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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE BRIAN FISSE, an individual, Appellant,

v. HEATHER M. GARVIE, an individual, Respondent. No. 70603-9-1

UNPUBLISHED OPINION FILED: March 9, 2015 Verellen, A.C.J. — Brian Fisse gave $100,000 to Heather Garvie to help her pay various debts. A jury determined Garvie was unjustly enriched inthe amount of 

### $50,000. Fisse contends his undisputed payment of$100,000 to Garvie requires an award ofthe full $100,000. But itwas withinthejury's discretion, based on all ofthe circumstances, to determine the extentto which Garvie was unjustly enriched. Substantial evidence supports thejury's verdict, and the trial court did not abuse its 

### discretion indenying Fisse's motions forjudgment as a matter of law including prejudgment interest, additur, and a new trial. We affirm.
FACTS 

### Fisse gave Garvie $100,000 to pay her credit card debt, her attorney's fees, and obligations to herex-husband following a divorce proceeding. Garvie did not repay Fisse. Fisse sued forbreach ofcontract and unjust enrichment.No. 70603-9-1/2
The trial court instructed thejury on unjust enrichment and the measure of damages: To prevail on a claim of unjust enrichment, Plaintiff Brian Fisse has the burden ofestablishing each ofthe following propositions: (1) That Defendant Heather Garvie received a benefit; (2) That Heather Garvie received the benefit at Brian Fisse's expense; and (3) That the circumstances make it unjustfor Heather Garvie 

### to retain the benefit withoutpaymentto BrianFisse.[1]
Ifyou find for Plaintiff Brian Fisse on the claim of unjust enrichment, then he is entitled to restitution, or the restoration ofany benefit conferred on Defendant Heather Garvie. This means that Brian Fisse is entitled to the reasonable value ofthe 

### funds provided to HeatherGarvie.[2] Thejury rejected Fisse's theory that the $100,000 paymentwas a loan to Garvie but entered a special verdictthat Garvie was unjustly enriched. Thejuryfilled 

### in$50,000 as the amount ofdamages. Fisse then soughtjudgmentas a matter of law for $100,000 plus prejudgment interest, additur, and a new trial. The trial court denied all of his posttrial motions. 

### Fisse appeals thejudgment limited to $50,000 and statutory costs.

1Clerk's Papers (CP) at45 (emphasis added). 

### 2CP at 48. Neither party objected to these instructions; therefore, we treat these instructions as the properly applicable law on appeal. Roberson v. Perez. 156 Wn.2d 33, 41, 123 P.3d 844 (2005); Guiiosa v. Wal-Mart Stores, Inc.. 144 Wn.2d 907, 917, 32 P.3d 250 (2001) ("Instructions to which no exceptions are taken become the law ofthe case.").No. 70603-9-1/3

ANALYSIS The core question presented is whether a fact finder must make an all-or

### nothing decision on unjust enrichment liability where money has been given to another person. Unjust enrichment allows recovery ofthe value of a benefit retained, 

### absent any contractual relationship, iffairness andjustice require it.3 That a 

### defendant has received a benefit from the plaintiffis insufficienttojustify recovery. "Liability onlyattaches where the circumstances of the benefit would make it unjust to retain it."4 

### "We review a trial court's denial of a CR 50 motion forjudgmentas a matter of law de novo," applying the same standard as the trial court.5 We must determine 

### whether substantial evidence supports thejury's verdict, viewingthe facts and all reasonable inferences inthe lightmostfavorable to the nonmoving party.6 When no legally sufficientevidentiary basis exists for a reasonablejury to find for a party on an issue, judgment as a matter of law is proper.7 

### 3Young v. Young, 164 Wn.2d 477, 484, 191 P.3d 1258 (2008); Bailie Commc'ns. Ltd. v. Trend Bus. Svs, Inc.. 61 Wn. App. 151, 160, 810 P.2d 12 (1991). 4Town Concrete Pipe ofWash., Inc. v. Redford. 43 Wn. App. 493, 499, 717 P.2d 1384 (1986); see also Chandlery. Wash. Toll Bridge Auth.. 17 Wn.2d 591, 601, 137 P.2d 97 (1943); Norcon Builders. LLC v. GMP Homes VG. LLC, 161 Wn. App. 474, 490, 254 P.3d 835 (2011); Davenport v. Wash. Educ. Ass'n. 147 Wn. App. 704, 728, 197 P.3d 686 (2008). 

### 5Gorman v. Pierce County. 176 Wn. App. 63, 74, 307 P.3d 795 (2013). 6Armantroutv. Carlson. 141 Wn. App. 716, 721-22, 170 P.3d 1218 (2007), reversed on other grounds. 166 Wn.2d 931, 214 P.3d 914 (2009). 

