Reminder: Quantum Meruit and Breach of Construction Contract Don’t Mix

Map of the United States District Courts in Vi...

Map of the United States District Courts in Virginia (Photo credit: Wikipedia)

Construction contracts (preferably written ones) are near and dear to my heart here at Construction Law Musings. In a world where the contract is king, having a written construction agreement is a key component of any properly run construction project. However, even with the best construction contract there are claims (Murphy was an optimist after all).

When making these claims, we construction lawyers tend to plead both the breach of contract and quantum meruit (or in non lawyer speak- unjust enrichment) when drafting a complaint in a construction dispute. A recent case out of the Western District of Virginia federal district court reminds us all that these two counts must be plead alternatively because they simply cannot exist in a lawsuit from beginning to end.

In Suleyman Ciliv v. UXB Int’l Inc., the Virginia Court considered a motion to dismiss certain counts of a complaint by a subcontractor based upon breach of the written contract, unjust enrichment in the amount alleged to be owed to the subcontractor, and an alleged implied right of action due to the general contractor’s alleged violation of the Federal Acquisition Regulations (FAR). After determining that the subcontractor stated a cause of action for breach of contract and with a determination that there is no implied private right of action under the FAR, the Court stated:

The rule in Virginia is settled: One cannot obtain quantum meruit relief from another if he has expressly delineated the contractual obligations the two will have on the subject in question. However, it is only after a valid and binding express contract is acknowledged by the parties or the court that this rule attaches.

The Court further reasoned that the only reason for pleading the quantum meruit claim was to have a backstop in the unlikely instance that a Virginia court would find the written contract void or somehow invalid. Based upon this reasoning the unjust enrichment count was dismissed.

In short, don’t rely on unjust enrichment as anything aside from just such a backstop to what I hope is a solidly drafted written construction contract.

I would love to hear your thoughts on this or any other Musings so please comment below.

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6 Responses to Reminder: Quantum Meruit and Breach of Construction Contract Don’t Mix
  1. Rob Pitkin
    December 17, 2012 | 9:35 AM

    We have an interesting (non-construction) case presently on appeal in Kansas where the trial court found BOTH breach of contract and quantum meruit. That’s significant because there is a statute of frauds/statute of limitations defense that applies ot the breach of contract claim. So, on appeal, we are arguing that – like this case – the quantum meruit claim is barred as a matter of law, so that the Court of Appeals has no choice but to reverse the breach of contract claim based on the statute of frauds/statute of limitations.

  2. Christopher G. Hill
    December 17, 2012 | 9:40 AM

    Thanks for the comment Rob. I’ll be interested to hear how this turns out. The rule outlined here (i. e. no QM if a contract exists) makes sense in my mind because it fits with the general rule that parties only get one bite at the apple.

    Your case seems to go against this and I’d be interested to see how the court deals with it.
    Christopher G. Hill recently posted..Four Years of Musings! How Time Flies!My Profile

  3. Jeannette Darrow
    December 18, 2012 | 1:24 AM

    This sounds very similar to how things are handled in CA. In many complaints here, you will see a plaintiff plead breach of contract, open book account, account stated, and quantum merit, all in the alternative. I once had a defendant demur to a complaint pled that way, but the court agreed that as long as everything was pled in the alternative, all causes of action were permissible.

  4. Christopher G. Hill
    December 18, 2012 | 6:06 AM

    Thanks for checking in Jeanette. I
    appreciate the insight.

  5. Year End Construction “Musings” for 2012
    December 26, 2012 | 10:18 AM

    […] enlightening. This experience along with the various cases relating to mechanic’s liens, contracts and payment bonds made for a great 4th year at this little construction law […]

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About Musings

I am a construction lawyer in Richmond, Virginia, a LEED AP, and have been nominated by my peers to Virginia's Legal Elite in Construction Law on multiple occasions. I provide advice and assistance with mechanic's liens, contract review and consulting, occupational safety issues (VOSH and OSHA), and risk management for construction professionals.

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