# FILED Dec. 15, 1995 Cecil Crowson, Jr . Appellate Court Clerk SHELT ER IN SURANCE COM

PANI ES, ) ) Plaintiff/Appellee, ) ) Maury Chance

ry ) No. 91-037/3487 VS. ) ) Appeal No. ) 01-A-01-9507-CH-00280 SHERRIE MARIE HA

NN, )

) Defend ant/Appe

llant. )
IN THE COURT OF APPEALS OF TENNESSEE MIDD LE S EC TION AT N AS HVILLE
APPEAL FROM THE CHANCERY COURT OF MAURY COUNTY

AT COLUMBI

A, TENNESSEE
HONORABLE WI

LL IAM B. CAI

N, JUDGE
J. Russell Parkes HARDIN & PARKES 102 West Seventh Street Post Office Box 692 Columbia, Tennessee 38402-0692 ATTORNEY FOR PLAI

NTIFF/APPEL

LEE
JOE BEDNA

RZ Suite 1400, Parkway Towe rs 404 James Robertson Parkway Nashville, Tennessee 37219 ATTORNEY FOR DEFENDANT/APPEL LANT
AFFIRMED AND

REMANDED HENRY F. TODD

PRESIDING

JUDGE, MIDDL

E SECTION
CONCUR: SAMUEL L . LEWIS, JUDGE WILL IAM C. KOCH, JR., JUDGE-2-

SHELT ER IN SURANCE COM

PANI ES, ) ) Plaintiff/Appellee, ) ) Maury Chance

ry ) No. 91-037/3487 VS. ) ) Appeal No. ) 01-A-01-9507-CH-00280 SHERRIE MARIE HA

NN, )

) Defend ant/Appe

llant. )

O P I N I O N
The defendant, Sherrie Marie Hann, ha s appealed from a non-jury judgment in favor of the plaintiff, Shelter Insuranc e Companies for $5,000 paid to defendant by mistake. As indicate d in the ca

ption, this w as a proc eeding in Chance

ry Court.

There is no transcript of evidence. Howeve r, the record contains a brief statement of the evide nce, let ters and affida vits of counsel and

a recor d of anoth

er rela ted case in Circuit Court from which the following facts appear: On or about Novemb er 2, 198 7, Mrs. Ha nn and he r childre n were in her vehi cle which was struck by

a vehicle operated by

an uninsured motorist. Shelter Insurance Companies, Mrs. Hann's uninsured motorist insurer, paid to Mrs. Hann and her he alth care providers the total amount of $9,211.74 without the execution of any release by

Mrs. Hann. On September 12, 1988, Shelter sent to Mr. and Mrs. Hann a check f or $5,000.00, requesting that an e nclosed r elease be execut

ed. The c heck wa s retained and late r cashe d, but the r

elease was not executed or returned to Shelter. Thereaf ter, Mrs. Hann retained counsel; and, on November 1, 1988, suit was filed in Circuit Court naming Mrs. Hann and children as plaintiffs and the uninsured motorist as defendant. Shelter was served with proc ess and filed an answer. Counsel for Mrs. Hann and Shelter undertook to neg otiate a settlement.-3- During the negotiations, the following cor respondence took place: On Novemb er 21, 19 88, Shelte r's cou nsel wrot e Ms. Han

n's cou nsel as f ollows: I represent Shelter I

nsurance Companies and have been forwarded suit papers in connection with the above-r eferenced matter. I have en tered a n appea rance with the Cour

t on behalf of Shelter and tentatively , also on behalf of the named Defendant, Bobby

Roy Johnson, at least until we have an opportunity to investigate his situation somewhat furthe r. My file does indicate tha

t a tentative settlement was reached with your client and that seve ral weeks ago a draf

t in the amount of

$5,000 wa s forwar

ded to her , along

with a tru st receipt and subrogation agr eement. I would appreciate your advice regarding

same so we can proceed to attempt to define what issues might be involved in this case. I look forward to hea

ring from y ou further concerning the foregoi ng.
On Januar

y 12 , 1989, Ms. Hann'scounsel r esponde d as follo ws: I'm sorry

that it has taken me so long to respond to y our letter of November 21, 1988. My client was confused as to what the $5,000.00 represented and did not know that the insurance company was expecting a f

ull and fin al relea se. I

am certa inly interest ed in res olving th

is matter and have been au thorized to settle this matter for $10,000.00. If there is any possibility

