                 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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