IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

February 2, 2010 Session

BOBBY R. HOPKINS v. DOYLE K. RIGGS, ET AL.

Appeal from the Chancery Court for Blount County

No. 04-081 W. Dale Young, Judge Sitting By Interchange

No. E2008-02811-COA-R3-CV - FILED APRIL 15, 2010

Bobby R. Hopkins (“Hopkins”) sued Doyle K. Riggs and Ruth Riggs (“the Riggs”) alleging,

1

in part, that the Riggs had contracted to construct a road on the Riggs’ property for Hopkins’

use and had failed to construct an adequate road. The Riggs filed a motion for summary

judgment and the Trial Court granted them summary judgment. The Riggs then sought

attorney’s fees pursuant to the parties’ contract. The parties then reached an agreement with

regard to attorney’s fees, an agreement which the Riggs subsequently alleged was breached

by Hopkins. The Riggs then filed a motion and the Trial Court entered an order granting the

Riggs additional attorney’s fees. Hopkins appeals to this Court raising issues regarding the

grant of summary judgment and the award of attorney’s fees. We affirm the grant of

summary judgment, hold that the Riggs were entitled to an award of attorney’s fees pursuant

to the parties’ contract, vacate the Trial Court’s November 25, 2008 Order granting

additional attorney’s fees, and remand this case to the Trial Court for entry of an order that

complies with the parties’ August 6, 2008 agreement.

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

Affirmed, in part; Vacated, in part; Case Remanded

D. MICHAEL SWINEY,J., delivered the opinion of the Court, in which HERSCHEL P. FRANKS,

P.J., and JOHN W. MCCLARTY, J. joined.

Brandon K. Fisher, Clinton, Tennessee, for the appellant, Bobby R. Hopkins.

Linda G. Shown, Alcoa, Tennessee, for the appellees, Doyle K. Riggs and Ruth Riggs.

Hopkins also sued William Lee Gribble, II, Kenneth M. Gribble, and Selena M. Gribble. Because 1

none of these other defendants are involved in the appeal now before us and, for ease of reading only, we

refer to the Riggs as the only defendants in this Opinion.
OPINION

Background

The suit now before us on appeal has a contentious and lengthy history. It

arises out of a previous lawsuit in which Hopkins sued a number of individuals concerning

access to a trailer park located on his real property. Although the Riggs were not parties to

this earlier suit, they made an offer to the parties involved in that suit which resulted in a

settlement of that suit. On January 14, 2003, the Trial Court entered an Agreed Order of

Dismissal (“Agreed Order of Dismissal”) of that suit which provided, in pertinent part:

This Matter Having Come before this Honorable Court upon

announcement by all parties and the undersigned non-parties, who agree to be

bound hereto, that they have settled and resolved the controversies which are

the subject of this action, as is more fully set forth herein, and for other good

cause shown, it is hereby Ordered, Decreed and Adjudged as follows:

1. All parties to this action and the undersigned non-parties, without

making any admission of fact or liability of any kind or nature whatsoever,

except as is specifically set forth herein, hereby agree and it is so ordered that,

except for Ronald E. Harris and wife, Helen H. Harris, their lien holders, heirs,

successors and assigns, they, from this time forward, shall have no easement,

right of way, right of ingress, or right of egress across Lot No. 8 and/or Lot

No. 9 of Acreage View Estates Subdivision. As described in the deeds of

conveyance for Lot No. 8 and Lot No. 9 of Acreage View Estates, there shall

be a twenty-five (25) foot right-of-way over Lot No. 8 of Acreage View

Estates for the purposes of ingress and egress to Lot No. 9, but no further or

otherwise. After sixty (60) days from the entry of this Agreed Order, Ronald

E. Harris and wife, Helen H. Harris, and/or Aaron A. Andrew and wife,

Geneva L. Andrew, jointly or severally, shall have the right to erect a

barricade, or other barrier mechanism, across the driveway currently in use at

any place on the driveway as located on Lot No. 9 such that use of said

driveway by parties other than the Harrises and the Andrews is precluded.

2. The Plaintiffs, Hopkins and Musical, shall require their invitees,

guests, lessees, and any other person or entity coming onto their property or in

possession of or having use of the property currently owned by Hopkins to use

the right-of-way and road provided to Hopkins and Musical acrossthe property

of Doyle K. Riggs, and wife, Ruth Riggs, from and after sixty (60) days from

entry of this Order, and they shall require their invitees, guests, lessees and any

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other person or entity coming onto their property or having use of their

property to cease using the driveway across Lot No. 8 and Lot No. 9 of

Acreage View Estates.

