### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE January 31, 2001 Session SHARON GLENN v. GORDON CONSTRUCTION, I NC., ET AL 

### .

Appeal from the Chancery Court for Davidson County No. 99-13-II Carol L. McCoy, Chancellor

No. M2000-01805-COA-R3-CV - Filed April 19, 2002

Plaintiff filed suit against construction company for negligent repair of tornado damage to her home. Parties submitted an Agreed Order of Compromise, Settlement, and Dismissal which was signed by the trial cou

rt and fil ed on the s ame day itwas received. The construction company retained new counsel and filed a motion to set aside the order. Plaintiff sought contempt because the construction company refuse d to complywith the A greed Order. Months later Plaintiff issued ex ecution a

gainst construction company after failure to comply with the terms of the Agreed O rder and garnished over $11,000 from its bank account. The trialcourt deni ed a motion to quash execution filed by the construction company. The construction company appeals arguing that the agr eed order could not have been entered after one of the part ies withd rew consent for the settlement. We affir m the decision of the tri al court

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

P ATRIC IA J. C OTTRELL , J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S., and W ILL IAM C. K OCH , J R ., J., joined.

W. Thomas Sc hmitz, Bre ntwood, Te

nness ee, counsel on appeal for the appellant, Gordon Construction, Inc. Eugene N. Bulso, Jr., Nashville, Tennessee, for the appellee , Sharon D. Glenn.
OPINION

Sharon Glenn’s East Nashv ille home s ustained serious damage after being struck by a tornado on April 16, 1 998. Short ly there after, she ente

red into a contract with Gordon Construction, Inc. (“Gordon”) to repair the damage c aused by the tornado, includ ing repai r of the roof, which collapsedwhen a tree fel l on it. For unknown reasons, Gordon installed a new roof, but did not1 Glenn lat er amended t he complai nt t o add her i nsurer , Americ an Nati onal Pr opert y & Casualt y Company. Glenn dismiss ed the cla im against Am erican Nati onal Propert y and Casualty Company without prejudic e two days after entr y of t he Agreed Order with Gordon.
-2- repair or replace the broken rafter s upon which the roof rested. As a result, the recently replaced roof of the house began to cave in.

Glenn filed suit alleging that Gordon failed to perform on the c onstruction contract and seeking $ 15,000 fo

r refun d of payme

nt and con sequenti al damag es. 1

The case was set for trial

in Davidson County Chancery Court, and on the eve of trial, the parties re ached a s ettlement through mediation and submitted to the court an Agreed Order of Compromise, Settlemen t, and Di smissal (“Agreed Order”). Both parties wer e represented by counsel at the mediation, and the 31 year old son of the owner of Gordo n als o participated. The Agreed Order, signed by both counsel of rec ord and entered by the Chancellor, stated:

1. Gordon Construction Co., Inc. will retain Shaub Construction Company, Inc. to repair the pl a intiff’s [Glenn’s] home in a manner acce ptable to the Metropolitan Department of Codes Administration . G ordon Construction Co., Inc. shall be completely and fully responsible for any payment of any and all services provided by Sha ub Construction Company, Inc., and the plaintiff, Sharon Glenn, will have no obligation of any kind t o Shaub Construction Company, Inc. 2. Gordon Construction Co., Inc. sha ll pay tothe plaintiff, Sharon Glenn, upon entry of this Order Ten Thousand and No/100 Dollars ($10,000). 3. Gordon Construction Co., I nc. willendorse to Sharon G

lenn Chec

ks Nos. 809678 and 80968 4 in the amounts of $1,861.34 and $600.00, respectively, issued by Americ an Nation al Proper ty & Casual

ty Company on February 22, 1999. 4. That

partie s , upon ent

ry of this O

rder do h ereby r elease any and a

ll claims against each oth er which were or could hav e been asserted in this action which arise ou t o f or relate in any way to the defendant’s r epair of the plaintiff’s home....The parties also, upon entry of the Order, hereby d

ismiss with prejudice any and all claims asserted in this action. 5. Upon entry of

this Order, the plaintiff, SharonGlenn, wi ll voluntar ily dismiss without prejudice the claims as serted a gainst Ame

rican Na tional Pro perty& Casualty Company. 6. The court sha

ll reta in juri sdiction of this action to enforce the terms of the settlement

set forth herein, the termsof whic h as here by made an Order of this Court....

