James Wilkerson v. Ifeatu Ekelem

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 2, 2003 Session
JAMES WILKERSON v. IFEATU EKELEM
Appeal from the Chancery Court for Williamson County
No. 24135 Elmer Davies, Judge
No. M2002-00841-COA-R3-CV - Filed March 24, 2004
This case involves a dispute between a Williamson County property owner who decided to
oversee the construction of his own house and the masonry contractor he hired to do the brick work
on the project. The brick mason filed suit in the Williamson County Chancery Court claiming the
property owner had breached the parties’ oral agreement by failing to pay the balance due under the
agreement. The property owner responded by claiming it was the brick mason who had breached
the contract, accusing the brick mason of failing to finish the work in a professional manner, and
charging the brick mason with slander. The trial court found in favor of the brick mason on his
breach of contract claim, rejected the property owner’s claims, and entered a $29,268.99 judgment
in favor of the brick mason. The property owner appealed. We concur with the trial court’s finding
that the property owner breached the contract and, therefore, affirm the judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
WILLIAM C. KOCH , JR., P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN ,
J., and JAMES L. WEATHERFORD , SR. J., joined.
Ifeatu Ekelem, College Grove, Tennessee, Pro Se.
William C. Barnes, Jr., Columbia, Tennessee, for the appellee, James Wilkerson.
OPINION
I.
Dr. Ifeatu Ekelem is a physician specializing in neonatology. In 1994, he decided to build
a 4,500 square foot house on his approximately 40-acre property in Williamson County. Rather than
hiring an architect and general contractor to assist him in this ambitious project, Dr. Ekelem elected
to order the construction plans out of a book and to coordinate and supervise the construction
himself.
In the summer of 1995, Dr. Ekelem entered into an oral contract with James Wilkerson, d/b/a
Wilkerson Masonry, to do the brick work on the house. The parties agreed that Dr. Ekelem would
supply all materials necessary for the job and that Mr. Wilkerson would supply the tools and labor
only. As reflected in the written estimate Mr. Wilkerson provided to Dr. Ekelem, the total price for
the work was based on the unit price of $275 for every 1,000 bricks laid plus a flat charge of $14,476
for certain detail work. The number of bricks that would be needed was unknown at the time the
parties entered into the agreement.
Mr. Wilkerson started work on the job the second or third week of July 1995. At the
beginning, his crew of ten to twelve laborers made rapid progress, and Mr. Wilkerson believed that
he would be able to finish the job in a matter of weeks. However, because of repeated delays caused
by Dr. Ekelem’s failure to secure an adequate supply of materials and because of multiple changes
in design demanded by Dr. Ekelem, the brick work ended up taking over six months to complete.
Mr. Wilkerson’s crew finished the job on February 12, 1996. On that day, Mr. Wilkerson
gave Dr. Ekelem a written invoice showing that the total cost of the work was $33,7261 and that the
balance due was $18,726.2 Dr. Ekelem refused to pay Mr. Wilkerson the $18,726 due on the
contract. Accordingly, Mr. Wilkerson filed a notice of lien against Dr. Ekelem’s property which was
recorded by the Maury County Register of Deeds on April 4, 1996. The lien was subsequently
recorded by the Williamson County Register of Deeds on April 18, 1996. Nevertheless, Dr. Ekelem
continued to refuse to pay the balance due Mr. Wilkerson on the masonry contract.
On July 15, 1996, Mr. Wilkerson filed suit against Dr. Ekelem in the Chancery Court for
Williamson County for breach of contract seeking damages and enforcement of the lien on the
property. On December 11, 1996, Dr. Ekelem filed an answer and counterclaim in which he
admitted entering into an oral contract with Mr. Wilkerson to provide the labor and tools for the
brick work. In his counterclaim, Dr. Ekelem alleged that Mr. Wilkerson had not completed the
project as agreed, that the brick work was deficient in several respects, and that Mr. Wilkerson had
slandered him in comments made to other contractors on the project. Dr. Ekelem sought $33,000
in damages for the alleged breach of contract and deficient work and an additional $20,000 in
damages on the slander claim. On December 19, 1996, Mr. Wilkerson filed an answer denying the
allegations contained in Dr. Ekelem’s counterclaim.
