# FILED
March 26, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT JA CKSON H. W. JENKINS CO., ) ) Plaintiff/Appellee, ) Shelby Chancery No. 105743-1 R.D. ) VS. ) Appeal No . 02A01-9707-CH- 00170 ) G. T. DESIGNS OF MEMPH IS, ) INC., BRIGHTON BANK, ) ) and ) ) JOHN T. FALK

E and wife, LANA

S. ) FALKE, ARNOLD M. WEISS, Trust ee, ) and THE PRUDENTIAL HOME ) MORTGAGE COM PANY, INC. , ) ) Defendants/Appellants. )
APPEAL FROM

THE CHANCE RY COURT O F SHELBY COUNTY AT MEMPHIS, TENNESSEE THE HONORABLE NEAL SMALL, C HANCELLOR

R. MARK GL

OVER BAKER, DONELSON, BEARMA N & CALDWELL Memphis, Tennessee Attorney for Appellants

JOHN D. HORNE THE WINCHESTER LAW FIRM Memphis, Tennessee Attorney for Appellee
AFFIRMED IN PART, REVERSED IN PA RT

ALAN E. HIGHERS, J.

CONCUR: DAVID R. FA

RMER, J. HOLLY KIRBY LI LLARD, J. This appeal in volve s a suit to enforce a materialmen’s lien on a new home.2

Defendants/Appellants, John T. and Lana S. Falke (“Falkes”); Arnol d M. Weiss, Trustee; and The Prud ential Ho me Mortga ge Compan y, Inc. (collectivel y “appellants”), appeal from the order of the chancery court which entered judgment i n favor of plaintiff, H.W. Jenkins Co. (“Jenkins”), allow

ing the enforcement of a materialmen’s lie n for the amount of all the mat erials invoiced to the Falkes’ home, as well as inter est and attorney’s fees. For
reasons stated hereinafter, we affirm the judgment of the chancery court in par t and reverse in part.

Facts and Procedural His tory Jenkins has for many years been in engaged in the sales of lum ber and related building material s in Shelb y C ounty, Tennessee. In February of 1992, G.T. Designs of Memphis, Inc. (“G.T. Designs” ) entered into a writ

ten contract with Jenkin s for the sale and delivery of building materials to G. T. Designs to various parcels of real property for use by G.T. Designs in the constr uction ofresidences . Pursuant t o that agree ment, G.T. Designs agreed to pay service char ges at the rate one and a half perc ent per month for an annual percentage rate of eighteen percent on all accounts becomi ng thirty or more day s past due. G.T. Designs also agreed to pay attorney’s fees i n the amount of thirty-three and one third percentof the total amount due Jenkins, in the event that an account were to be r eferred to an attorney for collecti on.

G.T. Designs is a gener al contractor and homebuilder in the Memphis and Shelby County area. On June 11, 1994, G.T. Desi gns became th e owner of c ertain property pursuant to a Warranty Deed described a s:

Lot 341, Final Plan, Phase VII, Pa rcel 18 and Part of Parcels 17, 19 and 20, HALL E PLANTATION PLANNE D DEVELOPMENT as shown on plat of record in Plat Book 144, Page 21, in the Register’s Office of Shelb y County, Tennessee, to which plat reference is hereby made for a more particular

descripti on of sai d property acquired b y G.T. Designs of Memphis, In c. purs uant to warranty deed of r ecord at Instrument No. EL 3875 in said R egister’s Office.

