                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                   ASSIGNED ON BRIEFS DECEMBER 2, 2011

                  FREDDY EDWARDS v. RODNEY COLLINS

              Direct Appeal from the Circuit Court for Madison County
                     No. C-10-313    Roy B. Morgan, Jr., Judge


               No. W2011-00516-COA-R3-CV - Filed January 12, 2012


The circuit court entered a judgment against Defendant following a bench trial. Defendant
appealed, but he failed to provide this Court with a transcript or statement of the evidence.
Due to our limited ability to review the proceedings below, we affirm the decision of the
lower court.


  Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed

A LAN E. H IGHERS., P.J., W.S., delivered the opinion of the Court, in which D AVID R.
F ARMER, J., and H OLLY M. K IRBY, J., joined.

G. W. Shepherd, III, Henderson, Tennessee, for the appellant, Rodney Collins

Freddy Edwards, Wildersville, Tennessee, pro se
                                  MEMORANDUM OPINION 1

                             I.   F ACTS & P ROCEDURAL H ISTORY

        Freddy Edwards (“Plaintiff”) filed a civil warrant in general sessions court against
Rodney Collins (“Defendant”), seeking to recover for “repairs to [a] truck that [Defendant]
failed to make” and for an alleged breach of an employment contract to allow Plaintiff to
“haul daily loads.” Following the entry of a default judgment, an appeal was taken to circuit
court. Defendant then filed a counterclaim in which he alleged that it was Plaintiff who had
breached the employment agreement by failing to report to work.

        After a bench trial, the circuit court entered an order finding that “neither party ha[d]
shown sufficient proof to establish the existence of an enforceable employment contract
between the parties.” However, with regard to Plaintiff’s claim involving the truck repairs,
the trial court found that “certain assurances made by [Defendant] to [Plaintiff] in regard to
brakes on the truck and tires on the trailer were a part of the bargain between the parties that
resulted in the sale of the truck and trailer.” As such, the court held that Defendant was liable
to Plaintiff for the cost of brake repairs and tire replacements in the amount of $3,853.89.
Defendant appealed to this Court, and he subsequently provided notice that no transcript or
statement of the evidence would be submitted on appeal.

                                      II.    I SSUE P RESENTED

        On appeal, Defendant argues that the trial court should have found that there was no
enforceable contract to repair the truck based upon the statute of frauds, Tenn. Code Ann.
§ 47-2-201, as it applies to sales of goods exceeding $500. He does not appeal the dismissal
of his counterclaim regarding the employment contract.

                                  III.      S TANDARD OF R EVIEW

       On appeal, a trial court’s factual findings are presumed to be correct, and we will not
overturn those factual findings unless the evidence preponderates against them. Tenn. R.
App. P. 13(d) (2011); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). For the evidence
to preponderate against a trial court’s finding of fact, it must support another finding of fact


       1
          Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) The Court, with the concurrence
of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by
memorandum opinion when a formal opinion would have no precedential value. When a case is
decided by memorandum opinion it shall be designated “MEMORANDUM OPINION,” shall not
be published, and shall not be cited or relied on for any reason in a subsequent unrelated case.

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with greater convincing effect. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App.
2005) (citing Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000);
The Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App.
1999)). We review a trial court’s conclusions of law under a de novo standard upon the
record with no presumption of correctness. Union Carbide Corp. v. Huddleston, 854
S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v. White Consol. Indus., Inc., 788
S.W.2d 815, 817 (Tenn. Ct. App. 1989)).

                                       IV.   D ISCUSSION

        Our ability to review the proceedings in the lower court is hampered by the absence
of either a transcript or a statement of the evidence prepared in accordance with Tennessee
Rule of Appellate Procedure 24(c). The appellant has a duty to prepare a record that conveys
a fair, accurate, and complete account of what transpired in the trial court regarding the
issues that form the basis of his or her appeal. In re M.L.D., 182 S.W.3d 890, 894 (Tenn.
Ct. App. 2005). “A recitation of facts and argument in an appellate brief does not constitute
evidence and cannot be considered in lieu of a verbatim transcript or statement of the
evidence and proceedings.” In re M.R., No. M2007-02532-COA-R3-JV, 2008 WL 2331030,
at *3 (Tenn. Ct. App. W.S. Jun. 3, 2008) (citing State v. Draper, 800 S.W.2d 489, 493 (Tenn.
Crim. App. 1990)). We cannot simply assume that the facts recited are true. In re
Conservatorship of Chadwick, No. E2006-02544-COA-R3-CV, 2008 WL 803133, at *1
(Tenn. Ct. App. Mar. 27, 2008). “The law is clear that statements of fact made in or attached
to pleadings, briefs, and oral arguments are not evidence and may not be considered by an
appellate court unless they are properly made part of the record.” Threadgill v. Bd. of Prof'l
Responsibility of Supreme Court, 299 S.W.3d 792, 812 (Tenn. 2009).

