                   IN THE SUPREME COURT OF TENNESSEE
                              AT KNOXVILLE
                                   January 5, 2005 Session

            MAYLENE E. LEDBETTER v. BRYAN K. LEDBETTER

      Interlocutory Appeal by Permission from the Court of Appeals, Eastern Section
                          Chancery Court for Anderson County
                     No. 03CH3089 William E. Lantrip, Chancellor


                      No. E2004-00239-SC-S09-CV - Filed April 7, 2005



In this interlocutory appeal, we must determine whether the trial court had the authority to enforce
a mediated marital dissolution agreement when one of the parties repudiated its terms prior to court
approval. Here, the parties, Maylene and Bryan Ledbetter, reached, through mediation, a marital
dissolution agreement pursuant to Tennessee Supreme Court Rule 31. Shortly after the mediation,
and prior to presentation for court approval, Mr. Ledbetter repudiated the agreement. Mrs. Ledbetter
then filed a motion to enforce the terms of the agreement. Following a hearing, the trial court
overruled Mrs. Ledbetter’s motion, ruling that the oral agreement reached in mediation was not
binding and enforceable against the parties. After a thorough review of the record and relevant case
law, we conclude that because Mr. Ledbetter repudiated the terms of the agreement prior to its
presentation to the court, the trial court lacked authority to enter a judgment on the agreement.
Further, because the agreement had not been reduced to writing and signed by the parties, it is not
an enforceable contract. Accordingly, we affirm the judgment of the trial court.

   Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Chancery Court Affirmed

ADOLPHO A. BIRCH , JR., J., delivered the opinion of the court, in which FRANK F. DROWOTA , III,
C.J., and E. RILEY ANDERSON , JANICE M. HOLDER , and WILLIAM M. BARKER, JJ., joined.

Johnny V. Dunaway, LaFollette, Tennessee, for the appellant, Maylene E. Ledbetter.

James M. Webster and Michael R. Kelley, Clinton, Tennessee, for the appellee, Bryan K. Ledbetter.

                                             Opinion

                                  I. Facts and Procedural History

      Maylene Ledbetter (Mrs. Ledbetter) and Bryan Ledbetter (Mr. Ledbetter) married in 1994.
The marital relationship deteriorated, and on April 14, 2003, Mrs. Ledbetter filed for divorce on the
grounds of inappropriate marital conduct and irreconcilable differences. Mr. Ledbetter responded
to the complaint and filed a cross-complaint.

       In an apparent effort to resolve various childcare and marital property issues, the parties
agreed to mediation pursuant to Tennessee Supreme Court Rule 31. Prior to the mediation, the
mediator explained to the parties that if agreement was reached, he would prepare a summary of it.
This, he stated, was a way of memorializing the agreement.

        Mediation began on October 20, 2003, and the parties reached an agreement on all matters
in controversy. Because of the late hour, the parties were not able to present the agreement to the
court for entry of judgment. Instead, the mediator audiotaped his dictation of the terms of the marital
dissolution agreement as the parties and their counsel listened. The parties and their counsel
approved the agreement as dictated.

        The Agreed Order To Mediate required the mediator to file a report with the Clerk and
Master; it required also that the attorneys file, within seventy-two hours of the mediation, an order
reflecting the agreement reached. Before the deadline, Mr. Ledbetter repudiated the agreement. On
November 14, 2003, Mrs. Ledbetter filed a Motion to Enforce Mediated Settlement. Mr. Ledbetter
responded, asserting that his consent to the mediation agreement had been based upon bad advice
given by his former attorney.

        Following a hearing, the trial court overruled Mrs. Ledbetter’s motion to enforce the
agreement. The trial court granted, however, her request for an interlocutory appeal pursuant to
Tennessee Rule of Appellate Procedure 9. The Court of Appeals denied the application for
interlocutory appeal. We granted interlocutory appeal in order to determine whether, under the
circumstances, the purported mediated marital dissolution agreement should be enforced.