F rom July 18, 1994, through Ap ril 27, 1995, pursuant to ord ers placed by G.T

.3

Designs, Jenkins sold building materials to G.T . Design s for use in the c onstruc tion of a residence on lot

341. During this time period, Jenkins delivered those building materials to the prope rty. At trial there was some dispute as to whether all of the material s delivered to lot 341 were actually used therein. Jenkinscontends that all materials delivered to lot 341 were used in the construction thereof. G.T. Designs owner, Ken Goodwin, testified that G.T. Designs used materials delivered to lot 341 for other jobs but could not de tail what materials wer

e removed or

how to account for such materi als. Lana Falke offered testimony

that she had seen G.T. Designs ’ worker s remove doo rs, trim w ork and some lumber from the resi dence being constructed on lot 341. Although G.T.Designspaid for the windo ws, doors, a nd trim materials on January 20, 1995, and March 10, 1995, it did not pay Jenkin s for the majority o f the ma terials Je nkins del ive red to l ot 341. The indebtedness of G.T. Designs to Jenkins for the building materials delivered to lot 341 and used by G.T. Designs in the construction of the residence thereon totaled $33,496.35 as of April 25, 1995.

On April 7, 1995, G.T. Desig ns conveyed lot 341, with the residence thereon, to the Falkes pursuant to a

Warranty Deed recorded at Instrument FA 1484 in the Office of the Register of Shelby County, Tennessee.Prior to acquiring the proper ty, the Falkes obtained an own er’s affid avit from G.T. Designs i n which G.T. Designs represented that all indebtedness duefor labor, material, or ser vices which mig ht be the basis for a lienon the property was fully

paid. On April 7, 1995, i n conjunction with the a cquisition of the property, the Falkes executed a Deed of Trust in the property to Prude ntial Home Mortga ge Company

that was recorded at

Instrument FA 1485 in the Office of the Register of Shelby County, Tennessee.
Upon learning for the first time that G.T. Desi gns had conveyed the property to the Fa lkes without payin g for the bulk of the mater

ials de liver

ed to lot 341, Jen kins fi led it s materialmen’s’ lien in the Office of the Regist er of Shelby County, Tennessee, at InstrumentNo. FA 8559. This was done on April 28, 1995, exactly one day after Jenkins last delivery of mater

ials to the property. Immediately following the recordingof the lien,4

Jenkins delivered copies of the recorded lien to G.T. Designs, Brighton Bank, the Falkes, and Prudential by certified mail, return receipt r equested.

On May 18, 1995, Jenkins file d this suit to enforce this l ien. An attachment was also soughtand obtained that same day. This attachmentwas levied agai nst on May 19, 1995.

On August 3, 1995, appellants fil ed a joint answer alleg ing that Jenkins was not entitled to assert the lien. Appellants also filed a counterclaim charging Jenkins wit h
consumer

protection violations, a cross claim against G.T. Designs seeking

indemnity, and a third party complaint against Ken Goodwin, G.T. Designs president.

After responses were filed with regard to the counterclaim, cross claim, and third party complaint, J enkins filed a mo tion f or summary judgment agai nst appellants on November

6, 1995. Appellants thenfiled their motion for summary judgment on May 13, 1996. Thereafter, on August 29, 1996, the chancery cour t entered an order denying both motions for summary judgment.

On March 25, 1997, a bench trial was conduct ed byChancellor C. Neal Smal l on the claims

of a ll the remaining parties. On A pril 11 of that same year the c hancellor entered a judgment awarding d amages to Jenkins and orderi ng enforcement of the materialmen’s lien. That judgment also dismissed appellants’ countercl aim ag ainst Jenkins, awarded damages to appellants on the cross claim agains t G.T. D esigns, and dismissed the Falkes’ thi rd party complaint agai nst Ken Goodwin. This appeal followed.

