[PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT                          FILED
                                                                     U.S. COURT OF APPEALS
                               ________________________                ELEVENTH CIRCUIT
                                                                            12/17/99
                                                                         THOMAS K. KAHN
                                      No. 98-3183                            CLERK
                               ________________________
                             D.C. Docket No. 96-9-CivT-26(B)


TOOLTREND, INC., a Florida
Corporation, d.b.a. CMT Tools,
                                                     Plaintiff-Counter-defendant-Appellant,

                                              versus
CMT UTENSILI, SRL, an
Italian Company, CMT USA,
INC., a North Carolina corporation,

                                                 Defendants-Counter-claimants-Appellees.

                              __________________________

                  Appeal from the United States District Court for the
                              Middle District of Florida
                            _________________________
                                (December 17, 1999)

Before CARNES and BARKETT, Circuit Judges, and PAINE*, Senior District Judge.

_______________________________________________________________
* Honorable James C. Paine, Senior U.S. District Judge for the Southern District of Florida, sitting
by designation.



BARKETT, Circuit Judge:
       Tooltrend, Inc. (“Tooltrend”) appeals from the district court's order vacating

a jury verdict in its favor for $1,741,993 against its former business associates CMT

Utensili and CMT USA (collectively “Utensili”). The jury award was based on

Tooltrend’s claim of unjust enrichment in a dispute between the parties involving the

ownership of three separate trademarks. The district court vacated the award of

damages and entered judgment in favor of Utensili, and, alternatively, granted

Utensili’s motion for a new trial. On appeal, Tooltrend argues that the district court

misconstrued the Florida law of unjust enrichment, and therefore erred in vacating the

jury’s verdict. In the alternative, Tooltrend argues that rather than vacating the verdict

or granting a new trial, the district court should have remitted the jury’s verdict to

$636,011.

                                     Background

      Tooltrend is a Florida-based company which has sold cutting tools for the

woodworking industry since 1991. Utensili is an Italian company which has

manufactured woodworking tools from its facility in Pesaro, Italy, since 1964.

Sometime in 1991, Tooltrend and Utensili agreed that Tooltrend would become the

United States distributer of the router bits manufactured by Utensili. With the

agreement of Utensili, Tooltrend sold these Utensili router bits in the United States

under the name “CMT Tools.” Thus, “CMT” was featured in all of Tooltrend’s


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advertisements and catalogues and Tooltrend used a distinctive orange fruit logo to

call attention to the router bits which were orange in color.

      In October 1995, the relationship between Tooltrend and Utensili ended.

Tooltrend claimed that Utensili was not adequately supplying Tooltrend with products

and was imposing unwarranted price increases. Utensili claimed that Tooltrend was

not paying in a timely manner. After the relationship between the parties terminated,

Utensili’s owners set up its own separate company, CMT USA, to distribute its

products directly in this country. Thus, as of December 1995, Tooltrend and Utensili

were both selling identical products under business names which both included

“CMT.”

      In January 1996, Tooltrend filed this lawsuit alleging, among other things,

Lanham Act violations regarding the orange color on the router bits, the name “CMT

Tools,” and the orange fruit logo. Tooltrend also sought an injunction to keep Utensili

from selling woodworking tools under these marks. Utensili filed a counterclaim

asserting ownership to the “CMT,” “orange color on router bits,” and the orange fruit

logo trademarks. In an amended complaint, Tooltrend added causes of action for

copyright infringement and unjust enrichment, asserting that if Utensili were declared

the owner of the “CMT” and the “orange color on router bits” marks, Utensili would




                                          3
have been unjustly enriched by Tooltrend’s advertising and promotional efforts

regarding the router bits. Tooltrend claimed unjust enrichment damages of $636,011.

