When parties invest time, money, and effort into a contract they believe to be enforceable, only to later discover it fails for indefiniteness or some other fatal defect, the legal and financial consequences can be severe. But under Virginia law, an aggrieved party may not be entirely without recourse. In certain cases, unjust enrichment can operate as a fallback remedy when the purported contract is deemed unenforceable.
In Ressa Construction, Inc. v. Dillaman (Va. Ct. App. Sept. 30, 2025), the Virginia Court of Appeals affirmed a circuit court ruling that a construction agreement was an unenforceable “agreement to agree” despite the fact that an installment payment had been made and building plans had been submitted to the county. When a dispute arose between the homeowners and the construction company hired for a remodeling project, the plaintiffs were allowed to back out and recover their deposit on a theory of unjust enrichment. The court held the construction contract was unenforceable as no meeting of the minds was ever reached regarding the scope of the project. The failure of the contract meant that the law of unjust enrichment came into play.
The opinion outlines the following fact pattern. In 2021, homeowners Jason and Natasha Dillaman engaged Ressa Construction to renovate their home. The parties signed a document on April 30, 2021, which included a “lump sum price” of $398,667 and referenced two exhibits: Exhibit A (described as “forthcoming Owner/Contractor endorsed permit approved plans”) and Exhibit B (a detailed estimate based on preliminary drawings). Exhibit B was attached to the purported contract; crucially, Exhibit A was not. The Dillamans paid the first installment—nearly $40,000—at the time of signing.
Over the following months, the project evolved. After significant revisions to the plans, Fairfax County approved final permit drawings in March 2022. Ressa then revised the project price to $596,221, citing scope changes and material cost increases. The Dillamans, unwilling to proceed under the new price, withdrew from the project and sought return of their initial payment. Ressa refused to return their payment and accused them of breaching the parties’ contract. The Dillamans sued for unjust enrichment and conversion. Ressa filed a counterclaim for breach of contract and attorney fees.
The Fairfax County Circuit Court found that the April 30 document was an unenforceable “agreement to agree” (i.e., an agreement to negotiate a material term at some point in the future) rather than a binding contract. It reasoned that the agreement’s scope of work—undeniably a material term—was defined by reference to “Exhibit A,” which was not attached and did not even exist at the time of signing. Because the parties contemplated reaching a future agreement on scope, there was no meeting of the minds sufficient to form a binding agreement. The court dismissed Ressa’s counterclaim and entered judgment in the Dillamans’ favor on
The Court of Appeals affirmed the trial court’s ruling in all respects. To be enforceable, an agreement must contain mutual assent on all material terms, expressed with sufficient certainty and completeness. (See Dean v. Morris, 287 Va. 531, 537 (2014)). Here, the contract language stated clearly that Exhibit A (along with Exhibit B) defined the scope of the project, and Exhibit A’s description as “forthcoming” and “Owner/Contractor endorsed” demonstrated the parties’ intent to finalize that component in the future. Without a meeting of the minds as to the scope of the project, the contract failed:
The contract in this case defined the scope of work by reference to an exhibit that did not yet exist and would need to be “endorsed” by the parties once it was created. Thus, the terms of the contract plainly show that the parties did not have a meeting of the minds on that material term.
Without an enforceable agreement, Ressa had no legal basis for retaining the Dillamans’ $40,000 payment, so the Court of Appeals upheld the trial court’s decision to award damages in that amount to the homeowners.
Note that unjust enrichment is not an available remedy when a binding contract exists between the parties. Unjust enrichment is considered a “quasi contract” remedy to prevent injustice when a benefit has been conferred on another party with an expectation of getting something in return despite the absence of a formal agreement. If the parties did form an enforceable agreement regarding the transaction at issue, then that agreement will control who gets what, not the doctrine of unjust enrichment. But if the parties attempt but fail to form a binding contract, and retention of a benefit would be inequitable, restitution may be ordered.