Meyer v. Christie

FILED
United States Court of Appeals
Tenth Circuit

March 15, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ALAN E. MEYER; JOHN R. PRATT;
DOVETAIL BUILDERS 2, LLC,
Plaintiffs–Appellees,
v. No. 10-3011
DAVID J. CHRISTIE; ALEXANDER
GLENN; D.J. CHRISTIE, INC.; THE
BLUFFS, LLC,
Defendants–Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 2:07-CV-02230-CM)

Susan A. Kidwell of Locke Lord Bissell & Liddell LLP, Austin, Texas (Edwin R.
DeYoung of Locke Lord Bissell & Liddell LLP, Dallas, Texas, William P.
Denning of Sanders Warren & Russell LLP, Overland Park, Kansas, and Grant M.
Glenn and Bruce J. Woner of Woner, Glenn, Reeder, Girard & Riordan, Topeka,
Kansas with her on the briefs), for Defendants–Appellants David J. Christie,
Alexander Glenn, and D.J. Christie, Inc.

Terrence J. Campbell (Catherine C. Theisen with him on the briefs) of Barber
Emerson, L.C., Lawrence, Kansas, for Defendant–Appellant The Bluffs, LLC.

Kenneth N. Hickox, Jr. (William A. Brewer III and Robert M. Millimet with him
on the brief), of Bickel & Brewer, Dallas, Texas, for Plaintiffs–Appellees.

Before MURPHY, McKAY, and O’BRIEN, Circuit Judges.
McKAY, Circuit Judge.

This diversity case revolves around an alleged oral joint venture agreement

to pursue a residential housing development in Junction City, Kansas. The jury

returned a verdict in favor of Plaintiffs on their claims of breach of the joint

venture agreement, breach of fiduciary duty, conspiracy, and unjust enrichment.

Defendants raise numerous arguments challenging this verdict on appeal.

B ACKGROUND

In March of 2005, Defendants David Christie and Alexander Glenn met

with Plaintiffs Alan Meyer and John Pratt to tour potential sites for a residential

housing development in Junction City, Kansas. While looking at the final site,

these four individuals allegedly entered into an oral joint venture agreement to

purchase and develop this land. Specifically, the jury heard testimony that the

parties all agreed: (1) they would call their joint venture Junction City Partners;

(2) Mr. Christie would purchase this property using one of his existing entities,

Defendant D.J. Christie, Inc.; (3) the property would then be assigned to Junction

City Partners; (4) the residential development would be named The Bluffs; (5)

Mr. Christie and Mr. Glenn would be fifty/fifty partners with Mr. Meyer and Mr.

Pratt; and (6) they would hire as general contractor a company owned by Mr.

Meyer and Mr. Pratt, Plaintiff Dovetail Builders.

During the next few months, D.J. Christie, Inc., entered into a contract to

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purchase this property; and Dovetail began to solicit subcontractors, draft initial

site plans, and purchase and lease equipment for constructing the project. Mr.

Pratt and Mr. Meyer worked in consultation with Mr. Christie and Mr. Glenn on

financing, initial site plans, and a presentation to convince city officials their

development project should receive financial incentives. Following several

meetings between the parties and various city officials, Junction City entered into

a non-binding memorandum of understanding with “Junction City Partners,” in

which the City agreed to pay up to $15 million in financial incentives for

completion of the residential development.

A few weeks later, Mr. Christie and Mr. Glenn terminated their relationship

with Plaintiffs. They then formed a corporation, Defendant The Bluffs, LLC, to

which they assigned D.J. Christie, Inc.’s contract to purchase the real property.

Several months later, they gave a fifty percent partnership interest in The Bluffs,

LLC, to two other individuals, the owners of the company who ended up acting as

the general contractor in the development project. The Bluffs, LLC, ultimately

received $8 million in financial incentives from Junction City.

Plaintiffs then filed this diversity action in the district court, raising several

Kansas state law claims against Defendants. Specifically, Plaintiffs Meyer and

Pratt brought claims of breach of the joint venture agreement, breach of fiduciary

duty, and wrongful dissociation against Defendants Christie and Glenn. Dovetail

also joined Mr. Meyer and Mr. Pratt in claims of civil conspiracy and unjust

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enrichment against all four Defendants, including The Bluffs, LLC, and D.J.

