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Keco v. Ayala

Court of Appeals of Kentucky

October 18, 2019

REUF KECO APPELLANT
v.
MARIO AYALA APPELLEE

          APPEAL FROM WARREN CIRCUIT COURT HONORABLE JOHN R. GRISE, JUDGE ACTION NO. 14-CI-00879

          BRIEFS FOR APPELLANT: Matthew J. Baker Bowling Green, Kentucky

          BRIEF FOR APPELLEE: Christopher T. Davenport Brandon T. Murley Bowling Green, Kentucky

          BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND SPALDING, JUDGES.

          OPINION

          SPALDING, JUDGE:

         Reuf 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.

         Green 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.

         At 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.

         Both 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.

         Under 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 claimed.

         Further, 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.

         Two 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.

         Central to our decision in this case is the unambiguous language of CR[1] 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 ...

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