IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

October 25, 2012 Session

PNC MULTIFAMILY CAPITAL INSTITUTIONAL FUND XXVI LIMITED

PARTNERSHIP, ET AL. v. CARL MABRY

Direct Appeal from the Chancery Court for Shelby County

No. CH-08-1494-02 Arnold B. Goldin, Chancellor

No. W2011-01679-COA-R3-CV - Filed November 26, 2012

Appellant takes exception to the trial court’s order, enforcing a settlement agreement.

Following a judicial settlement conference, the parties signed a written agreement, which

contemplated the execution of more formal settlement documents. When the formal

documents were presented to Appellant, he refused to sign. Upon Appellees’ motion, the

trial court enforced the settlement and Appellant appeals. Discerning no error, we affirm.

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

J. STEVEN STAFFORD,J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J.,

W.S., and HOLLY M. KIRBY, J., joined.

Venita Marie Martin, Memphis, Tennessee, for the appellant, Carl Mabry.

Robert L. Crawford and Joseph B. Reafsnyder, Memphis, Tennessee, and Charles L. Perry,

Dallas, Texas, for the appellees, PNC Multifamily Capital Institutional Fund XXVI, Limited

Partnership; PNC Multifamily Capital Institutional Fund XXX, Limited Partnership; PNC

Multifamily Capital Institutional Fund XXI, Limited Partnership; Columbia Housing SLP

Corporation; Eagles Landing Apartments, L.P.; April Woods Apartments, L.P.; and Harmony

Woods Apartments, L.P.

OPINION

This is the third appeal of this case, which involves allegations of misconduct,

misappropriation and various breaches of contract and trust related to three tax credit

partnerships that own tax-credit apartment complexes in Memphis, Tennessee. The issues
raised in this appeal are narrow and we will not tax the length of this opinion to offer a

complete history. However, a full recitation of the factual histories and the particulars of our

previous adjudications may be found at Eagles Landing Development, L.L.C. v. Eagles

Landing Apartments, L.P., et al., ----- S.W.3d -----, No. W2011–00689–COA–R3–CV, 2012

WL 346451 (Tenn. Ct. App. Feb. 2, 2012), perm. app. denied (Tenn. Aug. 16, 2012), and at

PNC Multifamily CapitalInstitutional Fund XXVI Limited Partnership, et al. v. Bluff City

Community Development Corp., et al., ----- S.W.3d -----, No. W2011–00325–COA–R3–CV,

2012 WL 1572130 (Tenn. Ct. App. May 4, 2012), perm. app. denied (Tenn. Sept. 19, 2012).

For purposes of the instant appeal, the relevant facts are as follows.

The Plaintiffs/Appellees in this case are: PNC Multifamily Capital Institutional Fund

XXVI Limited Partnership (“Fund XXVI”), PNC Multifamily Capital Institutional Fund

XXX Limited Partnership (“Fund XXX”); PNC Multifamily Capital Institutional Fund XXI

Limited Partnership (“Fund XXI”); Columbia Housing SLP Corporation (“Columbia

Housing”); Eagles Landing Apartments, LP (“Eagles Landing”); April Woods Apartments,

L.P. (“April Woods”); and Harmony Woods Apartments, L.P. (“Harmony Woods”)

(collectively, the “Partnerships”).

1

On November 1, 2004, Fund XXI, Columbia Housing and Bluff City Community

Development Corporation, Inc. (“Bluff City”) entered into a partnership agreement to create

Harmony Woods Apartments, L.P. The partnership agreement was intended to take

advantage of the low income housing tax credit created by Congress, and was for the purpose

of building and operationing certain low-to-moderate-income level apartment complexes in

Memphis. A year after the initial agreement, on November 1, 2005, Fund XXVI, Columbia

Housing, Bluff City, and another non-profit entity, Project Love, by and through its owners,

Jesse and Johnnie Briggs, entered into a second partnership agreement to create an entity

known as April Woods Apartments, L.P. One month after that, a third and final partnership

agreement was created by Fund XXX, Columbia Housing, Bluff City, and Orson Sykes for

the purpose of creating an entity known as Eagles Landing Apartments, L.P.

