IN THE SUPREME COURT, STATE OF WYOMING

2024 WY 68

 APRIL TERM, A.D. 2024

June 19, 2024

SUMMIT CONSTRUCTION,

Appellant

(Plaintiff),

v.

JAY KOONTZ and JENNIE L. KENNETTE,

Appellees

(Defendants).

S-23-0244

Appeal from the District Court of Washakie County

The Honorable Bill Simpson, Judge

Representing Summit Construction:

Christopher J. King, APEX Legal, P.C., Worland, Wyoming. 

Representing Jay Koontz:

M. Jalie Meinecke, Meinecke & Sitz, LLC, Cody, Wyoming. 

Representing Jennie L. Kennette:

Thomas P. Keegan, Keegan & Krisjansons, P.C., Cody, Wyoming. 

Before FOX, C.J., and KAUTZ,* BOOMGAARDEN, GRAY, and FENN, JJ.

* Justice Kautz retired from judicial office effective March 26, 2024, and, pursuant to Article 5, § 5 of the 

Wyoming Constitution and Wyo. Stat. Ann. § 5-1-106(f) (LexisNexis 2023), he was reassigned to act on 

this matter on March 27, 2024.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are 

requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of 

any typographical or other formal errors so that correction may be made before final publication in the 

permanent volume.
1

GRAY, Justice.

[¶1] Summit Construction (Summit) filed suit for breach of contract against Jay Koontz 

and Jennie L. Kennette or, in the alternative, unjust enrichment against Mr. Koontz. 

Summit’s claims were based upon nonpayment for work performed on Mr. Koontz’s home 

pursuant to an alleged oral agreement between the parties. After a bench trial, the district 

court rejected both claims. Relevant here, it determined Summit’s breach of contract claim 

failed because the parties did not have an enforceable oral contract and Summit did not 

sufficiently prove its damages with respect to its unjust enrichment claim. Summit appeals. 

We affirm.

ISSUES

[¶2] Summit presents two issues which we rephrase as:

1. Did the district court clearly err by finding Summit did not 

have an enforceable oral contract with either Mr. Koontz or 

Ms. Kennette?

2. Did the district court abuse its discretion by deciding 

Summit failed to sufficiently prove its damages with 

respect to its unjust enrichment claim?

FACTS

[¶3] In 2018, Mr. Koontz and his mother, Ms. Kennette, then in her eighties, discussed 

a plan for Ms. Kennette to move into Mr. Koontz’s Worland, Wyoming, home. To 

accommodate her move, they orally agreed Ms. Kennette would sell her home in Basin, 

Wyoming, to pay for an addition to Mr. Koontz’s home consisting of a bedroom, a

bathroom, and a three-car attached garage (collectively “addition”). 

[¶4] Mr. Koontz and Ms. Kennette met with Erik Smith, the owner of Summit, to discuss 

the potential for Summit to build the addition. Following this meeting, Mr. Smith provided 

a written bid for the addition totaling $161,460. The bid was directed to Mr. Koontz and 

stated, “[t]his is everything to build . . . to a finished building” and “[t]his is not a bid for 

doing the inside of the old part of [the] house. Only for the garage and Edition [sic] in back 

of house[.]” It also stated, “[n]eed 60% of payment before start of job.” In October 2018, 

Ms. Kennette made a down payment of $72,000 to Summit. 

[¶5] Summit performed limited work on the addition in December 2018 with the bulk of 

the work beginning in February 2019. Shortly after the work started, Summit discovered 

significant problems with the existing home’s structure, electrical system, and plumbing. 

Mr. Smith testified he notified Mr. Koontz and Ms. Kennette of the problems and they 
2

“both agreed that [work on the existing home] need[ed] to be done, take everything out, 

start over.” Mr. Smith suggested they “just do [a] time and materials” arrangement wherein 

Mr. Koontz and Ms. Kennette would reimburse Summit for the building materials it 

purchased for the project and pay Summit an hourly rate for the labor expended on the 

project. According to Mr. Smith, Mr. Koontz and Ms. Kennette orally agreed to a time and 

materials contract but no written documentation reflects this agreement. 

[¶6] Summit continued to work on the addition. It also performed extensive work on the 

existing home, including the removal of a carport to create a new front entry and a complete 

gutting of the kitchen and a bathroom. It constructed a vaulted ceiling in the living room, 

installed a new tankless water heater and an HVAC system, and removed interior walls 

replacing them with structural beams. It replaced floor joists and the sewer line. It redid 

the electrical and plumbing. 