3. Doyle K. Riggs and wife, Ruth Riggs, having acquired all of the

right title and interest in and to that certain real property of Leonard A.

Shepherd and wife, Lisa L. Shepherd, including the right (if any) to use the

aforesaid driveway, shall not use the alleged right-of-way across Lot No. 8 and

Lot No. 9 of Acreage View Estates.

4. Except for the right to enforce the terms and provisions of this Order

or the right to enforce the terms and provisions of the settlement agreements

and documents executed in performance of the settlement, all claims and

causes of action asserted in this action are hereby dismissed with prejudice as

to the rebringing of the same.

* * *

6. In the event any provision of this Agreed Order or the settlement

documents executed in conjunction herewith must be enforced by application

to this Honorable Court, this Honorable Court may award any prevailing party

a reasonable attorney’s fee, and to the extent permitted by law, may issue any

injunction or enforce the terms of this Agreed Order without requiring the

posting of any bond.

* * *

8. It is expressly understood and agreed that Doyle K. Riggs and wife,

Ruth Riggs have entered into this Agreed Order of Dismissal to settle doubtful

and disputed claims for economical purposes, and they are making no factual

admissions and are expressly denying any liability for any and all claims,

demands, damages, actions, causes of action or suits of any kind or nature

whatsoever, known or unknown, which have resulted or may in the future

develop and pertain to the use and/or existence of the driveway twenty-five

(25) foot wide from Janeway Drive across Lot No. 8 and Lot No. 9 of the

Acreage View Estates and the existence and/or use of the easement known as

Ruth Riggs Way.

9. Bobby R. Hopkins shall maintain the twenty-five (25) foot wide

easement for ingress and egress to his currently existing property, such

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easement running over the property of Doyle K. Riggs and Ruth Riggs and

along a new road beginning at Hutton Ridge Road, thence along a curve and

continuing to the road known as Ruth Riggs Way and running in a straight

direction parallel with a fence. Such easement inures to the benefit and use by

Bobby R. Hopkins, his guests and visitors of his property of record in

Warranty Deed Book 606, page 191 and Warranty Deed Book 615, page 656,

and such easement shall not be extended to other properties.

In addition to the Agreed Order of Dismissal, Hopkins, the Riggs, and others

also executed an Agreement which provided, in pertinent part:

5. Riggs and Hopkins shall enter into an Easement Agreement (attached

hereto as Exhibit C) wherein access to Hopkins[’] property will be granted

across Riggs’ property for the purpose of ingress and egress to Hopkins’

property, with Hopkins to be solely responsible for maintenance of such

easement unless property owners other than Riggs become entitled to use such

easement.

The Riggs executed an Easement Agreement granting to Hopkins a twenty-five foot wide

easement for ingress and egress over property owned by the Riggs “and running along a new

road beginning at Hutton Ridge Road, thence along a curve and continuing to the road known

as Ruth Riggs Way and running in a straight direction parallel with a fence to [Hopkins’]

property of record....”

In June of 2004, Hopkins sued the Riggs alleging, among other things, that the

Riggs had agreed to construct a new road for Hopkins and that the Riggs had failed to

provide an adequate road that could be used by Hopkins and his guests and invitees. The

Riggs answered the complaint denying, among other things, the allegations with regard to

construction of the road and alleging in a counter-claim, in part, that Hopkins had failed to

maintain properly the easement granted to him by the Riggs.

The Riggs filed a motion for summary judgment supported by, among other

things, the affidavit of Robert Abbott which states, in pertinent part:

2. I am the Engineering Director for the Blount County Highway

Department. I have worked with the Blount County Highway Department for

twenty[-]seven years. In my position as Engineering Director, I am familiar

with the minimum standards for road construction in Blount County. We

maintain and enforce road construction regulationsfor public and private roads

built in Blount County.

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3. In August 2003, the department was contacted by someone who uses

the easement which goes across the property at 5923 Hutton Ridge Road and

provides ingress and egress to property owned by Bobby Hopkins that is used

as a mobile home park. This person complained about the difficulties in using

the road.

4. I and others in my department went out to view the road, and pulled

maps and performed other necessary work to determined the circumstances

surrounding this easement.