       Ultimately, Utensili, which had registered the CMT name in Italy in 1972, was

deemed to be the owner of the CMT mark and of the orange-color-on-router-bits

trademark,1 and Tooltrend was deemed to be the owner of the orange fruit logo. The

jury then determined that Utensili had not suffered any damages, but that Tooltrend

was entitled to $1,741,993 on its unjust enrichment claim.2

       After the jury verdict, the trial judge granted Utensili’s motion for judgment as

a matter of law, dismissing Tooltrend’s unjust enrichment claim, and, alternatively,

granting Utensili’s motion for a new trial, thus setting aside the damage award.

Tooltrend now appeals. We review de novo a trial court's order granting judgment as

a matter of law. See Ortega v. Schramm, 

, 694 (11th Cir. 1991).

       To grant judgment as a matter of law, the court must determine that there is

such overwhelming evidence in favor of the movant that a reasonable and fair-minded

juror could not arrive at a contrary verdict. See Carter v. City of Miami, 

         Utensili had used an orange color since 1972 on its logo, invoices, communications,
products and packaging, and has used an orange color on its products since the beginning of the
1980s.
       2
         Tooltrend’s evidence on damages was that from 1991 to 1996, Tooltrend paid
approximately $589,000 for advertising, $1,150,000 for catalogue promotion, approximately
$50,000 on free samples, and $77,000 for advertising at trade shows.

                                              4
578, 581 (11th Cir. 1989) (citing Miles v. Tennessee River Pulp & Paper Co., 

(11th Cir. 1989)). Federal Rule of Civil Procedure 50, under which this

motion was submitted, “allows the court to take away from the jury’s consideration

cases or issues when the facts are sufficiently clear that the law requires a particular

result.” 9A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure:

Civil2d § 2521 (1994). “A motion for a directed verdict, or for a judgment

notwithstanding the verdict under Rule of Civil Procedure 50, 28 U.S.C.A., raises a

question of law only: Whether there is any evidence which, if believed, would

authorize a verdict against movant. The trial judge in considering those motions does

not exercise discretion, but makes a ruling of law . . . .” Marsh v. Illinois Cent. R. Co.,

, 500 (5th Cir. 1949).3

                                          Discussion

       The district court found that Tooltrend was not entitled to recover on a theory

of unjust enrichment because Tooltrend’s activities promoting Utensili’s trademarks

“were conducted to promote . . . [Tooltrend’s] own business and without any

expectation of compensation.” (Dist. Ct. Op. at 1). On appeal, Tooltrend argues that

the district court erred by confusing the separate legal doctrines of quantum meruit


       3
         In Bonner v. City of Prichard, 

, 1209 (11th Cir.1981) (en banc), the Eleventh
Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of
business on September 30, 1981.

                                                5
and unjust enrichment. Tooltrend argues that, because its claim is based on a contract

implied in law, it is entitled to recover regardless of its expectation of compensation,

and that the district court therefore misconstrued the law.

      We first turn to the elements of an unjust enrichment claim in the State of

Florida. A claim for unjust enrichment is an equitable claim, based on a legal fiction

created by courts to imply a “contract” as a mater of law. Although the parties may

have never by word or deed indicated in any way that there was any agreement

between them, the law will, in essence, “create” an agreement in situations where it

is deemed unjust for one party to have received a benefit without having to pay

compensation for it. It derives, not from a “real” contract but a “quasi-contract.” See

Commerce Partnership 8098 Ltd. Partnership v. Equity Contracting Co., 

, 386 (Fla. Dist. Ct. App. 1997) (en banc).        To succeed in a suit for unjust

enrichment a plaintiff must prove that:

      (1) the plaintiff has conferred a benefit on the defendant, who has
      knowledge thereof; (2) the defendant has voluntarily accepted and
      retained the benefit conferred; and (3) the circumstances are such that it
      would be inequitable for the defendant to retain the benefit without
      paying the value thereof to the plaintiff.

See Greenfield v. Manor Care, Inc., 

, 930-31 (Fla. Dist. Ct. App.

1997), rev. denied, 

(Fla. 1998).