[¶7] Ms. Kennette paid Summit $40,000 in March 2019 and $47,000 in April 2019.1

 In 

May 2019, Summit claimed $89,813.12 remained outstanding. In early June, when no 

further payments were made, Summit ceased working on the project, took out a loan to pay 

its subcontractors, and began charging Mr. Koontz and Ms. Kennette interest on the 

amounts it claimed were outstanding. Ms. Kennette made an additional payment of 

$41,000 in January 2020, leaving a balance on the amount Summit claimed was due of 

$48,813.12. In total, Ms. Kennette paid Summit $200,000. 

[¶8] When Summit left the project in June, the addition was not completed, and the 

original house was uninhabitable. Mr. Koontz’s expert estimated it would cost over 

$250,000 to complete the work on the home and render it habitable. 

[¶9] Summit sued Mr. Koontz and Ms. Kennette for breach of contract and Mr. Koontz 

for unjust enrichment. It claimed Mr. Koontz and Ms. Kennette owed it $56,443.81, which 

it calculated by adding interest to the outstanding balance of $48,813.12.2

 After a four-day 

1 As we will explain below, Summit submitted three invoices during the course of the project. Ms. Kennette 

testified she never received any of these invoices until after Summit ceased working on the project and 

claimed she made two payments in April 2019, only after Mr. Smith called her seeking money. She did 

not specifically designate her payments as applying to the addition and/or to the work on the existing home.

2 Summit originally sued both Mr. Koontz and Ms. Kennette for breach of contract and unjust enrichment 

and sought $56,443.81 in damages. In its written closing argument following the bench trial, Summit 

apparently increased the amount of relief it was requesting to more than $122,000 and did not seek judgment 

against Ms. Kennette. Summit’s written closing argument is not in the record, and the district court 

addressed Summit’s breach of contract claim against Ms. Kennette. Summit maintains on appeal that the 

district court erred by finding it did not have an enforceable oral contract with either Mr. Koontz or Ms. 

Kennette. Mr. Koontz filed a counterclaim for breach of contract against Summit and crossclaims for 

breach of contract and conversion against Ms. Kennette. Ms. Kennette did not raise any counterclaims in 

her answer but after the bench trial, she successfully amended her pleadings to include claims for breach of 

contract and overpayment against Summit. The district court rejected Mr. Koontz’s counterclaim and 

crossclaims and Ms. Kennette’s counterclaims and they are not before us. 
3

bench trial, the district court rejected Summit’s breach of contract claim. It found the 

parties did not enter into any written contract regarding the construction project, so 

Summit’s breach of contract claim turned on the existence of an oral agreement between 

the parties. The court determined Summit failed to show it had an enforceable oral contract 

with either Mr. Koontz or Ms. Kennette as the parties had not reached an agreement on 

sufficiently definite terms. It also rejected Summit’s unjust enrichment claim against Mr. 

Koontz because Summit had not clearly informed Mr. Koontz that he was responsible for 

payment and Summit had not clearly established its damages. Summit timely appealed. 

STANDARD OF REVIEW 

[¶10] The question of “[w]hether an oral contract exists is a question of fact to be 

determined by the trier of fact.” Meima v. Broemmel, 2005 WY 87, ¶ 58, 117 P.3d 429, 

448 (Wyo. 2005) (quoting Fowler v. Fowler, 933 P.2d 502, 504 (Wyo. 1997)). We apply 

the following standard when reviewing a district court’s factual findings after a bench trial:

The factual findings of a judge are not entitled to the limited 

review afforded a jury verdict. While the findings are 

presumptively correct, the appellate court may examine all of 

the properly admissible evidence in the record. Due regard is 

given to the opportunity of the trial judge to assess the 

credibility of the witnesses, and our review does not entail reweighing disputed evidence. Findings of fact will not be set 

aside unless they are clearly erroneous. A finding is clearly 

erroneous when, although there is evidence to support it, the 

reviewing court on the entire evidence is left with the definite 

and firm conviction that a mistake has been committed. In 

considering a trial court’s factual findings, we assume that the 

evidence of the prevailing party below is true and give that 

party every reasonable inference that can fairly and reasonably 

be drawn from it. We do not substitute ourselves for the trial 

court as a finder of facts; instead, we defer to those findings 

unless they are unsupported by the record or erroneous as a 

matter of law. . . . 