### 7CR 50(a)(1); Faustv. Albertson. 167 Wn.2d 531, 538, 222 P.3d 1208 (2009) ("Ajudgment as a matter of law requires the court to conclude, 'as a matter of law, that there is no substantial evidence or reasonable inferences to sustain a verdict for the nonmoving party.'" (quoting Indus. Indem. Co. ofthe Nw. v. Kallevig. 114Wn.2d 907, 915-16, 792 P.2d 520 (1990))).No. 70603-9-1/4


### Fisse's syllogism is: (1) Fisse gave Garvie $100,000; (2) thejury determined Garvie was unjustly enriched; and (3) therefore, Fisse's damages for unjust enrichment must be $100,000 as a matter of law. But he cites no authority for this all-or-nothing approach to damage awards in money payment, unjust enrichment
cases. The parties do not dispute Fisse gave Garvie $100,000, but itdoes not follow that Garvie was unjustly enriched for the full $100,000. The fact finder has the 

### discretion to decide the extentto whichthe "circumstances make itunjust"8 for Garvie to retain all or any portion ofthe money she received from Fisse. Contrary to Fisse's contention, the record provides substantial evidence to 

### supportthejury's verdict limited to $50,000. Among othercircumstances, testimony reflects that Garvie regularly cooked meals for Fisse, Fisse regularly stayed the night at Garvie's house, Fisse did not pay rent when he stayed at Garvie's house from time to time, and Fisse did not pay any of Garvie's household bills. Thejury could reasonably determine that, under all ofthe circumstances, itwas only unjustfor Garvie to retain a portion ofthe money she received from Fisse. Thejury could also reasonably determine, consistent with Garvie's theory at trial, that part ofthe $100,000 was intended as a giftand thus not subjectto restitution. Therefore, itwas withinthejury's province to determine that only $50,000 was unjustly retained by Garvie.Fisse cites Restatement (First) ofRestitution, arguing that when "the benefit received was money, the measure ofrecovery ... is the amount ofmoney

8 CP at 45.No. 70603-9-1/5 

### received."9 But that ruledoes not support recovery for the entire amount given to Garvie ifthejury determined the circumstances make itunjustto retain only part of 

### the payment.10 Therefore, because itwas the jury's role to weigh all of the circumstances to determine what amount Garvie was unjustly enriched, and because substantial evidence supports thejury's verdict, the trial court did not err in denying Fisse's motion forjudgment as a matter of law. Fisse challenges the trial court's denial ofprejudgment interest, arguing prejudgment interest should have been awarded. We disagree. 

### We review a denial ofprejudgment interestforabuse ofdiscretion.11 Prejudgment interest is recoverable for either liquidated claims or claims that are 

### ascertainable with certainty prior to the entry ofjudgment.12 A liquidated claimexists when "'the amount ofprejudgment interest can be determined from the evidence with

9Restatement (First) ofRestitution § 150 (1937). 10 Section 150 ofthe Restatement (First) ofRestitution "does not determine 

### the amountwhich a successful party is entitled to recover." ]d. § 150 cmt. a; see also CoastTrading Co. v. Parmac. Inc.. 21 Wn. App. 896, 902-03, 587 P.2d 1071 (1978) 

### (holding that, under an unjust enrichmenttheory, a portion of money that had been paid to anotherwas not unjustly retained); see generally McGrath v. Hilding. 41 N.Y.2d 625, 629-30, 363 N.E.2d 328 (1977) (holding that a theory ofunjust 

### enrichment based upon a woman's expenditure offunds to remodel her exhusband's home requires an analysis ofthe extentto which the enrichmentwas 

### unjust under all of the circumstances, including the woman's conduct); Schirmerv. Souza. 126 Conn. App. 759, 763, 12 A.3d 1048 (2011) ("With no othertestthan 

### what, under a given set ofcircumstances, isjust or unjust, equitable or inequitable,



### ... itbecomes necessary ... to examine the circumstances and the conductof the parties and apply this standard."). 11 Polygon Nw. Co. v. Am. Nat'l Fire Ins. Co., 143 Wn. App. 753, 790, 189 P.3d 777 (2008). 12 Bailie Commc'ns. Ltd.. 61 Wn. App. at 162.No. 70603-9-1/6


### exactness and without reliance on opinion or discretion.'"13 Damages "that cannot be 

### calculated without the use of discretion are not liquidated."14 The claim's original character—ratherthan the court's ultimate method for awarding damages— determines whether prejudgment interest is available.15 The trial court here properly denied prejudgment interest. Fisse's claim and resulting award were based upon the amountthat Garvie unjustly retained. The claim's original character gave thejury discretion to apply an equitable standard. Because thejury calculated damages using its discretion, Fisse's claim is neither 

