Metric Constructors, Inc. v. Bank of Tokyo-Mitsubishi, Ltd. , 72 F. App'x 916 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
METRIC CONSTRUCTORS, 
INCORPORATED,
Plaintiff-Appellant,
and
J.A. JONES, INCORPORATED,
Plaintiff,
v.
THE BANK OF TOKYO-MITSUBISHI,
LIMITED, NEW YORK BRANCH;  No. 02-1425
BARCLAYS BANK PLC, NEW YORK
BRANCH; BAYERISCHE VEREINSBANK,
AG, NEW YORK BRANCH; DAI-ICHI
KANGYO BANK, LIMITED, NEW YORK
BRANCH; MEES PIERSON NV, NEW
YORK AGENCY; CREDIT LOCAL DE
FRANCE; BANK OF TOKYO-MITSUBISHI
TRUST COMPANY,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(CA-97-369-5-BR(1))
Argued: May 9, 2003
Decided: July 30, 2003
Before WILLIAMS, MICHAEL, and SHEDD, Circuit Judges.
2 METRIC CONSTRUCTORS v. THE BANK OF TOKYO-MITSUBISHI
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
ARGUED: Douglas Leo Patin, SPRIGGS & HOLLINGSWORTH,
Washington, D.C., for Appellant. Thomas Joseph Hall, CHAD-
BOURNE & PARKE, L.L.P., New York, New York, for Appellees.
ON BRIEF: Eric A. Frechtel, SPRIGGS & HOLLINGSWORTH,
Washington, D.C.; Matthew W. Sawchak, ELLIS & WINTERS,
L.L.P., Raleigh, North Carolina; Randel E. Phillips, Gregory J. Mur-
phy, Scott M. Tyler, MOORE & VAN ALLEN, Charlotte, North Car-
olina, for Appellant. Benjamin D. Pergament, CHADBOURNE &
PARKE, L.L.P., New York, New York; L. Neal Ellis, Jr., HUNTON
& WILLIAMS, Raleigh, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Metric Constructors, Inc. ("Metric") appeals from the district
court’s order granting summary judgment in favor of several banks
(the "Banks") on Metric’s claim for unjust enrichment.1 We conclude
that Metric produced substantial evidence to prove each of the four
elements of a claim for unjust enrichment under North Carolina law.
Accordingly, we reverse the judgment below and remand for further
proceedings.
1
The Banks are The Bank of Tokyo-Mitsubishi, Ltd., Barclays Bank
PLC, Bayerische Vereinsbank Ag, Dai-Ichi Kangyo Bank, Ltd., Mees
Pierson NV, Credit Local De France, and Bank of Tokyo-Mitsubishi
Trust Company.
METRIC CONSTRUCTORS v. THE BANK OF TOKYO-MITSUBISHI 3
I.
Metric contracted with Carolina Energy, Limited Partnership
("CELP") to build a multi-million-dollar facility in North Carolina
that would convert solid waste into fuel and recyclable materials. Two
months after it executed this construction contract, CELP entered into
a separate project financing agreement with the Banks. The Banks
agreed to lend credit to support CELP’s bond financing for the proj-
ect; in return, CELP gave the Banks a first priority security interest
in the project and all its tangible assets. The Banks were not parties
to the construction contract, and Metric was not a party to the financ-
ing agreements.
The construction contract provided that CELP would make "prog-
ress payments" to Metric according to a milestone and payment
schedule attached to the contract. Under the payment procedure
detailed in the contract, each month Metric submitted to CELP an
application for payment describing the milestones completed during
the previous month. These applications showed the amount due for
each completed milestone and certified that the work was completed
in accordance with the terms of the construction contract. In addition,
the contract required Metric to provide with each of its applications
for payment a waiver and release of lien for itself and its subcontrac-
tors "to assure an effective release of liens for previous payments."
According to the contract, CELP and an independent engineer had 15
days to review an application for payment and approve a progress
payment. CELP then had 10 days to make payment to Metric.
CELP had few assets of its own, and it never paid Metric directly.
