Dowling Family Partnership v. Midland Farms, LLC

#27114-a-GAS
2015 S.D. 50

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
DOWLING FAMILY PARTNERSHIP, a
South Dakota General Partnership and
DOWLING BROTHERS PARTNERSHIP,
a South Dakota General Partnership, Plaintiffs and Appellees,

v.

MIDLAND FARMS, LLC, an
Iowa Limited Liability Company; Defendant and Appellant.

and

LANNY DEMOTT, Defendant.

****
APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
HAAKON COUNTY, SOUTH DAKOTA
****
THE HONORABLE PATRICIA DEVANEY
Judge
****
GREGORY A. EIESLAND of
Johnson Eiesland Law Offices, PC
Rapid City, South Dakota

THOMAS P. MAHER
THOMAS M. MAHER of
Maher Law Office, LLP
Pierre, South Dakota Attorneys for plaintiffs
and appellees.

WILLIAM G. TAYLOR
JAMES E. MOORE of
Woods, Fuller, Shultz & Smith PC
Sioux Falls, South Dakota Attorneys for defendant
and appellant.

****
ARGUED FEBRUARY 17, 2015
OPINION FILED 06/17/15
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SEVERSON, Justice

[¶1.] Midland Farms, LLC, appeals the circuit court’s denial of its request

for restitution from Dowling Family Partnership and Dowling Brothers Partnership

(collectively, “the Partnerships”). Midland asserts that the Partnerships were

unjustly enriched by receiving the proceeds from a winter wheat crop planted at the

partial expense of a third party. The Partnerships assert that Midland breached a

lease agreement with the Partnerships and should not be granted equitable relief.

We affirm.

Facts and Procedural History

[¶2.] The Partnerships were formed by brothers Scott Dowling (“Dowling”)

and Tracy Dowling for the purposes of farming and raising livestock. Dowling was

the managing partner of the Partnerships at all relevant times. Midland is a

limited liability company formed in 2008. It owns approximately 33,000 acres of

farmland in Haakon and Stanley Counties, South Dakota. Scott DeMott is a farmer

and insurance agent who resides in Little Rock, Arkansas. DeMott was a managing

member of Midland at all relevant times.

[¶3.] The parties entered into a cash farm lease on May 18, 2009, for

approximately 10,276 acres. The lease terminated after the 2009 crop harvest but

required Midland, “prior to renting the leased premises for the 2010 crop year, [to]

give Tenant a first opportunity to rent the leased premises.” In 2010, the parties

executed two leases: one crop-share farm lease for approximately 13,384 acres and

one cash farm lease for approximately 15,725 acres. Similar to the 2009 lease, the

2010 cash farm lease contained a provision that required Midland to “give Tenant a

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first opportunity to rent the leased premises” before “renting the leased premises for

the 2011 crop year[.]” On January 19, 2011, Midland and the Partnerships

executed a cash farm lease for approximately 29,012 acres at $55 per acre. That

lease contained the following provision:

TERM. The term of the cash farm lease for the leased premises
shall commence on the ___ day of October, 2010, and shall
terminate after the 2012 crop harvest, unless otherwise
extended, terminated, or provided for herein, except as provided
in 8e.
Landlord will give tenant option to rent leased premises for the
2013, 2014 and 2015 crop year. Terms and conditions to be
agreed to by Landlord and Tenant.

[¶4.] In April 2012, DeMott called Dowling and said, “You have the first

right of refusal to rent. Do you want to rent it in the future?” After Dowling

indicated he wished to continue leasing the property at the same price, DeMott said,

“We gave you your first right of refusal for the lease. We’re going to market this

because we think we have other—because we have other options to look at.” In an

email dated July 23, 2012, DeMott further stated:

Also per paragraph 3 Midland Farms has given you the option to
lease our farm for 2013, 2014 and 2015 crop years per phone
conversation with me at the end of April 2012. You indicated
you would rent the farm with the same expiring cash rent of $55
per acre. Midland Farms is not accepting this offer. We have
other qualified interested parties willing to lease our farm, if you
have any serious interest in renting all or part of Midland
Farms, contact us by August 1, 2012.

DeMott and Dowling met in person on July 25, 2012, to discuss terms and

conditions of a potential lease for 2013, 2014, and 2015. DeMott told Dowling that

Midland required a lease price of $70 per acre and an irrevocable letter of credit for

the full amount “ASAP” to secure the rent payment for the 2013 crop year.

