             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                          FILED
                                                             June 29, 1999

BRUCE A. SIMPSON,              )                          Cecil Crowson, Jr.
                               )                         Appellate Court Clerk
     Plaintiff/Appellant,      )
                               )              Appeal No.
                               )              01-A-01-9809-CV-00493
VS.                            )
                               )              Davidson Circuit
                               )              No. 96C-1496
BICENTENNIAL VOLUNTEERS, INC., )
PARTNERS FOR ENVIRONMENTAL )
SOLUTIONS, INC., INNOVATIVE    )
TECHNIQUES, L.L.C.,            )
                               )
     Defendants/Appellees.     )


       APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
                    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 Bicentennial Volunteers, Inc.

JOSEPH P. RUSNAK
315 Deaderick Street
Nashville, Tennessee 37238
      Attorney for Defendant/Appellee Partners for
      Environmental Solutions, Inc.



                   AFFIRMED IN PART; REVERSED IN PART;
                             AND REMANDED



                                                     BEN H. CANTRELL,
                                                     PRESIDING JUDGE, M.S.


CONCUR:
KOCH, J.
COTTRELL, J.


                                OPINION
              This is an action for payment of the costs of renovating a truck and

trailer to be used as a mobile solid waste exhibit. The plaintiff sued the parties

involved in developing the exhibit on the basis of contract and quantum meruit and

sought to enforce the liens provided by Tenn. Code Ann. § 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 trailer and certified the dismissal as a final judgment

under Rule 54.02, Tenn. R. Civ. Proc. Because we find there are factual disputes

affecting the quantum meruit claim against the owner, we reverse and remand for a

consideration of the merits on this theory.



                                          I.



              In June of 1995, Bicentennial Volunteers, Inc. (BVI) and Partners for

Environmental Solutions, Inc. (PES) agreed to “cooperate in constructing a second

solid waste mobile exhibit, and maintaining and operating both units.” The agreement

provided that BVI would furnish a truck and trailer and PES would design and

construct the exhibit.   After the exhibit was completed, BVI would arrange for

maintenance and operation while PES would schedule the exhibit and arrange funding

for operating and maintenance costs. At the end of the project the truck and trailer

and all installed equipment, except exhibit materials, would revert to BVI.



              PES contracted with Innovative Techniques, L.L.C. to construct the

exhibit. Due to a shortage of space and the pressure to complete the exhibit in a

timely fashion, Innovative Techniques, L.L.C. contracted with Bruce Simpson to do a

major part of the work for a contract price of $40,005. Mr. Simpson performed the

work at his own shop, and he has an $18,245 outstanding balance on his bill.



                                          II.




                                         -2-
              Mr. Simpson sued BVI, PES, and Innovative 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 summary judgment, the moving party has the burden of

showing that no genuine issue of fact exists and that the movant is entitled to

judgment as 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 very few facts in dispute; and the facts that are

in dispute relate to the relationship between BVI and PES. In order to sustain his

contract theory, Mr. Simpson asserts that BVI and PES were engaged in a joint

venture or that PES was BVI’s agent when PES contracted for the work to be done

on the truck. In either case BVI arguably would be bound by the terms of the contract.

See Williamson Leasing Co. v. Kephart, 627 S.W.2d 683 (Tenn. App. 1981) and

Intersparex Leddin KG v. Al-Haddad, 852 S.W.2d 245 (Tenn. App. 1992). In all of

this, it seems to us, Mr. Simpson concedes that BVI did not contract with him directly.



              The missing link on the contract theory, however, is any evidence from

which a finder of fact could conclude that PES contracted with Mr. Simpson. Mr.

Simpson himself says that he did the work for Innovative Techniques, L.L.C.. The

other affidavits in the record all deny that PES had a contract with Mr. Simpson.

Therefore, BVI was entitled to summary judgment on the contract theory.



                                          III.



              The unjust enrichment issue is not so simple. A claim for unjust

enrichment in Tennessee rests, in part, on the fact that the parties did not have 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 retain the benefit without paying for it. CPB


                                         -3-
Management, Inc. v. Everly, 939 S.W.2d 78, 81 (Tenn. App. 1996). The amount of

the recovery is the value of the benefit conferred, not the cost to the furnisher.

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



              We think that whether BVI received a benefit from Mr. Simpson’s service

is a question of fact. The truck and trailer belonged to BVI. Mr. 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 benefit whatever. We think that

presents a classic factual dispute. Therefore, BVI was not entitled to summary

judgment on the unjust enrichment claim.



                                           IV.



              The two statutory liens provide protection 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 at the request of the owner, or the
              owner’s agent, in favor of the mechanic, contractor,
              founder, or machinist who makes on any such vehicle
              mentioned any repairs or puts thereon any improvements,
              fixtures, machinery, or materials; provided, the lien herein
              created shall not extend to, nor shall the provisions of this
              section and § 66-19-102 be construed as in any way
              affecting the right and title acquired by a purchaser
              without notice.



              In contrast, Tenn. Code Ann. § 66-19-103 provides a lien for

garagekeepers:

                     (a)    Garagekeepers          or    establishments
              substantially in the business of towing vehicles for hire,
              pursuant to the provisions of title 55, chapter 16,
              hereinafter referred to as “towing firms” shall be entitled to
              a lien upon all vehicles, which lawfully come into their


                                          -4-
              possession and are retained in their 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 possession or not. Gem Motor

Co. v. Securities Inv. Co., 65 S.W.2d 590 (Tenn. App. 1933). But it requires that the

work be done “at the request of the owner, or the owners’ agent.” We think that

means that the owner or the owner’s agent must request the work from the person

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 request of the owner or the owner’s agent.



              Both statutes pose problems for Mr. Simpson. He no longer has

possession of the vehicle, and we have previously held that 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




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_____________________________
PATRICIA J. COTTRELL, JUDGE




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