5. As a result of this review, we have determined that the road which

goes across the property situated at 5923 Hutton Ridge Road and provides for

ingress and egress to property owned by Bobby Hopkins that is used for a

mobile home park is not subject to any minimum standards or other road

building regulations of our department. It is a private road going across

private property, and because no subdivision of property took place at the time

that the road was put in, construction of the road was not subject to any

regulations or minimum standardsset by Blount County Highway Department.

The Riggs also filed a copy of Hopkins’s deposition testimony. During the deposition,

Hopkins testified about the Agreed Order of Dismissal explaining that during the first suit

the Trial Court Judge:

informed us that we were all suing the wrong people, that we needed to sue

Doyle Riggs, that he was the responsible party in this case.... Well, Mr. Riggs

stood up at this time and told him that he could solve this problem by building

us a new road and giving us an easement through his property and sell me the

property and eliminate the whole situation that we were in.

When asked what his understanding of the agreement entered into was, Hopkins stated:

That I’d get a road better than what I had and that I’d be able to bring my

invitees in, my mobile homes, and my kin folks, and then I would be able to

buy lot number three and I could put two trailers on it, and after I bought it, I

would buy the remaining ten acres of his property.

Hopkins was asked if he had worked with the Riggs in getting all the details

handled as to when and where the road was to be constructed and Hopkins replied, “No.”

He stated: “I watched while they were building this road and told them, you know, what I

agreed on and what I didn’t agree on.” Hopkins testified that he watched and informed the

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people building the road that they were putting it in the wrong place. He told them that the

road was supposed to be parallel to the fence instead of following the old tractor road. When

asked if he had insisted that the road be put in where it eventually was, Hopkins stated:

“That’s what we agreed on in court.” Further, he agreed that he made sure that it was laid

out that way.

Hopkins testified that he has problems with the grade of the road and stated:

“We’ve got a hill that’s like a 37 grade that the county says is supposed to be 13 at the max

and there’s no drainage and there’s no culverts on this road and when it rains, the whole hill

washes away.” When asked, Hopkins agreed that the grade of the road is the way it is

because he directed that the road be put in where it is and stated: “That was the agreement

where the road would be.”

Hopkins wants the easement to be wider than 25 feet at the point where it meets

Hutton Ridge Road. He testified:

Well, I’m not an engineer and the way they engineered it, they said that it

would be a 30-foot radius on one side and a 60-foot radius on the other side.

Ed of the road commission said it would take that to get a mobile home in

there. He said that’s what it would have to be.

When asked if there was any other agreement for the Riggs to construct a road

other than the Agreed Order of Dismissal, Hopkins replied: “None that I know of.” Hopkins,

however, insisted that he had a verbal agreement for the Riggs to construct a road entered

into when they were in court entering into the Agreed Order of Dismissal. He stated: “This

all happened at the same time in court when we agreed and everything.”

Hopkins admitted that he and Doyle Riggs never discussed the base of the road,

whether it would be asphalt or gravel, nor what the Riggs would pay to construct the road.

Hopkinsfurther agreed that the entire road was to be built upon property owned by the Riggs.

Hopkins conceded that he had agreed to maintain the easement. When asked what there was

for him to maintain, he replied: “A road.... It come from Hutton Ridge to my property.”

Hopkins also claimed that he and Doyle Riggs entered into a verbal contract

on March 12, 2002, approximately ten months before the entry of the Agreed Order of

Dismissal, during a discussion at the Riggs’ house. He explained:

A year before we ever built the road, I was at this house and I took that letter

up there from Virginia Crouch that she and Andrews they said that they was

suing me and Doyle. And I took that up there and that’s when he told me, he

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says, well, we’ll eliminate this problem.

He said if worse comes to worse, we’ll just build a new road. And he

said we’ll come on that side of the house. He said you can’t come down this

side and said we’ll just curve it in. And asked me if I’d still buy the property

and I said yes.

And that’s when I told him I’d have to, you know, buy lot three and put

a couple of trailers on it or I couldn’t buy that all at one time. And I said after

I did that, I’d buy the rest of this and I’d have a good road, you know, and

wouldn’t have no problems, and he just moved to Madisonville.

Hopkins then stated that the easement agreement shows “what we agreed on.” When asked,

Hopkins admitted that during this conversation when they made the alleged verbal

agreement, he and Doyle Riggs did not agree on any other terms of the contract and that

nothing was put into writing. Hopkins agreed that during their conversation he and Doyle

Riggs did not agree for the Riggs to get permits, did not agree on anything with regard to

drainage, did not agree about meeting zoning regulations, did not agree about what type of

gravel would be used, did not agree about the grade of the road, did not agree that the road

would be safe and usable, and did not agree as to when the road would be completed.

