                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                   January 24, 2001 Session

              ROLAND SCHNIDER v. CARLISLE CORPORATION

                A Direct Appeal from the Chancery Court for Shelby County
                No. 98-1149-2    The Honorable Floyd Peete, Jr., Chancellor



                     No. W2000-01695-COA-R3-CV - Filed April 19, 2001


This is a breach of contract case in which Plaintiff, a chef, claims he entered into an employment
contract of a definite term. Plaintiff and Defendant engaged in negotiations aimed at having Plaintiff
open and manage a restaurant. Defendant produced a final draft of the agreement which included
salary, bonuses, and an ownership interest in the restaurant. Neither side executed the written
agreement, but Plaintiff went to work for Defendant and both parties partially performed the terms
of the writing. Defendant terminated Plaintiff’s employment several months later, and Plaintiff filed
this action for breach of contract. The trial court, sitting without a jury, found that no contract
existed between the parties and Plaintiff appeals. We vacate and remand.

  Tenn.R.App.P. 3; Appeal as of Right; Judgment of the Chancery Court is Vacated and
                                      Remanded

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER ,
J. and HOLLY KIRBY LILLARD, J., joined.

David M. Rudolph, Memphis, For Appellant, Roland Schnider

Bruce S. Kramer, Scott A. Kramer, Memphis, For Appellee, Carlisle Corporation

                                             OPINION

        Defendant/Appellee Carlisle Corporation (“Carlisle”) hired Plaintiff/Appellant, Roland
Schnider, to open and manage a restaurant in downtown Memphis known as “No. 1 Beale.”
Although the parties to this action never executed a written agreement, they engaged in several
rounds of negotiations which culminated in a written document containing the terms Appellant
alleges constitute a contract of employment for a definite, three-year period.

       Appellant Schnider is an experienced chef who has owned and managed restaurants in the
Memphis area for many years. In March of 1997, Marshall Criss, Appellee’s Chief Operating
Officer, met with Mr. Schnider regarding the possibility of opening a new restaurant in the building
which formerly housed the old “No 1. Beale” Restaurant. At this first meeting, Mr. Schnider
expressed interest in the restaurant, but told Mr. Criss that he was in the process of negotiating a
contract with another restaurant in Memphis and was not in a position to make an agreement with
them.

         After negotiations with the other restaurant fell through, Mr. Schnider contacted Mr. Criss
to see if Carlisle was still interested in the Beale Street restaurant. Mr. Criss indicated that Carlisle
was still interested in the project, and Mr. Schnider, Mr. Criss and Gene Carlisle, the Chief
Executive Officer and owner of Carlisle Corporation met in August of 1997. At that meeting, the
three men discussed the possibility of Carlisle opening the restaurant with Mr. Schnider as the
restaurant’s manager. Although the men did not reach an agreement at the August meeting, they
apparently discussed Mr. Schnider’s salary requirements and a fifteen percent (15%) ownership
interest for Mr. Schnider in the venture.

       After another meeting involving Mr. Schnider, Mr. Criss and Mr. Carlisle, Mr. Criss
produced the first draft of the agreement in question (the “First Draft”). After further discussions,
Mr. Criss prepared the final draft agreement (“Final Draft”) which, among other things, provided Mr.
Schnider with: a three-year employment term; salary and car allowance totaling $75,000.00 per year;
15% stock ownership in the new venture, BSL Management Corporation (“BSL”); health insurance;
and bonuses. Neither party to this action signed the Final Draft1, but Mr. Schnider went to work
immediately for Carlisle and the restaurant opened for business on December 3, 1997.

        In April of 1998, although the restaurant apparently received favorable reviews in the press,
Carlisle reduced Mr. Schnider’s salary from $75,000 to $50,000. In his testimony, Mr. Criss cited
inconsistencies in food preparation, poor morale among restaurant employees, and a general lack of
effective leadership on the part of Mr. Schnider as reasons for the pay cut. In May of 1998, Carlisle
discharged Mr. Schnider. Carlisle offered Mr. Schnider a one-month severance payment at the
reduced salary, apparently in return for Mr. Schnider’s agreeing to execute a general release of
claims against Carlisle. Mr. Schnider did not sign the release or receive any severance pay.