of settlement, please advise. On May 15, 1989, Sh

elter' s counsel

wrote Ms. Hann'scounsel a s follows: I have authority

to settle this case for $8,000 in addition to the substantial advances heretofore made to or on be half of your client, Mr s. Hann. I

f we ca n settle on

this basis, I wou

ld like to go ahead and have a judgment entered in order to protect our subrog ation inte

rest ag ainst the d

efenda nt, althou gh I

anticipa te it is essentially uncollectible. I would appreciate it if y ou would touc

h base with y our clie

nt on this a

nd give me a call to see if we can go ahea

d and conclude the matter. In connection with the foreg oing and assuming we can rea ch settleme nt, I d o need fo r y ou to retu

rn to me the

check my client has previously tende red in settlement to your client in the amount of $5,000. In turn, we would provide the r evised settlement draft, a final release, and Trust and Subrog ation Agree ment. I look forward to hea

ring from y ou.-4- On May 24, 1989, M s. Hann' s counsel responded as follo ws: My client has instructed me to re ject your off

er of $8,000.00 stated in your letter of

May 15, 1989. I

n light of some recent problems she is having and other change s in her personal life, she is completely ree

valuating her position in this case. In attempting to advise her pr operly, please

send me a copy

of all the medical records and letters which y ou have received concerning her condition, pursuant to our previous authorization. As soon as I have had the oppor tunity to review all of the medical r ecords, I will

once ag ain make

an effo rt to reso lve this matter.
On March 13, 1990, Shelter' s counsel wrote Ms. Hann'scounsel a s follows: My apologie s for not contacting y ou earlier concerning the above-referenced ma

tter. As you are

aware, Ms. Hann has essentially minimum limits for uninsured motorist coverage , i.e., $25 ,000/$50, 000. We ha ve here tofore a dvance d pay

ments against this coverage for

medical expenses in the amount of $9,211.74 and I have othe

rwise exte

nded an o ffer of

$10,000 in order to settle the case. With this in mind, and in view of the fact that I think there is little likelihood that our subroga tion claim against the uninsured defendant is of signif icant value, there is little incentive for us to materially increase our offer. Another problem that I have with this case involves the incon sist ency betwe en Dr. H unter 's test imon y and Ms. H ann's te st im on y wi th re sp ec t t o r es id ua l p ro bl em s. Be th at as it ma y, I would like to go ahea

d and try to conclude

the case and for this purpo se I h ave bee

n authori zed to incr

ease thi s offer

to $11,500. This is, of course, in addition to the medical payments previously

advanced and would in effect be the equivale nt of a se ttlement o f $20,711 .74. I would app

reciate your advice

as to whether this is acceptable so we can g o ahead and conclude the matter. On Augu st 21, 1990 , Shelter 's coun sel wrote Ms. Hann' s counsel

as follow s: This will confirm your conver sations with myself, as well as Ed Ewing of this office, rega rding settlement of the above matter. To simply

confirm s ame, I

have requested s ettlemen t drafts payable to Ms. Ha

nn and yourself in the a

mount of $14,000, $1,000 and $1,000, respectively , for Ms. Hann's claim and that of the two minor children. Of course, as relates to Ms. Hann, this would be in addition to the amount of $9,211.74 heretofore advanced by

my client on her beha

lf, thus generating a total settlement in her case of $23,911.74.-5- On Septem

ber 21, 1 990, the Ci

rcuit Cour

t entere d a judg ment rea

ding as f ollows: This cause came on to be heard on the 21st day of September, before the Honorable William B. Cain, Judge, holding the Circuit Court for Maury County , Tennessee, at Columbia, upon the Motion for Default Judgment of the plaintiffs against the defendant, Bobby

Roy Johnson, and it appearing to the Court that this defendant has been duly served with a copy

of the summons and complaint on November 17, 1988; that the defendant has failed to plead or otherwise de fend within the time prescribed by

law, and it further appearing that ther e is no just reas on to dela

y e ntry of judgm ent aga inst this defendant , in accord ance wi

th Rule 54. 02, Tenne ssee Rule s of Civil Procedure, and Rule 55, Tennessee Rules of Civil Procedure. It is, accordingly , ordered, that judgment by default be entered for the plaintiffs against the defendant, B obby Roy Johnson, and upon the proof introduced in the cause, the plaintiffs are awarded judgment aga