Law and Discussion Inasmuch as this case was tri ed by the trial court s itting without a jury, this Court’s review on appeal is governed by Tennessee Rule of Appellate Pro cedure 13 (d), which directsus to review the case de novo

. Roberts v. Robertson County Bd. of Educ. , 692 S.W.2d 863, 865 (Tenn. Ct. App. 1985); Haverlah v. Memphis Aviation,Inc. , 674 S.W.2d 297, 300 (Tenn. Ct. App. 1984); T.R.A.P. 13(d). In conduct in g a de novo review of the1 W e note that appellant

s theoriz

e that G.T. Desi gns and Jenkins were engagedin a pse udo-joint venture agre em ent a s evid enc ed by t heir w eight y finan cial inv olvem ent w ith ea ch ot her. H owe ver, th is defense and/or theory of argument was not rai sed at t rial , and we declin e to ru le upon a defense present ed for the first tim e on appe al. Alumax Alumini um Corp. v. Armstrong Cei ling Sys. , Inc. , 744 S.W.2d 907, 910 (Tenn. Ct. App. 1 987); Cam pbell Cou nty Board of

Education v.Brownlee-Kester son, Inc. , 677 S.W.2d 457 (Tenn. Ct. App. 1984). 5 record below, however, this Courtmu st presume that the trial court’s findings of fact are correct. 1 Under

this standard of review, we must affirm the trial court’s decision unless the trial court committed an error of law affecting the res ult or unless the evidence preponderates against the tr ial court’s findings. Roberts , 692 S.W.2d at 865.

Whether the eviden ce in the record prepon derates against the presumption that the trial court was correct in finding that the supplier of materials was entitled to a lien. Tenn. Code Ann. § 66-11-102(a) pr ovides in pertinent part : (a) There shall be a

lien upon any lot of ground or tract of land upon wh ich a house or structure ha s been erected, demolished, altere d , or repaired, or for fixtures or machinery fur nished or erected, or improve ments made, by spec ia l contract with the owner or the owner’s agent, in fav or of the contractor, mechanic, laborer, founder or machinist , who does the work or any par

t of the work, or furnishes the materials or any part of the materials , or pu ts thereon any fixtures, machine ry, or

material, and in favor of all persons who do any portion of the work or furnish any portion of the materials for such buil d ing; provided, that the subcontractor, laborer or materialman satisfiesall of the requirements set forth i n § 66- 11-145, if applicable.
Tenn. Code Ann. § 66-11-101(5) in defining the ph rase “furnish materials” states:

“Furnish materials” means sup ply materials which are i nc orporated in the impro vement and th ose which become normal wastage in construc tion operations;. . .[t]he deliv ery of materials to the site of the improvement shall be prima facie evidence of incorpora tion of such ma

teria ls in the improvement. Delivery to the actual job site is clearly the most un equivocal evidence of "furnish ing" materials for the purpose of materialmen's liens. See Ann otation, "Delivery of Material to Building Site as Sustaining Mec hanic's Lien--Modern C ases," 32 A.L.R. 4th 1130, 1138 n. 8 (19 84). The Tennessee statutes on materialme n's liens place great emphasis o n delivery to the job site. As ill us tr ated above, § 66-11-101(5) defines the phrase "f urnish materials" in pertinent part to mean "sup ply mat erials which are i ncorporated in the6

improvement." That section also states that "delivery of material s to the site of t he improvement

[is] prima

fa cie evidence of incorporation of such materials in the improvement." Tenn. Code Ann. § 66-11-101(5).A " materia lman" is d efined by § 66-11-101(10) as "any person who, under contract, furnishes material

... on the siteof the improvement

or for direct delivery to the site of the improvement." I n New Memphis Gas Light Co. Cases , 105 Tenn. 268, 60 S.W.2d 206 (1900), this Court sai d, "... the lien ofthe materia lman begi ns when his first material is placed on the property on which the lien is asserted." Id., 105 Tenn. at 302.