                                           II. Standard of Review

        Whether the mediated marital dissolution agreement in this case is enforceable is a question
of law. Accordingly, our review is de novo with no presumption of correctness accorded to the
courts below. State ex rel. Pope v. U.S. Fire Ins. Co., 145 S.W.3d 529, 533 (Tenn. 2004).

                                                  III. Analysis

        Mrs. Ledbetter, the appellant, contends that the audiotaped summary of the parties’
agreement is binding and judicially enforceable, notwithstanding the fact that Mr. Ledbetter, the
appellee, had repudiated it before it was presented to the court. Mr. Ledbetter insists, on the other
hand, that absent consent, a marital dissolution agreement is unenforceable and that the trial judge’s
refusal to enforce the agreement was correct. Thus, we must determine whether a mediated marital
dissolution agreement that has not been reduced to a signed writing1 and that has been repudiated
by one of the parties prior to presentment to the court is enforceable.


       1
        W e note that the oral dictation of the agreement was later transcribed but was never signed by the parties.

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        We begin our analysis with the case of Harbour v. Brown for Ulrich, 732 S.W.2d 598 (Tenn.
1987). In that case, the appellant sought specific performance of an alleged real estate contract and
the enjoining of a threatened foreclosure action under an existing deed of trust. The appellant filed
a cross-complaint for judgment on the note secured by the deed of trust. On the day of trial, the
parties announced that they had reached an agreement, the terms of which were not announced to
the court. Prior to entry of judgment, the appellee repudiated the terms of the agreement. Holding
that the agreement was not enforceable, this Court stated that although the resolution of disputes by
agreement is encouraged, “a valid consent judgment can not be entered by a court when one party
withdraws his consent and this fact is communicated to the court prior to entry of the judgment.”
Id. at 599 (citing Van Donselaar v. Van Donselaar, 87 N.W.2d 311 (Iowa 1958)). The Court in
Harbour further held that “consent must exist at the very moment the court undertakes to make the
agreement the judgment of the court.” Harbour, 732 S.W.2d at 599 (quoting Burnaman v. Heaton,
240 S.W.2d 288 (Tex. 1951)). Thus, “until entered by the court, the matter being the question of an
agreement between the parties, either party may repudiate the agreement because of an actual or
supposed defense to the agreement.” Harbour, 732 S.W.2d at 600. “The reason for the rule is that
a consent judgment does not represent the reasoned decision of the court but is merely the agreement
of the parties, made a matter of record by the court.” Id. at 599-600 (citing Van Donselaar v. Van
Donselaar, 87 N.W.2d 311 (Iowa 1958)).

         The holding in Harbour is applicable to agreements reached as the result of mediation. In
Environmental Abatement, Inc. v. Astrum R.E. Corp., 27 S.W.3d 530 (Tenn. Ct. App. 2000), the
Court of Appeals considered the enforceability of a consent order that the trial court had entered.
This order purported to reflect an oral agreement that the parties had reached during a Rule 31
mediation session. Id. at 533. Applying the principles in Harbour, the intermediate court reversed
the trial court, holding that the agreement was not enforceable because it had not been reduced to
writing or stipulated in open court. Id. at 541-42.

        Citing to language in Harbour, the Court of Appeals in Environmental Abatement noted an
exception to the general rule that consent must exist at the time of judgment. That exception would
allow a court to enter a consent judgment “which merely documents an earlier agreement even where
consent does not exist at the time of entry of the written order.” Id. at 538-39. The exception
provides further that when the terms of an agreement are announced or stipulated in open court, a
judge may later enter a consent judgment based on that agreement regardless of a party’s repudiation
between the time of the announcement and the judgment. Id. at 539. This exception is rooted in the
language in Harbour, which states that “‘[t]he 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 rendered and promulgated as a judgment.’” Harbour, 732 S.W.2d at 599
(quoting 49 C.J.S. Judgments § 174(b)).