By order entered February 28, 2007, the Trial Court granted the Riggssummary

judgment. The Riggs then filed a motion seeking an award of attorney’s fees and

discretionary costs pursuant to the Agreed Order of Dismissal. By order entered December

14, 2007, the Trial Court ordered Hopkins to pay the Riggs’ attorney’s fees in the amount of

$36,720 plus ten percent interest and further ordered Hopkins to pay discretionary costs of

$2,428 plus ten percent interest.

On February 26, 2008, the Trial Court entered a Final Judgment Between

Plaintiff Bobby R. Hopkins and Defendants Doyle K. Riggs and Wife, Ruth Riggs pursuant

to Tenn. R. Civ. P. 54.02. Hopkins moved to set aside the February 26, 2008 judgment

alleging that the Riggs’ counter-complaint had “not been disposed of by any Motion or

pleading by any party and remains an issue to be decided between Plaintiff Bobby R.

Hopkins and Defendants Doyle K. Riggs and wife, Ruth Riggs.” The Riggs filed a motion

for sanctions. Hopkins also filed an appeal with this Court, which subsequently was

dismissed.

On August 6, 2008, the parties were able to reach an agreement with regard to

the pending motion to set aside the February 26, 2008 judgment and the pending motion for

sanctions. This agreement was memorialized in a transcript and the Trial Court entered an

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order on August 22, 2008 finding and holding that the parties had agreed to dismiss the

motion to set aside the final judgment and the motion for sanctions, and dismissing these

motions with prejudice.

In pertinent part, the Agreement entered into by the parties on August 6, 2008

(“August 6, 2008 Agreement”) provides:

Today a check will be written by Bobby R. Hopkins in the amount of twenty

thousand dollars and no cents made payable to Doyle and Ruth Riggs. The

sum of fifteen hundred dollars will be paid by Bobby R. Hopkins to Doyle and

Ruth Riggs by September 6th at 12:00 p.m. midnight. Time is of the essence,

or on September 7, 2008 an entry of twenty-seven thousand eight hundred

dollars no cents plus ten percent statutory interest will be entered as a

judgment with no right of appeal and immediate execution shall issue.

The appeal of Bobby Hopkins to the Appellate Court in this matter will

be dismissed effective today, and counsel for Mr. Hopkins will file the

necessary paperwork to have that appeal dismissed. Doyle and Ruth Riggs

shall agree to release the lien on the property of Bobby R. Hopkins.

* * *

And [Hopkins’ attorney] will forward to [the Riggs’ attorney] the release that

they’re requesting Doyle and Ruth Riggs to sign, and assuming that that will

be acceptable, then the Riggs will sign that immediately and it will be

forwarded back to [Hopkins’ attorney] for recording in the Blount County

Register of Deeds office.

All court costs will be taxed to Bobby R. Hopkins, and the court

reporter fee today will be shared between Bobby R. Hopkins and Doyle and

Ruth Riggs.

Is that your understanding, [Hopkins’ attorney]?

[HOPKINS’ ATTORNEY]: It is, and I just want to clarify that the

twenty-seven thousand eight hundred judgment, which we don’t anticipate

being entered, but if it is entered, that overtakes the previous judgment for

attorney’s fees in this case.

[THE RIGGS’ ATTORNEY]: That is correct, because we are receiving

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twenty thousand dollars today.

After the terms of the agreement were announced, Hopkins and the Riggs were sworn in and

each was asked if they understood and agreed with those terms and all parties stated that they

understood and agreed. The same day the agreement was memorialized, Hopkins presented

two checks made out to the Riggs, one in the amount of $4,500 and one in the amount of

$15,500, which together totaled $20,000.