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Dowling’s banker approved the new lease for the 2013, 2014, and 2015 crop years at

the agreed upon price of $70 per acre and testified that the bank would have

approved a formal irrevocable letter of credit if the bank had been provided with the

final written lease documents.

[¶5.] Dowling called DeMott on August 1, 2012, and accepted the offer.

Thereafter, Dowling entered into a contract to purchase a new sprayer for $324,000

and began harrowing the Midland property in August at a cost of $46,000. Five

days after Dowling agreed to DeMott’s terms, on August 6, DeMott emailed Dowling

and asked, “What name do I use for you on our farm lease?” 1 However, only two

days later, DeMott called Dowling and told him that Midland had sold the farm to a

third party, Clement Farms. The following day, on August 9, Dowling answered

DeMott’s August 6 inquiry and provided the tenant name for the lease. No new

written lease agreement was formally drafted for the 2013, 2014, or 2015 crop

years. Instead, on August 13, 2012, DeMott emailed Dowling to inform him that

Midland was seeking a legal determination in circuit court that the parties had not

extended the prior lease and warning him to cease farming operations on Midland

property.

[¶6.] Midland served a notice to quit and vacate the property on the

Partnerships on August 20, 2012. The Partnerships filed a complaint for a

1. Prior to the meeting between Dowling and DeMott on July 25, 2012, Scott
and Tracy Dowling entered into an agreement to dissolve the Partnerships.
The brothers parted ways in 2013. Rather than dissolve the Partnerships,
however, the partnership interests of the other Dowling family members were
transferred to Scott. Afterward, Scott continued farming while Tracy focused
primarily on raising livestock.

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declaratory judgment and other relief on September 7, 2012. The circuit court

consolidated these two actions on October 30, 2012. In the meantime, Midland

entered into a lease agreement with Clement on September 21, 2012, and a

purchase agreement on September 27, 2012. Clement took possession of the land in

late September 2012 and planted winter wheat on approximately 12,269 acres at a

cost of $1,048,356.08. Both the lease and purchase agreements acknowledged the

Partnerships’ claim to the leased premises and included contingencies for an

adverse ruling in the pending litigation. Midland and Clement agreed that in the

event that the circuit court decided the Partnerships were entitled to possession of

any portion of the land leased to Clement, their lease would terminate, Midland

would reimburse Clement for its expense in planting the winter wheat, and

Midland would pay Clement up to an extra $100,000 for its indirect expenses.

[¶7.] The circuit court entered findings of fact and conclusions of law on

March 12, 2013. The court found that an enforceable contract existed between the

Partnerships and Midland and that the Partnerships exercised their right to lease

the property for the 2013, 2014, and 2015 crop years. According to an agreement

struck between the parties while the litigation was still pending, the Partnerships

paid the rent for the 2013 crop year on March 18, 2013, and were immediately

restored to possession of the leased property. Both Clement and the Partnerships

obtained crop insurance for the winter wheat planted by Clement, and over two-

thirds of those acres did not go to harvest. Clement did not receive any insurance

proceeds, but the Partnerships received two payments in the amounts of $1,519,390

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and $39,429. 2 Clement joined the litigation, seeking reimbursement for the

expenses it incurred in planting the winter wheat, but Midland later settled with

Clement and agreed to reimburse Clement a total of $1,187,500.

[¶8.] The Partnerships and Midland went to trial a second time. The

Partnerships sought damages for being denied possession of the property from

August 2012 to March 2013, and Midland sought restitution from the Partnerships

for the amount it paid to Clement as reimbursement for Clement’s planting

expenses. The circuit court found that the Partnerships did not suffer damage, that

the Partnerships were not unjustly enriched, and that Midland had unclean hands.

Midland appeals, raising the following issues:

1. Whether the circuit court erred in denying Midland’s
motion for summary judgment and concluding Midland
breached its lease with the Partnerships.

