IN THE SUPREME COURT OF IOWA
No. 23–0239
Submitted March 21, 2024—Filed April 26, 2024
THE UNIVERSITY OF IOWA, BOARD OF REGENTS, and STATE OF IOWA,
Appellants,
vs.
MODERN PIPING, INC.,
Appellee.
Appeal from the Iowa District Court for Johnson County, Chad A. Kepros,
Judge.
Party which obtained a temporary injunction that was subsequently
dissolved appeals judgment ordering payment of restitution for wrongful
injunction. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Oxley, J., delivered the opinion of the court, in which all justices joined.
Brenna Bird, Attorney General; Tessa M. Register (argued) (until
withdrawal), Assistant Solicitor General; and Ryan Sheahan, Assistant Attorney General, for appellants.
Mark E. Weinhardt (argued) and Danielle M. Shelton of The Weinhardt Law
Firm, Des Moines, and Jeffrey A. Stone and Erin R. Nathan of Simmons Perrine
Moyer Bergman PLC, Cedar Rapids, for appellee. 2
OXLEY, Justice. The University of Iowa Stead Family Children’s Hospital overlooking
Kinnick Stadium is a proud landmark in Iowa City known nationwide for the
“Kinnick wave”—a tradition since 2017 where, at the end of the first quarter of
every home Iowa Hawkeye football game, the nearly 70,000 fans, players,
coaches, referees, and opponents inside Kinnick Stadium turn to wave at the
patients and families in the top floors of the Children’s Hospital.1 Although its
landmark status is now settled, construction of the Children’s Hospital did not
go smoothly. This case involves one of the construction disputes—at least at the
periphery—between the University of Iowa and Modern Piping, Inc., the
mechanical contractor for the project.
The case started with Modern Piping’s attempt to settle some of the parties’
construction disputes. Modern Piping wanted to arbitrate some delay disputes;
the University did not. The University obtained an ex parte temporary injunction
that prohibited the American Arbitration Association (AAA) from arbitrating spe-
cific disputes presented by Modern Piping. Modern Piping intervened and got the
temporary injunction dissolved. The University appealed, but it was unsuccess-
ful. Meanwhile, the parties arbitrated the original disputes, and the University paid Modern Piping over $16 million pursuant to the arbitration award.
But this appeal is not about arbitration. It is about damages available to
a party who, like Modern Piping, is enjoined by a court order that is later
determined to have been wrongfully entered. After the University lost its appeal
about the validity of the injunction, Modern Piping attempted to recover not only
the fees and costs it incurred in dissolving the injunction, but also the restitution
1See Patrick Basler, Opponents Are Joining Iowa in Doing the Kinnick Wave, SB
Nation, www.sbnation.com/lookit/2017/10/7/16441398/illinois-iowa-football-kinnick-wave [https://perma.cc/V7GS-99TZ] (Oct. 7, 2017, 1:40 PM). 3
it claimed was necessary to avoid unjustly enriching the University for its
actions. What started as a request for fees and costs, for which Modern Piping
was eventually awarded just over $21,000, turned into a jury verdict also
awarding Modern Piping over $12.7 million of the University’s profits in operating
the Children’s Hospital during its first eight months.
As explained below, the restitution awarded here is not a proper remedy
for a claim for wrongful injunction and cannot stand. The judgment is affirmed
in part and reversed in part. The $21,784.50 award to Modern Piping for fees
and costs is affirmed, and the $12,784,177.00 award for restitution is reversed.
I.
Modern Piping is a Cedar Rapids construction contractor that entered sep-
arate contracts in August and September 2013, respectively, to serve as the me-
chanical contractor for two large projects on the University campus in Iowa City.
The first contract involved the construction of the fourteen-story Children’s Hos-
pital adjacent to the University of Iowa Hospitals and Clinics that overlooks Kin-
nick Stadium. Construction of the Children’s Hospital was an almost $330 mil-
lion project, and Modern Piping’s mechanical contract accounted for just over
$28 million. The second contract involved replacing the 1,800-seat Hancher Au- ditorium following the 2008 flood. Replacement of Hancher was an approxi-
mately $176 million project, and Modern Piping’s mechanical contract was over
$11 million.
Both contracts included “general conditions of the contract” with identical
arbitration provisions. Under the contract, arbitration of disputes became man-
datory once a party referred the dispute to the design professional.2 On February
2The “design professional” is the person generally tasked with advising and consulting
with the owner of the project. He has the authority to interpret the contract documents and make recommendations when there is a dispute between the owner and contractor. 4
27, 2015, Modern Piping filed a claim with the AAA related to what turned into
approximately $1.6 million worth of claimed delays in the Hancher project. The
University challenged arbitrability, Modern Piping brought a claim in district
court to enforce arbitration, and the court ordered the parties to arbitrate on
February 16, 2016.
On March 23, Modern Piping filed an amended claim with the AAA seeking
to add claims related to the Children’s Hospital to the pending Hancher arbitra-
tion proceeding. The Children’s Hospital disputes totaled over $8 million and
similarly related to claimed delays and schedule compression, congestion, and
out-of-sequence construction. The University refused to consent to arbitrating
the Children’s Hospital disputes as part of the pending Hancher arbitration.
