Commonwealth Land Title Insurance Company, Appellant, vs. Security Pacific Business Credit, Inc., Respondent.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. sec. 480 A. 08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C7-96-561

Commonwealth Land Title Insurance Company,
Appellant,

vs.

Security Pacific Business Credit, Inc.,
Respondent.

Filed September 17, 1996
Affirmed
Randall, Judge

Hennepin County District Court
File No. CT-95-6760

Bradley N. Beisel, Scholle and Beisel, Ltd., 430 Pillsbury Center, 200 South Sixth Street, Minneapolis, MN 55402 (for appellant).

Thomas E. Harms, Dawn M. Knutson, Hessian, McKasy & Soderberg, 4700 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent).

Considered and decided by Huspeni, Presiding Judge, Randall, Judge, and Amundson, Judge.
U N P U B L I S H E D O P I N I O N

RANDALL, Judge
Appellant challenges a trial court order that granted summary judgment in favor of respondent and dismissed appellant's lawsuit. We affirm.
FACTS

In August 1991, Lampert Lumber Company entered into an agreement with Lanoga Corporation for the sale of real estate and other assets. The assets sold by Lampert included a parcel of real estate in Grand Rapids, Minnesota, on which Security Pacific had a mortgage. Appellant Commonwealth Land Title Insurance Company was retained by Lanoga to serve as the escrow agent for the sale. In addition to closing services, Commonwealth was to also provide title insurance.
At the time of the sale, Lampert was insolvent and seeking protection from its creditors under Chapter 11. Lampert's secured debt to Security Pacific exceeded $23 million. By two court orders, the agreement between Lampert and Lanoga was approved by the Bankruptcy Court. The orders provided that the sale was to be free and clear of all liens and encumbrances and that the net proceeds of the sale were to be applied to Lampert's indebtedness to Security Pacific.
The closing date was scheduled for Friday, October 4, 1991, with the disbursement of proceeds to occur the following Monday. On October 4, 1991, Commonwealth received, along with the disbursement instructions, revised escrow instructions from Lanoga's counsel that required, as a condition of closing, that Commonwealth be irrevocably committed to insuring that the property be "free and clear of all liens and encumbrances affecting the Real Property."
Several days before the scheduled closing, Commonwealth received a real estate tax and assessment report from the City of Grand Rapids indicating that a special assessment existed against the property in the amount of $78,987.64. This assessment was a lien against the property and was not a permitted encumbrance under the sale agreement, the Bankruptcy Court orders, or the escrow instructions and was required to be satisfied prior to the closing.
On October 2, 1991, a "Commercial Closing Update" was inserted into Commonwealth's closing file setting forth the special assessment. This update was intended to alert Commonwealth of the special assessment so it could be paid at closing. However, as the final closing documents were being prepared, the closing agent for Commonwealth failed to see the update in the file. Consequently, she failed to incorporate the special assessment into the final sale figures. Except for the inventory escrow, all of the figures set forth in the closing documents were to be the final figures between Lampert and Lanoga. The closing took place as scheduled with both Lampert and Lanoga signing the closing statements prepared by Commonwealth. Neither Lampert nor Lanoga had any knowledge that a mistake had been made and that the special assessment had not been deducted from the final figures.
It was not until the day after the closing that the closing agent learned of her mistake. She discussed the matter with Commonwealth's counsel the following Monday and both agreed that Commonwealth had no choice but to disburse the amounts set forth in the signed closing documents.
Later, Lanoga asserted a claim against Commonwealth for violating the escrow instructions. Commonwealth ultimately reached a settlement with Lanoga for $90,922. This figure represents the special assessment principal plus interest and penalties that had accrued from the date of the closing.
Commonwealth then brought suit against Security Pacific in Hennepin County District Court to recover the $78,987.64. Commonwealth acknowledges that it mistakenly failed to deduct this amount from the net proceeds, but sued on the theory that Security Pacific would be unjustly enriched if it did not have to reimburse Commonwealth the $79,000 that Commonwealth had to pay Lanoga. The case was submitted on cross-motions for summary judgment. The trial court granted summary judgment in favor of Security Pacific and dismissed Commonwealth's claim. Commonwealth appeals.
D E C I S I O N

On appeal from summary judgment, this court is to determine whether there are any genuine issues of material fact and whether the lower court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). Where the material facts are not in dispute, a reviewing court need not defer to the trial court's application of the law. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989). Here, the material facts are not in dispute. Therefore, this court's review of the law is de novo. Appellant argues that it is entitled to recover the overpaid amount under the equitable principles of money had and received or money paid under mistake of fact. These principles are essentially identical and provide that an action may be maintained "when a person has possession of money which in equity and good conscience belongs to another and ought to be delivered to him." Nelson v. Tripp, 264 Minn. 216, 220, 118 N.W.2d 805, 808 (Minn. 1962); see also Youngstown Mines Corp. v. Prout, 266 Minn. 450, 475, 124 N.W.2d 328, 346 (1963) (discussing the equitable principles of money had and received and money paid under mistake of fact).

