                                              FILED
                                               Dec. 15, 1995

                                              Cecil Crowson, Jr.
                                               Appellate Court Clerk
SHELTER INSURANCE COMPANIES,            )
                                        )
      Plaintiff/Appellee,               )
                                        )    Maury Chancery
                                        )    No. 91-037/3487
VS.                                     )
                                        )    Appeal No.
                                        )    01-A-01-9507-CH-00280
SHERRIE MARIE HANN,                     )
                                        )
      Defendant/Appellant.              )


                    IN THE COURT OF APPEALS OF TENNESSEE

                            MIDDLE SECTION AT NASHVILLE


          APPEAL FROM THE CHANCERY COURT OF MAURY COUNTY

                              AT COLUMBIA, TENNESSEE


                       HONORABLE WILLIAM B. CAIN, JUDGE


J. Russell Parkes
HARDIN & PARKES
102 West Seventh Street
Post Office Box 692
Columbia, Tennessee 38402-0692
ATTORNEY FOR PLAINTIFF/APPELLEE


JOE BEDNARZ
Suite 1400, Parkway Towers
404 James Robertson Parkway
Nashville, Tennessee 37219
ATTORNEY FOR DEFENDANT/APPELLANT


AFFIRMED AND REMANDED

                                   HENRY F. TODD
                                   PRESIDING JUDGE, MIDDLE SECTION


CONCUR:
SAMUEL L. LEWIS, JUDGE
WILLIAM C. KOCH, JR., JUDGE
SHELTER INSURANCE COMPANIES,                  )
                                              )
       Plaintiff/Appellee,                    )
                                              )       Maury Chancery
                                              )       No. 91-037/3487
VS.                                           )
                                              )       Appeal No.
                                              )       01-A-01-9507-CH-00280
SHERRIE MARIE HANN,                           )
                                              )
       Defendant/Appellant.                   )


                                         OPINION


       The defendant, Sherrie Marie Hann, has appealed from a non-jury judgment in favor

of the plaintiff, Shelter Insurance Companies for $5,000 paid to defendant by mistake. As

indicated in the caption, this was a proceeding in Chancery Court.



       There is no transcript of evidence. However, the record contains a brief statement of

the evidence, letters and affidavits of counsel and a record of another related case in Circuit

Court from which the following facts appear:

       On or about November 2, 1987, Mrs. Hann and her children were in her vehicle

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 health 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 for $5,000.00, requesting

that an enclosed release be executed. The check was retained and later cashed, but the release

was not executed or returned to Shelter. Thereafter, 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 process and filed

an answer. Counsel for Mrs. Hann and Shelter undertook to negotiate a settlement.




                                               -2-
During the negotiations, the following correspondence took place:

On November 21, 1988, Shelter's counsel wrote Ms. Hann's counsel as follows:

        I represent Shelter Insurance Companies and have been
       forwarded suit papers in connection with the above-referenced
       matter. I have entered an appearance with the Court 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 further.

       My file does indicate that a tentative settlement was reached
       with your client and that several weeks ago a draft in the
       amount of $5,000 was forwarded to her, along with a trust
       receipt and subrogation agreement. 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 hearing from you further concerning the
       foregoing.


On January 12, 1989, Ms. Hann's counsel responded as follows:

        I'm sorry that it has taken me so long to respond to your 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 full and final release. I am certainly
       interested in resolving this matter and have been authorized to
       settle this matter for $10,000.00. If there is any possibility of
       settlement, please advise.


On May 15, 1989, Shelter's counsel wrote Ms. Hann's counsel as follows:

       I have authority to settle this case for $8,000 in addition to the
       substantial advances heretofore made to or on behalf of your
       client, Mrs. Hann. If we can settle on this basis, I would like to
       go ahead and have a judgment entered in order to protect our
       subrogation interest against the defendant, although I anticipate
       it is essentially uncollectible. I would appreciate it if you
       would touch base with your client on this and give me a call to
       see if we can go ahead and conclude the matter.

       In connection with the foregoing and assuming we can reach
       settlement, I do need for you to return to me the check my
       client has previously tendered in settlement to your client in the
       amount of $5,000. In turn, we would provide the revised
       settlement draft, a final release, and Trust and Subrogation
       Agreement.

