               In the Missouri Court of Appeals
                                  Western District

MARY LOWE,                                )
                             Respondent, )
v.                                        )            WD76272
                                          )            FILED: May 20, 2014
SUSAN HILL,                               )
                               Appellant. )

     APPEAL FROM THE CIRCUIT COURT OF JOHNSON COUNTY
               THE HONORABLE SUE DODSON, JUDGE

            BEFORE DIVISION TWO: GARY D. WITT, PRESIDING JUDGE,
               LISA WHITE HARDWICK AND ALOK AHUJA, JUDGES
      This is an appeal from the circuit court's judgment against Susan Hill and in favor

of Mary Lowe on her claims for money had and received and unjust enrichment. Hill

contends that the circuit court erred in entering judgment in Lowe's favor on her implied

contract claims because an express contract covered the subject matter of the parties'

dispute. For reasons explained herein, we reverse the circuit court's judgment.

                            FACTUAL & PROCEDURAL HISTORY

      On September 4, 2012, Mary Lowe filed a two-count petition against her

daughter, Susan Hill, seeking recovery for money had and received (Count I) and unjust

enrichment (Count II). Both counts of the petition alleged that on or around January 4,

2002, Lowe "provided funds to [Hill] totaling approximately" $45,000.00, and that "[s]aid

funds were provided to [Hill] by [Lowe] with the agreement that said funds would be
returned to [Lowe] in monthly payments of approximately" $330.00 at an interest rate of

4.875%. The petition further alleged that "[o]n October 7, 2009, [Hill] acknowledged in

writing the existence of the provisions of funds by [Lowe] to [Hill]; and that said sum

remaining to be paid was approximately" $29,600.00.

       Lowe alleged that Hill stopped making payments in March 2012. Lowe's petition

asserted that she "requested all outstanding funds previously provided to [Hill] be

returned," but Hill "refused and continues to refuse to return the funds to [Lowe]." Lowe

sought judgment against Hill in the amount of $18,862.22, plus earned interest at the

rate of 4.875% per annum.

       A bench trial was held on January 28, 2013. At trial, Lowe testified on her own

behalf and presented no other evidence. Hill had a standing objection to "any testimony

regarding an oral loan, insofar as it went to create a different cause of action than that

stated in [Lowe]'s petition." Hill did not cross-examine Lowe or present any evidence of

her own.

       At the close of Lowe's evidence, Hill filed a motion for judgment in her favor for

Lowe's "failure to state a cause of action on which relief may be granted." Hill's motion

was denied. At the conclusion of the trial, the court entered judgment for Lowe in the

sum of $18,862.22, plus accrued interest in the amount of $3,836.52, and post-

judgment interest at a rate of 4.875% per annum. Hill appeals.

                                   STANDARD OF REVIEW

       We review this court-tried case under the standard articulated in Murphy v.

Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will affirm the judgment unless there

is no substantial evidence to support it, it is against the weight of the evidence, or it



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erroneously declares or applies the law. Id. We review the evidence in a light most

favorable to the judgment, accept it as true, and disregard any contradictory evidence.

Murphy v. Holman, 289 S.W.3d 234, 237 (Mo. App. 2009). We also defer to the trial

court's determination of the weight to be given the evidence and to the credibility of the

witnesses. Id.

                                                ANALYSIS

        In her first point on appeal, Hill contends the "circuit court erred in declaring and

applying the law in entering judgment for [Lowe] . . . because judgment may not be had

for either money had and received or unjust enrichment when there coexists an express

contract for the payment of the subject money."

        Claims for money had and received1 and unjust enrichment2 are both founded

upon equitable principles whereby the law implies a contract to prevent unjust

enrichment. Karpierz v. Easley, 68 S.W.3d 565, 570 (Mo. App. 2002) ("'A suit for

money had and received is an action at law founded upon an implied contract created

by law.'" (quoting White v. Pruiett, 39 S.W.3d 857, 863 (Mo. App. 2001))); Pitman v. City

of Columbia, 309 S.W.3d 395, 402 (Mo. App. 2010) ("The principle of unjust enrichment

has given rise to the doctrine of quasi-contract, also known as a contract implied in law,


1
  The specific elements of an action for money had and received are as follows: "(1) the defendant
received or obtained possession of the plaintiff's money; (2) the defendant thereby appreciated a benefit;
and (3) the defendant's acceptance and retention of the money was unjust." Pitman v. City of Columbia,
309 S.W.3d 395, 402 (Mo. App. 2010).

2
  An action for unjust enrichment is very similar to one for money had and received, requiring: "'(1) a
benefit conferred upon the defendant by the plaintiff; (2) appreciation by the defendant of the fact of such
benefit; and (3) acceptance and retention by the defendant of that benefit under circumstances in which
retention without payment would be inequitable.'" Id. (quoting White v. Pruiett, 39 S.W.3d 857, 863 (Mo.
App. 2001)).



