ROACH.POSTMACRO2 (DO NOT DELETE) 3/11/2013 10:46 AM UNJUST ENRICHMENT IN TEXAS: IS IT A FLOOR WAX OR A DESSERT TOPPING?1 George P. Roach* I. Introduction ............................................................................154 II. Why Is Unjust Enrichment Important to Texas? ...................157 A. The Data Economy Needs Monetary Remedies in Equity ..............................................................................159 B. Strategic and Tactical Advantages of Unjust Enrichment ......................................................................162 C. Federal and State Agency Litigation ...............................166 III. Traditional Law in Equity ......................................................168 A. The Doctrine of Irreparable Injury ..................................172 B. Equity Jurisprudence After Merger .................................175 C. Burdens of Proof and Counter-Restitution ......................178 D. Unjust Enrichment at Law ...............................................184 E. Equitable Semantics ........................................................186 IV. Equity in Texas ......................................................................188 A. The Doctrine of Irreparable Injury ..................................190 B. Jurisdiction in Equity ......................................................194 C. Burdens of Proof and Counter-Restitution ......................199 V. Unjust Enrichment and Constructive Trusts ..........................203 A. Assumpsit Claims: Quantum Meruit and Money Had and Received ...................................................................204 1 Saturday Night Live (NBC television broadcast Jan. 10, 1976) (“New Shimmer is both a floor wax and a dessert topping!”). *George P. Roach practices damages law and provides consulting on litigation damages and valuation in Dallas. He is also a Senior Adviser to the litigation consulting firm of Freeman & Mills, Inc. in Los Angeles. His background includes an M.B.A. (Harvard), J.D. (University of Texas) and an A.B. in economics (University of California). For further information, see www.litigation-consultant.com. The Author would like to thank the following litigators who provided suggestions or corrections to prior drafts: John W. Clark, Jr., David Dodge, Barbara Hale, Kevin Isern, Kevin Jacobs, Karen Milhollin, Mark Murray, Mike Oldham, Dylan B. Russell, William Seele, Ross Spence, Ted Schultz, Jon Suder, Chris Tramonte, and Nick Zito. ROACH.POSTMACRO2 (DO NOT DELETE) 3/11/2013 10:46 AM 154 BAYLOR LAW REVIEW [Vol. 65:1 B. Accounting in Equity ......................................................209 C. Unjust Enrichment ...........................................................210 D. Unconscionablity ..............................................................226 E. Constructive Trusts .........................................................229 VI. Forfeiture: It Tastes Just Like Chicken ..................................240 A. Burrow v. Arce ................................................................241 B. ERI Consulting Eng’rs, Inc. v. Swinnea .........................248 VII. Conclusions ............................................................................252 I. INTRODUCTION As the state in which the lone-star maverick has been enshrined as a group role model, Texas could be expected to pursue an unusual approach to equitable remedies. Texans’ penchant for legal innovation was spotted early by United State Supreme Court Chief Justice Roger Taney in his reversal of a district judge in Texas in 1851. Alarmed that the federal judge might have ‘gone native,’ Taney chastised him for applying Texas law: Whatever may be the laws of Texas in this respect, they do not govern the proceedings in the courts of the United States. And although the forms of proceedings and practice in the State courts have been adopted in the District Court, yet the adoption of the State practice must not be understood as confounding the principles of law and equity, nor as authorizing legal and equitable claims to be blended together in one suit.2 Taney had good reason to fear that his district judge might stray from standard doctrine, as Texas introduced a number of significant and lasting innovations to American law. Texas was the first jurisdiction to abolish forms pleading, one of the first to merge courts in equity with courts at law, and the first to require jury trials for claims in equity.3 Therefore, our law in equity started from a unique position and has continued to break its own trail ever since. Unfortunately, along that trail, unjust enrichment in equity got misplaced or 2 Bennett v. Butterworth, 52 U.S. 669, 674, 676 (1851) (holding that the jury verdict was not at issue in the dispute). 