On April 1, the University filed an ex parte petition in district court against
the AAA. The only relief it sought was a temporary and permanent injunction
enjoining the AAA from adding the Children’s Hospital claims to the Hancher
arbitration proceedings. To support its request for an immediate temporary in-
junction, the University asserted that being forced to arbitrate a dispute over an
unrelated project would require it “to direct resources from the completion of the
time sensitive Children’s Hospital Project to arbitrate a matter not properly be- fore the AAA.” The petition named the AAA as a defendant but not Modern Piping.
The same day, the district court issued a temporary injunction pursuant to Iowa
Rule of Civil Procedure 1.1507, which allows entry of an injunction without prior
notice to the enjoined party. The injunction ordered that the AAA “is temporarily
enjoined from presenting the dispute over the Children’s Hospital Project to ar-
bitration until further action from the Court.” The AAA answered the petition on
May 20 but did not otherwise seek to lift the injunction.
Seven months later, Modern Piping filed a motion to intervene and a mo- tion to dissolve the temporary injunction on November 2. Modern Piping was 5
allowed to intervene, and on January 10, 2017, the district court dissolved the
temporary injunction on the basis that the AAA—the only named defendant—
was protected by arbitral immunity as argued by Modern Piping.
In June 2016—after the temporary injunction was granted in April and
before it was lifted the following January—the University sought to use and oc-
cupy a portion of the Children’s Hospital, although construction was not com-
plete. Partial occupancy was contemplated by section 9.7.1 of the general condi-
tions, which provided that “[t]he Owner may occupy or use any completed or
partially completed portion of the Work at any stage when such portion is desig-
nated by separate agreement with the Contractor.” The contract required the
parties to assign responsibilities between them for such things as maintenance,
utilities, damage to the work, and insurance, and it provided that the contractor
could not unreasonably withhold consent. Modern Piping attempted to reach an
agreement concerning partial occupancy with the University, but the University
refused to enter into the separate agreement required by the general conditions.
The University nonetheless partially occupied certain floors of the Children’s
Hospital that were substantially complete before the entire construction project
was completed. The University began preparing and furnishing the facility with needed technology, equipment, and other supplies starting in June 2016, which
in turn allowed the University to start accepting patients in the new facility in
February 2017, eight months earlier than it otherwise would have absent the
early use and occupancy. Construction of the Children’s Hospital was completed
in May 2017.
Back at the AAA, an arbitration panel had been appointed and confirmed
to arbitrate Modern Piping’s Hancher claims on October 27, 2016. The
arbitration panel recognized that Modern Piping’s claims related to the Children’s Hospital were on hold until the panel received notice on February 1, 2017, that 6
the temporary injunction had been dissolved. The panel was then able to proceed
with respect to both the Hancher and the Children’s Hospital disputes presented
by Modern Piping in its amended statement of claims. By this time, the
University had been occupying parts of the Children’s Hospital for several
months without entering into a separate agreement with Modern Piping, but
Modern Piping did not submit that breach of contract claim to the Design
Professional or otherwise attempt to arbitrate with respect to the University’s
partial occupancy. The panel heard testimony from fifteen witnesses over nine
days in September 2017 about the delays related to both projects and was
provided with approximately one thousand exhibits. On March 5, 2018, the
arbitration panel issued a final award to Modern Piping in the amount of
$21,493,129.91, plus interest. Of that award, $16,334,135.40 related to claims
concerning the Children’s Hospital, stemming primarily from significant labor
inefficiencies outside of Modern Piping’s control and an “inordinate number of
[design] changes . . . made throughout the project.” In addition, the award
included prejudgment interest of $930,000, attorney fees and expenses over
$416,000, and nearly $500,000 in costs and expenses of the arbitration
proceeding. The arbitration award was confirmed by a district court and affirmed on appeal. See Mod. Piping, Inc. v. Bd. of Regents ex rel. Univ. of Iowa, 2019 WL
1494649, at *2 (Iowa Ct. App. Apr. 3, 2019). Modern Piping filed a satisfaction of
judgment reflecting full payment of the award on June 13, 2019.
In the district court case involving the University’s request for an injunc-
tion against the AAA, the district court dissolved the temporary injunction on
January 10, 2017, on the basis of arbitral immunity. On March 17, the AAA
sought summary judgment to dismiss the University’s petition for a permanent
injunction on the same basis. The district court granted summary judgment to the AAA on April 27, dismissing all of the University’s claims. On May 8, the 7
University filed postjudgment motions, and Modern Piping filed a motion for at-
torney fees and costs incurred in dissolving the temporary injunction. The dis-
trict court denied the postjudgment motions on May 30 and set Modern Piping’s
motion for fees and costs for hearing on July 19. The University appealed the
district court’s summary judgment order on June 15, which the court of appeals
affirmed on January 9, 2019. Univ. of Iowa v. Am. Arb. Ass’n, 2019 WL 141003,
at *2 (Iowa Ct. App. Jan. 9, 2019). Modern Piping’s May 8, 2017 motion for fees
and costs remained pending during the appeal. The University had requested a
continuance based on a conflict with the scheduled July 19 hearing, and the
district court granted the continuance without resetting a hearing. Neither party
asked the court to hear the motion during the pendency of the appeal.
