                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    January 2, 2001 Session

                          STACY HARRIS v. THOMAS HALL

                    Appeal from the Circuit Court for Williamson County
                             No. I-98731 Jeffrey Bivins, Judge



                  No. M2000-00784-COA-R3-CV - Filed November 28, 2001


This case was transferred to a judge in another county for “binding mediation,” and the mediating
judge entered an order dismissing the lawsuit and enjoining plaintiff from certain actions, including
further litigation. The original trial court later denied the plaintiff’s Tenn. R. Civ. P. 60.02 motion
for relief from orders, and the plaintiff appealed. We find the trial court had no authority to order
the case to any alternative dispute resolution procedure other than one established in Tenn. R. Sup.
Ct. 31, that the mediating judge had no authority to dispose of the case and, consequently, all orders
entered by that judge are void. We reverse the trial court’s denial of Rule 60.02 relief, vacate orders
entered in the court of the mediating judge, and remand for further proceedings.

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

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.,
and WILLIAM B. CAIN , J., joined.

Stacy Harris, Pro Se, Nashville, Tennessee.

Roger T. May, Alan D. Johnson, Nashville, Tennessee, for the appellee, Thomas Hall.

                                             OPINION

       Ms. Harris had a dispute with the defendant, the factual basis of which is not apparent in the
record before us. In any event, she filed a civil warrant in Williamson County General Sessions
Court, which summoned Mr. Hall to appear and answer for “intentional interference with another’s
business, outrageous conduct, [and] intentional and negligent infliction of severe emotional distress.”
The matter was set for November 23, 1998. Apparently, the case was heard by the general sessions
court and was dismissed with prejudice. A $10,000 appeal bond was set. Ms. Harris appealed to
the Williamson County Circuit Court.
         She submitted a list of witnesses she intended to call, and in early January 1999, had each
of them summoned to appear in court on March 23, 1999. On February 3, 1999, Ms. Harris moved
to refer the matter to arbitration pursuant to Tenn. R. Sup. Ct. 31. On February 17, 1999, the Circuit
Court of Williamson County entered an agreed order transferring the case to the Third Circuit Court
of Davidson County for “binding mediation” by the judge of that court. The agreed order, signed
by Ms. Harris, stated:

        By agreement of the parties, pursuant to the filing of the Motion for Arbitration by
        the Plaintiff, Stacy Harris, this case will be submitted to binding mediation. This
        Court is informed that . . . Judge of the Third Circuit Court for Davidson County, has
        agreed to mediate this case. Venue in this case is waived by agreement of the parties
        and therefore this case may be transferred to Third Circuit Court, Davidson County.

        The mediating judge issued an order regarding preparation for the mediation, which was also
referred to in the order as a judicial settlement conference. The mediation or judicial settlement
conference was held on April 1, 1999. Subsequently, on April 5, the judge, sitting as mediator,
entered an order which stated,

        “[T]his court is of the opinion that the General Sessions Appeal in the above-styled
        case should be dismissed. The Court is further of the opinion that the plaintiff should
        have no further contact with the defendant or any of his employees, associates,
        relatives or agents and that any further litigation of this matter would not be judicially
        efficient.”

       The order dismissed the case, enjoined Ms. Harris from any contact with the above named
people, enjoined her “from pursuing further litigation involving this defendant, his family or
associates,” ordered Ms. Harris to pay costs, and transferred the matter “to the Circuit Court for
Williamson County at Franklin for enforcement of this Order.”

        Ms. Harris apparently filed a motion requesting additional findings of fact or a new trial.1
The motion is not part of the record, but the court’s order, dated August 11, 1999, denying the
motion appears there. The August order states, “This Court is further of the opinion that the previous
Order of the Court, entered April 5, 1999, is unambiguous, and clearly states that the case has been
transferred to Williamson County.”

