Court of Appeals of Georgia.

WESTON et al.

v.

DUN TRANSPORTATION & Stringer, Inc. et al.

No. A10A0861.

 

April 21, 2010.

 

ELLINGTON, Judge.

 

After Thomas Weston’s wife, Janet, died in a vehicular accident, Weston brought this wrongful death action in the State Court of Glynn County against Yancey Brothers, Inc. (“Yancey”), Douglas Electrical and Plumbing Company (“Douglas”), Dewey Harper, Dun Transportation & Stringer, Inc. (“Dun”), and Dale Montes. After a hearing, the trial court granted the appellees’ motions for summary judgment. Weston appeals, contending material questions of fact remain that preclude summary judgment. For the reasons explained below, we affirm.

 

On a motion for summary judgment under OCGA § 9-11-56,

 

the defendant, as the moving party, may prevail by “piercing the plaintiff’s pleadings,” i.e., demonstrating that [the] plaintiff will be unable to prevail at trial, even when all doubts are resolved in favor of the plaintiff, because there is no issue of material fact as to at least one essential element of the plaintiff’s prima facie case.

 

(Citations omitted.) Garrett v. NationsBank, 228 Ga.App. 114, 115, 491 S.E.2d 158 (1997). In the alternative, the defendant may prevail

by presenting evidence which establishes a prima facie affirmative defense. In so doing, the defendant, as the moving party seeking summary judgment, may not rely on inferences from the evidence presented, because: (1) the defendant would have such burden of proof at trial; and (2) the allocation of favorable inferences between the parties is a jury question. Once the defendant satisfies its burden of proof by presenting evidence to support each element of the affirmative defense, the same burden of proof it would have at trial, the burden of production of evidence shifts to the plaintiff, who will survive summary judgment in the same fashion that she would survive a motion for directed verdict at trial, i.e., by presenting any evidence which creates a jury issue on an element of the affirmative defense. However, if the plaintiff is unable to meet this burden of production, the defendant is entitled to summary judgment as a matter of law.

 

(Citations omitted; emphasis in original.) Id. at 116, 491 S.E.2d 158.

 

Viewed in the light most favorable to Weston, the record shows the following undisputed facts. At about 10:00 a.m. on August 17, 2006, the decedent drove eastbound on Cut Off Road in Glynn County toward an intersection where Cut Off Road dead-ends into Georgia State Route 303 (“SR 303”). The decedent approached the stop sign for Cut Off Road traffic and then began a left-hand turn to go north on SR 303, which had the right of way. Her path required her to cross a southbound deceleration (right-turn) lane and a southbound through lane. A tractor-trailer traveling in the southbound through lane struck the decedent’s car broadside, killing her instantly.

 

At the time of the accident, a yellow Caterpillar front-end loader was parked westbound on Cut Off Road. The loader had stalled as Dewey Harper, driving in the course of his employment with Douglas, turned onto Cut Off Road from SR 303. The loader’s back end blocked SR 303’s southbound deceleration lane. For a driver who was traveling eastbound on Cut Off Road and stopped at the stop sign, the loader prevented the driver from seeing traffic approaching the intersection from the driver’s left, southbound on SR 303. Cut Off Road is straight and flat in that area; the loader was visible to drivers traveling eastbound on Cut Off Road for one quarter mile before reaching the stop sign. It is undisputed that the decedent could have reached her destination by reversing course, going westbound on Cut Off Road, and then taking Blythe Island Drive to reach northbound SR 303, or by turning right into the parking lot of a convenience store that is at the intersection of SR 303 and Cut Off Road, driving south across the parking lot, and then turning left onto SR 303 from a point where the stalled loader did not obstruct her view of southbound traffic.

 

At the time the decedent reached the stop sign, Dale Montes was driving a tractor-trailer southbound on SR 303 in the course of his employment with Dun. Although the speed limit on SR 303 was 55 m.p.h ., Montes approached the intersection well below that speed. Another driver, who was approximately one hundred yards behind the decedent on Cut Off Road, saw the decedent’s brake lights come on as she approached the stop sign. He saw her brake lights flash again, and then the decedent drove quickly into the intersection and into the path of Dun’s tractor-trailer. For purposes of summary judgment, we view this evidence in favor of Weston and his position that a jury could infer that the decedent came to a complete stop at the stop sign, realized that the loader obstructed her view of southbound traffic, slowly inched forward to get a better view, saw that the tractor-trailer was bearing down on her, and, believing that her car’s front end was too far into the southbound lane for the tractor-trailer to avoid, suddenly accelerated in hopes of getting out of its way.