After procedendo issued following the appeal, the district court entered an
order on March 11, 2019, noting the outstanding motion for fees and costs and
inviting the parties to identify any remaining issues. Modern Piping filed a motion
for leave to add a counterclaim, noting its motion for fees and costs was still
pending and asserting that its “claim for wrongful injunction has now ripened.”
Modern Piping asserted it was entitled to recover for the harm it suffered while
the temporary injunction was in place, “including without limitation delays to the arbitration, attorneys’ fees and related costs to obtaining the dissolution of
[the University’s] wrongful injunction, and other damages.” It also made a
demand for a jury trial.
The proposed counterclaim alleged that Modern Piping had filed a demand
for arbitration with the AAA on March 23, 2016, for claims involving the
Children’s Hospital project that it had referred to the Design Professional, and
the University refused to participate in arbitration. It alleged that the district
court temporarily enjoined the AAA from arbitrating those claims with the pending Hancher arbitration. It also alleged that after the temporary injunction 8
was dissolved on January 10, 2017, the parties proceeded with the arbitration
on all claims that had been referred to the Design Professional, resulting in an
award to Modern Piping of $21,493,129.91 plus interest. It then alleged that
“Modern Piping was harmed by the wrongful ex parte injunction [the University]
obtained for the time period between April 1, 2016, through January 10, 2017,
resulting in damages, delays to the arbitration, attorneys’ fees and related costs
to obtaining the dissolution of [the University’s] wrongful injunction, and other
damages.” Modern Piping sought damages “including without limitation
compensatory, consequential, and restitutionary . . . damages[,] attorneys’ fees
and expenses that it incurred . . . , interest, court costs, and any other relief that
is just and appropriate.”
Over the University’s resistance, the district court allowed Modern Piping
to add the counterclaim. The district court recognized that a ruling on Modern
Piping’s motion for fees and costs was still outstanding and that some
jurisdictions allow a claim for wrongful injunction to be asserted within the
injunction suit itself. The district court acknowledged the University’s argument
that Modern Piping’s claim was a tort claim analogous to a claim for abuse of
process precluded by immunity under Iowa Code § 669.14(4) (2019), characterizing Modern Piping’s counterclaim as one “for damages pertaining to
delay in arbitration based on a wrongful injunction consistent with an abuse of
process theory.” Nonetheless, it concluded “that Modern Piping should be
allowed to bring this claim, to the extent it is an actual counterclaim, in order to
resolve the costs, attorney fees and damages resulting directly from the
injunction sought and then dissolved by the [University] in this case.”
The University subsequently filed a motion for partial summary judgment
with respect to the appropriate measure of damages for Modern Piping’s wrongful injunction counterclaim. The University sought a ruling that Modern Piping’s 9
requests for consequential and restitutionary damages were beyond the scope of
damages allowed in a claim for wrongful injunction. In its resistance to summary
judgment, Modern Piping argued that as a legal matter restitution is a proper
remedy for a wrongful injunction. And it argued that as a factual matter the
University’s temporary injunction prevented Modern Piping not only from
arbitrating the Children’s Hospital disputes it had submitted for arbitration, but
also from litigating any of its contractual rights related to the Children’s Hospital
during the pendency of the temporary injunction for risk of waiving its ability to
arbitrate such claims, causing Modern Piping to suffer substantial damages. The
substantial damages identified by Modern Piping included those stemming from
its alleged inability to enforce other contractual rights. Specifically, Modern
Piping asserted that the University took advantage of the temporary injunction
by breaching the partial use and occupancy provision of the general conditions
of the parties’ contract to open the Children’s Hospital before construction was
complete without entering the separate agreement required by the general
conditions. Modern Piping argued that the University had been unjustly enriched
and that Modern Piping was entitled to restitution in the form of disgorgement
of the University’s profits earned from the early occupancy. The district court denied the University’s motion for summary judgment,
concluding that the jury should be allowed “to consider Modern Piping’s allega-
tions that imposition of the injunction delayed Modern Piping’s ability to enforce
its contractual rights, as well as its ability to litigate its disputes with the state.”
The University also consistently challenged Modern Piping’s wrongful
injunction claim as the functional equivalent of a claim for abuse of process,
from which the state is immune under Iowa Code § 669.14(4). In rejecting the
University’s postdiscovery motion to dismiss on the basis of sovereign immunity, the district court concluded that a wrongful injunction claim is not functionally 10
equivalent to abuse of process because the claims have different intent elements:
“[T]here is no requisite mental state to be considered in a wrongful injunction
claim, whereas an abuse of process claim focuses on a defendant’s purpose in
bringing an action.”
