1 M s. Shad wick w as de clared to be M r. Phillip s’ com mon -law wife b y decree of the Chancery Court

pursuant to a sui t fi led by Ms. Shadwick after his death.



### IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE Februar y 12, 2 003 Session
WANDA SHAD WICK, INDIVIDUA LLY, AND A S EXECUTRIX OF THE ESTATE OF KENNETH LEE PHILLIPS v. F . H. SHOEMAKER

DISTRIBUTORS, INC., ET AL 

### . Appeal from the Chancery Court for Scott County No. 8282 Billy Joe White, Chancellor FILED MAY 30, 2003

No. E2002-01525-COA-R3-CV

WandaShadwick, indi vi du al ly, and as Executrix of the Estate of her common-law husband, 1 Kenneth Lee Phillips, sued F. H. Shoemaker Distributors , In c., and Floy d H. Shoemaker, II . The theory of the la wsuit is that the D efenda

nts were guilty of abuse of proce ss in connection with the saleof certain real estate and persona l property owned by Kenneth L ee Phillips atthe time of

his death to pay a cla

im of the Corporation against his Estate. This claim, in the amount of $25,079.54, hadbeen sustained by the Probate Judge. We findthat neither the Corporation nor Mr. Shoemaker
are liable for the misdeeds of Max Huff 

### , the first attorney e

mployed by

them. Having so found, we revers e the judgment both as to compensatory da mages in the amount of $156,000 which, incident al ly, was higher than Ms. Shadwick’s testimony as to the wholesale value of the persona l pr op er ty, and of punitive damages in the amount of $250,000, which was the a mount of the ad damnum clause in the complaint. Mr. Shoemaker filed a counter-complaint seeking to recover the amount paid in delinquent taxes as to a house and lot he purchased at the purported sale, a s well as delinquent

taxes owed thereon. On this issue the jury found in favor of Ms. Shadwick and we affirm this determination.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed in Part; Affirmed in Part; Cause Remanded

H OUSTON M. G ODDARD , P.J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS and C HARLES D. S USANO , J R ., JJ., joined.-2-

Stephen A. Marcum, Huntsville, Tennessee, for the Appellants, F. H. Shoemaker Distributors, Inc., and Flo yd H. Sh oem ake r, II Johnny V. Dunaway , LaFollette, Tennessee, for the Appellee, Wanda Shadwick, individually , and as Executrix of the Estate of Kenneth Lee Phillips
OPINION

The Corporation andMr. Shoemaker appeal the awards, raising several issues. Howe ver, the determinative one contends that the Trial Court was in error in not sustaini ng their moti on for judgment notwithstanding the verdict in accordance with their motion for a directed verdict made at the close of

all the proof. Mr. Shoemaker raises an issue insisting that he is entitled to a judgment agains tthe Estate because he had paid an indebtedne ss secured by a deed of trust on a house and lot which he purportedly pur chased at the sale. Mr. Shoemaker also cont en ds he is entitled to a judgment for delinquent taxes as to this property , which he also paid.

The standard of

review for determining the propriety of a directed

verdict is well se ttled in this Stateandis set out in Wharton Transport Corp. v. Bridges , 606 S.W.2d 521, 525 (Tenn. 1980), as follow s:
"Onreview of the grant of a directed verdict on motion of a def endant, i t is not the office of an appellate court to weigh the evidence. Rather, it must take the strongest legitimate view of the evidence in favor of the plaintiff, indulging in all reasonable infer

ences in his favor, and disregarding a ny evidence

to the contra ry. The t rial judge's action may be sustained only if there is no material evidence in the re cord tha t would support a verdict for the plaintiff, under any of the theories that he has advanced." Cecil v. Hardin , 575 S.W.2d 268, 271 (Tenn. 1978). Following this rule, our task is to determine whether there is any material evidence to support the ver di ct. Ten n. R . Ap p. P . 13 (d) . In doing so, we accept as true the statement of facts necessary for d eterm in at io n o f t hi s a pp ea l s et ou t i n t he Pl ai nt if fs ’ b ri ef , w hi ch we ha ve ed it ed sl ig ht ly, principally to conform with the pr oof:

Kenneth Phi llip s owned and operated the “Three Way Garage” at the intersection of Highway s 27 and 52 in Elgin, Scott County, Tennessee for fo rt ysix ye ars. The

business s old, in add

ition to aut

omobile parts , gasoline, which Decedent purchas ed from Appel lant F. H. Shoemaker Distributors, Inc . Appellant
cor poration is a family-owned oil distributorship which is opera ted by it s president Appellant F. H. Shoemaker I I. Appellant had been Decedent’s primary fuel supplier

for twelve y ears, se

lling him p etroleu

m pro ducts, gasoline, diesel fuel, and kero sene. Du

ring the se twelve

ye ars, Mr. Sh o emaker maintained a “running account” for Decedent and his pay ments were attributed t o the oldest-3-

portion of his a

ccount. A

t the time of

his death on July 10, 1997, A

ppellant s claime d Decedent was indebted to the Appellant corpora tion for a sumo f $25,079.54.