Under its separate agreement with the Banks, CELP was authorized
to submit an application to the Banks for release of funds to pay vari-
ous obligations, including obligations to Metric. The Banks would
release requested funds only if seventeen specific funding conditions
were satisfied. Among these conditions were requirements that (1)
CELP provide the Banks with unconditional lien waivers from Metric
and its subcontractors showing full payment and (2) the Banks and
their independent engineer believe that the project would be able to
4 METRIC CONSTRUCTORS v. THE BANK OF TOKYO-MITSUBISHI
achieve the debt service coverage ratios set out in the financing agree-
ment.2
Thus, each request by Metric for a progress payment was consid-
ered in two steps. First, CELP and the Banks’ engineer reviewed Met-
ric’s application to verify that the performance milestones had been
met in compliance with the construction contract. Second, the Banks
reviewed CELP’s request for release of funds to pay Metric to verify
that payment was due and that the other funding conditions had been
satisfied. If Metric’s request for payment survived both sets of review,
then the Banks would transfer funds to Metric directly. The Banks
hired Roy F. Weston, Inc. ("Weston") as their engineer to monitor
Metric’s progress on the project.
Metric began construction in January 1996 and made applications
for payment pursuant to the construction contract. For the first nine
months of construction, the Banks processed Metric’s payment
requests (through CELP) without incident. By late September and
early October, the Banks were developing significant concerns about
the continued financial viability of the project. Weston was reporting
to the Banks that the project was not meeting the required debt service
coverage ratios, that CELP was agreeing to change orders that signifi-
cantly raised the cost of the project, and that the relationship between
Metric and CELP was deteriorating. In addition, a related project had
recently gone into default. Despite these internal concerns (as well as
a dispute concerning the lien waiver provided by Metric), Weston and
the Banks approved Metric’s October 1996 application for payment.
It is undisputed that the Banks paid Metric in full for work performed
through September 30, 1996 — a total of more than $48 million.
In November 1996, Metric submitted to CELP and Weston an
application for payment for October’s work, totaling more than $6
million. This application, like Metric’s October application, indicated
several exceptions to the required lien waiver. Specifically, Metric
claimed that it was entitled to at least an additional $1.75 million
2
The debt service coverage ratio was calculated by dividing the proj-
ect’s revenue available for debt service in a particular time period by the
projected debt service for that period. The agreement between the Banks
and CELP required a debt service coverage ratio of 1.3.
METRIC CONSTRUCTORS v. THE BANK OF TOKYO-MITSUBISHI 5
above the contract price (for change orders), and it claimed at least
88 days of delay as the result of various force majeure events. Weston
visited the site to verify the progress described in the payment appli-
cation, and it approved the application without qualification. Despite
Weston’s certification, however, the Banks notified CELP on Novem-
ber 22, 1996 that they would not release the funds requested to pay
Metric because the seventeen funding conditions had not been satis-
fied.
Metric was unaware of the Banks’ position for weeks. Meanwhile,
Metric submitted its pay application for November’s work — more
than $8.5 million — and Weston visited the site and approved the
application. Weston made no mention to Metric about the Banks’
concerns, even after Metric raised a question about the as-yet unpaid
November application. Metric sent CELP a notice of default on
December 10, 1996, alerting CELP that it had not received payment
on the November application. Three days later, CELP notified Metric
that the Banks had ceased funding the project. On December 18,
1996, Metric told CELP that it was stopping work for nonpayment.
Even after it stopped work, Metric maintained a presence on site
through June 1997 to secure the partially-constructed facility while
CELP and the Banks attempted to restructure the project’s financing.
CELP and the Banks were unable to keep the project afloat. CELP
was in default on its bond obligations, and the bond trustee drew on
the Banks’ letters of credit to repay bondholders. This transaction left
the Banks with a loss of more than $30.4 million on the project. The
Banks then foreclosed their collateral in the project and conducted a
sale under Article 9 of North Carolina’s version of the Uniform Com-
mercial Code. This sale netted the Banks only about $2.6 million, so
that the Banks’ net loss on the project was approximately $27.8 mil-
lion.
Metric sued the Banks to recover for the work it performed on the
project without payment. The district court dismissed Metric’s claims
for tortious interference with contract and breach of contract, and it
rejected Metric’s remaining claims — conversion, unfair trade prac-
tice, breach of fiduciary duty, civil conspiracy, unjust enrichment,
constructive trust, and equitable lien — on summary judgment. Met-
ric appealed the summary judgment with respect to its claims for
6 METRIC CONSTRUCTORS v. THE BANK OF TOKYO-MITSUBISHI
unfair trade practice, breach of fiduciary duty, and unjust enrichment.