Modern Piping’s claim for wrongful injunction was tried to a jury in
October 2022. During the three-day trial, Modern Piping’s evidence focused
almost exclusively on the University’s partial occupancy of the Children’s
Hospital. Its senior executive project manager and minority owner, Mike Shive,
testified about the additional work required of Modern Piping from the
University’s early occupation of the Children’s Hospital. To that end, much of
Shive’s testimony focused on the University’s bad faith in refusing to negotiate a
partial occupancy agreement with Modern Piping. Shive testified that his
University counterparts, including electrical and mechanical project manager
Jason Miller, refused to even discuss the partial occupancy matter with him.
Modern Piping introduced emails from University officials identifying the
temporary injunction as “good news,” that “[i]t would take a hearing in Johnson
County Court to change this order,” and “it is imperative that Heery, the Design
Professional, not accept nor analyze any claims submitted by Modern Piping.” Another email discussed Miller’s view that “Modern [Piping] . . . should be put
out of business with the way they handled this project.” On cross-examination,
Shive admitted that the temporary injunction itself did not prevent the parties
from entering into a partial occupancy agreement.
Modern Piping also presented testimony from a legal expert who opined
about the injunction’s wrongfulness and the harm caused to Modern Piping as
a result. Much of the legal expert’s testimony concerned the University’s
motivation for seeking the injunction, which he opined was the University’s desire to move into the unfinished Children’s Hospital without having to first 11
arbitrate a partial occupancy agreement. This improper purpose for obtaining
the temporary injunction laid the foundation for his professional opinions that
the temporary injunction was wrongful, the injunctive order empowered the
University to partially occupy the unfinished Children’s Hospital, and the early
occupancy prevented Modern Piping from arbitrating the partial occupancy
dispute like it normally would have done, causing lost contract damages to
Modern Piping and benefiting the University. Similar to Shive’s testimony, the
legal expert testified on cross-examination that the temporary injunction did not
preclude the parties from entering an agreement on the partial occupancy issue
and that Modern Piping could have submitted the early occupation issue to
arbitration after the temporary injunction was dissolved in January 2017, but it
was not required to do so.
Modern Piping’s economic expert testified that the University received an
additional profit of $12,784,177 because it was able to accept patients eight
months earlier than if it had not partially occupied the Children’s Hospital. He
also testified that had the parties negotiated an agreement for partial occupancy
pursuant to the general conditions, then Modern Piping would have submitted a
bid for $2,502,068, which he characterized as the additional risk associated with completing its work while the University was partially occupying the Children’s
Hospital.
Prior to and during trial, the University raised numerous objections to ev-
idence concerning its improper purpose in obtaining the injunction, which it ar-
gued was not relevant to establishing the injunction’s wrongfulness and effec-
tively allowed Modern Piping to try its wrongful injunction claim as an abuse of
process claim against the state. The district court rejected the University’s argu-
ments based on its understanding that “the purpose, if it’s improper, of the in- junction is relevant to that finding of wrongfulness.” 12
Also over the University’s objection, the district court instructed the jury
on Modern Piping’s wrongful injunction claim using an unjust enrichment theory
premised on providing restitution to Modern Piping based on the benefit it con-
ferred on the University from the wrongful injunction to avoid unjustly enriching
the University. The jury found for Modern Piping, concluding that the University
was “unjustly enriched due to the wrongful injunction” in the amount of
$12,784,177 and that “the reasonable and necessary costs, expenses, and attor-
ney’s fees expended by Modern Piping to dissolve the wrongful injunction” totaled
$21,784.50.
II.
The University appealed, and we retained the appeal. The University raises
a number of issues on appeal, but we believe only two issues need to be ad-
dressed in resolving the appeal.
A.
Because a district court’s actions beyond its jurisdiction are void, see
Wederath v. Brant, 287 N.W.2d 591, 595 (Iowa 1980) (en banc) (“The effect of
action taken by a court without jurisdiction of the subject matter is that the
action is void.”), we first address the University’s jurisdictional argument. The University challenges the district court’s jurisdiction to proceed with Modern
Piping’s wrongful injunction counterclaim following the court of appeals opinion
affirming dismissal of its claims in the underlying case. As a general matter, a
district court lacks authority to decide new issues raised following affirmance of
a final order. See Franzen v. Deere & Co., 409 N.W.2d 672, 675 (Iowa 1987) (en
banc) (holding that defendant’s “application to impose rule 80(a) sanctions, filed
. . . after we affirmed the final judgment of the district court . . . , was filed too
late to give the district court authority to consider it”). But Modern Piping’s motion for fees and costs was filed before the appeal was taken, and the district 13
court allowed Modern Piping to add the counterclaim under the theory that it
was seeking ancillary relief, essentially the same relief Modern Piping had
requested in the pending motion for fees and costs. Motions for fees and costs
are ancillary, and a district court’s authority to rule on such motions is an
exception to the tenet that a notice of appeal divests the district court of
jurisdiction over the case. See State v. Mallett, 677 N.W.2d 775, 776–77 (Iowa
2004) (“Generally, an appeal divests a district court of jurisdiction . . . . However,
a district court maintains jurisdiction over disputes between the parties that are
merely collateral to the issues on appeal.”).