                                           6
       By contrast, the remedy of quantum meruit derives from contracts “implied in

fact.” In these contracts, the parties have in fact entered into an agreement but without

“sufficient clarity, so a fact finder must examine and interpret the parties’ conduct to

give definition to their unspoken agreement . . . . [in order to give] the effect which

the parties . . . presumably would have agreed upon if, having in mind the possibility

of the situation which has arisen, they had contracted expressly thereto.” 

(internal quotation marks omitted).4

        In this case, Tooltrend disavows a claim of quantum meruit, or contract implied

in fact. Tooltrend specifically concedes that its claim does not derive from any words

or actions of the parties. Hence, the question before us is whether we should imply

or “create” a contract in law on the basis that it would be unjust for Utensili to have

received the benefit of advertising and promotion without paying compensation to

Tooltrend. As recognized by the trial court, “[t]he essence of the [unjust enrichment]

claim seems to be that Tooltrend spent money and effort promoting the trademarks of



       4
          As Judge Gross writing for the en banc court recognized, confusion in this area arises
because some courts have used some of these terms inappropriately and have on occasion
improperly connected remedial terms to the wrong theory. For example, using quantum meruit
improperly in connection with a contract implied in law as opposed to a contract implied in fact
where it belongs, or conversely, using the term “unjust enrichment” in connection with a cause of
action for a contract implied in fact from the conduct of the parties. See 

; see also 66 Am. Jur.2d Restitution and Implied Contracts § 166 (1999) (noting that
“[q]uantum merit . . . is an ambiguous term,” at times used to refer to contracts implied in fact and
at others to refer to unjust enrichment).

                                                 7
‘CMT’ and the orange color on router bits, and that[, as] owner of those trademarks,

Utensili has been unjustly enriched by the enhanced value of those properties . . . .”

(Dist. Ct. Op. at 7).

       In deciding that Tooltrend was not entitled to relief, the trial court appeared to

rule that the elements of an unjust enrichment claim must include the plaintiff’s

expectation of compensation, and in its brief, Utensili emphasizes this position.

Tooltrend argues that appending another element to Florida’s law of unjust enrichment

is legally improper.     Implicit in Utensili’s argument that an expectation of

compensation is a necessary component of every unjust enrichment claim is that such

an expectation must be found from the conduct or the words of the parties. However,

Florida courts have made clear that an unjust enrichment claim may be brought

whether or not the parties had any previous contact at all. See 

(“Because the basis for recovery does not turn on the finding of an enforceable

agreement, there may be recovery under a contract implied in law even where the

parties had no dealings at all with each other.”). Even recognizing that an expectation

of compensation can exist without a clear notion of who should pay it, requiring proof

of such an expectation in every case would unduly restrict the expressed concept in

Florida law which provides a mechanism for imposing liability in all types of cases




                                            8
where “the circumstances are such that it would be inequitable for the defendant to

retain the benefit without paying the value thereof to the plaintiffs.”

       Nonetheless, although a claim for quantum meruit requires that plaintiffs

demonstrate an expectation of compensation before they seek compensation, and a

claim of unjust enrichment does not, that expectation might very well be relevant to

the question of whether it would be unjust to retain a benefit without having to pay for

it. Notwithstanding that claims for quantum meruit and unjust enrichment arise under

distinct causes of action, they may at times share elements of proof such as an

expectation of compensation.5 In essence, this appears to be the import of the trial

judge’s ruling. (See Dist. Ct. Ord. at 13).