Christie, Inc. Following a nine-day trial, the jury found for Plaintiffs on all of

their claims. On these claims, the jury found actual damages of more than $9

million. Specifically, the jury found that Mr. Meyer and Mr. Pratt lost $7,170,603

in connection with their interest in the joint venture, while the three Plaintiffs

together lost $1,907,372 in contracting profits and $118,370 in unreimbursed out-

of-pocket expenses. The jury also found for Plaintiffs on their unjust enrichment

claim in the amount of $5.5 million, but Plaintiffs ultimately elected to recover

the damage award rather than the unjust enrichment amount. The district court

accordingly entered judgment in favor of Plaintiffs in the amount of $9,196,345 in

actual damages and $100 in punitive damages. This appeal followed.

D ISCUSSION

On appeal, all of the Defendants raise issues relating to Dovetail’s standing

to bring a civil conspiracy claim, the existence and enforceability of the alleged

joint venture agreement, the jury’s findings of wrongful dissociation and unjust

enrichment, and the award of damages. The Bluffs, LLC, also raises separate

issues relating to the civil conspiracy claim.

I. Dovetail’s Standing

We first consider whether Dovetail had standing to pursue a civil

conspiracy claim against Defendants, reviewing this jurisdictional issue de novo.

See New Eng. Health Care Emp. Pension Fund v. Woodruff, 512 F.3d 1283, 1288

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(10th Cir. 2008). “A civil conspiracy is not actionable under Kansas law without

commission of some wrong giving rise to a tortious cause of action independent

of conspiracy.” Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. Pepsico, Inc., 431

F.3d 1241, 1268 (10th Cir. 2005). In this case, Mr. Meyer and Mr. Pratt alleged

that Mr. Christie and Mr. Glenn committed the independent tort of breach of

fiduciary duty against them. Dovetail, however, alleged no such independent tort.

Dovetail asserts that it nevertheless had standing to sue as a third-party

beneficiary to the joint venture agreement. However, Dovetail brought no

contractual claims under that agreement, and, even if it had, such claims would

not state an independent tortious cause of action against Defendants. See id.

(holding that a defendant could not be liable for civil conspiracy under Kansas

law where the only actionable claim asserted against it was contractual). Whether

or not Dovetail could have successfully pursued a contractual claim against

Defendants as a third-party beneficiary to the agreement, Dovetail’s theoretical

contractual claims do not give it standing to pursue a conspiracy claim against

Defendants. See Bronson v. Swensen, 500 F.3d 1099, 1106 (10th Cir. 2007)

(“Each plaintiff must have standing to seek each form of relief in each claim.”).

Plaintiffs also suggest that a civil conspiracy claim requires only a showing

that at least one plaintiff has an actionable tort claim against at least one

defendant. However, we see no basis under Kansas law for allowing a plaintiff to

assert a conspiracy claim based on a tortious injury suffered by another plaintiff.

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Plaintiffs cite to no Kansas cases permitting such a result. Moreover, we have

previously interpreted Kansas law to hold that a conspiracy claim cannot be

maintained against a defendant where there is no actionable tort claim asserted

against this particular defendant, regardless of whether other defendants have

committed independent torts, see Pepsi-Cola, 431 F.3d at 1268, and we see no

basis for interpreting Kansas’s independent tort requirement for conspiracy claims

more broadly for plaintiffs than for defendants. We therefore hold that each

plaintiff asserting a conspiracy claim under Kansas law must have suffered “some

wrong giving rise to a tortious cause of action independent of conspiracy,” see

id., and may not simply adopt the tortious injury suffered by another. Because

Dovetail failed to allege Defendants committed any actionable tort against it, we

hold that Dovetail lacked standing to pursue its civil conspiracy claim against

Defendants.

Dovetail was accordingly not entitled to recover any damages based on this

claim. Indeed, because this was the only claim for legal damages Dovetail

brought, Dovetail may not recover any portion of the damage award. We also

agree with Defendants that the jury’s undifferentiated awards to Plaintiffs of

$1,907,372 in lost contracting profits and $118,370 in unreimbursed expenses

were likely based at least in part on the impermissible inclusion of Dovetail in

Plaintiffs’ civil conspiracy claim. We therefore reverse the jury’s awards for

these damages and remand for further proceedings on the issue of Mr. Meyer’s

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and Mr. Pratt’s damages, if any, relating to lost contracting profits and

unreimbursed expenses.