2. Whether the Partnerships were unjustly enriched.

3. Whether the doctrine of unclean hands prevents Midland
from seeking restitution for unjust enrichment.

Standard of Review

[¶9.] “In reviewing a grant or a denial of summary judgment under SDCL

15-6-56(c), we must determine whether the moving party demonstrated the absence

of any genuine issue of material fact and showed entitlement to judgment on the

merits as a matter of law.” Peters v. Great W. Bank, Inc., 2015 S.D. 4, ¶ 5, 859

N.W.2d 618, 621 (quoting Saathoff v. Kuhlman, 2009 S.D. 17, ¶ 11, 763 N.W.2d 800,

804). We view the evidence “most favorably to the nonmoving party and reasonable

2. The Partnerships also received $500,812 from selling the failed crop as hay.
The remaining winter wheat crop went to harvest and provided a further
$632,313 income. Thus, the Partnerships received a total of $2,691,944.

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doubts should be resolved against the moving party.” Id. (quoting Saathoff, 2009

S.D. 17, ¶ 11, 763 N.W.2d at 804).

[¶10.] “Unjust enrichment is an equitable concept.” Hofeldt v. Mehling, 2003

S.D. 25, ¶ 9, 658 N.W.2d 783, 786. The doctrine of unclean hands—or equitable

disqualification—is likewise an equitable concept. See Restatement (Third) of

Restitution & Unjust Enrichment § 63 (2011). “We review equitable actions for

abuse of discretion.” Gartner v. Temple, 2014 S.D. 74, ¶ 7, 855 N.W.2d 846, 850

(quoting Englehart v. Larson, 1997 S.D. 84, ¶ 12, 566 N.W.2d 152, 155). “An abuse

of discretion is a fundamental error of judgment, a choice outside the range of

permissible choices, a decision, which, on full consideration, is arbitrary or

unreasonable.” State v. Martin, 2015 S.D. 2, ¶ 7, 859 N.W.2d 600, 603 (quoting

Gartner, 2014 S.D. 74, ¶ 7, 855 N.W.2d at 850). Under an abuse of discretion

standard of review, the circuit court’s “factual determinations are subject to a

clearly erroneous standard[,]” Gartner, 2014 S.D. 74, ¶ 8, 855 N.W.2d at 850

(quoting State v. Guthrie, 2002 S.D. 138, ¶ 5, 654 N.W.2d 201, 203) (internal

quotation mark omitted), but we review its conclusions of law under a de novo

standard, id.

Analysis and Decision

[¶11.] 1. Whether the circuit court erred in denying Midland’s motion for
summary judgment and concluding Midland breached its lease
with the Partnerships.

[¶12.] The Partnerships assert that the portions of the 2012 crop year lease

quoted above, see supra ¶ 3, gave the Partnerships a right of first refusal. Midland

asserts the lease is evidence that the parties had not yet agreed on all terms

essential to a contract. According to Midland, the lease “states that the terms and
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conditions of a future lease must be agreed to by the parties, which precludes the

provision from constituting an enforceable option contract.” The circuit court

determined the “option” provision was ambiguous and, based in part on the

communications exchanged between DeMott and Dowling, found that the

Partnerships had proven the existence of a valid option contract. Midland argues

that the 2012 crop year lease was not ambiguous and that the circuit court “erred in

considering extrinsic evidence to determine that the lease provision was an

enforceable option.”

[¶13.] “A contract is ambiguous when application of rules of interpretation

leave[s] a genuine uncertainty as to which of two or more meanings is correct.”

Ziegler Furniture & Funeral Home, Inc. v. Cicmanec, 2006 S.D. 6, ¶ 16, 709 N.W.2d

350, 355 (quoting Alverson v. Nw. Nat’l Cas. Co., 1997 S.D. 9, ¶ 8, 559 N.W.2d 234,

235).

A contract is not rendered ambiguous simply because the parties
do not agree on its proper construction or their intent upon
executing the contract. Rather, a contract is ambiguous only
when it is capable of more than one meaning when viewed
objectively by a reasonably intelligent person who has examined
the context of the entire integrated agreement.

Pesicka v. Pesicka, 2000 S.D. 137, ¶ 10, 618 N.W.2d 725, 727 (quoting Singpiel v.