Modern Piping’s motion for costs and fees had been continued and was
still pending when the case returned to the district court following the appeal,
and that motion’s continuance supported the district court’s conclusion that
Modern Piping’s postappeal pleading merely built on the pending motion. As the
district court recognized, courts vary on treating wrongful injunction damages
as ancillary to the underlying case or as a separate cause of action. See, e.g., 42
Am. Jur. 2d Injunctions § 317, at 925–26 (2020) (discussing cases). While Modern
Piping’s claim for what started out as a request for ancillary relief morphed over
time, the district court was not without jurisdiction over the claim. B.
This appeal turns on the scope of the damages an enjoined party is allowed
to recover when it turns out that the injunction should not have been issued. In
addition to the attorney fees and costs incurred in obtaining dissolution of the
temporary injunction, Modern Piping also claimed that it was entitled to restitu-
tion from the University for the benefit the University received when it wrongfully
obtained the temporary injunction. Modern Piping’s logic goes like this: Restitu-
tion is an appropriate remedy for a wrongful injunction; restitution is a form of 14
damages for unjust enrichment; and unjust enrichment allows for the disgorge-
ment of the enriched party’s profits. The University argues on appeal (as it did
throughout the district court proceedings) that the type of unjust enrichment
Modern Piping sought and obtained is not available for the wrongful injunction
at issue in this case.
The law has long been “settled in this state that, when an injunction is the
only relief sought and the temporary writ issued therein is dissolved on final
hearing, recovery by the defendant may be had for the reasonable and necessary
costs, expenses, and attorney fees expended in procuring such dissolution.”
Chrisman v. Schmickle, 230 N.W. 550, 551 (Iowa 1930); see also Burnett v. N. M.
Stark & Co., 136 N.W. 670 (Iowa 1912) (“It is well settled that where an injunction
is the sole relief sought, and a temporary writ is executed and afterwards
dissolved, then the defendant in such injunction suit is entitled to recover upon
the injunction bond his necessary costs and expenses in obtaining such
dissolution including attorney fees.”); Weierhauser v. Cole, 109 N.W. 301, 302
(Iowa 1906) (“Under the circumstances, where injunction is the sole relief sought,
we have often held that its dissolution, either by interlocutory order or upon the
final hearing, entitles the party enjoined to recover his attorney’s fees in resisting the writ.”). The parties do not dispute that the attorney fees and costs Modern
Piping incurred in successfully getting the temporary injunction dissolved are
proper damages for the wrongful injunction. Indeed, the University did not
appeal from the $21,784.50 verdict awarded by the jury for those costs and fees.
The issue is whether Modern Piping is entitled to additional damages, which
requires us to consider what types of damages are available for a wrongful
injunction beyond the costs and fees incurred in getting the injunction dissolved.
Courts have generally recognized two distinct causes of action for a wrongful injunction: “one upon bond ordinarily filed to obtain a temporary 15
restraining order or injunction, and the other for malicious prosecution.” 43A
C.J.S. Injunctions § 498, at 544 (2014) (“[T]he two actions differ in the kind of
wrong that must be shown to establish liability and in the amount of recovery.”).
Regarding the first type of action, the general rule requires that the injunction
was either wrongful in its inception or that it continued owing to some wrong on
the part of the plaintiff in order to recover damages. See id. § 502, at 547.
Although courts retain equitable discretion in determining the amount, only
those damages actually sustained because of the injunction should be allowed.
See id. § 515, at 561–62. In contrast, punitive or other excess damages based on
a wrongful injunction are limited to actions for malicious prosecution or abuse
of process, both of which require additional proof of an enjoining party’s
malicious intent or improper purpose in obtaining the temporary injunction. See
id. § 515, at 562; see also Wilson v. Hayes, 464 N.W.2d 250, 260–61, 266 (Iowa
1990) (en banc) (involving claims for malicious prosecution and abuse of process
and discussing both as a cause of action). Our caselaw addressing wrongful
injunction claims is consistent with these general principles of law.
In addition to costs and fees for obtaining the dissolution of a wrongful
injunction, we have recognized that “damages that were the natural and proximate result of the wrongful injunctions” could be recovered in a claim
against an injunction bond. City of Corning v. Iowa–Neb. Light & Power Co., 282
N.W. 791, 794 (Iowa 1938). In City of Corning v. Iowa–Nebraska Light & Power
Co., the defendant had previously obtained a temporary injunction to prevent
the City of Corning from constructing a competing municipal light and power
plant. Id. at 792. The injunction was soon dissolved, and the city successfully
defended Iowa–Nebraska’s challenge to the dissolution on appeal. Id. at 792–93.
However, the temporary injunction and bonded appeal stays prevented the city from moving forward with its construction efforts for nearly a year. Id. The city 16
sued on the bonds, and Iowa–Nebraska claimed the city’s damages should be
limited to those incurred only while the injunction and appeal stay were in place.