       I look forward to hearing from you.




                                      -3-
On May 24, 1989, Ms. Hann's counsel responded as follows:

       My client has instructed me to reject your offer of $8,000.00
       stated in your letter of May 15, 1989. In light of some recent
       problems she is having and other changes in her personal life,
       she is completely reevaluating her position in this case.

       In attempting to advise her properly, please send me a copy of
       all the medical records and letters which you have received
       concerning her condition, pursuant to our previous
       authorization.

       As soon as I have had the opportunity to review all of the
       medical records, I will once again make an effort to resolve this
       matter.


On March 13, 1990, Shelter's counsel wrote Ms. Hann's counsel as follows:

       My apologies for not contacting you earlier concerning the
       above-referenced matter. As you are aware, Ms. Hann has
       essentially minimum limits for uninsured motorist coverage,
       i.e., $25,000/$50,000. We have heretofore advanced payments
       against this coverage for medical expenses in the amount of
       $9,211.74 and I have otherwise extended an offer 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 subrogation
       claim against the uninsured defendant is of significant value,
       there is little incentive for us to materially increase our offer.

       Another problem that I have with this case involves the
       inconsistency between Dr. Hunter's testimony and Ms. Hann's
       testimony with respect to residual problems. Be that as it may,
       I would like to go ahead and try to conclude the case and for
       this purpose I have been authorized to increase this offer to
       $11,500. This is, of course, in addition to the medical
       payments previously advanced and would in effect be the
       equivalent of a settlement of $20,711.74. I would appreciate
       your advice as to whether this is acceptable so we can go ahead
       and conclude the matter.


On August 21, 1990, Shelter's counsel wrote Ms. Hann's counsel as follows:

       This will confirm your conversations with myself, as well as Ed
       Ewing of this office, regarding settlement of the above matter.
       To simply confirm same, I have requested settlement drafts
       payable to Ms. Hann and yourself in the amount 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 behalf, thus generating a total
       settlement in her case of $23,911.74.




                                      -4-
On September 21, 1990, the Circuit Court entered a judgment reading as follows:

         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 defend within the
       time prescribed by law, and it further appearing that there is no
       just reason to delay entry of judgment against this defendant, in
       accordance with Rule 54.02, Tennessee Rules 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, Bobby Roy Johnson,
       and upon the proof introduced in the cause, the plaintiffs are
       awarded judgment against the defendant, Bobby Roy Johnson,
       as follows:

        (1) On behalf of Sherrie Marie Hann, judgment is entered 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, judgment is entered in the
       amount of $1,000.00.

        (3) On behalf of Jeremy Wood, by next friend and natural
       guardian, Sherrie Marie Hann, judgment 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
       execution may issue, if necessary.


The judgment was approved for entry by counsel for Shelter.



On October 17, 1990, the Circuit Court entered the following order:

        This cause came on to be heard upon the motion of the served
       but unnamed defendant, Shelter Insurance Companies,
       uninsured motorist carrier for the plaintiff, Sherrie Marie Hann,
       the Court's examination of said motion, statements of counsel,
       and it appearing that said motion should be granted, it is
       accordingly

        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 orders of the Court in this cause.




                                      -5-
       The order was approved for entry by counsel for Shelter. The motion mentioned 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 File an Amended Answer and Counterclaim." The motion

alleged that in late August or early September, "a settlement was reached" as to Ms. Hann's

personal injuries providing for payment to her of $23,211.74 for Hann consisting of the

$9,211.74 previously paid plus additional cash of $14,000. The motion then alleged the

cashing of the $5,000 check and that the ignorance of counsel for both parties of the cashing

of the check constituted a mistake of fact justifying 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 cleared on September 13, 1988.