We are not persuaded, however, by Defendants’ argument that the addition

of Dovetail to the civil conspiracy claim caused impermissible evidence to be

introduced that prejudiced the entire trial. Defendants do not contest Dovetail’s

standing to pursue its unjust enrichment claim at trial, nor are we persuaded

Dovetail lacked standing as to that equitable claim. Moreover, Defendants have

not identified any evidence that would have been excluded if the trial had been

limited to Mr. Meyer and Mr. Pratt’s claims. We thus reject Defendants’

argument that we must reverse the entire trial based on Dovetail’s lack of

standing as to the civil conspiracy claim.

II. The Bluffs, LLC’s Liability for Conspiracy

As previously noted, we have held a defendant cannot be liable for civil

conspiracy under Kansas law where that defendant did not commit an independent

actionable tort, regardless of whether tort claims have been alleged against other

defendants. See Pepsi-Cola, 431 F.3d at 1268. Because no independent tort

claims were alleged against The Bluffs, LLC, we agree with The Bluffs that the

conspiracy claim against it cannot be upheld as a matter of law. We note that The

Bluffs failed to raise this argument before the district court, which generally

would result in forfeiture of this argument on appeal. See United States v. Jarvis,

499 F.3d 1196, 1201 (10th Cir. 2007). However, because “the argument involves

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a pure matter of law and the proper resolution of the issue is certain,” we exercise

our discretion to consider this issue, which both parties had the opportunity to

address in their appellate briefing. Id. at 1202; see also Daigle v. Shell Oil Co.,

972 F.2d 1527, 1539 (10th Cir. 1992) (noting that we will apply this discretionary

exception on a case-by-case basis). We thus reverse the jury’s finding of liability

against The Bluffs on Plaintiffs’ civil conspiracy claim. Moreover, because no

other legal claims for damages were brought against The Bluffs, we reverse the

award of damages against The Bluffs.

III. Existence of a Joint Venture

We turn now to Defendants’ argument that the evidence introduced at trial

does not support the jury’s finding that the parties entered into a joint venture

agreement together. This argument was appropriately raised in Defendants’ Rule

50(a) motion, and we thus review it de novo. See Bristol v. Bd. of Cnty.

Comm’rs, 312 F.3d 1213, 1216 (10th Cir. 2002).

Defendants argue that we must find there to be insufficient evidence of a

joint venture based on our interpretation of Kansas law in Terra Venture, Inc. v.

JDN Real-Estate Overland Park, L.P., 443 F.3d 1240 (10th Cir. 2006). In Terra

Venture, we listed five factors for determining whether a joint venture exists:

(1) the joint ownership and control of property; (2) the sharing of
expenses, profits, and losses, and having and exercising some voice
in determining the division of net earnings; (3) a community of
control over and active participation in the management and direction
of the business enterprise; (4) the intention of the parties, express or

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 implied; and (5) the fixing of salaries by joint agreement.

Id. at 1245 (quoting Modern Air Conditioning, Inc. v. Cinderella Homes, Inc., 596

P.2d 816, 823 (Kan. 1979)). We then concluded there was no evidence in that

case as to four of the five factors while the evidence as to the fourth factor, the

intention of the parties, was insufficient to demonstrate the existence of a joint

venture. Id. at 1246. Defendants argue that this holding should control in the

instant case: because there is only inconclusive evidence bearing on this single

factor and no evidence of the other factors, there is insufficient evidence to

establish a joint venture.

We are not persuaded. Firstly, we note that these five factors are not

exclusive or outcome-determinative. See Modern Air Conditioning, 596 P.2d at

823 (describing these factors as being “among the acts or conduct which is

indicative of a joint venture”); see also George v. Capital S. Mortg. Invs., Inc.,

961 P.2d 32, 47-48 (Kan. 1998) (finding no abuse of discretion in the trial court’s

giving of a joint venture jury instruction that did not include the Modern Air

Conditioning factors). Moreover, the evidence regarding these factors is much

stronger in the instant case than in Terra Venture. In Terra Venture, the only

evidence suggesting the parties intended to form a joint venture was their

agreement that they would refer to their project as a joint venture in press

releases. In this case, by contrast, the evidence was that the parties agreed they

would in fact form a joint venture, not just that they would refer to their project

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as such. The evidence also indicated that Plaintiffs and Defendants informed not

just the public but also their employees and attorneys that they were jointly

working on the project. Furthermore, although it is undisputed the parties did not

actually share expenses, profits, and losses, the evidence introduced at trial was

that they agreed they would share future profits and losses and would “true-up”

expenses when the corporation paperwork had been completed. (Joint App. at

973); see Goben v. Barry, 676 P.2d 90, 96 (Kan. 1984) (upholding the trial

court’s finding of a joint venture based in part on “evidence the agreement

provided for a sharing of profits equally between Goben and Barry”); Potucek v.