 

Weston contends that the appellees negligently caused the wreck as follows. Yancey is a heavy equipment repair shop to which Douglas took the loader in early August 2006 for repair because the machine was shutting down during use. Yancey released the loader to Harper on the morning of the accident, August 17, 2006. Weston contends that a Yancey employee negligently failed to properly reassemble the loader’s fuel rack and that caused the loader to have a tendency to stall. Weston also contends that Yancey’s employees negligently failed to do field testing to determine whether the loader was safe to drive on the highway, yet represented to Harper that the loader was ready to return to service.

 

With regard to Harper and his employer, Douglas, Weston contends that Harper negligently continued to drive the loader after it had stalled once, before the intersection of SR 303 and Cut Off Road. In addition, Weston contends Harper negligently failed to direct traffic or to warn motorists, including the decedent, of the obstruction after the loader broke down.

 

With regard to Montes and his employer, Dun, Weston contends Montes negligently drove too fast for conditions, given the presence of the loader, and “recklessly tested a known danger,” that is, by not slowing enough to be able to stop if a driver blindly inched out from the stop sign on Cut Off Road into the intersection.

 

1. Weston contends that, even if the decedent’s negligence contributed to her death, there is evidence that each of the appellees was negligent and that only a jury can resolve the issue of the effect of the decedent’s negligence relative to the negligence of the appellees. In a related argument, Weston contends that, even if the decedent could have avoided the accident by exercising ordinary care, there is evidence that each of the appellees’ conduct was wilful or wanton, and, therefore, the decedent’s failure to exercise ordinary care does not bar Weston’s recovery.

 

Under Georgia’s doctrine of comparative negligence, where the negligence of the plaintiff joins with the negligence of the defendant in proximately causing the plaintiff’s injuries, the plaintiff will be precluded from recovering against the defendant, if the negligence of the plaintiff is equal to or greater than that of the defendant, or, if the negligence of the plaintiff is less than that of the defendant, the plaintiff’s recovery of damages will be reduced in proportion to his or her negligence.   Garrett v. NationsBank, 228 Ga.App. at 118, 491 S.E.2d 158. Under the doctrine of avoidable consequences, on the other hand, “[i]f the plaintiff by ordinary care could have avoided the consequences to himself [or herself] caused by the defendant’s negligence, [the plaintiff] is not entitled to recover.” OCGA § 51-11-7.

 

The plaintiff must exercise ordinary care for [her] own safety, and must by the same degree of care avoid the effect of the defendants’ negligence after it becomes apparent to [her] or in the exercise of ordinary care [she] should have learned of it. [The plaintiff] must make use of all [her] senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to [her].

 

(Citation and punctuation omitted.) Lowery’s Tavern v. Dudukovich, 234 Ga.App. 687, 690(3), 507 S.E.2d 851 (1998). Under this doctrine, the plaintiff’s negligence in failing to avoid the consequences of the defendant’s negligence is deemed the sole proximate cause of the injuries sustained and, therefore, is a complete bar to recovery, unless the defendant wilfully and wantonly inflicted the injuries. City of Winder v. Girone, 265 Ga. 723, 724(2), 462 S.E.2d 704 (1995); Garrett v. NationsBank, 228 Ga.App. at 117-118, 491 S.E.2d 158. As with other affirmative defenses, the defendant has the burden of proving, either at trial or summary judgment, that the plaintiff by ordinary care could have avoided the consequences to himself or herself caused by the defendant’s negligence. Garrett v. NationsBank, 228 Ga.App. at 116, 491 S.E.2d 158. Although the issue of whether the plaintiff exercised “due diligence for [her] own safety is ordinarily reserved for the jury, it may be summarily adjudicated where [the plaintiff’s] knowledge of the risk is clear and palpable.” (Citation omitted.) Lowery’s Tavern v. Dudukovich, 234 Ga.App. at 690(3), 507 S.E.2d 851.

 

In this case, the appellees identified record evidence supporting the affirmative defense of avoidable consequences under OCGA § 51-11-7. Specifically, the record shows that the decedent had negotiated the intersection of Cut Off Road and SR 303 multiple times over several years, that she understood that she was required to yield the right of way to any traffic on SR 303 when entering it from Cut Off Road, that she was aware that the traffic on SR 303, which often included logging trucks and other heavy vehicles, traveled at or above the posted speed limit of 55 m.p.h., and that, when she pulled up to the stop sign on August 17, 2006, she could see the loader and knew that it blocked her ability to see southbound traffic on SR 303. Weston failed to come forward with any evidence that the decedent lacked knowledge of the danger she faced. Despite her knowledge of the open and obvious risk, the decedent elected not to change course but to move forward far enough into the southbound through lane of the highway that she reached a point of no return, as Weston contends, and suffered the tragic consequences of her misjudgment. Even assuming that each of the appellees was negligent, and that their negligence combined to create the hazard that the decedent encountered that day, the evidence established as a matter of law that the decedent in the exercise of ordinary care could have avoided the consequences to herself caused by the appellees’ negligence. Accordingly, the doctrine of avoidable consequences bars Weston’s recovery unless the appellees wilfully and wantonly inflicted the decedent’s injuries. Lowery’s Tavern v. Dudukovich, 234 Ga.App. at 691(3), 507 S.E.2d 851; Garrett v. NationsBank, 228 Ga.App. at 118, 491 S.E.2d 158.