       The motion concludes:

                 Wherefore, movant prays this motion be granted, that the
               settlement herein be set aside, that movant be allowed to amend
               its answer to assert the defense of release and accord and
               satisfaction, and that movant be allowed to file a counter-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 carrier
               for defendant, Bobby Roy Johnson, Shelter Insurance
               Company, moved this Court to set aside settlement and for
               leave of Court to file an amended answer and counter-claim in
               this action. After considering the arguments of the attorneys
               for the respective parties and the briefs submitted in this case, it
               was determined that defendant's motion was not well-taken
               and, therefore, denied.


       There is no record of any further proceedings in the Circuit Court case which appears

to remain undisposed of.




                                               -6-
       On January 22, 1991, Shelter filed the present suit in Chancery Court naming Ms.

Hann as defendant, alleging the facts related above and praying:

                2. That the Court find that a mutual mistake of fact exists
               concerning plaintiff's payment of $5,000.00 to defendant and
               order that defendant reimburse plaintiff in said amount.

                3. That plaintiff recover of defendant all interest on said sum
               from such time as such mutual mistake of fact was discovered
               by counsel for the respective parties in the underlying litigation.

                4. That plaintiff be awarded its attorney's fees in connection
               with this action, plus its costs and litigation taxes occasioned
               hereby.

                5. That plaintiff be awarded such other, further and general
               relief to which it might be entitled.


       Ms. Hann answered denying liability for a refund 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 Insurance Companies' motion to set aside settlement,
               said motion being denied, with such order being in full force
               and effect, thus preventing plaintiff from bringing this claim.


       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 plaintiff has not with due diligence prosecuted this civil
               action;

                It is, therefore, ordered that this civil action be, and is hereby,
               dismissed, without prejudice.

                 All cost and litigation taxes are adjudged against the plaintiff,
               and if not paid within thirty (30) days from the entry of this
               order, execution may issue therefore. If all of said costs and
               litigation taxes have not been paid within sixty (60) days after
               the first issuance of execution against the plaintiff the clerk
               may issue an execution against the surety or sureties on the
               plaintiff's cost bond.


       On June 23, 1993, Shelter filed in Chancery Court the following 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

                                               -7-
               this case was earlier dismissed for lack of prosecution as a
               result of excusable neglect which Rule 60.02 is aimed at
               remedying.


       On November 24, 1993, the Chancery Court entered the following order:

                This cause came on to be heard before the Honorable Jim T.
               Hamilton, Judge, holding the Chancery Court for Maury
               County, Tennessee, on the 12th day of November, 1993, upon
               the plaintiff's motion for reinstatement, defendant's response,
               the respective memorandums of the parties, argument of
               counsel, from all of which the Court finds that plaintiff's
               motion is well taken and should be granted, and it is
               accordingly,

                Ordered that plaintiff's motion to reinstate be, and the same is
               hereby granted, and this cause shall be placed on the Court's
               active trial docket.

                All other issues are reserved.


The record on appeal does not contain "Defendant's Response, the Respective Memorandums

of the Parties (or) Argument of Counsel."



       On August 26, 1994, the Chancery Court entered the following judgment:

                This cause came on to be heard before 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 all of which the Court finds
               that the allegations of the plaintiff are sustained by the record
               on the grounds of both mutual mistake and unjust enrichment,
               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 accordance with the foregoing, it is
               accordingly;

                 Ordered, adjudged and decreed that the plaintiff, Shelter
               Insurance Companies shall have and recover of the defendant,
               Sherrie Marie Hann, judgment in the amount of Five Thousand
               Dollars ($5,000.00) and judgment plus all costs in the cause is
               hereby entered against the defendant, Sherrie Marie Hann, for
               which execution may issue if necessary.


       Mrs. Hann has appealed from the foregoing judgment and has presented four issues

for review, of which the fourth is as follows:




                                                 -8-
               IV.    Whether the trial court erred in setting aside an order of
               dismissal based upon the ground of excusable neglect.


        Defendant's argument to this Court asserts that plaintiff offered no justifiable reason

for relief under Rule 60.02, T.R.C.P., citing 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. City

of Murfreesboro, Tenn. 1985, 686 S.W.2d 68. Each of the cited opinions states the facts

relied upon for relief. Two denied relief, and one affirmed the granting of relief. Without a

record of the facts and circumstances appearing to the Trial Court from the defendant's

response, the memoranda of the parties and the statements of counsel which, according to the

order, were presented to the Trial Court, this Court is not in position to review or reverse the

discretionary judgment of the Trial Judge.