Id. at 794. Our court held that the city “was entitled to compensation for damages
that were the natural and proximate result of the wrongful injunctions and was
not necessarily limited to a recovery of damages while the injunctions were in
force if the damages flowing directly from the injunctions continued for a period
of time beyond the date of their dissolution.” Id. We adopted “[t]he measure of
damages in a case of this kind” from a leading treatise: “In determining the
amount of damages to be allowed upon the dissolution of an injunction
restraining one from exercising acts of ownership over his real property, . . . the
defendant [is] entitled to such damages as are the necessary and proximate
result of such deprivation.” Id. (emphasis added and omitted) (quoting 2
James L. High, A Treatise on the Law of Injunctions § 1673 (4th ed. 1905)
[hereinafter High, Injunctions]). Where the injunctions directly precluded the city
from building its power plant, the profits it would have earned from the power
plant were “the necessary and proximate result of such deprivation.” Id.
(emphasis omitted) (quoting High, Injunctions § 1673).
The recovery of damages when a party wrongfully obtains an injunction is analogous to the recovery of money paid or property transferred in compliance
with a judgment that is reversed on appeal. See Schwennen v. Abell, 471 N.W.2d
880, 884 (Iowa 1991) (“adopt[ing] the Restatement rule for voluntary payment
cases involving reversed judgments” where a defendant paid a judgment to avoid
accruing additional interest pending appeal). In that context, “[a] person who has
conferred a benefit upon another in compliance with a judgment, or whose prop-
erty has been taken thereunder, is entitled to restitution if the judgment is re-
versed or set aside . . . .” Id. at 883 (quoting Restatement (First) of Restitution: Quasi Conts. & Constructive Trs. § 74, at 302–03 (Am. L. Inst. 1937)). 17
Modern Piping relies on the related provision from the updated
Restatement (Third) of Restitution and Unjust Enrichment to argue it is entitled
to restitution because the injunction was reversed. Section 18 of Restatement
(Third) provides: “A transfer or taking of property, in compliance with or
otherwise in consequence of a judgment that is subsequently reversed or
avoided, gives the disadvantaged party a claim in restitution as necessary to
avoid unjust enrichment.” 1 Restatement (Third) of Restitution & Unjust
Enrichment § 18, at 244 (Am. L. Inst. 2011) [hereinafter Restatement (Third)].
From there, Modern Piping argues that it was entitled to seek disgorgement of
the University’s profits by quoting from State ex rel. Palmer v. Unisys Corp., where
we said: “Restitution measures the remedy by the gain obtained by the defendant
. . . and seeks disgorgement of that gain.” 637 N.W.2d 142, 153 (Iowa 2001). But
stringing together quotes from cases involving restitution in different contexts
does not support Modern Piping’s position.
Restitution takes many forms. See, e.g., Unisys, 637 N.W.2d at 156 (“Sub-
rogation, like contribution and indemnity, is a separate form of restitution.”). As
stated in the Restatement (Third) sections that Modern Piping relies on: “The
usual consequence of a liability in restitution is that the defendant must restore the benefit in question or its traceable product, or else pay money in the amount
necessary to eliminate unjust enrichment.” Restatement (Third) § 1 cmt. a, at 3.
“Conversely, there are cases in which the remedy for unjust enrichment gives
the plaintiff something—typically, the defendant’s wrongful gain—that the plain-
tiff did not previously possess.” Id. § 1 cmt. a, at 3–4. In acknowledging that
restitution is essentially the law of unjust enrichment, the Restatement (Third)
notes this is merely a “term of art,” and the substantive portion of restitutionary
law “is concerned with identifying those forms of enrichment that the law treats as ‘unjust’ for purposes of imposing liability.” Id. § 1 cmt. b, at 4. 18
But “[t]he concept of unjust enrichment is not a judicial remedy to correct
perceived injustices, unfairness, or inequities in a broad sense. Rather, the doc-
trine involves a ‘narrower set of circumstances giving rise to what might more
appropriately be called unjustified enrichment.’ ” Livingood v. City of Des Moines,
991 N.W.2d 733, 749 (Iowa 2023) (quoting Restatement (Third) § 1 cmt. b, at 4).
Both parties rely on Unisys, where we expounded on the doctrine of unjust en-
richment “as a basis for restitution.” 637 N.W.2d at 154. While we “recognize[d
that] unjust enrichment is a broad principle with few limitations,” id. at 155, we
also said it was critical to understand “the true nature of the claim” underlying
a claim for unjust enrichment, id. at 156.