 

“Wilful conduct is based on an actual intention to do harm or inflict injury; wanton conduct is that which is so reckless or so charged with indifference to the consequences as to be the equivalent in spirit to actual intent.” (Citations and punctuation omitted.) Chrysler Corp. v. Batten, 264 Ga. 723, 726(3), 450 S.E.2d 208 (1994). The record in this case is devoid of any evidence from which a jury could find that any of the appellees acted with an actual intention to do harm or inflict injury. Further, although with the benefit of hindsight one can argue that each of the appellees each could have taken some action that would have reduced the likelihood of the accident that ended the decedent’s life, we conclude that, as a matter of law, Weston failed to identify any evidence from which a jury could find that the conduct of any appellee was so reckless or so charged with indifference to the consequences as to be the equivalent in spirit to actual intent.

 

Because the appellees carried their burden of presenting evidence to support the affirmative defense of avoidable consequences, and because Weston failed to come forward with evidence to show the existence of a disputed issue of material fact as to any element of the defense for jury decision, the trial court did not err in granting summary judgment in favor of the appellees.   Lowery’s Tavern v. Dudukovich, 234 Ga.App. at 691-692(3), 507 S.E.2d 851; Garrett v. NationsBank, 228 Ga.App. at 119, 491 S.E.2d 158; Zumbado v. Lincoln Property Co. ., 209 Ga.App. at 164(2), 433 S.E.2d 301(c).

 

2. Weston contends that Harper and another Douglas employee, James Barber, moved the loader a short distance before police officers arrived to investigate the accident, concealing the extent to which the loader blocked the deceleration lane at the time of the accident. In addition, Weston contends that Yancey employees Erskine Keller and Morris Freeman failed to make any written notes or computer entries regarding work they did on the loader after the accident. Weston contends that both of these acts constituted spoliation of evidence, giving rise to a presumption that the evidence would have established their negligence. In light of our holding in Division 1, supra, this argument is moot.

 

Judgment affirmed.

 

ANDREWS, P.J., and DOYLE, J., concur.

 

Weston also named as a party defendant Dun’s insurer, Liberty Mutual Insurance Company.

 

See also Newman v. Collins, 186 Ga.App. 595, 596(1)(a), 367 S.E.2d 866 (1988) (physical precedent only) (“One who recklessly tests an observed and clearly obvious peril is guilty of lack of ordinary care and is guilty of such negligence which will be deemed the proximate cause of his resulting injury, and, in the absence of wilful or wanton misconduct by the defendant, will preclude his recovery.”) (citations and punctuation omitted). See, generally, Charles R. Adams, Ga. Law of Torts, § 16-1 (2009-2010 ed.); Barbara J. Van Arsdale, Ga. Jurisprudence: Personal Injury and Torts, § 21.49 (updated February 2010).

 

Holcomb v. Norfolk Southern Railway, 295 Ga.App. 821, 824-825(1), 673 S.E.2d 268 (2009) (Because any ordinarily prudent person knows that walking across railroad tracks is subject to the dangers incident to the operation of trains on the track, and because the plaintiff failed to listen for a ringing bell or look for an approaching train until she stepped into the path of danger, the trial court properly granted the railroad’s motion for summary judgment.); Lowery’s Tavern v. Dudukovich, 234 Ga.App. at 690-692(3), 507 S.E.2d 851 (Because the risk of falling is a foreseeable consequence of walking down an unfamiliar alley, opening a service door at the side of an unknown building, and stepping into a pitch-black doorway, the trial court erred in denying the premises’ owners’ motion for summary judgment.); Garrett v. NationsBank, 228 Ga.App. at 119, 491 S.E.2d 158 (Because any reasonably intelligent and prudent person understands the risk of slipping when there is snow, ice, and water on pavement, and the plaintiff elected to run across the bank’s parking lot despite the conditions, the trial court properly granted the bank’s motion for summary judgment.); Zumbado v. Lincoln Property Co., 209 Ga.App. 163, 164(2)(c), 433 S.E.2d 301 (1993) (Where the plaintiff knew that she could not see oncoming traffic from one exit from a parking lot and knew that she could avoid the risk of using the blind exit by using another available route to reach her destination, the premises owner was entitled to summary judgment.).