The check in the amount of $15,500 which Hopkins provided to the Riggs on

August 6, 2008 was returned for insufficient funds. On August 20, 2008, the Riggs filed a

motion seeking to enforce the parties’ August 6, 2008 agreement. In this motion, the Riggs

requested a judgment against Hopkins in the amount of $43,300. Hopkins delivered a check

for $17,000 to the Riggs’ attorney by having the check slipped under the attorney’s office

door on September 5, 2008. The Trial Court held a hearing and entered an order on

September 8, 2008 finding and holding, inter alia, that Hopkins had materially and willfully

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breached the parties’ August 6, 2008 agreement by presenting a check for $15,500 which was

returned for insufficient funds, and that the Riggs shall have a judgment against Hopkins for

$44,800 plus statutory interest of ten percent with a credit of $17,000 for the payment that

Hopkins delivered to the Riggs’ attorney on September 5, 2008. The Trial Court certified

the September 8, 2008 judgment as a final judgment pursuant to Tenn. R. Civ. P. 54.02.

On November 10, 2008, Hopkins filed a motion to set aside the order entered

September 8, 2008 or, in the alternative, to enforce the August 6, 2008 Agreement. On

November 25, 2008, the Trial Court entered an order modifying its September 8, 2008 order

and holding that the Riggs shall have a judgment against Hopkins in the amount of

$34,433.81 plus post-judgment interest of ten percent per annum. The Trial Court certified

the November 25, 2008 order as a final judgment pursuant to Tenn. R. Civ. P. 54.02.

On December 23, 2008, Hopkins filed a motion to reconsider or, in the

alternative, for clarification. The Trial Court denied this motion by order entered April 22,

2009 finding that a motion to reconsider is not authorized and that no clarification was

necessary. Hopkins then filed this appeal to this Court.

Discussion

Although not stated exactly as such, Hopkins raises five issues on appeal: 1)

The order actually was signed and entered by the Trial Court on September 9, 2008. The parties 2

and the Trial Court, however, all refer to this order as the September 8, 2008 order. For the sake of

continuity, we will refer to this order as the September 8, 2008 order.

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whether the Trial Court erred in certifying the November 25, 2008 order as a final judgment;

2) whether the Trial Court erred in granting summary judgment to the Riggs; 3) whether the

Trial Court erred in awarding to the Riggs attorney’s fees in its December 14, 2007 order;

4) whether the Trial Court erred in awarding to the Riggs additional attorney’s fees in its

September 8, 2008 order as modified by the November 25, 2008 order; and, 5) whether the

award of attorney’s fees is excessive. The Riggs move this Court to take notice of “the post

judgment settlement agreement entered into by the parties, pursuant to Rule 14, T.R.A.P. and

attached hereto as Exhibit 2 and in the Technical Record at Vol. VI.” The Riggs also raise

an issue regarding whether this appeal should be deemed frivolous as Hopkins waived his

right to appeal in the August 6, 2008 Agreement, and request an award of attorney’s fees on

appeal.

We first address the issue of whether the Trial Court erred in certifying the

November 25, 2008 order as a final judgment. Hopkins asserts in his brief on appeal that

the Riggs filed a counter-claim that “never reached disposition” and for this reason the Trial

Court erred in certifying the judgment as a final judgment. Interestingly, a careful and

thorough review of the record on appeal reveals that on July 19, 2007, Hopkins filed a

Motion to Dismiss Counter-Complaint which alleged, in pertinent part:

1. The Counter-Complaint does not state a claim on which relief can

be granted pursuant to Rule 12 of the Tennessee Rules of Civil Procedure.

2. In the alternative, [Hopkins] would show that the Counter-Complaint

prays for no action on behalf of [Hopkins]. Rather, the only action requested

is that [Hopkins] be required to maintain a road. Without judgment requested

against [Hopkins], the Counter-Complaint seeks nothing from CounterDefendant Bobby Hopkins and should be dismissed.

More importantly, however, the Trial Courtspecifically certified its November

25, 2008 order as a final judgment stating:

Notwithstanding that there are other issues related to other parties in

this case, the Court directs that this Judgment finalizes all claims between

[P]laintiff and Defendants Riggs and is a final judgment under Rule 54.02 of

the Tennessee Rules of Civil Procedure., [sic] and the Court makes the express

determination that there is no just reason for delay.

Thus, the Trial Court ruled upon all issues before it with regard to these parties and implicitly

dismissed the counter-complaint. The Riggs raise no issue regarding the dismissal of their

counter-complaint. The Trial Court complied with Tenn. R. Civ. P. 54.02 and properly

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certified the November 25, 2008 order as a final judgment. This issue is without merit.

We next consider whether the Trial Court erred in granting summary judgment

to the Riggs. Our Supreme Court reiterated the standard of review in summary judgment

cases as follows:

The scope of review of a grant of summary judgment is well

established. Because our inquiry involves a question of law, no presumption

of correctness attaches to the judgment, and our task is to review the record to

determine whether the requirements of Rule 56 of the Tennessee Rules of Civil

Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.

