“While it is true that a party may not recover for the same services under both a contractual claim and a claim for quantum meruit, a party is not barred from seeking alternative theories and recovering under a quantum meruit theory if his contractual claim fails.”
How later courts described this case
- “While it is true that a party may not recover for the same services under both a contractual claim and a claim for quantum meruit, a party is not barred from seeking alternative theories and recovering under a quantum meruit theory if his contractual claim fails.”
Written by the judges who cited it.
The opinion
Moore, Presiding Judge,
dissenting.
{¶ 19} I would find that the trial court correctly determined that the parties had an enforceable contract that barred BIC’s recovery under the unjust-enrichment theory. Accordingly, I respectfully dissent from the majority’s decision that the trial court erred in granting 3M Parkway’s motion for summary judgment.
{¶ 20} This matter involves a classic contract with a condition precedent. A review of BIC’s complaint reflects that it believed, as of the filing of the action, that the parties had a “contractual arrangement.” In its complaint, BIC alleged a breach-of-contract action. In paragraph 11 of the complaint, BIC referred to the parties’ “contractual arrangement” and stated that 3M Parkway was “obligated in contract.” Further, in its March 23, 2004 letter, drafted by David Lynn, Lynn specifically designated the correspondence as an “agreement.” In his deposition, Lynn testified that the $28,000 he claims to be owed arose out of obligations set forth in the March 23, 2004 letter. Thus, I would find that this “agreement” governs the subject matter of this dispute.
{¶ 21} The fact that the terms of the parties’ agreement would have to be specifically outlined at a later date does not invalidate the agreement. This was a multimillion dollar contract. The March 23, 2004 letter specifically stated that it concerned “preliminary” work. Any rational person would expect that more than four short paragraphs would be necessary to capture all the terms of the agreement as the construction unfolded. The lack of specific terms regarding the additional work required to complete this complex project does nothing to eviscerate the fact that an agreement was reached.
{¶ 22} The condition, as set forth by BIC in its March 23, 2004 letter, was the feasibility of the project. This condition was never met. BIC’s arguments regarding the amorphous nature of the term “feasibility” are not persuasive. BIC chose this term and chose not to further define it. “Feasible” is defined as “capable of being done or carried out.” Webster’s Collegiate Dictionary (2005) 458. “Infeasible” is defined as “impracticable.” Webster’s Collegiate Dictionary (2005) 639. Certainly the lack of zoning or some exorbitant unanticipated costs associated with installing sewers would fall within the realm of impracticability.
{¶ 23} BIC used the terms “costs,” “investigative work,” and “preliminary work” in its letter. Professional services, i.e., the investigative work and preliminary work, are completely different in nature from costs. BIC stated in its letter that it would not charge 3M Parkway for this preliminary investigative work, but
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that 3M Parkway would be responsible for “all costs incurred.” “Under the canon of statutory construction commonly referred to as
ejusdem generis
(literally, ‘of the same kind’), whenever words of general meaning follow the enumeration of a particular class, then the general words are to be construed as limited to those things which pertain to the particularly enumerated class.”
Akron Home Med. Servs., Inc. v. Lindley
(1986), 25 Ohio St.3d 107, 109 , 25 OBR 155, 495 N.E.2d 417 .
{¶ 24} Moreover, in his deposition, Lynn agreed that there is a difference between monies paid for time and “costs.” He testified that the “costs incurred” were “the soil boring, the environmental, the wetlands, the brush hogging, the surveys * * * the insurance on the project and the engineering fees.” Lynn stated, “Those are all direct project costs and have nothing to do with my eight percent fee.” In his deposition, Lynn continued to draw a distinction between “direct job costs” and the fees for his services. Despite acknowledging this distinction, he admitted that he did not state in the March 23, 2004 letter that his time would be billable as a cost.
{¶ 25} Finally, if Lynn believed that “costs” should also encompass his time, he could have more specifically defined this term in his March 23, 2004 letter. He did not. 3M Parkway clearly understood this letter as requiring it to reimburse BIC for its costs. Lynn testified that 3M Parkway has paid all of the direct costs billed to it, but none of the fees for Lynn’s time. Lynn clearly expended his time and energy at the front end of this relationship, in the hopes that he would earn significantly more, i.e., a percentage of the total construction contract, if he became the construction manager. This was a calculated business risk that he took when he expressly “agreed to do this [preliminary investigative] work at no cost to you, with the understanding that, if the project is determined feasible, [BIC] will become your Construction Manager.”
{¶ 26} Because I would find that the parties’ March 23, 2004 agreement governs this matter, I would not address BIC’s unjust-enrichment claim. See
Pawlus v. Bartrug
(1996), 109 Ohio App.3d 796, 800 , 673 N.E.2d 188 (finding the doctrine of unjust enrichment inapplicable when an express agreement exists governing the services for which compensation is sought). I would affirm.