        At some point, Ms. Harris obtained counsel. Despite the Davidson County Circuit Court’s
earlier order and statement reiterating that the case had been transferred to Williamson County, the
Davidson County court entered two additional orders which Ms. Harris’s attorneys signed. The
“Agreed Amended Order,” entered in Davidson County on September 10, 1999, contained



        1
          The record includes Defendant’s motion to reset the hearing on Ms. Harris’s motion for new trial which
indicates her motion was filed on or about April 29, 1999.

                                                      -2-
essentially the same findings and orders as the court’s initial order, but purported to document
agreement by the parties as to some of those findings.

         In relevant part, the first agreed amended order states:

         The court is further of the opinion, and the parties have agreed, as is evidenced by the
         signatures of their respective counsel, below, that the plaintiff should not have any
         further contact with the other party, either directly or through any employees,
         associates, relatives or agents, and that any further litigation of this matter would not
         be judicially efficient. In addition, the parties have agreed, as is evidenced by the
         signatures of their respective counsel, below, that each shall waive any right of
         appeal in this cause that either may have had.

         The attorneys then signed a Second Agreed Amended Order, entered in Davidson County on
October 6, 1999, which states that it was entered to correct typographical errors found in the Agreed
Amended Order. However, the “typographical error” correction involved deleting the phrase “and
the parties have agreed, as is evidenced by the signatures of their respective counsel, below” from
the first sentence of the passage quoted above. The effect was to remove the parties’ agreement from
the findings supporting the court’s order enjoining Ms. Harris from further contact with Mr. Hall.
The amendment did not, however, delete the language that the parties agreed to waive any right of
appeal from the order. Again, each of the two amended orders transferred the case to Williamson
County for enforcement.

        Ms. Harris filed a Motion for Relief from Judgments or Orders in the Circuit Court of
Williamson County on February 15, 2000, in which she objected to the Agreed Amended Orders on
several grounds. The portion of the Tenn. R. Civ. P. 60.02 motion which is relevant to this appeal2
provides:

         The Second Agreed Amended Order transferred to this Honorable Court for its
         enforcement is, in effect, a restraining order that could not be secured independently
         due to lack of grounds. Indeed, over the nearly 28 years that the Defendant has
         known the Plaintiff the Defendant has had ample opportunity to request a restraining
         order, had that been his wish, but the Defendant has never indicated the desire nor
         the justification to do so.

         Whereas the language of the Second Agreed Amended Order is overly broad and
         unfairly stigmatizes the Plaintiff, whereas the Defendant has never accused the
         Plaintiff of, nor charged the Plaintiff with, harassment, stalking, making threats or


         2
           A number of the factual allegations made by M s. Harris in this motion relate to events occurring in or before
the General S essions Court’s pro ceed ings. Since M s. Harris perfected an appeal de novo to the Circuit Cou rt, those
allegations are not relevant to the issues in this appeal in which Ms. Harris seeks reversal of the Circuit Court’s denial
of her m otion for relief fro m jud gment.

                                                           -3-
       associated behaviors normally necessary to secure such an Order, whereas the
       Defendant would not agree to a provision of the proposed Second Agreed Amended
       Order prohibiting him from further contact with the Plaintiff, whereas the Plaintiff
       has been in compliance in with Second Agreed Amended Order, the Plaintiff prays
       the Court rule the Second Agreed Amended Order lacks justification and relieve the
       Plaintiff from all prior judgments and/or orders entered in the above-styled case,
       awarding the Plaintiff the costs of this action and general relief.

        On March 15, 2000, apparently without a hearing, the Williamson County Circuit Court
found Ms. Harris’s motion to be without merit and found that the motion “appears on its face to be
constitute a violation of the injunction entered by the Circuit Court of Davidson County in its order
of April 5, 1999.” The court then denied the motion. Ms. Harris appealed and has appeared pro se
before this court.

                                              I. Transfer for Mediation

        Ms. Harris’s basic complaint is that she asked for and agreed to a dispute resolution
procedure which was designed to resolve her dispute through agreement of the parties. Instead, it
resulted in a court order dismissing her case and enjoining her from certain conduct. We concur that
a party who agrees to pursue settlement pursuant to a process recognized by Tenn. R. Sup. Ct. 31
does not waive his or her rights to resolution of pending litigation according to the well-established
requirements of litigation procedure if such settlement attempt is not successful.