In the case under submission, it is undisputed that the mate rials in question were del ivered to the property. True and c orrect copies of the invoi ces, delivery ti ckets, an d
ac count sum maries for these building mate rials sold to G.T. Desig ns were presented at trial as evidence of such delivery. Consequently, under Tenn. Code Ann. § 66-11-101(5), Jenkins created the presumptionthat said materials wer e incorporated into the p roperty. After such evidence of delivery was presented, the burden of showing that such materials
were not used at the property shifted to appellants. At trial, appellan ts proffere d th e testimony

of Ken Goodwin and Lana Falke i n order to shoulder this bur den. In particular, Goodwin testified:

Q. You directedworkers who wo rk for you t o remove materials from Lot 341 thathad been distributed there, to mov e them to other lots; is that corr

ect? A. That’s correct. Q. Directed them to remov e lumber to go down to Lot 3 13? A. That’s correct. Goodwin, however, could not tes tify as to what material s were removed or how to account for these materials. In fact, Goodw in testified in pertinent par t: Q. Well, do you have an esti mate o n just the value of the merchandise that you had to tak e out of that lot? A. No, sir. Q. You don’t have any idea how much it might -- A. It happe ned so of ten that it would be ve ry diffi cult to sa y. You know, we worked through the weekends and those guys may have done a lot of that on thei r own.7

Lana Falke tes tified t hat she wit nessed wo rkers remo ving trim ma terials, doors, win dows and some lumber f rom the p roperty.

Q. And the -- what type materi als and what was the reason -- what type materials di d Ken Goodwin remove? A. A lot of times, it would be trim items, trim base. They had walkie-talkies

or they had radios that they would rad io e ach other. The carpenters had radios tha t were al l on the same frequency as Ken and a lot of times, you know, we w ould be standing and talking and somebody would radio Ken and say, you know, we need -- w e need some trim down at Lot 313 and he would --

before he wo uld leave,he would ta ke it with him. Q. Okay. Did you see any other materials removed? I mean, specifically I know lumber is hard to identify. Anything else besides lumber? A. Mostly lumbers, th ere were several doors that were delivered to our

house that we did not use because there were door openings but there wasn’t any place to -- you could put a door on it but they wer

e useless doors. It is our opinion that the delivery of material s to particular property creates a very w

eighty presumption in favor of the supplier of the mater ials that such m aterials were, in fact, incorporated into the structure. If we give this presumption less weight, we place a virtually impossible burden on a supplier to account for materials its sends

to every site. We do not believe that is what

the legislature intended.

On appeal from a judgment rendered by a cou rt wit hout a jury, any conflict in testimony

requiring a determi nation of the credibility of witnesses is for the tr ial court, and this determin a tion is accorded great weight by this Court unless other real evidence compels a contrary conclusi on. L inder v. Little , 490 S.W.2d 717 (Te nn. Ct. App. 1972); See also Duncan v. Duncan, 686 S.W.2d 568 (Tenn. Ct. App. 1985); Haverlah v. Memphis Aviation, Inc. , 674 S.W.2d 297 (Te nn. Ct. App. 1984). The findings of thetrial court in a non-jurycase are entitled to gr eat weight where the trial court saw and heard the witnesses and observed their manner and demeanor on the stand and was therefore in a much better position than the appellate court to judge the weight and value of their testimony

. Smith
v. Hooper

, 59 Tenn. App. 167, 438 S.W.2d 765 (Tenn. Ct. App. 1968); Duncan v. Duncan , 686 S.W.2d 568 (Te nn. Ct. App. 1985).8

We recognize that the evidence concerning whether the materia ls we re actually incorporated into the property in thi s case was sharply disputed at

trial. The se conflicts required the trial j udge to eva luate th e credibi lity of th e wi tnesses who appeared before him. He r esolved these credibility issues in favor of Jenkins. Not having seen these witnesses

in person , we are not in a position to say that he was wrong in his assessment of the witnes ses’ cred ibility. Cle arly, th e trial judge had substanti al trouble with the credibility

of Ken Goodwin’s testimony. Considering the import ance o f credibility in this case, we cannot say that the evidence preponderates against the trial court’s findings of fact supporting its conclusion that the amount of materials incorporated i nto the property were essentially equal to the amount of materials Je nkins delivered theret o.
Whether the evidence in the record preponderates against the presumption that the trial court was corre ct in enforcing a materialmen’s lien on pr operty of an third party p urchaser of a home. A material supplier has no right to a lien except as prov ided by statute, and the statute must be strictly cons trued. See Nanz v. Cum berland Gap