1997); Cowden v. Sovran Bank/Cent. S., 816 S.W.2d 741, 744 (Tenn. 1991).

A summary judgment may be granted only when there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter

of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.

1993). The party seeking the summary judgment has the ultimate burden of

persuasion “that there are no disputed, material facts creating a genuine issue

for trial . . . and that he is entitled to judgment as a matter of law.” Id. at 215.

If that motion is properly supported, the burden to establish a genuine issue of

material fact shifts to the non-moving party. In order to shift the burden, the

movant must either affirmatively negate an essential element of the

nonmovant’s claim or demonstrate that the nonmoving party cannot establish

an essential element of his case. Id. at 215 n.5; Hannan v. Alltel Publ’g Co.,

270 S.W.3d 1, 8-9 (Tenn. 2008). “[C]onclusory assertion[s]” are notsufficient

to shift the burden to the non-moving party. Byrd, 847 S.W.2d at 215; see also

Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our state does not

apply the federal standard for summary judgment. The standard established

in McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998),

sets out, in the words of one authority, “a reasonable, predictable summary

judgment jurisprudence for our state.” Judy M. Cornett, The Legacy of Byrd

v. Hall: Gossiping About Summary Judgment in Tennessee, 69 Tenn. L. Rev.

175, 220 (2001).

Courts must view the evidence and all reasonable inferences therefrom

in the light most favorable to the non-moving party. Robinson v. Omer, 952

S.W.2d 423, 426 (Tenn. 1997). A grant of summary judgment is appropriate

only when the facts and the reasonable inferences from those facts would

permit a reasonable person to reach only one conclusion. Staples v. CBL &

Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). In making that assessment, this

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Court must discard all countervailing evidence. Byrd, 847 S.W.2d at 210-11.

Recently, this Court confirmed these principles in Hannan.

Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 363-64 (Tenn. 2009).

The Trial Court interpreted the contract at issue in this case, i.e., the Agreed

Order of Dismissal. As this Court explained in Kafozi v. Windward:

In resolving a dispute concerning contract interpretation, our task is to

ascertain the intention of the parties based upon the usual, natural, and

ordinary meaning of the contract language. Planters Gin Co. v. Fed.

Compress & Warehouse Co., Inc., 78 S.W.3d 885, 889-90 (Tenn. 2002)(citing

Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn. 1999)). A determination of

the intention of the parties “is generally treated as a question of law because

the words of the contract are definite and undisputed, and in deciding the legal

effect of the words, there is no genuine factual issue left for a jury to decide.”

Planters Gin Co., 78 S.W.3d at 890 (citing 5 Joseph M. Perillo, Corbin on

Contracts, § 24.30 (rev. ed. 1998); Doe v. HCA Health Servs. of Tenn., Inc.,

46 S.W.3d 191, 196 (Tenn. 2001)). The central tenet of contract construction

is that the intent of the contracting parties at the time of executing the

agreement should govern. Planters Gin Co., 78 S.W.3d at 890. The parties’

intent is presumed to be that specifically expressed in the body of the contract.

"In other words, the object to be attained in construing a contract is to ascertain

the meaning and intent of the parties as expressed in the language used and to

give effect to such intent if it does not conflict with any rule of law, good

morals, or public policy." Id. (quoting 17 Am. Jur. 2d, Contracts, § 245).

This Court's initial task in construing the Contract at issue is to

determine whether the language of the contract is ambiguous. Planters Gin

Co., 78 S.W.3d at 890. If the language is clear and unambiguous, the literal

meaning of the language controls the outcome of the dispute. Id. A contract

is ambiguous only when its meaning is uncertain and may fairly be understood

in more than one way. Id. (emphasis added). If the contract is found to be

ambiguous, we then apply established rules of construction to determine the

intent of the parties. Id. Only if ambiguity remains after applying the pertinent

rules of construction does the legal meaning of the contract become a question

of fact. Id.

Kafozi v. Windward Cove, LLC, 184 S.W.3d 693, 698-99 (Tenn. Ct. App. 2005).