        The Supreme Court of Tennessee, in the exercise of its responsibility to supervise the
administration of justice in our courts, has established “a system of court-annexed alternative dispute
resolution methods” whose purpose is to make the process of dispute resolution more efficient, more
economical, and equally fair.” Tenn. R. Sup. Ct. 31 pmbl. The procedures comprising this system
have been promulgated as Rule 31 of the Rules of the Supreme Court.

        The agreed order transferring the case herein to the Davidson County judge stated the purpose
was “binding mediation.” In filings below, the defendant has asserted that by signing this order Ms.
Harris agreed to a procedure whereby the parties would be bound by the mediator’s decision,
referring to the process alternatively as arbitration and binding mediation. Regardless of the
terminology used in the transfer order, we find that the matter was transferred for mediation.

       This conclusion is compelled, first, by the language of Rule 31, which governs all court-
annexed alternative dispute resolution. Since the transfer order was entered by a court in the context
of ongoing litigation and since the dispute resolution was attempted by a judicial officer, there can
be no question that this was a court-annexed procedure and, consequently, subject to Rule 31.3
The Rule gives courts authority to order parties to participate in alternative dispute resolution
procedures, but limits that authority regarding the types of resolution.


       3
           In addition, the motio n pro mpting the transfer relied on Rule 31 as its basis.

                                                            -4-
         Pursuant to the provisions of this Rule, a court may order the parties to an eligible
         civil action to participate in an alternative dispute resolution proceeding in
         accordance with this Rule.

Tenn. R. Sup. Ct. 31 § 1. And,

         After all the parties are before the court, the court may, on its own motion or on the
         motion of any party, order the parties to participate in alternative dispute resolution
         proceedings authorized by these rules.

Id. at § 10(a).4

         Thus, a court’s authority to refer a case to alternative dispute resolution is limited to those
procedures authorized by the rule. Rule 31 does not recognize arbitration or binding mediation as
an available procedure for court-annexed dispute resolution. The proceedings authorized by the rules
include mediation, judicial settlement conference, non-binding arbitration, case evaluation, mini-
trial, and summary jury trial. Id. at §2. A review of the definitions of these procedures makes it
clear that each of them requires agreement by the parties for any resolution of the dispute as an
alternative to resolution through the well-established procedures governing litigation. They are
settlement procedures. Conspicuous in its absence is a procedure for “binding mediation.”

        The case was transferred for mediation by a judge. Rule 31 identifies such a procedure as
a judicial settlement conference, which is “a mediation conducted by a judicial officer other than the
judge before whom the case will be tried.” Tenn. R. Sup. Ct. 31 §2(d). The judicial officer to whom
the case was transferred initially treated it as a transfer for a judicial settlement conference. The
mediating judge’s first order required certain filings prior to what the court termed a settlement
conference. This pre-conference order also referred to the proceeding as a “Voluntary Settlement.”
Thus, the initial order by the mediating judge is consistent with our holding that the case was
transferred for mediation by a judicial officer; thus, the proceeding was a judicial settlement
conference.

        Having determined that the matter was referred for mediation, we must determined whether
the orders entered subsequent to the mediation or settlement conference are authorized by Rule 31.


         4
           Section 3 of the rule distinguishes those procedures which can be o rdered by the court and those which also
need co nsent of the parties.

         Upon motion of either party, or upon its own motion, a court, by order of reference, may order the parties to
         an eligible civil action to participate in a judicial settlement conference, mediation, or case evaluation. Upon
         motion of either party, or upon the court’s motion, and with the consent of all parties, a court, by order of
         reference, may order the parties to participa te in non-binding arbitration, mini-trial, summary jury trial, or other
         appro priate alternative dispute reso lution procee dings.

Tenn. R. Sup. Ct. 31 § 3.