Testolin v. Thirty-One Bar Ranch Co., 2024 WY 6, ¶ 15, 541 P.3d 455, 460 (Wyo. 2024)

(quoting Lyman v. Childs, 2023 WY 16, ¶ 10, 524 P.3d 744, 751 (Wyo. 2023) (quoting 

Fuger v. Wagoner, 2020 WY 154, ¶ 8, 478 P.3d 176, 181 (Wyo. 2020))). 

[¶11] We review the district court’s unjust enrichment decision for an abuse of discretion. 

Elec. Wholesale Supply Co. v. Fraser, 2015 WY 105, ¶ 29, 356 P.3d 254, 261–62 (Wyo. 

2015) (citing Windsor Energy Grp., L.L.C. v. Noble Energy, Inc., 2014 WY 96, ¶ 23, 330 

P.3d 285, 291–92 (Wyo. 2014)). “A court abuses its discretion when it acts in a manner 
4

which exceeds the bounds of reason under the circumstances. . . . The ultimate issue for us 

to determine is whether the trial court could reasonably conclude as it did.” Circle C Res. 

v. Hassler, 2023 WY 54, ¶ 22, 530 P.3d 288, 295 (Wyo. 2023) (citations omitted). 

DISCUSSION 

I. Did the district court clearly err by finding Summit did not have an enforceable 

oral contract with either Mr. Koontz or Ms. Kennette? 

[¶12] To establish a breach of contract claim, the plaintiff must show, among other things, 

the existence of “a lawfully enforceable contract.” Kappes v. Rhodes, 2022 WY 82, ¶ 17, 

512 P.3d 31, 36 (Wyo. 2022) (quoting Halling v. Yovanovich, 2017 WY 28, ¶ 13, 391 P.3d 

611, 616–17 (Wyo. 2017)). The basic elements of a contract are “[a]n offer, acceptance, 

and consideration[.]” Bouwens v. Centrilift, 974 P.2d 941, 946 (Wyo. 1999) (quoting 

Miller v. Miller, 664 P.2d 39, 40 (Wyo. 1983)). See also Kappes, ¶ 18, 512 P.3d at 36 

(“The contracting process is usually straightforward. One party makes a manifestation of 

assent, called an offer, to another; the latter then makes a manifestation of assent, called an 

acceptance, to the former.” (citation omitted)). There must be mutual assent to the same 

terms and those terms must be sufficiently definite to allow a court to determine the extent 

of a promisor’s duties and whether there has been a breach. Bouwens, 974 P.2d at 946; 

Rialto Theatre, Inc. v. Commonwealth Theatres, Inc., 714 P.2d 328, 334 (Wyo. 1986). The 

same rules apply to oral contracts. “For an oral contract to exist, its essential terms must 

be defined with certainty.” Davidson-Eaton v. Iversen, 2022 WY 135, ¶ 44, 519 P.3d 626, 

640 (Wyo. 2022) (citing Fuger, ¶ 11, 478 P.3d at 181–82, and Fowler, 933 P.2d at 504). 

“Courts do not have the power to supply the terms of an agreement, so an oral agreement 

is unenforceable unless the contract terms are ‘so certain that the court can require the 

specific thing agreed upon to be done.’” Id. (quoting Fowler, 933 P.2d at 504, and citing 

Rialto, 714 P.2d at 334–35). 

[¶13] The district court found Summit failed to show it had an enforceable oral contract 

with either Mr. Koontz or Ms. Kennette because the parties did not mutually assent to 

sufficiently definite terms. It determined the project was one project rather than two 

separate projects and the project progressed without any clear understanding of how much 

work was to be performed, how it would be paid for, and who would be paying. It also 

found that “Mr. Smith, acting for Summit, was inconsistent in his identification of the 

project as a bid contract for the . . . addition, or as a time and materials project,” “did not 

know to what extent Mr. Koontz and Ms. Kennette may have agreed to share project 

costs[,] and could not testify specifically as to which of the defendants authorized all of the 

different parts of the work in the [existing home].” It further decided there was no 

agreement between the parties regarding labor costs, the amount of Summit’s markup on 

labor, building materials, and the work of its subcontractors, or that interest would be 

charged on unpaid balances. 
5

[¶14] Summit argues the district court clearly erred when it decided Summit did not have 

an enforceable oral contract with either Mr. Koontz or Ms. Kennette. It claims the court’s 

finding that the project was one project rather than two was contrary to the evidence which 

showed there were two distinct projects—the original bid for the addition and a time and 

materials contract for the work performed on the existing home. It also maintains the court 

erred by finding there was no enforceable oral contract between the parties because Mr. 