The Agreed Order bears two stamps, “received” and “filed”, both dated October 4, 1999, the date which ha d been se t for tria l.2 According to t he brief f

iled herei n, Gordon cl aims when i t re ceive d the Agre ed Order on Oct ober 7, 1999, it determined the Order did no t accurately reflect its agreement, despite the si gnature of its lawyer.

3 In his affidavit accom panying h is motion to withdraw, cou nsel stat ed that he had been advised by G ordon’s
new counsel that Gordon intended to f ile a motion to set

aside t he Agreed Order “which is and was i n direct confli ct with my adv ice an d rec om me nda tions.”
-3- Appare ntly shortly after entry of the Agreed Orde r, Gordon changed its mind about the sett lement. 2 Gordon r

elease d its prior

counsel a

nd retai ned new c ounsel wh o filed a notic e o f app earance

and a “Motion to Set A side Submitt ed Orde r.” The motion wasnot acco mpanie d b y affidavits or a memorandum of law and merely stated:

Comes now the Plaintiff, by and through counsel, pursuant to Rules 58, 59, and 60, Tennessee Rules of Civil Procedure, and moves this H onorable

Court to set aside the Order of Comprom

ise, Settle ment, and Dismissal, previous ly submitted for entry on or about Oc tober 4, 1 999, in this cause. In support of said Motion, Defendant, has
or will at the earliest practicable date file its Affida vit and/or Memorandum with the Court.

Gordon failed to comply with the Agreed Order. It stopped payment on the $10,000 c heck which it had issued to Glenn and instructed Shaub Construction not to repair the home. Glenn responded

by filing a motion to show cause why Gordon should not be held in contempt for failure to comply with the terms of the Agreed Order. Gordon’s original counsel, who was present at the mediation and signe d the Agr eed Ord er, move d to withdr

aw the sa me day as the hearing on the show
cause motion, stating that he had been discharged and that Gordon “indica ted they wish to pursue
a directio n in this matter which movant states places Gordon Construction, Inc. and movant in clear ethical conflict.” 3 The trial court denied the motion to withdraw at the beginning of the hearing on the motion to show cause.

The trial court denied Ms. Glenn’s motion to show cause, stating that contempt must be brought through a

petition meeting ce

rtain noti ce requ

ir ements. A lthough affidavits supporting Gordon’s motion to set aside the Agreed Order were not filed pr ior to the show cause hearing, Gordon’s new counsel apparently filed a pre-hearing stateme nt which does not appear in the record before us. Althou gh the hea ring was o n Ms. Glen n’s motion to show cause, Gordon’s position regarding the invalid ity of the Agreed Order was explored a nd argued as a defense to the motion. Thus, we must look to that hearing to determine the basis for the motion to set aside.
First, the origin al counse

l expla ined his understanding of Gordon’s claims that he had not understood the agreement. Essentially, Gordon had become concerned that the pr ovision regarding Shaub’s repairs to the satisfaction of Metro Codes Administration could, or would, be interpreted by that agency as a broad license to r equi re repairs beyond the roof or repa irs exceeding the minimums establish

ed by build

ing codes . Later i n a discus sion between all counsel and the c ourt, Ms. Glenn’s counsel interpreted the Agreed Order a s requiring that Shaub Construction Company4 Th e trial co urt rec ord doe s not c onta in eit her an order al lowing Gordon’s originalcounsel t o withdraw as

counsel for Gordon, or renewed motions from Gordon’s new counsel to se t asi de the order or gain approval by t he tri al court to s erve as counselof re cord for Gordon.
-4- would make the necessary repairs to the roof and rafters in a manner to comply with codes an d receive approval from the Department of Codes Administration. The court foundit was clear that the parties had agreed that Shaub woul d do the work “in a manner that was acce ptable to Metro Codes.” The cour

t continue d, “this do es not reflect tha t Metro Cod

es is going

to determine how the work will be done.”

The court also questioned the withdrawing attorney rega rding the negotiations and the agreem ent. The attor

ney seek ing to undertake representation of Gordon argued that contempt was notappropr

iate bec ause

the Agre ed Orde

r was not f

inal bec ause

of his filing the motion to set aside. He asserted he had been informed on October 7 by the court’s clerk that the Agreed Orde r had not yet been signedby the trial court and had instructed the clerk to hold the Agreed Order because he
was filing a motion to set asid e; that mot

ion was fi led within

three days of the filing of the Agreed Order. He argued that court rules a llow three days to object to an order, and the trial court replied that the r ule did not

apply to a

greed or ders.

