No. 91-331
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
ELSIE S. STORMS, in her capacity as
Trustee of EL-CE Storms Trust,
Plaintiff and Appellant,
-vs-
JOSEPH E. BERGSIEKER; SUSAN NOUCHI; ERLING BIRKLEY;
HELEN H. SUTHERLAND; JARED TIPTON WILMARTH; CONNIE
M. VOUTIS; A.K. ROSS; JERRY HICKMAN; and DOES I
through X, inclusive,
Defendants and Respondents.
APPEAL FROM: District Court of the Ninteenth Judicial District,
In and for the County of Lincoln,
The Honorable Robert S. Keller, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Elsie S. Storms, Pro Se, Trego, Montana.
For Respondent:
Daniel W. Hileman; Murray & Kaufman, Kalispell,
Montana
Patrick M. Springer, Attorney at Law, Kalispell,
Montana.
submitted on ~riefs: January 30, 1992
Decided: July 2 8 , 1992
Filed:
I Clerk
Justice Fred J. Weber delivered the opinion of the Court.
In the Nineteenth Judicial District Court for Lincoln County,
plaintiff sued to recover a contribution from the co-owners of an
easement covering the replacement cost of a bridge which provided
access to the defendants1 properties. The defendants Nouchi,
Sunderland and Wilmarth (defendants), moved for a directed verdict.
The motion was granted and judgment was entered for the defendants.
Plaintiff appeals. We reverse and remand.
The controlling issue is the following:
Did the District Court properly grant a directed verdict for
the defendants?
All of the parties to this action are adjacent landowners near
Trego, Montana. Access to all of the parties properties is by use
of an easement road which includes a bridge crossing Fortine Creek.
Following is a summary of key facts agreed to by all of the parties
as contained in the pretrial order:
1. C o n s t r u c t i o n of t h e bridge spanning F o r t i n e Creek w a s
started by Cecil H. Storms, husband of the plaintiff on about
August 20, 1987, and completed on about September 27, 1987.
2. The bridge is located upon the property of the plaintiff
trust.
3. During t h e t i m e of bridge construction, the defendants
were owners as tenants in common of an easement road which begins
at the paved road used by the public known as the Fortine Creek
Road, and crosses the plaintiff8s property and Fortine Creek by
means of a single lane bridge.
2
4. As a result of the described court action in Lincoln
County, defendants and their spouses on April 3, 1985, obtained a
judgment granting them an easement which provided approach to their
properties across the Storms property, including the right to use
the Fortine Creek bridge.
In the pretrial order the plaintiff contended that the
expenditures for labor and materials for construction of the new
bridge were reasonable and necessary and amounted to approximately
$19,000. She further stated that the previous bridge structure had
deteriorated, and therefore, was no longer safe and needed to be
replaced. Next, the plaintiff contended that it would be
inequitable and unfair and would result in unjust enrichment to
allow the defendants to receive an increase in value of their
properties as a result of the completion of the bridge project
without requiring the defendants to proportionately contribute to
the cost of the bridge.
In the same pretrial order the defendants stated that the
issue was whether the defendants had been unjustly enriched by
construction of the bridge and if so what amount of damages was
owed from defendants to the plaintiff.
The District Court stated that the pretrial order superseded
the pleadings and would govern the course of the trial.
Plaintiff sought a jury trial. Defendants filed a motion to
dismiss the demand for jury trial. The District Court concluded
that the basic theory of a claim for unjust enrichment was in
equity and concluded that the jury would be retained as an advisory
jury only.
Mr. Storms, the husband of the plaintiff, as the one who
constructed the bridge, testified as to the deteriorating and
unsafe condition of the bridge prior to its 1987 replacement. The
uncontradicted evidence also established that Mr. Storms did not
contact the three defendants prior to the replacement of the
bridge. The evidence also established that the Storms used the
bridge on a daily basis while the defendants used the easement much
more infrequently as they did not live on their properties.
The evidence submitted by the plaintiffs established that the
labor, materials and equipment used for the bridge construction
totalled approximately $18,000. After completing the bridge, Mr.
Storms sought proportionate contribution from the defendants who
refused to pay any part of the cost of replacing the bridge. We
also note that under the agreed statement of facts, no party to the
action was willing to give up his interest in the easement.
During the jury trial, at the close of the plaintiff's case,
the defendants moved for a directed verdict. Their motion was on
the grounds that plaintiff failed to prove an increase in value to
the defendants' properties as a result of the bridge replacement,
and thus failed to prove unjust enrichment. The District Court
concluded that in an unjust enrichment case, the measure of damages
was the value of the defendants' properties prior to the bridge
construction as compared to the value of each of such properties
after the bridge construction. The District Court further
concluded there had been a failure of proof by the plaintiff to
demonstrate such values of defendants' properties before and after
bridge construction and that dismissal therefore was appropriate.
The District Court granted the directed verdict for the defendants.
The plaintiff moved for a new trial and to set aside the order
granting directed verdict. The motion was denied. Plaintiff
appeals.
Did the District Court properly grant a directed verdict for
the defendants?
Under Rule 52(a), M.R.Civ.P., in all actions tried upon the
facts with an advisory jury, "the court shall find the facts
specially and state separately its conclusions of law." That was
not done in this case. In both the motion by the defendants and
the order by the court, there was no recognition of the advisory
status of the jury. Under the circumstances we will review the
issue as though a motion for dismissal for failure of proof had
been made and judgment entered finding such a failure of proof on
the part of the plaintiff.