3 See infra notes 194 to 207. ROACH.POSTMACRO2 (DO NOT DELETE) 3/11/2013 10:46 AM 2013] UNJUST ENRICHMENT IN TEXAS 155 a little lost, perhaps because Texas had almost no experience with a separate court in equity. The law in equity was largely developed before the Texas Republic was founded. Empowered with in personam authority from the English sovereign, the Chancery Court conducted the law in equity to resolve civil complaints that were otherwise substantively or procedurally irreparable under the common law.4 It was not developed to repair the common law but only to provide a safety net for claims ignored or minimized by the common law.5 Traditionally, it did not provide trials by jury but it developed a legal process better suited for complicated and evidence- intensive litigation.6 When common law or statute failed to adequately address a business claim, the law in equity was frequently effective by combining injunctive relief and an accounting to resolve the dispute.7 In the 4 See Kuechler v. Wright, 40 Tex. 600, 681–82 (1874) (explaining that the English court of equity “filled up the vacuum wherever there was a deficiency in the execution of the laws . .”); C.C. Langdell, A Brief Survey of Equity Jurisdiction, 1 HARV. L. REV. 55, 116 (1887) (“[T]he object of equity, in assuming jurisdiction over legal rights, is to promote justice by supplying defects in the remedies which the courts of law afford.”). 5 1 DAN B. DOBBS, LAW OF REMEDIES, § 2.2, at 72–73 (2d ed. 1993) (“No; the chancellors were keeping the law intact and making personal orders to the defendant.”); Thomas O. Main, Traditional Equity and Contemporary Procedure, 78 WASH. L. REV. 429, 432 (2003) (“One virtue of an autonomous system of equity was its authority to act in opposition to the strict law when the unique circumstances of a particular case demanded intervention.”). 6 See Charles Donahue, Jr., What Happened in the English Legal System in the Fourteenth Century and Why Would Anyone Want to Know?, 63 SMU L. REV. 949, 964 (2010) (“In the second half of the fourteenth century, the king’s council received an increasing number of complaints from litigants that they could not obtain justice because their adversaries had bought or intimidated all the jurors in the county.”); see also 1 DOBBS, supra note 5, § 2.2, at 70 (“[P]etitioner’s chief complaint about the law courts was that the defendant was rich and would bribe the juries.”); id. (“Equity developed its own elaborate forms of pleading in due time, but in this simple essence at least, it introduced a strong emphasis on fact-gathering and fact-decision that permeated modern trials in both law and equity.”); 1 JOSEPH STORY, COMMENTARIES ON EQUITY JURISPRUDENCE, AS ADMINISTERED IN ENGLAND AND AMERICA § 1.32 (12th ed. 1877) (“[Courts of Equity are established] to detect latent frauds, and concealments, which the process of courts of law is not adapted to reach; to enforce the execution of such matters of trust and confidence, as are binding in conscience, though not cognizable in a court of law; to deliver from such dangers as are owing to misfortune or oversight; and to give a more specific relief, and more adapted to the circumstances of the case, than can always be obtained by the generality of the rules of the positive or common law.” (quoting 1 WILLIAM BLACKSTONE, COMMENTARIES 92 (1765))). 7 For an account of some early business disputes that were resolved by this combination of remedies, see 1 STORY, supra note 6, § 3.68. ROACH.POSTMACRO2 (DO NOT DELETE) 3/11/2013 10:46 AM 156 BAYLOR LAW REVIEW [Vol. 65:1 last two centuries, the combination of injunctive relief and claims for the defendant’s profits has proven to be effective for many types of business claims but especially those related to wrongful use or misappropriation of intellectual property and intangible assets.8 This article will show that Texas courts are not comfortable with the law in equity and unjust enrichment. Texas courts resist unjust enrichment as a cause of action; claims for unjust enrichment in equity are rare; the courts’ opinions on jurisdiction fail their glowing words for equity’s safety net; and the remedy of forfeiture represents an unexplained departure from other remedies in equity in Texas. Section II discusses the importance of the law in equity to the current and future data economy. The rapid growth in the number of cases relating to unjust enrichment in both state and federal courts over the last twenty years confirms an increasing presence in litigation. Section III explains how the key traditions of the law in equity were developed and provides a baseline for the comparison of Texas law in Section IV. Texas actively applies the doctrine of irreparable injury despite offering jury trials and courts