        “Absent the necessary relevant material in the record an appellate court cannot
consider the merits of an issue.” State v. Ballard, 855 S.W.2d 557, 561 (Tenn. 1993). “It
is well settled that, in the absence of a transcript or statement of the evidence, there is a
conclusive presumption that there was sufficient evidence before the trial court to support
its judgment, and this Court must therefore affirm the judgment.” Outdoor Mgmt., LLC v.
Thomas, 249 S.W.3d 368, 377 (Tenn. Ct. App. 2007) (citing McKinney v. Educator &
Executive Insurers, Inc., 569 S.W.2d 829, 832 (Tenn. Ct. App. 1977)). As such, we may only
reverse the trial court's decision if we find, based on the “technical” record before us, that the
trial court committed an error of law. In re M.R., 2008 WL 2331030, at *3 (citing In re
Conservatorship of Chadwick, 2008 WL 803133, at *2).

        Here, Defendant claims that “the trial court ignored the fact that no writing existed”
to satisfy the statute of frauds. He argues that the statute of frauds is applicable to the
transaction at issue because it involved a sale of goods exceeding $500. However, we will

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not decide whether the statute of frauds would apply to the transaction at issue because there
is nothing in the sparse record before us to indicate that Defendant raised the statute of frauds
as an affirmative defense during the proceedings below.2 “Affirmative defenses not properly
raised before the trial court generally do not merit consideration on appeal.” Davidson v.
Wilson, No. M2009-01933-COA-R3-CV, 2010 WL 2482332, at *6 (Tenn. Ct. App. W.S.
Jun. 18, 2010) (quoting Madden Phillips Constr., Inc. v. GGAT Dev. Corp., No. W2008-
02350-COA-R3-CV, 2009 WL 3064898, at *9 n.9 (Tenn. Ct. App. Sept.25, 2009) perm. app.
denied (Tenn. Mar. 15, 2010)). The statute of frauds does not render oral contracts void ab
initio. Anderson v. Hacks Crossing Partners, 3 S.W.3d 482, 485 (Tenn. Ct. App. 1999)
(citing Cobble v. Langford, 190 Tenn. 385, 230 S.W.2d 194, 196 (1950); Huffine v.
McCampbell, 149 Tenn. 47, 257 S.W. 80, 83 (1923); Bailey v. Henry, 125 Tenn. 390, 143
S.W. 1124, 1127 (1912); Brakefield v. Anderson, 87 Tenn. 206, 10 S.W. 360, 361 (1889);
Trew v. Ogle, 767 S.W.2d 662, 664 (Tenn. Ct. App. 1988)). “Instead, such contracts are
merely voidable at the election of either party.” Id. (citing Bailey, 143 S.W. at 1127;
Brakefield, 10 S.W. at 361; Trew, 767 S.W.2d at 664). If one of the parties to the contract
fails to raise the statute of frauds as a defense, or if the parties consent, the court is required
to enforce the oral contract. See id.

        As noted above, in cases where no transcript or statement of the evidence is filed, the
appellate court is required to presume that the record, had it been properly preserved, would
have supported the action of the trial court. Allen v. Allen, No. W2010-00920-COA-R3-CV,
2011 WL 198516, at *3 (Tenn. Ct. App. Jan. 12, 2011) (citing Reinhardt v. Neal, 241 S.W.3d
472, 477 (Tenn. Ct. App. 2007); Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App.
1992)). Here, there is nothing to indicate that Defendant raised the issue of the applicability
of the statute of frauds in the trial court below.3 As such, we find no error in the trial court’s
decision, and we will not consider the statute of frauds for the first time on appeal.



        2
           Even if the issue had been properly raised, there are many unanswered questions regarding the
applicability of the statute of frauds that we could not resolve based on the record before us. For example,
there is nothing in the record to demonstrate that the sales price actually exceeded $500. According to
Defendant's brief, the contract was for the sale of an eighteen wheeler truck and trailer for a sales price of
$18,000, and the transaction was consummated, but the parties never reduced the agreement to writing.
However, we cannot simply assume that these facts are true. In addition, the statute of frauds relied upon
by Defendant contains exceptions which provide that a contract that fails to satisfy the writing requirement
may nonetheless be enforceable “if the party against whom enforcement is sought admits in his pleading,
testimony or otherwise in court that a contract for sale was made,” and a contract may also be enforceable
“with respect to goods for which payment has been made and accepted or which have been received and
accepted.” Tenn. Code Ann. § 47-2-201(3). Due to the lack of a transcript or statement of the evidence, it
is unclear whether these exceptions would have been applicable.
        3
            We note that Defendant’s brief does not mention whether he raised the issue before the trial court.

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                                    V.   C ONCLUSION

       For the aforementioned reasons, the decision of the circuit court is hereby affirmed.
Costs of this appeal are taxed to the appellant, Rodney Collins, and his surety, for which
execution may issue if necessary.


                                                  _________________________________
                                                  ALAN E. HIGHERS, P.J., W.S.




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