Diamond "S" Development Corporation v. Mercantile Bank

• Decision Date: 07 August 2008
• Docket Number: No. 1D08-0427.,No. 1D07-5967.,1D07-5967.,1D08-0427.
• Citation: Diamond "S" Development Corporation v. Mercantile Bank, 989 So.2d 696 (Fla. App. 2008)
• Parties: DIAMOND "S" DEVELOPMENT CORPORATION, Appellant, v. MERCANTILE BANK, a Florida banking corporation, Appellee. Tierra Holdings, Ltd., Appellant, v. Mercantile Bank, a Florida banking corporation, Appellee.
• Court: Florida District Court of Appeals

989 So.2d 696

DIAMOND "S" DEVELOPMENT CORPORATION, Appellant, v.MERCANTILE BANK, a Florida banking corporation, Appellee.

Tierra Holdings, Ltd., Appellant, v.Mercantile Bank, a Florida banking corporation, Appellee.

No. 1D07-5967.

No. 1D08-0427.

District Court of Appeal of Florida, First District.

August 7, 2008.

Rehearing Denied September 8, 2008.

Raymond T. Elligett, Jr. of Buell & Elligett, P.A., Tampa, for Appellants.

Michael G. Tanner, Thomas E. Bishop, and Stuart F. Williams of Tanner Bishop, Jacksonville, for Appellee.

PER CURIAM.

In these consolidated appeals, appellants seek review of final judgments entered against them for unjust enrichment.Florida courts have held that a plaintiff cannot pursue a quasi-contract claim for unjust enrichment if an express contract exists concerning the same subject matter.Ocean Commc'ns, Inc. v. Bubeck,956 So.2d 1222, 1225(Fla. 4th DCA2007);Kovtan v. Frederiksen,449 So.2d 1(Fla. 2d DCA1984).AccordShands Teaching Hosp. & Clinics, Inc. v. Beech St. Corp.,899 So.2d 1222, 1227(Fla. 1st DCA2005).We agree that appellee's unjust enrichment claim was precluded by the existence of an express contract between the parties concerning the same subject matter.For the first time on appeal, appellee asserts that even if the unjust enrichment claim fails as a matter of law, the judgments for appellee should be affirmed under a "constructive trust theory of recovery."However, a constructive trust is not a traditional cause of action, but an equitable remedy that must...