Defendant’s Estate was opened by the Scott County

Probate Court on July 24, 1997, and Letters of Administration were issued to his common law wif e, Appellee Wanda Shadwick. De cedent a nd the App ellee ha

d been romantically involved and had lived together since 1977 in a house Dec edent built and owned in Elgin. Under the terms of Decedent’ s Will, Appellee, i n addition to being de si gn at ed Ex ec ut ri x o f t he Es ta te , w as al so na me d a s p ri ma ry b en ef ic ia ry. Following Decede

nt’s dea th and the

opening of his Esta

te fo r probate, Appellee continuedto operate the Three Way Garage, purchasing

her gasoline, as Decedent had done, from the Appellant corporation . Appell ee made regular pay ments to Appellants during this time. Mr. Shoemaker, however, deviat ed from his customary cour se of

dealing and standard practice with running accounts and credited on ly a portion of

Appellee ’s pay

ments to Decedent’ s outstand ing deb ts. Appellee kept the garage ope n until November, 1998, when it was shut down as a result of Appellants’ Execution Sale.

In Augus t, 1997, Ap

pellants’ local att

orney , Max Huff, filed a c laim agains tthe Estate for $25,079.54. Claims werealso filed by the Mutual Loan and Thrift Company

and by Methodist Med ical Center. Appellee retained a local attorney, Philip Kazee, to assist her with administration of the Estate

. In May and June, 1 998, well

before the Court c onsi d ered en terin g a Judgmentwith reg ard toAppellants’ claim, Mr. Huff fil ed Notice s of inten t to sell off Decedent’s realty

and personalty. The r

ealty consisted of the a

forementioned homein Elgin as well as the building and lot on which Three Way Garage was located. In his Notice, Huff listed the value of the tracts as being $41,300.00 and $49,500.00, respectively . The personalty in que stion was comprised entirely of Decedent’s inventory of automobile par ts he had kept for

sale in the three rooms of the garage. Huf

f scheduled a hearing for

July, 1998 to ad

judicate the Estate’s alleged debt, but Appellee’s counsel, Mr. Kazee, neglected to inform her of the hearing and rais ed no objection to Ap pellants’ claim. Following this hearing, the Probate Court issued, on July 22, 1998, an Order granting Appellant corporation Judgment ag ainst Decedent’s Estate in the amount of $25,079.54, but specifically f orbade Appellants’ request for an immediate

sale of any

of the Estate property

to satisfy the obligation. Mr. Shoemaker

verball y approved Mr. Huff seeking issuance of executions . . . which
were dated September 21 an d October 9, 1998. While executions and garnis hments are normally handled by the Sheriff’s Department, in this instance-4-

the executions were served on Appel lee by Constable Da vid Day and Attorne

y Huff. On the day

the execution was served, October 12, Mr. Huff ac companied Constable Day to Dece dent’s bu siness, although Mr. Day did not re quest him to do so. Upon thei

r arriva l, Huff to ok charge of the s ituation a nd told Appellee they
were go in g t o s el l a ll th e i nv en to ry a nd pe rs on al pr op er ty of Thr ee Way Garage and, if necessary , Decedent’s house and gar age. This encounter repre sented the first time Appellee ha d e ver heard of the July 22, 1998 he aring or the ensuing Judgment. When she asked Mr. Huff if he planned simply to put her out into the street, he merely

shrugged and walked a

way.
Constable Day and Mr . Huff then returne d the served copies of the Executions to the Probate Clerk’s O ffice. The Executions, while signed by Mr. Da y, had been filled out beforehand . . . by Mr. Huff. The executions contained
no inventory or identifica

tion of items levied upon. In dereliction of the statutory requirement

that a debtor’s personalty must be taken under the pers ona l control of t h e officer and inventoried, neither Day nor Huff took steps to seize the automobile

parts or catalog them. Huf

f subsequ ently

placed a n advert isement in
a local newspaper announcing that a “ Sher iff’s Sa le” of Decedent’s realty

and personalty would be he

ld on November 20, 1998.