Blair, 270 P.2d 240, 268 (Kan. 1954) (indicating that the relevant factor is

whether the parties have agreed to split profits, not whether profits have actually

been shared). And finally, there was evidence of at least some joint control over

the project based on the parties’ consultation with each other as equals on various

aspects of the project, particularly in their negotiations with city officials. See

Shoemake v. Davis, 73 P.2d 1043, 1047 (Kan. 1937) (finding evidence of joint

control based on the parties’ consultation with each other about the advisability of

taking certain actions).

We likewise reject Defendants’ argument that the evidence showed only an

anticipatory agreement to form a joint venture in the future, not the actual

formation of a joint venture. The jury was presented with ample evidence from

which it could reasonably conclude the parties actually entered into a joint

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venture agreement in March of 2005, and “the mere existence of contrary

evidence does not itself undermine the jury’s findings.” Thunder Basin Coal Co.

v. Sw. Pub. Serv., 104 F.3d 1205, 1213 (10th Cir. 1997).

IV. Statute of Frauds

Defendants next contend we should find the agreement unenforceable based

on Kansas’s statute of frauds. We review this legal issue de novo.

Defendants acknowledge the general rule that “a joint adventure in the

purchase and sale of real estate[] is not within the statute of frauds.” Shoemake,

73 P.2d at 1046. Nevertheless, they argue that the subsidiary agreement D.J.

Christie, Inc., would purchase and transfer the land to the partnership falls within

the statute of frauds. They then argue the entire joint venture agreement is

unenforceable under the statute of frauds because it was premised on this

unenforceable oral agreement to purchase and transfer land. At a minimum, they

argue, the statute of frauds must prevent Plaintiffs from recovering any damages

relating to D.J. Christie, Inc.’s failure to transfer the real property to the joint

venture.

For support, Defendants cite to cases from other jurisdictions, such as the

Rhode Island case of Filippi v. Filippi, 818 A.2d 608 (R.I. 2003). However, we

conclude Kansas law does not support the rule argued by Defendants. Kansas

courts have repeatedly held that “the statute of frauds and kindred statutes have

no application” to partnership transactions, even when these transactions involve

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real property. Goodrich v. Wilson, 188 P. 225, 227 (Kan. 1920). Thus, as the

Kansas Supreme Court explained in a very similar context, “[a]lthough oil and

gas leases as between a leasor and lessee are within the statute of frauds because

they involve real estate[,] that statute does not apply to personal relations and

obligations created by an agreement of partners or coadventurers to deal in such

instruments between themselves.” Potucek, 270 P.2d at 244.

In an early case relating to oil and gas leases, the parties orally agreed they

would procure leases adjacent to those already owned by the defendant.

Crawford v. Forrester, 194 P. 635, 635 (Kan. 1921). These leases would “be

taken for convenience in the defendant’s name,” and the defendant would sell

from the block of leases enough to obtain $25,000 for the plaintiff’s drilling

operations. Id. The remaining leases were then “to be assigned to the plaintiff,

who was to own 52 per cent. and the defendant 48 per cent.” Id. Before this

portion of the agreement was carried out or reduced into writing, however, the

defendant appropriated all of the leases to his own use. Despite the fact the

transfer agreement underlying the parties’ joint venture agreement was never put

into writing, the Kansas Supreme Court held that the statute of frauds did not bar

the plaintiff’s recovery. The court reasoned that the statute of frauds had no

effect on the parties’ obligations under the joint venture agreement because “it

dealt with the personal relations of joint adventures, and not with the sale of real

estate.” Id. The court thus held that the plaintiff was entitled to recover his

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interest in all of the leases that should have been transferred to him pursuant to

the joint venture agreement.

Kansas courts have repeatedly affirmed this holding and reasoning, see,

e.g., Potucek, 270 P.2d at 245; Shoemake, 73 P.2d at 1045-46, and we see no

reason to depart from it under the circumstances of this case. Although the

statute of frauds would apply to a land purchase agreement as between the seller

and the purchaser of the property, it does not effect the relationship between the

parties to the joint venture agreement or their obligations under that agreement.