Morris, 1998 S.D. 86, ¶ 16, 582 N.W.2d 715, 719). We agree with the circuit court

that the contract provision in question is ambiguous. First, the contract—which

was authored by DeMott—clearly uses the term “option.” The provision also states,

“Terms and conditions to be agreed to by Landlord and Tenant.” Given the use of

the label “option,” one interpretation of this provision could be that it intended any

additional terms and conditions to be agreed to by the parties. On the other hand,

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DeMott may have envisioned this provision as a right of first refusal and simply

applied an incorrect label. Finally, as Midland argues, the word “option” could have

been intended to mean simply that Midland would not bar the Partnerships from

asking to renew the lease. In any event, the circuit court did not err in concluding

the provision at issue is ambiguous.

[¶14.] The circuit court did not err in considering extrinsic evidence. “When

contract language is ambiguous, and does not speak to a subject it would normally

be expected to, the court may go beyond the four corners of the contract.” LaMore

Rest. Grp., LLC v. Akers, 2008 S.D. 32, ¶ 12, 748 N.W.2d 756, 761 (quoting Vander

Heide v. Boke Ranch, Inc., 2007 S.D. 69, ¶ 17, 736 N.W.2d 824, 831-32). Here, the

circuit court considered testimony from DeMott and Dowling, as well as the

communications that the two parties exchanged leading up to August 2012. In his

deposition, DeMott repeatedly said that the existing lease gave the Partnerships a

first right of refusal. The previous two leases between the parties included the

phrase “first opportunity to rent.” When Dowling asked DeMott what price he

needed to match, DeMott responded by offering to renew the lease for $70 per acre.

The Partnerships accepted the offer on August 1, 2012. DeMott later acknowledged

the existence of a lease on August 6 when he asked Dowling, “What name do I use

for you on our farm lease?” Based on this evidence, the circuit court concluded that

the contested provision was an option and that the Partnerships exercised that

option. In their brief to us, the Partnerships characterize the provision as a right of

first refusal. Additionally, it is possible the oral and written communications

created an agreement independent of the 2012 crop year lease.

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[¶15.] The extrinsic evidence does not support the conclusion that the

contested lease provision was intended to function as an option. “An option contract

is an irrevocable offer by the owner to sell [or lease] on specified terms and creates a

power of acceptance in the optionee.” Advanced Recyc. Sys., LLC v. Se. Props. Ltd.

P’ship, 2010 S.D. 70, ¶ 12, 787 N.W.2d 778, 783. The behavior of the parties makes

clear that neither party considered the lease provision to be a true option. This is

evidenced by the fact that the parties negotiated a new price per acre in July and

August of 2012. The Partnerships have not asserted that they were entitled to lease

the property at the previous rate of $55 per acre or at any other previously

determined rate. Therefore, the contested lease provision was not an option as

written.

[¶16.] In contrast to an option, a “right of first refusal is a conditional right

that ripens into an enforceable option contract when the owner receives a third-

party offer to purchase [or lease] the property subject to the right and manifests an

intention to sell [or lease] on those terms.” See id. ¶ 15, 787 N.W.2d at 784.

Midland now argues that, “[e]ven if construed as a right of first refusal, however,

the lease provision would still not be legally enforceable.” Midland bases its

argument on Advanced Recycling Systems, where we went on to say, “An attempt to

sell the whole may not be taken as a manifestation of an intention or desire on the

part of the owner to sell the smaller optioned part so as to give the holder of the

right of first refusal the right to purchase the same.” Id. (quoting Chapman v. Mut.

Life Ins. Co. of N.Y., 800 P.2d 1147, 1151 (Wyo. 1990)). Midland points out that any

right of first refusal the Partnerships might have had applied only to the 29,012

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acres the Partnerships leased from Midland. In comparison, the lease Midland

entered into with Clement was for 33,297 acres. The circuit court seemed to agree

with Midland’s legal premise but concluded it was moot as Midland offered to renew

the Partnerships’ lease at $70 per acre. “Because [the Partnerships] could only

accept an offer to [lease the 29,012 acres], its acceptance necessarily would have

changed, added to, or qualified the terms of the offer to [lease the entire 33,297

acres].” See id. ¶ 18, 787 N.W.2d at 785.

