The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
March 30, 2001 Session
THE WEATHER DOCTOR SERVICES CO. , INC., v. Mark Stephens, ET
AL.
Appeal from the Chancery Court for Knox County
No. 14066-2 Daryl R. Fansler, Chancellor
FILED JULY 27, 2001
No. E2000-01427-COA-R3-CV
This is a suit in quantum meriut by The Weather Doctor Services Co., Inc., a subcontractor of David
T. Goldnetz, d/b/a Architectural Custom Home Builders, Inc., against Mark Stephens and his wife
Cindy Stephens. The Trial Court sustained the Stephenses' motion for summary judgment, finding
that the undisputed facts did not sustain a cause of action in quantum meriut. We affirm.
Tenn.R.App.P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed;
Cause Remanded
HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
CHARLES D. SUSANO, JR., JJ., joined.
J. Nolan Sharbel and J. Terry Holland, Knoxville, Tennessee, for the Appellant, The Weather Doctor
Services Co., Inc.
April D. Carroll and Bruce D. Fox, Clinton, Tennessee, for the Appellees, Mark and Cindy Stephens
OPINION
This is a suit in quantum meriut by The Weather Doctor Services Co., Inc., a subcontractor
of David T. Goldnetz, d/b/a Architectural Custom Home Builders, Inc., against Mark Stephens and
his wife Cindy Stephens seeking to recover the balance owed as to heating and air-conditioning units
furnished on a residence being erected by the Stephenses. The Trial Court sustained a summary
judgment in favor of the Stephenses, based upon the following statement in the affidavit of Mr.
Stephens, which accompanied his motion for summary judgment:
6. That I provided payment to David Goldnetz to pay for the services and
materials provided by The Weather Doctor.
The Trial Judge found that the countervailing affidavit filed on behalf of Weather Doctor
was not timely because it was not filed within five days of the date of the hearing as required by
Tenn.R.Civ.P. 56.04. He further found that even if the affidavit had been timely filed it was not
sufficient to raise a material issue of fact.
Weather Doctor’s appeal contends that the Trial Court was in error in not considering the
late-filed affidavit, and even if the affidavit is not considered, summary judgment was improper.
The standard of review as to summary judgment has been recently restated in the case of
Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 88 (Tenn.2000):
The standards governing an appellate court's review of a motion for
summary judgment are well settled. Since our inquiry involves purely a question
of law, no presumption of correctness attaches to the lower court's judgment, and
our task is confined to reviewing the record to determine whether the requirements
of Tenn. R. Civ. P. 56 have been met. See Hunter v. Brown, 955 S.W.2d 49,
50-51 (Tenn.1997); Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744
(Tenn.1991). Tennessee Rule of Civil Procedure 56.04 provides that summary
judgment is appropriate where: (1) there is no genuine issue with regard to the
material facts relevant to the claim or defense contained in the motion, see Byrd
v. Hall, 847 S.W.2d 208, 210 (Tenn.1993); and (2) the moving party is entitled
to a judgment as a matter of law on the undisputed facts. See Anderson v.
Standard Register Co., 857 S.W.2d 555, 559 (Tenn.1993). The moving party has
the burden of proving that its motion satisfies these requirements. See Downen
v. Allstate Ins. Co., 811 S.W.2d 523, 524 (Tenn.1991). When the party seeking
summary judgment makes a properly supported motion, the burden shifts to the
nonmoving party to set forth specific facts establishing the existence of disputed,
material facts which must be resolved by the trier of fact. See Byrd v. Hall, 847
S.W.2d at 215.
To properly support its motion, the moving party must either affirmatively
negate an essential element of the non-moving party's claim or conclusively
establish an affirmative defense. See McCarley v. West Quality Food Serv., 960
S.W.2d 585, 588 (Tenn.1998); Robinson v. Omer, 952 S.W.2d 423, 426
(Tenn.1997). If the moving party fails to negate a claimed basis for the suit, the
non-moving party's burden to produce evidence establishing the existence of a
genuine issue for trial is not triggered and the motion for summary judgment must
fail. See McCarley v. West Quality Food Serv., 960 S.W.2d at 588; Robinson v.
Omer, 952 S.W.2d at 426. If the moving party successfully negates a claimed
basis for the action, the non-moving party may not simply rest upon the pleadings,
but must offer proof to establish the existence of the essential elements of the
claim.
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The standards governing the assessment of evidence in the summary
judgment context are also well established. Courts must view the evidence in the
light most favorable to the nonmoving party and must also draw all reasonable
inferences in the nonmoving party's favor. See Robinson v. Omer, 952 S.W.2d
at 426; Byrd v. Hall, 847 S.W.2d at 210-11. Courts should grant a summary
judgment only when both the facts and the inferences to be drawn from the facts
permit a reasonable person to reach only one conclusion. See McCall v. Wilder,
913 S.W.2d 150, 153 (Tenn.1995); Carvell v. Bottoms, 900 S.W.2d 23, 26
(Tenn.1995).
In light of the fact that the Trial Judge was simply following the Rules of Civil Procedure,
we do not find error in his failure to consider Weather Doctor’s affidavit.
The leading case addressing quantum meriut is Paschall’s, Inc. v. Dozier, 407 S.W.2d 150
(Tenn. 1966), wherein the Supreme Court stated the following:
[W]e hold that where a materialman or subcontractor furnishes labor or
materials which benefit the property of a person with whom there is no privity of
contract, an action on quantum meruit may lie against the landowner to recover
the reasonable value of said labor and materials so furnished.
We wish to make it clear that recovery on such an action may not be had
in every instance where a subcontractor or materialman has furnished materials
or labor which benefit a third person. Our decision in this case is limited to
affirming the propriety of quasi contract as a remedy in such factual situation.
Each case must be decided according to the essential elements of quasi contract,
to-wit: A benefit conferred upon the defendant by the plaintiff, appreciation by the
defendant of such benefit, and acceptance of such benefit under such
circumstances that it would be inequitable for him to retain the benefit without
payment of the value thereof.
The most significant requirement for a recovery on quasi contract is that
the enrichment to the defendant be unjust. Consequently, if the landowner has
given any consideration to any person for the improvements, it would not be
unjust for him to retain the benefit without paying the furnisher. Also, we think
that before recovery can be had against the landowner on an unjust enrichment
theory, the furnisher of the materials and labor must have exhausted his remedies
against the person with whom he had contracted, and still has not received the
reasonable value of his services.
A recently unreported case from this Court, Bonham Group, Inc., v. City of Memphis, 99
WL219782,7, reaffirmed the holding of Paschall’s.
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We conclude that even including the affidavit filed by Weather Doctor, which does not
dispute that portion of Mr. Steven’s affidavit hereinbefore quoted, precludes recovery under the
doctrine asserted.
For the foregoing reasons the judgment of the Trial Court is affirmed and the cause remanded
for collection of costs below. Costs of appeal are adjudged against The Weather Doctor Services
Co., Inc., and its surety.
_________________________________________
HOUSTON M. GODDARD, PRESIDING JUDGE
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