                                                            -5-
We find there are two problems with those orders. First, there is no authority for a mediator,
including a judicial officer, to enter an order disposing of a case. Second, there is no authority
allowing a mediator, including a judge, to substitute his or her judgment of the merits of the case for
agreement of the parties as to settlement.

       Mediation is “an informal process in which a neutral person, called a mediator, 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.” Tenn. R. Sup. Ct. 31 § 2(c).
A mediator has limited authority.

       A dispute resolution neutral, including a judge acting in that capacity, has no
       authority to dispose of a case or to enter an order disposing of a case. The neutral’s
       powers include only the filing of a report indicating whether the case was completely
       settled or partially settled. Tenn. R. Sup. Ct. 31 § 8. Therefore Rule 31 did not vest
       the settlement judge herein, in his role as mediator, with authority to enter an order
       disposing of the case.

Environmental Abatement, Inc. v. Astrum R.E. Corp., 27 S.W.3d 530, 540 (Tenn. Ct. App. 2000).

       Significantly, Rule 31 specifically limits mediation by a judicial officer to one who is not the
judge before whom the case will be tried if it proceeds to trial. Tenn. R. Sup. Ct. 31§2(d). Thus, a
judge who is acting as a mediator is not authorized to exercise judicial power with regard to the
matter being mediated. In addition, a specific prohibition exists:

       A person serving as a Rule 31 dispute resolution neutral in an alternative dispute
       resolution proceeding shall not participate as attorney, advisor, judge, guardian-ad-
       litem, master or in any other judicial, or quasi-judicial capacity in the matter in which
       the alternative dispute resolution proceeding was conducted.

Tenn. R. Sup. Ct. 31 § 12(i). Thus, an order of reference for mediation, or for judicial settlement
conference, does not confer authority to the mediating judge to enter an order, in the exercise of
judicial power, disposing of the case. Rule 31 provides no such authority, and in fact limits the
mediator’s authority to a report to the court before whom the case is pending.

        Absent authority from Rule 31, the question arises whether the parties agreed that the
mediating court could enter an order disposing of the case. Environmental Abatement dealt with the
authority of the mediating judge to enter an order reflecting an agreement which had been reached
at a settlement conference when agreement had been withdrawn prior to entry of the order. In
addition to other holdings, this court found the mediating judge had no authority by virtue of Rule
31 to enter an order dismissing the case. In addition, we also found that there was no agreement by
the parties that the settlement judge, acting as a mediator, could dispose of the case. Id. In
Environmental Abatement, we left open the question of whether an appropriate agreement and
transfer order would allow the mediating judge to enter an order of compromise and settlement


                                                 -6-
reached after mediation. We still leave that question open because, although the transfer order herein
recites that the parties waived venue, which could be interpreted as agreement that the mediating
court could enter an order resulting from the mediation, the orders entered by the mediating court
were not the product of settlement agreement by the parties.

        The transfer order is clear that the transfer was agreed to and made solely for purposes of the
mediation. A transfer for mediation is not a transfer for disposition on any basis other than
agreement of the parties. There is nothing in Rule 31 which authorizes any sort of alternative dispute
resolution process which removes the agreement of the parties as a requirement. Thus, there is no
authority to support an interpretation of the term “binding mediation” used in the transfer order as
granting authority to the mediator to substitute its judgment of the merits of the dispute for an
agreement between the parties.