Park Co. , 103 Tenn. 299, 52 S.W. 999 (1899).
Appellantscontend that Jenkins had no lien or right of lien at the time it filed the notice of their materialmen’s lien in the register’s office. Particularly, they cite this court to Tennessee

Attorney General Opinion No. 91-14 whic h discusses at length the pr opriety of Tenn. Code Ann. § 66-11-146 and the appar ent attempt of th e l egislature “to prev ent subcontractors and material suppliers from having claims against homeowners who had paid the general contractor for all services and mat erials provided.”

Tenn. Code Ann. § 66-11-146(a)(1)(2) states:

(a)(1) As use d in this su bsection , "reside ntial rea l propert y" means a building consisting of one (1) dwel ling unit in which the owner of the real property intends to reside or res ides as the owner's principal pla ce of residence, including improvementsto or on th e pa rcel of property where such res idential building is located, an d also means a building consisting of two (2), three (3) or four (4) dwelling units where the owner of the real property intends to reside o r resi des in one (1) of the units as the owner's principal place of residence, including improvements to or on the parcel of property where such residential buildi ng is located.9 (2) Notwithstanding any other provision of law

to the con trary, exceptas provided in subsection (b), on indiv idual contracts to improve residential real proper ty, a lien or

righ t of lien upon such property shall ex

ist only in favor of

the general contractor who enters into such contract with the owner of such property or the owner's agent. No lien, except the general contractor's lien, shall exist uponsuch property under such contract in favor of a subcontractor, materialman, mechanic, laborer, f ounder, machinist, or any other person w ho does the work

or any part of the work, or furnishes th e mate rials or any part of the materials, or puts thereon any fixtures, machinery or materials, ordered by or through such persons. Appellants’ reliance on this statute and the Tennessee Attorney General Opi nion No. 91-14 is misplaced. Tenn. Code Ann. § 66-11- 146(b)(1)(2) is, alo ng with other pert inent mechanics’ and materialmen’s lien statutes, controllin g. Te nn. Code Ann. § 66-11- 146(b)(1)(2) provi de:

(b)(1) As used in this

subsection, "residential real prop e rty" means improvements to or ona parcel of property upon which a buil di ng is constructed or i s to be constructed consisting of one (1) dwelling uni

t intended as the principal p lace of residenc e of a per son or fa mily. (2) When the owner of residential r eal property and the gener al contractor

are one and th e same person, or such an individual controls entities owning such property and general contracting business, on indivi dual contrac ts to imp rov e residential real property, a lien or ri ght of lien upon such property shall exist o nlyin favo r of the g eneral c ontract or, subc ontract ors of th e general contractor, and suppliers who contract with the ge neral contractor. N o lien in favor of the subcontractor or such suppliers shall exist on such re al prope rty from and after the date the gener al contra ctor pays the subcontractor or supplie r forservices performed

or material deliver

ed by that supplier or subcontractor. No lien, except as pr ovided in this subsecti on, shall exist uponsuch property under such contract in favor of a mater ialm an, mechanic, laborer, founder, machi nist or any other person who does the work or any part of the work, or
furnishes the ma terials or any part o f the materials, or puts thereon any fixtures, machiner y or materials, order

e d by or through such persons.