In that appeal, we affirmed the district court’s summary judgment for
the Banks on the claims for unfair trade practice and breach of fidu-
ciary duty. Metric Constr., Inc. v. Bank of Tokyo-Mitsubishi, Ltd., 230
F.3d 1353 (4th Cir. 2000) (unpublished). We vacated the judgment on
Metric’s unjust enrichment claim and remanded for further proceed-
ings, holding that the district court improperly grafted onto the unjust
enrichment cause of action a requirement that the Banks enjoyed a net
gain from the project. Id. On remand, the district court again awarded
summary judgment to the Banks on Metric’s unjust enrichment claim.
This appeal followed.
II.
We review the district court’s summary judgment for the Banks de
novo, taking the facts in the light most favorable to Metric. See Bryant
v. Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th Cir. 2002). This is a
diversity case, and North Carolina law applies. We apply the law in
accordance with the decisions of the North Carolina Supreme Court,
or where the law is unclear, as the North Carolina Supreme Court
likely would apply it. Private Mortgage Inv. Servs., Inc. v. Hotel &
Club Assocs., Inc., 296 F.3d 308, 312 (4th Cir. 2002). We shall not
"surmise or suggest . . . expansion" of North Carolina law. Tritle v.
Crown Airways, Inc., 928 F.2d 81, 84 (4th Cir. 1990).
The law of unjust enrichment in North Carolina proceeds from the
general principle that "[a] person who has been unjustly enriched at
the expense of another is required to make restitution to the other."
Booe v. Shadrick, 369 S.E.2d 554, 555-56 (N.C. 1988) (internal quo-
tations omitted). In order to prevail on a claim for unjust enrichment,
a plaintiff must prove that (1) it conferred a benefit on the defendant,
(2) the benefit was not conferred officiously or gratuitously, (3) the
benefit is measurable, and (4) the defendant consciously accepted the
benefit. Id. at 556. An unjust enrichment claim is available only in the
absence of an express contract between the parties. Id.
A.
North Carolina law requires that a plaintiff seeking recovery for
unjust enrichment "must have conferred a benefit on the other party."
METRIC CONSTRUCTORS v. THE BANK OF TOKYO-MITSUBISHI 7
Id. Metric produced evidence showing that it continued working on
the project from October 1996 through the middle of December 1996
and, arguably, through June 1997. Weston, the Banks’ engineer, veri-
fied that Metric continued meeting construction milestones. This
work increased the value of the project, in which the Banks held a
first-priority security interest. Even after Metric stopped working on
the project, it spent its own resources to secure and maintain the proj-
ect site and assets.
Rather than challenging the assertion that Metric’s work amounted
to a benefit, the Banks contend that Metric conferred that benefit upon
CELP, not the Banks. The Banks rely upon Effler v. Pyles, 380 S.E.2d
149 (N.C. Ct. App. 1989), for the proposition that there can be no
claim for unjust enrichment unless the plaintiff conferred a benefit
directly on the defendant. The district court held that "any benefit that
the Banks received was not sufficiently direct to satisfy Metric’s bur-
den" on this element.
The "direct benefit" rule applied by the district court derives from
an intermediate appellate court’s decision on facts readily distinguish-
able from this construction dispute. The plaintiff in Effler co-signed
a note to help her daughter and son-in-law buy a house. The children
promised to make all the monthly payments on the note, by selling
other properties if necessary. The plaintiff’s daughter died, and the
son-in-law stopped making payments on the note. The plaintiff made
the payments instead. When the son-in-law remarried, he transferred
the titles to the house and another property to himself and his new
wife. The couple then sold the second property but did not apply the
proceeds to the plaintiff’s note. The plaintiff sued the son-in-law’s
new wife for unjust enrichment. The Court of Appeals affirmed sum-
mary judgment for the new wife, noting that she had received title to
the house from her husband, not the plaintiff. Id. at 152. "Although
he has previously acquired his interest in this property with plaintiff’s
assistance, this does not satisfy plaintiff’s burden of showing that she
conferred a benefit directly on defendant." Id.The Banks had a direct interest in the construction project. Indeed,
the Banks held a first-priority security interest that was so important
to them that they sent their own engineer to monitor Metric’s progress
and report on its work. The Banks did not receive a fully-matured
8 METRIC CONSTRUCTORS v. THE BANK OF TOKYO-MITSUBISHI
benefit by grace, as the new wife in Effler received title to her house.