                                                     3
as a theory of recovery."). It is a well-settled principle of law that implied contract claims

arise only where there is no express contract. A& L Underground, Inc. v. Leigh Const.,

Inc., 162 S.W.3d 509, 511 (Mo. App. 2005) (explaining that where an express contract

exists, there is no need to imply one). Accordingly, a plaintiff cannot recover under an

equitable theory when she has entered into an express contract for the very subject

matter for which she seeks to recover. Howard v. Turnbull, 316 S.W.3d 431, 436 (Mo.

App. 2010).

        Lowe does not dispute the foregoing principle of law that the existence of an

express contract bars recovery under an implied contract theory. Rather, Lowe asserts

that the circuit court "did not find that the parties entered into a contract." Yet, Lowe

presented no evidence of anything other than that she and Hill entered into an express

oral loan agreement,3 which Hill subsequently breached. Therefore, as asserted by Hill

in her reply brief, "it can hardly be said that the record before the trial court could

reasonably support a finding that no express contract existed between the parties."

        Lowe argues that, "although [she] testified regarding an agreement with Ms. Hill .

. . the trial court was free to believe none, part, or all of her testimony." Thus, citing to

authority on the standard of review for court-tried cases, Lowe suggests that we must

disregard any evidence of an express contract. We disagree.

        First, Lowe's argument is curious in that it rests on the premise that her evidence

of a loan agreement was contested and that the circuit court resolved the issue against

her. Hill, however, did not contest Lowe's testimony regarding the loan agreement.


3
  There is no statute of frauds issue in this case because Lowe fully performed her part of the
agreement. See Serafin v. Med 90, Inc., 932 S.W.2d 422, 424 (Mo. App. 1996) ("The statute of frauds
does not foreclose recovery on oral contracts by application of the statute if the contract has been fully
performed by one of the parties.").

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Although there was no stipulation of facts by the parties, Hill did not file any responsive

pleadings, did not cross-examine Lowe, did not argue before the circuit court that Lowe

lacked credibility as a witness, and did not present any evidence of her own. See White

v. Dir. of Revenue, 321 S.W.3d 298, 308 (Mo. banc 2010) (listing the various ways a

party can contest an issue). Thus, Hill did not contest Lowe's evidence of an express

contract and, consequently, "the issue is [a] legal [determination] and there is no finding

of fact to which to defer." Id. at 307.

       Second, in its oral rendition of its judgment, the circuit court made a finding of an

express contract: "The Court, after hearing the evidence, finds in favor of the Plaintiff

and against Defendant in the amount of $18,862.22 principal plus interest at $3,863.52,

and continuing to accrue at the contract rate of 4.875 percent." Had the circuit court not

found a contract to be in existence, there would be no basis for its finding that interest of

$3,863.52 had accrued through the judgment date or, for that matter, a basis for any

finding in its judgment. Therefore, because the undisputed evidence could only support

a breach of contract claim, and because the circuit court found that a contract did in fact

exist, the court erred in allowing Lowe to recover on the theories of money had and

received and unjust enrichment.

       Lowe also suggests that, rather than reversing, we affirm the circuit court's

judgment on a breach of contract theory. While it is true that we may affirm a trial

court's judgment if cognizable under any theory — even one different than the theory on

which the judgment was based, the alternative theory must have been pled and

supported by the evidence. Williams v. Williams, 99 S.W.3d 552, 556 (Mo. App. 2003).

Moreover, "[i]t is an elementary rule of law that in the face of an objection the plaintiff's



                                              5
evidence must conform to the pleading." Swan v. Stuart, 353 S.W.2d 805, 806 (Mo.

App. 1962). "This is because the pleader must not be permitted to prove that which he

does not allege." Id.; see also Memco, Inc. v. Chronister, 27 S.W.3d 871, 875 (Mo.

App. 2000) ("[O]ne cannot recover for a cause of action not pleaded.").

        At trial, Hill had a standing objection to "any testimony regarding an oral loan,

insofar as it went to create a different cause of action than that stated in [Lowe]'s

petition." Therefore, Lowe's petition was not enlarged by the evidence to include a

breach of contract claim, but was limited to her claims for money had and received and

unjust enrichment. Thus, "'[h]aving chosen [her] route by way of [implied contract

theories,] [Lowe] must recover on th[ose] theor[ies] and th[ose] alone if [s]he recovers at

all.'" Young v. Hall, 280 S.W.2d 679, 681 (Mo. App. 1955) (quoting Usona Mfg. Co. v

Shubert-Christy Corp., 132 S.W.2d 1101, 1103 (Mo. App. 1939)). Accordingly, we

cannot affirm the circuit court's judgment on a breach of contract theory. See Heard v.

Stahl, 271 S.W.2d 68, 70 (Mo. App. 1954) ("When one contract is pleaded and another

proved it amounts to a total failure of proof as to the contract relied upon and defeats

recovery.").

        For all the foregoing reasons, we reverse the circuit court's ruling in favor of Lowe

on her claims for money had and received and unjust enrichment, and enter judgment in

favor of Hill.4

                                               CONCLUSION

        The judgment of the circuit court is reversed.




4
 Hill raises three points on appeal. However, due to our disposition of Hill's Point I, Points II and III are
moot and need not be addressed.

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              ___________________________________
              _
              LISA W HITE HARDWICK, JUDGE


ALL CONCUR.




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