                NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                       MOTION AND, IF FILED, DETERMINED


                                               IN THE DISTRICT COURT OF APPEAL
                                               OF FLORIDA
                                               SECOND DISTRICT



KENF, L.L.C.,                                  )
                                               )
              Appellant,                       )
                                               )
v.                                             )        Case No. 2D18-2804
                                               )
JABEZ RESTORATIONS, INC., a                    )
Florida corporation, d/b/a SERVPRO             )
OF BRADENTON,                                  )
                                               )
              Appellee.                        )
                                               )

Opinion filed February 27, 2019

Appeal from the Circuit Court for Manatee
County; Gilbert A. Smith Jr., Judge.

Charles V. Barrett III, Tampa; and
Frederick W. Vollrath, Tampa, for Appellant.

John P. Fleck, Jr., Bradenton, for Appellee.


VILLANTI, Judge.


              KENF, L.L.C., seeks review of the final judgment entered in favor of Jabez

Restorations, Inc., d/b/a ServPro of Bradenton, in this action arising out of an unpaid bill

for services. Because we agree with KENF that the amount of damages awarded in the

final judgment was not supported by the evidence presented at the bench trial, we
reverse the damages award and remand for entry of an amended final judgment. In all

other respects, we affirm.

             KENF is the owner of an apartment complex in Bradenton. In early June

2016, a fire broke out in one of the apartments, which caused the fire sprinkler system

to activate and resulted in water damage to three apartments. About a week later,

KENF asked Jabez to inspect the damaged units and prepare an estimate to remediate

and repair them. Based on its initial inspection, Jabez determined that fans and

dehumidifiers would be sufficient to dry out the apartments, after which certain repairs

would be undertaken, and Jabez provided KENF with an estimate for this work.

             KENF's local maintenance manager authorized Jabez to go forward with

the work to dry out the apartments; however, before Jabez could actually begin the

work, KENF required Jabez to submit a vendor packet to its home office to become

"approved." Once KENF approved Jabez as a vendor—approximately one week after

the initial inspection—Jabez returned to the damaged apartments and discovered that

the delay in any dry-out and remediation work had resulted in mold growth in the

apartments. Jabez installed dehumidifiers to start drying out the apartments and, with

authorization from KENF's maintenance manager, called a mold assessor to inspect the

apartments and provide a revised scope and cost for full repairs.

             While waiting for the mold assessor's report, Jabez continued to run the

dehumidifiers in the water-damaged apartments, checking on them periodically. When

the mold assessor's report was completed, Jabez forwarded it to KENF along with a

revised scope of work necessary to repair the mold damage in addition to the original

water damage. KENF rejected this proposal but requested that Jabez leave the




                                           -2-
dehumidifiers in place and running until a new contractor could get its vendor packet

approved and begin work. Jabez agreed to do so. Once KENF advised Jabez that the

new contractor was on site and that Jabez could remove its equipment, Jabez did so

the same day.

              Jabez then invoiced KENF $17,437.19 for the use of the dehumidifiers for

the entire time that they were in place at KENF's request and the cost of the mold

assessor's report. When KENF balked at paying the invoice, Jabez agreed to reduce

the cost of the equipment by $2000, bringing the invoice total down to $15,557.75.

Despite this concession, KENF refused to pay any part of the invoice.

              Jabez subsequently sued KENF to recover the amount of its invoice.

While the complaint is not a model pleading, it does allege that Jabez provided services

to KENF with KENF's approval, that KENF accepted the benefit of the services, and that

the value of KENF's property was enriched by the services provided by Jabez. Jabez

specifically alleged in the complaint that KENF owed it $15,557.75 for its services. In its

answer, KENF denied that it had any contract with Jabez and denied that it had

received any benefit from the work Jabez performed.

              At the conclusion of the bench trial of this matter, the trial court found in

favor of Jabez, and it awarded Jabez $17,437.19—the amount of the original invoice

before Jabez voluntarily reduced it—on the claim for unjust enrichment. KENF now

appeals this final judgment.

              KENF's primary argument on appeal is that the trial court erred in entering

final judgment in favor of Jabez because the evidence presented at the bench trial was




                                            -3-
legally insufficient to prove a claim for unjust enrichment.1 While we disagree with

KENF's position as to its liability for unjust enrichment damages, we agree that the

amount of damages awarded was improper.

              "An action for 'unjust enrichment' exists to prevent the wrongful retention

of a benefit, or the retention of money or property of another, in violation of good

conscience and fundamental principles of justice or equity." Henry M. Butler, Inc. v.

Trizec Props., Inc., 524 So. 2d 710, 711 (Fla. 2d DCA 1988). The elements of such a

claim are: "(1) a benefit conferred upon a defendant by the plaintiff, (2) the defendant's

appreciation of the benefit, and (3) the defendant's acceptance and retention of the

benefit under circumstances that make it inequitable for him to retain it without paying

the value thereof." Rollins, Inc. v. Butland, 951 So. 2d 860, 876 (Fla. 2d DCA 2006).

