This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2455

 

Office Information Systems, Inc.,
d/b/a 1 Tech Staffing,
Appellant,

vs.

Harriss Architects, Inc.,
Respondent.

 

Filed November 22, 2005

Affirmed

Stoneburner, Judge

 

Hennepin County District Court

File No. CT 0220800

 

S. Warren Gale, S. Warren Gale Law Office, P.A., 9716 Rich Road, Bloomington, MN 55437 (for appellant)

 

Harriss Architects, Inc., Suite 200, 331 Second Avenue North, Minneapolis, MN 55401 (respondent)

 

            Considered and decided by Lansing, Presiding Judge; Stoneburner, Judge; and Worke, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

On appeal from the district court’s decision after a bench trial, appellant argues that the district court erred in concluding that there was no enforceable agreement between the parties and that appellant did not establish its claim of unjust enrichment.  Because the record supports the district court’s decision, we affirm.

FACTS

 

            Appellant Office Information Systems, Inc., doing business as 1 Tech Staffing (1TS), is an executive-employee search firm engaged in the business of finding qualified candidates for employment with its clients.  Respondent, Harriss Architects, Inc. (Harriss), provides architectural services.[1] 

            Harriss advertised in the Minneapolis newspaper for a project-manager position.  A representative of 1TS telephoned Harriss about the vacancy and explained the services it could provide in locating viable candidates for the position.  1TS later e-mailed Harriss a document containing general information about 1TS’s services and a resume that 1TS said looked like a possible fit for Harriss’s vacant position.  1TS also asked Harriss to let it know if it could be of assistance.  1TS had obtained the resume through a resume-posting Internet site to which it had a subscription.  The resume contained the following statement in small print at the bottom of each page:

This resume is submitted in good faith, and we expect that it and the information contained thereon be held [sic] in confidence. Any contact with this candidate shall be considered to be as a result of this referral.  Should you hire, or contract directly or indirectly with a referred candidate you agree to pay [1TS] a placement fee of 25% of the candidate’s projected first year’s compensation.  Your retention of resume(s), copies thereof, or any information submitted to you by [1TS], constitutes your acceptance of these terms.

 

            Harriss and 1TS then engaged in a series of e-mail communications that resulted in 1TS setting up two interviews of the candidate despite the fact that Harriss and 1TS did not come to any agreement about 1TS’s fee.  Prior to setting up the second interview, 1TS knew that Harriss was unwilling to pay 1TS’s quoted rate.  1TS’s representative indicated that they could “work with the fee” so that it “works for [Harriss].” 

            Harriss eventually hired the candidate and informed 1TS that it would not be possible to pay its fee and hire the applicant, “as this priced his skills out of the market.”  Harriss offered to pay for the referral, but wrote that “your fees are way too high. Let’s work something out.”

            The candidate was hired at an annual salary of $48,000, which was later reduced to $36,000 when he was unable to do the work for which he was hired, resulting in an actual annual salary of $45,000.  The candidate was fired about a year after he was hired.  Shortly after the hiring, 1TS billed Harriss for $12,000, 25% of the candidate’s original annual salary.  When Harriss did not respond to the bill or 1TS’s contacts regarding the bill, 1TS’s CEO threatened to turn the matter over to its attorney.  Harriss’s president then responded by e-mail that Harriss was willing to work out an arrangement, but was unwilling to pay the original amount indicated, noting that Harriss had objected to the fee “from day one” and had been told that an alternative arrangement could be worked out.  In a telephone conversation with 1TS’s representative, Harriss opined that the referral was worth $2,500. 

            1TS sued Harriss for breach of contract and unjust enrichment.[2]  The matter was tried to the district court without a jury.  The district court found that there was no enforceable agreement between the parties concerning the fee Harriss would pay 1TS for its services and that 1TS did not establish its claim of unjust enrichment.  The district court noted that because Harriss always contemplated paying 1TS something for its services, an award could have been based on quantum meruit, but 1TS’s failure to introduce any evidence from which the district court could establish the fair value of 1TS’s services precluded such an award.  The district court dismissed 1TS’s claims.  This appeal followed.

