# FILED
October 31, 19 97 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECT ION A T JA CKSON
DAN LO MAX , d /b /a CO MM ER CI AL ) CLEA NING CONT RA CTORS, ) ) Plaintiff/Appellee, ) Madison Chancery No. 51613 ) VS. ) A ppeal No. 02A 01-9706-CH- 00116 ) JACKSON-MA DISON COUNTY ) GENERAL HOSPITA L DISTRICT, ) ) Defendant/Appellant. )
APPEAL FROM THE CH ANCERY COU RT OF M ADISO N COU NTY

AT JACKSON, TENN ESSEE THE HONORABLE JOE C. MOR RIS, CHANC ELLOR

GR EG OR Y D . J OR DAN JEFFERY G . FOSTER RAINEY, KIZER, B UTLER, REVIERE & BELL, P.L.C. Jackson, Tennessee Attorneys for Appellant

EDWIN C. TOWNSEND TOWNSEN D AND TOWNSEND, ATTORNEYS Parsons, Tennessee Attorney for Appellee

REVERSED A ND RENDE RED

ALAN E. HIGHERS , J.

CONCUR: W. FRA NK CRA

WFORD, P.J., W.S. HOLLY K IRBY LIL LA RD, J.2

In this breach of contract acti on, Defendant Jackso n-Madison C ounty General Hospital Distric

t (Hospital ) appeals the t rial court ’s order aw arding a j udgment of $35,390 to Plaintiff/Appellee Dan Lomax, d/b/ a Commercial C leaning Contracts. For the reas ons stated hereinafter, we revers e the trial court’s judg ment and render a judgment in fav

or of the Hospital.

In March 1996, Lomax

sued the Hospi tal, claimi ng thatthe Hospital had breached two contracts w ith Lomax for w ind ow washin g serv ices. The first such contrac

t was evidenced by a purch ase order is sued by the H ospital on December 8, 1994, and cover ing
a three-yea r

period. The second contract, al so evidenced by a Hospital purchase order,
was issued Febr uary 1, 1995, and purported to cover a three-year period. The purchase orders were issued on forms prepared by the Hospital, and the orders contained lines for the Hospita l ’s authoriz ed signature; however, neither pu rchase order was sig ned by the Hospital’s

authorized representati ve.

Lomax’s complaint all eg ed tha t the Hospital unilaterally terminated bot h service contractsprio r to the terminati on of the three-year terms referenced therein and after Lomax had performed sub stantial services thereunder. Lomax sought specif ic performance of both contracts and, alternativ ely, a jud gment in theamount of $35,390, the balance alleg edly due under the purchase or

ders.

In its amended answer, the Hospi tal raised, inter alia , the defense of the Statute of Frauds. Both parties

subsequently

filed motionsfor summary j udgment on the issue of the enforceability

of the contracts.

In its final order, t he trial cour t awarded Lomax

a judgment of $35,390, plus interest, based on the court’s

ruling t hat the undisputed fact s brought thi s case w ithin the pa rtial performance exc eption to the Statu te of Frauds. This appeal follow ed.

Tennessee’s Statute of Frauds is codified at T.C.A. § 29-2-101, and provides that3 (a) No action shal l be brought:

. . . . (5) Upon any

agreement or

contract w hich is not t o be performed wi thin the space of one (1) ye ar from the making thereof; unless the promise or ag reement, upon w hich such acti on shall be bro ugh t, or

somememor

andu m or notethereof, shall be in writing, and signed by

the party to be char ged therewith , or some other person by him thereunto lawfull y authoriz ed. T.C.A. § 29-2-101 (Supp. 1996).

In Trew v. Ogle , 767 S.W.2d 662 (Tenn. App. 1988), this court explained the e ffect of the Statute o f Frauds on the enf orceability of contracts:

An agreement that falls withi n the Statute of Frauds is not void but is voidable at the in stance o f eit her p arty. Sn e ed v. Bradl ey , 36 Tenn. 301 (1856) ; 75 Am. Jur. 2d, Statute of Frauds , § 513 ( 1974). Thus, i f either party disaffi rms the oral contract, no action, either f or specific performance or fordamages, can be maintained on the co ntrac t. 73 A m. Jur. 2d, supra , §§ 513, 517-18. Trew v. Ogle , 767 S.W.2d at 664.

