### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE August 2000 Session WAYNE D. JOINER, SR., v. METROPOLITAN GOVERNMENT

Direct Appeal from the Circuit Court for Davidson County No. 98C-2708; 98C-2709; 98C-2710 and 98C-2711 Hon. Carol Soloman, Circuit Judge

No. M2000-00413-COA-R3-CV - Filed September 28, 2000

The Trial Court

entered consent Judgment over objection of defendant. We vacate Judgment and remand. Tenn. R. App. P.3 Appe al as of Right; Judgme

nt of the Circuit Cour

t Vacated. H ERSCHEL P ICKENS F RANKS , J., delivered the opinion of the court, in which W ILLI AM B. C AIN , J., and P ATRICIA J. C OTTRELL , J., joined. Wayne D. Joiner, Sr., Hendersonville, Tennessee, pro se. Dennis W. Stanford,

Nashville, Tenne

ssee, for appell

ee, Metropolitan

Government.

OPINION

The Trial Judge responding to a Motion for Order Adopting Settlement filed by the Nashville Metropolitan Government (hereinafter called “plaintiff”), entered judgment based upon the affidavit of the C

odes Inspect

or, which outlined

an agreed set

tlement betw

een plaint iff and defendant, Wayne D. Joiner, Sr., (hereinafter called “Joiner”). Joiner has appea led. By way of background, the action aga inst Joiner was on the Court’s doc ket, and according to the Inspector’s affidavit, while waiting, the parties agree d to settle their disputes on terms set forth

in his affidavit. Joiner filed a sworn response to the Motion, stating he did not agree to the terms set

forth in the proposed Order, and disputed the pr esence of the I

nspector, insisting

only the plaintiff’s a

ttorney and

Joiner were prese

nt. It appears from the record that the parties believed they had reached an agreement on-2-

the day they

appeared for tr

ial, because the

y did not wait f

or their turn in court, and made no announcement

to the Court. This is borne out because there after they sent letters back

and forth discussing the terms of the settlement. Joiner did not consent to the terms as set forth in plaintiff’s proposed Order, and when judgment was entered, this was made known to the Trial Judge.

This dispute is govern

ed by the Supr

eme Court’s decis

ion in Harbour v. Brown , 732 S.W.2d 598 (Tenn. 1987), where the Court held that a consent judgment could not be entered where one party had withdrawn his consent and communicated that fact to the trial court. In Harbour , the parties reached a

settlement agreement on the date of trial and announced to the court that such had occurred and that they would submit an order of compromise and dismissal. Subsequently, the Tria l Courtwas made aware that one party had w

ithdrawn his

consent, but the Trial Judge entered an order dismissing the case with prejudice.

On appeal, t he Supreme C ourt held t his to be er ror, stati ng: The power of the court

to render a judgment by consent is dependent on the existence of the consent of the parties at the time the agreement receives the sanction of the court or is rende

red and promulg

ated as a judgme

nt. Id. at 599 (quoting 49 C.J.S. Judgments §174(b)). The rule in Harbour has bee n follow ed in numerous cases, including Environmental Abatement, Inc. v. Astrum R.E. Corp. , 2000 WL 225581 (Tenn. Ct. App. Feb. 29, 2000), and Denbow v. Denbow , 1996 WL 243894 (Tenn. Ct. App. May 9, 1996). In this case it is clear the parties believed that had settled the matter, but did n o t announce the termsof their settlement to the Court, or otherwise reduce those terms to writing at the time of the settlement.

It is also clear from the letters which were exchanged later, that the parties were far apart in terms of any agreement. B ased upon Harbour and its progeny, it was error for the Trial Court to enter an Order adopting the settlement agreement proposed by the plaintiff, when the Court had knowledg

e that Joiner did not a

nd would not agre

e to those terms. Acco rdi ngly, we vacate the Judgment and remand the cas e for fur ther proceed ings in accordance with this Opinion.

Joiner has raised

other concerns in his “brief” regarding the judicial process and how this case h as progressed, but a thorough review of the record indicates that those conce rns are without merit. The cause is remanded with the cost of the appeal assessed to Metropolitan Government of Nashville.

_________________________ H ERSCHEL P ICKENS F RANKS , J.-3-