        Methods available to private parties for resolution of their disputes without recourse to courts
abound. The Supreme Court has recognized that in the private sector various practices exist for
dispute resolution. Rule 31 does not affect those practices. Tenn. R. Sup. Ct. 31 § 1. One example
of such private procedures allowing for a binding decision made without recourse to the rules
governing litigation is arbitration pursuant to Tennessee’s version of the Uniform Arbitration Act,
Tenn. Code Ann. §§ 29-5-301 et. seq. Arbitration is a procedure resulting from an agreement by the
parties to substitute “a tribunal of their own choosing for the one provided and established by law.”
Arnold v. Morgan Keegan & Co., Inc., 914 S.W.2d 445, 452 (Tenn. 1996). Thus, arbitration is an
extra judicial procedure. Although the Act authorizes courts to enforce agreements to arbitrate and
to enter judgment on the award resulting from an arbitration, Tenn. Code Ann. § 29-5-302, we find
no authority for a judge to act as an arbitrator. Because arbitration is an extra judicial procedure and
not available as a court-annexed alternative dispute resolution method, the procedure herein cannot
be accurately described as an arbitration. In addition, the Act includes protections “to prevent
parties from being victimized by the very finality that makes arbitration the procedure of choice for
certain types of disputes.” Smith v. Smith, 989 S.W.2d 346, 348 (Tenn. Ct. App. 1999). Among
those protections is a written agreement to arbitrate. Id. There is no such written agreement in the
record before us. Therefore, to the extent the defendant argues that the orders herein constitute an
arbitration award which cannot be vacated absent certain statutorily defined circumstances, we find
such argument inapplicable to the orders which resulted from the mediation procedures herein.

       We conclude that the case was transferred to the judicial officer in Davidson County for the
purpose of conducting a mediation as that term is defined in Rule 31 of the Rules of the Tennessee
Supreme Court. Accordingly, we conclude that the mediating court was without authority to order
dismissal of the case or to enjoin action by any party.

                                                  II.

       The issue before us is whether the trial court in Williamson County properly denied Ms.
Harris’s motion for relief from judgment or orders, filed pursuant to Tenn. R. Civ. P. 60.02. As the
defendant correctly asserts, this court’s review of that decision is limited to whether the trial court


                                                  -7-
abused its discretion.5 Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993). The abuse
of discretion standard requires us to consider: (1) whether the decision has a sufficient evidentiary
foundation; (2) whether the trial court correctly identified and properly applied the appropriate legal
principles; and (3) whether the decision is within the range of acceptable alternatives. State ex rel.
Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000). While we will set aside a
discretionary decision if it does not rest on an adequate evidentiary foundation, or if it is contrary to
the governing law, we will not substitute our judgment for that of the trial court merely because we
might have chosen another alternative. Id.

        Rule 60.02 provides:

        On motion and upon such terms as are just, the court may relieve a party or the
        party’s legal representative from a final judgment, order or proceeding for the
        following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) fraud
        (whether heretofore denominated as intrinsic or extrinsic), misrepresentation, or other
        misconduct of an adverse party; (3) the judgment is void; (4) the judgment has been
        satisfied, released or discharged, or a prior judgment upon which it is based has been
        reversed or otherwise vacated, or it is no longer equitable that a judgment should
        have prospective application; or (5) any other reason justifying relief from the
        operation of the judgment.

Tenn. R. Civ. P. 60.02.

       Relief under Rule 60.02 is considered “an exceptional remedy.” Nails v. Aetna Ins. Co., 834
S.W.2d 275, 294 (Tenn. 1992). The function of the rule is “to strike a proper balance between the
competing principles of finality and justice.” Banks v. Dement Constr. Co., Inc., 817 S.W.2d 16, 18
(Tenn. 1991) (quoting Jerkins v. McKinney, 533 S.W.2d 275, 280 (Tenn. 1976)). In examining the
purpose of Tenn. R. Civ. P. 60.02, our Supreme Court has said:

        “Rule 60.02 acts as an escape valve from possible inequity that might otherwise arise
        from the unrelenting imposition of the principle of finality imbedded in our
        procedural rules. . . .” Because of the importance of this “principle of finality,” the
        “escape valve” should not be easily opened.

Banks, 817 S.W.2d at 18 (quoting Toney v. Mueller Co., 810 S.W.2d 145, 146 (Tenn. 1991)).

        The defendant asserts that Ms. Harris’s motion cited only Tenn. R. Civ. P. 60.02(5) as its
basis, and that she cannot now seek relief under any other subsection of the rule, primarily referring
to her arguments in support of relief under subsections (1) and (2). However, at the time of the filing
of the motion for relief from judgment, Ms. Harris was unrepresented by counsel and filed the
motion pro se.


