concurring.
I concur in both the analysis and the result in the majority opinion, but I write separately to further address the nature of recovery available to the parties. It is generally recognized that, if a contract is invalid because the minds of the parties did not meet as to some of the essential terms thereof, a party who furnishes something to the other party, relying upon the terms as he understood them, will not be left without a remedy. See 66 Am.Jur.2d Restitution and Implied Contracts § 26 (2001).
|3One such remedy is unjust enrichment. Unjust enrichment is the principle that one person should not be permitted to unjustly enrich himself at the expense of another, but should be required to make restitution for property or benefits received, retained, or appropriated, whether requested or not, where it is just and equitable. Adkinson v. Kilgore, 62 Ark. App. 247, 970 S.W.2d 327 (1998). In most instances, where the parties have engaged in an unsuccessful attempt to contract, the court will seek to restore the parties to the status quo ante if possible.
“In general, recovery for unjust enrichment is based upon what the person enriched has received rather than what the opposing party has lost.” Grisanti v. Zanone III, 2010 Ark. App. 545, 336 S.W.3d 886. Accordingly, to find unjust enrichment, a party must have received something of value to which he was not entitled and which he should restore. Sparks Regional Medical Ctr. v. Blatt, 55 Ark. App. 311, 935 S.W.2d 304 (1996). However, there must be some operative act, intent, or situation that makes the enrichment unjust and compensable. Id. It is not necessary, in order to create an obligation to make restitution, that the party unjustly enriched should have been guilty of any wrongful act. Frigillana v. Frigillana, 266 Ark. 296, 584 S.W.2d 30 (1979); Malone v. Hines, 36 Ark. App. 254, 822 S.W.2d 394 (1992). Even an innocent party who has been unjustly enriched may be compelled to surrender the fruits to another more deserving party. Smith v. Whitener, 42 Ark. App. 225, 856 S.W.2d 328 (1993). The remedy is neither given nor withheld automatically, but is awarded as a matter of judgment. Friends of Children, Inc. v. Marcus, 46 Ark. App. 57, 876 S.W.2d 603 (1994).
The remedy of unjust enrichment requires a fact-based inquiry. See Grisanti, supra, at 6, 336 S.W.3d at 889-90. It involves the weighing of the equities and a determination of the value unjustly received. For example, if a person has received property under an invalid contract, restitution is limited to the return of the property, together with the value of its use. See 66 Am.Jur.2d Restitution and Implied Contracts § 187 (2001); 2 Dan B. Dobbs, Law of Remedies § 11.5 (2nd ed.1993). However, that person may be entitled to offset his monetary restitution by the amounts previously paid under the invalidated contract and for taxes and insurance paid upon the property. See 66 Am.Jur.2d Restitution and Implied Contracts § 162 (2001). The court may also be required to consider equitable defenses such as unclean hands and laches. See 66 Am.Jur.2d Restitution and Implied Contracts §§ 27, 28 (2001).
Based on the foregoing principles, the trial court must weigh the equities given the unique facts of this case. Here, the court found that Hall knew or should have known that there was a possible misunderstanding regarding the terms of the transaction since at least September 2005. However, the court found that Hall had made payments on the property up until April 2007 and that she had been making the payments for six and one-half years. The court further found that Hall was inexperienced in land transactions. Finally, the court found that Hall had enjoyed the use and benefit of the property during the period in question.
As for the Biases, the trial court found that the Biases had treated Hall as the owner of the property and had done nothing to interfere with her use of it. The court noted that the |n Biases had also lost the opportunity to sell or lease during the term of the attempted sale. Finally, the trial court found that the Biases were not guilty of any fraud or wrongdoing.
However, upon remand, there may be other facts not previously addressed by the trial court that may be considered in fashioning an equitable remedy. For example, as noted in a footnote in the majority opinion, Hall testified that she only visited the property on three occasions, and, on those occasions, she only looked at the property. She never ate a meal there, never spent the night there, and did not remove anything or make any improvements to the property. Additionally, Tim Bias admitted that he did not have title to the property, but was only in the process of purchasing the property from Bay View Financial at the time of the purported sale — a fact not disclosed to Hall. It is further undisputed that the Biases also continued to accept payments from Hall despite her failure on several occasions to sign a written contract.
There may be other evidence the trial court may wish to consider upon remand, and the weight to be given to such evidence, if any, is in the province of the trial court. However, when applying the unjust-enrichment remedy, Hall should be allowed to recoup her payments to the extent, if any, that her payments exceeded the fair rental value of the property and to the extent her claims are not barred by some equitable defense. Likewise, the Biases should be allowed to recoup the fair rental value of the property unless it is determined that their claims are barred by some equitable defense. Here, the issue to be resolved by the 112trial court is to what extent either party was unjustly enriched; and generally the status quo ante should be restored if possible.