The sole Appellant in this case, Carl Mabry, was the president of Bluff City. As noted

above, until August 12, 2008, Bluff City was the general partner in each of the Partnerships.

On August 12, 2008, Appellees removed Bluff City from its position as general partner of

Fund XXX is a limited partner in the Eagles Landing Partnership. Fund XXVI is a limited partner

1

in the April Woods Partnership. Fund XXIis a limited partner in the Harmony Woods Partnership. Columbia

Housing is a limited partner in the April Woods Partnership, the Eagles Landing Partnership, and the

Harmony Woods Partnership. On April 12, 2008, Columbia Housing became the general partner in the April

Woods, Eagles Landing, and Harmony Woods partnerships when Bluff City was removed as the general

partner of these partnerships, see infra.

-2-
the Partnerships. This decision was brought about by three categories of alleged wrongdoing

on the part of Bluff City and Mr. Mabry, including: (1) defaults under loan agreements and

payment obligations; (2) transfer of interests in real property belonging to the limited

partnerships without the limited partners' consent and misappropriation of funds of the

limited partnerships; and (3) failure to meet various reporting obligations. Specifically,

Appellees alleged the following instances of alleged misappropriation or diversion of

partnership funds by Bluff City and/or Mr. Mabry:

• May 25, 2007 withdrawal of $3,462.81 from April Woods' account.

• November 20, 2007 withdrawal of $347,265.67 from April Woods' account.

• December 6, 2007 withdrawal of $100 from April Woods' account.

• December 6, 2007 withdrawal of $14,029.79 from April Woods' account.

• December 6, 2007 $240.82 check written from April Woods' account.

• December 6, 2007 $445.95 check written from April Woods' account.

• December 10, 2007 withdrawal of $36,615.37 from April Woods' account.

• December 10, 2007 withdrawal of $5,370 from April Woods' account.

• December 2007 four checks written from April Woods' account in amounts of $220, $17,

$190, and $3,260.

• February 2, 2008 check written from April Woods' account in an unspecified amount.

• March 3, 2008 check written from April Woods' account in the amount of $10,746.58.

• June 18, 2008 check written from April Woods' account in the amount of $21,941.42.

• July 16, 2008 check written from April Woods' account in the amount of $445.95.

• July 17, 2008 check written from April Woods' account in the amount of $240.82.

• August 25, 2008 check written from April Woods' account in the amount of $240.82.

• August 25, 2008 check written from April Woods' account in the amount of $490.54.

In addition to the foregoing, Appellees alleged that some thirty-seven cash

withdrawals were made by Mr. Mabry between May 2006 and November 2008 from two

different April Woods' accounts in the total amount of approximately $165,000.00, and that

these funds were used by Mabry or Bluff City for unauthorized purposes. The Appellees also

alleged that seven different cash withdrawals were made by Mabry between January 2007

and August 2008 from an Eagles Landing account in the sum total of approximately

$92,000.00, and that these funds were used by Mabry or Bluff City for unauthorized

purposes. Appellees further alleged that Mabry improperly authorized Eagles Landing to

accept funds as loans in the alleged amount of $13,000.00 from the Horizon Financial Group.

Finally, Appellees alleged that there were other unspecified occasions on which Mabry, Bluff

City, “or other defendants” made cash withdrawals from April Woods, Eagles Landing, or

Harmony Woods accounts, or caused checks to be written on said accounts, or otherwise

misappropriated funds or property belonging to those entities.

-3-
In PNC Multifamily Capital Institutional Fund XXVI Limited Partnership, et al. v.

Bluff City Community Development Corp., et al., 2012 WL 1572130, Appellees filed their

second motion for partial summary judgment against defendants, including Bluff City, Mr.

Mabry, Eagles Landing, Project Love, and Jesse Briggs, with that motion being scheduled

for hearing on February 4, 2011.