 

Brazier v. Phoenix Group Management, 280 Ga.App. 67, 73-74(2), 633 S.E.2d 354 (2006) (A developer’s failure to erect a fence around a shallow lake during development of the property did not as a matter of law constitute wilful and wanton misconduct where county officials inspected the lake and concluded a local ordinance did not require a fence around it.); Trulove v. Jones, 271 Ga.App. 681, 682(1), 610 S.E.2d 649 (2005) (Where a visitor fell from an incomplete pool deck that lacked railings, the homeowner’s conduct was not as a matter of law wilful and wanton.).

 

See OCGA § 24-4-22 (“If a party has evidence in his power and within his reach by which he may repel a claim or charge against him but omits to produce it, or if he has more certain and satisfactory evidence in his power but relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim against him is well founded; but this presumption may be rebutted.”).

Court of Appeals of Arizona,

Division 1, Department E.

Brian and margaret LOISELLE, husband and wife, Plaintiffs/Appellees,

v.

COSAS MANAGEMENT GROUP, LLC, an Arizona limited liability company; Gene and Suzanne Lines, husband and wife, Defendants/Appellants.

No. 1 CA-CV 09-0251.

 

April 20, 2010.

 

OPINION

 

GEMMILL, Judge.

 

¶ 1 Appellants Cosas Management Group, LLC, (“CMG”) and Gene and Suzanne Lines appeal the trial court’s grant of summary judgment in favor of Appellees Brian and Margaret Loiselle. The trial court ordered CMG and the Lineses to pay restitution in the amount of $25,000 to the Loiselles, and it found that CMG and the Lineses were jointly and severally liable. We agree the Loiselles are entitled to summary judgment for $4,000 in restitution, but we determine there are fact questions whether they are entitled to further restitution and whether the Lineses may be jointly and severally liable with CMG. We therefore affirm in part, vacate in part, and remand for further proceedings.

 

FACTS AND PROCEDURAL HISTORY

 

¶ 2 We view the evidence in the light most favorable to the party against whom summary judgment was granted. Estate of Hernandez v. Flavio, 187 Ariz. 506, 509, 930 P.2d 1309, 1312 (1997).

 

¶ 3 Daniel Verderose was an employee at Brian Loiselle’s company. In January 2008, Verderose approached Loiselle with a proposition that Loiselle provide a short-term loan to CMG in the amount of $25,000. He told Loiselle that CMG had agreed to repay the loan, as well as a $10,000 loan fee, within one week. Verderose provided Loiselle with email correspondence, purportedly between Verderose and Gene Lines, the owner of CMG, in which Lines appeared to agree to the terms of the loan. Loiselle decided to make the loan, and on January 28 he issued a check for $25,000 to CMG and authorized its deposit into CMG’s bank account.

 

¶ 4 In fact, CMG and Verderose had not discussed CMG receiving a loan from Loiselle. The purported email correspondence between Verderose and Lines had been fabricated, and the email address from the correspondence-glcosas @yahoo.com-did not belong to Gene Lines or CMG. Verderose owed a large sum of money to CMG, and he had told Lines that any money Loiselle deposited into CMG’s account should be used to reduce the amount of his outstanding debt to CMG. The $25,000 deposit was applied by CMG to reduce Verderose’s debt. And, allegedly based on this payment, CMG allowed Verderose to borrow an additional $21,000 on February 6, 2008.

 

¶ 5 Verderose committed suicide later in February 2008. Following Verderose’s death, Loiselle sent a letter to CMG demanding repayment of what Loiselle believed was his loan to CMG. CMG responded that the $25,000 Loiselle deposited into its account had been a partial repayment of Verderose’s debt, and it asserted that it would not be returning any funds to Loiselle.

 

¶ 6 In May 2008, the Loiselles filed a complaint in superior court alleging the $25,000 payment to CMG constituted an unjust enrichment and should be repaid. They also asserted Gene Lines was the alter ego of CMG and should be personally liable for CMG’s acts. CMG and the Lineses filed a motion to dismiss the complaint, which the trial court treated as a motion for summary judgment, and the Loiselles cross-moved for summary judgment. CMG and the Lineses argued that Verderose, and not they, should be liable for the $25,000; and that, because CMG had loaned Verderose an additional $21,000 based on the $25,000 payment, it would be inequitable to require CMG to pay the entire $25,000 in restitution. They also argued the Loiselles had not shown any legal basis for holding the Lineses individually liable.