        5
            There is authority, however, for the proposition that a court has no discretion to deny relief from a void order.

                                                             -8-
        Parties who represent themselves are entitled to fair and equal treatment by the courts.
Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000). Courts should take into
account that many pro se litigants have no legal training and little familiarity with the judicial
system. Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App. 1988). While courts may
not allow pro se litigants to shift the burden of litigation to the courts or the opposing party and may
not excuse a pro se litigant from complying with the same substantive and procedural rules that
represented parties are expected to observe, Edmunson v. Pratt, 945 S.W.2d 754, 755 (Tenn. Ct.
App. 1996), courts give pro se litigants who are untrained in the law a certain amount of leeway in
drafting their pleadings and other legal filings. Whitaker, 32 S.W.3d at 227. Accordingly, we
measure the papers prepared by pro se litigants using standards that are less stringent than those
applied to papers prepared by lawyers. Hughes v. Rowe, 449 U.S. 5, 9-10, 101 S. Ct. 173, 176
(1980); Winchester v. Little, 996 S.W.2d 818, 824 (Tenn. Ct. App. 1998). Even though courts
cannot create claims or defenses for pro se litigants where none exist, Rampy v. ICI Acrylics, Inc.,
898 S.W.2d 196, 198 (Tenn. Ct. App. 1994), they should give effect to the substance, rather than the
form or terminology, of a pro se litigant’s papers. Brown v. City of Manchester, 722 S.W.2d 394,
397 (Tenn. Ct. App. 1986); Usrey v. Lewis, 553 S.W.2d 612, 614 (Tenn. Ct. App. 1977).

       Ms. Harris’s motion clearly questions the validity of the orders of the mediating judge. We
think a fair reading of that motion would include a claim that those orders were void. A void
judgment lacks validity anywhere and is subject to attack from any angle. State ex rel. Ragsdale v.
Sandefur, 215 Tenn. 690, 701, 389 S.W.2d 266, 271 (1965); Acuff v. Daniel, 215 Tenn. 520, 525,
387 S.W.2d 796, 798 (1965). Neither the trial court nor this court can enforce a judgment which is
void. The issue of the validity of the judgments and orders herein has been raised, and, if the
judgment is void, Ms. Harris has stated a claim for relief under Tenn. R. Civ. P. 60.02(3).

        To be found void, a judgment must have been rendered by a court lacking jurisdiction over
the subject matter or the parties or acting in some other manner inconsistent with the requirements
of due process. Magnavox Co. v. Boles & Hite Constr. Co., 583 S.W.2d 611, 613 (Tenn. Ct. App.
1979). In New York Casualty Co. v. Lawson, 160 Tenn. 329, 24 S.W.2d 881 (1930), our Supreme
Court said:

        A void judgment is one which shows upon the face of the record a want of
        jurisdiction in the court assuming to render the judgment, which want of jurisdiction
        may be either of the person, or of the subject-matter generally, or of the particular
        question attempted to be decided or the relief assumed to be given. (Citations
        omitted).

160 Tenn. at 336, 24 S.W.2d at 883.

       A court cannot validly adjudicate upon a subject matter which does not fall within its
province as defined and limited by law. See Chickamauga Trust Co. v. Lonas, 139 Tenn. 228, 201
S.W. 777 (1917). As stated in the Restatement, “A judgment may properly be rendered against a



                                                  -9-
party only if the court has authority to adjudicate the type of controversy involved in the action.”
RESTATEMENT (SECOND) OF THE LAW OF JUDGMENTS § 11 (1982). In Chickamauga, the Court said:

       “Even where a court has jurisdiction over the parties and the subject-matter, yet if it
       makes a decree which is not within the powers granted it by the law of its
       organization, its decree is void. Thus, a judgment may be collaterally attacked where
       the court had jurisdiction of the parties and the subject-matter of action, but did not
       have jurisdiction of the question which the judgment assumed to determine, or to
       grant the particular relief which it assumed to afford to the litigants. . . .”

