# FILED December 9, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESS EE

EAST ERN S ECTI ON

C. SAM RO BERTS, ) C/A NO. 03A01-9706-CH-00199 ) Plaintiff-Appell ee, ) UNI ON CHANCERY ) v. ) HON. BI LLY JOE WHITE ) CH ANCELL OR JAMES E. HOUSTON, ) ) RE VERSE D AND De fend ant-A ppella nt. ) DIS MISSED

MA RY E. LO WE and H ENRY T. OGLE , Knoxvill e, for Pl ainti ff-Appelle e. JOH N P . VA LL IAN T, JR ., Kno xville, fo r De fend ant-A ppella nt.

O P I N I O N Franks, J.
Plaintiff brought

this acti on against

defendant and hi s wife, Diane , alle ging that

defendant “entered into agreement wit h plaint iff for pl ainti ff to grade and excavate . . . i n order t o make said l and usable” . Plai ntiff further averred t

hat he expended over $29, 000.00 for hea vy equi pment and operat ors on excavat ion, a nd “pur chas ed an d installe d pip ing at th e cos t of $3 ,604.0 0, for a total du e in the amo unt of $33,530.09".

Defendant denied i n his answer t hat he had cont

racte d with plai ntiff

for

an y w or k o n h is p ro pe rty.

The record shows that defendant ’s wife, Diane, was the daughter of plaintiff and this action was b rought af ter defend ant and D iane had se parated. In defe ndan t and D iane’s divo rce ac tion, de fend ant w as aw arded the pro perty in ques tion, an d plain tiff, bef ore trial, n onsu ited D iane a s a pa rty defen dant.2 At tri al, plaint

iff t esti fied that he had an agreement with def endant on the proper

ty “to fi ll i t in and i n which we would do the gradi ng work for them to c over it”. He testi fied that the agreement was made between him and defendant at defendant’ s house, and that defendant’ s wife was present when the agreement

was made. He further

testifie d when he was doing work on the property the defendant observed the work and did not make any complaint s about t

he work. He was then asked: Q. All righ t, now how mu ch m oney did you spe nd. D id it

accumulate in charge s the time you were working on thi s job? A. It was over

$30,000.00. The defendant fl atly

denied that he and pl ainti ff ever ent ered into any agreement r egarding payi ng for the work done by plaint iff. Defendant tes tifi ed that when he and his wife bought the proper

ty it was hi s underst anding that “Sam impro ved - to w ork f or a d ay. And that is w hat I w as think ing it w as. H e nev er did say he was going to charge us any thing” and it was onl y after the di vorce was fil ed that pl ainti ff clai med money was owed. He was also aske d the question:

Q. Are you aware of a ny agr eement or t he substance of any agreement between Mr. Roberts and hi s daughter , Diane? A. He was going to improve t hat proper

ty for Diane. He was doing work for Diane on our pr operty . That i s allI know when I talked to hi m. At th e con clusion of the trial, the T rial Co urt ruled that de fend ant ha d agr eed w ith plaint iff for t he plai ntiff

“to do thi s work”. The Court t hen said t

hat he was famil iar with the pr opertywhich he deemed “practical ly worthles s, prior t o the work being done, and the property most certa inly

now is valuabl e.” He conclude d by ruling: so, ba sed u pon quan tum m erit theo ry, the plaintif f w ould be en titled to recover hi s $33,508. 09. Our review of the T rial Court’s j udgment is de novo with a pres umption that t he TrialCourt’s f

indings of fact are correc t. T. R.A.P. Rule 13( d). The non-3

suited c o-de fend ant da ugh ter did n ot testify at trial, an d the e viden ce is sh arply disput ed on the posi tion of whether a contract was entered bet ween the plai ntiff and the de fend ant to d o the g rading and f ill work . The evide nce d oes n ot prep ond erate aga inst th e T rial C our t’s fin din g th at de fen dan t ente red a co ntra ct w ith th e pla intif f. Ho we ver , the p laint iff d id n ot h ave a lice nse to en gag e in “ con tract ing ”. See T. C. A. §62-6-101 et seq. Du e to this f act, def enda nt insists th at plain tiff is no t entitled to recover for

his work, and reli es upon T.C.A. §62- 6-103 which provi des in pertinent part: Reco very of Ex penses by U nlicensed Con tractor - (a)(1) . . . It is

unlaw ful fo r any pers on, firm or co rpora tion to e ngag e in, or o ffer to engage in, contrac ting as hereinabove descri bed, unl ess such per son, firm o r corp oration has b een d uly license d un der the prov isions o f this cha pter . . . (b) Any unl icensed c ontractor covered by the provi sions of t

his chapter shallbe permitted in a

court of e quity

to recove r actua l documented expenses onl y upon a s howing of clear and convinci ng proof. Plaintiff al so call ed as a witne ss James Brewer who was a dozer oper ator, and he testifie d that he moved dirt on t he lot and “guessed” t

hat he worked seve n or eight

mo nths. O n cro ss-exa mina tion, he testified that he wa s paid by cash and th at Ro berts never furni shed him with a t ax form 1099. Pl ainti ff also ca lled J ake Haynes who operate d Haynes Machinery Sales, Inc. Hay nes tes tifi ed that he had rent ed plai ntiff

a tractor, b ut he d id no t keep up w ith w here p laintiff u sed h is mac hinery. H e did observe the piece of equipment on the l ot in ques tion on one oc casion, because he had been call ed to repa ir and oi l leak. He offered s ome invoices of hours the equipment was rented t o plaint

iff, and testifie d that payments were made in cash and by thir dpartychecks. He re call ed that on one occasi on plaint

iff had gi ven him a check for $4,000.00 and he gave the pl ainti ff $3,000. 00 cash, and applied $1, 000.00 to t he

acc oun t. With due defere nce to the Chancellor , thi s case was nei ther pl ed nor tried on t he th eor y of q uan tum me rit. See Pa sch all’s , Inc . v. D ozie r, 407 S.W.2d 1504

(Te nn. 1 965 ).

Plaintiff’s pleadi ngs and evidenc e are that the defendant entered into an oral co ntract w ith the p laintiff to do th e grad ing an d fill w ork o n def enda nt’s pro perty and th at def enda nt agre ed to p ay plaintiff for this wo rk. Plain tiff’s ev idenc e, in eff ect, establishes a con tract which w as illegal under the p rovisions of th e “Co ntractor’s Licensi ng Act of 1994". Moreover, as a genera l rul e, where a caus e of acti on is base d upo n an illeg al co ntra ct, rec ove ry can not be h ad o n a q uan tum me rit. See Hotel v. Ewing , 124 Te nn. 5 36 ( Te nn. 1 911 ).

Plaintiff’s remedy on t

he evidence be fore us i s provide d in the abovequoted sect

ion of T.C.A. §62- 6-103 and is limi ted to “ actualdocumented expenses only up on a s how ing o f clea r and conv incing proo f.” Pla intiff’s a ction m ust fail because fi rst t

he evidence doe s not est ablis h actualdocumented expenses , and we find that t he proof that was offered on t he same is not

clear and convinci ng. Ac cord ingly, we revers e the T rial Co urt’s jud gm ent an d dism iss this action at app ellee’s c ost.

__________________________ Herschel P. Franks, J. CONCUR:

___________________________ Houston M . Goddard, P.J.

___________________________ Don T . McM urray, J.