Free Brief - District Court of Colorado - Colorado

Case 1:03-cv-01291-MSK-CBS

Document 360

Filed 12/23/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 03-cv-1291-MSK-CBS FRIEDA E. ENSSLE, BURKE E. ENSSLE and HEIDI ENSSLE WILSON Plaintiff(s), v. ILLINOIS TOOL WORKS, INC.; SAMES CORPORATION; BINKS RESEARCH & DEVELOPMENT CORPORATION; and JOHN DOE/JANE DOE (any person receiving value for transfer of Binks R&D assets). Defendant(s). _____________________________________________________________________________ PLAINTIFFS' BRIEF REGARDING UNJUST ENRICHMENT _____________________________________________________________________________ Plaintiffs Frieda E. Enssle, Burke E. Enssle and Heidi E. Wilson (the "Enssles"), through their undersigned counsel, submit the following Brief in support of unjust enrichment. 1. At the Final Trial Preparation Conference on December 13, 2005, the court ordered the parties to submit briefs within 10 days on unjust enrichment. Pacer 351, page 2. 2. Plaintiffs have an unjust enrichment claim as an alternative to their claim for breach of contract. See Final Pretrial Order, ¶3.I.B.(7). 3. Plaintiffs seek to recover under this equitable claim as an alternative to their claim for breach of contract. They seek to recover under unjust enrichment only if their contract with the defendants (i.e., the lease) is found to be unenforceable as to any one or more defendants. 4. Plaintiffs are permitted to plead in the alternative. "Relief in the alternative or of several different types may be demanded." Fed.R.Civ.P. 8(a).

Case 1:03-cv-01291-MSK-CBS

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5. Where there is an enforceable contract that covers conduct within the scope of that contract, that contract precludes an unjust enrichment claim on the same subject. Interbank Investments, LLC, v. Eagle River Water and Sanitation District, 77 P. 3d 814, 816 (Colo. App. 2003). 6. An exception to the general rule stated in Interbank allows a party to recover under unjust enrichment when that party will have no right under an enforceable contract. Interbank at 816, citing Backus v. Apishapa Land &Cattle Co., 615 P. 2d 42, 44 (Colo. App. 1980). 7. Backus is instructive here. Plaintiff Backus was a Texas real estate broker seeking to recover a commission on Colorado property. The trial court granted summary judgment against Backus, including denial of his direct contract claim against the property owner because Backus had no Colorado real estate license. However, the court of appeals held that Backus had a valid claim against the property owner based on the assignment of the real estate contract from the Colorado broker to Backus, because an assignee stands in the shoes of the assignor. Backus at 44. 8. The court further held that Backus could proceed alternatively on his claim for unjust enrichment, because if his claim on assignment of the contract failed, he would have no right under an enforceable contract. Backus at 44. 9. In Dudding v. Norton Frickey & Assocs., 11 P. 3d 441 (Colo. 2000), the Colorado Supreme Court found an attorney had a quantum meruit claim if the attorney's contingent fee agreement was unenforceable. Dudding at 444. In that case, the attorney did not prevail on the quantum meruit claim because of special factors that apply to attorneys' contracts that are not applicable in the Enssle case.
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10. Like quantum merit, a claim for unjust enrichment seeks to have the court imply a contract. Interbank at 816. 11. To be successful on such an implied contract, the Plaintiff must show that, (1) at

Plaintiffs' expense (2) Defendant received a benefit (3) under circumstances that would make it unjust for the defendant to retain the benefit without paying. Dudding at 445 (citation omitted). 12. Benefit denotes any type of advantage. Dudding at 445 (citation omitted). 13. The performance of another's statutory duty to remediate pollution can give rise to a claim for unjust enrichment. Moore v. Texaco, Inc., 244 F. 3d 1229, 1233 (10th Cir. Okla.) (citing Oklahoma precedent). 14. The Enssles' contract with the Defendants covers the same subject matter as the Enssles claim for unjust enrichment. 15. We cannot know if the Enssles' contract with the Defendants is enforceable until the jury renders its verdict. 16. The appropriate time to determine the viability of the unjust enrichment claim is after the jury has rendered its verdict on the legal claim of breach of contract. If the jury finds a valid contract, then unjust enrichment is not available. However, if the jury finds no enforceable contract, then the court can apply the equitable unjust enrichment claim to the facts proved at trial. WHEREFORE, Plaintiffs request the court to allow Plaintiffs to continue with both their claim of breach of contract and their alternative claim of unjust enrichment, and that the determination of the applicability of the unjust enrichment claim to the case be made after the jury returns a verdict on the enforceability of the contract (lease) between the parties.
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Respectfully submitted December 23, 2005. s/Peter Rogers Peter Rogers 885 Arapahoe Avenue Boulder, CO 80302 Telephone: 303-544-0997 Fax: 303-544-0998 [email protected] Attorney for Frieda E. Enssle, Burke E. Enssle, and Heidi E. Wilson

CERTIFICATE OF SERVICE I hereby certify that on December 23, 2005, a true and correct copy of the foregoing PLAINTIFFS' BRIEF REGARDING UNJUST ENRICHMENT was filed with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Susan E. Brice [email protected], [email protected] [email protected], [email protected] [email protected] [email protected], [email protected]

Angela Deborah DeVine Geraldine Elizabeth Flynn Asimakis Pascal Iatridis Robin R. Lunn

[email protected] [email protected], [email protected]

Kim Arquette Tomey

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And I hereby certify that I have mailed or served the document or paper by United States mail, first class, postage prepaid, addressed as follows: Asimakis P. Iatridis Berg, Hill, Greenleaf & Ruscitti LLP 1712 Pearl Street Boulder, CO 80302 Attorneys for Plaintiffs Burke E. Enssle 444 Millionaire Drive Boulder, CO 80302

s/ Peter Rogers Peter Rogers Attorney for Plaintiffs

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