 

¶ 7 After oral argument, the trial court granted summary judgment in favor of the Loiselles and against CMG and the Lineses, explaining:

 

The court rejects Defendants’ contention that Plaintiffs’ remedy is against third part [y] Verderose, who, in effect, arranged the financial transaction in question. There is no indication in the record that Plaintiffs, at any time, in placing $25,000 directly into an account of Defendants, believed, should have believed, or had reason to believe that the monies placed in Defendants’ account were for the benefit of Verderose in any fashion.

 

The court also found CMG and the Lineses were jointly and severally liable. CMG and the Lineses timely appeal, and we have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-2101(B) (2003).

 

ANALYSIS

 

¶ 8 We review de novo the trial court’s grant of summary judgment and the court’s application of the law. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003). The availability of equitable relief and equitable defenses is also subject to our de novo review. See id. Fashioning an equitable remedy is within the trial court’s discretion, and it will not be disturbed on appeal absent an abuse thereof. See City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, 188, ¶ 55, 181 P.3d 219, 235 (App.2008); see also Marco C. v. Sean C., 218 Ariz. 216, 218 ¶ 4, 181 P.3d 1137, 1139 (App.2008) (“To soundly exercise its discretion, the court must also correctly apply the law .”). Summary judgment is proper only if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P .2d 100, 1008 (1990); Ariz. R. Civ. P. 56(c)(1).

 

Unjust Enrichment

 

¶ 9 The trial court found CMG and the Lineses (hereinafter collectively “CMG”) were unjustly enriched. “Unjust enrichment occurs when one party has and retains money or benefits that in justice and equity belong to another.”   Trustmark Ins. Co. v. Bank One, Arizona, NA, 202 Ariz. 535, 541, ¶ 31, 48 P.3d 485, 491 (App.2002). To recover on a claim for unjust enrichment, a claimant must show “(1) an enrichment, (2) an impoverishment, (3) a connection between the two, (4) the absence of justification for the enrichment and impoverishment and (5) the absence of any remedy at law.” Mousa v. Saba, 222 Ariz. 581, 588, ¶ 29, 218 P.3d 1038, 1045 (App.2009). “A person who has been unjustly enriched at the expense of another is required to make restitution to the other.” Harmon v. Harmon, 126 Ariz. 242, 245, 613 P.2d 1298, 1301 (App.1980).

 

¶ 10 CMG contends the trial court erred in granting summary judgment on the Loiselles’ unjust enrichment claim. It first argues that it was not enriched “unjustly” because it committed no tortious or wrongful act in receiving the money and it had no knowledge that Verderose had dealt fraudulently with the Loiselles. We disagree that these facts preclude the Loiselles from recovering on their unjust enrichment claim.

 

¶ 11 Generally, a person who bestows an unsolicited benefit upon another is not entitled to restitution. Western Coach Corp. v. Roscoe, 133 Ariz. 147, 154, 650 P.2d 449, 456 (1982); see also Restatement (First) of Restitution § 2 (1937) (hereinafter “Restatement”). However, a person may be entitled to restitution if the benefit was conferred through mistake or coercion. See Restatement § 2 cmt. a. A person who has conferred a benefit through mistake or coercion is not precluded from maintaining an action for restitution merely because the benefit was conferred due to his lack of care. Restatement § 59.

 

“In the absence of law to the contrary, Arizona generally follows the Restatement.” Hunnicutt Constr., Inc. v. Ste wart Title and Trust of Tucson Trust No. 3496, 187 Ariz. 301, 306 n. 6, 928 P.2d 725, 730 n. 6 (App.1996). The parties rely on various sections of the Restatement in their respective appellate briefs, and we rely on the Restatement throughout this opinion.

 

¶ 12 According to the Restatement, a person is entitled to restitution if he mistakenly believes he is party to a contract with another and makes payment to the other based on this mistake. See Restatement § 15. Similarly, the Restatement provides that a person who has paid money to another “because of a mistake of fact and who does not obtain what he expected in return is entitled to restitution from the other if the mistake was induced … by the fraud or material misrepresentation of a person purporting to act as the payee’s agent [.]” Restatement § 28.

 

¶ 13 Loiselle mistakenly believed he was a party to a contract with CMG, and he made payment to CMG based on this mistake. This mistake was induced by the misrepresentations of Verderose, who was “purporting to act as [CMG’s] agent.” Id. Under the above-referenced provisions of the Restatement, the Loiselles may be entitled to restitution even though CMG did not act tortiously or wrongfully in receiving the money and was unaware that Verderose had fraudulently induced Loiselle to deposit the money into CMG’s account.