[¶17.] Midland’s statement of the contract principles discussed in Advanced

Recycling Systems is incomplete. Citing the Wyoming Supreme Court’s decision in

Chapman, we said, “If the owner has not manifested an intention to sell the leased

premises apart from the whole, the right of first refusal does not ripen into an

enforceable option contract to purchase the leased premises.” Advanced Recyc. Sys.,

2010 S.D. 70, ¶ 15, 787 N.W.2d at 784 (citing Chapman, 800 P.2d at 1150-51). Such

an intention, however, is manifested when a price is negotiated with a third party

for the property subject to the right of first refusal. Chapman, 800 P.2d at 1151. As

the Chapman court went on to explain:

It is not sufficient that an offer was made on a larger tract
including the burdened property. The great majority of courts
that have addressed this issue have held a preemptive right may
not be defeated by a sale of the property burdened by the right
as part of a larger tract.

Id. In contrast to Advanced Recycling Systems, Midland’s negotiations with

Clement set a price for the property subject to the Partnerships’ right of first

refusal: $70 per acre. Therefore, the contested contract provision was a right of first

refusal that ripened into an option when Clement offered to rent the relevant

acreage from Midland at $70 per acre. “Any other result is necessarily unacceptable
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because ‘to allow the owner of the whole to by-pass the optionee merely by attaching

additional land to the part under option would render nugatory a substantial right

which the optionee had bargained for and obtained.’” Chapman, 800 P.2d at 1151

(quoting Guaclides v. Kruse, 170 A.2d 488, 495 (N.J. Super. Ct. App. Div. 1961)).

Consequently, the circuit court did not err by denying Midland’s motion for

summary judgment.

[¶18.] 2. Whether the Partnerships were unjustly enriched.

[¶19.] Midland primarily argues the Partnerships were unjustly enriched by

receiving proceeds for the winter wheat planted by Clement without paying the

associated costs of planting the crop. “Unjust enrichment occurs ‘when one confers

a benefit upon another who accepts or acquiesces in that benefit, making it

inequitable to retain that benefit without paying.’” Hofeldt, 2003 S.D. 25, ¶ 15, 658

N.W.2d at 788 (quoting Parker v. W. Dakota Ins’rs, Inc., 2000 S.D. 14, ¶ 17, 605

N.W.2d 181, 187). Restitution is not available when the rights and obligations at

issue have been defined by contract. See Johnson v. Larson, 2010 S.D. 20, ¶ 10, 779

N.W.2d 412, 416 (holding the circuit court erred in imposing restitution against a

defendant when the plaintiff’s “remedy lay in a claim for breach of contract”).

Because there does not appear to be any assertion that Midland has a claim for

breach of contract against the Partnerships, we must first determine whether

Midland has established the elements necessary to support a claim of unjust

enrichment.

[¶20.] Midland must first show that the Partnerships received a benefit.

Hofeldt, 2003 S.D. 25, ¶ 16, 658 N.W.2d at 788. Midland argues that the

Partnerships were enriched by avoiding a portion of the expense of planting the
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12,269 acres of winter wheat planted by Clement, while at the same time receiving

proceeds from that crop. The circuit court found that the Partnerships did receive a

benefit, but noted that “whether and by how much Dowling was actually

enriched . . . by Clement’s/Midland’s incurrence of a portion of the input costs is

subject to much debate[.]” According to Midland, whether or not a benefit was

conferred on the Partnerships is an issue separate from the amount of recovery.

For purposes of establishing the elements of unjust enrichment, Midland argues,

the circuit court’s statement constitutes a finding in Midland’s favor on the first

element of its unjust enrichment claim.

[¶21.] Whether a defendant has been enriched is not an analysis altogether

separate from whether the defendant has received a benefit. The word benefit

“denotes any form of advantage.” Restatement (First) of Restitution § 1 (1937). The

word enriched merely indicates that the value of any such advantage must be

measured by its usefulness relative to the defendant, rather than by the cost to the

claimant. Thus, “[u]njust enrichment . . . allows an award of restitution for the

value of the benefit unjustly received, rather than the value of the service provided.”

Johnson, 2010 S.D. 20, ¶ 15, 779 N.W.2d at 418 (distinguishing the measure of

damages for unjust enrichment and quantum meruit). Therefore, in order for a

claimant to meet its burden of proving it conferred a benefit upon the defendant, the

claimant is required to prove it transferred something more advantageous than not,

as measured relative to the defendant. In order to make such a showing, however, a

claimant necessarily must offer proof that the thing transferred is advantageous to

the defendant.

