### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Septem ber 5, 2002

Session NATIONS RENT OF TENNESSEE, INC. v. MEL L ANGE, ET AL 

### . FORKLIFTS UNLIMITED, LLC, ET AL 

### . v. DAVID Q. WRIGHT, ET AL 

### .

SOUTHERN WOOD TREATMENT CO., INC. v.

DAVID Q. WRIGHT, ET AL 

### . Appeal from the Chancery Court for Rutherford County No. 99CV-954, No. 99CV-1066, No. 99MI-563 Robert E. Corlew, III, Chancellor

No. M2001-02368-COA-R3-CV No. M2001-02360-COA-R3-CV - Filed Nove mber 6, 2002 No. M2001-02366-COA-R3-CV

Vendors of rental equipment filed suit to collect unpaid invoices from the landowner after the contractor

ab andon ed the job. The trial court granted rec overy base d upon the Mechanics’ and Material men’ s Lien Statute and quantum meruit. We reverse f or insufficient proof on the correct measure of damag es. Tenn. R. App. P. 3 as of R ight; Judgm

ent of the C hancery C ourt Reversed and R emande d
E LLEN H OBBS L YLE , Sp.J., delivered the opinion of the court, in which W IL LI AM B. C AI N an d P ATRIC IA J. C OTT RELL , JJ., joined.
John T. Blank

enship, Mu

rfree sboro, Te

nnessee , for the

appella nts, David

Q. Wrigh

t an d R LI Ins ur an ce Co mp an y. Ewing Sellers, Murfreesboro, Tennesse e, for the appellee, Nations Rent of Tennessee , Inc.
Robert P. Gritton, Murfre esboro, T ennesse e, for the appell ees, Fo rklifts Un lim ited LLC and Forklif

ts Unlimited, Inc.
OPINION
This litigation arises out of unpaid invoices for rental equipment used to erect a horse barn, arena and office. The contractor who re nted the equipment abandoned the job. The vendors of the rental equipment sued the landowne r. The trial judge awarded recove ry to both vendors, and the landowner appealed.-2-

The issues for this Courtto deter mine are whether the proof supports an award of damages to one vendor

in quantum meruit and an award under the Mechani cs’ and M aterial

men’s L ien Statute to the other

vendor. We conclu de that the proof a s to each claim fa ils to establish the correct measure of damages, that being the fair r ental value of the equipment, and therefore we reverse the trialcourt.
The landowner, David Wright, entered into a contract on September 18, 1998, with Mel Lange, a contra

cto r doing business as American Steelwood Buildings, to construc t a horse riding arena and training facility . The contract price was $203,200.00.
Around December 18, 1998, after the landowner had paid a su bstantial portion of the contract pric e , the contractor abandoned the job. The landowner took over completion of the project and incurred costs greatly

in excess of the contract price.
Around the time th at the co ntracto r left, th e landowner

discovered equipment on the job which the contr

actor ha d rented . There

was a fo rklift an d two sciss or lifts pr ovided by Forklif ts Unlimited, Inc. There wa s a forklift, generator, reba r cutter, 24 foot aluminum extension ladder, and a post hole auger on the jobsite rented from Nations Rent. On January 11, 1999, the la ndowner contacted FUI and Nations Rent, and they removed the equipment. The vendors demanded pay ment from the landowner for unpaid rental fees incur red by the c ontractor. The landowner, who was not a party to the r

ental agreements and who had paid a substantial portion of the contract price to the contractor, refused to pay . Suit was commenced by the vendors against the contractor for breach of contrac t and ag ainst the l andowne r for re covery

under the lien statu te and qua

ntum merui

t.
Default judgmen ts were e ntered a gainst the contractor. After a trial, the chanc ellor awarded recovery to FUI in quantum merui t in the a mount of $8,277.42, concluding that this amount constituted the reasonable rental value of the re ntal for the equipment, and $1,457.29 for repairs to the equipment which the chancellor concluded constituted the reasonable value of services re ndered by FUI. The other r

ental vendor, Nations Rent, was awarded rec o very of $11,550.58 under the Mechani cs’ and Materialmen’s Liens Statute, Tenne ssee Code Annotated sections 66-11-10 1, et seq
. The appellants hav e ra ised nume rous issue s rega

rding F UI’ s recove

ry in quantum

meruit. Becau se we conclude that the proof of quantum me

ruit dama ges is insufficient and that conclusion is determinative of the appeal, we address only that issue.
In support of their claim to recover in quantum meruit, FUI presented

the testimony of

Mr. Caragan, the owner o f FUI, as we ll as invoices prepared on the rental of the equipment, and the rental contract. Based on the provisions of the rental contract, the rental dates and rates contained on the invoices, and a bill from a third-party vendor f r om whom FUI had subleased two pie ces of equipmen t, Mr. Caragan testified

that the rental price provided for in the contrac t represented thefair rental value of

the equip ment. Add

itionally , in response to a question from the trial judge about the outof pocket expense FUI ha d to the third-party ve

ndor , Mr. Cara

gan guessed th at he pai d “probably”about ten or fifteen percent less the total, maximum of a fifteen perc ent mark-up.-3-

