                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                          Assigned on Briefs, August 29, 2011

                     DOYLE SWEENEY, v. DAVID TENNEY

                  Appeal from the Circuit Court for Greene County
                 No. 10CV378-JKW        Hon. John K. Wilson, Judge


            No. E2011-00418-COA-R3-CV-FILED-SEPTEMBER 29, 2011


Plaintiff sued defendant, alleging defendant owed money on a loan. Defendant defended on
the ground that the contract was oral and the statute of frauds barred any collection. The
Trial Court awarded Judgment in favor of plaintiff in the amount of $4,500.00. On appeal,
we affirm the Trial Court.

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


H ERSCHEL P ICKENS F RANKS, P.J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY, J., joined, and C HARLES D. S USANO, J R., J., filed an opinion concurring in part and
dissenting in part.


Thomas C. Jessee, Johnson City, Tennessee, for the appellant, David Tenney.

Leroy Tipton, Jr., Greeneville, Tennessee, for the appellee, Doyle Sweeney.


                                         OPINION

                                        Background

       Doyle Sweeney, plaintiff/appellee, filed a civil warrant in the General Sessions Court
of Greene County, Tennessee, against David Tenney, defendant/appellant, on November 16,
2009. The warrant indicates that Sweeney sought a judgment of $8,000.00 for a personal
loan he alleged he had made to Tenney. At a hearing in the General Sessions Court, the civil
warrant was dismissed “on defendant’s motion” that the affirmative defense of the statute of
frauds was applicable.
        Sweeney timely appealed the General Sessions Court’s judgment to the Circuit Court,
and a bench trial was conducted by the Trial Judge. The Trial Court upon entertainment of
the affirmative defense of the statute of frauds made by Tenney, stated that the Statute of
Frauds provides that there must be “a writing, or some memorandum or note” evidencing the
agreement between the parties. The Trial Court concluded that the spread sheet prepared by
Tenney was sufficient to satisfy this requirement, and awarded a judgment in favor of
Sweeney in the amount of $4,500.00. Sweeney appealed.

       A.     Did the Trial Court err in failing to find that plaintiff’s/appellant’s claims were
              barred by the statue of frauds?

       B.     Did the defendant/appellant waive the defense of the statute of frauds by
              failing to specifically plead same as an affirmative defense in the Trial Court?

       A trial court’s findings of fact in a non-jury trial are reviewed de novo upon the
record. The trial court is afforded a presumption of correctness unless the preponderance of
the evidence is otherwise. Tenn. R. App. P. 13 (d); Wright v. City of Knoxville, 898 S.W.2d
177, 181 (Tenn. 1995). We review credibility determinations made by the trial court with
great deference. Keaton v. Hancock County Bd. of Educ., 119 S.W.3d 218, 223 (Tenn. Ct.
App. 2003). The trial court is in the best position to resolve factual issues that hinge on
credibility and appellate courts will not re-evaluate a trial court’s assessment of a witness’s
credibility absent clear and convincing evidence to the contrary. Hopper v. Moling, No.
W2004-02410-COA-R3-CV, 2005 WL 2077650 at *7, (Tenn. Ct. App. Aug. 26, 2005).

       The trial court’s conclusions of law are reviewed under a purely de novo standard with
no presumption of correctness. Taylor v. Fezell, 158 S.W.3d 352, 357 (Tenn. 2005), Union
Carbide Corp. v. Huddleston 854 S.W.2d 87, 91 (Tenn. 1993).

        Tenney contended before the Circuit Court that there never was an agreement for
Sweeney to lend $8,000.00 to him and that Sweeney had provided the money to Tenney so
he could pay off the credit card debt incurred by Sweeney’s daughter who was then Tenney’s
wife. The Trial Court found the testimony of Sweeney more credible than that of Tenney as
it found that there was a loan agreement between the parties, although it had not been
reduced to a writing. This finding by the Trial Court has not been appealed. Tenney does
appeal the Trial Court’s conclusion that Sweeney’s claim based on the oral loan agreement
was not barred by the Statute of Frauds. There is no dispute that the agreement between the
parties was not in writing. The Tennessee Statute of Frauds, Tenn. Code Ann. § 29-2-101
provides in pertinent part:

       (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. . . .

