IN RE: ESTATE OF HAROLD JENKINS, )

      Deceased,
                                 )
                                 )
                                 )
                                                           FILED
                                                            Oct. 20, 1995
HUGH C. CARDEN and DONALD GARIS, )
                                 )                         Cecil Crowson, Jr.
      Co-Executors/Appellees,    )      Sumner Chancery     Appellate Court Clerk
                                 )      No. 93P-30
CLAIM OF:                        )
                                 )      Appeal No.
BILLY R. PARKS,                  )      01-A-01-9504-CH-00135
                                 )
      Claimant/Appellant.        )


                IN THE COURT OF APPEALS OF TENNESSEE

                    MIDDLE SECTION AT NASHVILLE


        APPEAL FROM THE CHANCERY COURT OF SUMNER COUNTY

                       AT GALLATIN, TENNESSEE


                HONORABLE TOM E. GRAY, CHANCELLOR




Denty Cheatham
CHEATHAM & PALERMO
43 Music Square West
Nashville, Tennessee 37203
ATTORNEY FOR THE ESTATE


James C. McBroom
Jonathan R. Stephens
FINCH & MCBROOM
211 Printers Alley, Suite 502
Nashville, Tennessee 37201
ATTORNEYS FOR CLAIMANT/APPELLANT


REVERSED AND REMANDED


                              HENRY F. TODD
                              PRESIDING JUDGE, MIDDLE SECTION



CONCUR:
BEN H. CANTRELL, JUDGE
WILLIAM C. KOCH, JR., JUDGE
IN RE: ESTATE OF HAROLD JENKINS, )
                                 )
      Deceased,                  )
                                 )
HUGH C. CARDEN and DONALD GARIS, )
                                 )
      Co-Executors/Appellees,    )                   Sumner Chancery
                                 )                   No. 93P-30
CLAIM OF:                        )
                                 )                   Appeal No.
BILLY R. PARKS,                  )                   01-A-01-9504-CH-00135
                                 )
      Claimant/Appellant.        )

                                     O P I N I O N


       The claimant, Billy R. Parks, has appealed from a summary judgment of the Probate

Court dismissing his claim against the captioned estate. Appellant presents the issues in the

following form:

               1. The Chancellor erred in ruling that Mr. Parks had no legal
               basis for making a claim on the theories of implied or quasi
               contract, or a theory of unjust enrichment of Mr. Jenkins.

               2. The Chancellor erred in ruling that Mr. Parks could not
               recover under an implied or quasi contract theory because of
               the existence of an express contract between the parties.


       The subject claim is summarized on its face as follows:

       Various contract labor items        $134,895.00 or $20,000.00
       consisting of a minimum of 8,993 (8,993 hrs. x $15.00)
       man hours beginning in 1973 and
       ending in 1993, itemized list of    No credits against this account
       which is attached, and based upon
       open account, quantum meruit and/or
       promissory estoppel


       Attached to the claim is a two page itemization listing 22 occasions from 1972 to

1991 when claimant performed various services for deceased which consumed amounts of

time varying from 4 to 3,000 hours, totaling 8,993 hours.



       The executors moved to dismiss the claim pursuant to T.R.C.P. Rule 56 (Summary

Judgment). The motion was supported by affidavit of co-executor Donald W. Garis, stating

in substance the following:

                                             -2-
       The deceased was a successful entertainer and business man who employed a number

of employees. Affiant kept his books and records from 1973 until his death and was aware of

all decedent's relations with and payments to his employees, including the claimant.

Claimant's record contained payments, loans and advances to claimant, but no record of any

of the charges alleged in claimant's claim or any indebtedness to him. The records indicated

that, from 1972 through 1993, deceased paid claimant $642,891 salary, and $137,401

percentage of concession sales. Affiant is unaware of any other obligation of deceased to the

claimant, or of any custom or practice of deceased to pay any agreed amount to any employee

as severance pay. Two employees received a gift of $20,000 after twenty years service, but

not at termination of their employment. Other twenty year employees received no such gift.

The survivors of deceased agreed to give each employee $100 per year of service for

termination pay which was received but not approved by claimant.