After a series of delays, the case proceeded to trial on March 1, 2002. Although Dr. Ekelem
had been represented by counsel during part of the pretrial proceedings, he was representing himself
pro se by the time of trial.3 Mr. Wilkerson presented his case through three witnesses and various
exhibits. Dr. Ekelem vigorously cross-examined Mr. Wilkerson and his other witnesses and then
testified at length in narrative form regarding his version of the events. The parties deferred closing
arguments until the conclusion of the testimony in a companion case that was heard immediately
thereafter. Following the conclusion of the companion case, the trial court issued a ruling from the
1
Mr. W ilkerson ended up laying 70,000 bricks. Accordingly, based on the unit price of $275 per 1,000 bricks
laid, Mr. W ilkerson charged Dr. Ekelem $19,250 for laying the bricks and $14,476 for the detail work. [$19,250 +
$14,476 = $33,726].
2
Dr. Ekelem made $15,000 in progress payments during the project. [$33,726 - $15,000 = $18,726]
3
The trial court permitted the law firm that first represented Dr. Ekelem to withdraw in February 1998. Nine
months later, in November 1998, the trial court permitted Dr. Ekelem’s second law firm to withdraw.
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bench in favor of Mr. Wilkerson on his breach of contract claim against Dr. Ekelem. The trial court
followed up its oral ruling with a written judgment a few weeks later.
In the judgment dated March 22, 2002, the trial court found that Mr. Wilkerson was entitled
to a judgment against Dr. Ekelem in the amount requested of $18,726 plus 10% interest from the
date of the filing of the complaint. Thus, the total judgment against Dr. Ekelem came to $29,268.99.
The trial court also found that Mr. Wilkerson was entitled to a judgment lien against the property
enforceable by attachment, levy, and sale of the property. Dr. Ekelem appealed.
II.
DR . EKELEM ’S BIAS CLAIMS
At the outset, we wish to address Dr. Ekelem’s suggestion that the judgment reflects
something other than the trial court’s best attempt to apply the governing law in a neutral manner
to the facts as shown by the evidence adduced at trial. During oral argument, Dr. Ekelem made
much of the fact that he had chosen to represent himself at trial and intimated that the trial court’s
judgment resulted from some sort of bias against pro se litigants. We find no merit in this claim.
We have consistently held that parties who decide to represent themselves are entitled to fair
and equal treatment by the courts, see, e.g., Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn.
Ct. App. 2000); Paehler v. Union Planters Nat'l Bank, Inc., 971 S.W.2d 393, 396 (Tenn. Ct. App.
1997), and that trial courts must take into account that many pro se litigants have no legal training
and little familiarity with the judicial system, Irvin v. City of Clarksville, 767 S.W.2d 649, 652
(Tenn. Ct. App. 1988). That having been said, we must also be mindful of the boundary between
fairness to a pro se litigant and unfairness to the pro se litigant’s adversary. Pro se litigants should
not be permitted to shift the burden of litigating their cases to the courts or to their adversaries.
Thus, trial courts should not excuse pro se litigants from complying with the same substantive and
procedural rules that represented parties are expected to observe. Edmundson v. Pratt, 945 S.W.2d
754, 755 (Tenn. Ct. App. 1996); Kaylor v. Bradley, 912 S.W.2d 728, 733 n.4 (Tenn. Ct. App. 1995).
After conducting an independent review of the record on appeal, we are convinced that the
trial court’s judgment did not result from some hidden bias on the part of the trial judge against pro
se litigants. It is clear from the record that the trial court was exceedingly solicitous in its treatment
of Dr. Ekelem in this case precisely because he was acting pro se. During the course of the trial,
counsel for Mr. Wilkerson repeatedly raised legally sound objections to conduct and testimony of
Dr. Ekelem that were nevertheless overruled by the trial court. The trial judge afforded Dr. Ekelem
the broadest possible leeway in his cross-examination of the witnesses, at times allowing Dr. Ekelem
to ask the same question, which had already been answered, two, three, four, or more times. The
trial court reined in Dr. Ekelem only when he strayed far, far beyond testimony and conduct that
would be tolerated in a case where a party was represented by counsel. In short, it is abundantly
clear from the record on appeal that the trial court in no way impeded Dr. Ekelem’s ability to present
his case at trial because he was acting pro se.
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Dr. Ekelem also suggested at oral argument that the trial court’s judgment was the result of
bias against him because he is a physician and because of his race. Dr. Ekelem has pointed to
nothing in the record tending to show any such bias on the part of the trial court, and our own
independent review of the record on appeal has found none.4 Accordingly, inasmuch as Dr. Ekelem
has challenged the trial court’s judgment in this case on the basis of alleged bias on the part of the
trial judge, we reject Dr. Ekelem’s claim.