Mr. Huff conducted

the sale of Dece dent’s r

eal and p ersonal

propert y on the date pro vided in th

e notice . Althoug

h the auction had been adve rtised asa “Sheriff’s Sale”, the Scott County Sheriff in fact p lay ed no role

in the matter - the entire affair

was stag e-mana

ged by Mr. Huff . Between fifty

and seve nty people attendedth e a uc ti on th at da y, including Mr. Shoema

ker. Huf f sold the pers onalty (autoparts inventory of

Three Way G arage) without having assessed the value of th e proff ered items. The inventory was purchased in its entirely by one person, Randy Corder ( “Mr. Cord

er”), a n auto par ts de al er fr om Pa rk er ’s Lak e, Ke nt uc ky, for $2,275.00. While Constable Day was pre sent and, pursua nt to Huf f’s instructi ons, colleted the proceeds obtained from the sale of the p ersonalty, neither he nor Mr . Huff ma

de a list of

the items sold to Corder. Huff thenprocee ded to sell the Three-Way

Garage building to the Appellant corporation, for $5,000.00. Mr. Shoemaker then personally purchased Decedent’s house for $35,000.00.

Mr. Day del

ivered t he $2,275.00 he had collected from the sale of persona lty to the Scott

County Probate C ourt Cler

k, Ms. Jan B urress ( “Ms. Burress.”). Huff took Appellant corporation’s $5, 000. 00 check, representing payment for the purchase

of Dece dent’s g arage , to the Cl erk’s Of fice on December

11, 1998. Huff also brought with him the $35,000.00 check issued by Mr. Shoemaker for the purchase of Decedent’s home and informed Ms. Burr ess that he wished to have the money placed in his private trust account to pay the costs of the sale. The clerk then indorsed the chec k over t o Huff

. Notwithstanding the fact that no Court Order had b een e ntered a uthorizing

the sale2 Although the Pro bate C ourt fo und th e sale of persona lty void, i t neverthel ess su rpris ingl y foun d that

the buyer was a bona fi de purc haser . Mo reov er, it found that, notw ithstand ing its ord er pro hibit i ng sale o f the Esta te pro perty, M r. Hu ff was no t guilty of co ntemp t of cou rt.

-5- nor disb ursement of the sale proceeds and notwithstanding that the othe r cred itors ’ claims had yet to be satisfied, H uff placed the$35,000.00 in his trust account and then without Court authorization used the funds to pay off the mortgage and back taxes owedon th e p ro pe rt y, which his c lients/Ap pellants h ad purch ased. He also deducte d his own f

ee from the depos ited fund s.
On December 14, 1998, a “Sheriff’s Report of Sale an d Breakd own of Proceed s” was filedwith the Probate Court. It had ostensibly been signed by

Mr. Da y, butMr. Day’s signature had in fact been signed by Huff without Day’ s permission.. These documents stated that $2,275.00 in proceeds had been obtainedfrom the sale of Decedent’s persona lty. However, the

Report did not specify the actu al items so ld. Also lis ted on the Break down wast he $5,000.0 0 payment made on Decedent’s gara ge. Following the pay outs for back taxes and mortga ge payoff, a

total of $12,067.10 remained from the $35,000.00 Huff h ad placed in his trust account and this was paid back into the Court by a check issued by him on the da y of the Re port’ s fil ing.

On December 16, 1998 , Ms. Burress issued, from the above tendered funds, a check

to Mr. Day

in the amo unt of $1,5 10.78, wh ich repr esented his officer’s commission on the Execution Sale. O n the s ame day, she also issued checks to Appella

nts totaling $764.22 and $17,067.00, respectively . No Court Order a uthorized these pa you ts. Following a meet ing w ith Mr. H uff in which he gave Appellee until the beginning of the new ye ar 1999 to either start pay ing Appellant Mr. Shoemaker as the new owner (of what had be en her p ersonal residence) monthly rent in the amount of $375.00 or vacate Decedent’s house. A pp ell ee then retained the undersigned

counsel to contest the Sheriff’s Sale of the Estate’s assets. Appellee immediately filed a

Petition with the Scott County Probate Court informing it of Mr. Huff’s disregard of its July , 1998 Order andseeking to void the November 20, 1998 Sheriff’s Sale.” Appellee obtained from the Court an injunction forbidding Appellan t to ou st Appellee from her home pending the resolution of the a ction. Alth ough Appellant contested Appellee’s Petition , t he Proba te Court ul

timately entere d Order s voiding

the Sale of Decede nt’s rea lty a nd person alty

2 on October 4, 1999 and December 20, 1999, respectively. Dec edent’s inventory ha d been purchas ed and mov ed out of St ate by a Kentuc ky r esident.

