Lowe v. Hill

• Decision Date: 20 May 2014
• Docket Number: No. WD 76272.,WD 76272.
• Citation: 430 S.W.3d 346
• Court: Missouri Court of Appeals
• Parties: Mary LOWE, Respondent, v. Susan HILL, Appellant.

430 S.W.3d 346

Mary LOWE, Respondent,

v.Susan HILL, Appellant.

No. WD 76272.

Missouri Court of Appeals,

Western District.

May 20, 2014.

Jeremiah Kidwell, Kansas City, MO, for respondent.

Abbie E. Rothermich, Warrensburg, MO, for appellant.

BEFORE DIVISION TWO: GARY D. WITT, Presiding Judge, LISA WHITE HARDWICK and ALOK AHUJA, Judges.

LISA WHITE HARDWICK, Judge.

This is an appeal from the circuit court's judgment against Susan Hill and in favor of Mary Lowe on her claims for money had and received and unjust enrichment. Hill contends that the circuit court erred in entering judgment in Lowe's favor on her implied contract claims because an express contract covered the subject matter of the parties' dispute. For reasons explained herein, we reverse the circuit court's judgment.

Factual & Procedural History

On September 4, 2012, Mary Lowe filed a two-count petition against her daughter, Susan Hill, seeking recovery for money had and received (Count I) and unjust enrichment (Count II). Both counts of the petition alleged that on or around January 4, 2002, Lowe “provided funds to [Hill] totaling approximately” $45,000.00, and that “[s]aid funds were provided to [Hill] by [Lowe] with the agreement that said funds would be returned to [Lowe] in monthly payments of approximately” $330.00 at an interest rate of 4.875%. The petition further alleged that “[o]n October 7, 2009, [Hill] acknowledged in writing the existence of the provisions of funds by [Lowe] to [Hill]; and that said sum remaining to be paid was approximately” $29,600.00.

Lowe alleged that Hill stopped making payments in March 2012. Lowe's petition asserted that she “requested all outstanding funds previously provided to [Hill] be returned,” but Hill “refused and continues to refuse to return the funds to [Lowe].” Lowe sought judgment against Hill in the amount of $18,862.22, plus earned interest at the rate of 4.875% per annum.

A bench trial was held on January 28, 2013. At trial, Lowe testified on her own behalf and presented no other evidence. Hill had a standing objection to “any testimony regarding an oral loan, insofar as it went to create a different cause of action than that stated in [Lowe]'s petition.” Hill did not cross-examine Lowe or present any evidence of her own.

At the close of Lowe's evidence, Hill filed a motion for judgment in her favor for Lowe's “failure to state a cause of action on which relief may be granted.” Hill's motion was denied. At the conclusion of the trial, the court entered judgment for Lowe in the sum of $18,862.22, plus accrued interest in the amount of $3,836.52, and post-judgment interest at a rate of 4.875% per annum. Hill appeals.

Standard of Review

We review this court-tried case under the standard articulated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will affirm the judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. We review the evidence in a light most favorable to the judgment, accept it as true, and disregard any contradictory evidence. Murphy v. Holman, 289 S.W.3d 234, 237 (Mo.App.2009). We also defer to the trial court's determination of the weight to be given the evidence and to the credibility of the witnesses. Id.

Analysis

In her first point on appeal, Hill contends the “circuit court erred in declaring and applying the law in entering judgment for [Lowe] ... because judgment may not be had for either money had and received or unjust enrichment when there coexists an express contract for the payment of the subject money.”

Claims for money had and received ¹ and unjust enrichment ² are both founded upon equitable principles whereby the law implies a contract to prevent unjust enrichment. Karpierz v. Easley, 68 S.W.3d 565, 570 (Mo.App.2002) (“ ‘A suit for money had and received is an action at law founded upon an implied contract created by law.’ ” (quoting White v. Pruiett, 39 S.W.3d 857, 863 (Mo.App.2001))); Pitman v. City of Columbia, 309 S.W.3d 395, 402 (Mo.App.2010) (“The principle of unjust enrichment has given rise to the doctrine of quasi-contract, also known as a contract implied in law, as a theory of recovery.”). It is a well-settled principle of law that implied contract claims arise only where there is no express contract. A & L Underground, Inc. v. Leigh Const., Inc., 162 S.W.3d 509, 511 (Mo.App.2005) (explaining that where an express contract exists, there is no need to imply one). Accordingly, a plaintiff cannot recover under an equitable theory when she has entered into an express contract for the very subject matter for which she seeks to recover. Howard v. Turnbull, 316 S.W.3d 431, 436 (Mo.App.2010).

Lowe does not dispute the foregoing principle of law that the existence of an express contract bars recovery under an implied contract theory. Rather, Lowe asserts that the circuit court “did not find that the parties entered into a contract.” Yet, Lowe presented no evidence of anything other than that she and Hill entered into an express oral loan agreement,³ which Hill subsequently breached. Therefore, as asserted by Hill in her reply brief, “it can hardly be said that the record before the trial court could reasonably support a finding that no express contract existed between the parties.”

Lowe argues that, “although [she] testified regarding an agreement with Ms. Hill ... the trial court was free to believe none, part, or all of her testimony.” Thus, citing to authority on the standard of review for court-tried cases, Lowe suggests that we must disregard any evidence of an express contract. We disagree.

First, Lowe's argument is curious in that it rests on the premise that her evidence of a loan agreement was contested and that the circuit court resolved the issue against her. Hill, however, did not contest Lowe's testimony regarding the loan agreement. Although there was no stipulation of facts by the parties, Hill did not file any responsive pleadings, did not cross-examine Lowe, did not argue before the circuit court that Lowe lacked credibility as a witness, and did not present any evidence of her own. See White v. Dir. of Revenue, 321 S.W.3d 298, 308 (Mo. banc 2010) (listing the various ways a party can contest an issue). Thus, Hill did not contest Lowe's evidence of an express contract and, consequently, “the issue is [a] legal [determination] and there is no finding of fact to which to defer.” Id. at 307.

Second, in its oral rendition of its judgment, the circuit court made a finding of an express contract: “The Court, after hearing the evidence, finds in favor of the Plaintiff and against Defendant in the amount of $18,862.22 principal plus interest at $3,863.52, and continuing to accrue at the contract rate of 4.875 percent.” Had the circuit court not found a contract to be in existence, there would be no basis for its finding that interest of $3,863.52 had accrued through the judgment date or, for that matter, a basis for any finding in its judgment. Therefore, because the undisputed evidence could only support a breach of contract claim, and because the circuit court found that a contract did in fact exist, the court erred in allowing Lowe to recover on the theories of money had and received and unjust enrichment.

Lowe also suggests that, rather than reversing, we affirm the circuit court's judgment on a breach of contract theory. While it is true that we may affirm a trial court's judgment if cognizable under...