We thus hold that the statute of frauds does not bar Plaintiffs’ claims or limit

their potential damages.

V. Wrongful Dissociation

Defendants also appeal the jury’s finding of wrongful dissociation, arguing

they did not wrongfully dissociate from the joint venture because they were free

to dissociate at will. This issue was first raised in Defendants’ post-trial Rule

50(b) motions and reasserted in their Rule 59 motions for a new trial. We

accordingly review the district court’s denial of a new trial as to this issue for

abuse of discretion. See M.D. Mark, Inc. v. Kerr-McGee Corp., 565 F.3d 753,

762 (10th Cir. 2009).

Under Kansas law, a partner or joint venturer may disassociate at will from

the partnership or joint venture agreement without liability for damages caused by

the disassociation unless (1) the dissociation “is in breach of an express provision

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of the partnership agreement; or (2) in the case of a partnership for a definite term

or particular undertaking, [the dissociation occurs] before the expiration of the

term or the completion of the undertaking.” Kan. Stat. Ann. 56a-602(b).

Defendants argue that neither of these provisions is applicable in the instant case,

as the partnership agreement included no definite terms regarding dissociation

and an agreement to pursue a residential development is by its nature too

speculative and uncertain to constitute an agreement for a definite term or

particular undertaking.

We hold that the district court did not abuse its discretion in denying

Defendants’ motion for a new trial as to this issue. The jury was presented with

sufficient evidence to support a finding that the joint venture agreement was one

for a particular undertaking and that Defendants dissociated from the joint venture

before this undertaking was completed. The jury heard evidence that the parties

agreed to develop a single residential development project on a particular piece of

property and intended to sell this project within a conceivable time frame after

completion. The fact the parties had not fully determined feasibility or finalized

all details of the project does not mean, as Defendants argue, that they necessarily

could not have formed a joint venture to pursue this particular development

project. Nor do the authorities cited by Defendants—mostly relating to

agreements involving the continued management and operation of projects after

development—persuade us that the agreement in this case was not one for a

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particular undertaking. Compare Miami Subs Corp. v. Murray Family Trust, 703

A.2d 1366, 1371 (N.H. 1997) (holding that a joint venture to develop, finance,

and operate an unknown number of restaurant franchises was not one for a

particular undertaking), with Fischer v. Fischer, 197 S.W.3d 98, 105-06 (Ky.

2006) (concluding that a partnership to buy, lease, and sell a designated tract of

land was an agreement for a particular undertaking even though the parties had

not agreed upon an exact date for accomplishment of the undertaking). We

conclude the jury could reasonably have found this to be a joint venture for a

particular undertaking, which had not been completed prior to Defendants’

dissociation. We thus affirm the entry of judgment in favor of Plaintiffs on their

wrongful dissociation claim.

Defendants also contend they did not breach any fiduciary duties to

Plaintiffs because they did not breach any of the limited fiduciary duties that

remain following lawful dissociation from a joint venture. Because we uphold the

jury’s finding that the dissociation was wrongful, we likewise reject this argument

and affirm the jury’s finding of breach of fiduciary duty. See Goben, 676 P.2d at

97 (affirming a finding of breach of fiduciary duty where one party to a joint

venture wrongfully ousted his partner and refused to account for joint venture

profits and assets).

VI. Damages

Defendants also appeal the award of damages. As previously stated, we

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remand for further proceedings those damages awarded to all three Plaintiffs for

lost contracting profits and unreimbursed expenses. We now consider

Defendants’ challenge to the approximately $7 million awarded to Mr. Meyer and

Mr. Pratt for their interest in connection to the joint venture. Defendants contend

this amount was necessarily speculative and contingent because the joint venture

was terminated before the parties had acquired the land or determined whether the

development project should even go forward. Because Defendants first raised this

argument in their post-judgment motion for judgment as a matter of law, we

review “only to determine if there is any evidence to support the damage award.”

United Int’l Holdings v. Wharf (Holdings) Ltd., 210 F.3d 1207, 1229 (10th Cir.

2000).

Applying this standard, we affirm this award of damages to Mr. Meyer and

Mr. Pratt. The jury heard expert testimony regarding the value of the property

and regarding the costs and profits involved in the completed development

project. The jury also heard expert testimony that the project as completed

generally followed the same broad ideas contemplated by the parties prior to

Defendants’ wrongful dissociation. We are not persuaded by Defendants’

argument that Mr. Meyer and Mr. Pratt should be prevented from recovering

damages because Defendants wrongfully dissociated from the venture and

conspired to take this development opportunity from them before the parties could

calculate with reasonable certainty what the project’s potential costs and revenues

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would be. Cf. Rainbow Travel Serv., Inc. v. Hilton Hotels Corp., 896 F.2d 1233,

1239-40 (10th Cir. 1990) (“‘The wrongdoer may not complain of inexactness

where his actions preclude precise computation to the extent of the injury.’”