In the case before us, it is uncontroverted that when Jenkins sold the mate ri al t o G.T. Designs, G.T. Desig ns was the owner of the r esident ial real property as defined in (b)(1) and was also the general contractor and builder of the improvements on the property. Tenn. Code Ann. § 66-11-146(b)(2) specifically establishes a lien in favor of the supplier who contracts with the general contrac torwho is also the own er. Jenkins’ lien10

rightsbecamefixed when the supplies were delivered to the premises since the lien rights
are established from the “date of visible commencement of operation.” Tenn. Code Ann. § 66-11-104 (1993). In the case before us, Jen kins filed the notice of lien w ithin ninety days after completion of the structure and thus preserved its lien pursuant to the

provisions of Tenn. Code Ann. § 66-11-112 (1993). Having pr

operly filed the

notice of lien within the ninety day period, Jenkins’ lien has preced ence over conveyanc es made wit hin ninet y days after the date of completion. Tenn. Code Ann. § 66-11-117 (1993).

The lien stat utes mu st be construed in pari materia . To give the statutes the construction proposed by appellants w ould negate the protection the statutes intended to provide. Appellants argue that t he 1990 Tennessee General Assembly amendments to the mat erialmen’s lien statute attempt to prevent subcontractors and material suppli er s from havi ng claims against homeowners who had paid the general contractor for all services and materials provided. They cite us to Tennessee Attorney General Opi nion No. 91-14 to illustrate this poin t. In esse nce, they argue that upon c ompletion the general contractor/owner

can abolish all materialmen’s liens by conveying the

property to “innocent third party purc hasers.” This is sim ply not the case. Even though we feel the lien statutes referred to supramake it quite clear that defendants’ assertion is misg uided, Tenn. Code Ann. § 66-11-143erases any doubt that mig ht have remained. Tenn. Code Ann. § 66-11- 143 provides in pertinent part: (a) In order to be protec ted from lien claims whic h have not previouslybee n r egistered as provide d in §§ 66-11-111, 6 6-11-112, and 66-11-117, the owner or purchaser

o f improved real property may, upon completion of the improvement

or the demolition thereof, register in the office of the re g ister of deeds in the county where the real property or any affected part thereof

is located a notice of completi on, or the owner or purchaser may require a person or organiza tion w ith whom the owner or pur chaser has contracted f or th e im provementsor demolition to do so upon compl etion of th e structure or improvement or demolition. (d)(1) Any person cl aiming a lien for labor or materials upon the property described i n the notice of completion who has not pr eviously

registered such person 's contract as provi ded in § 66-11-111 or registered a sworn statement as p rovid ed in § 66-11-112 or § 66-11-117 shall send by registered or certi

fied mail written notice addres sed to th e person, firm or organizationa nd at the address designated i n the notice of completion for receiving notice of claims, stating the amount of2 Appellan ts argue that Jenkins’ l ien should n ot be enforced andraise the defenses of eq uitabl e estoppel and unclean hands to such enforce men t. In order to bolster their argument, appellants cite this court to the case of Hayes Pipe Supply, Inc. v. McKendr

ee Manor, Inc. , 695 S.W.2d 174 (Tenn. 1985). We agree with the Cha ncellor tha t Haye s Pipeis disti nguishable f rom the case at bar. In Hayes Pipe , there was an agreement between a suppli er and contrac tor to diver t funds. In o ther word s, funds paid by own er to contractor

were to b e paid ove r to supp lier for past d ue deb ts and did not ne cessarily correspond to the particul ar debt for

the supp lies on the p roperty for w hich the o wner w as paying

. The actions of the supplier and contractor

in Hayes Piperan contrary to Tenn. Code Ann. §§ 66- 11-138 and 66-11-140.Here, the act ions of Jenkins and G.T. Des igns fall far from the facts of Hayes Pipe

. Jenkin s and G .T. Des igns did en ter into an agreem ent, but the agreem ent did no t violate statutes of Tennessee law. There was no divert ing offunds or misappopriati on thereof. We see absolutely no pr oof of an int

en t to defr

aud o n beh alf

of Je nki ns. To invo ke doctrine of equi table e stoppel, the party claiming est

oppel has the b urden to prov e each of three elements: party's lack of knowledge a nd of means of knowledge of t ruth as to f acts in quest ion; pa rty's relian ce upon conduct of par ty who i s estopped; and action by invo king party based thereon of

such character as to ch ang e tha t party's posit ion pr ejud icially. We see no evidence of to grant appe llants praye r for e quita ble esto ppe l. Tennessee law affor ded appellan ts a ba sis for pro te ction fr om Jenkins’ li en. If appel lants had invoked this prot

ection under

Tenn. Code Ann. § 66-11- 143, thi s su it coul d have been avoid ed. As such, appellan ts failed to av ail them selves o f such p rotection a nd did so to their own detrime nt.

