                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                      May 8, 2003 Session

                   JOE R. CRAFT v. FORKLIFT SYSTEMS, INC.

                      Appeal from the Circuit Court for Davidson County
                           No. 01C-1864     Carol Soloman, Judge



                     No. M2002-00040-COA-R3-CV - Filed July 14, 2003


This is an appeal from a judgment for Plaintiff in a breach of contract action. The trial court awarded
judgment on equitable principles, without any findings as to whether or not the contract had been
breached by Defendant. The judgment is reversed.

           Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                Reversed and Remanded

WILLIAM B. CAIN , J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., J., and
PATRICIA J. COTTRELL, J., joined.

Douglas E. Jones, Nashville, Tennessee, for the appellant, Forklift Systems, Inc.

Lance B. Mayes, Nashville, Tennessee, for the appellee, Joe R. Craft.

                                             OPINION

        This is a suit for breach of contract wherein Appellee Joe R. Craft sued Forklift Systems, Inc.
for alleged unpaid commissions on equipment sales. Craft was employed by Forklift in 1996 as a
commission salesman under contract and remained in such employment until January 19, 2001.

        The suit originated in General Sessions Court by civil warrant issued May 14, 2001 in which
Craft asserted:

       The Plaintiff was employed by Forklift Systems, Inc. until January 19, 2001. Prior
       to this date, the Plaintiff sold equipment and per an agreement with Forklift Systems,
       Inc. is entitled to commissions for certain sales made during the Plaintiff’s term of
       employment. The Defendant breached their contract with the Plaintiff in that they
       failed to pay the Plaintiff his commissions. Based upon the above the Plaintiff sues
       for Breach of Contract, unjust enrichment and other equitable remedies in the amount
       of $8,956.43 plus attorney fees, court costs and punitive damages. [sic]
       Trial in General Sessions Court resulted in judgment for Plaintiff in the amount of $4,115.18
entered on June 12, 2001. This judgment was appealed to the Circuit Court.

       Trial in Circuit Court resulted in a judgment for Plaintiff entered December 3, 2001 and
providing:

                After thoroughly reviewing the record, post-trial briefs, and testimony given
       in this matter, this court is of the opinion that equity requires the Plaintiff be awarded
       judgment in this case. Specifically, the court found that Plaintiff was a sales person
       of large equipment such as fork-lifts. Plaintiff was the sole salesperson for
       Defendant Forklift Systems, Inc. Plaintiff was very skilled in determining the cost,
       delivery and extra charges that should be added to the equipment he sold in order to
       compute his commission and give the customer the final price. Mr. Craft testified
       that if anything, he over-estimated these costs in order to protect the company’s profit
       and his commission.
                The Defendant did not produce any actual documentation of parts or
       discounted labor that was not routinely included in Plaintiff’s computations. Any
       repairs to equipment were performed “in-house,” but the Plaintiff, by Defendant’s
       calculations, was charged retail rates. Plaintiff was also charged for the cost of doing
       business, to wit, a $300.00 administration fee to cover accounting costs.
                Equity requires that the Plaintiff be paid for the work he accomplished.
       Therefore it is Hereby ORDERED, ADJUDGED, AND DECREED that the Plaintiff
       be awarded a judgment in the amount of $11,917.44 plus pre-judgment interest.
                Attorneys fees shall be considered when an appropriate motion and affidavit
       are filed. Court costs are taxed to the Defendant.

From this judgment Forklift Systems, Inc. perfected a timely appeal.

       The standard of review on appeal is de novo with a presumption of the correctness of the
findings of fact of the trial court unless the preponderance of the evidence is to the contrary of such
findings. Tenn. R. App. P. 13(d); See Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn.
1995). Questions of law are reviewed de novo but no presumption of correctness attaches to the
findings of law of the trial court. Tenn. R. App. P. 13(d); see Bank/First Citizens Bank v. Citizens
and Assoc., 82 S.W.3d 259 (Tenn. 2003).

        Two serious problems with the record in this case are evident. First, we have an inadequate
testimonial record. We are provided with neither a transcript of the proceedings in the trial court nor
a statement of the evidence prepared in accordance with Tenn. R. App. P. 24(c). Ordinarily, this
deficiency is fatal to the appellant in non-jury cases.

             When a trial court decides a case without a jury, [it’s] findings of fact are
       presumed to be correct unless the evidence in the record preponderates against them.
       Tenn.R.App.P. 13(d). This court cannot review the facts de novo without an


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       appellate record containing the facts, and therefore, we must assume that the record,
       had it been preserved, would have contained sufficient evidence to support the trial
       court’s factual findings. McDonald v. Onoh, 772 S.W.2d 913, 914 (Tenn.Ct.App.
       1989); Irvin v. City of Clarksville, 767 S.W.2d 649, 653 (Tenn.Ct.App.1987); Gotten
       v. Gotten, 748 S.W.2d 430, 432 (Tenn.Ct.App.1988).

Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn.Ct.App. 1992).

       The fact that much of the evidence in the case consists of the documents establishing the
contractual relationship between the parties does not solve the problem. As held in Wells v.
Tennessee Board of Regents, 9 S.W.3d 779 (Tenn. 1999), this Court may ordinarily review
documentary proof without affording deference to the trial court’s findings of fact. As in Wells,
however, the documentary proof submitted is not the only evidence that was before the trial court,
and without a testimonial record of such other evidence, the rule in Sherrod v. Wix prevails.

        The second problem appears from the non-testimonial record and compels reversal of the
judgment. This is plainly and completely a case involving alleged breach of contract. One may
search in vain the trial court’s judgment, the documentary evidence before us and, indeed, the briefs
of both parties for anything making an issue in equity. Forklift Systems, Inc. either breached the
contract between the parties or it did not.