Smith was unclear as to whether he believed Ms. Kennette would pay for everything or 

whether she would share the costs with Mr. Koontz. According to Summit, this finding is 

contrary to the evidence and is irrelevant to whether it had an enforceable oral contract 

with either Mr. Koontz or Ms. Kennette. Finally, Summit argues “[i]nvoices were 

presented and invoices were paid. This was the establishment of the terms of the contract. 

The terms are clear and [Mr. Koontz and Ms. Kennette] violated the terms of the contract 

by not paying [on] the final invoices.” In the alternative, Summit argues that at a minimum 

there was agreement to the final invoice as the work on that invoice was performed, the 

work was accepted, and there was partial consideration for this invoice when Ms. Kennette 

paid $41,000 in January 2020. 

[¶15] The district court did not clearly err when it found Summit had failed to show the 

parties had an enforceable oral contract. The trial evidence demonstrated the parties did 

not have an enforceable oral contract because they had not mutually agreed to sufficiently 

definite terms. 

[¶16] The parties had no clear understanding as to whether the entire project was a time 

and materials contract or whether it was a bid contract for the addition and a time and 

materials contract for the work on the existing home. Mr. Smith testified that after meeting 

with Mr. Koontz and Ms. Kennette he provided them with a bid for the addition. This bid, 

which Mr. Smith later labeled as an invoice (Invoice 248), was for $161,460. Mr. Smith 

testified that within a week of beginning the construction of the addition, Summit 

discovered work needed to be performed on the existing home and Mr. Koontz and Ms. 

Kennette agreed to gut the entire home and proceed with a time and materials contract. 

According to Mr. Smith, all of Summit’s time and materials for the project were reflected 

on two invoices—Invoice 249 dated February 28, 2019, and Invoice 250 dated May 9, 

2019. This testimony was consistent with Summit’s representations during discovery, 

where its unwavering position was that the entire project—construction of the addition and 

the work on the existing home—proceeded on a time and materials contract. However, at 

trial, Ms. Kennette presented evidence showing that the total amount she paid on the project 

($200,000) exceeded the amount of time and materials reflected on Invoices 249 and 250. 

When confronted with this evidence, Summit, through Mr. Smith, claimed for the first time 

that the work on the addition was a bid contract and the work on the existing home was 

time and materials. 

[¶17] The parties did not have a definite agreement on the scope of the work to be 

performed or who was going to pay, particularly with respect to the work performed on the 
6

existing home. During discovery, Summit stated Ms. Kennette was going to pay for the 

addition and Mr. Koontz was going to pay for the renovations to the existing home. At 

trial, Mr. Smith testified he believed both Mr. Koontz and Ms. Kennette were responsible 

for the cost of construction and both knew about and expressly authorized the addition and 

the work on the existing home. Ms. Kennette claimed she only wanted and agreed to pay 

for the addition and “assumed” Mr. Koontz would pay for the remodel. She admitted, 

however, that it was her decision to put in an HVAC system, to pour concrete under the 

existing home, and to remove the carport and that she often supported Mr. Koontz by 

paying his monthly bills because “he didn’t have the money.” Mr. Koontz testified he did 

not authorize or agree to pay for the addition or the work on the existing home. He claimed 

he was unaware of the demolition and renovations occurring on the existing home because 

he lived in his camper in Meeteetse, Wyoming, during the week for work from mid-March 

to mid-May 2019, moved his camper to Douglas, Wyoming, for work in mid-May 2019, 

and did not return to his home until late fall 2019. Pictures of the project introduced into 

evidence and the testimony of Summit’s foreman and subcontractors contradict this 

testimony. The pictures show Mr. Koontz’s camper at his home on dates when demolition 

and remodeling of the existing home were occurring. They also show that work was 

occurring on the existing home in late February to mid-May 2019. During this time, Mr. 

Koontz was home from Meeteetse on the weekends and had not moved his camper to 

Douglas. Summit’s foreman and subcontractors testified they talked with Mr. Koontz 

about the demolition and remodeling of the existing home. They stated he knew about the 

work and even made specific requests including having the plumber order polished brass 

bathroom fixtures. The parties’ testimony, while conflicting, supports the district court’s 

finding that the “project progressed without any clear written or oral understanding of how 

much work was to be performed or how it was going to be paid for.” 

