This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




William Schoen,



Ronald Olson, Individually and

doing business as Olson Auto Frame,


Filed March 30, 1999


Shumaker, Judge

Scott County District Court

File No. 9710836

LuAnn M. Petricka, LuAnn M. Petricka, P.A., 4100 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent)

R. Gordon Nesvig, Box 255, Cottage Grove, MN 55016 (for appellant)

Considered and decided by Toussaint, Chief Judge, Shumaker, Judge, and Foley, Judge.[*]



Appellant Ronald Olson challenges the trial court's denial of his alternative motions for judgment notwithstanding the verdict or a new trial, arguing that the jury's finding of unjust enrichment is not supported by the evidence, that unjust enrichment is not a jury issue, and that the jury instructions and respondent's final argument created reversible error. We affirm.


Respondent William Schoen worked in appellant's automobile frame-straightening shop from July 1995 to June 1996 when he quit because appellant refused to pay him.

It is undisputed that respondent initially agreed to work without pay because he wanted to learn the frame repair business. Respondent testified that he worked voluntarily for a short time and then appellant agreed to pay to him 50% of the labor costs for the items he worked on. Appellant testified that he never agreed to pay respondent and that respondent quit when appellant refused to sell the business to him.

Respondent sued for damages. Appellant demanded a jury trial. At the close of the evidence, the court instructed the jury on various legal theories, including unjust enrichment. Appellant did not object to the instructions. The jury found that the parties had no relationship as employer and employee or as principal and independent contractor, and that appellant had committed no fraud or misrepresentation in his dealings with respondent. The jury found, however, that appellant had been unjustly enriched as a result of respondent's work and the jury awarded damages. The trial court denied appellant's alternative motions for judgment notwithstanding the verdict or a new trial.



Appellant contends that the trial court committed an error of law when it submitted the issue of unjust enrichment to the jury. We review errors of law de novo. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

Appellant bases his contention on a footnote in Southtown Plumbing, Inc. v. Har-Ned Lumber Co., 493 N.W.2d 137, 140 n.1 (Minn. App. 1992). The footnote, stating that juries decide facts and courts determine equitable remedies such as unjust enrichment, is dictum and as such is not controlling. That case held that appellants were not entitled to an equitable remedy because they had an adequate remedy at law. Appellant cites no other authority for the proposition that only the court may properly determine unjust enrichment. We need not, however, decide the issue because appellant waived whatever right, if any, he might have had to a nonjury trial on this question.

The record shows that the trial court offered to hear the case without a jury. Appellant demanded a jury trial and he did not object to the submission of the unjust enrichment issue to the jury until posttrial proceedings. He cannot predicate error on the trial court's accession to his demand. See Renn v. Wendt, 185 Minn. 461, 464-65, 241 N.W.2d 581, 582 (1932) (if cause properly triable to court is tried to conclusion to jury without objection, and evidence is such that jury may determine the issues, error cannot be predicated on court's refusal to withdraw issue from jury.)


Appellant argues that once the jury found that he committed no fraud or misrepresentation in his business dealings with respondent, there was no legal basis for unjust enrichment. This argument raises both an issue of law, which we review de novo, and a question of the sufficiency of the evidence. Appellant preserved these issues in his motion for judgment notwithstanding the verdict or, in the alternative, a new trial.

In reviewing the denial of a motion for judgment notwithstanding the verdict, this court must affirm if the record contains "any competent evidence reasonably tending to sustain the verdict." Rettman v. City of Litchfield, 354 N.W.2d 426, 429 (Minn. 1984).

A motion for judgment notwithstanding the verdict admits every inference reasonably to be drawn from the evidence as well as the credibility of the testimony for the adverse party. Unless we are able to determine that the evidence is practically conclusive against the verdict, or that reasonable minds could reach but one conclusion against the verdict, the trial court's order denying the motion for judgment notwithstanding the verdict should stand.