D E C I S I O N

 

I.          Contract

            1TS asserts Harriss’s agreement to pay 1TS’s fee of $12,000 must be implied from the circumstances and acts of the parties. 

Whether a contract is to be implied in fact is usually a question to be determined by the trier of fact as an inference of facts to be drawn from the conduct and statements of the parties.

                                    . . . .

 

. . . [T]he existence of a contract . . . [and] the terms and construction of a contract are questions of fact to be determined by the factfinder.

 

Bergstedt, Wahlberg, Berquist Assocs., Inc. v. Rothchild, 302 Minn. 476, 479-80, 225 N.W.2d 261, 263 (1975) (citation omitted).  “A contract implied in fact is in all respects a true contract.  It requires a meeting of the minds the same as an express contract.”  Roberge v. Cambridge Coop. Creamery, 248 Minn. 184, 188, 79 N.W.2d 142, 145-46 (1956).  In actions tried to the district court, the district court’s findings of fact shall not be set aside unless clearly erroneous.  Minn. R. Civ. P. 52.01. 

            The district court found that 1TS provided information and services to Harriss knowing that there was no agreement about the fee, that 1TS knew that Harriss was unwilling to pay the 25% fee before scheduling the second interview, and that 1TS led Harriss to believe that negotiations regarding the fee were ongoing while continuing to provide services to Harriss.  The district court further found[3] that while Harriss clearly manifested a willingness to pay 1TS for its services, Harriss never agreed to pay the 25% fee proposed by 1TS.  The district court concluded that because the parties never reached an agreement on the amount of the fee, the parties did not enter into a binding contract for fees.  Because evidence in the record supports the district court’s findings and conclusions, we affirm dismissal of 1TS’s contract claim.

II.        Unjust enrichment

            To establish a claim for unjust enrichment, 1TS had to show that Harriss knowingly received something of value to which it was not entitled under circumstances that would make it unjust for Harriss to retain the benefit.  ServiceMaster of St. Cloud v. GAB Bus. Servs. Inc., 544 N.W.2d 302, 306 (Minn. 1996).  1TS had to show that Harriss was “unjustly enriched in the sense that the term ‘unjustly’ could mean illegally or unlawfully,” First Nat’l Bank of St. Paul v. Ramier, 311 N.W.2d 502, 504 (Minn. 1981), or that retention of the benefit was morally wrong.  Schumacher v. Schumacher, 627 N.W.2d 725, 729 (Minn. App. 2001). 

            The record supports the district court’s finding that 1TS failed to prove that Harriss intended to use its services without paying for them or acted illegally or unethically.  The record also supports the district court’s finding that Harriss was always willing to pay for the referral, but not at 1TS’s quoted rate.  Because the district court’s findings are not clearly erroneous, we affirm dismissal of 1TS’s unjust-enrichment claim.           

III.       Quantum meruit

            During the trial, the district court invited 1TS to submit evidence the value of its services so that the district court could consider an award under the doctrine of quantum meruit.  Despite this invitation, 1TS declined to produce evidence that would support quantum-meruit damages.  In posttrial briefing, 1TS did not argue unjust-enrichment or quantum-meruit damages and relied solely on its claim of an implied contract to pay the $12,000 fee.  On appeal, 1TS argues that because its fee is “average for the industry,” its price is fair and this court should award, or should remand to the district court with instructions to award, quantum-meruit damages of $11,250, which represents 25% of $45,000, the actual first-year salary paid.  In the alternative, 1TS argues it is entitled to an award of $2,500, the amount Harriss opined was the value of 1TS’s services.  Because these arguments were not presented to the district court, we decline to consider them.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (noting that an appellate court must generally consider only matters that were presented to and considered by the district court).  The district court did not err by concluding that 1TS did not establish quantum-meruit damages.

            Affirmed.