[¶18] The evidence also showed the parties had no mutual understanding concerning 

Summit’s price for labor, its markup on labor, materials, and subcontractor’s costs, or 

whether interest would be charged on late payments. Mr. Koontz’s expert testified it is 

standard practice for the parties to agree to the price a general contractor will charge for 

labor and to the markup percentage. The evidence showed Summit charged for labor, 

materials, and subcontractor costs and added a markup on these items. There was no

evidence that the parties had an agreement on the price Summit would charge for labor, 

and Mr. Smith admitted there was no agreement on Summit’s markup percentage. 

Similarly, although Mr. Smith testified it was “a common thing” to charge interest on 

amounts owed and he had the right under the law to charge interest, he admitted the parties 

did not have an agreement that interest would be charged for failure to pay. 

[¶19] Summit’s reliance on its invoices as “clear[ly]” defining the terms of the parties’ 

oral contract is unavailing. Summit submitted three invoices during the course of the 

project. The first invoice (Invoice 248) was Summit’s original bid for the addition which 

Mr. Smith converted to an invoice. The other two invoices (Invoices 249 and 250) itemized 

charges for materials, labor, plumbing, concrete, insulation, electrical, site work, 
7

excavation, HVAC, and skid steer time. None of these invoices reflect whether they were 

based on the bid or on time and materials. They do not identify the scope of work to be 

performed, who authorized the work, who would pay, the unit price for labor, the 

percentage of markup, the quantities of materials purchased, that interest would be charged 

if the bill was not paid, or the percent of interest to be charged. 

[¶20] Summit’s argument that Ms. Kennette’s payment on the final invoice represents an 

agreement between the parties with respect to that invoice is unpersuasive. The fact Ms. 

Kennette paid Summit $41,000 in January 2020 does not demonstrate an agreement by her 

or Mr. Koontz to the scope of the project, the cost of the project, or the specific charges. 

As we explained above, none of Summit’s invoices, including the final invoice, contain 

sufficiently definite terms by which a court could determine the promises made by the 

parties and whether any of those promises had been breached. 

[¶21] As the district court aptly found: 

The case is perhaps an example of what can happen when 

parties don’t appear to have a clear understanding of what they 

believe they agreed to, had no definitive agreement of the 

overall work to be performed, or a mutual understanding of 

such terms as a “bid” or a “firm bid” in the construction trade, 

if there was any such bid. 

The district court did not clearly err by finding the parties had failed to create an 

enforceable oral contract. 

II. Did the district court abuse its discretion by deciding Summit failed to sufficiently 

prove its damages with respect to its unjust enrichment claim? 

[¶22] Unjust enrichment (or quantum meruit) is an equitable remedy 

which implies a contract so that one party may recover 

damages from another. One seeking damages based on unjust 

enrichment must prove four elements: 

(1) Valuable services were rendered, or materials 

furnished, 

(2) to the party to be charged,

(3) which services or materials were accepted, used and 

enjoyed by the party, and, 
8

(4) under such circumstances which reasonably notified the 

party to be charged that the plaintiff, in rendering such services 

or furnishing such materials, expected to be paid by the party 

to be charged. Without such payment, the party would be 

unjustly enriched. 

Elec. Wholesale Supply, ¶ 27, 356 P.3d at 261 (quoting Bowles v. Sunrise Home Ctr., Inc., 

847 P.2d 1002, 1004 (Wyo. 1993)). In addition to establishing the above elements, the 

plaintiff must prove its damages. Redland v. Redland, 2012 WY 148, ¶¶ 153–154, 288 

P.3d 1173, 1207–08 (Wyo. 2012). See also Gill v. Lockhart, 2022 WY 87, ¶ 34, 512 P.3d 

971, 981 (Wyo. 2022) (plaintiff bears the burden of proving his damages (citing Mantle v. 

N. Star Energy & Constr. LLC, 2019 WY 29, ¶ 78, 437 P.3d 758, 786 (Wyo. 2019))). 

[¶23] The district court found Summit satisfied the first three elements of its unjust 

enrichment claim—Summit provided valuable services and materials in renovating Mr. 

Koontz’s home even though the home was not finished. It concluded, however, that 

Summit’s claim failed under the fourth element because there was no evidence that Summit 

ever told Mr. Koontz, either when the project started or during construction, that it intended 

him to pay for the work. The district court also decided Summit failed to prove the amount 

by which Mr. Koontz was unjustly enriched, i.e., its damages. It found Summit’s invoices 

were not detailed, were unsupported by receipts showing the materials utilized, and did not 

meet industry standards for explaining to a client what work was completed and how the 

cost figures were reached. It also found Summit’s business check register did not show 

how the amounts paid out on the project were consistent with what Mr. Smith testified was 

owed. In sum, the court decided: 

Unjust enrichment is an equitable remedy. In this case, 

considering the circumstances the parties are left in, the Court 

cannot find it equitable to award Summit damages. Ms. 