inst the defendant, Bobby Roy Johnson, as follow s: (1) On be

half of Sh errie Ma rie Hann , judgme

nt is enter ed in the amount of $23,911.74 for her personal injury and $3,300.00 for property

damage. (2) On behalf of Angela Wood, by next friend and natural guardian, Sherrie Marie Hann, judg ment is entered in the amount of $1,000.00. (3) On behalf of Jeremy Wood, by next friend and natural guardian, Sherrie Marie Hann, judg ment is entered in the amount of $1,000.00. It is further ordered that the defendant, Bobby Roy Johnson, shall pay all costs of this cause , and for all of the foregoing ex ec ut io n m ay i ss ue , i f n ec es sa ry. The judgment was approved for entry by counsel for Shelter

.
On October 17, 1990, the Circuit Court entered the following orde r: This cause came on to be heard upon the motion of the served but unnamed defend ant, Shelt er I nsuranc e Companie s, uninsured motorist carrier for the plaintiff, Sherrie Marie Hann, the Court' s examinati on of said motion, sta

tements of

counsel, and it app earing

that said m

otion shoul d be gr

anted, it is ac co rd in gl y Ordered that the judgment heretofore entered in this cause on September 21, 1990, be and the same is hereby set aside and vacated pending further orde rs of the Court in this cause.-6- The orde r was ap proved f or entry by c ounsel fo

r Shelter . The motio n mentione d in the order is not included in the record.

On October 17, 1990, Shelter filed in the same Circuit Court case a " Motion to Set Aside Settlement for Leave to F ile an Amended Answer and Counterclaim." The motion allege d that in lat e Augus t or ear ly Septem ber, "a s ettl ement was rea ched" as to Ms . Hann 's personal injuries providing for pay ment to her of $23,211.74 for Hann consisting of the $9,211.74 previously paid plus additional cash of $14,000. T he motion then alleged the cashing of the $5,000 check and that the ig norance of counsel for both parties of the c ashing of the check constituted a mistake of fact justify ing a rescission of the settlement agreement and refund of the $14,000 consideration paid. A copy of the $5,000 check is exhibited to the motion and it appears to have been cashed or cle ared on September 13, 1988.

The motion

conclude s: Wherefore, movant pray s this motion be granted, that the settlement herein be set aside, that movant be allowed to amend its answer to assert the defense of relea se and accord and satisfaction, and t

hat movan

t be allow ed to file

a counte r-claim against plaintiff for the sum of $14,000.00, plus interest, and such other relief as to which it might be entitled. On December 18, 1990, the Circuit Court entered the following order: This cause came on to be heard on the 7th day of November, 1990, before the Honorable James L . Weatherford, Judge of the Circuit Court for Maury County , Tennessee, whereupon carr ier for defendant, Bobby

Roy Johnson, Shelter Insur ance Company, moved this Court to set aside settlement and for leave of Court to fi le an ame

nded ans wer and

counter -claim in th is ac ti on . A ft er co ns id er in g t he ar gu me nt s o f t he at to rn eys for the r especti ve parti es and the

briefs su bmitted in t

his case , it was determined that defendant's motion was not well-take n and, therefore, denied. There is no record of any further proceedings in the Circuit Court case w hich appears to remain undisposed of.-7- On Januar

y 22 , 1991, She

lter file d the pre sent suit in Chancer y Court naming

Ms. Hann as defend ant, a llegi ng the f acts r elate d abov e and p raying:

2. That the

Court find

that a mutu al mistake

of fact exists concerning plaintiff's pay ment of $5,000.00 to defendant and order th at defe

ndant re imburse p laintiff

in said amo

unt. 3. That plaintiff recover of defendant a ll interest on said sum from such time as such mutual mistake of fact was discovered by counsel for the

respective parties in the underly ing litigation. 4. That plaintiff be awarded its attorney 's fees in connection with this action, plus its costs and litigation taxes occasioned he re by. 5. That plaintiff be awarded such other, furthe r and general relief to which it might be entitled. Ms. Hann answered deny ing liability for a r

efund and presenting the following affirmative defense:

15. Defendant would pursuant to T.R.C.P. 8.03, set forth the affirmative defense of res judicata, relying on the order issuing from the Circuit Court of Maury County , Tennessee, upon Shelter I nsuranc e Companie s' motion to set asid

e settlem ent, said motion being denied, with such order being in full forc e and eff ect, thusprevent

ing plaintiff fr

om bring ing this c laim. On September 18, 1992, the Chancery Court entered the following order: In appearing

to the Court from the record in this civil action that the p laintiff

has not wit

h due dilig ence pr

osecute d this civil action; It i s, th er efor e, or de re d t ha t t hi s c iv il ac ti on be , a nd is he re by, dismissed, without prejudice. All cost and litigation taxes are adjudged aga inst the plaintiff, and if not paid within thirty

