VAIDIK, Judge.
Kohl's Indiana, L.P., and Kohl's Department Stores, Inc., (collectively "Kohl's") appeal the trial court's grant of summary judgment in favor of the Evansville-Vanderburgh County Area Plan Commission ("Plan Commission") and the Board of Commissioners of Vanderburgh County ("Board of Commissioners") on Kohl's equitable claims for contribution and unjust enrichment for expenses that Kohl's incurred when its developer failed to complete construction of a new Kohl's Department Store on the west side of Evansville. We conclude that the trial court properly entered summary judgment in favor of the Plan Commission for both claims because the Commission never accepted a common obligation to complete the project, never entered into any sort of agreement with Kohl's concerning the project, and there is no evidence that a benefit was conferred upon the Plan Commission at the Commission's express or implied consent. We also conclude that the trial court properly entered
In May 2004, the Plan Commission approved a primary plat application concerning the proposed construction of a Kohl's Department Store in the Carpentier Creek Pavilion Subdivision on the west side of Evansville. The approval of the project was conditioned upon the developer, Dennis Owens, posting a letter of credit to ensure the proper and complete development of roads, culverts, sanitary sewer work, and other infrastructure improvements required within the subdivision pursuant to Section 16.08.070 of the Vanderburgh County Subdivision Code, Appellant's App. p. 315-16, and Indiana Code section 36-7-4-709.
In January 2005, Owens obtained four letters of credit from Fifth Third Bank naming the Plan Commission as beneficiary. The letters of credit totaled $538,454.78:
Id. at 332.
Thereafter, in February 2005, Kohl's and Owens entered into an Operation and Easement Agreement whereby Owens agreed to build the Kohl's Department Store in Carpentier Creek Pavilion. Kohl's and Owens also entered into a Site Development Agreement, which provided that Kohl's had the right to complete Owens' work if he failed to do so and charge Owens all expenses incurred.
In September 2005, Kohl's and the Board of Commissioners entered into an agreement ("road-improvement agreement") whereby the Board of Commissioners agreed to the closure of Rosenberger Avenue, which was a busy road, for a limited time in order to allow Kohl's to improve and reconstruct it. Id. at 144-45. In the agreement, Kohl's agreed to complete the project in accordance with all plans and specifications approved by various governmental entities. Id. at 144. The agreement provides that should Kohl's fail to complete the project in accordance with all approved plans and specifications, the Board of Commissioners will take all necessary legal actions to recoup its expenses in completing the project, including drawing on the funds in the letters of credit and filing a lawsuit against Kohl's. Id. Kohl's and the Board of Commissioners also entered into an indemnity agreement whereby Kohl's agreed to defend, indemnify, and hold the Board of Commissioners harmless against claims relating to the improvement and reconstruction of Rosenberger Avenue, and Kohl's named Vanderburgh County as an additional insured under
Owens failed to complete the project, so Kohl's completed the project, which included improvements to storm sewers and septic sewers under Rosenberger Avenue and Hogue Road as well as road work to Rosenberger Avenue and Hogue Road.
In February 2006, Kohl's filed a complaint against numerous defendants, including Owens, the Plan Commission, and Fifth Third Bank in which it sought reimbursement for the expenses it incurred in completing Owens' work. Id. at 1. Kohl's made three claims against the Plan Commission. In Count VI, Kohl's asked the trial court to order the Plan Commission to draw on the letters of credit and to assign the proceeds from the letters of credit to Kohl's. In Count VII, Kohl's asserted a claim based on the doctrine of contribution. And in Count VIII, Kohl's sought payment of the proceeds of the letters of credit based upon the doctrine of implied contract and/or unjust enrichment.
Fifth Third Bank intervened as a defendant in the counts against the Plan Commission and sought summary judgment. Although the trial court entered summary judgment in favor of Kohl's, finding that the letters of credit should be treated as performance bonds and that Kohl's was entitled to make a claim against the proceeds of the letters of credit as a third-party beneficiary, we reversed on appeal. Specifically, we found that the letters of credit were not performance bonds and that Kohl's was not a third-party beneficiary of the letters of credit issued by Fifth Third Bank. Fifth Third Bank v. Kohl's Indiana, L.P., 918 N.E.2d 371, 376, 378 (Ind.Ct.App.2009).
In May 2010, Kohl's filed an amended complaint in which it added the Board of Commissioners as a defendant to Counts VII (contribution) and VIII (implied contract and/or unjust enrichment). Kohl's then dismissed, with prejudice, Count VI against the Plan Commission based upon this Court's opinion.