         On December 14, 1998, Mr. Schnider filed a Complaint against Carlisle alleging breach of
contract. On the eve of trial, Carlisle filed an Amended Answer adding the Statute of Frauds as an
affirmative defense. Mr. Schnider moved to strike the Amended Answer, but the parties proceeded
to trial. The trial court, sitting without a jury, found for Carlisle, and on June 20, 2000, filed a final
order which states in part:

                  [T]he unsigned written document purporting to be an Employment
                  Agreement between the Plaintiff and Defendant does not constitute
                  an enforceable contract, in whole or in part, because there was no
                  meeting of the minds between the parties.


         1
          Although Mr. Schnider never signed the Final Draft, the record indicates tha t Mr. Schn ider agreed with its
terms, and c ounsel for C arlisle stipulated M r. Schnider ’s agreemen t.

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         Mr. Schnider appeals and presents several issues on appeal which we perceive to be: (1)
Whether the trial court erred in finding that no contract existed between the parties; (2) Whether the
trial court erred in allowing Appellee to raise the Statute of Frauds as an affirmative defense; and (3)
Whether the Appellant established the part performance exception to the Statute of Frauds so as to
render the Statute inapplicable to the contract.

        Since this case was tried by the court sitting without a jury, we review the case de novo upon
the record with a presumption of correctness of the findings of fact by the trial court. Unless the
evidence preponderates against the findings, we must affirm, absent error of law. See Tenn. R. App.
P. 13(d).

        In order to determine whether an enforceable contract existed between the parties, we must
first address the issue of the applicability of the Statute of Frauds to this case. Appellant contends
that the trial court erred in not striking Appellee’s Amended Answer adding the Statute of Frauds
as an affirmative defense. Appellee filed the Amended Answer without an order of court allowing
the amendment. Rule 15.01 of the Tennessee Rules of Civil Procedure provides in part:

                A party may amend the party's pleadings once as a matter of course
                at any time before a responsive pleading is served or, if the pleading
                is one to which no responsive pleading is permitted and the action has
                not been set for trial, the party may so amend it at any time within
                fifteen (15) days after it is served. Otherwise a party may amend the
                party's pleadings only by written consent of the adverse party or by
                leave of court; and leave shall be freely given when justice so
                requires.

(Emphasis added). Counsel for Appellant moved to strike Appellee’s Amended Answer at the
beginning of the trial and voiced his objections to the court. The trial court should have granted
Appellee’s motion. However, we note that counsel for Appellant did not ask the Chancellor for a
continuance and, in fact, told the Chancellor that he was ready to proceed with the trial. Where a
party does not deem it necessary to seek a continuance, we assume that party is “prepared to meet
the defense presented.” Farmers & Merchants Bank v. Dyersburg Production Credit Ass’n, 728
S.W.2d 10 (Tenn. Ct. App. 1986). In any event, the error was harmless, because we hold that the
disputed contract is valid under the part performance exception to the Statute of Frauds.

        An oral contract which is not capable of being fully performed within one year generally falls
within the Statute of Frauds. In Tennessee, the Statute is codified at T.C.A. § 29-2-101 and provides
in relevant part:

                § 29-2-101. General provisions

                        (a) No action shall be brought:



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                                       *          *          *

                      (5) Upon any agreement or contract which is not to be
               performed within the space of one (1) year from the making of the
               agreement or contract;

               unless the promise or agreement, upon which such action shall be
               brought, or some memorandum or note thereof, shall be in writing,
               and signed by the party to be charged therewith, or some other person
               lawfully authorized by such party.