(30) day s from the

entry of this order, execution may issue the refore. If all of said costs and litigation taxes have not been paid within sixty (60) day s after the first issuance of execution against the plaintiff the clerk may issue an execution ag ainst the surety or sure ties on the plaintiff's cost bond. On June 23, 1993, Shelter filed in Chancery Court the f ollowing motion: Comes now the plaintiff, Shelter Insurance Companies, by and through counsel, pursuant to Rule 60 T.R.C.P., and requests this Honorable Court to reinstate this case and allow plaintiff a trial on the merits. Plaintiff informs the Court that-8- this case was ear lier dismis sed for l ack of pr osecutio n as a result of excusable neglect which Rule 60.02 is aimed at remedyin g. On November 24, 1993, the Chancery Court entered the following order: This cause came on to be heard befor e the Honorable Jim T. Hamilton, Judge, holding the Chancery Court for Maury County, Tennessee, on the 12th day of Novembe

r, 1993, upon the plaintiff's motion for reinstatement, defendant' s response, the respective memorandums of the parties, arg ument of couns el, fr om all of whi ch the Court finds that p laint iff's motion is we

ll taken a nd should b e gran

ted, and i t is ac co rd in gl y, Ordere d that pla

intiff' s motion to r

einstate be, and th

e same is hereby gran ted, a nd th is cau se sha ll be p laced o n the C ourt's active tr ial docke t. All other issues are reserved.
The rec ord on ap

peal doe s not conta

in "Def endant' s Response , the Resp ective M emorand ums of the Parties (or) Argument of Counsel."

On Augu st 26, 1994 , the Chancery Court ente

red the f ollowing judgmen t: This cause came on to be heard befor e the Honorable William B. Cain, Judge, on the 22nd day of June, 1994, upon the complaint, the answer, exhibits thereto, the stipulations of the parties, statements and argument of counsel in open Court, and the entire record in the cause from a ll of which the Court finds that the allegations of the plaintiff are sustained by the record on the g rounds of both mutua

l mistake a

nd unjust e

nrichme nt, that plaintiff is thus entitled to recover judgment against the defendant, Sherry

Marie Hann, in the amount of Five Thousand Dollars ( $5,000.00 ), and in a ccorda nce with t he fore going , it is ac co rd in gl y; Ordered, adjudged and dec reed that the plaintiff, Shelter Insu rance C ompaniesshall hav e and re cover of the defe ndant, Sherrie Marie Hann, judgment in the amount of Five T housand Dollars ( $5,000.00 ) and judg ment plus a

ll costs in t

he cause is hereby e ntered against the defendant, Sherr ie Marie Hann, for wh ic h e xe cu ti on ma y is su e i f n ec es sa ry. Mrs. Hann has appealed from the foreg oing judgment and has presented four issues for review, of w

hich the f ourth is a s follows:-9- IV. Whether the trial court erred in setting aside an or der of dismissal b ased upo n the gr ound of excusable neglec t. Defendant's argume

nt to this Court asserts that plaintiff offered no justifiable reason for rel ief un der Ru le 60. 02, T. R.C. P., ci ting Banks v. Dement Construction Co., Inc., Tenn. 1991, 817 S. W.2d 16; Toney v. Mueller Co., Tenn. 1991, 810 S.W.2d 145; and Travis v. C ity of Murfreesboro, Tenn. 198 5, 686 S.W.2d 68. Each of the cited opinio ns states t he fact s relied u pon for r elief. Two denie d relief

, and one affirmed the gr

anting o f relief

. Without a record of the facts and ci rcums tances appear ing to the Tr ial C ourt f rom th e defen dant's response, the memoranda of the parties and the state ments of counsel which, according to the order, were presented to the Trial Court, this Court is not in position to review or rever se the discretionary judg

ment of the Trial Judge.