       Claimant filed his affidavit stating the following:

               2. That his job, as hired by Conway Twitty or Harold Jenkins,
               was to be a full-time bus driver.
               3. That everything that he has included in his claim was work
               that was not part of his regular job and that was acknowledged
               by Harold Jenkins as other work.
               4. That all of the projects listed in his claim were duties which
               were required of him in addition to or separate business
               dealings with Conway Twitty, a/k/a Harold Jenkins.
               5. That he was constantly assured by Conway Twitty, a/k/a
               Harold Jenkins, that he would be "taken care of" and rewarded
               for the extra work which was ordered by Harold Jenkins, a/k/a
               Conway Twitty, which is the basis of his claim filed in this
               cause.
               6. That a tradition was established by Conway Twitty, a/k/a
               Harold Jenkins, of rewarding twenty year employees with a
               bonus of $20,000 at the conclusion of that twenty years. It was
               promised to Affiant that he would be reimbursed for the things
               contained in his claim by at least an award of the $20,000
               bonus on his twenty year anniversary.
               7. At the twenty year anniversary of the employment of the
               Affiant, Conway Twitty, a/k/a Harold Jenkins, announced to
               him and others that things were "tight" because Conway was
               building his mansion for his family to live in and that if
               everyone would stick together, the next year would be better
               and Conway's commitments would be met including the
               increases in salaries, bonuses, twenty year bonuses, and to
               repay Affiant for the things listed in his claim.



                                              -3-
              ....

              8. That Affiant has performed all of the extra work contained
              in his claim and that none of this was part of his regular
              employment but was done at the direction of Harold Jenkins,
              a/k/a Conway Twitty, that all of these duties were extra work
              ordered by Conway Twitty, a/k/a Harold Jenkins, and not a part
              of his job. None of these extra duties or business arrangements
              between the Affiant and Conway Twitty, a/k/a Harold Jenkins,
              were to be billed from Twitty Enterprises but were a separate
              undertaking between Conway Twitty, a/k/a Harold Jenkins, and
              this Affiant. These were to be personal obligations of the
              deceased with this Affiant.

              9. That he, nor to the best of his knowledge, any employee of
              the deceased had a written contract. All of his dealings and all
              of his contracting with the deceased were oral contracts. His
              extra business arrangements with the deceased were all oral but
              that other people know about these contracts including Billy
              Blythe.


       The executors objected to all testimony of the claimant prohibited by T.C.A. §24-1-

203 which provides:

              Transactions with decedent or ward. - In actions or
              proceedings by or against executors, administrators, or
              guardians, in which judgments may be rendered for or against
              them, neither party shall be allowed to testify against the other
              as to any transaction with or statement by the testator, intestate,
              or ward, unless called to testify thereto by the opposite party.
              Provided, if a corporation be a party, this disqualification shall
              extend to its officers of every grade and its directors. . . .


       Claimant also filed the affidavit of Billy Blythe, a fellow employee, which stated the

following:

              . . . 5. That he is aware and personally witnessed many
              substantial extra duties which the deceased called upon Billy
              Parks to perform for the deceased personally and for which he
              was not paid.
                6. [That] he personally heard the deceased state to Billy Parks
              on many occasions that he would be rewarded for the extra
              work which he was performing. Some of this extra work
              included taking care of the deceased's automobiles, personal
              affairs, household and yard work, and driving the coach or cars
              during holidays, vacation and time off for Billy Parks. The
              deceased stated that he would "take care of Billy Parks" and
              that Billy Parks would be rewarded for all of these extra duties
              and business and work undertakings of Billy Parks on behalf of
              the deceased, all of which was separate from Billy Parks' job.
                7. That he personally knows that Billy Parks has performed
              substantial work on behalf of the deceased which was not part

                                              -4-
               of Parks' regular job but for which the deceased promised that
               Parks would be rewarded and taken care of including but not
               limited to being given a bonus on his twentieth anniversary of
               working for the deceased in the amount of at least $20,000.


       The record contains the depositions of the claimant and the widow of deceased, but

nothing is cited or found therein which is determinative of this appeal.