       The trial judge viewed Tooltrend’s advertising efforts as services provided to

Utensili and adopted the rationale of Bloomgarden:

       By their very nature, the equitable principles of quasi-contracts are more
       difficult to apply where the court must determine whether services
       rendered by one person to another are to go unrewarded than where it
       must make that determination with respect to money or property unjustly

       5
          Indeed, both causes of action can be pled alternatively. However, the expectation of
compensation would be treated differently in each cause of action. In a claim for quantum meruit
pursuant to a contract implied in fact, the expectation of compensation would be measured by the
intent of the parties as expressed by their actions. In a claim for unjust enrichment, it would be one
of the considerations in assessing the “unjustness” of the enrichment and measured in terms of the
benefit to the owner, not the cost to the provider. See Levine v. Fieni McFarlane, Inc., 

, 713-14 (Fla. Dist. Ct. App. 1997); see also Miceli v. Gilmac Developers, Inc., 

,
406 (Fla. Dist. Ct. App. 1985); 17A Am. Jur.2d Contracts § 746 (1999) (noting that a plaintiff “may
sue on a quasi contract to recover any money paid by him or on a quantum meruit to recover for
what he has . . . furnished”). In this case, Tooltrend’s only claim is for unjust enrichment.

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      retained. But since there is no general responsibility in quasi-contract
      law to pay for services irrespective of the circumstances in which they
      are carried out, a number of factual criteria have been utilized by courts
      to ascertain whether in a given case the defendant has undeservedly
      profited by the plaintiff’s efforts. Thus, in situations involving personal
      services, it has been variously stated that a duty to pay will not be
      recognized where it is clear that the benefit was conferred gratuitously
      or officiously, or that the question of payment was left to the unfettered
      discretion of the recipient. Nor is compensation mandated where the
      services were rendered simply in order to gain a business advantage.
      And the courts have reached the same conclusion where the plaintiff did
      not contemplate a personal fee, or the defendant could not reasonably
      have supposed that he did . . . . No unfairness results from a denial of
      compensation to the claimant who had no expectation of personal
      remuneration at the time of performance. On the contrary, it would be
      unjust to impose a liability for payment on the party who accepts the
      services without any warning, from the surrounding circumstances or
      otherwise, that they were rendered for a 

& n.66 (footnotes omitted) (emphasis in original); see also

Lirtzman v. Fuqua Indus., Inc., 

, 553 (7th Cir. 1982); E. Allan

Farnsworth, Contracts §2.20, at 106 (2d ed. 1990) (“recovery in restitution will be

denied if [a benefit] was conferred ‘gratuitously,’ that is, without expectation of

compensation”).

      We see these considerations as equally relevant under Florida law in assessing

whether “the circumstances are such that it would be inequitable for the defendant to

retain the benefit without paying the value thereof to the plaintiff.” 

. In this case, we are satisfied that the trial judge correctly assessed the

evidence and determined that the circumstances did not create such inequity. The trial

                                          10
judge found that “the evidence in this case unquestionably shows that the sole reason

Tooltrend engaged in advertising and promotional activities was to make a profit for

itself. In this situation, it is not unjust, as a matter of law, if the defendants do not

compensate Tooltrend for any enhancement that may have accrued to Utensili’s two

trademarks while Tooltrend was advertising and promoting the products it was selling

. . . . ” (Dist. Ct. Op. at 15). Tooltrend had already purchased the router bits from

Utensili and was free to resell the router bits at a profit. It cannot be gainsaid that

Tooltrend’s promotional efforts were directed toward extending its own profit

margin. Certainly, Tooltrend has reaped and continues to enjoy its own tangible and

intangible benefits from the promotional work it has done. Although Tooltrend may

have conferred the benefit of product recognition on Utensili, any incidental

enrichment enjoyed by Utensili under the circumstances presented here is far from

unjust. Although we do not hold that an expectation of compensation, per se, must be

included as an element of every claim for unjust enrichment, we nevertheless conclude

that, under these facts, the trial court did not err. Because “[t]he most significant

requirement for a recovery on quasi contract is that the enrichment to the defendant

be unjust,” 

(quoting Maloney v. Therm Alum Indus.

Corp., 

, 770 (Fla. Dist. Ct. App.), rev. denied, 

(Fla.




                                           11
1994)), and because we find no such injustice here, the district court was correct in

entering a judgment as a matter of law in favor of Utensili.

      AFFIRMED.




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