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[¶22.] Midland conferred a benefit on the Partnerships. Midland seeks

$1,187,527, which reflects Clement’s direct planting expenses, indirect expenses,

and interest reimbursed by Midland. The circuit court found “numerous

discrepancies with the numbers relied on by both parties” and rejected Midland’s

accounting of Clement’s input costs as the measure of benefit received by the

Partnerships. Instead, the court found that at most, any benefit actually

transferred to the Partnerships should be measured according to the estimate of

expenses the Partnerships would have incurred if they had retained possession of

the property and planted the winter wheat themselves. According to the

Partnerships, they would have spent approximately $586,627 instead of $1,187,527.

Thus, even though Midland was unable to prove its asserted degree of the

Partnerships’ enrichment, the Partnerships admit they would have spent an

additional $586,627 beyond what they would have otherwise expended in resources

in planting winter wheat on 12,269 acres. Therefore, by their own admission,

Clement’s planting spared the Partnerships the expense of $586,627; that the

Partnerships ultimately realized a net loss on the planted wheat does not frustrate

the conclusion that the Partnerships received a benefit. As a result, Midland has

established the first element of its unjust enrichment claim.

[¶23.] Next, Midland must show that the Partnerships were aware they

received a benefit. Hofeldt, 2003 S.D. 25, ¶ 16, 658 N.W.2d at 788. The circuit

court found that the Partnerships knew Clement was planting winter wheat. The

court noted that the Partnerships informed both Clement and Midland that they

opposed Clement’s planting. Further, Dowling is an experienced farmer and was

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well aware of the effort and expense associated with planting a crop. Although the

Partnerships may contest the value of Clement’s planting, it cannot be said that the

Partnerships were unaware they were receiving some benefit from 12,269 acres of

winter wheat that they did not plant. Therefore, Midland has established the

second element of its unjust enrichment claim.

[¶24.] Finally, Midland must show “that it is inequitable to allow [the

Partnerships] to retain this benefit without paying for it.” Id. The circuit court

decided “it would be unjust and inequitable to grant relief to the party who

breached the contract under the facts of this case.” However, at this stage, “the

relevant inquiry is whether the circumstances are such that equitably the

beneficiary should restore to the benefactor the benefit or its value.” Id. ¶ 18, 658

N.W.2d at 788. While the inequitable behavior of the claimant may ultimately

preclude recovery, the initial question of whether or not a defendant has been

unjustly enriched is necessarily focused on the nature of the transfer itself. An

enrichment is unjust if it “lacks an adequate legal basis; [i.e.,] it results from a

transaction that the law treats as ineffective to work a conclusive alteration in

ownership rights. Broadly speaking, an ineffective transaction for these purposes is

one that is nonconsensual.” Restatement (Third) of Restitution & Unjust

Enrichment § 1 cmt. b (2011). Thus, “[a]s a general rule[,] . . . a person who without

mistake, coercion[,] or request has unconditionally conferred a benefit upon another

is not entitled to restitution[.]” Aetna Life Ins. Co. v. Satterlee, 475 N.W.2d 569, 574

(S.D. 1991).

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[¶25.] The Partnerships are not liable in restitution to Midland for Midland’s

reimbursement to Clement of the benefit transferred from Clement to the

Partnerships. Midland does not claim it was coerced into reimbursing Clement or

that the Partnerships requested Midland pay Clement—in fact, the Partnerships

made their opposition to Clement’s planting unequivocally known. Nor can

Midland’s decision to reimburse Clement be described as an invalidating mistake of

fact or law. An invalidating mistake does not occur where the claimant bears the

risk of loss. See Restatement (Third) of Restitution & Unjust Enrichment § 5(2)(b)

(2011). A claimant bears the risk of loss when it “has consciously assumed the risk

by deciding to act in the face of a recognized uncertainty[.]” Id. § 5(3)(b). “The

usual setting of such a transaction is the claimant’s decision to satisfy a doubtful

claim, in the face of a recognized uncertainty as to the underlying liability.” Id. § 5

cmt. b(2). “The decision to act in such a case rests on a determination that the

anticipated costs of resisting the claim outweigh the cost of settlement . . . .” Id.

