FROM WARREN CIRCUIT COURT HONORABLE JOHN R. GRISE, JUDGE
ACTION NO. 14-CI-00879
FOR APPELLANT: Matthew J. Baker Bowling Green, Kentucky
FOR APPELLEE: Christopher T. Davenport Brandon T. Murley
Bowling Green, Kentucky
BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND SPALDING, JUDGES.
Keco appeals from a judgment based upon a jury verdict
awarding appellee, Mario Ayala, the sum of $125, 373 plus
prejudgment interest. Appellant Keco argues that the jury was
erroneously permitted to consider the equitable principle of
unjust enrichment and that the trial court improperly awarded
prejudgment interest on unliquidated damages. We affirm.
River Rentals, Inc., initiated the action below seeking
recovery of approximately $10, 285 in rental payments from
Mr. Ayala under an equipment rental contract. The complaint
alleged that Mr. Ayala had utilized the equipment for
improvement of Mr. Keco's property and that Green River
Rentals had a valid mechanic's or materialman's lien
on Mr. Keco's real property. Mr. Ayala answered the
complaint and filed a cross-claim against Mr. Keco for breach
of contract and unjust enrichment. In response, Mr. Keco
asserted claims of indemnity, breach of contract,
misrepresentation, and unjust enrichment against Mr. Ayala.
After the trial court granted Green River's motion for
summary judgment on its claim, Mr. Ayala and Mr. Keco
satisfied that judgment and the case thereafter proceeded to
a jury trial on their respective claims against each other.
trial, Mr. Ayala argued that he had performed work on a
building and parking lot on property owned by Mr. Keco,
claiming that he was owed the sum of $146, 373 for which he
had not been paid. In support of his claim, Mr. Ayala
submitted into evidence written contracts and other invoices
evidencing the work he had performed. In contrast, Mr. Keco
argued that Mr. Ayala's work was substandard, deficient,
negligently performed, and otherwise incomplete. Mr. Keco
also claimed itemized damages in the amount of $168, 697.14.
parties submitted instructions to the trial court and
participated in discussions concerning the instructions to be
given the jury. Of particular pertinence to this appeal,
counsel for Mr. Keco stated on the record that he accepted
the instructions given by the trial court and made no
specific objection to the unjust enrichment instructions. The
instructions as given required the jury to answer a series of
questions to resolve the various claims made in the case.
Instruction Number 2, the jury found that Mr. Ayala had
substantially performed his duty to provide construction
services "in a good and workmanlike manner, free of
defects and in accordance with the plans and specifications
referred to in the contract." Similarly, under
Instruction Number 3, the jury again found for Mr. Ayala,
determining that he had substantially performed his duty
under the contract without defects in the construction that
he had failed to correct. Under Instruction Number 4, the
jury again found that Mr. Ayala did not fail to substantially
perform his duties as set forth in Instruction Number 2.
Notably, Instruction Number 5 required the jury to determine
if Mr. Ayala had established his claim of unjust enrichment
by proving that Mr. Keco received the benefit of construction
services from Mr. Ayala; that Mr. Keco failed to fully
compensate Mr. Ayala for those services; and that Mr. Keco
therefore received the benefit of construction services
without providing just compensation to Mr. Ayala. The jury
believed from the evidence that Mr. Ayala had proven the
elements set out in Instruction Number 5. Hence, based upon
its answers to the questions posed by the instructions, the
jury found no basis for awarding Mr. Keco the damages he
under Verdict Form Number 6, the jury awarded Mr. Ayala the
sum of $125, 373 to compensate him for breach of contract.
Also, under Verdict Form Number 10, the jury awarded Mr.
Ayala the sum of $125, 373 to compensate him for damages
stemming from his claim of unjust enrichment. Importantly,
the foreman made clear on the latter verdict form that the
jury was awarding a total verdict of $125, 373, rather than
separate awards under Instructions Numbers 2 and 5. Thus, the
trial court entered a judgment based upon the jury verdict in
favor of Mr. Ayala in the amount of $125, 373, plus costs and
prejudgment interest at the rate of 6 percent. This appeal
followed the entry of that judgment.
primary arguments form the basis of Mr. Keco's contention
that the judgment must be set aside: 1) that it was error to
instruct the jury on the issue of unjust enrichment; and 2)
that Mr. Ayala was not entitled to prejudgment interest
because the damages in this case were not a liquidated sum.
In support of his first contention, Mr. Keco advances a
two-pronged attack; insisting first, that the jury should
never have been instructed on unjust enrichment as it is a
matter of equity and second, arguing that he never consented
to a jury trial on that issue. In response to these
contentions, Mr. Ayala argues that Mr. Keco's failure to
preserve his arguments is fatal to this appeal; that the
instructions were not erroneous; and that Mr. Keco did not
suffer any manifest injustice as a result of the jury
verdict. We agree and affirm.
to our decision in this case is the unambiguous language of
76.12(4)(c)(v) which dictates that the argument section of
appellate briefs: "shall contain at the
beginning of the argument a statement with reference to the
record showing whether the issue was properly preserved for
review and, if so, in what manner." (Emphasis added.) A
corollary requirement more specifically pertinent to the
matter before us is set out in CR 51(3):
No party may assign as error the giving or the failure to
give an instruction unless he has fairly and adequately
presented his position by an offered instruction or by
motion, or unless he makes objection before the court
instructs the jury, stating specifically the ...