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Meco Systems2/14/2001
contingency was satisfied, was fully addressed and decided adversely to MECO under Point I. Further discussion is not required. Point IV is denied.
POINT V: MECO'S CLAIM OF ENTITLEMENT TO EQUITABLE LIEN
In its fifth point, MECO contends the trial court erred when it (a) denied MECO's claim against DBE based on unjust enrichment principles, and (b) failed to impose an equitable lien against the theater property to secure the judgment for unjust enrichment. MECO insists the equitable tenet undergirding sections 429.270-280 and the circumstances revealed by this record mandate a judgment against DBE on MECO's unjust enrichment count "in the amount which MECO was required to pay its Subs . . . secured by an equitable lien against the theatre property with the same priority as the mechanic's liens given to MECO's Subs."
MECO's claim of entitlement to judgment on its unjust enrichment count ignores the well-settled rule in Missouri that a party cannot be compensated for the same injury twice. Stiffelman v. Abrams, 655 S.W.2d 522, 533 (Mo.banc 1983). This is true whether the injury arises out of contract or tort. Ross v. Holton, 640 S.W.2d 166, 173 (Mo.App. 1982). Quoting 25 C.J.S. Damages section 3, pp. 627-28, the court in Weeks-Maxwell Const. Co. v. Belger Cartage Serv., 409 S.W.2d 792, 796 (Mo.App. 1966) said:
"As a general rule, a person who has sustained loss or injury may receive no more than just compensation for the loss or injury sustained. He is not entitled to be made more than whole, and he may not recover from all sources an amount in excess of the damages sustained, or be put in a better condition than he would have been had the wrong not been committed."
Here, MECO proceeded as the appellant did in Baker v. Wade, 949 S.W.2d 199 (Mo.App. 1997), that is, MECO did not elect a remedy before the case was submitted to the trial judge, but rather submitted both the breach of contract and unjust enrichment counts to the judge. By its failure to select a remedy, MECO left that choice to the trial judge. The judge then selected a remedy by entering a judgment favorable to MECO on the contract count and denying MECO's unjust enrichment claim. Id. at 202. Having failed to take reasonable steps to elect a remedy before submission, MECO cannot now complain about the trial court's choice of a remedy, especially since it left unappealed the judgment on the contract count. Id.
MECO concedes in its brief that the judgment for MECO and against DBE on the breach of contract count included the sums yet owed by MECO to Subcontractors. Consequently, to also award MECO those amounts under the unjust enrichment count as MECO urges, runs afoul of Missouri's rule against double compensation for the same injury. See Fidelity Nat. Title v. Tri-Lakes Title, 968 S.W.2d 727, 733-34 (Mo.App. 1998). This is true even though the final judgment against DBE on the contract count may be wholly insufficient to cover its actual damages because of DBE's bankruptcy filing.
"As a general rule the prosecution of one remedial right to judgment or decree, whether the judgment or decree is for or against plaintiff, is a decisive act which constitutes a conclusive election . . . . The rule is the same, even though the suitor fails to secure satisfaction by means of the remedy adopted, or has misjudged the effect of his first election." Powell v. Schultz, 118 S.W.2d 25, 30 (Mo.App. 1938) (quoting 20 C.J., section 19, p. 28).
Although Powell involved adoption of a remedy by a litigant, rather than by the court, we see no meaningful distinction. Since MECO forced the trial judge to select a remedy, it cannot now complain the selected remedy was insuffic
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