                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                            December 7, 2004 Session

          DAVID BRUCE MYERS v. TERI LYNNE BROWN MYERS

                  Direct Appeal from the Circuit Court for Greene County
                   No. 03CV924       Hon. Ben K. Wexler, Circuit Judge



                  No. E2004-01362-COA-R3-CV - FILED APRIL 22, 2005



The Trial Court enforced a mediated Settlement Agreement, reduced to writing and signed by the
parties, over the wife’s objection. On appeal, we affirm.


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


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which SHARON G. LEE, J.,
and WILLIAM H. INMAN , Sr., J., joined.

Douglas R. Beier, Morristown, Tennessee, for appellant.

Dennis Terry Stapleton, Morristown, Tennessee, for appellee.



                                            OPINION


                This action commenced when the husband filed a complaint against the wife for
divorce. During the pendency of the action and on March 22, 2004, the husband filed a Motion to
Enforce Mediated Settlement, asserting that the parties had reached an agreement during a six hour
mediation session on March 9, which was memorialized by a five page written document drafted by
the mediator and signed by the parties and their attorneys. The husband averred that his counsel was
to then draft the Marital Dissolution Agreement, but before it was completed the wife’s attorney
stated that the wife had changed her mind. The signed Mediation Agreement was attached as an
Exhibit.

               The Trial Court conducted a hearing on the Motion on March 29, 2004, and heard
argument from counsel, and the wife’s testimony. She testified that she was a 34-year-old teacher,
that the parties had two children, and testified as to the parties’ income and marital properties and
values. She testified that in the mediation they agreed that she would get the house and some land
around it, but she felt she was only getting a value of around $200,000.00 and he would be getting
land valued at $500-600,000.00. She further testified that after the mediation husband came and
attempted to take some antiques that he was not supposed to have, and that the husband refused to
give her half of the tax refund as he had agreed to do.

                 Finally, she concluded that she felt the agreement was unfair, and that the husband
had misrepresented her interest in their property, and she was of the opinion that the husband would
not uphold his end of the agreement. On cross-examination, the wife admitted that she and her
attorney had signed the document, along with her husband and his attorney, and that she had known
about all the property in the five months the divorce action was pending before mediation. She
testified that she was reluctant to sign the agreement, but decided the following day that it was unfair
and that the mediation had been tiring and she felt pressured.

               The Trial Court then ruled that the parties mediated and reached an agreement, which
was written and signed by the parties, and that in the absence of fraud or mistake the agreement was
conclusive. The Trial Court held that while the wife complained of the value of certain real property,
her evidence was equivocal. The Court found there was no fraud or mistake by the mediator, and
that the wife would have received the family home free of any debt. The Court concluded that the
mediation agreement should be enforced. Following the entry of a Final Decree, the wife appealed.

               The issue on appeal is whether the Trial Court erred in enforcing the mediated
settlement agreement?

                 Whether the mediated agreement is enforceable is a question of law, and our review
of this issue is de novo with no presumption of correctness. Union Carbide Corp. v. Huddleston,
854 S.W.2d 87 (Tenn. 1993).

                The wife argues that it was improper for the Trial Court to enforce and adopt the
parties’ mediated agreement settling their property issues because she had withdrawn her consent
prior to the hearing before the Trial Court.

                The record establishes that the parties entered into mediation (accompanied by their
attorneys) and that at the end of the mediation session, an agreement was reached which was put in
writing, albeit somewhat informally, and signed by the parties and their attorneys. The wife then
withdrew her consent, explaining to the Court that she found out the parties’ property was worth
more than she thought.

               The wife insists that this issue is governed by the Supreme Court’s decision 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


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trial court. In Harbour, the parties reached a settlement agreement on the day of trial and announced
to the court that they had such an agreement, and that they would submit an order of compromise
and dismissal. Id. at 599. They did not, however, announce the terms of settlement with the court
or place the agreement in the record at that time. Thereafter, the trial court was made aware that one
party had withdrawn its consent, but the trial court entered an order dismissing the case with
prejudice. Id.

               The Supreme Court held this to be error, stating that:

               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 rendered and promulgated as a judgment.

Harbour v. Brown, 732 S.W.2d 598, 599 (Tenn. 1987) (quoting 49 C.J.S. Judgments §174(b)). The
Court further explained that the rationale behind 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”, and until entered by the court, either party could repudiate the agreement
because of “an actual or supposed defense to the agreement.” Id. at 599-600.

                The Harbor Court reversed the trial court’s judgment and remanded the case for
hearing. The parties had apparently entered into a written contract on the day of settlement, and
upon remand the chancellor found the contract to be enforceable and awarded damages for the
breach. Harbour v. Brown, 1989 WL 22712 (Tenn. Ct. App. March 17, 1989). This Court affirmed
the ruling. Id.

               The final result was in accord with the Supreme Court’s opinion in Harbor, i.e.:

               This is not to say that the compromise agreement may not be a binding contract,
               subject to being enforced as other contracts, but only that the court may not enter
               judgment based on the compromise agreement, when it has notice that one of the
               parties is no longer consenting to the agreement for whatever reason.

Harbour v. Brown, 732 S.W.2d 598 at 600 (Tenn. 1987). Cf, Environmental Abatement, Inc. v.
Astrum R.E. Corp., 27 S.W.3d 530 (Tenn. Ct. App. 2000). (The parties had attended a mediation,
and had come to an agreement, but it had not been reduced to writing and signed by the parties. One
party withdrew consent to the agreement the next morning, and this Court held the agreement was
not enforceable).

               However, the Supreme Court recently reiterated that written and signed mediation
agreements must also be “analyzed under contract law”, as was recognized both in Harbour and
Environmental. Ledbetter v. Ledbetter, 2005 WL 775386 (Tenn. Apr. 7, 2005). Moreover, this Court
has previously held that signed, written settlement agreements are enforceable as contracts, under
general principles of contract law. See Vaccarella v. Vaccarella, 49 S.W.3d 307 (Tenn. Ct. App.


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2001); Persada v. Persada, 2002 WL 31640564,(Tenn. Ct. App. Nov. 22, 2002); Golden v. Hood,
2000 WL 122195 (Tenn. Ct. App. Jan. 26, 2000).

                In this case, the Trial Court held a hearing to determine whether the wife could show
fraud, mistake, or duress, or any grounds upon which the Court should invalidate the parties’
contract, and found no grounds were shown. The evidence presented was that the wife had simply
changed her mind, and as with any written contract, one cannot be released from one’s obligations
thereunder simply due to a change of heart. Smithart v. John Hancock Mut. Life Ins. Co., 71 S.W.2d
1059, 1063 (Tenn. 1934). For the foregoing reasons, we affirm the Judgment of the Trial Court
which enforced the Mediation Contract between the parties.

               The cost of the appeal is assessed to Teri Lynn Brown Myers.




                                                      ______________________________
                                                      HERSCHEL PICKENS FRANKS, P.J.




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