[¶26.] The Wisconsin Supreme Court’s decision in Meeme Mutual Home

Protection Fire Insurance Co. v. Lorfeld, 216 N.W. 507 (Wis. 1927), is an exemplar of

assumption of the risk in the restitution context. In that case, “the action was to

recover payment made to the assignee of the insured on a fire loss. After the

payment, the insured confessed that he had set the fire.” Grand Trunk W. R.R. Co.

v. Lahiff, 261 N.W. 11, 13 (Wis. 1935). Investigations conducted by the claimant

and the state fire marshal indicated the loss might have been deliberately caused by

the insured. Meeme Mut., 216 N.W. at 509. The court, invoking contract principles,

said:

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Where a party enters into a contract, ignorant of a fact, but
meaning to waive all inquiry into it, or waives an investigation
after his attention has been called to it, he is not in mistake, in
the legal sense. These limitations are predicated upon common
experience, that, if people contract under such circumstances,
they usually intend to abide the resolution either way of the
known uncertainty, and have insisted on and received
consideration for taking that chance.

Id. at 508 (quoting Kowalke v. Milwaukee Elec. Ry. & Light Co., 79 N.W. 762, 763

(Wis. 1899)). In denying relief, the Wisconsin Supreme Court concluded that “[t]he

plaintiff was not unconscious or forgetful of the fact that the fire might be of

incendiary origin, but, in spite of that knowledge and conscious of that fact,

concluded to pay.” Meeme Mut., 216 N.W. at 509. Thus, the claimant’s “payment

under such circumstances was voluntary, was not made under a mistake of fact,

and [could not] be recovered[.]” Id.

[¶27.] The circumstances surrounding Midland’s payment to Clement are

strongly analogous to those in Meeme Mutual. Midland’s decision to reimburse

Clement, as well as Clement’s decision to plant, was made while litigation

regarding the right to possession of the land was pending. However confident

Midland and Clement might have been that Midland would ultimately succeed in

its contract dispute with the Partnerships, both Midland and Clement were

cognizant of the very real possibility that the Partnerships might prevail. This

conclusion is evidenced by Midland’s promise to reimburse Clement if the circuit

court decided adversely to Midland. This promise was not gratuitous—Midland

agreed to reimburse Clement as a part of the lease negotiated between Midland and

Clement in September 2012. Midland and Clement also entered into a purchase

agreement less than one week later. The combined effect of the lease and purchase

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agreements was that Clement was able to take possession and immediately begin

planting crops—an original condition of Clement’s agreement to purchase the land

in the first place. Thus, Midland’s promise to pay Clement rested on a

determination that the anticipated profit accompanying the completed sale of the

property outweighed the potential expense of reimbursing Clement’s planting costs.

“[A] party that acts on the basis of such a calculation may be said to have assumed

the risk that the calculation, depending as it does on a comparison of unknowns,

will be revealed to be wrong.” Restatement (Third) of Restitution & Unjust

Enrichment § 5 cmt. b(2) (2011).

[¶28.] Despite the foregoing, Midland argues that “the circuit court should

have considered that the denial of equitable relief places Dowling in a better

position than if there had been no breach of contract.” According to Midland, this

view is not inconsistent with our decision in Hofeldt. On the contrary, “[t]he

concern of restitution is not . . . with unjust enrichment in any such broad sense[.]”

Restatement (Third) of Restitution & Unjust Enrichment § 1 cmt. b. In Hofeldt, we

quoted the circuit court’s statement that the defendant, who received farming

subsidies for land he purchased prior to the claimant–seller providing him a clear

title, “only received what he would have received had [the claimant] acted diligently

in the beginning. The only arguable unjust enrichment is the benefit of having [the

claimant] pay the taxes over the years. In this instance, [the defendant] has

tendered those taxes.” 2003 S.D. 25, ¶ 18, 658 N.W.2d at 789. Thus, the quoted

passage indicates only that the subsidies received by the defendant were not a

benefit conferred by the claimant; the passage does not indicate that a defendant

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being placed in a better position militates in favor of finding unjust enrichment.

Enrichment does not subject a defendant to liability in restitution; unjust

enrichment does. Id. ¶ 15, 658 N.W.2d at 788.