. . . .-6- Appellee filed, simultaneously with the Probate Pe

tition toVoid the Sale, the Complaint in this case in Chancery Court seeking compensatory and punitive damages from Appellants for wrongful execution and abuse of pr oces s . A jury trial on this Petition was conducted on February 13 and 14, 2002. The evidence pro ducedat trial d

emonstra ted that Mr . Huff ha

d unlawf ully execute d o n Appellee’s real and personal property , committing egre gious errors in the preparationand service of the Executions, had sold off Dece dent’s realty a nd persona lty at prices far below their true market va lue, and had

failed to inventory the auto par

ts and p ersonal property

sold, causing damage to Appellee. When question edon the discrepancy of the signatures on the Sheriff’s Report of S ale ” andthe “Disbursement

or Distribution of Proceeds,” Mr. Huff claimed that he had been given signature authority by Mr. Day

andhad sign

ed the Re ports in his name andat his behes t. At trial , howe ver, C onst able D ay denied h aving gi ven such authority to Huff and acknowledged the signatures were not his. Althoug h h e subseque ntly attempted to retract this statement upon redirect examination by Appellant’s counsel, he was neverthe less forced to acknowledge, a fter further questioning by A

ppellee ’s counse

l , that he had not in fact consented to Huff’s signing his name o n the docu

ments.

Mr. Day also testi fied tha

t, at the time he hadserved the Execution upon her, Appellee had told him the Estate h a d n o p er so na lt y up on wh ic h t o l ev y. However, when askedon redirect examination why he nonetheless completed and signed an Executi on on Pers onalty without ind

icati ng an ab sence of personal property to attac

h, he was unable to provide a satisfactory answer.
In addition to

the procedural irregularitiessurrounding the Executions and the disbursement of the proceeds, witness testimony also revealed that the sale of Decedent’s persona

lty a t a shockingly

lo w price had resulted in a p ointless depletion of the Estate’s assets. App ellee t estified that she had inventoried and pricedthe items o f invento ry and pers onal prop erty

at Dece dent’s bu siness wit h the help of various supplier catalogs and that the g arage i nve ntory sold to Mr. Corder for $2,275.00 actually had a value of $125,000.00.

Her assessment was corroborated by Mr. Corder himself, who testified on Appellee’s behalf

at the hearing. Mr. Corder, the owner of “Randy’sAuto Parts ” in Parker’s Lake, Kentucky operates a business selling new and used auto mobile parts, and he was recog nized as a n expert in

his field by the Trial Court. He stated that he had purchased almost all Decedent’s inventory and that there were a

lot of parts. I t had take

n him at lea st three o

r four da ys t o remove all of the parts wit h the help of several trucks and a U-Haul tra iler. Mr. Corder further

indicated that he thought he “got a real g ood deal” from the sale, as he had paid under $2,300.00 for the part s. He estimated tha t, had the parts been offered for

sale under ordinary circumstances, they

could have sold for well over $100,000.00.-7- Furt her proof of the garag e inventory’s va lue was provided by

a loc a l at to rn ey, Harold Jeffers (“Mr. Jeffers”), who had prepared Decedent’s tax returns for him from 1968 until his death in 1997. As the Three Way Garage had been a soleproprietorship, Mr. Jeffers had prepared 1040form tax re turns for Decede nt, as well as a Schedule C form with attachments to set out the income and expenses for the business.

These forms revealed that

Decedent had

reported his gro ss rece

ipts of his garage in 1995 as having been $249,782.00. The beginning value of his inventory for that year had

been $24 0,558.00. At the y ear’s e nd it was $197,620.00. Decedent’s 1996 gross receipts equaled $243,109.00. His beginning inventory for that year ha d had a value of $19 7,620.00, his end inventory was va lued at $196,850.00. Decedent’s gross r eceiptsfor the f

inal year of h

is life had equaled $181,653.00. His final inventory value w as listed as $158,950.00.