All of the public-infrastructure improvements that were required as a condition of approval by the Plan Commission for the project were completed, and the Plan Commission released the four letters of credit posted by Owens between July and October 2010.
In August 2010, the Board of Commissioners and the Plan Commission individually moved for summary judgment on Counts VII and VIII of Kohl's amended complaint. Kohl's filed a cross motion for summary judgment. Following a hearing, the trial court entered summary judgment in favor of the Board of Commissioners and the Plan Commission and denied
Kohl's now appeals.
Kohl's argues that the trial court erred in entering summary judgment in favor of the Board of Commissioners and the Plan Commission on its equitable claims for contribution and implied contract/unjust enrichment.
In reviewing an appeal of a motion-for-summary-judgment ruling, we apply the same standard applicable to the trial court. Presbytery of Ohio Valley, Inc. v. OPC, Inc., 973 N.E.2d 1099, 1110 (Ind.2012), reh'g denied. Summary judgment is appropriate where the designated evidence "shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ind. Trial Rule 56(C). Review is limited to those facts designated to the trial court, T.R. 56(H), and "[a]ll facts and reasonable inferences drawn from those facts are construed in favor of the non-moving party." Presbytery of Ohio Valley, 973 N.E.2d at 1110 (quotation omitted). The fact that each party sought summary judgment does not alter our analysis. Id. Rather, we consider each motion separately construing the facts most favorably to the non-moving party in each instance. Id.
Kohl's first contends that the trial court erred in entering summary judgment in favor of the Board of Commissioners and the Plan Commission on Count VII, its claim for contribution. Kohl's argues that when Owens failed to complete the public-infrastructure improvements to the project, it had no obligation to complete them, but it did so to ensure that it could open its new store. Nevertheless, Kohl's argues that both the Board of Commissioners and the Plan Commission were obligated by statute and local ordinance to step in and complete the public-infrastructure improvements. Accordingly, Kohl's seeks contribution from both the Board of Commissioners and the Plan Commission for these expenses.
Contribution involves the partial reimbursement of one who has discharged a common liability. Balvich v. Spicer, 894 N.E.2d 235, 243 (Ind.Ct.App.2008). The "`doctrine of contribution rests on the principle that where parties stand in equal right, equality of burden becomes equity.'" Id. at 245 (quoting Cook v. Cook, 92 Ind. 398, 399 (1884)). The right of contribution is based upon natural justice, and "it applies to any relation, including that of joint contractors, where equity between the parties is equality of burden, and one of them discharges more than his share of the common obligation." Id. (quotation omitted).
According to Williston on Contracts, the rule is that
12 Richard A. Lord, Williston on Contracts § 36.14 (4th ed. 1999) (citing Restatement (First) of Restitution § 81 (1937)). The doctrine of contribution rests on principles of equity and natural justice, not contract. Id. "It is an attempt by equity to distribute equally among those who have a common obligation, the burden of performing that obligation." Id.
Kohl's points out that pursuant to statute and local ordinance, the Plan Commission
But that is not what happened here. When Owens failed to complete the project, Kohl's stepped in and completed the project so that it could open the store. Although the Plan Commission was the beneficiary of the letters of credit taken out by Owens and could have drawn on the letters of credit if the public-infrastructure improvements were not completed (the public-infrastructure improvements were in fact completed, and the Plan Commission released the letters of credit in 2010),
Kohl's next argues that the Board of Commissioners, "as the executive for Vanderburgh County, had a duty to construct, design, repair and maintain ... road and sewer improvements." Appellant's Br. p. 8 (footnote omitted). The Board of Commissioners responds that while it may have a duty to public users to repair and maintain the completed public-infrastructure improvements, it agreed with Kohl's that Kohl's would be liable for completing and paying for all public-infrastructure improvements associated with building the new Kohl's Department Store in Evansville. As support, the Board of Commissioners identifies the road-improvement agreement,
Appellant's App. p. 144 (emphases added).