On appeal, the appellant has the burden of showing that the order was not supported by sufficient fa

cts. Such a showing can be made only by a complete r

ecord of what was shown to the Trial Co

urt. Such c omplete r

ecord isnot befor

e this Cour

t.
Defendant next argues that plaintiff's motion was not made " within a reasonable time" as required by

Rule 60.02. There was a nine month delay from September, 1992, to June, 1993, in filing the motion for relief. Without a record of the facts and circumstances shown to the Trial Court, this Court has no means of adjudging what was re asonable in the present

case.
This Court is unable to find the Trial Court in error for setting aside its order of dismissal.

Defend ant's th

ird issue i s:-10- III. Whether th

e trial c ourt err

ed in cons idering

as a cau se of action an issue that had been previously determined by the Ci rc ui t C ou rt fo r M au ry C ou nt y.
The orde r of the Ci

rcuit Cour

t overruling Shel

ter's m otion to se

t aside se ttlement is quoted above.

Shelter responds that the order was not intended by the Trial Judge to be an adjudication on the merits and exhibits to its brief a letter from the Circuit Judge to the Circuit Clerk.

Shelter' s brief c ites no pa rt of the r ecord e videncing such a

letter. I t is inconc eivable that an a ttorney admitted t

o practi ce in the

Courts of t

his State w ould expec t an appe llate court to accord any

cognizance to any

fact not evidenced by

the record certified to this Court by the Trial Court. Such misconception of a ppellate practice calls for a thoroug h restudy of the Rules o f Appella

te Proce dure and

caref ul guida nce by more know ledgea

ble co-c ounsel.

In c onsidera

tion of the

justice of the case , this Court

has sua sponte

ordered and the Trial Clerk has certified a copy of said letter from the records of this case in the Tria l Court. Said lette r states: Re: Ange

la and Jer emy Wood b/n/f Sherrie Marie Hann, et al

v. Bobby Roy

Johnson Civil Action No. 3487 Dear Mr . Scott: After considering the arg

uments of the attorneys, the briefs submitted, and the entire file in this case, I ha ve concluded that the "Motion to Set Aside Judgment" filed by Shelter Insurance Companies should be overruled. I do not intend to imply

that Shelter Insurance Companies would not h ave a ca

use of action aga

inst Ms. She

rrie Mar ie Hann to recover the $5,000 that was paid throug h mistake or inadvertence, but I do not fe el that the "Motion to Set Aside" would be t

he prope r proce dure to a

ccomplish

this.-11- I am mailing a copy

of this letter to Mr. Hardin and Mr. Davidson with the request that Mr. Davidson prepare an orde r in accordance with this letter. The letter is marked filed by the Trial Clerk on December 8, 1990, ten day s before the entry of the order overruling Shelter' s motion for relief in the Circuit Court case.

This Court has repeatedly warned Trial Judges of the perils of conducting judicial business by letter rathe

r than by forma

l memorandum filed with the Clerk or order placed on the minutes. Nevertheless, in the present case, the letter of the Circuit Judge filed with the Circuit Cle

rk will be consider ed as a f ormal mem

orandum. It is u

nfortuna te that co unsel did not prepare an order "in ac cordance with this letter," and it is equally unfortunate that the Circuit Judge saw fit to sign an order that was not "in confor mity with this letter."

The motion

of Shelte r "To Se t Aside Set

tlement" present

ed to the Ci

rcuit Cour

t a matter of equitable cognizance.

Rectifying

a mistake is the peculiar province of a court of equity. Henshaw v. Gunter, 169 Tenn. 305, 87 S.W.2 d 561 (193 5); Reid v. House, 21 Tenn. (6 Humph.) 576 (1841); Helm v. Wright, 21 Tenn. ( 2 Humph) 7 2 (1840). In the absence of objec tion, the Ci

rcuit Court might have ruled upon the application for relief or tra nsferred the cause to the Chanc ery Court (TCA § 16-10 -111) . No rea son oc curs t o thi s Cou rt why a Ci rcuit Judge would not have the authority to sua sponte decline to exercise permissive equity jurisdiction and dismiss an equity suit brought bef ore him. Such a dismissal would not be a dismissal on the merits and would permit an application to the Chancery Court for the same relief.

In the present instance, the Circuit Judge did not dismiss an equity suit; he overruled a motion seeking to add an equity issue to an existing tort lawsuit. In so doing, he rejected an application to amend which addresses itself to his sound discretion. Wilso n v. Ricc iardi, Tenn. App. 1989, 778 S.W.2d 450.-12- In the light of the letter/memora ndum of the Circuit Judge, this Court has determined that his unfavorable ruling upon the motion of Shelter for relief did not preclude the grant of relief by the

Chancery

Court in the present case.