       The civil warrant alleges that “Plaintiff sold equipment and per an agreement with Forklift
Systems, Inc. is entitled to commissions for certain sales made during the Plaintiff’s term of
employment.” The specific sales in issue are the Martin Crating account, the Stover Wholesale
account, the Sparta Spoke account, the Aristokraft Cabinets account, the Townsend Engineered
account, the Toshiba American Distribution account, the Voyager Carpets account and the Toshiba
American Consumer account.

        Every dime allegedly owed by Forklift Systems, Inc. to Appellee Craft is based upon a
difference of opinion between the parties as to mathematical calculations under the terms of the
contract. Appellant asserts that in some of these sales the commission rate was 23% of gross profit
under the terms of the contract while Appellee asserts that the commission rate was 35% of gross
profit under the terms of the contract. As further example under the Stover Wholesale account Craft
asserts that gross profit was $3,300.00. He further claims that this gross profit of $3,300.00
multiplied by his 35% commission results in a total commission of $1,155.00. Appellant, on the
other hand, asserts that Craft’s calculation of gross profit does not take into consideration parts and
labor together with administrative expenses which would have reduced gross profit on the Stover
Wholesale account to $198.69 resulting in a proper commission to Craft of $74.80. Each of these
calculations is based on differing views of the proper interpretation of the contract. No where is
there room for equity to intervene in this pure contract action.

      “Equity follows the law. Where there is no legal liability, equity can create none.”
Henderson v. Overton, 10 Tenn. 394, 397 (Tenn. 1830); Bedwell v. Bedwell, 774 S.W.2d 953, 956


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(Tenn.Ct.App. 1989); Metropolitan Life Insurance Company v. Owens, 246 S.W.2d 971, 972 (Tenn.
1952). “When in doubt equity follows the law.” Tennessee-Carolina Mills v. Mauk, 14 Tenn. App.
517, 519 (Tenn.Ct.App. 1931). What appears to be fair as a matter of equity cannot prevail in the
face of constitutional, statutory or contractual provisions governing the rights of the parties. As the
Supreme Court of Nevada observed,

                Our equitable powers do not extend so far as to permit us to disregard
       fundamental principles of the law of contracts, or arbitrarily to force upon parties
       contractual obligations, terms or conditions which they have not voluntarily assumed.
       In this regard, equity respects and upholds the fundamental right of the individual to
       complete freedom to contract or decline to do so, as he conceives to be for his best
       interests, so long as his contact is not illegal or against public policy. In this respect,
       and many others, equity follows the law. Much as we would like to relieve the
       appellant from his unfortunate situation, we cannot rightfully do so, as we must
       maintain the necessary certainty, stability and integrity of contractual rights and
       obligations.

McCall v. Carlson, et al., 172 P.2d 171, 187-88 (Nev. 1946).

       Consequently, where the remedies available to a litigant are circumscribed by the boundaries
drawn “at law,” such as in a breach of contract case, principles of equity cannot create rights outside
those boundaries. See generally Swartz v. Atkins, 315 S.W.2d 393 (Tenn. 1958); Bedwell v. Bedwell,
774 S.W.2d, at 956.

        In the final analysis the Missouri Court of Appeals succinctly stated the rule to be applied in
breach of contract cases. “The rights of the parties are to be determined from the contracts into
which they entered and the consequences of those contracts and not from some generalized concepts
of equity.” Norcomo Corp. v. Franchi Construction Co., Inc., 587 S.W.2d 311, 317 (Mo.Ct.App.
1979).

       This Court has held: “The essential elements of any breach of contract claim include (1) the
existence of an enforceable contract; (2) nonperformance amounting to a breach of the contract, and
(3) damages caused by the breach of the contract.” Custom Built Homes v. G.S. Hinsen Co., Inc.,
1998 WL 960287 (Tenn.Ct.App. Feb. 2, 1998)(citing LifeCare Ctrs. of Am., Inc. v. Charles Town
Assoc’s. Ltd. Partnership, LPIMC, Inc., 79 F.3d 496, 514 (6th Cir. 1996)).

        While the civil warrant alleges contract, breach of contract and damages, the judgment from
which this appeal is perfected, does not make any findings relative to any of the elements of a breach
of contract action. It simply holds “that equity requires the plaintiff be awarded judgment in this
case.” Then with the further observation that “equity requires that the plaintiff be paid for the work
he accomplished,” the court awards a judgment for $11,917.44 plus pre-judgment interest.




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       The prayer in the civil warrant for “unjust enrichment and other equitable remedies” cannot
expand the scope of relief available to the plaintiff when the facts alleged in the civil warrant do not
support such relief. Lancaster Mills v. Merchants Cotton-Press & Storage Co., 89 Tenn. 1, 14 S.W.
317, 323 (Tenn. 1890); Caldwell v. Huffstutter, 173 Tenn. 225, 116 S.W.2d 1017 (Tenn. 1938).

        The facts alleged in the civil warrant not only fail to assert any basis for general relief in
equity but in fact negate everything except plain breach of contract. The relief awarded by the trial
court simply exceeds the scope of the relief requested by the pleadings. See Electric Controls v.
Ponderosa Fibres, 19 S.W.3d 222 (Tenn.Ct.App. 1999).

      The judgment of the trial court is reversed and the case remanded for trial of the issues drawn
between the parties which under the present state of the pleadings is limited to breach of contract.

        Costs of the cause are assessed to Appellee.




                                                        ___________________________________
                                                        WILLIAM B. CAIN, JUDGE




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