Quantummeruit is a

separa te and dis tinguish able

cause of actio n from br

each of contrac t. Quantummeruit ac tions are equitabl e substitutes for contract claims. Castelli v. Lien, 910 S.W.2d 420, 427 (Tenn. App. 1995)

. Unlike a contract claim where there a re express payme

nt and price terms, quantum me

ruit is bas ed on a le gally

implie d prom ise to pay. Id. Accordingly , quantum meruit recove ries are limited to the actual value of the goods or service s and are not calculated based on c ontract price. Id. (citi ng Lawler v. Zapletal, 679 S.W.2d 950, 955 (Tenn. Ct. App. 1984); WarrenBros. Co. v. Metropolitan Gov’t of Nashville and Davidson County, 540 S.W.2d 243, 247 (Tenn. Ct. App. 19 76); Cooksey v. Shanks, 23 Tenn. App. 595, 598, 136 S.W.2d 57, 58-59 (1939)).
The reasonab le value

of good s and ser

vices ma y be proven in

severa l way s. The pa

rty seek ing to recover in quantum meruit can explain the method used to arrive at a ba se fee an d markup. See id. at 428. A dditionally, pro of as to reasonable value can be obtaine d from other profess ionals or experienced workers in that field. See id. ; Lawler, 679 S.W.2d at 955. But where there is no proof in the record of the cost of providing the ser vices or whether

money was made or lost and only the contr

act unit p ric e is p rovided t

he proof is not suff

icient to b ase an a

ward in quantum meruit. See Warren Bros., 540 S.W.2d at 247.
We conclude that

FUI’s proof of

damages is akin to that provided in Warren Bros. There is no explanation of profit or loss, no explanation of how the rental rat es w ere derived, and no testimonyof the customs, practices and prices prevailing in the rental equipmen t busine ss. The testimonyas to the value of the equipment subleased from a third- party ven dor was vague and speculative. FUI ’s proof of reas onable r

ental va lue was th

e contra ct price . In th at recovery in quantum meruit ca

nnot be ba sed upon th

e contra ct p rice, w e reverse the aw ard of th e trial c ourt. There is insuffici ent proof of the reasonable rental value of the equipment on which to base or calcula te an aw ard in qua

ntum merui

t.
Much like recovery

in quantum meruit, the lien statu te, on whi ch the cl aim

filed by Nations Rentis based, limits recovery to the “ reasonable rental value” of the e quipment. T ENN
. C ODE A NN
. § 66-11-101(5) (1993). The statute adds the furthe r restriction that recovery of reasonable rental value is limited to “the period of actual use.” Id. Also, the statute makes clear that use is “not determin able

by the contract for

rental u nless the owner is a

party there

to.” Id. Finally , the statu te excludes r

ecover y f or tools.
The proof of

the rent al value of the Na

tions Rent equipment c ame from t he deposition testimonyof Ted Petty, a c onsultant of Na tion s Rent. The sole fac t testifie d to by Mr. Petty concerning rental value wa s that the c ontract rate wa s the “be st” beca

use it was bas ed on a mon thly rental rate. Th

ere wa s also do cumentary pr oof consisting of a notice of nonpay ment which demanded

pay ment base d upon the

rental c ontract

amount, and the notice of lien, based as well upon the terms of the rental contract. The proof of rea sonable rental value, therefore, wa s based on and derived from the rental contract.
As quoted above, section 66-11-101(5) provides that reasona ble r ental val ue is not determin able

by t he contr act. I n that the proof of value in t

his case was d erived solely from the-4-

contrac t, we reve

rse the award by

trial judge. There

is insufficient proof of a reasonable rental va lue of the equipment on which to base or calculate an aw ard under the lien statute.
Fi na ll y, the appellants seek, in addition to reversal of the awa rds to the vendors, that the c ase be remande d “so that the trial court can ascertain, assess, and a ward . . . damages in defen ding the se lawsuits brough

t by Appellee s in prose cuting t he wrongful attac

hments of his real property .” While reversal by t

his Court make s a claim o f wrong ful attac hment poss ible, this C ourt’s re versal is not a determination or finding of wr ongful a ttachmen t. The ap pellants a re requ ired on r emand, sh ould they se ek su ch re co ve ry, to demonstrate the essential elements of a wrongful attachme nt claim. Our conclusion that there was insufficient evidence of p roof of va lue under

the lien st

atutes a nd in quantum meruit does not necessarily mean that the ap pellants are entitled to recover for wrongful attachme nt.
We therefore reverse the a wards of recove ry to the ven dors and r

emand thi s matter to the trial court. Co sts of this a

ppeal ar e taxed eq

ually to appell ees FUI

and Natio ns Rent.

___________________________________ ELL EN HOBBS LYL

E, SPECIAL JUDGE