139 Tenn. at 235-36, 201 S.W. at 778-79 (citation omitted).

        We have already determined that the mediating judge had no authority to dispose of this case
on the merits. While authorized to mediate the dispute, the court dismissed Ms. Harris’s case and
enjoined Ms. Harris from contacting the defendant. Authority to dismiss complaints and to issue
injunctions lies in those authorized to wield the judicial power of the state, and a mediating judge
has no such authority regarding a matter submitted for mediation or judicial settlement conference.
The limits of the mediating judge’s authority were established by Rule 31 of the Tennessee Supreme
Court and by the transfer order based upon that rule. Thus, the order entered by the mediating court
on April 5, 1999, was void.

        It is well settled that a void judgment cannot be enforced and that “judgments or decrees
which have been declared to be void bind nobody, bar nobody, are nullities, and justify no act done
thereafter.” Hinton v. Robinson, 51 Tenn. App. 1, 6, 364 S.W.2d 97, 99 (1962). “From its inception,
a void judgment continues to be absolutely null. It is incapable of being confirmed, ratified, or
enforced in any manner or to any degree.” Guinn v. Guinn, No. W1999-01809-COA-R3-CV, 2001
WL 359243, at *5 (Tenn. Ct. App. April 6, 2001) (no Tenn. R. App. P. 11 application filed) (quoting
BLACK’S LAW DICTIONARY 848 (7th ed. 1999). Accordingly, the trial court’s dismissal of Ms.
Harris’s Tenn. R. Civ. P. 60 motion on the basis that it violated the April 5 order of the Davidson
County court is reversed.

        Under Tenn. R. Sup. Ct. 31, the action available to the mediating judge in the event that a
settlement was not reached by the parties was to report back to the trial court (the court with
authority to dispose of the litigation). Had such a report been made in this case after the judicial
settlement conference or mediation, the litigation would have been lodged in the Williamson County
Circuit Court for trial or other appropriate resolution. None of the orders subsequent to the void
April 5 order should have been entered in Davidson County Circuit Court because that court had no
jurisdiction beyond reporting the results of the mediation. Additionally, a void order cannot be
amended. The attempt at settlement through alternative dispute resolution pursuant to Rule 31
having been unsuccessful, the case is at the same procedural posture as it was prior to the transfer
for mediation.




                                                -10-
                                                 III.

         The defendant asserts, however, that Ms. Harris is precluded from seeking post judgment
relief from an agreed order, relying on the principle that “[w]here a decree is made by consent of
counsel, there lies not an appeal or re-hearing, though the party did not really give his consent . . .
.” Kelly v. Walker, 208 Tenn. 388, 392, 346 S.W.2d 253, 255 (1961). Because her attorneys
executed the “agreed orders,” the defendant asserts that Ms. Harris is deemed to have made a
deliberate decision to consent to their provisions, because “counsel’s knowledge must be attributed
to his client, if the actions of the court are to have any efficacy.” Davidson v. Davidson, 916 S.W.2d
918, 921 (Tenn. Ct. App. 1995).

        The effect of the “agreed orders” is not entirely clear. First, they were entered after the
Davidson County court transferred the case back to Williamson County and after the Davidson
County court reaffirmed its transfer. In addition, the signature of the attorneys is preceded by the
words “Approved for Entry,” generally an indication that the attorneys merely agree that the
substance of the order coincides with the ruling of the court, not that the substance of the orders is
the result of agreement of the parties. Since the “Agreed Amended Orders” simply, in large part,
repeat the findings and orders of the court as set out in the April 5 order, the “Approved for Entry”
designation is consistent with the generally accepted understanding of that term. The only portion
of the order which purports to represent an agreement of the parties regards the waiver of any right
of appeal. The fact that no agreement of the parties existed with regard to the other portions of the
order is evidenced by the correction made in the Second Agreed Amended Order which removed the
“parties have agreed” language from the injunction from further contact. Thus, in large part, the
amending “agreed orders” are simply further orders of the mediating judge.