Mr. Shoemaker

attempted to downplay

his personal culpability at trial by
c ontending that Mr. Huff had been the age nt only of Appellant corpor ation and that he had not been an active participant

in Huff’s actions against Appellee. He
was nonetheless compelled to admit that, as president of Appellant c orporation, he had f ailed t o credit

Appellee ’s curr

ent pay ments to it a

gainst t he older debts incurred by Decedent and had only moved a gainst her be cause he ha d heard rumors she was pla

nning to liquidate the Estate. Shoemake r had als o persona

lly
a pprovedof Huff procuring Executions on Decedent’ s property and pr epa ring a deedto the Appellee’s residence. He had a ttended the execution sale arranged by Huff and had there p urchased, for himse lf and Ap pellant c orporat

ion, the on

ly
re alty that had belonged to Decedent, at price s well below even the value Huff himself had placed onthe rea

lty in his Notic e of I

ntent to Sell. Finally, Shoemaker had ordered Huff to prepare , for himself and Appellant corporation, deeds to the propert y a cquired from the E state at t

he void sa

le

Certain other und isputed f acts should be cons idered in addition to those hereinbefore stated from the Plaintiff’s brief.

The Plaintiff

sold one tract of land, as well as certain personal proper ty before the claim of Shoemaker, Inc ., was filed . It shou ld als o be no ted th at alt hough t he ord er of t he Pro bate J udge entered on July 24, 1998, d

id provide

that ther e would be n o sa le. It

also stated that judgment was granted in favor of Shoemaker “for which execution will issue.” A number of people attended the saleof personal property when it was purchased fo r the sum of $2,274.00, although there was consider able proof in t

he reco rd to show

it was worth in ex cess o f $100 ,000. As to t he garage propert y which was bought by

the Corporation, there was only one other bid in the amount of $500, that the bidding as to th

e house a nd lot sold to

Mr. Shoemaker for $35,000. Mr. Shoemaker did not know of any

problem with the pro cess. He did answe

r in the a ffirmat ive when ask ed by the Plaintiff’s counsel whether “Ma x Huff was your attorne y and y our agent?” A few questions3 Mr. Shoe maker’s ch aracterizat ion of h is and Mr. Huff’s r elat ionshi p is re ally of no conseque nce.

W hether a person i s an agent

of anoth er is a questi on of law and the l aw is c lear that i n thi s case t he att orney was an indep end ent co ntracto r. Givens v. Mull iki n, i nfra.

4 In fai rness to the Trial Judge , it should be not ed that

the opinion in Givens was fi led af ter t he tri al had
con clude d. It had , howe ver, b een filed prior to disposition of t he Court of post-tri al motions by the De fenda nts, but it does not appear it was ever called to t he Trial Court’s att ention.

-8- thereafter, when the question was put in another context, Mr. Shoemaker stated that Mr. Huff was not his ag ent. 3

The principa

l fallac y in

the trial of this case was the assumption by counsel for the Plaintiff th at Mr . Huff wa s an ag ent of the Defend ants, and

as a res ult, they

are vic ariously

liable fo r his misdeeds.

A number of issues were raised by the Defe

ndants. However, we believe that issue number
one is disposit

ive of this case. In Givens v. Mullikin , 75 S.W.3d 383 (Tenn. 2002), 4 our Supre me Courtclearly

states tha

t th e gene

ral rule an attorney is not an a

gent, but rather an independent contractor, although under certain circumstance s the client ma y be vicariously

liable for the acts of the attorney. B efore, however, the client can be held liable vicariously, the tortuous acts complained of must have been “directed, commanded or knowingly authorized by the client.”

In reaching this conclusion, our Supreme Court quoted with approval fr om a ca se decided by t he Texas Court of App eals, asfollows:

Unless a client i s i m plicated in some way othe r than merely

being represented

by t he attor ney alleged to have co mmitted the [tortious] conduct, the client cannot be liable for the attorney ’s conduct. A c ont rary holding w ould in effect obligate clients to monitor the actions taken by their attorneys whe

n t he ir at to rn eys are representing them, and re quire the clients to

seize the h

elm of their repres enta

tion at the slightest hint of [tortious] conduct. Most clients cannot possible mo ni to r t he ir at to rn eys to the degree that would be required to mee t such
an ob li ga ti on , a nd mo st , c le ar ly, ar e n ot qu al if ie d f or su ch mo ni to ri ng , a nyw ay.
Bradt v. W

est , 892 S.W.2d 56, 76-77 (Tex. App. 1994).

We have searched the recor d in this case andfind no proof that would justify a finding that Mr. Shoemaker dire cted, com manded or knowing ly a

uthorized the misdeeds committed by his attorne y. T he only proof tou ching o n the ques tion is as f ollows: “Q Did

you have a

ny personal pa

rticipation in the issuance of Execution and Garnishm ent?-9-

A Only

verbal. Q Tell me a

bout the ve

rbal.