Essentially, the doctrine operates to imply a contract where none otherwise exists so as

to ensure equity between the parties. See 14th & Heinberg, LLC v. Terhaar & Cronley

Gen. Contractors, Inc., 43 So. 3d 877, 880 (Fla. 1st DCA 2010).

              In this case, the evidence presented at the bench trial established that

Jabez conferred a benefit on KENF in that it ran dehumidification equipment in the

damaged apartments to help prevent further water and mold damage from the date

KENF approved Jabez to do the work until the date KENF requested that the equipment



              1KENF    also argued that the trial court erred by entering final judgment in
favor of Jabez based on unjust enrichment when such a claim was not properly pleaded
in the complaint. We reject this argument without further discussion. In addition, KENF
argued that the trial court abused its discretion when it sanctioned KENF for failing to
timely file a witness and exhibit list by excluding KENF's witnesses and exhibits at the
bench trial. Because KENF did not provide this court with a transcript of the hearing
that resulted in these sanctions, we have no record basis upon which to conclude that
the trial court abused its discretion. See Applegate v. Barnett Bank of Tallahassee, 377
So. 2d 1150, 1152 (Fla. 1979). Hence, we affirm that ruling as well.


                                            -4-
be removed. It is clear from the evidence that KENF asked for this work to be done,

and it accepted the benefit of this work. Any doubt concerning whether the equipment

conferred a benefit and whether KENF recognized and accepted that benefit was

eliminated by the evidence of KENF's request that Jabez leave the dehumidifiers in

place and running while KENF was waiting for the other contractor to be approved to

start work. At a minimum, this evidence suggested that KENF recognized that the

equipment was performing a function and doing so properly. In light of this, it would be

inequitable to permit KENF to reap the benefit of the dehumidification of the apartments

without paying the value of that benefit to Jabez. Hence, the totality of the evidence

supports the trial court's conclusion that Jabez proved its claim for unjust enrichment.

              In support of its argument for reversal, KENF contends that the existence

of any benefit was speculative because Jabez did not offer any evidence of the humidity

levels in the apartments before and after it started work to be able to prove that the

dehumidifiers were actually doing their job. Without such evidence, KENF claims that

Jabez did not and cannot prove that it provided any benefit. However, as mentioned

above, this claim is belied by KENF's request that Jabez keep the dehumidifiers in place

and running during the time that KENF was getting the replacement contractor

approved. If KENF saw no benefit to the dehumidifiers, it would have had no reason to

ask Jabez to keep them installed and running for this additional period of time.

              KENF also argues that Jabez provided no benefit to KENF because the

apartments were in the same state of disrepair when Jabez removed its dehumidifiers

as they were when Jabez installed them. But this ignores the evidence that the

equipment provided by Jabez prevented further damage to KENF's apartments. Based




                                           -5-
on the testimony presented, the benefit was the mitigation of the existing damage and

prevention of further damage—not actual repairs to the existing damage. The term

"benefit" does not require a measurable improvement. Black's Law Dictionary defines

"benefit" to include "the helpful or useful effect something has." Benefit, Black's Law

Dictionary (10th ed. 2014). Here, the use of Jabez's dehumidifiers had the helpful effect

of preventing further damage to the apartments. KENF apparently recognized this

benefit when it requested that Jabez leave the dehumidifiers running while a new

contractor was brought on board. In light of this evidence, KENF's argument that there

was no evidence to support the trial court's finding that Jabez conferred a benefit is

unavailing, and we affirm the final judgment to the extent that it finds KENF liable for

damages to Jabez.

              As to the amount of those damages, however, we must reverse and

remand for entry of an amended final judgment because the final judgment awards

damages in an amount neither sought nor proved by Jabez. In both its complaint and at

trial, Jabez sought only the amount it ultimately billed KENF, which was $15,557.75.

Nevertheless, the trial court awarded damages in the amount of $17,437.19—the

amount Jabez originally invoiced KENF before Jabez voluntarily reduced that invoice.

Clearly, it is unjust to award Jabez more for its services in the final judgment than it

would have received had KENF properly paid the invoice submitted to it. See 14th &

Heinberg, LLC, 43 So. 3d at 882 (affirming damages award for an unjust enrichment

claim in the amount of the unpaid balance of the subcontractor's original contract and

noting that "it would be inequitable to award Terhaar the value of the increase in rental

value when it would not have received such value had the contract been performed by




                                            -6-
Montgomery Ward"). Jabez is entitled to be paid for its services, but it is not entitled to

a windfall over and above the amount it actually claimed. Accordingly, we reverse the

damages awarded in the final judgment and remand for the trial court to enter an

amended judgment in favor of Jabez in the amount of $15,557.75.2

              Affirmed in part, reversed in part, and remanded with directions.


LUCAS and ROTHSTEIN-YOUAKIM, JJ., Concur.




              2This  direction as to the amount to be awarded in the final judgment is
limited to the principal amount of damages. We do not preclude any award of any
interest, attorney's fees, or costs to which Jabez may be entitled.


                                            -7-