Plaintiff contends that the District Court and the defendants
applied the improper measure of damages for unjust enrichment.
Plaintiff relies upon Robertus v. Candee (1983), 205 Mont. 403,
670 P.2d 540.
In Robertus, lessees sued the lessor of farmland on a theory
of unjust enrichment and quantum meruit, contending that the lessor
benefitted from the lessee's groundbreaking and farming due to his
wrongful eviction of the lessees from the leased land. The Court
discussed the theory of unjust enrichment as follows:
The theory of unjust enrichment requires that a
person who has been unjustly enriched at the expense of
another must make restitution to the other. Restatement
of the Law, Restitution 31; . ..
The measure of this
eauitable restitution interest is either the auantum
meruit value of ulaintiff's labor and materials or the
value of the enhancement to the defendant's property.
Restatement of the Law, Contracts 2d 6371: . .
.
(Emphasis added)
Robertus, 670 P.2d at 542.
The holding of the Robertus Court is that the measure of the
amount to which a plaintiff is entitled on an equitable restitution
theory is either the quantum meruit value of the plaintiff's labor
or materials, or the value of the enhancement to the defendant's
property. The Robertus Court also was careful to point out that
Itit is only so much of the enrichment which is unjust that may be
awarded the plaintiff.'
We conclude that the above cited Robertus rule is controlling
in the present case. We further conclude that the measure of the
unjust enrichment as to any of the three defendants is measured
either by the quantum meruit value of plaintiff's labor and
materials furnished in the bridge construction, or in the
alternative, the value of the enhancement to the defendants1
properties. We do not find it necessary to evaluate the
determination by the District Court that the plaintiff failed to
prove the enhancement in value to the defendant's properties. The
record does demonstrate that the plaintiff presented evidence as to
the market value of the labor, materials and services expended in
replacing the bridge. We therefore conclude that a directed
verdict on the basis of failure of proof was not appropriate.
Under the theory of unjust enrichment, the obligation of the
respective parties is based upon the proportionate benefit to each
in connectian with bridge construction. The determination of this
proportionate benefit will be an issue for consideration by the
District Court.
Reversed and remanded for further proceedings consistent with
this opinion.
We Concur:
Chief Justice
\
Chief Justice J. A. Turnage concurring:
I specially concur in the majority opinion. I do so primarily
because the case is being sent back for a new trial.
My concern is that, under the facts before this Court, I do
not believe that the plaintiff is entitled to claim the theory of
unjust enrichment.
As the majority opinion states, the defendants were forced to
seek judicial intervention in order to establish their right to the
easement providing ingress and egress to their properties over the
road that crosses the plaintiff Storms' property. After defendants
obtained a judgment establishing their easement, the husband of
plaintiff Elsie S. Storms, without consultation with the defen-
dants, proceeded on his own volition to repair or replace the
bridge, which Storms used on a daily basis and which was used
infrequently by defendants.
Storms, in my opinion, was a volunteer in the repair and
replacement of the bridge and, as such, should not be entitled to
make a claim of unjust enrichment. If this should become the
accepted law of Montana, it would be an invitation for a wealthy
individual to practice mischief and harassment upon neighbors less
economically privileged by officiously making improvements on
property and then claiming in a lawsuit that restitution for unjust
enrichment should be paid by those neighbors.
A person who officiously confers a benefit
upon another is not entitled to restitution
therefor.
Restatement of Restitution, S 2 (1937). Also,
A person who, incidentally to the performance
of his own duty or to the protection or im-
provement of his own things, has conferred a
benefit upon another, is not thereby entitled
to contribution.
Restatement of Restitution, § 106 (1937). The point was made that
Storms herself used the bridge on a daily basis.
In Wendover Road Prop. Owners Ass'n. v. Kornicks (Ohio App.
1985), 502 N.E.2d 226, defendant sought review of a summary
judgment against him on a complaint that he was unjustly enriched
by road, sewer, and water improvements made by plaintiff property
owners association. In reversing and granting final judgment to
defendant, the Court of Appeals of Ohio stated:
The association made the improvements to
benefit its participants and did so voluntari-
ly. The defendant did not consent. Nor was
there any mistake, emergency, or compulsion
demonstrated.
[Defendant] refused to participate in the
project. Nor can it be argued that the im-
provements amounted to a duty imposed by law.
Absent any agreement or statutory authority,
we conclude that the association may not
recover for improvements officiously made by
the association.
Wendover, 502 N.E.2d at 231.
In Dinosaur Development, Inc. v. White (Cal.App. 1 Dist.
1989), 265 Cal.Rptr. 525, plaintiff's plan for a subdivision was
approved by local government on the condition that plaintiff must
construct a road from the nearest public thoroughfare to defen-
dants' adjacent land, which was otherwise landlocked. Plaintiff
sought to recover from defendant adjacent landowners under a theory
of unjust enrichment. The California Court of Appeals, First
District, held:
If plaintiff complies with the ... condition
for approval of the subdivision, defendants
will benefit. But because the benefit will be
incidental to plaintiff's proposed develop-
ment, it will not be unjust enrichment requir-
ing defendants to make restitution.
Dinosaur, 265 Cal-Rptr. at 530. The court affirmed an order
dismissing the complaint.
On retrial of this matter, the claim of unjust enrichment
should be a major concern.
{i. Chief Justice