The court allowed

Gordon’ s new cou

nsel to ar gue but re fused to e ntertain his motion to set aside the Agreed

Order because he was not counsel of record. The court stated

that the order on the show cause mo tion would b e sent to original counsel, after which substitution of counsel might be appropr iateand would be c onsi dered. 4 Various filings were made in the next few months by Gordon’s new counsel, but the motion to set aside was never re- filed or set for hearing. Approxima

tely eight mo nths a fter entry of the Agreed Order , Glenn obtained an order of garnishment

against Gordon in the amount of $10,667, which represented the $10,000 payment, plus interest , and the order was served upon Gordon’s bank. Additional amounts wer e garnished from Gordon’s bank account for clerk’s fee s , etc., totaling $11,455. After execution, Gordon filed a “Motion to Quash Execution Alternatively to Stay Execution.”

The trial court held a hearing on Gordon’s motion to quash. Gordon’s counsel argued that the October 4 Agreed Order wa s notfinal because the defendant had withdra wn its consent prior

to the entry of the order. He claimed that, beca use no final ord er had been ent ered, execution was improper.

The basis for this argument was twofold and mirrored the argumen ts made earlier at the hearing on the motion to show cause. First, counsel appeared to ar gue that the Agreed Order had notactually been approved by t he court a nd entered on October 4, the date ref lected on the order itself. For this remarkable assertion, counsel asserted he had be en told by court andclerk

personnel5 Counsel for Gordon als o i nsis ted t hat a n evide nti ary hear ing would be requi red t o dete rmine whet her the Agreed Order was approved by t he court and ent ered bef

ore t he fi li ng of t he motion to set aside. He indicat ed the tr ial judge would necessari ly be a witnes s at such hear ing. T he trial c our t corre ctly dis misse d that proposi ti on by expla ini ng that the r ecord r efl ecte d the da te of entr y. -5- on October

7 that the

Agreed Order h ad not yet

been signed by th e co urt or entered. 5 Thus, he argued, by filing its motion to set aside, Gordo n ha d withdrawn its consent prior to entry of the order. Second, Gordon argued that the Agreed Orde r could not have been entered for three days after its submissio n to the court, bec ause of a local rule of cou

rt.
The trial court held that the rule referred to did not apply to agreed orders submitted with the signatures of counsel for all parties. The court further e xplained the procedure applicable to filing and approval of orders. Proposed orders are submitted to the clerk, at which time they are stamped “Received.” The orders are then taken to the appropriate judge. If an order is signed by the judge, it is then filed in the clerk’s office and stamped “Filed” with the date and time. Although Gordon argued this procedure was in some manner defective, we

agree with the trial court that the procedure complies with the “filed for entry” procedure r eferenced in Tenn. R. Civ. P. 58.

The trial court denied Gordon’s motion to quash or stay execution from the bench, stating:

The court finds that on October the 4th at 10:50 a.m . there w as an agreed order of Compromise, Settlemen

t and Dis missa l that was entered. This matter was set for trial on October 4th and was to have s tarted a t 9 :00 a.m. However, due to the representations made by the attorneys and this order bei ng give n to the Court that morning, the Court signed it and no trial was held. The order required that the defendant repair the plaintiff’s [Glenn’s] home in a manner accept a ble to the Department

of Codes Administration. That he pay, directly to the client, the sum of $10,000, that he would endorse over to her two checks....And upon entry of the order, eachof them wa s going toreleas e any an d all claims that they had against the other by virtue of the repairs that had happened pre viously. This court retained jurisdiction to enforcethe terms of the settlement. As a consequence of that order, an execution
was run on July the 12th, 200 0, in which $11,455 was received by the Clerk and Master and pres ently is being held. It is submitted that the Court should quash that execution and stay it. It appears that it has already been executed and, therefore, the Courtwould con sider thisas a motion to stay and r

elease the funds as opposed to a quashing of the exec ution, and th e Court de clines to d

o that. Thi s is a matte

r in which a final ju dgment we nt down a l ong time a

go. Ther e was no t

imely mot ion pursuant to Rule 60. It is a final order, and it has now been executed upon, and it appears to be satisfied as far as the $10,000. Although a number of procedura l issue s have be en raise d by the pa rties and by the cou

rse of this action below, we believe the determinative issue is the status of the Agreed Order.-6-

The law is well settled that “a valid consent judgment cannot be entered by a court when

one party withdraws his consen t and this fact is communicated to the court prior to the entry of judgment.” Harbour v . Brown , 732 S.W.2 d 598, 599 (Tenn. 198 7); see also Environmental Abateme nt, Inc. v. Astrum , 27 S.W.3d 530, 535 ( Tenn. Ct. A

pp. 2000) . While a

comp romise a nd settlement

agreem ent is a contract between the parties to litigation and may be enforceable accor

ding to contract principles, a court “may not enter judgment based onthe compromise agreement, when it has notice that

one of the parties is no longer consenting to the agreement for w hatever reason.” Harbour , 732 S.W.2d at 599-600. This basic statement of the law forms the foundation of Gordon’s argumen t. By filing its mo tion to set a side the A greed Order, G ordon ass erts it withdrew or revoked its conse nt to the a greed se ttlement.