III.
THE APPLICATION OF THE DAMAGE LIMITATION PROVISION IN
TENN . CODE ANN . § 62-6-103(b) (SUPP. 2003) TO MR . WILKERSON ’S CLAIM
When the parties entered into their contract in 1995, contractors who did not possess a
required contractor’s license were barred from filing breach of contract claims against property
owners. Tenn. Code Ann. § 62-6-103(b) limited unlicensed contractors to recovery of their “actual
documented expenses only.” Dr. Ekelem asserts that the trial court should have dismissed Mr.
Wilkerson’s breach of contract claim because he was not properly licensed in 1995. Mr. Wilkerson
responds by claiming that he was not required to be licensed for this project, first, because he was
a subcontractor, and second, because Dr. Ekelem failed to prove that the cost of the work under the
parties’ original agreement exceeded $25,000. While we have determined that Mr. Wilkerson was
not a subcontractor on this project, we have concluded that Dr. Ekelem failed to prove that the cost
of the work when the parties entered into their contract exceeded $25,000. Therefore, Tenn. Code
Ann. § 62-6-103(b) does not bar Mr. Wilkerson’s breach of contract claim.
A.
Mr. Wilkerson’s invocation of the exemption from licensure for subcontractors in Tenn.
Code Ann. § 62-6-102(3)(D)(iii) (Supp. 2003) is misplaced for two reasons. First, as a factual
matter, Mr. Wilkerson was not a subcontractor with regard to the work he performed for Dr. Ekelem.
Second, the specific statutory exemption from licensure for subcontractors on which Mr. Wilkerson
relies did not exist in the summer of 1995 when Dr. Ekelem and Mr. Wilkerson entered into their
agreement regarding the brick work for Dr. Ekelem’s house.
In reference to the first point, the Contractors Licensing Act of 1994 does not define the terms
“subcontract” or “subcontractor.” However, this court has previously defined “subcontractor” in the
construction context as “a person who has a contract with the general or prime contractor to perform
a portion of the work that the general or prime contractor has already contracted with the owner to
4
Indeed, the only person who appears to have attempted to make race and related matters an issue at trial is Dr.
Ekelem. Dr. Ekelem felt it necessary to inform both the trial court and this court that Mr. W ilkerson’s crew of ten to
twelve laborers consisted of individuals of Hispanic descent. Dr. Ekelem repeatedly referred to M r. W ilkerson’s laborers
as “Mexicans” and “Hispanics,” even after it was pointed out by counsel for Mr. W ilkerson that the ethnicity and national
origin of Mr. W ilkerson’s laborers was completely irrelevant to anything at issue in this case.
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perform.” Winter v. Smith, 914 S.W.2d 527, 539 (Tenn. Ct. App. 1995).5 This definition of
“subcontractor” requires the existence of at least two contracts – one between an owner and the
general or prime contractor and another between the general or prime contractor and the
subcontractor. In this case, there was no contract between the owner and the general or prime
contractor because the owner was the general contractor. An individual who contracts directly with
the owner of the property is not a “subcontractor” even if the owner holds himself or herself out as,
and performs the duties of, a general contractor. Winter v. Smith, 914 S.W.2d at 539-40. Thus,
under the facts of this case, Mr. Wilkerson was not a “subcontractor” because he contracted directly
with Dr. Ekelem, the owner of the property.
With regard to the second point, a contractor’s obligation to have a license depends on the
law existing when the contractor offers or contracts to perform the work. Prior to 1994, the
Tennessee General Assembly had exempted most subcontractors from the statutory licensing
requirement.6 However, the Contractors Licensing Act of 1994 did not include a specific licensing
exemption for any type of subcontractor. That exemption, now codified at Tenn. Code Ann. § 62-6-
102(3)(D)(iii), was not added to the Contractors Licensing Act of 1994 until 1999.7 Thus, from 1994
until 1999, subcontractors whose work cost $25,000 or more were required to be licensed. It,
therefore, follows that Mr. Wilkerson could not invoke the specific exemption for subcontractors in
Tenn. Code Ann. § 62-6-102(3)(D)(iii) even if he had been a subcontractor on Dr. Ekelem’s house,
because the exemption did not exist in 1995 when the parties made their oral contract.
B.