11 the claim and certifying that the claim do es not include any amount owed to theclaimant on any other job or under other contract. (1993).

The statute makes it quite clear th at an unregistered lien i s valid as to subseque nt purchasers of the property if the requi rements ofthe various statutes are met and provi des
an expe dited proc edure to protect innocent purchasers. Since appellants did no t avail themselvesof the protection furnished by Tenn.Code Ann. § 66-11 -14 3, they are not in
a position to complain. They knew they were pur chasing new

construction, and that the seller was not only the ow

ner of the property bu t was also th e general contractor and builder of the improvements on the propert y. When the Falkes chose to purchase the property within ninety days of completion and the Prudential chose to lend money for the purchase of the prope rty when none of them availed themsel ves of the protection made available by Tenn. Code Ann. § 66-11-143, they acted at their own peril. It is clear from the applicable statutes that Jenkins had a l ien and took the proper steps as required by

the statute s to protect and enforce the lien. Accordingly, the or der of the trial court allo wing the enforcement of a materialmen’s lien for the amount of all the materials invo iced to the Falkes’ home is affirmed. 2

Whether the Trial Cou rt erred in requiring Appellants t

o pay attorne

y’s fees and i nter est o n a co ntra ct to whi ch th ey we re no t a pa rty. Tenn. Code Ann. § 66-11-120 provides:3 W e not e th at J enki ns pr aysfor att orney’ s fee s nec essi tated by appe ll ant s’ Te nn essee Consumer Protecti on act claim. Appellants withdrew their Tenn essee Consumer Protection Cl aim at tri al. The Chancell or thoughtthat for

equitabl e reasons he would not awa rd atto rney’s fees unde r the C ons um er Pr otec tion c laim

. W e cannot say t hat the evi dence preponderates against t he Chancellor’s reasoning and, consequently, affirm his decision i n denying Jen kins’ cl aim for attor ney’s fe es based on appell ants’ Tennessee Consumer Prot ectio n claim

. 12

The claims secured by li en for labor done, materials furnished, sh al l in no case exceed the amount ag reed to be paid by the owner in the owner’s contract with the original contractor. The rule is well established in this state that in the absence of a contract, statute, or recognized ground of eq uity so providing there is no right to have attorney’s fees paid by
an opposing party in ci

vil litigation. State v. Thomas , 585 S.W.2d 606, 60 7 (Tenn. 1979). The claim here by Jenkins for attorney’s fees against appellantsis not supported by any contract between the m, any statu te, or any r ecognized ground of equity; it must therefore be denied. The s

ame is true of the interest imputed upon the appellants by the trial court. This interest charg ed a gainst appellants was premised upon a contract to w hich the appellantswere not parties thereto. Consequently , they cannot be expected to uphold the termsof a contract to which they were not parties, nor can they be expecte d to bear the brunt of an int erest of which th ey had no hand in creating.

Conclusion The order of the Chancellor allowing Jenkins to recover attorney’s fees and interest from the Falkes, Prudential H om e Mortgage Co. Inc., and Arnold Weiss, trustee is reversed; otherwise, the decree of the Chancellor is affirmed. The costsincurred upon this appeal are taxed equally against H.W. Jenkins Co., John and Lana Falke, Prudential Home Mortgage Company, Inc ., and Arnold Weiss, Trustee. 3

HIGHERS, J.

CONCUR:

FARMER, J.13

LILLARD, J.