichment, and awarded plaintiff
damages in the sum of $350,000.00 as to its claim against defendant APAC for unjust enrichment.
In light of the jury’s verdict, the Court directed the parties to file briefs regarding plaintiff’s
equitable claim of unjust enrichment against defendant Head and plaintiff’s equitable claim of unjust

enrichment against defendant APAC. On March 12, 2012, the parties filed their briefs, and on April
2, 2012, the parties filed their responses.1
The findings of an advisory jury are merely advisory, and the trial court must make its own
findings. See OCI Wyo., L.P. v. Pacificorp, 479 F.3d 1199, 1206 (10th Cir. 2007). “While the
district court may exercise its discretion to accept or reject the advisory jury’s verdict, the advisory
jury’s decision is not binding on the district court and the district court has the ‘ultimate
responsibility’ for deciding the case’s legal and factual issues.” Id.
I.

Unjust enrichment claim against defendant Head
Plaintiff brought an unjust enrichment claim against defendant Head for payment for the

work plaintiff performed on the Project and the materials it delivered to the Project. See Complaint
[docket no. 1] at ¶¶ 32-36; Final Pretrial Report [docket no. 60]; Jury Instruction No. 2, Statement
of the Case [docket no. 77].
Unjust enrichment is a condition which results from the failure of a
party to make restitution in circumstances where it is inequitable; i.e.
the party has money in its hands that, in equity and good conscience,
it should not be allowed to retain. Where the plaintiff has an
adequate remedy at law, the court will not ordinarily exercise its
equitable jurisdiction to grant relief for unjust enrichment.
Harvell v. Goodyear Tire & Rubber Co., 164 P.3d 1028, 1035 (Okla. 2006).
Because the jury found in favor of plaintiff on its breach of contract claim, the Court finds
that plaintiff has been afforded an adequate remedy at law and, thus, may not recover on its

1

In its brief, plaintiff also requests that the Court enter a judgment against defendant Western
Surety Company. The Court did not direct the parties to address this issue in their briefs.
Additionally, the Court would note that during the pretrial conference and the jury instruction
conference, counsel for the parties agreed that defendant Western Surety Company would be liable
on the payment bond for any amounts awarded to plaintiff on its breach of contract claim against
defendant Head.
2

alternative unjust enrichment claim against defendant Head. Specifically, the Court finds that the
damages sought by plaintiff through its unjust enrichment claim – payment for the work plaintiff
performed on the Project and the materials it delivered to the Project – have been compensated
through the jury’s verdict on plaintiff’s breach of contract claim. Further, while plaintiff asserts in
its post-trial briefs that it sought damages, specifically the amount of profit obtained by defendant
Head as a result of using plaintiff’s mix design, for the unauthorized use of its mix design through
its unjust enrichment claim against defendant Head, and that these damages were not encompassed
within its breach of contract claim against defendant Head, the Court finds all of plaintiff’s filings
prior to trial – from its Complaint to the Final Pretrial Report – as well as the argument and
testimony at trial clearly refutes plaintiff’s assertion. Plaintiff’s unjust enrichment claim against
defendant Head has never included damages for the unauthorized use of its mix design.
Accordingly, the Court finds that plaintiff is not entitled to judgment in its favor on its unjust
enrichment claim against defendant Head.
II.

Unjust enrichment claim against defendant APAC
Plaintiff brought an unjust enrichment claim against defendant APAC based upon defendant

APAC’s use of the mix design created by plaintiff. See Complaint at ¶¶ 55-58; Final Pretrial Report;
Jury Instruction No. 2, Statement of the Case. In order to recover on its claim for unjust enrichment
against defendant APAC, plaintiff must prove, by a preponderance of the evidence, that defendant
APAC received a benefit to it at the expense of plaintiff, and there is a resulting injustice, i.e., it
would be contrary to equity and good conscience for defendant APAC to retain the benefit it
received. See Teel v. Pub. Serv. Co. of Okla., 767 P.2d 391, 398 (Okla. 1985).

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Having heard the testimony and evidence presented during the trial, the Court finds that
plaintiff has proven that defendant APAC received a benefit to it at the expense of plaintiff and that
there is a resulting injustice.

Specifically, the Court finds that plaintiff has proven, by a

preponderance of the evidence, that defendant APAC used the mix design created by plaintiff during
defendant APAC’s work on the Project and did not pay plaintiff any compensation for its use of the
mix design. Defendant APAC also clearly benefitted from the use of the mix design created by
plaintiff; defendant APAC did not have to spend the time or money to create a mix design of its own.
The Court further finds that it would be contrary to equity and good conscience for defendant APAC
to retain the benefit it received. Accordingly, the Court finds that plaintiff is entitled to judgment
in its favor on its unjust enrichment claim against defendant APAC.
Having heard the testimony and evidence presented during the trial, the Court finds that
plaintiff has proven damages in the amount of $1,750.00.2 Specifically, the Court finds that the
undisputed evidence shows that plaintiff paid $1,750.00 for the design mix. The Court, however,
finds that sufficient evidence was not presented during the trial as to any value for the time plaintiff
spent creating a mix design of its own and sufficient evidence was not presented as to any profit
defendant APAC made as a result of its use of the design mix created by plaintiff. The Court, thus,
finds that any award of damages as to plaintiff’s time and defendant APAC’s profits would be
improper as such an award would be based upon speculation. See Weyerhaeuser Co. v. Brantley,

2

The Court finds that the $1,750 plaintiff paid for the design mix is not included in the
damages plaintiff sought and was awarded on its breach of contract claim against defendant Head.
The Court, therefore, finds that an award of $1,750 in damages for plaintiff’s unjust enrichment
claim against defendant APAC would not constitute a double recovery.
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510 F.3d 1256, 1267 (10th Cir. 2007) (“Oklahoma law prohibits recovery of damages that are
uncertain and speculative.”).
Accordingly, the Court finds that plaintiff is entitled to judgment on its unjust enrichment
claim against defendant APAC in the amount of $1,750.00.
III.

Conclusion
For the reasons set forth above, the Court FINDS that plaintiff is not entitled to judgment in

its favor on its unjust enrichment claim against defendant Head and that plaintiff is entitled to
judgment on its unjust enrichment claim against defendant APAC in the amount of $1,750.00. The
Court shall issue judgment in this case based upon the jury’s verdict and the above findings
forthwith.
IT IS SO ORDERED this 24th day of April, 2012.

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