       The Trial Judge found:

               . . . [F]or purposes of this motion, the Court should consider it
               established as a fact, in accordance with the affidavit of Billy
               Blythe, that the late Harold Jenkins, a/k/a Conway Twitty made
               an oral promise to "take care of Billy Parks," which is also
               described by Mr. Parks, in his deposition, as an oral promise
               that he would "always be taken care of" by the late Mr. Twitty;
               the Court considers that this oral promise is, however, an
               illusory promise, too vague and uncertain as to its meaning as
               to be legally enforceable; the Court further finds, based upon
               the undisputed facts as to the amounts of compensation and
               benefits paid for Mr. Parks' services by Conway Twitty, that
               Mr. Parks has no legal basis for making a claim on theories of
               implied or quasi contract, which would require him to show
               that Mr. Twitty was unjustly enriched; owing to the existence
               of an express contract of employment between the parties, it
               does not appear that the doctrines of implied contract or quasi
               contract would be applicable; and it further appears from the
               undisputed facts that Mr. Parks' employment contract, which
               was entirely oral, did not require Mr. Twitty to pay Mr. Parks
               any certain amount after twenty years of service or upon
               termination of his service, it being undisputed that there were at
               least four other employees with more than twenty years of
               service who did not receive any bonus or severance pay, and it
               also being undisputed that Mr. Parks reached the twentieth
               anniversary of his employment with Mr. Twitty during his
               lifetime, and no notice of that fact was taken by Mr. Twitty
               which would indicate any intent to reward Mr. Parks upon
               obtaining that many years of service; it thus appears that there
               is no genuine issue as to any material fact, the resolution of
               which would entitle the claimant Billy Parks to recover on any
               of the legal theories he has asserted in his claim, and the estate
               is therefore entitled to a judgment as a matter of law,
               dismissing such claim; . . . .


       This Court disagrees with the findings of the Trial Court "that the undisputed facts

that Mr. Parks' employment contract . . . did not require Mr. Twitty to pay Mr. Parks any

certain amount after twenty years service."




                                              -5-
       The affidavit of Billy Blythe, quoted above, is not subject to the quoted statute. It

states unequivocally that:

                7. That he personally knows that Billy Parks has performed
               substantial work on behalf of the deceased which was not part
               of Parks' regular job but for which the deceased promised that
               Parks would be rewarded and taken care of including but not
               limited to being given a bonus on his twentieth anniversary of
               working for the deceased in the amount of at least $20,000.


Since the record contains admissible evidence of an oral promise for a consideration to pay a

specified amount upon performance of a specified condition, there is not undisputed evidence

authorizing a judgment of dismissal or disallowance of the claim for the promised amount.



       The executors insist that the claim for compensation based upon an implied contract

cannot be honored where there exists an express contract on the same subject, citing Jaffe v.

Bolton, Tenn. App. 1991, 817 S.W.2d 19. In that case, tenants under a written lease were

denied compensation for improvements made to the leasehold under the theory of implied

contract or unjust enrichment when the written lease expressly provided that all

improvements by lessees should belong to the lessors.



       In the present case, the issue of whether or not a contract existed which would

preclude extra compensation remains to be decided. Until this issue is determined, there is

no basis for any conclusory application of the rule of Jaffe v. Bolton.



       No determinative evidence is found on the subject of unjust enrichment.



       It is the burden of the party seeking a summary judgment to present uncontradicted

evidence of facts which entitle that party to summary judgment as a matter of law. Tucker v.

Metropolitan Government, Tenn. App. 1984, 686 S.W.2d 87; Read v. Thomas, Tenn. App.

1984, 679 S.W.2d 467.




                                              -6-
       The vague promise to "take care of" claimant is insufficient to support a recovery. To

this extent, the ruling of the Trial Judge was correct. However, this theory of recovery exists

only in the evidence, and not in the claim, quoted above. The "vague promises" were offered

as circumstantial support of the claim as presented, and their rejection does not justify the

rendition of summary judgment dismissing the claim.



       For the reasons stated, the summary judgment dismissing (disallowing) the claim of

claimant for $20,000 is reversed and vacated, and the cause is remanded for a hearing and

disposition of the merits of the claim. Costs of this appeal are taxed against the co-executors.



       Reversed and Remanded.

                                              _______________________________________
                                              HENRY F. TODD
                                              PRESIDING JUDGE, MIDDLE SECTION


CONCUR:


_____________________________________
BEN H. CANTRELL, JUDGE


_____________________________________
WILLIAM C. KOCH, JR., JUDGE




                                               -7-