On January 26, 2011, Mr. Mabry’s attorney, Robert Spence, filed a motion to

withdraw from the case. The motion states that Mabry and his counsel “have a substantial

and irreconcilable disagreement related to the handling of this case, and, in particular, the

responsive filing to Plaintiffs’ second motion for partial summary judgment.” Based upon

this alleged disagreement, Mr. Spence averred that he could not continue to represent Mr.

Mabry and, at the same time, comply with the obligations set forth in the Rules of

Professional Conduct and the Rules of Civil Procedure. The motion further states that Mr.

Mabry has “been notified of counsel’s intent to withdraw and [has] no opposition to this

Motion.” The motion was granted by order of February 15, 2011. Mr. Mabry then requested

an extension of time before the hearing on the second motion for partial summary judgment,

which extension was granted by agreed order, entered on February 3, 2011.

There is nothing in the record to indicate that Mr. Mabry retained new counsel to

represent him at the trial level after Mr. Spence withdrew from the case. However, Mr.

2

Mabry is represented, on appeal, by Venita M. Martin.

On February 8, 2011, the remaining parties, including Mr. Mabry, participated in a

court-ordered judicial settlement conference, which was presided over by Chancellor Kenny

Armstrong. At the conference, an agreement was reached and a document reflecting the

settlement terms was prepared and signed by all of the participating parties, including Mr.

It is well settled that pro se litigants are held to the same procedural and substantive standards to 2

which lawyers must adhere. As recently explained by this Court:

Parties who decide to represent themselves are entitled to fair and equal

treatment by the courts. The courts should take into account that many pro

se litigants have no legal training and little familiarity with the judicial

system. However, the courts must also be mindful of the boundary between

fairness to a pro se litigant and unfairness to the pro se litigant's adversary.

Thus, the courts must not excuse pro se litigants from complying with the

same substantive and procedural rules that represented parties are expected

to observe.

Jackson v. Lanphere, No. M2010–01401–COA–R3–CV, 2011 WL 3566978, at *3 (Tenn. Ct. App. Aug.

12, 2011) (quoting Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App.2003)).

-4-
Mabry. The Chancellor noted that the settlement was “subject to drafting and execution of

formal settlement documentation.” Thereafter, Appellees’ attorney prepared and circulated

the formal settlement documentation, which included a mutual settlement agreement, with

exhibits including: (a) rescission of joint use agreements, grant of limited easement, and

restriction agreement; (b) cancellation, termination and rescission of quit claim deed; (c)

document transferring interests in any developer fee payable to Eagles Landing; and (d)

agreed final order dismissing claimsinvolving certain defendants. Mr. Mabry refused to sign

the formal settlement documents. On April 19, 2011, Appellees filed a motion to enforce the

settlement agreement; an amended motion to enforce the settlement agreement was filed on

April 20, 2011. In relevant part, the motion to enforce the settlement agreement avers that

Mr. Mabry had insisted on including additional provisions that were not agreed to by the

remaining parties at the judicial settlement conference and had refused to sign the final

documents. On May 24, 2011, Mr. Mabry filed a response in opposition to the motion to

enforce the settlement.

On July 8, 2011, the trial court entered orders enforcing the written settlement

agreement. The July 8, 2011 orders consist of: (1) order granting Plaintiffs’ amended motion

to enforce settlement; (2) Order granting Plaintiffs’ motion to enforce settlement (in

particular voiding Eagles Landing II quit claim deed); and (3) Order granting Plaintiffs’

motion to enforce settlement (in particular April Woods II Rescission of joint use

agreements, grant of limited easement and restriction) (together the “July 8, 2011 Orders”).

Mr. Mabry appeals, individually. He raises three issues for review as stated in his brief:

1. Whether the trial court erred in granting the Appellees’

motion to enforce settlement agreement where the controlling

document itself conditioned settlement upon the “drafting and

execution of formal settlement document.”

