the best situation to avoid the mistake should assume the loss, which in our case is Mr. Andrews.II.Arthur Andrews was unjustly enriched because benefitted from Defendant’s excavation of the lot, was aware of the benefit, and failed to compensate Defendant. The moving party must prove the following elements to recover under the theoryof unjust enrichment: (1) the plaintiff conferred a benefit on the defendant; (2) the 6
defendant had knowledge of the benefit; and (3) the defendant retained the benefit under circumstances where it would be unjust for him to retain that benefit without payment. Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 184 (1984). The unquestionable facts of our case support the conclusion that Arthur Andrews was unjustly enriched by the work performed by Defendant Mark Asher. Since there was a mutual mistake between the Defendant and Arthur Andrews, there was no meeting of the minds between the parties, and therefore, no valid agreement. Since there was no valid agreement, the Defendant is entitled to just restitution through the principles of unjust enrichment.The Defendant conveyed a benefit to Arthur Andrews by excavating half of the lot. Half of the area that Arthur Andrews wished to be excavated was already done, and therefore the price Arthur Andrews had to pay Henderson was lower than it would have been if the entire lot still needed to be excavated. Arthur Andrews also had knowledge that Defendant had excavated half of the lot. (See transcript of Arthur Andrew’s deposition, page. 16, 10-12.) Arthur Andrews agreed to pay Defendant $17,000 upon completion of the work. (Id. at exhibit E.) When completionof the job became impossible because of a mutual mistake between the parties, the Defendant sent a bill to Arthur Andrews for $8,500, representing the value of the work that had been completed. (See transcript of Mark Asher’s deposition, exhibit 10.) Defendant Mark Asher is a small business owner, and $8,500 is a significant amount of money to an individual attempting to maintain his own business. It wouldbe unjust to allow Arthur Andrews to retain the benefit of Defendant’s work without proper compensation.7
Prayer for ReliefSummary judgment should be granted against Arthur Andrews because a mutual mistake between the parties made completion of contract for the excavation work impossible, and the Defendant cannot be held liable. Summary judgment should also be granted on Defendant’s counterclaim of unjust enrichment because the Plaintiff received the benefit of the Defendant’s work, was aware of the benefit, and never compensated the Defendant.Dated: April 1, 2016 Respectfully submitted,Rod W Maldonado________________________________________Rod W MaldonadoAttorney for Defendant150 University of AkronAkron, OH 44325[email protected]Certificate of ServiceI certify that a true copy of this Defendant’s Interrogatories was served on:Andrew BylerBy certified mail, return receipt requested on, April 1, 2016._________________________________________Rod W Maldonado8
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- Fall '15
- Judgment, Summary judgment, B. Defendant Mark Asher