       The Statute of Frauds requires that parties memorialize certain types of contracts in
writing for the contract to be enforceable. The statute has been construed to apply to
contracts where, by express understanding of the parties, it was agreed the contract would
not be performed within the year. Trew v. Ogle, 767 S.W.2d 662, 664 (Tenn. Ct. App. 1988).
There are, however, exceptions to this rule. The most commonly recognized exception to the
Statute of Frauds is the doctrine of part performance. Under it an otherwise unenforceable
oral contract can be the basis of an action if one of the parties has performed pursuant to the
contract. Trew at 664 (citing A. Corbin, Corbin on Contracts, § 420 (One Volume Ed.1952)).

       Appellee contends the Statute of Frauds is not applicable because there was no
evidence that the agreement between the parties for Tenney to repay Sweeney was not to be
performed within one year of the making of the agreement. This argument is without merit
because the testimony of both parties established that there was no agreement regarding when
the loan was to be paid off in full.

        However, the evidence does establish that Tenney partially performed under the
agreement as he made several payments to Sweeney. Tennessee courts have recognized a
part performance exception to the Statute of Frauds, which is applicable to oral contracts
other than for the sale of land. Blasingame v. American Materials, Inc., 654 S.W.2d 659, 663
(Tenn.1983); Foust v. Carney, 205 Tenn. 604, 329 S.W.2d 826, 829 (1959); Buice v.
Scruggs Equipment Co., 194 Tenn. 129, 250 S.W.2d 44, 47 (1952). The Tennessee Supreme
Court, in Buice v. Scruggs, explained the partial performance exception to the Statute of
Frauds:

       The 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 fraud. 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

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        far to alter his position as to incur an unjust and unconscionable injury and loss, in
        case the defendant is permitted after all to rely upon the statutory defense.” Buice v.
        Scruggs Equip. Co., 194 Tenn. 129, 137, 250 S.W.2d 44, 48 (1952)(citing 49 Am.
        Juv., Sec. 427, page 733).

Buice at 47.

        In this case, the evidence showed that Tenney made payments to Sweeney on the loan,
thus he partially performed under the loan agreement and the partial performance exception
is applicable. We affirm the Trial Court when it held that the oral agreement between the
parties was enforceable and awarded judgment in favor of Sweeney and against Tenney.

        The appellee also raised an issue that Tenney waived the affirmative defense of the
Statute of Frauds by failing to specifically plead the same in the Trial Court..1 However,
our Supreme Court has addressed this issue recently, in Graham v. Caples, 325 S.W.3d 578,
583 (Tenn. 2010). Plaintiff had argued that the defendant waived the affirmative defense of
statute of limitations because, upon appeal to the Circuit Court from a General Sessions
Court judgment, defendant did not raise such defense in his initial pleading in that court. The
Supreme Court rejected this argument, stating that “[w]hile the Rules of Civil Procedure are
applicable where pertinent to cases appealed from the general sessions court to the circuit
court, ‘the Rules do not require the filing of written pleadings, issuance of new process, or
any other steps which have been completed prior to the appealing of the case to the circuit
court.’ Id. (emphasis supplied) (citing Vinson v. Mills, 530 S.W.2d 761, 765 (Tenn.1975)).
The Court noted that defendant's original motion to dismiss filed in the General Sessions
Court requested dismissal upon assertion that the statute of frauds had expired, and he was
not required to re-plead this defense in his initial pleading on appeal to the Circuit Court.

        Accordingly, this issue is without merit.

       The Judgment of the Circuit Court is affirmed and the cause remanded, with the costs
assessed to David Tenney.




                                                         _________________________________
                                                         HERSCHEL PICKENS FRANKS, P.J.


        1
        We elected to address this issue because the issue is recurring due to the fact that sessions court
pleadings are ore tenus.

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