Although Kohl's argues that the road-improvement agreement addresses only closing a public road and not its obligations to complete the public-infrastructure improvements, we do not read the agreement
Based on the above, we conclude that the road-improvement agreement addresses more than simply closing Rosenberger Avenue; it addresses the reconstruction and improvement of Rosenberger Avenue, which must be done in compliance with all plans and specifications that have been approved by several governmental agencies, including the Drainage Board. It is apparent that reconstructing and improving Rosenberger Avenue involves more than simply repaving this busy road; it also involves drainage, sewer, and water. Moreover, the agreement obligates Kohl's to pay for these costs and provides that if Kohl's fails to complete the project, the Board of Commissioners can complete the project and then file a lawsuit against Kohl's to recoup its expenses. Because there is an agreement between the parties concerning how to allocate the costs, the doctrine of contribution does not apply to this scenario. See 12 Lord, § 36.14 ("[U]nless otherwise agreed, a person who has discharged more than his proportionate share of a duty owed by himself and another as to which, between the two, neither had a prior duty of performance, is entitled to contribution from the other, except where the payor is barred by the wrongful nature of his conduct." (Emphasis added)). Accordingly, the trial court properly entered summary judgment in favor of the Board of Commissioners on Kohl's contribution claim.
Kohl's next contends that the trial court erred in entering summary judgment in favor of the Board of Commissioners and the Plan Commission on Count VIII, its claim for unjust enrichment, which is also referred to as quantum meruit, contract implied in law, constructive contract, or quasi contract. Coppolillo v. Cort, 947 N.E.2d 994, 997 (Ind.Ct.App.2011).
A claim for unjust enrichment is a legal fiction invented by the common-law courts in order to permit a recovery where the circumstances are such that under the law of natural and immutable justice there should be a recovery. Zoeller v. E. Chi. Second Century, Inc., 904 N.E.2d 213, 220 (Ind.2009), reh'g denied. "`A person who has been unjustly enriched at the expense of another is required to make restitution to the other.'" Id. (quoting Restatement (First) of Restitution § 1 (1937)). To prevail on a claim of unjust enrichment, a plaintiff must establish that a measurable benefit has been conferred on the defendant under such circumstances that the defendant's retention of the benefit without payment would be unjust. Zoeller, 904 N.E.2d at 220; Bayh v. Sonnenburg, 573 N.E.2d 398, 408 (Ind.1991), reh'g denied. Indiana courts articulate three elements for this claim: (1) a benefit conferred upon another at the express or implied consent of such other party; (2) allowing the other party to retain the benefit without restitution would be unjust; and (3) the plaintiff
When the rights of the parties are controlled by an express contract, recovery cannot be based on a theory implied in law. Zoeller, 904 N.E.2d at 221. The existence of an express contract precludes a claim for unjust enrichment because: (1) a contract provides a remedy at law and (2) as a remnant of chancery procedure a plaintiff may not pursue an equitable remedy when there is a remedy at law. Coppolillo, 947 N.E.2d at 998. However, there are exceptions to this rule. Id. That is, when an express contract does not fully address a subject, a court of equity may impose a remedy to further the ends of justice. Id.
Kohl's does not make a cogent separate argument as to the Plan Commission and instead focuses its energy on the Board of Commissioners. In any event, there is no evidence that a benefit was conferred upon the Plan Commission at the Commission's express or implied consent. The Plan Commission did not ask Kohl's to complete the public-infrastructure improvements nor did the Commission request that any improvements be made for its benefit. Given the Plan Commission's more limited role, the trial court properly entered summary judgment in favor of the Plan Commission on Kohl's unjust-enrichment claim.
Kohl's argues that the Board of Commissioners' interaction with it warrants the imposition of an implied contract for the value of the work it completed on the public-infrastructure improvements.
We agree with the Board of Commissioners that because the rights of the parties were controlled by an express contract, recovery cannot be based on a theory implied in law. See Zoeller, 904 N.E.2d at 221. The road-improvement agreement imposes responsibility on Kohl's to improve and reconstruct Rosenberger Avenue as part of its obligations in conjunction with the development of Carpentier Creek Pavilion and specifies that the Board of Commissioners was to have no financial responsibility for these costs. And to the extent that Kohl's failed to complete the project, the Board of Commissioners could complete the project and pursue all legal actions, including a lawsuit against Kohl's, to recoup its expenses.
As a final matter, the Board of Commissioners, but not the Plan Commission, requests appellate attorney's fees according to Indiana Appellate Rule 66(E), which provides that "[t]he Court may assess
While we ultimately find no merit to any of Kohl's arguments, we do not find that its appeal is permeated with meritlessness or any of the other factors that would warrant an award of appellate attorney's fees. We therefore deny the Board of Commissioners' request for appellate attorney's fees.
Affirmed.
MATHIAS, J., and BARNES, J., concur.