No reversible error is found in Ms. Hann's third issue.

Ms. Hann' s first issu e challe nges the finding of mutual m

istake of fact in r espect t o the cashing of the $5,000 check. Unquestionably , Ms. Hann knew the check had been cashed, because she cashed it on September 13, 1988, long before the September 21, 1990, entry of the Circ

uit Court judgment pursuant to the settlement. The check was clear ed and charged to Shelter's bank a ccount long before the entry of said order, hence Shelter had knowledg e of the c ashing t hrough its recor ds prior to

the entr y of the judg ment.
Thus, it is obvious that the real parties at interest had timely notice of the cashing of the check.

The aff idavit of M

rs. Hann 's coun sel, state s: . . . 2. As I recall, the settlement discussions during the last week were primarily

between myse

lf and Ed Ewing. The $5,000.00 check was never mentioned. 3. Early on in this case, I was aware that the $5,000.00 check had, in fact, been neg otiated and I so notified the insurance adjuster in a letter dated October 10, 1988. (See attached Exhibit "A"). I a lso notified Thomas W. Hardin by letter dated January 12, 1989, tha t my client had neg otiated the check. (See Exhibit "B" letters dated Nove mber 21, 1988, and January 12, 1989.) 4. During the settlement discussions I was r elying on the figures being provided to me by the attorney f

or Shelter Insu rance C ompanies . I wa s told that t hey had paid approximately $9,211.74. 5. I did not take the time to review my file and make an accoun ting. I relied o n the fig

ures I was bein g provid

ed with and in all my discussions with my client I was relay

ing settlement information above and bey ond amounts already paid.

. . . . 7. It was my

position as attorney for the pla intiffs that Sherrie Hann wa s entitled

to recov er $25,0 00.00 for bodily injuries and

medical bills under the med-pay provision of her-13- policy. I t was never agreed that the ma ximum amount she could re cover f

or her in juries al one was $ 25,000.00 . I a m still of the opinion that the contract allows for bodily injury pay ments and

med-pay both. The

re was a difference of

opinion on both sides as to that issue. 8. It was never my

intention to settle the three (3) plaintiff s' case s piecem

eal. My position wa s that it wa s a package deal for $16,000.00 with $1,000.00 ea ch being allocated for the children. 9. In fairness to Thomas W. Hardin, I am convinced that he was operating under the assumption that the $5,000.00 check had never been ca shed.
The aff idavit of S helter' s counsel states: . . . [T]hroug

hout the e ntire pro ceeding s involved in this cas e and in multiple discussions between myself, Shelter I nsurance Companies, and the plaintiff's attorney , it was never contemplated or known that the plaintiff had negotiated the $5,000.00 settlement draft dated September 12, 1988. To the contrary , the undersigned as well as counsel for Ms. Ha nn, were under the impression that said check had not bee n negotiated since a substantial part of the settlement discussions in this cas e cente

red around the ap

plicable amount of

Ms. Hann'spolicy

limits, whe

ther stac king of m edical p ayments over and above liability pa yments was permissible, and a t no time was it

anticipa ted that th

e settlem ent to be r

eceive d by

Ms. Hann was to exceed the amount of her policy limits, and in fact it was the contemplation of counsel without dispute that the settlement on her behalf totaled $23,211.74, plus an additional $1,000.00 each for the two minor children of the plaintiff which is not in dispute.
It is s een that

Mrs. Han

n's cou nsel had k

nowledg e of the c ashing o f the check "ea rly on in this case" (whenever that was) a nd that her counsel claims to have notified an adjuster of the cashing on October 10, 1988. Howeve r, Ms. Hann's counsel admits that he negotiated the settle ment unde

r the mista

ken infor mation an d belief

that Shelte

r had pai d Ms. Hann

only $9,211.74. (The amount paid by Shelter was increased to $14,211.74 by the $5,000 check.) Thus, Ms. Hann's counsel negotiated the settlement on her behalf under a mistake of fact as to the total amount Ms. Hann had previously received from Shelter.

It is also seen that the affidavit of Ms. Ha nn's counsel states that on January 12, 1989, he notified Shelter's counsel that the $5,000 check had been cashed; whereas the affida vit of Shelter's counsel states that during the neg otiations between counsel, "it was never-14-

contemplated or known" that the $5,000 check had been cashed, and that both counsel "were under the impression that said check had not been neg otiated."

