CARLOS MURGUIA, District Judge
I. Background
NOW ON the 2nd day of September, 2003, the above case came on for trial. Plaintiff appeared by its attorneys, Teresa A. Woody and Patrick J. Whalen; defendant appeared by its attorneys, Joseph G. Matye and Kevin Mason. The court previously entered judgment pursuant to a jury verdict in favor of plaintiff on plaintiff's claims of breach of contract and breach of contract of good faith and fair dealing claims, and against plaintiff on its promissory estoppel claim. Having heard the evidence and testimony and considered the statements, arguments, and submissions of counsel, the court makes its ruling on plaintiff's unjust enrichment claim. For the reasons set forth below, the court finds that plaintiff is not entitled to recover on its unjust enrichment claim.
Pursuant to Fed.R.Civ.P. 52(a), the court makes the following findings of fact and conclusions of law on plaintiff's unjust enrichment claim.
II. Findings of Fact
1. Plaintiff Britvic Soft Drinks, Ltd. is a United Kingdom corporation with its principal place of business in Essex, England
2. Defendant ACSIS Technologies, Inc. is a Georgia corporation with its principal place of business in Charlotte, North Carolina.
3. Defendant sells computer software applications to customers under a license arrangement.
4. A software key "unlocks" and enables a purchaser to use the software. Without a software key to the specific version of the software loaded on a purchaser's computer system, a
purchaser cannot use the software.
5. Defendant periodically made changes, enhancements, or other alterations to the Field Service 400 Software and released the enhanced software as a new version.
6. Plaintiff first and since has continuously used version 3.281 of the Field Service 400 Software ("the Software").
7. In the "packages" required for plaintiff's continued use of the Software, defendant included various extra items other than the software key, including source code.
8. Defendant insisted that its "package" be taken with all components.
9. In order to continue use of the Software, Britvic made payments in excess of $595,000.02 demanded by defendant.
10. Defendant received and retained the monies paid by plaintiff.
11. On September 8, 2003, the jury in this case returned its verdict on plaintiff's breach of contract and breach of covenant of good faith and fair dealing claims.
12. The jury found in favor of plaintiff on its claims of breach of contract and breach of the covenant of good faith and fair dealing and found against defendants on its affirmative defenses of accord and satisfaction and waiver.
13. On plaintiff's claim of promissory estoppel the jury found in favor of plaintiff but found in favor of defendant on defendant's affirmative defenses of accord and satisfaction and waiver.
14. On plaintiff's claim of misrepresentation the jury found against plaintiff and found in favor of defendant on its affirmative defense of waiver.
15. The jury awarded plaintiff damages in the amount of $595,000.02.
16. The same day, the court entered judgment on the jury's verdict.
III. Conclusions of Law
1. The court has jurisdiction over the parties and the subject matter of this action. Pretrial
Order Stipulation at § 3.1 and 3.2.
2. Venue is proper in the District of Kansas.
Id. at § 3.3.
3. To prevail on its claim of breach of contract, plaintiff must have established (a) the existence of a contract between the parties, (b) sufficient consideration to support the contract, (c) plaintiff's performance or willingness to perform in compliance with the contract, (d) defendant's breach of the agreement, and (e) damages to plaintiff. Pretrial Order, § 7.1(A).
4. In order to prevail on a claim of unjust enrichment, plaintiff must prove that a benefit was conferred upon defendant by plaintiff, that there was an appreciation or knowledge of the benefit by defendant, and that acceptance or retention by defendant of the benefits under the circumstances make it inequitable for defendant to retain the benefit. Pretrial Order at § 7.3A;
Haz-Mat Response v. Certified Waste Serv., 910 P.2d 839, 847 (Kan. 1996);
Kephart v. Data Systems International, Inc., 243 F. Supp.2d 1205, 1231 (D. Kan. 2003).
5. However, "where a person . . . breaks the contract, the other party either may sue upon his contract and recover so far as he has performed, as well as for loss of profits, or he may waive the contract, sue upon a quantum meruit and recover the value of his labor. But he cannot pursue both remedies."
Whan v. Smith,
285 P. 589, 591 (Kan. 1930). Quasi-contractual remedies, such as unjust enrichment, "are not to be created when an enforceable express contract regulates the relations of the partes with respect to the disputed issue."
Member Svcs. Life Ins. Co. v. Am. Nat. Bank and Trust Co., 130 F.3d 950, 957 (10
th Cir. 1997) (citing 1 JOSEPH M. PERILLO, CORBIN ON CONTRACTS § 1.20, at 64-65 (rev. ed. 1993)). Moreover, "courts applying Kansas law have concluded that quantum meruit and restitution are not available theories of recovery when a valid, written contract addressing the issue exists."
Fusion, Inc. v. Neb. Aluminum Castings, Inc., 934 F. Supp. 1270, 1275 (D. Kan. 1996); 66 Am. Jur. 2d
Restitution and Implied Contracts § 24 ("an express contract precludes the existence of a contract implied by law or a quasi-contract [and] an action for unjust enrichment cannot lie in the face of an express contract.").
6. As reflected in the jury's verdict finding in favor of plaintiff on its breach of contract claim, plaintiff established the existence of an express contract. Consequently, the equitable theory of unjust enrichment is unavailable to plaintiff.