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

by sufficient facts. Such a showing can be made only by a complete record of what was

shown to the Trial Court. Such complete record is not before this Court.



        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 reasonable in the present

case.



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

dismissal.




        Defendant's third issue is:




                                                -9-
                 III.    Whether the trial court erred in considering as a cause
                 of action an issue that had been previously determined by the
                 Circuit Court for Maury County.


        The order of the Circuit Court overruling Shelter's motion to set aside settlement 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 cites no part of the record evidencing such a letter. It is inconceivable

that an attorney admitted to practice in the Courts of this State would expect an appellate

court to accord any cognizance to any fact not evidenced by the record certified to this Court

by the Trial Court. Such misconception of appellate practice calls for a thorough restudy of

the Rules of Appellate Procedure and careful guidance by more knowledgeable co-counsel.



        In consideration 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 Trial Court.

Said letter states:

                        Re: Angela and Jeremy Wood b/n/f
                            Sherrie Marie Hann, et al
                                        v.
                            Bobby Roy Johnson
                            Civil Action No. 3487

                 Dear Mr. Scott:

                 After considering the arguments of the attorneys, the briefs
                 submitted, and the entire file in this case, I have 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 have a cause of action against Ms. Sherrie Marie
                 Hann to recover the $5,000 that was paid through mistake or
                 inadvertence, but I do not feel that the "Motion to Set Aside"
                 would be the proper procedure to accomplish this.



                                                -10-
               I am mailing a copy of this letter to Mr. Hardin and Mr.
               Davidson with the request that Mr. Davidson prepare an order
               in accordance with this letter.


The letter is marked filed by the Trial Clerk on December 8, 1990, ten days 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 rather than by formal 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 Clerk will be considered as a formal memorandum. It is unfortunate that counsel did

not prepare an order "in accordance with this letter," and it is equally unfortunate that the

Circuit Judge saw fit to sign an order that was not "in conformity with this letter."



       The motion of Shelter "To Set Aside Settlement" presented to the Circuit Court 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.2d 561 (1935); Reid v. House, 21 Tenn. (6 Humph.) 576 (1841);

Helm v. Wright, 21 Tenn. (2 Humph) 72 (1840). In the absence of objection, the Circuit

Court might have ruled upon the application for relief or transferred the cause to the

Chancery Court (TCA §16-10-111). No reason occurs to this Court why a Circuit Judge

would not have the authority to sua sponte decline to exercise permissive equity jurisdiction

and dismiss an equity suit brought before 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. Wilson v. Ricciardi,

Tenn. App. 1989, 778 S.W.2d 450.

                                              -11-
       In the light of the letter/memorandum 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 issue challenges the finding of mutual mistake of fact in respect to

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 Circuit Court judgment pursuant to the settlement. The check was cleared and

charged to Shelter's bank account long before the entry of said order, hence Shelter had

knowledge of the cashing through its records prior to the entry of the judgment.



       Thus, it is obvious that the real parties at interest had timely notice of the cashing of

the check.



       The affidavit of Mrs. Hann's counsel, states:

                       . . . 2. As I recall, the settlement discussions during the
               last week were primarily between myself 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 negotiated and I so notified the
               insurance adjuster in a letter dated October 10, 1988. (See
               attached Exhibit "A"). I also notified Thomas W. Hardin by
               letter dated January 12, 1989, that my client had negotiated the
               check. (See Exhibit "B" letters dated November 21, 1988, and
               January 12, 1989.)
                       4. During the settlement discussions I was relying on
               the figures being provided to me by the attorney for Shelter
               Insurance Companies. I was told that they had paid
               approximately $9,211.74.
                       5. I did not take the time to review my file and make an
               accounting. I relied on the figures I was being provided with
               and in all my discussions with my client I was relaying
               settlement information above and beyond amounts already
               paid.            ....
                       7. It was my position as attorney for the plaintiffs that
               Sherrie Hann was entitled to recover $25,000.00 for bodily
               injuries and medical bills under the med-pay provision of her

                                              -12-
               policy. It was never agreed that the maximum amount she
               could recover for her injuries alone was $25,000.00. I am still
               of the opinion that the contract allows for bodily injury
               payments and med-pay both. There was a difference of opinion
               on both sides as to that issue.
                       8. It was never my intention to settle the three (3)
               plaintiffs' cases piecemeal. My position was that it was a
               package deal for $16,000.00 with $1,000.00 each 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 cashed.