 

We note that the Restatement also provides that creditors generally owe no duty to make restitution if another mistakenly pays the creditor for the debts of a third person. See Restatement § 14(1). However, “this is not so if the third person has procured the mistake,” Industrial Indem. Co. v. Truax Truck Line, Inc., 45 F.3d 986, 990 (5th Cir.1995), as has occurred here.

 

¶ 14 CMG also contends the Loiselles’ claim must fail because the Loiselles have an adequate remedy at law by way of a suit against Verderose’s estate. We agree that, to bring a successful unjust enrichment claim, a party must show “the absence of any remedy at law.” Mousa, 222 Ariz. at 588, ¶ 29, 218 P.3d at 1045. The legal remedy, however, must be against the same person from whom relief in equity is sought. See, e.g., Hill v. Hill, 345 P.2d 1015, 1025 (Kan.1959) (“The existence of a remedy at law does not deprive equity of jurisdiction unless such remedy is clear, adequate and complete. Such remedy at law … must exist against the same person from whom the relief in equity is sought.”); Mitchell v. Houstle, 142 A.2d 556, 560 (Md.1958) (“[T]he doctrine that equity will grant no relief when there is an adequate remedy at law is limited to cases in which there is an adequate legal remedy against the defendants that are before the court.”); Buttinghausen v. Rappeport, 24 A.2d 877, 880 (N.J. Ch.1942) (“[T]he legal remedy which may move equity to deny relief is a remedy against the same person from whom relief in equity is sought.”). The Loiselles have no adequate remedy at law against CMG.

 

¶ 15 CMG next asserts, as a defense to the Loiselles’ unjust enrichment claim, that there has been a “change of circumstances” so that it would be inequitable to require it to pay restitution. Specifically, it claims that, after receiving the $25,000 payment, it loaned an additional $21,000 to Verderose and that, “[h]ad [it] not received the $25,000 deposit, Verderose would not have been permitted to enter into another Promissory Note with [CMG].”

 

¶ 16 This argument is based on § 142 of the Restatement, entitled “Change of Circumstances,” which provides:

 

(1) The right of a person to restitution from another because of a benefit received is terminated or diminished if, after the receipt of the benefit, circumstances have so changed that it would be inequitable to require the other to make full restitution.

 

 

(2) Change of circumstances may be a defense or a partial defense if the conduct of the recipient was not tortious and he was no more at fault for his receipt, retention or dealing with the subject matter than was the claimant.

 

Under this Restatement section, “[a]ny change of circumstances which would cause or which would be likely thereafter to cause the recipient entire or partial loss if the claimant were to obtain full restitution, is such a change as prevents full restitution.” Id. cmt. b.

 

¶ 17 As the Restatement also points out, when the money received by mistake is used for the expenses of a business, there is generally no change of circumstances sufficient for the defense and restitution is required. Id. The defense may be applicable, however, if the business expenses were incurred “because of the receipt of the money and the amount of such payment was of such size that[,] considering the financial condition of the payee[,] it would be inequitable to require repayment.” Id.

 

¶ 18 Arizona appellate courts have applied Restatement of Restitution § 142 only once. In Capin v. S & H Packing Company, 130 Ariz. 441, 441, 636 P.2d 1223, 1223 (App.1981), S & H agreed to pay TVD, a trucking company, for each truckload of produce TVD delivered to Arizona from a farm in Mexico. Initially, TVD did not bill S & H for deliveries rejected at U.S. Customs that TVD returned to Mexico but, beginning with the 1978-1979 growing season, it began to do so. Id. When S & H’s president learned S & H had been billed for these returned loads, he deducted those amounts from TVD’s final invoice.   Id. at 442, 636 P.2d at 1224. TVD brought suit seeking payment for the full balance of its final invoice. Id. at 441, 636 P.2d at 1223.

 

Section 142 is mentioned in Maricopa County v. Cities and Towns of Avondale, 12 Ariz.App. 109, 113, 467 P.2d 949, 953 (1970), but is not applied in that case.

 

¶ 19 This court affirmed the trial court’s ruling in TVD’s favor. Citing § 142, we explained:

 

It is a firmly established general rule that money paid to another under the influence of a mistake in fact may be recovered, provided the payment has not caused such a change in the position of the payee that it would be unjust to require a refund. In order that there may be such a change of position as will defeat an action to recover the money paid by mistake, the change must be detrimental to the payee, material and irrevocable.

 

Capin, 130 Ariz. at 442, 636 P.2d at 1224 (quoting Jonklaas v. Silverman, 370 A.2d 1277, 1281 (1977)) (citations omitted). The court found TVD had relied in good faith on S & H’s payments, it would not have continued to haul the rejected produce if S & H had promptly objected or refused to pay, and S & H was therefore estopped under § 142 from claiming a credit for the payments. Id. These same principles must be considered here.