(quoting Kestenbaum v. Falstaff Brewing Corp., 514 F.2d 690, 698 (5th Cir.

1975))). The fact that Mr. Meyer and Mr. Pratt could lose profits if they were

ousted from the project was reasonably within the contemplation of the parties at

the time of Defendants’ wrongdoing, and the amount of profits was proven with

reasonable certainty at trial. Kansas law does not require more. See Vickers v.

Wichita State Univ., 518 P.2d 512, 515 (Kan. 1974).

VII. Unjust Enrichment

We turn next to the jury’s finding of unjust enrichment. After considering

all of the evidence introduced at trial, we agree with the district court that there

was sufficient evidence to support this finding. We are not persuaded by

Defendants’ argument that Plaintiffs’ unjust enrichment claim cannot stand

because Plaintiffs rejected Defendants’ offer to reimburse their out-of-pocket

expenses. The unpublished appellate case of Holtof v. Singh, 204 P.3d 1191

(Kan. Ct. App. 2009), cited by Defendants, does not require such a result, and we

see no basis under Kansas law for concluding that the rejection of a settlement

offer will defeat an unjust enrichment claim as a matter of law.

We also see no error in the district court’s rejection of The Bluffs, LLC’s

argument that it cannot be liable for unjust enrichment because it did not come

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into existence until after Plaintiffs had stopped conferring benefits upon any

Defendants. Even if Plaintiffs did not confer these benefits directly on The

Bluffs, the jury heard evidence that Plaintiffs conferred benefits on the individual

owners of The Bluffs, who created The Bluffs the day after they terminated their

relationship with Plaintiffs so they would have a corporate entity to which they

could transfer these benefits. Under these circumstances, we see no error in the

district court’s entry of judgment on the jury’s finding that The Bluffs was

unjustly enriched. Cf. Security Benefit Life Ins. Corp. v. Fleming Cos., Inc., 908

P.2d 1315, 1323 (Kan. Ct. App. 1995) (holding that an equipment installer had a

valid unjust enrichment claim against a corporation that took over a grocery store

on the date the installation was completed because the corporation knew the

equipment remained on the premises and had not been paid for).

However, on remand, Mr. Meyer and Mr. Pratt may not receive an award

for unjust enrichment unless they elect not to recover damages on their legal

claims. See Griffith v. Stout Remodeling, Inc., 548 P.2d 1238, 1242 (Kan. 1976)

(explaining that the doctrine of election of remedies is applicable when two

remedies are factually and logically inconsistent); Member Servs. Life Ins. Co. v.

Am. Nat’l Ban, & Trust Co., 130 F.3d 950, 957 (10th Cir. 1997) (explaining the

hornbook rule that the quasi-contractual remedy of unjust enrichment is not

available if there is an enforceable express agreement). As for whether Dovetail

may recover on its unjust enrichment claim if Mr. Meyer and Mr. Pratt still elect

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to recover legal damages, this issue has not been briefed by the parties or

considered by the district court. We therefore remand this issue for the district

court to consider in the first instance, along with any other related issues that may

arise on remand.

CONCLUSION

We REVERSE the entry of judgment against The Bluffs, LLC, on

Plaintiffs’ civil conspiracy claim. Mr. Meyer and Mr. Pratt’s claims against

Defendants are otherwise AFFIRMED. We REVERSE the entry of judgment in

favor of Dovetail on the civil conspiracy claim. We REVERSE and REMAND

the award of damages to the extent it includes $1,907,372 in lost contracting

profits and $118,370 in unreimbursed expenses awarded to all three Plaintiffs.

We also REVERSE the award of damages against The Bluffs, LLC. The award

of damages in favor of Mr. Meyer and Mr. Pratt is otherwise AFFIRMED. On

remand, Mr. Meyer and Mr. Pratt may seek their own lost contracting profits and

unreimbursed expenses, if any, from the remaining Defendants. Dovetail’s unjust

enrichment claim against all Defendants is REMANDED for further

consideration in light of this decision.

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