The theory of unjust enrichment or money had and received has salutary and beneficial uses and has been invoked in support of claims based upon failure of consideration, fraud, mistake, and in other situations where it would be morally wrong for one party to enrich himself at the expense of another.

Cady v. Bush, 283 Minn. 105, 110, 166 N.W.2d 358, 361-62 (Minn. 1969). An action for money had and received will not lie against one who has not been unjustly enriched. Soderlin v. Marquette Nat'l Bank of Minneapolis 214 Minn. 408, 411, 8 N.W.2d 331, 332 (Minn. 1943).
Commonwealth claims that Security Pacific is not entitled to the overpaid amount because it is in excess of what it was entitled to receive under the terms of the Bankruptcy Court orders and the disbursement instructions. Commonwealth argues that the court orders and the disbursement instructions bound Security Pacific to accept the net proceeds of the closing only after all liens and encumbrances were deducted. According to Commonwealth, because the special assessment was not deducted from the final sales agreement, Security Pacific received more than it was entitled to receive.
Commonwealth, citing United States v. Northwestern Nat'l Bank & Trust Co of Minneapolis., 35 F. Supp. 484, 486 (D.C. Minn. 1940), argues the money may be recovered because restitution will result in no loss to Security Pacific. Commonwealth bases this argument on the theory that Security Pacific was not entitled to receive the money initially. However, that argument does not end the discussion. Equity recognizes that:
[A] creditor who has innocently received payment of a debt from a third party is under no duty to make restitution to the third party if it is later discovered that the third party had no responsibility to make the payment and payment was made solely because of the third party's mistake.

Federated Mutual Ins. Co. v. Good Samaritan Hosp., 214 N.W.2d 493, 496 (Neb. 1974); accord Grand Lodge, Ancient Order of United Workmen v. Towne, 136 Minn. 72, 161 N.W. 403, 407 (1917) (money paid under mistake of fact cannot be recovered where the defendant before discovery of the mistake in good faith pays money over to a third party who, so far as he is concerned, is entitled to it).
Commonwealth argues that it may recover the overpaid amount on the theory of unjust enrichment. An action for unjust enrichment may be based on the failure of consideration, fraud, or mistake, or in "situations where it would be morally wrong for one party to enrich himself at the expense of another." Anderson v. DeLisle, 352 N.W.2d 794, 796 (Minn. App. 1984), review denied (Minn. Nov. 8, 1984). However, such a claim will not lie "simply because one party benefits from the efforts or obligations of others, but instead it must be shown that a party 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). Commonwealth contends that Security Pacific is being unjustly enriched because it received the overpayment in violation of the court orders and disbursement instructions and that Lampert's debt is being reduced by more than it otherwise would have been. We disagree. Commonwealth violated the court's order by not transferring the property free and clear of encumbrances. Security Pacific violated nothing by receiving money it was due from a debtor.
Here, the disbursement instructions are clear that it was Commonwealth's responsibility to ensure that the property was sold free and clear of all liens and encumbrances as required by the Bankruptcy Court orders. Commonwealth failed to do so. It is undisputed that Security Pacific was unaware of the mistake, and it is undisputed that Security Pacific did not engage in any improper conduct with regard to the closing.
We decide the case for Security Pacific on other grounds than its argument that Commonwealth's action fails because Security Pacific was not the direct recipient of the sale proceeds. There is little distinction between Lampert and Security Pacific. The sale proceeds Security Pacific received from Lampert were part of a plan, approved by the Bankruptcy Court, that Security Pacific helped devise. Lampert had no choice but to turn the sale proceeds over to Security Pacific. It takes no leap of logic to conclude Security Pacific was sufficiently connected to the transaction to be considered a party to the sale. Commonwealth's best arguments are those cases where a bank, through its own negligence, over-credits a completely innocent depositor's account. If the depositor says nothing and spends the money, he will be unsuccessful in court every time the bank comes after him to recover the overpayment if he defends by simply arguing "mistake." The argument of the depositor that he is entitled to keep the money because it was the bank's fault and that he has the right to assume the bank's figures are correct never holds in court.
This is not such a case. Commonwealth was retained to provide title insurance for the subject property. By disbursing the proceeds of the sale, Commonwealth insured Lanoga that the property was free and clear of all liens and encumbrances. The disbursement instructions are crystal clear on this point. Commonwealth was paid a fee to read the disbursement instructions and follow them. Commonwealth, by its own unilateral mistake, failed to transfer the subject property free and clear of the special assessment. Both parties concede that the special assessment was a bona fide late assessment that Commonwealth was entitled to escrow until it checked the validity of the assessment. It did not do so. Commonwealth, by failing to meet its obligations as the escrow agent, must now bear the costs associated with its unilateral mistake. This is just another version of the classic case where a land title insurance company or an abstractor who legitimately charges a fee for such services misses a recorded document of title, and becomes liable for the resulting pecuniary loss.
Commonwealth concedes that it had to settle with Lanoga because of its unilateral mistake in failing to follow the closing disbursement instructions. But now Commonwealth argues that Security Pacific is required to indemnify Commonwealth for Commonwealth's own mistake. The trial court dismissed. We agree with the trial court. The trial court properly refused to grant Commonwealth the relief it requested.
Affirmed.