Seidl v. Trollhaugen, Inc., 305 Minn. 506, 507, 232 N.W.2d 236, 239 (1975). Further, this court may not weigh evidence or judge credibility. Lamb v. Jordan, 333 N.W.2d 852, 855 (Minn. 1983).

Appellant alternatively argues that the trial court erred by denying his motion for a new trial.

On appeal from a denial of a motion for a new trial, the verdict must stand unless it is manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict.

ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992).

Appellant is correct that an action for unjust enrichment does not lie merely because a party has benefited from the efforts of another. But when the benefit is gained illegally or improperly, unjust enrichment provides a correct remedy. Holman v. CPT Corp., 457 N.W.2d 740, 745 (Minn. App. 1990). An unjust enrichment claim

may be founded upon a failure of consideration, fraud, or mistake, or "situations where it would be morally wrong for one party to enrich himself at the expense of another."

Id. (quoting Anderson v. Delisle, 352 N.W.2d 794, 796 (Minn. App. 1984), review denied (Minn. Nov. 8, 1984). Equitable relief is not available if the parties have a valid contract. United States Fire Ins. Co. v. Minnesota State Zoological Bd., 307 N.W.2d 490, 497 (Minn. 1981). If, however, the contract does not provide a full agreement concerning the details of compensation, a party may assert an unjust enrichment claim. Holman, 457 N.W.2d at 745.

Without objection, the trial court instructed the jury that

Unjust enrichment exists when a party gains a benefit from another party, and it would be morally wrong for one party to enrich itself at the expense of another.

The following elements support a claim for unjust enrichment:

1. Defendant knowingly received something of value from the plaintiff;

2. Defendant is not entitled to the benefit received; and

3. Circumstances exist that would make it unjust for the defendant to retain the benefit received without compensation to the plaintiff.

We first note that the instruction correctly states the law of unjust enrichment. Id. One version of the evidence presented at trial was that, although respondent started his work as a volunteer, he was told by appellant that he would be paid for future work. If the jury believed respondent's version, as it obviously did, then respondent was entitled to compensation in such amount as he was able to prove. Credibility issues are to be determined by the trier of fact. Lamb, 333 N.W.2d at 855.

Furthermore, the jury reasonably could have found that the parties' dealings lacked the certainty and specificity required for the formation of an enforceable contract. The trial court instructed the jury on the definition of contract:

For a contract to exist the parties must agree with reasonable certainty about the same thing, and on the same terms and at the same time. In other words, there must be an agreement between the parties as to all the essential terms and conditions of the contract.

The evidence reveals that the parties did not discuss the usual attributes of an employment contract, such as hours and conditions of work, job requirements, the manner and timing of compensation, and the like. One version of the evidence shows that the parties discussed only the amount of compensation respondent was to receive. Thus, the jury could properly have found that there was no definite contract but that respondent was morally entitled to be paid for his work. We hold that the trial court correctly instructed the jury on the law and that the evidence supports the verdict.


Appellant argues that he should have been granted a new trial because of the misleading and improper comments respondent's attorney made to the jury during closing arguments. Appellant fails to specifically state what comments are actually at issue and how they may have prejudiced him. Furthermore, appellant fails to offer any legal argument or cite any authority in support of his claim. Assignment of error in brief based on "mere assertion" and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection. State by Humphrey v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (quoting Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971)).

A new trial may be granted for prejudicial conduct or argument only to prevent a miscarriage of justice, and the trial court's decision will be reversed on appeal only for a clear abuse of discretion. Meagher v. Kavli, 256 Minn. 54, 62, 97 N.W.2d 370, 376 (1959).

Here, appellant failed to make objections to the alleged improper comments, failed to request curative instructions and failed to request a Schwartz hearing to ascertain whether the alleged conduct had a detrimental effect on jury deliberations. See Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 104 N.W.2d 301 (1960). If a party fails to request a Schwartz hearing after becoming aware of facts indicating potential misconduct, the issue will not be considered in a motion for a new trial or on appeal. See Zimmerman v. Witte Transp. Co., 259 N.W.2d 260, 262 (Minn. 1977).


[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.