Our determination that Mr. Wilkerson was not exempt from the licensing requirements of
the Contractors Licensing Act of 1994 as they existed in 1995 does not resolve the question of
whether the trial court erred by awarding Mr. Wilkerson damages on his breach of contract claim.
Dr. Ekelem, as the party raising the affirmative defense based on Tenn. Code Ann. § 62-6-103(b),
had the burden of proving that Mr. Wilkerson was required to have a contractor’s license for this
project. Dr. Ekelem has failed to carry this burden.
By its own terms, the Contractors Licensing Act of 1994, as it existed in 1995, required
contractors to have a license only when the total cost of the work they contracted to perform equaled
or exceeded $25,000. The time for determining whether a particular contract meets or exceeds the
5
See also Tenn. Code Ann. § 62-37-103(11) (1997) defining “subcontractor” under the Home Improvement
Licensing Act as “any person other than a materialman or laborer who enters into a contract with a contractor for the
performance of any part of the contractor's contract, or who enters into a contract with any subcontractor for the
performance of any part of the subcontractor’s contract, and who does not perform work other than as a subcontractor.”
6
From 1931 until 1976, the Tennessee General Assembly excluded all subcontractors from the licensing statutes.
In 1976, the General Assembly decided to subject some subcontractors – electrical, plumbing, and heating, ventilating
and air conditioning subcontractors – to the licensing requirements. Winter v. Smith, 914 S.W .2d at 536. For a brief
period of time not at issue in this case, the General Assembly extended the licensing requirements to masonry
subcontractors. Winter v. Smith, 914 S.W .2d at 537 n.16.
7
Act of May 27, 1999, ch. 245, § 1, 1999 Tenn. Pub. Acts 561, 561.
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$25,000 limit is when the parties enter into the contract, not when the contract is completed. H &
S Excavating v. Walker, No. M2001-02619-COA-R3-CV, 2003 WL 237411, at *7 (Tenn. Ct. App.
Feb. 4, 2003) (No Tenn. R. App. P. 11 application filed) (“[I]t only makes sense to determine
whether a person or entity needs a license at the outset rather than the end of a project.”). Thus, the
critical issue on appeal is whether Dr. Ekelem presented sufficient evidence at trial to establish that
the parties’ contract totaled $25,000 or more at the time they entered into it.
Dr. Ekelem failed to present sufficient evidence at trial to support his claim that the contract
entered into by the parties was one for $25,000 or more from the time of its inception. The written
estimate Mr. Wilkerson provided Dr. Ekelem at the beginning of the project was not for a sum
certain. It quoted $14,476 for the detail work and then a unit price of $275 per 1,000 bricks laid.
Thus, the total contract price would have exceeded $25,000 only if the project ended up requiring
more than 38,000 bricks to complete.
Even though Mr. Wilkerson ultimately used 70,000 bricks on the project, we will not impute
to him the knowledge at the time the parties entered into their contract that the job would require
more than 38,000 bricks. He testified, without contradiction, that he had no idea how many bricks
would ultimately be required for the project because estimating the number of bricks required for
the job is the responsibility of the general contractor and brick supplier. Mr. Wilkerson also testified
that he had installed bricks for other similarly sized homes and that he had never used more than
25,000 bricks for these projects. Accordingly, Mr. Wilkerson could appropriately have assumed at
the outset that the total cost of his work for Dr. Ekelem would not exceed $25,000.8
Dr. Ekelem failed to present any evidence at trial to suggest that either of the parties knew,
at the time they entered into their agreement, that the number of bricks required for the project would
be so great that it would push the total contract price above the critical $25,000 figure. It is equally
plausible that Dr. Ekelem’s many changes in the work caused the increase in the number of bricks.
Accordingly, we find that Dr. Ekelem failed to carry the burden of proof on his affirmative defense,
and the trial court properly rejected it in awarding judgment to Mr. Wilkerson.9
8
Mr. W ilkerson testified that he had done the brick work for Zaring Homes on several projects involving 3,500
square foot houses and that he had used at most 25,000 bricks on these houses. Even accounting for the difference in
the size of Dr. Ekelem’s house, M r. W ilkerson could easily have concluded that Dr. Ekelem’s house would have required
32,000 to 33,000 bricks. Thus, he could easily have anticipated that the total cost of the work he contracted to perform
for Dr. Ekelem was approximately $23,500. [$14,476 for the detail work + $9,075 for the brick work = $23,551].