2. Whether the trial court erred in failing to prepare findings of

fact and conclusions of law for enforcing the tentative

settlement agreement.

3. Whether the trial court erred in refusing to continue the

judicial settlement conference where Appellant and two

corporate entities were not represented by counsel because their

counsel withdrew two days before the scheduled conference.

Because this case was tried to the trial judge without a jury, we review the trial court's

findings of fact de novo with a presumption of correctness, unlessthe evidence preponderates

otherwise. Tenn. R. App. P. 13(d). No presumption of correctness, however, attaches to the

-5-
trial court's conclusions of law and our review is de novo. Bowden v. Ward, 275 S.W.3d 913,

916 (Tenn. 2000). For the evidence to preponderate against a trial court's finding of fact, it

must support another finding of fact with greater convincing effect. Walker v. Sidney

Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000); The Realty Shop, Inc. v. R.R.

Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct .App.1999)).

Adequacy of Findings in July 8, 2011 Orders

We begin with Mr. Mabry’s second issue, concerning the alleged lack of findings in

the trial court’s July 8, 2011 Orders. Tennessee Rule of Civil Procedure 52.01 provides:

In all actions tried upon the facts without a jury, the court shall

find the facts specially and shall state separately its conclusions

of law and direct the entry of the appropriate judgment. The

findings of a master, to the extent that the court adopts them,

shall be considered as the findings of the court. If an opinion or

memorandum of decision is filed, it will be sufficient if the

findings of fact and conclusions of law appear therein. Findings

of fact and conclusions of law are unnecessary on decisions

of motions under Rule 12 or 56 or any other motion except

as provided in Rules 41.02 and 65.04(6).

(emphasis added). Appellees’ motion to enforce the settlement agreement is neither a Rule

41.02 (i.e., involuntary dismissal), nor a Rule 65.04(6) (i.e., temporary injunction) so as to

require findings under Rule 52.01. Therefore, the plain language of Rule 52.01 provides that

findings of fact and conclusions of law were not required. Mr. Mabry cites no other law that

requires courts to make findings of fact and conclusions of law when enforcing a settlement

agreement. Accordingly this issue is without merit. We note, however, that a trial court

should endeavor to explain its decision adequately, so that its voice is heard clearly by any

reviewing court. Even though findings of fact may not be required under Rule 52, it is most

often a good idea for the court to include its findings in its order regardless of whether the

lack thereof constitutes error. Consequently, while findings of fact and conclusions of law

are preferable, we decline to vacate the trial court’s order for lack of findings in light of the

clear language of Rule 52.01.

Continuation of the Judicial Settlement Conference

In his brief, Mr. Mabry asserts that, prior to withdrawal, his attorney “requested a

continuance of the judicial settlement conference; however, the trial court denied the

request.” This allegation is not supported by the appellate record. As discussed above, prior

-6-
to withdrawing from the case, Mr. Mabry’s attorney requested a continuance of the hearing

on the second motion for partial summary judgment, and this motion was granted. There

is no indication in the record that Mr. Mabry ever requested a continuance of the judicial

settlement conference. Moreover, although Mr. Mabry was self-represented at the judicial

settlement conference, there is no indication in the record that he objected to that fact prior

to participating in the conference or prior to signing the agreement that was reached at the

conference, see also supra fn. 2. It is well settled that issues not raised at the trial level are

considered waived on appeal. Waters v. Farr, 291 S.W.3d 873, 918 (Tenn. 2009) (stating

that issues not raised in the trial court are waived on appeal); Tenn. R. App. P. 36(a)

(“Nothing in this rule shall be construed as requiring relief be granted to a party responsible

for an error who failed to take whatever action was reasonably available to prevent or nullify

the harmful effect of an error.”).