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We begin our analysis of this issue by noting that although Hopkins asserts that

he had an oral contract with the Riggs, he admitted that there had been no agreement

regarding any of the details or particulars regarding the construction of the road, and further

admitted that what he and the Riggs had agreed to was memorialized in the Agreed Order of

Dismissal. Hopkins testified that during the conversation that he had with Doyle Riggs prior

to the entry of the Agreed Order of Dismissal, Doyle Riggs stated: “if worse comes to worse,

we’ll just build a new road.” Hopkins, however, admitted that whatever he and Doyle Riggs

agreed to during that conversation was memorialized in the Easement Agreement entered into

by the parties pursuant to the Agreed Order of Dismissal. Furthermore, a vague statement

such as “if worse comes to worse” is insufficient to support the assertion that a contract was

formed based upon this language. Hopkins testified that despite his assertions of an oral

contract, he and the Riggs never reached any agreement whatsoever with regard to any details

of constructing a road and, as such, any such alleged oral agreement is simply too vague to

constitute a contract. Further, Hopkins admitted that the agreement reached between him and

Doyle Riggs was memorialized in the Agreed Order of Dismissal and the Easement

Agreement entered into by the parties in connection therewith. Therefore, the assertion that

an oral contract for the construction of the road exists is without merit.

With regard to the contract embodied in the Agreed Order of Dismissal, we

begin by noting that the contract is not ambiguous. As such, we must look to the literal

meaning of the words of the contract to determine the intention of the parties. In the Agreed

Order of Dismissal, Hopkins agreed, as pertinent to this issue, “to use the right-of-way and

road provided to Hopkins and Musical across the property of Doyle K. Riggs, and wife, Ruth

Riggs, from and after sixty (60) days from entry of this Order...;” to require his invitees,

guests, and lessees to use this road; and to maintain this road. The Riggs agreed, with regard

to this issue, to grant Hopkins a “twenty-five (25) foot wide easement for ingress and egress

to his currently existing property,such easement running over the property of Doyle K. Riggs

and Ruth Riggs and along a new road beginning at Hutton Ridge Road, thence along a curve

and continuing to the road known as Ruth Riggs Way and running in a straight direction

parallel with a fence.”

Nowhere in the Agreed Order of Dismissal doesit provide any specificsstating

that the Riggs had agreed to build a road of any type. Rather, the Agreed Order of Dismissal

clearly and unambiguously states that the Riggs agreed to provide an easement that could be

used for ingress and egress, which they did. The Riggs did not agree to construct a road. We

find, as did the Trial Court, that there are no genuine issues of material fact in dispute and

that the Riggs are entitled to summary judgment as a matter of law.

Next we consider whether the Trial Court erred in awarding to the Riggs

attorney’s fees in its December 14, 2007 order. The Agreed Order of Dismissal clearly and

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unambiguously provides: “In the event any provision of this Agreed Order or the settlement

documents executed in conjunction herewith must be enforced by application to this

Honorable Court, this Honorable Court may award any prevailing party a reasonable

attorney’s fee ....” Hopkins attempted to enforce the Agreed Order of Dismissal by

application to the Trial Court and, therefore, the Trial Court may award attorney’s fees to

“any prevailing party” in this action. As Hopkins attempted to enforce the Agreed Order of

Dismissal and the Riggs prevailed in the suit when they were granted summary judgment, we

fail to see how Hopkins can now assert that the Riggs may not be awarded attorney’s fees

pursuant to the Agreed Order of Dismissal. As the Trial Court may award the Riggs

attorney’s fees pursuant to the parties’ contract, we need not discuss whether an award would

be proper on equitable grounds.

We next consider whether the Trial Court erred in awarding to the Riggs

additional attorney’s fees in its September 8, 2008 order as modified by the Trial Court’s

November 25, 2008 order. The record on appeal reveals that Hopkins and the Riggs reached

an agreement with regard to the Trial Court’s December 14, 2007 order, which ordered that

the Riggs had a judgment against Hopkins for $36,720 in attorney’s fees, and $2,428 in costs,

plus statutory interest on both amounts. The agreement reached by the parties was

memorialized in the August 6, 2008 Agreement. In pertinent part, the August 6, 2008

Agreement provided that if Hopkins failed to deliver by September 6, 2008 the monies as

specified, then a judgment would be entered in the amount of $27,800, plus ten percent

statutory interest. Hopkins did fail to deliver the monies as specified when one of the checks

that he provided on August 6th as required by the August 6, 2008 Agreement was returned

for insufficient funds. Thus, as per the parties’ August 6, 2008 Agreement, a judgment of

$27,800 plus statutory interest should have been entered.