[¶29.] Midland also claims that our decision in Satterlee supports the

conclusion that the Partnerships were unjustly enriched. That case involved a

foreclosure action in which the defendants agreed not to contest the foreclosure and

to give the foreclosing plaintiff “the right to prepare the land and plant the 1989

crop during the redemption period.” Satterlee, 475 N.W.2d at 572. This provision

was incorporated into the foreclosure judgment. Id. Pursuant to that judgment, the

claimant planted crops on the defendant’s land during the redemption period. One

of the defendants subsequently claimed ownership of the crop. Id. In determining

which party was entitled to the proceeds of the crops, we said, “To allow Kirby to

claim the crop after Aetna had planted and harvested would be unjust enrichment

and contrary to the agreement between the parties.” Id.

[¶30.] Contrary to Midland’s claims, our decision in Satterlee is fully in accord

with our decision today. Unlike the present case, the defendants in Satterlee would

have been unjustly enriched because the transfer of the benefit was nonconsensual.

First, the claimant planted its crops with the permission of the defendants as

embodied in the foreclosure judgment. Second, the claimant—acting under the

defendants’ promise not to contest the foreclosure proceedings—planted its crops

under the reasonable expectation that it would take full possession of the land prior

to the time for harvest. In contrast, Midland and Clement acted not with the

Partnerships’ permission or promise of noninterference, but rather planted despite

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an active legal battle disputing essentially the very right to do the same. Thus,

unlike the present case, nothing in Satterlee tends to establish that the claimant in

that case was aware of any uncertainty surrounding the right to possession of the

property or the crops, let alone that the claimant acted in disregard of that

uncertainty. As far as that claimant could have reasonably foreseen, its

expenditures in planting and harvesting the crops could have only possibly

benefited itself. Therefore, the transfer was legally ineffective to alter ownership

rights. 3

[¶31.] Although the Partnerships received a benefit, Midland’s promise to

reimburse Clement was an act in conscious disregard of the uncertain outcome of

Midland’s pending contract dispute with the Partnerships. Consequently, there is

an adequate legal justification for the Partnerships’ retention of that benefit such

that the Partnerships have not been unjustly enriched. Therefore, Midland is not

entitled to restitution, see id. at 574, and the circuit court did not abuse its

discretion in denying equitable relief.

3. Similarly, Midland also cites Kistler v. Stoddard, 688 S.W.2d 746 (Ark. Ct.
App. 1985). In that case, a farmer leased and farmed the same land for over
twenty years until the owner sold the land to a third party. Id. at 746-47.
For the years immediately prior to that sale, the farmer planted winter
wheat even though the leases ran according to the calendar year. Id. at 747.
The new buyer took possession of the land at the beginning of 1982—with
knowledge that the farmer had planted winter wheat—and claimed
possession of it. Id. The court held that while the defendant owned the
wheat crop, the defendant had no “justification” for keeping “the amount
expended to plant the crop.” Id. Like Satterlee, but in contrast to the present
case, the defendant’s retention of the benefit conferred was inequitable
because it lacked an adequate legal justification.

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[¶32.] 3. Whether the doctrine of unclean hands prevents Midland from
seeking restitution for unjust enrichment.

[¶33.] Because we hold that Midland failed to establish the Partnerships

were unjustly enriched, we need not decide whether Midland is barred from seeking

restitution by the doctrine of unclean hands. Therefore, we do not decide this issue.

Conclusion

[¶34.] The 2012 crop year lease created a right of first refusal held by the

Partnerships regarding the 2013, 2014, and 2015 crop years. This right ripened

into an option when Midland received an offer from Clement and relayed the new

price to the Partnerships. Because a fact-finder could find that the Partnerships

accepted the new price term and exercised the option, there was a genuine dispute

for trial. Consequently, the circuit court did not err in denying Midland’s motion for

summary judgment. Furthermore, Midland conferred a benefit on the Partnerships

despite Midland’s involvement in pending litigation regarding the validity of the

lease. But Midland’s decision to preserve the possibility of its purchase agreement

with Clement was the result of conscious calculation, not mistake, coercion, or

request. Thus, Midland has failed to establish that the Partnerships were unjustly

enriched and, therefore, Midland is not entitled to equitable relief. We affirm.

[¶35.] GILBERTSON, Chief Justice, and ZINTER, Justice, and SPEARS and

CUTLER, Circuit Court Judges, concur.

[¶36.] SPEARS, Circuit Court Judge, sitting for WILBUR, Justice,

disqualified.

[¶37.] CUTLER, Circuit Court Judge, sitting for KERN, Justice, disqualified.

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