9
It may be that Dr. Ekelem, not being an attorney, failed to comprehend that he bore the burden of proving all
the essential elements of his defense, including the parties' awareness at the time of agreement that the total contract price
would meet or exceed $25,000. In any event, the trial court’s conclusion that Dr. Ekelem failed to establish his defense
to Mr. W ilkerson’s breach of contract claim based on the contract price was correct.
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IV.
THE RELATIONSHIP BETWEEN THE LIEN LAWS AND MR . WILKERSON ’S
BREACH OF CONTRACT CLAIM
Dr. Ekelem also asserts that the trial court should have dismissed Mr. Wilkerson’s breach
of contract claim because Mr. Wilkerson failed to record a lien against his property within ninety
days after leaving the job site. This argument is without merit for two reasons. First, Dr. Ekelem
is factually mistaken. The evidence demonstrates that Mr. Wilkerson filed his lien within ninety
days after completing his work. Second, the time frame within which Mr. Wilkerson filed his lien
has no impact whatsoever on this breach of contract claim.
Mr. Wilkerson’s crew completed their work on February 12, 1996. After Dr. Ekelem
declined to pay him, Mr. Wilkerson filed a lien against Dr. Ekelem’s property with the Maury
County Register of Deeds on April 4, 1996. Two weeks later, on April 18, 1996, he filed the lien
against Dr. Ekelem’s property with the Williamson County Register of Deeds. The lien filed on
April 18, 1996 was clearly filed within ninety days after the completion of the brick work.
Accordingly. Dr. Ekelem’s argument lacks any basis in fact.
In addition, the circumstances regarding the filing of Mr. Wilkerson’s lien have no impact
on his right to sue Dr. Ekelem for breach of contract. Dr. Ekelem has pointed us to no legal authority
– nor has our own independent research uncovered any – suggesting that a contractor is required to
file a lien against the property as a prerequisite to filing a claim against an owner or general
contractor for breach of contract. The statute of limitations for filing claims for breach of contract
is six years. Tenn. Code Ann. § 28-3-109(a)(3) (2000). Mr. Wilkerson filed his complaint for
breach of contract against Dr. Ekelem on July 15, 1996, long before the expiration of the six-year
statute of limitations. Accordingly, Dr. Ekelem’s argument on this point also lacks any basis in law.
V.
THE EVIDENTIARY SUPPORT OF THE JUDGMENT
As a final matter, Dr. Ekelem asserts that the trial court erred by accepting Mr. Wilkerson’s
testimony that the parties agreed on a unit price for the installation of the bricks of $275 per 1,000
bricks.10 He also asserts that the trial court erred by crediting the testimony of Mr. Wilkerson’s
witnesses that Mr. Wilkerson completed the brick work in a professionally acceptable manner. We
find both claims to be without merit.
Tenn. R. App. P. 13(d) provides the standards for reviewing a trial court’s factual findings
in a non-jury trial. We review these findings de novo but with a presumption that they are correct,
Fell v. Rambo, 36 S.W.3d 837, 846 (Tenn. Ct. App. 2000), and we will reverse the trial court’s
findings only if we conclude, based on our own independent review of the record on appeal, that the
evidence preponderates against them. In re Estate of Walton, 950 S.W.2d 956, 959-60 (Tenn. 1997);
B & G Constr., Inc. v. Polk, 37 S.W.3d 462, 465 (Tenn. Ct. App. 2000). We will also accord great
10
Dr. Ekelem testified that the agreed upon unit price for laying the brick was $100 per 1,000 bricks.
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weight to findings that are based on a trial court’s determination of the witnesses’ credibility because
it was the trial court, not this court, who observed the witnesses and had an opportunity to assess
their credibility. In re Estate of Walton, 950 S.W.2d at 959; Fell v. Rambo, 36 S.W.3d at 846.
After conducting an independent review of the testimony and the exhibits presented at trial,
we are persuaded that the evidence, far from undermining the trial court’s factual findings, instead
strongly supports them. Accordingly, we reject Dr. Ekelem’s challenges to the trial court’s factual
findings regarding the agreed upon unit price for installing the brick and the quality and
completeness of Mr. Wilkerson’s work.
VI.
We affirm the judgment and remand the case to the trial court for whatever further
proceedings may be required. We tax the costs of the appeal to Ifeatu Ekelem for which execution,
if necessary, may issue.
_______________________________
WILLIAM C. KOCH, JR., P.J., M.S.
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