Kennette has paid $200,000 into a home for which she will 

receive no benefit, at least as things stand the way they are 

currently. Mr. Koontz is left with a home that is unfinished, 

though, as stated, he is not without fault. He was aware of the 

state of construction as it progressed. Summit claims to be 

owed money but has not shown how it clearly informed Mr. 

Koontz that he was responsible for payment and has not 

provided a sufficiently detailed showing that awarding it 

damages provides an equitable rendering under the 

circumstances. 

[¶24] Summit argues the district court erred by determining it had not satisfied the fourth 

element of its unjust enrichment claim. It maintains it is immaterial that Summit was never 

clear on whether Ms. Kennette or Mr. Koontz was supposed to pay for the work as that 
9

issue was between mother and son. According to Summit, it is only relevant that it 

performed the work on Mr. Koontz’s home, he was aware of the work, and no one told 

Summit not to perform the work. Summit argues its subcontractors interacted with Mr. 

Koontz and he directed their work and ordered parts through them. According to Summit, 

its subcontractors expected to be paid and Summit paid them on Mr. Koontz’s behalf. 

Summit argues by denying its unjust enrichment claim, the district court “basically [gave 

Mr.] Koontz an entirely updated and upgraded remodeled house[.]” 

[¶25] Summit’s argument is limited to the elements of an unjust enrichment claim. We 

need not decide, however, whether Summit established those elements because we cannot 

find that the district court abused its discretion when it concluded Summit had failed to 

prove its damages. 

[¶26] In general, “a plaintiff has the burden of producing evidence to prove his damages 

to a reasonable degree of certainty.” Gill, ¶ 34, 512 P.3d at 981 (citing Mantle, ¶ 78, 437 

P.3d at 786). “A court may not resort to speculation or conjecture in determining the proper 

amount to award.” Gill, ¶ 39, 512 P.3d at 982 (quoting Mantle, ¶ 78, 437 P.3d at 786). 

Generally, in an action for restitution for work, labor, 

services, or materials on an implied contract or in quantum 

meruit, the plaintiff must prove the value thereof in order to be 

entitled to recover. The proper measure of recovery is limited 

to the value of the actual benefit received and retained by the 

defendant as a result of plaintiff’s part performance. 

43 Am. Jur. POF 2d Recovery for Part Performance of Contract § 9, at 546 (1985). See 

also Gignilliat v. Gignilliat, Savitz & Bettis, L.L.P., 684 S.E.2d 756, 764 (S.C. 2009) 

(“quantum meruit requires a showing of actual damages resulting from the wrongful 

retention of benefits (goods or services) by the defendant”); Gillette v. Storm Circle Ranch, 

619 P.2d 1116, 1120 (Idaho 1980) (“Although damages need not be proven with 

mathematical precision, the damages, i.e., the value of any benefit unjustly received by the 

defendant in an action based upon unjust enrichment, must be proven to a reasonable 

certainty.”). 

[¶27] After review of the record, we find the district court reasonably concluded that 

Summit failed to establish its damages to a reasonable degree of certainty. The checks and 

debits associated with the project from Summit’s business bank account were substantially 

less than the charges shown on Summit’s invoices and substantially less than the amount 

Ms. Kennette paid Summit. While the district court found the difference is likely explained 

by the amount of Summit’s markup and the evidence showed it is standard practice for a 

general contractor to markup on labor and materials, Mr. Smith did not testify to the 

percentage of Summit’s markup but rather stated it varied depending on the amount of 

work Summit performed. Likewise, Summit’s invoices were not sufficiently detailed to 
10

determine the work performed, the amount of materials purchased, the hourly rate Summit 

charged for labor, or the percentage of its markup on labor and materials. We agree with 

the district court’s summation of the issue and its conclusion: “When a party alleges lack 

of payment under an unjust enrichment claim, that party must be able to convince a court 

that the amounts someone is unjustly enriched are clearly identified. Summit’s paperwork 

and the related testimony [did] not meet that standard.” 

CONCLUSION 

[¶28] The district court did not clearly err by finding the parties did not have an 

enforceable oral contract and did not abuse its discretion by deciding Summit had failed to 

adequately prove its damages with respect to its unjust enrichment claim. The district 

court’s decision is affirmed.