In Unisys, the claim was “actually one for equitable subrogation.” Id. at
156. The state had contracted with Unisys to calculate the capitation rate the
state used to pay health maintenance organizations (HMOs), including Heritage,
to provide services under the Medicaid program. Id. at 147–48. Unisys made a
mistake in its calculations that resulted in overpayments to the HMOs to the
tune of $15 million in 1994 and $17.5 million in 1995. Id. at 148. The state sued
Unisys for breach of contract, and Unisys brought a third-party claim for unjust
enrichment against Heritage (and other HMOs) on the basis that Heritage should not be allowed to retain the overpayments—even though the state did not seek
recoupment from Heritage. Id. at 147, 149. In considering Unisys’s claim for un-
just enrichment, we considered whether restitution was equitable by applying
rules of subrogation—when one party is “compelled to pay a debt that ought to
have been paid by another.” Id. at 156 (quoting Am. Sur. Co. of N.Y. v. Bethlehem
Nat’l Bank of Bethlehem, 314 U.S. 314, 317 (1941)). In that context, we con-
cluded Unisys should be allowed to pursue a claim for unjust enrichment against
Heritage to the extent Unisys made payment to the state on its breach of contract 19
claim and that payment would satisfy Heritage’s obligation to pay restitution to
the state in the amount Heritage had been overpaid. Id. at 156–57.
We believe Modern Piping led the district court astray when it convinced
the court that its claim for wrongful injunction entitled it to recover restitution
in the form of a broad-reaching unjust enrichment claim, and restitution should
be measured as the disgorgement of the benefit provided to the University. As in
Unisys, it is critical that we consider the “true nature of the claim,” id. at 156,
that Modern Piping is making against the University.
The type of restitution addressed in wrongful injunction claims, like the
restitution available when a judgment is reversed on appeal, is limited to restor-
ing the enjoined party to that which it lost as a direct result of the injunction. In
the context of a reversed judgment, the Restatement (Third) recognizes restitu-
tion as a proper remedy to the extent of “[a] transfer or taking of property, in
compliance with or otherwise in consequence of a judgment that is subsequently
reversed or avoided.” Restatement (Third) § 18, at 244. Thus, when the defendant
in Schwennen v. Abell paid a money judgment to avoid accruing additional in-
terest, he was entitled to have the money he had paid restored to him when the
judgment was reversed on appeal—a manner of restitution. See 471 N.W.2d at 883–84. In Arkadelphia Milling Co. v. St. Louis Southwestern Ry., the United
States Supreme Court similarly explained that a party “is entitled, in the event
of a reversal, to be restored by his adversary to that which he has lost thereby.”
249 U.S. 134, 145–46 (1919). So when rail carriers were allowed to charge excess
rates during the time that an injunction precluded the Railroad Commission of
Arkansas from enforcing its commission rates, requiring the carriers to repay the
excess charges was “a typical case for the application of the principle of restitu-
tion.” Id. In this context, restitution restores the parties to the status quo that existed prior to entry of the injunction. 20
Modern Piping argues that—the language of the Restatement (Third)
notwithstanding—disgorging the benefit provided to the enjoining party is also a
proper remedy for a wrongful injunction. There are instances where courts
recognize this type of restitutionary remedy for a wrongful injunction, but those
are tightly circumscribed. One instance is when the enjoining party obtains a
benefit by competing with the enjoined party. For example, when “a preliminary
injunction [is] issued to protect a patent that is eventually declared invalid, [the
injunction] provid[es] the plaintiff with an unwarranted monopoly status during
the litigation.” Ofer Grosskopf & Barak Medina, Remedies for Wrongfully-Issued
Preliminary Injunctions: The Case for Disgorgement of Profits, 32 Seattle U. L. Rev.
903, 912 (2009) [hereinafter Grosskopf & Medina]; see also Fleer Corp. v. Topps
Chewing Gum, Inc., 539 A.2d 1060, 1063 (Del. 1988) (“Because of the injunction
issued by the District Court, Fleer was able to legally appropriate Topps’ property
rights and market baseball trading cards, an action which would have clearly
infringed on Topps’ exclusive rights except for the District Court’s order.”).
Modern Piping’s attempt to reach the University’s profits from operating the
Children’s Hospital turns this theory on its head. Under no set of circumstances
would a mechanical contractor be entitled to the profits of the business occupying the building it is constructing.
Another instance “involves benefits generated by enjoining the use of the
defendant’s powers, such as tax collection, or enforcement of price or wage
control.” Grosskopf & Medina, 32 Seattle U. L. Rev. at 912 (footnote omitted).
Arkadelphia is an example of this type of restitution. See 249 U.S. 134. The rail
carriers were only able to extract the excessive charges from their customers
because the commission was enjoined from enforcing its commission rates. Id.
at 145–46. Other regulatory cases follow suit. See, e.g., Panhandle E. Pipe Line Co. v. Fed. Power Comm’n, 154 F.2d 909, 912 (8th Cir. 1946) (holding that a 21
pipeline, which overcharged for natural gas while its challenge to the Federal
Power Commission’s reduced-rate order was on appeal, was required to
reimburse customers for overpayments and to also pay the expense of
distributing the overpayments); see also Middlewest Motor Freight Bureau v.
United States, 433 F.2d 212, 228 (8th Cir. 1970) (describing the Panhandle
Eastern Pipeline Co. v. Federal Power Commission decision as “consistent with
the general principle that a party who obtains a benefit from an improperly
issued injunction has the duty to restore that benefit to those who have been
injured by the injunction”).