Rather, the Banks paid Metric each month as it made progress on
their construction project.
More important for this diversity case, the North Carolina Supreme
Court has never held that a contractor may not obtain equitable relief
from a lender with whom it had no contract. To the contrary, a con-
tractor may be entitled to equitable relief where the contractor com-
pleted a project but the lender (with whom the contractor did not have
a contract) refused to pay. Embree Constr. Group, Inc. v. Rafcor, Inc.,
411 S.E.2d 916, 923 (N.C. 1992). This decision suggests a broader
approach to unjust enrichment than is indicated by Effler’s "direct
benefit" rule. Under North Carolina law, it is sufficient for a plaintiff
to prove that it has conferred some benefit on the defendant, without
regard to the directness of the transaction. Metric produced substantial
evidence that it conferred a benefit on the Banks by improving their
collateral, and it therefore satisfied the first element under Booe.
B.
Not only must a plaintiff demonstrate that it conferred a benefit on
the defendant, but it must also prove that the benefit was not con-
ferred officiously or gratuitously. Booe, 369 S.E.2d at 556. In other
words, the plaintiff must show that it rendered the services at issue
with an expectation of compensation. Britt v. Britt, 359 S.E.2d 467,
470 (N.C. 1987); Jonson v. Sanders, 132 S.E.2d 582, 584 (N.C.
1963). The burden rests upon the plaintiff to "show circumstances
from which it might be inferred that the services were rendered and
received with the mutual understanding that they were to be paid for.
. . . [S]uch an inference is permissible when a person knowingly
accepts from another services of value, or . . . under circumstances
calculated to put a reasonable person on notice that the services are
not gratuitous." Lindley v. Frazier, 55 S.E.2d 815, 816 (N.C. 1949).3
3
North Carolina law suggests a presumption that this inference arises
whenever a benefit is conferred by one party and consciously accepted
by another. See Allen v. Seay, 103 S.E.2d 332, 333 (N.C. 1958) (noting
the "general rule" that "the performance of valuable services for one who
knowingly and voluntarily accepts the benefits thereof raises the implica-
tion of a promise to pay").
METRIC CONSTRUCTORS v. THE BANK OF TOKYO-MITSUBISHI 9
Metric produced substantial evidence that its work on the project
was not gratuitous. As the district court found, Metric worked on the
project "in anticipation of payment" as the construction contract pro-
vided. Moreover, the Banks sent Weston to the site to monitor Met-
ric’s progress for nine months; Weston approved Metric’s pay
applications; and the Banks wired funds directly to Metric’s account.
This evidence, taken together, supports an inference that Metric and
the Banks understood that Metric’s services were to be paid for.4 See
id.The Banks contend that Metric’s performance was gratuitous
because Metric was obliged to work on the project pursuant to the
construction contract with CELP. According to the Banks, there can
be no unjust enrichment where the benefit conferred upon the defen-
dant resulted from services rendered by the plaintiff "in discharge of
some obligation." Atlantic Coast Line R.R. v. State Highway Comm’n,
150 S.E.2d 70, 73 (N.C. 1966). Similarly, the Banks invoke § 110 of
the Restatement of Restitution for the proposition that "[a] person who
has conferred a benefit upon another as the performance of a contract
with a third person is not entitled to restitution from the other merely
because of the failure of performance by the third person." According
to the Banks, the fact that Metric performed its contractual duties to
CELP forecloses its claim in equity against the Banks.
This argument fails for at least two reasons. First, Atlantic Coast
4
The evidence further demonstrates that the Banks induced Metric’s
continued work on the project. See Wright v. Wright, 289 S.E.2d 347,
351 (N.C. 1982). Despite having serious concerns about the viability of
the project, the Banks never communicated to Metric their concerns and
never told Metric they intended to stop funding the project. Indeed, Wes-
ton continued approving pay applications as late as December 1996 with-
out so much as hinting to Metric that the Banks had concerns about the
project.
The inference of mutual expectation of compensation does not arise
with respect to work performed after Metric became aware of the Banks’
refusal to pay. Thus, Metric’s work after December 13, 1996 — the date
on which CELP gave Metric notice that the Banks were no longer fund-
ing the project — was gratuitous and cannot be the basis for any recov-
ery here.