       The affidavit of Shelter's counsel states:

               . . . [T]hroughout the entire proceedings involved in this case
               and in multiple discussions between myself, Shelter Insurance
               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. Hann,
               were under the impression that said check had not been
               negotiated since a substantial part of the settlement discussions
               in this case centered around the applicable amount of Ms.
               Hann's policy limits, whether stacking of medical payments
               over and above liability payments was permissible, and at no
               time was it anticipated that the settlement to be received 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 seen that Mrs. Hann's counsel had knowledge of the cashing of the check "early

on in this case" (whenever that was) and that her counsel claims to have notified an adjuster

of the cashing on October 10, 1988. However, Ms. Hann's counsel admits that he negotiated

the settlement under the mistaken information and belief that Shelter had paid 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. Hann's counsel states that on January 12, 1989,

he notified Shelter's counsel that the $5,000 check had been cashed; whereas the affidavit of

Shelter's counsel states that during the negotiations between counsel, "it was never

                                              -13-
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 negotiated."



       This narrow difference in the affidavits of counsel represents the only issue of fact

appearing in this record. However, this issue need not be determinative of this appeal, for it

is undisputed that both counsel negotiated under the impression that Ms. Hann had received

only $9,211.74 from Shelter, when she had in fact received $14,211.74.



       Under its policy, Shelter had a possible maximum personal injury liability to Ms.

Hann of $25,000.00. Under the mistaken impression that Shelter had paid Ms. Hann 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 maximum. 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 agreed to settlement under

a mistake of fact as to the amount Ms. Hann had received, i.e., $9,211.74 instead of

$14,211.74.



       It is arguable that a mutual mistake of fact of counsel is not ground for relief 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 grounds for reform of the settlement agreement.



       Ms. Hann's first issue presents no grounds for reversal of the judgment of the

Chancery Court.



       Ms. Hann's second issue is:

               II.    Whether the doctrine of unjust enrichment is applicable
               where there was a clear, unambiguous, written agreement
               between the parties.



                                             -14-
       Ms. Hann argues that the doctrine of unjust enrichment does not apply when there is a

valid, express agreement between the parties. 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 agreement to settle Ms. Hann's personal injuries claim for $23,211.74. The affidavits

further show that both counsel were of the impression that Ms. Hann had received only

$9,211.74, whereas she had in fact received $14,211.74. In their mistaken belief as to the

amount previously paid, counsel agreed 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 payment of $14,000 were made under a mutual

mistake of fact on the part of both counsel.



       Although not expressly so delineated in Shelter's complaint, it's chancery suit against

Ms. Hann was a suit to reform the settlement agreement to conform to the intent of the

parties, i.e. that Ms. Hann receive $23,211.74 for her personal injuries.



       Although not specified in the chancery judgment, its effect was to reform the

agreement to provide a supplemental payment of $9,000.00 in order to provide the agreed

total of $23,211.74.



       Equity will correct a mistake of fact in an agreement. Cromwell v. Winchester, 39

Tenn. (2 Head) 389 (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 settlement agreement to conform to the intention of the parties,

the Trial Court then found a $5,000 overpayment and ordered refund of the same.




                                               -15-
       Where one of the parties to a settlement mistakenly pays more than the amount agreed

on, he may recover the amount of the overpayment. 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" rather 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 necessary further proceedings.



       Affirmed and Remanded.


                                              _______________________________________
                                              HENRY F. TODD
                                              PRESIDING JUDGE, MIDDLE SECTION



CONCUR:


_____________________________________
SAMUEL L. LEWIS, JUDGE


_____________________________________
WILLIAM C. KOCH, JR., JUDGE




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