         Considering the above-described exception, we must determine whether the oral agreement
in this case received the “sanction of the court” prior to Mr. Ledbetter’s repudiation. Mrs. Ledbetter
contends that the recording of the terms of the agreement in the mediation session was the equivalent
of an announcement in open court. Tennessee Supreme Court Rule 31, section 2(f) (2004), defines


                                                 -3-
mediation as “an informal process in which a neutral person conducts discussions among the
disputing parties designed to enable them to reach a mutually acceptable agreement among
themselves on all or any part of the issues in dispute.” (Emphasis added). A mediator has “no
authority to dispose of a case or to enter an order disposing of a case.” Envtl. Abatement, 27 S.W.3d
at 540. In addition, Tennessee Supreme Court Rule 31, section 2(c) (2004), defines “court” as “the
Tennessee Supreme Court, the Tennessee Court of Appeals, Circuit, Chancery, Law & Equity and
Probate Courts and, when exercising the jurisdiction of courts of record, General Sessions Courts
and Juvenile Courts.” Thus, we conclude that a Rule 31 mediation session is not a court proceeding
such as would satisfy the requirement that the agreement be made in open court.

        In this case, it is clear that Mr. Ledbetter repudiated the agreement prior to any judicial
consideration. Because “‘consent must exist at the very moment the court undertakes to make the
agreement the judgment of the court,’” the trial court properly held that it could not enter a judgment
on the agreement. Harbour, 732 S.W.2d at 599 (quoting Burnaman v. Heaton, 240 S.W.2d 288 (Tex.
1951)). Further, because the terms of the oral agreement were not made or announced in open court
and on the record, the court neither considered nor sanctioned the agreement. See Harbour, 732
S.W.2d at 599; Envtl. Abatement, 27 S.W.3d at 538.

        Finally, as noted in Harbour, an agreement by the parties may also be analyzed under contract
law. See Harbour, 732 S.W.2d at 600. Until approved by the courts, a mediated agreement is
essentially contractual in nature. See Envtl. Abatement, 27 S.W.3d at 539 (stating that “[a]
compromise and settlement agreement is merely a contract between parties to litigation and, as such,
issues of enforceability of a settlement agreement are governed by contract law.”) Therefore, the
rules of contract law would apply.

        Generally, agreements need not be in writing to be enforceable.2 Bill Walker & Assocs., Inc.
v. Parrish, 770 S.W.2d 764, 771 (Tenn. Ct. App. 1989) (citing Rodgers v. S. Newspapers, Inc., 379
S.W.2d 797, 800 (1964)). Thus, we must determine whether the law precludes enforcement of oral
mediation agreements. We first look to the rule dealing with mediation, Tennessee Supreme Court
Rule 31. Section 7 of that rule provides that evidence of statements made in the course of mediation
are inadmissible. Tenn. R. Sup. Ct. 31(7) (2004). Further, section 10(d) prohibits the mediator from
disclosing information obtained during the mediation without the consent of the parties. Tenn. R.
Sup. Ct. 31(10)(d) (2004). Based on the language in Rule 31, it would appear that a mediator may
not present evidence of an oral mediation agreement. As additional support, we look to Tennessee
Rule of Evidence 408, which provides that evidence of conduct or statements made in compromised
negotiations is not admissible to prove liability for or in validity of a civil claim. Based on those
rules, we conclude that the agreement involved here, made during the mediation and not reduced to
a signed writing, is not an enforceable contract. Accordingly, we affirm the judgment of the trial
court.


         2
          W e note from the record that the proposed marital dissolution agreement contemplated transfer of title to real
property, possibly implicating the application of the Statute of Frauds. See Tenn. Code. Ann. § 29-2-101(4) (2000).
However, because neither party has raised the issue nor briefed it, we pretermit it.

                                                          -4-
        The costs of mediation are taxed to the appellee, Bryan Ledbetter and his sureties, and the
costs of appeal are taxed to the appellant, Maylene Ledbetter and her sureties, for which execution
may issue if necessary.



                                             ___________________________________
                                             ADOLPHO A. BIRCH, JR., JUSTICE




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