The record

reflec ts that the Agreed Order, signed by counsel for both parties, was submitted on October 4 and that it was filed, a fter sign ature by

the trial court, a t 10:50 a.m . on the sa

me day, October 4. Gordon filed its motion to set aside, essentially a notice of withdrawal of its consent, on October 7. Thus, the record clearly re flects that Gordon did not atte

mpt to withd

raw or r evoke its consent prior to entry of the Agreed Order. Consequently, the holding of Harb our quoted a bove does not a

pply to Gor

don’s att empted bu

t untimely withdrawa

l.

Gordon first attempts to a voi d these consequences by asserting that, under a loca l rule of court, the Agree d Order

could not h ave bee

n entere d prior to

October 7 becau se it was r

equired to be held f or three days. Tha

t rule pro vides:

Orders containing only the signature of the attorney preparing the order will not be entered immediately but wi ll be held by the clerk for three days. Whe n opposing counsel receives a copy of a proposed order, h e or she s hall notify the Calendar Clerk of the assig ned cour

t it there is any objection tothe or der. If the Calendar Clerk receives no objection within the three-day period, the order will be submitted to the judge. When there is a disagreement as to the terms of the or der, eac h par ty will submit a proposed order for the court’s consideration. Davidson County Courts Local Rule 33.02. By its own terms, the rule applies only to those proposed orders prepared and submitted by only one attorney. The three days give s opposing c ounsel the opportuni

ty to objec t to the proposed order or submit a different order for signature by the c ourt. Obviously, neither the rule nor the goal it further s is applic able to a n agree d order o f settlem

ent signe d by couns el for bo th or all th e partie s. Therefore, Rule 33.02 of

the Rules of the Davidson County Courts does not affect the validity of the entry of the Agreed Order her ein.6 Counsel fil ed the affi davit only a f ew minutes before the he ari ng, but argued t he fact s st ated ther ein.
-7- Gordon’s new counsel also filed an affida vit 6 in which he alleged he contacted the clerk’ s office on the mor

ning of Oc tober 7 a

nd was told

the Agreed Order had not been signed by the tria l court or en t ered. He further alleges that he then ta lked to the trial court’s clerk who gave him the
sameinformation. He further alleged that in both conversations he notified the clerks of Gordon’s opposition to entry of the Agreed Order and his intention to immedia

tely file a motion to

set aside “the proposed agreed order.” Regardle ss of what th

e attorn ey may or

may not ha

ve been told, the r

ecord r eflectsentry of the Agreed Order

on October 4. The order, containing the signatures of the judge and counsel for all parties wa s effective on ent ry. See Tenn. R. Ci v. P. 58. The affid avit of c ounsel ca lls into question the date of entry of the Agreed Order. His affi davit, in a nd of itself, is not enough to cause this Court to impeach the record. Thus, we conclude Gordon did not withdraw its consent to the Agreed Order prior to its entry.

As a general rule, execution may be had upon a judgment anytime after thirty days from its entry, unless execution is stayed. Tenn. R. Civ. P. 62.01. At the hearing on the mot ion to stay execution, Gordon a sserted executi on was una

vailable because the Agre ed Orde

r was never fina

l, for the rea sons discu ssed abov e. On app eal, Gor don makesthe same

arguments, asserting that “the proof clearly shows the defendant withdrew its consent prior to the trial court’s signing the disputed consent order.” Gordon has asserted no other basis for the stay of execution or any other basis for setting aside the Agreed Order.

We have already disposed of these arguments, finding that the record reflec ts no withdrawal of consent prior to entry of the Agreed Order . The Agreed Order was validly enter ed on October 4, and there is no claim

that the c ourt would

have had any reason to doubt Gordon’s agree ment at that time. We affirm the trial court’s denial of stay of e xecution and reman d the case for any further proceedings consistent

with this opinion which may be nece ssary. Co sts of this a ppeal ar e taxed t o the appellant, Gordon Construction, Inc.

___________________________________ PATRICIA J. COTTRELL, JUDGE