### liquidated nor ascertainable with certainty prior to the entry of judgment.16 Fisse cites the Restatement (Third) ofRestitution and Unjust Enrichment, arguing liability in restitution for the payment of money normally includes prejudgment 

### interestfrom the date of payment.17 But "when the amount ofthe defendant's liability is liquidated only uponjudgment," as here, "prejudgment interest is more likely to be

13 Stevens v. Brink's Home Security, Inc., 162 Wn.2d 42, 50, 169 P.3d 473 (2007) (quoting Bostain v. Food Exp., Inc., 159 Wn.2d 700, 723, 153 P.3d 846 (2007)). 14 Dep't of Corr. v. Fluor Daniel. Inc., 160 Wn.2d 786, 789, 161 P.3d 372 (2007): Aker Verdal A/S v. Neil F. Lampson, Inc.. 65 Wn. App. 177, 191.828P.2d 

### 610 (1992) ("[W]hendetermining the measure ofdamages requires the exercise of discretion by the fact-finder, the claim is unliquidated."). 15 Irwin Concrete. Inc. v. Sun Coast Props., Inc., 33 Wn. App. 190, 200, 653 P.2d 1331 (1982). 

### 16 Eg^, Kiewit-Grice v. State. 77 Wn. App 867, 873, 895 P.2d 6 (1995) ("'[A] defendant should not be required to pay prejudgment interest in cases where he is unable to ascertain the amount owed." (quoting CKP. Inc. v. GRS Const. Co., 63 Wn. App. 601, 614, 721 P.2d 63 (1991))). 

### 17 Restatement (Third) ofRestitution and UnjustEnrichment § 53(4) (2011).No. 70603-9-1/7 

### denied."18 Because Fisse's claim was unliquidated and unascertainable priorto the entry ofjudgment, prejudgment interest was unavailable. Therefore, the trial court did not abuse its discretion indenying prejudgment interest. Fisse contends the trial court erred in denying his motions for a new trial and additur. We disagree. We review a denial ofa new trial or additur for abuse ofdiscretion.19 "Juries have considerable latitude in assessing damages, and a jury verdictwill not be lightly 

### overturned."20 "Wewill not disturb a jury award 'unless it is outside the range of substantial evidence, shocks the conscience ofthe court, orwas the result of passion


### orprejudice.'"21 We presume the amount ofdamages awarded by the jury's verdict
was correct.22 Butifthe record reflects the damages awarded by a jury verdict "were
so excessive or so inadequate as unmistakably to indicate that the amount ofthe verdict must have been the result of passion or prejudice," a new trial or additur may 

### be an appropriate remedy.23

18 Id § 53 cmt. e. 19 Locke v. City of Seattle. 162 Wn.2d 474, 486, 172 P.3d 705 (2007): Mutual of Enumclaw Ins. Co. v. Gregg Roofing. Inc.. 178 Wn. App. 702, 727, 315 P.3d 1143 (2013).20 Herriman v. May, 142 Wn. App. 226, 232, 174 P.3d 156 (2007). 

### 21 RWR Mgmt., Inc., 133 Wn. App. at 274 (quoting Stevens v. Gordon, 118 Wn. App. 43, 54, 74 P.3d 653 (2003)); see also Bunch v. KingCounty Dep't of Youth Servs.. 155Wn.2d165, 179, 116P.3d381 (2005): Herriman, 142 Wn. App. at 232 

### ("A trial court has no discretion to disturb a verdict withinthe range ofevidence."). 22 RCW 4.76.030; Bunch. 155 Wn.2d at 179 ("We strongly presume thejury's verdict is correct."). 23 RCW 4.76.030: Robinson v. Safeway Stores. Inc.. 113Wn.2d 154, 161,776 P.2d 676 (1989).No. 70603-9-1/8


### The trial court here did not abuse its discretion in denying Fisse's motions for a new trialand additur. As discussed above, although the parties do not dispute that 

### Fisse gave Garvie $100,000, Garvie testified that she regularly cooked meals for Fisse; Fisse regularly stayed at her house; Fisse did not pay rent when he stayed at her house; and Fisse did not pay any of her household bills. Thejury's verdict—that only $50,000 was unjustly retained—is well withinthe range ofevidence presented. No evidence inthe record suggests thatthejury's damages award is so inadequate
as to indicate itmust have been the result ofpassion or prejudice. Therefore, the trial court did not abuse its discretion in denying Fisse's motions for a new trial and additur. We affirm. 

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WE CONCUR:

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