# FILED
June 29, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

BRUCE A. SIMPSON, ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9809-CV-00493 VS. ) ) Davidson Circuit ) No. 96C-1496 BICENTENNIAL VOLUNTEERS, IN C., ) PARTNERS FOR ENVIRONM ENTAL ) SOLUTIONS, INC., INNOVATIVE ) TECHNIQUES, L.L.C., ) ) Defendants/Appellees. )
APPEALED FROM THE CIRC UIT COURT OF DAVIDSON C

OUNTY AT NASHVILLE, TENNESSEE THE HONORABLE BARBARA N. HAYNES, JUDGE

MICHAEL M. CASTELLARIN 95 White Bridge Road, Suite 509 Nashville, Tennessee 37205 Attorney for Plaintiff/Appellant JANET L. HOGAN 620 W. Hill Avenue Knoxville, Tennessee 37902 Attorney for Defendant/Appellee Bicenten nial Volunteers, Inc. JOSEPH P. RUSNAK 315 Deaderick Street Nashville, Tennessee 37238 Attorney for Defendant/Appellee Par tners for Environmental Solutions, Inc.

AFFIRMED IN PART; REV ERSED IN PA RT;

AND REMANDED
BEN H. CANTRELL,

PRESIDING JUDGE, M.S.
CONCUR: KOCH, J. COTTRELL, J. 

## O P I N I O N- 2 - This is an action for

payment

of the costs of renovating a t ruck and trailer to be used as a mobile solid w aste exhibit. The p laintiff sued the parties involved in developing the ex hibit on the basis of contract and quantum meruit and soughtto enforce the liens provi ded by Tenn. CodeAnn. § 66-19-101 and Tenn. Code Ann. § 66-19-103. The Circuit Court of Davidson County granted summary judgment to the owner of the

truck and tr

ailer and ce rtified the d ismissal a s a final judg me n t under Rule 54.02, Tenn. R. Civ.Proc . Because we find there are factual dis putes affecting the quantum meruit claim against the owner, we reverse and remand for a conside ration of the merit s on this t heory.

I.

In J une of 1995, Bicentennial Volunteers,Inc. (BVI) and Partners for Environmental Solutions, Inc. (P ES) a greed to “cooperate in cons tructing a second solid waste mobile exhibit , and maintaining and operating both units.” The agreement provided that BVI woul d furnish a truck and trail er and PES would design and construct the exhibit. After the e xhibi t was completed, BVI wo uld arrange for mainte nance and operation while PES w ould schedule the exhibit and arrange fundin g foroperating and m aintenanc e costs. At the end of the project the truck and trailer and all installed equipment , except exhibit mater ials, would rever

t to BVI.

PES contracted with I nnova tive Techniques, L.L.C. to construct the exhib it. Due to a shortage of space and the pressure to complete the exhibit in a timelyfashion, Innovative Techniques, L.L.C. contracted with Bruce Simpson to do a major part of the work for a contr act price o f $40,0 05. Mr. Simpson performed the work at his own shop, and he has an $18,245 outstanding balance on his bill.

II.- 3 - Mr. Simpson sued BVI, PES, and Innovati ve Techniques, L.L.C. on the theories of contract and unjust enrichment,and asserted a lien against the truck and trailer. The trial judge granted summary judgment to BVI.

To merit su mm ary judgment, the movi ng party has the burden of showing that no genuine issue of fact exists and that the movant is entitl ed to judgmentas a matter of law. Tenn. R. Civ. Proc. 56.03; Byrd v. Hall , 847 S.W.2d 208 (Tenn. 1993). In this case there are v ery few facts in dispute; and the facts that are in disput e re late to the relationship between BVI and PES. In order to sustain his contract theory, Mr. Simpson as serts that BVI and PES wer e engaged in a joint ventu re o r that PES was BVI’s agent when PES contracted for the work to be done
on the truck. In either case BVI arguabl y would be bound by th e terms of the contract. See Williamson Leasing Co. v. Kephart , 627 S.W.2d 683 (Tenn. App. 1981) and Intersp arex Leddin KG v. Al-Haddad , 852 S.W.2d 245 (Tenn. App. 1992). In all of this, it seems to us, Mr. Simpso n conced es that BV I did not c ontract wi th him dir ectly.