IT IS THEREFORE ORDERED that judgment be entered in favor of defendant on plaintiff's unjust enrichment claim.
IT IS SO ORDERED.
This matter comes before the court on plaintiff's September 22, 2003, Motion to Alter or Amend this court's September 8, 2003 judgment (Doc. 148).
Plaintiff seeks prejudgment interest on its damages. Plaintiff claims that such an award is mandatory under Kan. Stat. Ann. § 16-201 which provides that "creditors shall be allowed to receive interest at the rate of ten percent per annum, when no other rate of interest is agreed upon, for any money after it becomes due." Id. Defendant opposes plaintiff's request for prejudgment interest on the grounds that the damages awarded to plaintiff by the jury are not liquidated.
"In Kansas, the general rule is that prejudgment interest is allowable on liquidated claims." Miller v. Botwin, 258 Kan. 108, 119, 899 P.2d 1004 (1995). "A claim becomes liquidated when both the amount due and the date on which such amount is due are fixed and certain or when the same become definitely ascertainable by mathematical calculation." Hamilton v. State Farm Fire Cas. Co., 263 Kan. 875, 883, 953 P.2d 1027 (1998). "However, the fact that a good-faith controversy exists as to whether the party is liable for the money does not preclude a grant of prejudgment interest." Varney Bus. Servs., Inc. v. Pottroff, 275 Kan. 20, 44, 59 P.3d 1003 (2002). Moreover, "liquidated damages do not become unliquidated simply because a counterclaim or setoff reduce the amount of the final award." Hatch Kirk Power Servs. Corp. v. City of Girard, No. 95-1155-DES, 1999 WL 99307, at *1 (D. Kan. Jan. 19, 1999).
In this case, the jury awarded plaintiff damages for the breach of contract, but less than what plaintiff claimed was the fixed amount of damages it was entitled to receive for the payments it made to defendant under the escrow agreement. The court does not believe the jury's reduction in the amount of damages plaintiff received for the breach of the contract was the result of a setoff or counterclaim. Rather, it appears the jury awarded plaintiff an amount of damages the jury believed plaintiff was entitled to for the breach of contract. "Because this amount could not have been determined until the jury had returned its verdict . . ., the damages were not liquidated." Id. at *2. Accordingly, plaintiff is not entitled to prejudgment interest as a matter of right under Kan. Stat. Ann. § 16-201.
However, a trial court may award prejudgment interest, at its discretion, even when the primary damages are not liquidated. See Koch v. Koch Indus., Inc., 996 F. Supp. 1273, 1280 (D. Kan. 1998); see also U.S. Indus., Inc. v. Touche Ross Col., 854 F.2d 1223, 1255 n. 43 (10th Cir. 1988); Royal College Shop, Inc., v. Northern Ins. Co. of N.Y., 895 F.2d 670, 675-76 (10th Cir. 1990) ; Lightcap v. Mobile Oil Corp., 221 Kan. 448, 562 P.2d 1 (1977). Prejudgment interest "compensates the injured party `for being deprived of the monetary value of his loss from the time of the loss to the payment of the judgment.'" Swift-Eckrich, Inc. v. Advantage Sys., Inc., 55 F. Supp. 2d 1280, 1289 (D. Kan. 1999) (quoting Touche Ross, 854 F.2d at 1256). The decision to award prejudgment interest involves a two-step analysis: first, whether the prejudgment interest would compensate the injured party; and second, whether equitable considerations would preclude the award. Id.
In this case, the jury determined that, by its conduct, defendant had breached its duty of good faith to plaintiff. During this lawsuit, plaintiff was denied the use of its moneys paid pursuant to the escrow agreement, and defendant had use of those moneys. Thus, having considered the equities, the court believes an award of prejudgment interest is appropriate to "fairly compensate the plaintiff for the delay in the receipt of the payment." United States ex rel. C.J. C., Inc. v. Western States Mechanical Contractors, Inc., 834 F.2d 1533, 1545 (10th Cir. 1987). Accordingly the court hereby awards plaintiff prejudgment interest in the amount of One Hundred Thirty-Five Thousand Four Hundred Sixty-Seven Dollars and 58/100 ($135,467.58). IT IS THEREFORE ORDERED that plaintiff's Motion to Alter or Amend (Doc. 148) is granted.
Plaintiff submitted with its Motion to Alter or Amend an interest calculation at 10% per annum, beginning on May 22, 2001, the date plaintiff filed its lawsuit, and ending on September 8, 2003, the date of the judgment. Plaintiff pro-rated a portion of the award based on the date it paid those moneys to defendant, June 16, 2001, which was after the lawsuit began. Plaintiff's calculation of the interest on the $595,000.02 judgment totals $135,467.58. The court finds plaintiff's calculation to be reasonable under Kansas law and thus adopts it for purposes of this Order.
IT IS FURTHER ORDERED that the court's September 8, 2003 judgment is amended to add the following award of prejudgment interest:
Plaintiff is entitled to and is hereby awarded One Hundred Thirty-Five Thousand Four Hundred Sixty-Seven Dollars and 58/100 ($135,467.58) as the amount of prejudgment interest due plaintiff on the original judgment awarded plaintiff by this court.
IT IS SO ORDERED.