In the context of wrongful injunctions, “[r]estitution is available almost
exclusively in cases in which a sum of money or a specific property had been
transferred from the defendant to the plaintiff on the basis of the preliminary
injunction; thus, only ‘restitution in kind’ or ‘money had and received’ is
available.” Grosskopf & Medina, 32 Seattle U. L. Rev. at 910 & n.32 (citing cases
and describing “the remedy of restitution for wrongfully-issued preliminary
injunctions [as] very limited”); see also St. Louis Sw. Ry. of Tex. v. Consol. Fuel
Co., 260 F. 638, 640 (8th Cir. 1919) (holding, in a case where a preliminary
injunction required the defendant to supply coal to the plaintiff: “It would be a grave reproach to the administration of justice if, when a court has wrongfully
taken the property of one party and given it to another, it should be powerless to
make restitution. The law is otherwise.”); Dan B. Dobbs, Should Security be
Required as a Pre-Condition to Provisional Injunctive Relief?, 52 N.C. L. Rev. 1091,
1141–42 (1974) (arguing that caselaw “may suggest not only that restitution will
be denied unless the plaintiff’s gains are traceable to and identifiable with the
defendant’s losses, but also that the gains must be directly traceable”). “Indeed,
all thirty-two illustrations given by the Reporters of the Restatement of Restitution are cases in which ‘money has been paid’ or ‘property has been 22
transferred.’ ” Grosskopf & Medina, 32 Seattle U. L. Rev. at 910. This limited
application is reinforced by section 18 of the Restatement (Third), which
recognizes that restitution applies only to “[a] transfer or taking of property, in
compliance with or otherwise in consequence of a judgment.” Restatement
(Third) § 18, at 244 (emphasis added).
Focusing on “the true nature of the claim” sought by Modern Piping,
Unisys, 637 N.W.2d at 156, restitution in the context of a wrongful injunction
requires a direct correlation between the matter being enjoined and the claimed
harm. See Bryant v. Mattel, Inc., 2010 WL 11463865, at *8 (C.D. Cal. Oct. 5,
2010) (“None of the case law on this issue allows a wrongfully enjoined party to
recover all ‘unjust enrichment’ caused by the injunction. Most of the cases in-
stead limit recovery to amounts compelled to be transferred by the injunction
itself.”). That direct correlation is lacking here. Modern Piping argues that the
University used the temporary injunction to take partial occupancy of the Chil-
dren’s Hospital without entering into the separate agreement with Modern Piping
required by the general conditions. But the temporary injunction addressed only
those claims Modern Piping had already submitted for arbitration, which did not
include the partial occupancy issue. The injunction precluded the AAA (and by default Modern Piping) from arbitrating the claims Modern Piping had submitted
for arbitration related to the Children’s Hospital project in the same proceedings
Modern Piping was arbitrating its Hancher claims. Nothing more, nothing less.
The temporary injunction did not transfer or take any of Modern Piping’s arbi-
tration claims from it. The injunction merely delayed the timing of the arbitration
proceedings. Indeed, the AAA arbitrated all the claims Modern Piping had sub-
mitted for arbitration beginning in March 2017, once the temporary injunction
was dissolved. Arguably, the interest accrued during the time period the arbitra- tion claims were delayed would have a direct correlation to the injunction, but 23
the amount awarded by the AAA included prejudgment interest that covered that
loss. The temporary injunction made no mention of any other breach of contract
claims that Modern Piping might have against the University but had not sub-
mitted for arbitration. Rather, the terms of the temporary injunction related only
to the arbitration claims.
Modern Piping tries to create a direct correlation between the partial occu-
pancy and the injunction by characterizing the University’s refusal to enter a
partial occupancy agreement as taking Modern Piping’s property right to exclude
all others. But Modern Piping misstates its “property” right with respect to the
Children’s Hospital in making this argument. Modern Piping had a contractual
right to additional compensation for the University’s partial occupancy, not a
property right to exclude the University. The University owned the building, and
Modern Piping was the mechanical contractor, one of several contractors work-
ing to construct the Children’s Hospital. This is not the type of situation at issue
in City of Corning where the owner was prevented by a wrongful injunction from
constructing a competing power plant and lost out on the profits it would have
earned from using its own property but for the injunction. See 282 N.W. at 792–
93. As the Restatement (Third) comments explain, “If there has been no trans-
fer in consequence of the judgment that is later set aside, there is naturally no
issue of restitution.” Restatement (Third) § 18 cmt. a, at 244–45. Here, Modern
Piping’s partial occupancy breach of contract claim was not “taken” from Modern
Piping by the temporary injunction enjoining arbitration proceedings with re-
spect to entirely different claims.
III.
The district court erred in allowing Modern Piping to pursue the restitu- tionary damages it sought as part of its wrongful injunction claim. The judgment 24
is reversed to the extent it awards Modern Piping $12,784,177 as restitution for
unjust enrichment. The judgment awarding Modern Piping $21,784.50 for its
costs and fees in getting the temporary injunction dissolved is affirmed. The case
is remanded for entry of an order consistent with this directive.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.