The missing link on the contract theory, however, is any evidence from which a finder of fact could conclude that PES co ntracted wi th Mr. Simpson. Mr. Simpson himself says that he did the w ork for In nova tive Techniques, L.L.C..The other affidavits in the record all deny thatPES had a contract with M r. Simpson. Theref ore, BVI wa s entitle d to summ ary judgme nt on the contract theory.

III

.

The unjust enrichment issue is not so sim ple. A claim for unjust enrichmentin Tennessee rests, in part, on the fact that the parties did nothave an enforceable contract. Castelli v. Lien , 910 S.W.2d 420 (Tenn. App. 1995). The other elements are: (1) the furnishing of goods or services , (2) to the party to be charged, (3) under circumstances showing that the parties should have reasonably understood that the provider expected to be paid, and (4) under circumstances showing it would be unjust for the benefitted party to retai n the benefit without paying for it. CPB- 4 -

Management, Inc. v. Everly , 939 S.W.2d 78, 81 (Tenn. App. 1996). The amount of the recoveryis the value of the benefit conferr ed, not the cost to the furnisher

. Bauman v. Smith, 499 S.W.2d 935 (Te nn. App. 1972).

We think that whether B VI received a benefit from Mr. Simpson’s service is a question of fact. The truck and tr ailer belonged to BVI. M r. Simpson worked on BVI’s property. Mr. Simpson states that there was a benefit to BVI (although he states it in terms of

his unpaid contract price), and the contract with PES provides that at the end of the project all the installed equipment -- except the exhibit materials -- would revert to BVI. BVI’s proof says it received no benef it whatever. We think that present s a clas sic factual dispute. Therefore, BVI was not entitled to sum mary judgment on the unjust enr ichment clai m.

IV.

The two statutory li ens provide p rotection for persons who work on vehicles, but the conditions precedent in the statutes are different. Tenn. Code Ann. § 66-19-101 provides:

There shall be a

lien upon any type of conveyance used in the transportation of persons or merchandise either by land or by water or through the air, propelled by any sort of power, for any repairs or improvements made or parts or fixtures furnished a

t the request of the owner, or the owner’s ag ent , in favor of the mechanic, contractor, foun der, or machinist who makes on any such vehicle mentioned any repairs or puts thereon any improvements, fixtures, machine ry, or materials; provided, the lien herein created shall not extend to, nor shall the provis ions of this sec ti on and § 66-19-102 be construed as i n any way affecting the right and title acquir ed b y a purchaser without notice.

In contrast, Tenn. Code Ann . § 66-19-103 provides a l ien for garagekeepers: (a) Garagekeeper s or estab lishment s

su bstant ially

in the business of towing vehicles for hire, pursuant to the provisions of titl e 55, chapter 16, hereinafter

referred to as“towing firms” shall be entitled to a lien upon all vehicle s, which law

fu lly come into their- 5 - possession and are retained in thei r possession until all reasonable charges due are paid. . . .

The lien in Tenn. Code Ann. § 66-19-101 -- called the “statutory” lien -- remains on the vehicle whether the repairman retains posses sion or not. Gem Motor Co. v. Securities

Inv. Co. , 65 S.W.2d 590 (Tenn. App. 1933). But it requir es thatthe work be done “at the request of the ow ner, or the owners’ agent.” We think that
means that the owner or the ow ner’s agent must request the work from th e perso n asserting the lien.

The so-called “common law lien” described in Tenn. Code Ann. § 66-19- 103, exists only so long as the garagekeeper retains possession. Forrest Cate Ford, Inc. v. Fryar

, 465 S.W.2d 882 (Tenn. App . 1970). By its terms it does not require that the work be done at the req uest of the owner or the ow ner’s agent.

Both statutes pose problems for Mr. Simpson. He no longer has possession of the veh icle, and we have previously held th at there is no proof that the work he did was at BVI’s request or at the request of BVI’s agent. Therefore, neither lien exists in favor

of Mr. Simpson.

The summary judgment in favor of BVI on the

unjust enrichment claim is reversed. In all other respects it is affirmed. Remand this cause to the Circuit Court of Davidson County for further proceedings. Tax the costs on appeal equally to BVI and Mr. Simpson.

____________________________ BEN H. CANTRELL, PRESIDING JUDGE, M.S. CONCUR:

_____________________________ WILLIAM C. KOCH, JR., JUDGE- 6 -

_____________________________ PATRICIA J. COTTRELL, JUDGE