10 METRIC CONSTRUCTORS v. THE BANK OF TOKYO-MITSUBISHI
Line merely states that a plaintiff cannot recover for unjust enrich-
ment where it rendered services out of a sense of moral obligation or
some obligation imposed by law. 150 S.E.2d at 73. The plaintiff in
Atlantic Coast Line conferred a benefit on the defendant, but it did so
pursuant to a court order (based on a state statute) and not with any
expectation of compensation from the defendant. Id. There is no sug-
gestion in this case that Metric kept working on the project out of any
sense of moral obligation to the Banks, nor was there any statute or
court order requiring Metric to do the work. Metric plainly anticipated
that it would be compensated for its work.
Second, this is not a case, as the Banks argue, where the contract
between the plaintiff and a third party calls for the plaintiff to render
services for the benefit of the defendant. Cf. Restatement of Restitu-
tion § 110. Section 110 describes the classic third-party beneficiary
scenario in which A’s contract with B requires B to provide services
for C. In that situation — where B confers a benefit on C "as the per-
formance" (and not merely as a result of its performance) of its con-
tract with A — B cannot recover restitution from C simply on account
of A’s failure to pay B pursuant to the contract. Section 110 is inappo-
site to this case because the construction contract between Metric and
CELP made no reference at all to the Banks. In other words, Metric’s
performance of its contract with CELP did not, by itself, necessitate
any benefit to the Banks; that benefit accrued by virtue of the Banks’
separate security agreement with CELP. The gravamen of Metric’s
unjust enrichment claim is that although the Banks were not parties
to any contract with Metric, they nevertheless obtained a benefit from
Metric’s work on the project and that it would be unjust for the Banks
to retain that benefit under the circumstances of this case.
The Banks seek to use the contract between Metric and CELP as
both a sword and a shield. On one hand, they argue that Metric was
required to comply with all the conditions of that contract in order to
make a proper claim for payment; they even imply that Metric was
required to comply with conditions set out in their separate contract
with CELP. On the other hand, the Banks contend that there can be
no claim against them in equity because Metric had a contract with
CELP.5 Yet it is precisely because there is no express contract
5
The Banks also argue that their contract with CELP, which expressly
disclaimed liability to third parties, somehow shields the Banks from lia-
bility to Metric. Of course, Metric was not a party to that contract, and
it is immaterial to the outcome of this unjust enrichment case.
METRIC CONSTRUCTORS v. THE BANK OF TOKYO-MITSUBISHI 11
between Metric and the Banks that an action for unjust enrichment is
available. See Booe, 369 S.E.2d 556 ("If there is a contract between
the parties the contract governs the claim and the law will not imply
a contract.").
C.
Metric must also prove that the benefit conferred on the Banks is
measurable. Id. We have already concluded that Metric has demon-
strated, at least for summary judgment purposes, that it conferred a
benefit on the Banks. We further conclude, with no argument from
the Banks to the contrary, that the benefit conferred is measurable.
The restitution to be made for unjust enrichment is measured accord-
ing to the value of the benefit conferred on the defendant, not the
plaintiff’s loss. Booe, 369 S.E.2d at 556. In this case, the value of the
benefit conferred on the Banks should be measured as the amount by
which Metric’s additional work from October through mid-December
enhanced the value of the Banks’ collateral. See Britt, 359 S.E.2d at
470.
D.
Finally, Metric must prove that the Banks consciously accepted the
benefit conferred by Metric’s work on the project. See Booe, 556. It
is undisputed that the Banks were aware that Metric would be install-
ing equipment and otherwise improving the project during October,
November, and December 1996. It is also undisputed that the Banks
sent Weston to the site each month to monitor Metric’s progress. The
Banks stayed well informed of Metric’s activities at the site, and they
consciously accepted every improvement Metric made to their collat-
eral. See Britt, 359 S.E.2d at 470. Metric has satisfied this final ele-
ment of a claim for unjust enrichment.
III.
In response to the Banks’ motion for summary judgment, Metric
forecast evidence sufficient to satisfy each of the elements of a claim
for unjust enrichment under North Carolina law. Accordingly, we
vacate the decision below and remand for proceedings consistent with
this opinion.
VACATED AND REMANDED