The August 6, 2008 Agreement did not, however, provide for any further

awards of attorney’s fees incurred in enforcing the August 6, 2008 Agreement. Thus, the

Riggs were not entitled to an award of additional attorney’s fees in the September 8, 2008

order, or in any subsequent orders enforcing the parties’ August 6, 2008 Agreement. The

September 8, 2008 order did not enforce the Agreed Order of Dismissal, which already had

been enforced by the August 6, 2008 Agreement. Rather, the September 8, 2008 order

enforced the parties’ August 6, 2008 Agreement which did not provide for any further award

of attorney’s fees to any party.

Therefore, we vacate the Trial Court’s November 25, 2008 order and remand

this case to the Trial Court for entry of an order which complies with the parties’ August 6,

2008 Agreement, with credit to be given for amounts already paid by Hopkins. Neither party

is entitled to attorney’s fees in connection with the order which we hereby direct the Trial

Court to enter.

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Next we consider whether the award of attorney’s fees was excessive. Given

that we have vacated the Trial Court’s November 25, 2008 order awarding additional

attorney’s fees, this issue is pretermitted with regard to the attorney’s fees awarded in that

order. As for the first order awarding attorney’s fees, i.e., the December 14, 2007 order,

Hopkins and the Riggs reached an agreement with regard to it, the August 6, 2008

Agreement. In the August 6, 2008 Agreement, Hopkins and the Riggs agreed as to amounts

that Hopkins would pay to the Riggs. As Hopkins freely and voluntarily agreed to the

amounts he would pay in lieu of the December 14, 2007 order, he cannot now claim that the

amount of attorney’s fees awarded by this order was excessive. This issue is without merit.

We next consider the Riggs’ motion requesting that this Court take notice of

the post-judgment settlement agreement entered into by the parties. This so called postjudgment settlement agreement to which the Riggs refer is the August 6, 2008 Agreement,

which is not a post-judgment settlement. As it already had properly been included in the

record on appeal, we are puzzled as to why the Riggs felt it was necessary to ask this Court

to take notice of this agreement. As the August 6, 2008 Agreement was properly included

in the record on appeal and has been considered by this Court as discussed fully above, this

motion is moot.

Finally, we consider the issue raised by the Riggs of whether this appealshould

be deemed frivolous as Hopkins waived his right to appeal in the August 6, 2008 Agreement.

“‘A frivolous appeal is one that is ‘devoid of merit,’ or one in which there is little prospect

that [an appeal] can ever succeed.’” Morton v. Morton, 182 S.W.3d 821, 838 (Tenn. Ct. App.

2005) (quoting Industrial Dev. Bd. of the City of Tullahoma v. Hancock, 901 S.W.2d 382,

385 (Tenn. Ct. App. 1995)).

The assertion that Hopkins waived his right to appeal in the August 6, 2008

Agreement is correct insofar as Hopkins waived his right to appeal a judgment put down in

compliance with the August 6, 2008 Agreement. As discussed above, however, the

November 25, 2008 order did not comply with the parties’ August 6, 2008 Agreement. As

such, Hopkins did not waive his right to appeal the November 25, 2008 final order.

Furthermore, the Riggs assert that Hopkins waived his right to appeal the grant of summary

judgment by virtue of the August 6, 2008 Agreement. This assertion is incorrect. The

August 6, 2008 Agreement clearly and unambiguously provides that Hopkins waived his

right to appeal entry of a judgment in the amount of $27,800 plus ten percent statutory

interest. Such a judgment never was entered. Hopkins did not waive his right to appeal any

other judgment. As such, we find that Hopkins did not waive his right to appeal the issues

now before us. As Hopkins has prevailed, albeit partially in this appeal, in the sense that this

Court has vacated the November 25, 2008 order, we decline to find this appeal frivolous and

further decline to award any attorney’s fees on appeal.

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Conclusion

The judgment of the Trial Court is affirmed as to the grant of summary

judgment to the Riggs. The judgment of the Trial Court is vacated as to the November 25,

2008 order awarding additional attorney’s fees to the Riggs, and this cause is remanded to

the Trial Court for entry of an order which complies with the parties’ August 6, 2008

Agreement, and for collection of the costs below. The costs on appeal are assessed one-half

against the appellant, Bobby R. Hopkins and his surety; and one-half against the appellees,

Doyle K. Riggs and Ruth Riggs.

_________________________________

D. MICHAEL SWINEY, JUDGE

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