 

¶ 20 A Colorado case provides a factual situation more analogous to the facts in this case. In Commercial Factors of Denver v. Roche Constructors, Inc., 802 P.2d 1129, 1130 (Colo.Ct.App.1990), Roche was a general contractor. Roche’s subcontractor took a $45,317 loan from Commercial and assigned to Commercial, as security, its right to payment under its contract with Roche. Id. Roche was aware of the assignment and made an initial payment to Commercial of $23,909. Id. Commercial then loaned an additional $10,528 to the subcontractor. Id. Roche paid Commercial another $26,323, but when the subcontractor failed to perform under the contract with Roche, Roche ceased payments to Commercial. Id.

 

¶ 21 Roche apparently sought restitution from Commercial for the full amount of the payments it had made, $50,232. Id. The Colorado Court of Appeals found that Commercial, by making a further loan to the subcontractor, had changed its position and was not required to pay restitution for the amount of that further loan. Id. In evaluating whether a change of position precludes restitution, the court reasoned as follows:

 

The decisive factor here in determining whether a change of position precludes a reimbursement of payments received is whether [Commercial] retained the benefit of the payments or was left in a worse position than if payment had been refused originally by Roche. If [Commercial] changed its position because of Roche’s payments so that it no longer had possession of the money or was in a worse position than if Roche had refused to make that payment then the payee is exonerated from repayment, to the extent of such payment or payments.

 

Here, the position of [Commercial] was detrimentally changed by the $10,528 [ ] it paid out on the basis of the payments received from Roche. Thus, we conclude that Roche is entitled to reimbursement of $50,232 [ ], the total sum of the two payments, minus $10,528 [ ], the subsequent loan amount.

 

Id. at 1130-31 (citation omitted).

 

¶ 22 Like Commercial in the Colorado case, CMG may have changed its position based on the payment it received from Loiselle when it loaned Verderose an additional $21,000. The Loiselles, like Roche in the Colorado case, are entitled to at least $4,000 of reimbursement-the difference between the $25,000 payment from Loiselle and the $21,000 loan CMG provided Verderose. But there are questions of fact concerning whether the change of circumstances defense in § 142 is available to CMG and, if so, the extent to which the defense protects CMG from paying the remaining $21,000 in restitution.

 

¶ 23 Specifically, there are questions whether CMG was more at fault than the Loiselles for its receipt of the money, see supra ¶ 16; whether requiring CMG to pay restitution would cause CMG either entire or partial loss, see supra ¶¶ 16, 21; whether CMG provided Verderose the $21,000 loan because it had received the $25,000 payment, see supra ¶¶ 17, 21; and whether the amount of the additional loan was so large it would be inequitable to require CMG to pay full restitution, see supra ¶¶ 16-17. The trial court therefore erred in granting the Loiselles summary judgment on their entire unjust enrichment claim.

 

For CMG to successfully assert the change of circumstances defense, it must also show it has unsuccessfully attempted to recover this money from Verderose’s estate or that it would be futile to attempt recovery. See M.L. Cross, Annotation, What constitutes change of position by payee so as to preclude recovery of payment made under mistake, 40 A.L.R.2d 997 § 3(a) (1955); see also Capin, 130 Ariz. at 442, 636 P.2d at 1224 (stating change of position must be irrevocable). CMG need not necessarily suffer the expense of bringing a suit against Verderose’s estate, however. See 40 A.L.R.2d 997 § 3(a).

 

¶ 24 The Loiselles argue that, based on the comments to § 142, this defense should be unavailable to CMG. They cite the following portion of comment b: “Where money has been paid which the payee has used for the payment of debts incurred prior to its receipt, such payment of debts does not constitute a change of circumstances which would prevent restitution.” Restatement § 142 cmt. b. In such a situation, requiring the recipient to pay restitution is equitable because it does not cause the recipient any net loss but merely returns him to the status quo. See Federal Ins. Co. v. Smith, 144 F.Supp.2d 507, 524-25 (E.D.Va.2001); cf. Tyler v. Fireman’s Fund Ins. Co., 841 P.2d 538, 541-42 (Mont.1992) (“change of circumstances” defense unavailable where recipient used mistakenly-received insurance proceeds to pay business debts).

 

¶ 25 Without further factual development, however, we cannot determine if this principle is applicable here. CMG asserts that, because it received the $25,000 payment, it loaned an additional $21,000 to Verderose. If its assertion is true and if CMG cannot easily recover against Verderose’s estate, then an equitable determination must be made regarding whether CMG should be required to make full restitution to the Loiselles.

