                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                          Submitted on Briefs on August 20, 2013

           MARK HAWKS and DESIGN CONSULTANTS, INC.
                             v.
             CD DEVELOPMENT, LLC and CHRIS DAVIS

                   Appeal from the Circuit Court of Madison County
                       No. CO8292 Roy B. Morgan, Jr., Judge


              No. W2013-00499-COA-R3-CV - Filed September 25, 2013


This appeal involves the tolling of the statute of limitations for a breach of contract. The
plaintiff architect rendered services to the defendant real estate developer, and the developer
failed to pay for the architect’s services. Approximately four years later, the architect
recorded a lien against the real property to secure the indebtedness. The developer then
promised the architect he would pay the indebtedness if the architect released the lien. The
architect released the lien but still was not paid. Approximately four years after that, the
architect filed this lawsuit against the developer to collect the debt. The developer asserted
that the architect’s claim was barred by the six-year statute of limitations. After a trial, the
trial court held that the statute of limitations was tolled under the doctrine of equitable
estoppel, so the architect’s lawsuit was timely filed. The trial court entered a judgment in
favor of the architect. The developer appeals only on the issue of whether the claim was
time-barred. Discerning no error, we affirm.

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

H OLLY M. K IRBY, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and J. S TEVEN S TAFFORD, J., joined.

Andrea Sipes Lester, Jackson, Tennessee, for the Defendant/Appellants, Chris Davis and/or
CD Development, LLC

Lanis L. Karnes and Christopher G. Covellis, Jackson, Tennessee, for the Plaintiff/Appellees,
Mark Hawks and Design Consultants, Inc.
                                           OPINION

                             F ACTS AND P ROCEDURAL H ISTORY

Plaintiff/Appellee Mark Hawks is a certified architect, employed by his own design firm,
Plaintiff/Appellee Design Consultants, Inc. In 1998 and 1999, Mr. Hawks was hired by
Defendant/Appellant Chris Davis and Mr. Davis’s now-defunct development company,
Defendant/Appellant CD Development LLC, to perform architectural services.

The projects for which Mr. Hawks was hired included Mr. Davis’s development of a
restaurant, the Peking Restaurant. While Mr. Hawks was working on the Peking Restaurant
project, the parties signed a written contract setting forth the fee due from Mr. Davis for Mr.
Hawks’ services and providing for interest of 1.5% per month on unpaid amounts. On April
23, 1999, pursuant to the contract, Mr. Hawks presented Mr. Davis with an invoice for the
work on the Peking Restaurant project, totaling $17,246.32. Mr. Davis did not pay Mr.
Hawks’ invoice.

In the years that followed, Mr. Hawks spoke to Mr. Davis on a number of occasions, and in
fact they continued to work together on other projects. Still no payment for Mr. Hawks’
work on the Peking Restaurant project ever materialized.

In August 2003, after Mr. Hawks heard that Mr. Davis planned to sell the development that
included the Peking Restaurant, Mr. Hawks filed a lien on the property for an amount that
exceeded $60,000, for Mr. Hawks’ unpaid services. Shortly after filing the lien, Mr. Hawks
spoke to Mr. Davis about it. Mr. Hawks also received a faxed letter from Mr. Davis’s
attorney that indicated Mr. Davis would pay Mr. Hawks if he released the lien to allow the
sale of the development to proceed. Expecting payment from Mr. Davis, Mr. Hawks released
the lien. However, Mr. Hawks never received the promised payment.

Several years later, on September 26, 2008, Mr. Hawks filed the instant lawsuit against Mr.
Davis and his development company in the Circuit Court of Madison County, Tennessee.
The lawsuit alleged breach of the parties’ contract and sought damages plus pre-judgment
interest, post-judgment interest, and the costs of collection. The amended answer filed by
Mr. Davis asserted, inter alia, that Mr. Hawks’ action was time-barred under the applicable
statute of limitations.1 Discovery and various delays ensued.




       1
         The amended answer also asserted a third-party complaint against Home Banking Company.
The third-party complaint is not at issue in this appeal.

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The trial court conducted a bench trial on November 1, 2012. The trial court heard testimony
from Mr. Hawks, Mr. Davis, and Charles Patterson, the attorney who sent the letter to Mr.
Hawks regarding the lien. The trial court also heard telephone conversations between Mr.
Hawks and Mr. Davis, recorded by Mr. Hawks without Mr. Davis’s knowledge.