A commonly recognized exception to the Statute of Frauds may be foun d in th e doctrine of part performan ce. Under this do ctrine, “an otherwis e unenforceable oral contract can be the basis of an action if one of the partie s has performed.” Trew v. Ogle , 767 S .W.2d at 664. In the present case, the parties ag ree that the Statu te of Frau d s applies, inasmuch as the contracts do not contain theHospital’s authorized signature and the servic es contracted for cover a pe riod of three year s. Trew v. Ogle , 767 S.W.2d at 664 (indicatingthat S ta tute of Frauds applied to contract in which performance would take place over

four-yea r period). The parties als o agree that t his case was appropriatefor summary judgment becaus e the material fact s are not in dispute. See Byrd v. Hall , 847 S.W.2d 208, 214-15 (Tenn. 1993 ). The issue in this case, therefo re, is whether Lomax’s partial p erformance of the contr acts takes the parties’ ag reements out of the Stat ut e o f Frauds. See Buice v. S cruggs Equip. Co. , 250 S.W .2d 44, 48 (Tenn. 19 52).1 In his d eposit ion, Lomax test if ied t hat he pu rchased one piece of equi pment worth $400 or $500 f or

the Ho sp i t al j ob s. On appeal , however , Lomax do es no t co nte nd tha t this pu rc ha se res ulte d in un jus t inju ry. 4 After a careful re view of the record, we conclude that the doctrine of part performance do es not apply to this case and , thus, t hat the trial cour t erred in enterin g a judgmentin favor of Lomax on the contract s. To be applica ble, the doctr ine of part pe rformance does not require merely that the plaintiff performed services under th e contract sued upon. The d octr ine addi tion all y requ ire s th at th e pl aint iff, in performance or pursuance of the contract, altered his p osition in such a way that it would be unjust and unconscionable not to enforce the contract. Blasingame v. American Materials, Inc. , 654 S.W.2d 659, 663 (Tenn. 1983) ; Buice v. Scruggs Equi p. Co. , 250 S.W.2d at 48; Trew v. Ogle , 767 S.W.2d at 665; 73 Am. Jur. 2d Statute of Frauds§ 408 (1974).

In this case, t he record cont ains no evi dence to support Lomax’s conte ntion that he unjustlyaltered his position in reliance on the contracts with the H ospital. Lomax asserts that he altered his

position by

performing thecontracts for more than a year and by holdi ng himself out as ready to perform the rema inder of the contra ct s. This asser tion fails to explain, however, how Lomax’s performance so altered his position that equity entitles him to specific performan ce of the contract s or da ma ges. Lomax does not contend th at he performed servic es under the contracts for which he w as not paid. M oreover, L omax does not contend that he mad e any expenditures i n r eliance on the contracts 1 or that he was unable to pe rfo rm ot her jobs or service s because of his contractual obl igations t o the Hospital. See, e. g. , Blasingame v. American Materials, Inc. , 654 S.W.2d 659, 66 0, 663 (Tenn. 1983) (apply ing doctri ne of part per f ormance where evidence s howed that employee relocated to Tennes see in reli ance upon future employer’s promis e of corporate stock); Foust v. C arney , 329 S.W.2d 826, 828 (Tenn. 1 959 ) (app lyi ng doctrine of part performance where ev idence show ed tha t, in reliance upon employer’s promise of raise and corporate st ock, employeerejected compar able job offer

from employer’s competito r); Allen v. Elli ott Reynol ds Motor Co. , 230 S.W.2d 418, 420 (Tenn. App. 19 50) (applying doctrine of p art p erf orma nce wh ere, in rel ianc e on d efe nda nt’s prom ise o f exc lusive automobile deal ers hip, pla inti ff incurr ed expenses i n converti ng apartment hous e to automobile sales room a nd garage).5

Inasmuch as the parties agree that the Statute of Frauds app lies to the subject contracts, and inasmuch as we have concl uded th a t, under the undi sputed facts, the doctrine of part performance does not take the cont racts out of the St atute of Frauds, the trial court’s j udgment is hereby reversed, and judg ment is rendere d in favor of the Hospital. Cost s of this a ppe al are taxed to Lo max, for wh ich e xecut ion m ay issu e if n eces sary.

HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

LILLARD, J.