        In any event, the two orders attempt to amend an order we have determined was void. As
this court has stated, “a void judgment or decree cannot be amended because such a judgment or
decree is a complete nullity.” Guinn, 2001 WL 359243, at *5. Therefore, we find the attempted
amendment ineffective and the “agreed orders” entered subsequent to the void order also void and
of no effect.

        The one portion of the Second Agreed Order which purported to constitute an agreement
between the parties stated “the parties have agreed, as is evidenced by the signatures of their
respective counsel, below, that each shall waive any right of appeal in this cause that either may have
had.” Had the original order of April 5 or the attempts to amend that order not been void, it could
be argued that Ms. Harris waived her right to challenge the disposition set out in the April 5 order.
Waiver is a voluntary relinquishment of a known right or privilege. Estate Faught v. Faught, 730
S.W.2d 323, 325 (Tenn. 1987); Chattem, Inc. v. Provident Life & Accident Ins. Co., 676 S.W.2d 953,
955 (Tenn. 1984). “Thus, when an individual does not know of his rights or when he fails to
understand them, there can be no effective waiver of those rights.” Faught, 730 S.W.2d at 326.




                                                 -11-
         The April 5 order stated that “further litigation of this matter would not be judicially
efficient” and had ordered that “any further litigation of this issue would be moot and the plaintiff
is therefore enjoined from pursuing further litigation involving this defendant, his family or
associates.” Thus, at the time of the attempted amended orders, Ms. Harris had been precluded by
court order from further attempts at judicial relief in this matter. The Williamson County court
obviously found this order to be enforceable. Thus, the question of whether Ms. Harris, through her
counsel, waived a right she knew existed at the time of the “agreed” orders is not easily answered.
However, we need not determine the answer to that question because the April 5 order and all
subsequent orders are void. Thus, no portion of those orders, including the waiver of appeal, may
be enforced as a court judgment. Because a void order may be attacked at any time and from any
angle, Ms. Harris is not precluded from seeking relief from such order by the agreement set out in
a later order which is itself void.

        We are unaware of any authority for a trial court to enjoin a party from appealing an order
of that court, and any such attempted injunction would, in our opinion, be contrary to public policy
and to constitutional guarantees of access to the courts. Although the trial court’s orders herein were
based upon a transfer for mediation, no mutually agreeable settlement of the merits of the dispute
was reached. Thus, while parties may, as part of a settlement agreement, agree not to pursue the
dispute further, the orders in this case are not the product of such agreement. We can only conclude
that the orders were intended to be an exercise of judicial authority, and we have determined that
exercise to be void.

         Even a valid 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.” Harbour v. Brown for
Ulrich, 732 S.W.2d 598, 599 (Tenn. 1987). To the extent the defendant believes the Second
Amended Order includes an enforceable agreement between the parties, he is not without remedy.
Because an agreement to compromise and settle litigation is a contract between the parties to that
litigation, issues of the enforceability and interpretation of that agreement are governed by contract
law. Environmental Abatement, 27 S.W.3d at 539. Such an agreement may be a binding contract,
subject to being enforced as other contracts. Harbour, 732 S.W.2d at 599-600.

        The issue before us, however, is not whether the defendant has a cause of action to enforce
an agreement with Ms. Harris not to appeal the orders entered in the Davidson County court by the
mediating judge. Rather, the question is whether Ms. Harris is entitled to relief from those orders.
We decline to enforce any part of the void orders and find that Ms. Harris is not precluded from
relief from such orders. Because we have found the orders are void, they are unenforceable;
therefore, it would make little sense for this court to refuse to vacate them.




                                                 -12-
        We reverse the trial court’s decision denying Ms. Harris’s request for relief from orders under
Tenn. R. Civ. P. 60.02. Further, we vacate all orders entered in the Davidson County Circuit Court.
The case is remanded to the Circuit Court for Williamson County for appropriate proceedings. Costs
are taxed to the Appellee.



                                                        ___________________________________
                                                        PATRICIA J. COTTRELL, JUDGE




                                                 -13-