Mr. Mabry also attempts to argue that, because Bluff City and Eagles Landing were

also not represented by counsel at the settlement hearing, this fact is a bar to enforcement of

the agreement against these defendants. In the first instance, Mr. Mabry is the sole appellant

in this case. Accordingly, Mr. Mabry has no standing to make arguments on behalf of

anyone other than himself. See, e.g., Pelts v. Intl. Med. Serv. Corp., No. W2002-00388-

COA-R3-CV, 2003 WL 22071462 (Tenn. Ct. App. Aug. 28, 2003), perm. app. denied (Tenn.

Dec. 22, 2003). Because none of the other defendants have appealed the enforcement of the

settlement agreement, the trial court’s July 8, 2011 Orders are final as to these defendants.

See Spectra Plastics, Inc. v. Nashoba Bank, 15 S.W.3d 832, 840 (Tenn. Ct. App. 1999);

McGaugh v. Galbreath, 996 S.W.2d 186, 190 (Tenn. Ct. App. 1998).

Enforcement of Settlement Agreement

In his appellate brief, Mr. Mabry first contends that the settlement agreement is

unenforceable because there was “no meeting of the minds with regard to an essential term

of the agreement . . . .” Specifically, in the Summary of the Argument section of his brief,

Mr. Mabry contends that there was no meeting of the minds concerning payment of certain

fees:

[T]here was no meeting of the minds with regard to an essential

term of the agreement where the Plaintiffs insist that they are

entitled to property management fees and Defendants insist that

the only fees that were subject to distribution to PNC under the

settlement agreement were development fees and/or partnership

fees. At no time did Defendants agree to pay to Plaintiffs fees

paid to a third party for the day-to-day management of an

apartment complex wholly unrelated to this litigation.

-7-
However, in the Argument Section of his brief, Mr. Mabry simply argues that the settlement

agreement could not be enforced because it was “subject to drafting and execution of formal

settlement documentation.” Mr. Mabry does not return to his prior argument regarding the

property management fees, nor does he specifically outline what other terms in the formal

settlement agreement differed, and to what extent, from the informal agreement he

undisputedly agreed to be bound by at the settlement conference. Generally, “when a party

raises an issue in its brief, but fails to address it in the argument section of the brief, we

consider the issue to be waived.” Childress v. Union Realty Co., 97 S.W.3d 573, 578 (Tenn. Ct.

App. 2002). Moreover, the ability of this Court to review the enforcement of the settlement

agreement, and the question of whether settlement was, in fact, reached is stymied by the fact

that the record does not contain a transcript of the hearing on the motion to enforce the

settlement or a Tennessee Rule of Appellate Procedure 24 statement of the evidence. As Mr.

Mabry is the appellant in this case, it is his burden to provide this Court with a fair, accurate,

and complete account of what transpired in the trial court. In re M.L.D., 182 S.W.3d 890,

894 (Tenn. Ct. App. 2005). “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 Management LLC v. Thomas, 249 S.W.3d 368, 377 (Tenn. Ct. App. 2007).

Because it was properly raised as an issue and argued in the argument section of his

brief, we next consider Mr. Mabry’s contention that the settlement agreement at issue cannot

be enforced because it was subject to execution of more formal documentation. From our

review of the law on this subject, however, we conclude that the fact that Mr. Mabry refused

to execute more formal documentation, does not, ipso facto, negate the trial court’s ruling

that a valid and enforceable settlement was, nonetheless, reached in this case. In the recent

case of Waddle v. Elrod, 367 S.W.3d 217 (Tenn. 2012), the parties reached a settlement, as

reflected in an email exchange between attorneys. The email exchange contemplated the

drafting of additional deeds and a release agreement. As is the case here, one of the parties

subsequently refused to execute the additional documents once they had been drafted and

presented. Despite the party’s refusal, the court enforced the settlement, finding that the

terms were sufficient to satisfy the Statute of Frauds. Likewise, in McMahan v. McMahan,

No. E2004-03032-COA-R3-CV, 2005 WL 3287475 (Tenn. Ct. App. Dec. 5, 2005), the

parties reached an agreement in their divorce case. When formal documents were presented

to Wife for signing, she refused. Wife argued that her repudiation of the agreement, prior

to the trial court’s entry of judgment, negates its validity. This Court disagreed, holding:

‘Until approved by the courts, a mediated agreement is

essentially contractual in nature.’ Ledbetter, 163 S.W. 3d at 685

(citing Envtl. Abatement,Inc. v. Astrum R.E. Corp., 27 S.W.3d

530, 539 (Tenn. Ct. App. 2000). See also Harbour, 732 S.W.2d

-8-
at 600 (acknowledging that, though a consent judgment could

not be entered once a party has repudiated the agreement, the

agreement may still be a ‘binding contract’ subject to being

enforced as other contracts.”); Myers, 2005 WL 936925, at *3

(holding the parties’ signed and written mediation agreement to

be an enforceable contract because the repudiating party failed

to prove fraud, mistake, duress, or any other ground for

invalidating the contract). Where parties have reached a

mediated agreement, we have consistently applied the principles

of contract law to determine whether, based upon that

agreement, a judgment may be entered in a case. Persada, 2002

WL 31640564, at *2. . . . The trial court could not enter a

consent judgment based upon the mediated agreement after

[Wife’s] repudiation of the agreement, but it could, as it did,

enforce a contract between the parties.

McMahon, 2005 WL 3287475, at *4. Likewise, in the instant case, there is no evidence that

the Appellees engaged in any fraud, mistake, duress, or other grounds for invalidation of the

contract that was reached at the judicial settlement. In fact, it is undisputed that Mr. Mabry

participated at the conference. The terms of the parties’ agreement were specifically set out

by Chancellor Armstrong in the document that the parties signed. It is undisputed that Mr.

Mabry personally signed that agreement before leaving the settlement conference. Based

upon the record before us, and in light of the fact that no transcript or statement of the

evidence has been provided to review in this case, we cannot conclude that it was error for

the trial court to enforce the agreement against Mr. Mabry as a valid contract.

Finally, at oral argument of this appeal, Mr. Mabry’s attorney also took issue with the

fact that the trial court did not conduct an evidentiary hearing prior to entering its orders

enforcing the settlement. Specifically, Mr. Mabry’s attorney stated:

Our position is that an evidentiary hearing was required, where

evidence and sworn testimony could be taken as to what the essential

terms of that agreement were, as to what parties were bound by that

agreement, and that did not occur, therefore the chancellor was

erroneous in enforcing that settlement agreement.

No citation to authority was given by Mr. Mabry’s attorney, and, in fact, the lack of an

evidentiary hearing was not specifically raised and argued in his appellate brief, which is a

direct violation of Tennessee Rule of Appellate Procedure 27(a)(7). Accordingly, even if we

were to conclude that the trial court erred in failing to hold an evidentiary hearing, this

-9-
argument is waived by Mr. Mabry’s failure to properly raise the issue in his appellate brief.

See Tenn. R. App. P. 13(b) (“Review will generally only extend to those issues presented for

review.”). Moreover, there is no indication in the record that Mr. Mabry ever requested an

evidentiary hearing prior to the entry of the trial court’s order enforcing the settlement.

Although, as noted above, Mr. Mabry did file a response in opposition to the enforcement

of the settlement, there is no request therein for an evidentiary hearing. It is well established

that an issue not raised in the trial court cannot be raised on appeal. See Bank of Fayette

County v. Woody, No. W2010–01798–COA–R3–CV2011, WL 2572052, at *3 (Tenn. Ct.

App. June 30, 2011) (citing Waters v. Farr, 291 S.W.3d 873, 918 (Tenn. 2009) (stating that

issues not raised in the trial court are waived on appeal)). Accordingly, this issue is waived.

For the foregoing reasons, we affirm the order of the trial court, enforcing the

settlement agreement. This case is remanded for all further proceedings as may be necessary

and are consistent with this Opinion. Costs of this appeal are assessed against the Appellant,

Carl Mabry, and his surety.

_________________________________

J. STEVEN STAFFORD, JUDGE

-10-