T.C.A. § 29-2-101 (2000). Tennessee courts do, however, recognize a part performance exception
to the Statute which is applicable to oral contracts other than for the sale of land. See, e.g.,
Blasingame v. American Materials, Inc., 654 S.W.2d 659, 663 (Tenn. 1983); Foust v. Carney, 329
S.W.2d 826, 829 (Tenn. 1959); Buice v. Scruggs Equipment Co., 250 S.W.2d 44, 47 (Tenn. 1952).
Our Supreme Court in Buice articulated the part performance exception:

                        This doctrine of partial performance to take the verbal
               contract out of the operation of the Statute of Frauds is purely an
               equitable doctrine and is a judicial interpretation of the acts of the
               parties to prevent frauds. The acts of the appellant relied on as partial
               performance had been done by him in pursuance to the averred
               contract and agreement and are clearly referable thereto. “The
               plaintiff must be able to show such acts and conduct of the defendant
               as the court would hold to amount to a representation that he
               proposed to stand by his agreement and not avail himself of the
               statute to escape its performance; and also that the plaintiff, in
               reliance on this representation, has proceeded, either in performance
               or pursuance of his contract, so far to alter his position as to incur an
               unjust and unconscious [sic] injury and loss, in case the defendant is
               permitted after all to rely upon the statutory defense.” 49 Am.Jur.,
               Sec. 427, page 733. We think this quotation fairly sums up the
               obligation of the complainant in the instant case and that by the
               averments of the bill the complainant has met these obligations.

250 S.W.2d at 48.

        In Blasingame v. American Materials, Inc., our Supreme Court held that an oral contract
for employment which included salary, bonuses, and stock in the employer/corporation was not
barred by the Statute of Frauds. 654 S.W.2d at 663. In that case, the Court noted that the plaintiff’s
employer led him to believe that his employment contract would be honored, and that the plaintiff
would “suffer an unconscionable loss if the corporation was allowed to rely upon the Statute of
Frauds.” Id. Similarly, in Foust v. Carney, the Court enforced an oral employment contract in


                                                 -4-
which the employer agreed to increase his employee’s salary, bonuses, and a portion of the
business’s capital stock in order to keep the employee from taking another job. 329 S.W.2d at 827.

        As the Foust Court noted, “whether or not there was a part performance of [the] contract
depends upon the particular facts of . . . each case.” Id. at 829. In the case at bar, not only did the
Appellant perform his part of the agreement, but the Appellee partially performed as well. When
he reported for work, Mr. Schnider received his car allowance, benefits, and the agreed-upon salary
as set out in the Final Draft. In return, Mr. Schnider devoted 100% of his time to opening and
running the restaurant.

        There is also evidence that Carlisle also performed on its promise to give Mr. Schnider an
interest in BSL. Although Mr. Schnider never received stock certificates for his 15% interest in the
corporation, we believe that Mr. Criss’ conduct vis-a-vis the stock was indicative of his belief that
Carlisle considered Mr. Schnider to be a 15% shareholder. The record indicates that Mr. Criss and
Mr. Schnider were present during negotiations with a potential front-end manager for the restaurant.
Mr. Schnider testified that he offered the candidate five percent of his stock in the restaurant, and
that Mr. Criss told him that he shouldn’t have to give away any of his stock, but that any stock
should come out of Gene Carlisle’s share. Perhaps even more telling than Mr. Criss’s comments
during these negotiations is the existence of a document entitled “List of Corporate Stockholders and
Officers” which the corporation sent to the State of Tennessee Alcohol & Beverage Commission.
That document, which Mr. Criss signed under oath, represents Mr. Schnider as a 15% shareholder
in BSL Management Corporation.

        Appellee argues that, if any contract existed between the parties, it was terminable at-will and
that the sworn document is, at best, evidence of Mr. Schnider’s ownership in the now presumably
defunct BSL. As we have explained above, the document Carlisle submitted to the Alcohol &
Beverage Commission is but one piece of evidence which leads us to invoke the part performance
exception to the Statute of Frauds. Based on the evidence presented at trial in this matter, we hold
that an oral contract for employment existed between Mr. Schnider and Carlisle, and that the terms
of the oral contract are contained in the parties’ Final Draft agreement. Appellee breached this
contract when it terminated Appellant in violation of the contract’s terms.

        Accordingly, the “Final Order” of the trial court is vacated. Judgment is entered for
Appellant, Roland Schnider, for damages to be determined by the trial court, and the case is
remanded for such further proceedings as necessary. Costs of the appeal are assessed against
Appellee, Carlisle Corporation.


                                               __________________________________________
                                               W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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