At the conclusion of the trial, the trial court rendered an oral ruling in favor of Mr. Hawks.
The trial court found that the parties had a valid contract, breached by Mr. Davis on April 23,
1999. Addressing why the lawsuit was not barred by the six-year statute of limitations for
such a claim, the trial court held that Mr. Davis was estopped from asserting the statute of
limitations or, in the alternative, the statute of limitations was tolled. Citing the parties’
testimony, the recorded telephone conversations, and the letter to Mr. Hawks from attorney
Patterson, the trial court made factual findings that, in 2003, Mr. Davis promised Mr. Hawks
that he would pay for Mr. Hawks’ work on the Peking Restaurant project if Mr. Hawks
released the lien he had placed on the property. The trial court found that the letter to Mr.
Hawks from attorney Patterson, on behalf of Mr. Davis, likewise promised payment to Mr.
Hawks on the Peking Restaurant project. Mr. Hawks released the lien in reasonable reliance
on these promises, the trial court found. Based on these factual findings, the trial court held
that Mr. Hawks’ complaint was not time-barred.

On January 16, 2013, the trial court entered a written order awarding judgment in favor of
Mr. Hawks in the amount of Mr. Hawks’ original invoice, $17,246.32, plus 1.5% interest per
month as per the contract, plus pre-judgment interest back to the date the lawsuit was filed,
plus post-judgment interest. The order declined Mr. Hawks’ request for his attorney fees and
assessed costs against Mr. Davis. The written order attached a transcript of the trial court’s
oral ruling setting forth its findings of fact and conclusions of law. From this order, Mr.
Davis now appeals.

                      I SSUE ON A PPEAL AND S TANDARD OF R EVIEW

On appeal, Mr. Davis argues that the trial court erred in holding that the complaint is not
barred by the statute of limitations.

Because this matter was decided by the trial court without a jury, the trial court’s findings of
fact are reviewed de novo on the record, with a presumption that those findings are correct
unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). For the evidence to
preponderate against the trial court’s factual finding, it must support another finding of fact
with greater convincing effect. Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 70–71
(Tenn. Ct. App. 2000); Realty Shop v. RR Westminster Holding., 7 S.W.3d 581, 596 (Tenn.
Ct. App. 1999)). The trial court’s conclusions of law are reviewed de novo, with no
presumption of correctness. Nashville Ford Tractor, Inc. v. Great Am. Ins. Co., 194 S.W.3d

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415, 424–25 (Tenn. Ct. App. 2005). It is also well settled that a trial court’s assessment of
the witnesses’ credibility is entitled to great weight on appeal because the trial court saw and
heard the witnesses testify; thus, we defer to the trial court’s assessment on credibility absent
clear and convincing evidence to the contrary. C & W Asset Acquisition, LLC v. Oggs, 230
S.W.3d 671, 676 (Tenn. Ct. App. 2007).

                                           A NALYSIS

On appeal, Mr. Davis argues that the complaint in this case was not timely filed and that the
trial court erred in holding to the contrary. Mr. Davis does not dispute that he made promises
over the years to Mr. Hawks that he would pay Mr. Hawks for the Peking Restaurant project.
Mr. Davis contends, however, that he told Mr. Hawks that he did not intend to pay him the
full amount requested on the Peking project, and notes his own testimony to that effect. Mr.
Davis argues that it was unreasonable for Mr. Hawks to believe Mr. Davis’s continued
promises to pay when Mr. Davis in fact had never made any attempt to settle the outstanding
indebtedness. Mr. Davis claims that he was prejudiced in his defense by Mr. Hawks’
unreasonable delay in filing suit.

It is undisputed in this case that the applicable statute of limitations is six years, as set forth
in Tennessee Code Annotated § 28-3-109(a)(3). It is also undisputed that the complaint was
filed over eight years after the trial court held that the cause of action accrued. Therefore,
the claim is time-barred absent an exception that tolls the statute of limitations.

In this case, the trial court held that the six-year statute of limitations was tolled by
application of the doctrine of equitable estoppel. Our Supreme Court recently discussed
equitable estoppel as a defense to the running of the statute of limitations:

       The doctrine of equitable estoppel arises from the equitable maxim that no
       person may take advantage of his or her own wrong. In the context of a
       defense predicated on a statute of limitations, the doctrine of equitable estoppel
       tolls the running of the statute of limitations when the defendant has misled the
       plaintiff into failing to file suit within the statutory limitations period. When
       the doctrine of equitable estoppel is applicable, it prevents a defendant from
       asserting what could be an otherwise valid statute of limitations defense.

       The party invoking the doctrine of equitable estoppel has the burden of proof.
       Thus, whenever a defendant has made out a prima facie statute of limitations
       defense, the plaintiff must demonstrate that the defendant induced him or her
       to put off filing suit by identifying specific promises, inducements,
       suggestions, representations, assurances, or other similar conduct by the

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      defendant that the defendant knew, or reasonably should have known, would
      induce the plaintiff to delay filing suit. The plaintiff “must also demonstrate
      that [his or her] delay in filing suit was not attributable to [his or her] own lack
      of diligence.”

      The doctrine of equitable estoppel applies only when the defendant engages
      in misconduct. Examples of circumstances which have prompted the courts
      to invoke the doctrine of equitable estoppel to prevent a defendant from
      asserting a statute of limitations defense include: . . . (2) when a defendant
      promises to pay or otherwise satisfy the plaintiff’s claim without requiring the
      plaintiff to file suit, . . .