A I just approved it.”

We emphasize, as already noted, that issuance of an execution was authorized by the Probate Judge. Notwithstanding Givens , c ounsel fo r the Plain

tiff cont ends that the trad itional respondeat superior doctrine should app ly, which wou ld rende r the Def endants l iable fo r the ac ts of their at to rn ey. We cannot agree. Suppose, for instance, a client d irects his attorney

to intervi ew a witness andthe attorney, while on this mission, speeds throug h a 15 mile per hour school speed zone at 75 miles per hour, injuring students who were leaving school after c lasses ha

d been dis missed. Would the clien t be liable for dama ges re sulting f

rom injuri es to the s tudents? We think not.

We conclude

in light of Givens and the proof introduced, that neither Mr. Shoemaker nor the Corporation is liable t

o the Plain

tiff for the tortious acts c ommitt ed in connection with the sale of th e r ea l a nd pe rs on al pr op er ty. Finally as to this point, we are somewhat puzzled thatapparently no suit wa s ever brought agains tMr. Huff or

Mr. Day, who unde

r the record were perpe

trators of the acts complained of. Also, it does not appear that a suit was filed against Ms. Shadwick’s first attorne y who allowed a judgment to be entered

in the Prob ate Court

in favor of

the Corpo

ration without–ac cording to Ms. Shadwick’s testimony–consulting he r, or even advising her such a judgment had been rendered.

Becau se the award of compensatory damages is reversed, the awa rd of punitive d ama ges must also be reversed. Liberty Mutual Insurance Company v. Stev enson , 368 S.W.2d 760 (Tenn. 1963); Roy v. Diamond , 16 S.W.3d 783 (Tenn. Ct. App. 1999).

As to the issue contending Mr. Shoemaker was entitled to recoup his pa yment of th e outstanding mortgage and the delinquent taxes on the house and lot he pur ported to purchase, we first observe that his attorney

made these pay

ments and that Mr. Shoemaker never obtained a deed to the pro perty . Whileit might be argued that the Estate was unjustly enriched an d, co ns eq ue nt ly, Mr. Shoemaker is entitledto recover under the theory of quantum meruit , we firs t observe that this theory appears only

to be applicable upon the fu rnish ing of goods and services, neither of which occurredin the case at bar. We also note the requirements re lative to application of the doctri n e found in the recent case of Doe v. H CA Health Services of

Tennessee, 46 S.W.3d 191, 197 (Tenn. 2001), which quote s with appro val from Swafford v. Harris , 967 S.W.2d 319 (Tenn. 1998), as follows:-10- A quantum me

ruit acti on is an equitabl e substitut e for a c ontract

claim pursuant to which a party ma

y recove r the reasona

ble value of goods and services provided to anothe r if the f ollowing circumst ances a re shown : (1) There is no existing, enforceable contract between the parties covering the same subject ma

tter; (2) The party

seeking recovery

proves that it providedvaluable goods or service s; (3) The p arty

to be cha rged r eceive d the go ods or ser

vices; (4) The circ

ums tance s indicate

that the p arties to

the tran saction s hould have reasonably

unders tood that the person providing the goods or service s expected to be compensated; and (5) The circumstances demonstrate that it woul d be unju st for a p arty to retain the goods or services without pay ment. We do not believe the factors justify ing such a recovery

have been met in this case.

We also note that the co unte r-complaint was mentioned only f leetingly in the ope

ning statement of counsel for the Defendants and not at all in his argument at the conclusion of the trial

. Further, it appears that although co unsel for the parties submitted their contentions as to the jury charge, no mention was made of the count er-cla im and the

jury was not c

harge d in any

wise with respect thereto.

Given the foregoing circumstanc es, we are disin clined to disturb the jury verdict whic h was approved by the

Trial Court finding in favor of the Counter-Defe ndant, Ms. Shadwick.

For the foregoing reasons the judg ment of the Trial Cour

t is reversed in part, affirmed in part andthe cause remanded for collection of c osts below. Costs both below and on appeal are adjudged one-half to Wanda Shadwick, Individually , and as Executrix of the Estat e of Ken neth L ee Phillips , and one -ha lf t o F. H. S hoe mak er D is tri but ors , Inc ., a nd F lo yd H. Sh oem ake r, II.

_________________________________________ HOUSTON M. GODDARD, PRESIDI NG JUDGE