 

¶ 26 The Loiselles next assert the defense is unavailable here based on another portion of comment b to § 142, which provides:

 

Where because of fraud or a basic mistake of fact, money intended for the principal is paid to an unauthorized agent who does not bind his principal by the receipt of the money, the principal is nevertheless under a duty of restitution if, without his knowledge, he is thereby benefited either by having it deposited to his account or mingled with his money or by its use for the payment of his debts.

 

Restatement § 142 cmt. b. This portion of comment b does not apply here because the $25, 000 was not “paid to an unauthorized agent”-rather, Loiselle deposited the money into CMG’s account.

 

¶ 27 Additionally, that portion of the comment continues: “[T]he principal’s duty of restitution is terminated or is diminished pro tanto” if, before he becomes aware of the facts, the agent withdraws all or part of the money or the money is stolen. Restatement § 142 cmt. b. Verderose, by procuring an additional $21,000 loan from CMG, may be in a position analogous to an agent who withdraws or steals part of the money. Therefore, CMG’s duty of restitution may be terminated or diminished based on the change of circumstances defense as established in Restatement § 142.

 

¶ 28 Accordingly, we conclude that there are genuine issues of material fact to be resolved in determining if CMG has an equitable defense to the Loiselles’ restitution claim. We agree, however, that the Loiselles are entitled to at least $4,000 in restitution, and we affirm the trial court’s judgment in that amount. The Loiselles may be entitled to further restitution to the extent CMG is not protected by the equitable defense under § 142 of the Restatement. Upon making the factual determinations set forth above and any other relevant determinations, the trial court will have broad discretion to fashion a suitable equitable remedy. See City of Tucson v. Whiteco Metrocom, Inc., 194 Ariz. 390, 395, ¶ 19, 983 P.2d 759, 764 (App.1999) (“In actions for equitable relief, we defer to the trial cou rt’s discretion in fashioning the remedy.”); see also New England Mut. Life Ins. Co. v. Hastings, 733 F.Supp. 516, 519-20 (D. R.I.1990) (stating application of § 142 cannot be “mechanical or technical” but depends on unique facts of each case).

 

Joint and Several Liability

 

¶ 29 The trial court found CMG and the Lineses are jointly and severally liable for the $25,000 restitution. CMG and the Lineses challenge this ruling, arguing the Loiselles have not established any legal basis for disregarding CMG’s corporate entity and for holding the Lineses, CMG’s owners, individually and personally liable. We agree that summary judgment should not have been granted in the Loiselles’ favor on this issue.

 

¶ 30 “A basic axiom of corporate law is that a corporation will be treated as a separate entity unless there is sufficient reason to disregard the corporate form.” Standage v. Standage, 147 Ariz. 473, 475, 711 P.2d 612, 614 (App.1985). As a separate entity, the personal assets of a corporate officer may not normally be reached to satisfy corporate liabilities. Id. at 476, 711 P.2d at 615. A corporate entity will be disregarded, and the corporate veil pierced, only if there is sufficient evidence that 1) the corporation is the “alter ego or business conduit of a person,” Die tel v. Day, 16 Ariz.App. 206, 208, 492 P.2d 455, 457 (1972); and 2) disregarding the corporation’s separate legal status is “necessary to prevent injustice or fraud.” State v. Angelo, 166 Ariz. 24, 27, 800 P.2d 11, 14 (App.1990).

 

¶ 31 The parties to the transaction in this case were Loiselle and CMG. Loiselle issued a check to CMG, not to the Lineses, and the check was deposited into CMG’s account. The Loiselles have presented copies of a number of cancelled checks which may support an inference that CMG and the Lineses were disregarding the corporate entity of CMG. This evidence is insufficient, however, to support summary judgment in favor of the Loiselles to the effect that the Lineses are individually liable for the amount of any restitution that may eventually be awarded to the Loiselles. We therefore vacate this portion of the summary judgment in favor of the Loiselles and remand for further factual determination.

 

CONCLUSION

 

¶ 32 For the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of the Loiselles on their unjust enrichment claim for $4,000, but we vacate the order pertaining to the remaining $21,000 and remand for further proceedings. We also vacate the trial court’s order granting summary judgment in favor of the Loiselles on the issue of joint and several liability of the Lineses.

 

¶ 33 CMG and the Lineses have requested an award of attorneys’ fees incurred on appeal under A.R.S. § 12-341.01 (Supp.2009). Without deciding whether this statute is applicable, in the exercise of our discretion we decline to award attorneys’ fees to CMG and the Lineses. They are, however, entitled to taxable costs upon compliance with Arizona Rule of Civil Appellate Procedure 21.

 

CONCURRING: SHELDON H. WEISBERG, Presiding Judge, and PHILIP HALL, Judge.