      In the context of defenses predicated on a statute of limitations, the doctrine
      of equitable estoppel always involves allegations that the defendant misled the
      plaintiff. The focus of an equitable estoppel inquiry “is on the defendant’s
      conduct and the reasonableness of the plaintiff’s reliance on that conduct.”
      Determining whether to invoke the doctrine of equitable estoppel to counter
      a statute of limitations defense requires the courts to examine the facts and
      circumstances of the case to determine whether the defendant’s conduct is
      sufficiently unfair or misleading to outweigh the public policy favoring the
      enforcement of statutes of limitations.

      Plaintiffs asserting equitable estoppel must have acted diligently in pursuing
      their claims both before and after the defendant induced them to refrain from
      filing suit. The statute of limitations is tolled for the period during which the
      defendant misled the plaintiff. The plaintiff must demonstrate that suit was
      timely filed after the plaintiff knew or, in the exercise of reasonable diligence,
      should have known that the conduct giving rise to the equitable estoppel claim
      had ceased to be operational. At the point when the plaintiff knows or should
      know that the defendant has misled him or her, the original statute of
      limitations begins to run anew, and the plaintiff must file his or her claim
      within the statutory limitations period.

Redwing v. Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436, 460-61 (Tenn.
2012)(internal citations and footnotes omitted). See also Hobbs v. Brainerd, 919 S.W.2d
337, 338 (Tenn. Ct. App. 1995)(statute of limitations tolled by debtor’s acknowledgment of
debt and expression of willingness to pay).

The trial court below found that Mr. Davis clearly and unequivocally told Mr. Hawks that
he would pay Mr. Hawks for his work on the Peking Restaurant project if Mr. Hawks

                                              -5-
released the lien on the restaurant property, based at least in part on the taped telephone
conversations between Mr. Hawks and Mr. Davis. It found that Mr. Davis’s oral promises
were confirmed in writing by attorney Patterson on behalf of Mr. Davis. The trial court
found that Mr. Hawks released the lien in reliance on Mr. Davis’s assurances.

The factual findings by the learned trial judge are well-supported in the record. The tapes
of the parties’ telephone conversations show that Mr. Davis promised to pay Mr. Hawks the
Peking Restaurant debt. Mr. Hawks’ testimony, credited by the trial court, establishes that
Mr. Hawks released the lien based on Mr. Davis’s assurance of payment. Despite this, the
promised payment from Mr. Davis never occurred.

Mr. Davis notes that he testified at trial that he had previously told Mr. Hawks that he would
not pay the full amount. Even if this testimony were credited, it does not change the clear
promises to pay made by Mr. Davis to Mr. Hawks in the taped telephone conversations. The
trial court found that Mr. Davis made “clear, unequivocal promises to pay” the Peking
Restaurant debt to Mr. Hawks. The fact that Mr. Davis did not state a specific amount in the
telephone conversations makes no difference. This argument is without merit.

Mr. Davis also argues on appeal that Mr. Hawks’ reliance on Mr. Davis’s assurances was not
reasonable. The record fully supports the trial court’s holding that Mr. Hawks’ reliance was
reasonable. This argument is also without merit.

Mr. Davis also argues that Mr. Hawks’ delay in filing suit prejudiced Mr. Davis’s ability to
present a defense in the lawsuit. Without saying so, Mr. Davis appears to be asserting the
doctrine of laches as a reason not to hold that the statute of limitations is tolled under the
doctrine of equitable estoppel. The equitable defense of laches must be predicated on the
trial court’s finding of inexcusable, negligent, or unreasonable delay on the party asserting
the claim with resulting prejudice to the defendant. Finova Capital Corp. v. Regel, 195
S.W.3d 656, 660 (Tenn. Ct. App. 2006). Laches is an equitable defense and requires the
finder of fact to determine that it would be inequitable or unjust to enforce a claimant’s
rights. Id. In his appellate brief, Mr. Davis does not point to any place in the record in which
he raised the doctrine of laches to the trial court. Even if such an argument had been made
to the trial court, application of the doctrine of laches is not warranted under the facts of this
case. This argument is likewise without merit.

In short, considering the record as a whole, we find no error in the trial court’s holding that
Mr. Hawks’ complaint was timely filed.

On appeal, Mr. Hawks asks this Court for an award of his attorney fees on appeal. He cites
neither a basis in his contract for such an award of attorney fees nor a statute. There being

                                               -6-
no legal basis for an award of attorney fees on appeal, we respectfully decline the request.
Our holdings herein pretermit all other issues raised on appeal.

                                       C ONCLUSION

The decision of the trial court is affirmed. Costs on appeal are to be taxed against
Defendant/Appellants Chris Davis and CD Development, LLC, for which execution may
issue, if necessary.


                                                         ______________________________
                                                          HOLLY M. KIRBY, JUDGE




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