DIAMOND "S" DEVELOPMENT CORPORATION, APPELLANT,
v.
MERCANTILE BANK, A FLORIDA BANKING CORPORATION, APPELLEE; TIERRA HOLDINGS, LTD., APPELLANT, V. MERCANTILE BANK, A FLORIDA BANKING CORPORATION, APPELLEE
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[*697] PER CURIAM.
In these consolidated appeals, appellants seek review of final judgments entered against them for unjust enrichment. Florida courts have held that a plaintiff cannot pursue a quasi-contract claim for unjust enrichment if an express contract exists concerning the same subject matter. Ocean Commc’ns, Inc. v. Bubeck, 956 So. 2d 1222, 1225 (Fla. 4th DCA 2007); Kovtan v. Frederiksen, 449 So. 2d 1 (Fla. 2d DCA 1984). Accord Shands Teaching Hosp. & Clinics, Inc. v. Beech St. Corp., 899 So. 2d 1222, 1227 (Fla. 1st DCA 2005). We agree that appellee’s unjust enrichment claim was precluded by the existence of an express contract between the parties concerning the same subject matter. For the first time on appeal, appellee asserts that even if the unjust enrichment claim fails as a matter of law, the judgments for appellee should be affirmed under a “constructive trust theory of recovery.” However, a constructive trust is not a traditional cause of action, but an equitable remedy that must be based upon an established cause of action. Collinson v. Miller, 903 So. 2d 221, 228 (Fla. 2d DCA 2005). Because appellee cannot advance the theory of unjust enrichment for recovery, it has no constructive trust remedy. Accordingly, we reverse the judgments against appellants for unjust enrichment and remand with directions that the trial court enter judgments for appellants on that claim.
REVERSED and REMANDED with directions.
WEBSTER, VAN NORTWICK, and THOMAS, JJ., concur.
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Cited By (43 total)
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Marie-Laure Moynet v. Courtois, 8 So. 3d 377 (Fla. 3d DCA 2009)…ith regard to the count for unjust enrichment, where there is an express contract between the parties, claims arising out of that contractual relationship will not support a claim for unjust enrichment. See Diamond “S” Dev. Corp. v. Mercantile Bank, 989 So. 2d 696, 697 (Fla. 1st DCA 2008); Harding Realty, Inc. v. Turnberry Towers Corp., 436 So. 2d 983 (Fla. 3d DCA 1983). It is clear in this case that the Courtois, in exchange for any benefit conferred on Moynet, received exactly what they bargained for — Moy…
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F.H. Paschen v. B & B Site Dev., Inc., 311 So. 3d 39 (Fla. 4th DCA 2021)
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Tierra Holdings, Ltd v. Mercantile Bank, 78 So. 3d 558 (Fla. 1st DCA 2011)…osts. On appeal before this court, Tierra and Diamond challenged the award of damages on the unjust enrichment claim, arguing that the claim was precluded by the existence of an express contract. In Diamond ‘S” Development Corp. v. Mercantile Bank, 989 So. 2d 696 (Fla. 1st DCA 2008), this court agreed with Tierra that Mercantile could not pursue both a breach of contract claim and an unjust enrichment claim. There, we held that Mercantile’s “unjust enrichment claim was precluded by the existence of an expres…
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- Kovtan v. Frederiksen, 449 So. 2d 1 (Fla. 2d DCA 1984)
- Ocean Commc'ns, Inc. v. Bubeck, 956 So. 2d 1222 (Fla. 4th DCA 2007)
- Shands Teaching Hosp. & Clinics v. Beech St. Corp. & Unisys Corp., 899 So. 2d 1222 (Fla. 1st DCA 2005)
- Collinson v. Miller, 903 So. 2d 221 (Fla. 2d DCA 2005)
- Bradley v. State, 903 So. 2d 221 (Fla. 2d DCA 2005)