This narrow difference in the aff idavits of counsel represents the only issue of fact appear ing in thi s recor

d. Howev er, this is sue need not be det

erminati ve of thisappeal, for it is undisputed that both counsel negotiated under the impression that Ms. Hann had rec eived only $9,211.74 from Shelter, when she had in fact received $14,211.74.

Under itspolicy , Shelter

had a pos sible maximu

m persona

l injury liability to Ms. Hann of $ 25,000.00 . Under t he mistake

n impressi on that She

lter had paid Ms. H ann only $9,211.74, both counsel agreed to settle for an additional $14,000, making a total of $23,211.74, slightly under the $25,000 ma ximum. The inclusion of the cashed $5,000 check raised the amount received by Ms. Hann to $28,211.74, $3,211.74 more than the maximum policy liability . It is thus obvious that both counsel negotiated and ag reed to settlement under a mistake of fact as to the amount Ms. Hann had rece ived, i.e., $9,211.74 instead of $14,211.74.

It is arguable tha

t a mutual mistake of fact of counsel is not ground for re lief where the real parties at interest had knowledge of the true fact. However, under the circumstances of this case, this Court is of the opinion and holds that the mutual mistake of counsel was and is good g rounds fo r refor m of the se

ttlement a greem ent.
Ms. Hann's first issue presents no grounds for r eversal of the judgment of the Chancer y Court.

Ms. Hann' s second i ssue is: II. Whether th

e doctrine of unju st enrich ment is app licable where there was a clear , unambiguous, written agreement betwee n the par ties.-15- Ms. Hann a

rgues t hat the do ctrine o f unjust e nrichme nt does not

apply when the re is a valid, express agreement between the pa rties. The argument contains no citation to the part of the record evidencing the " valid, express agreement of the parties." No such written agreement is found in the record. The affidavits of counsel indicate that counsel reached an oral ag reemen t to settle Ms. Hann' s persona

l injuriesclaim for

$23,211.7 4. The af

fidavits further show that b oth counse

l were of the impre ssion that M s. Hann ha d recei ved only $9,211.74, whereas she had in fact rece ived $14,211.74. In their mistaken belief as to the amount previously paid, counsel a greed that the unpaid balance of the agreed settlement was $14,000.00, and this amount was paid.

The agreement to pay

$14,000 and the payme

nt of $14,000 were made under a mutual mistake of

fact on t he part o f both cou

nsel.

Although not expre ssly

so deline ated in She

lter'scomplain

t, it's chancer

y su it agai nst Ms. Hann was a suit to reform the settlement agree ment to conform to the intent of the parties, i.e. that

Ms. Hann r

eceive $23,211.7 4 for her

persona l injuries

.
Although not specified in the chancery judgment, its effect was to reform the agreement to provide a supplemental pay ment of $9,000.00 in order to provide the agreed total of $23,211.74.

Equity will correct a

mistake of fact in an agreeme nt. Cromwell v. Winchester, 39 Tenn. (2 Head) 3 89 (1859) ; Cahal v. Frierson, 22 Tenn. ( 3 Humph.) 411; Town of McMinnville v. Rhea, 44 Tenn. App. 612, 316 S.W.2d 46 (1958).

Having reformed the settl ement ag reemen t to confo rm to the in

tention of the part ies, the Trial Court then found a $5,000 overpay ment and ordered refund of the same.-16- Where one of the parties to a settlement mistakenly pays more than the

amount agreed on, he may recover the amount of the overpay ment. 15A C.J.S. Compromise and Settlement §44, p.273 ; Snyder v. Johnson, Tex. Civ. App. 1953, 256 S.W.2d 898.

Such a recovery

is for "money

had and received" rathe

r than "unjust enrichment."

The cause is before this Court for review de novo, T.R.A.P. Rule 13(d). When reviewing a record de novo , this Court is called upon to pass upon the correctness of the result reached in the Trial Court, not necessarily the reasoning employed to reach the result. Kelly v. Kelly, Tenn. App. 1972, 494 S.W.2d 130.

The judgment of the Trial Court is affirmed. As a matter of discretion, the costs of this appeal are taxed against the plaintiff-appellee . The cause is remanded to the Trial Court for nec essary

further procee dings.

Affirmed and Remanded.

_______________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR:

_____________________________________ SAMUEL L . LEWIS, JUDGE

_____________________________________ WILL IAM C. KOCH, JR., JUDGE