Harbour v. Brown for Ulrich
| Decision Date | 22 June 1987 |
| Docket Number | Nos. CA,s. CA |
| Citation | 732 S.W.2d 598 |
| Parties | C.B. HARBOUR III, Plaintiff-Appellee, v. Robert L. BROWN, Trustee for H.W. ULRICH; and H.W. Ulrich, Individually, Defendant-Appellant. 577, SC 266 732 S.W.2d 598 |
| Court | Tennessee Supreme Court |
Michael E. Richardson, Patrick, Beard & Richardson, P.C., Chattanooga, for defendant-appellant.
Harry Berke, Berke, Berke & Berke, Chattanooga, for plaintiff-appellee.
This appeal presents the single question: Can a trial judge enter a valid Order of Compromise and Dismissal after being informed by one of the parties that consent to the compromise has been withdrawn? We hold that he can not and reverse the judgment dismissing the action.
The appeal in this case is before us on the technical record only. From it we glean that an action was brought by C.B. Harbour III, seeking specific performance of an alleged real estate contract and the enjoining of a threatened foreclosure action under an existing deed of trust. The defendant filed a cross-complaint, seeking judgment on the note secured by the deed of trust.
On the date the actions were set for trial, the parties announced to the court that they had reached an agreement and would submit an order of compromise and dismissal. The terms of the compromise were not announced to the court and are not part of the technical record.
Before entry of any order in the case, it was brought to the chancellor's attention that the defendant had withdrawn his consent to the compromise, and was taking the position that the compromise had been "tentative" as it was contingent upon the action of a third party. Thereafter, the chancellor entered an order dismissing the case with prejudice, noting in the order that if there were "valid grounds for setting aside the 'Contract to Settle,' the defendant [could] file an appropriate motion with grounds in support thereof." The defendant moved to vacate the order and to reschedule the case for trial on the merits. The chancellor overruled the motion, adjudged the matters in controversy to be compromised, and again dismissed the action with prejudice.
The resolution of disputes by agreement of the parties is to be encouraged. But 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. Van Donselaar v. Van Donselaar, 249 Iowa 504, 87 N.W.2d 311 (1958); Lee v. Rhodes, 227 N.C. 240, 41 S.E.2d 747 (1947); Norton Shores v. Carr, 59 Mich.App. 561, 229 N.W.2d 848 (1975). Cf. Kittrelle v. Philsar Development Co., 50 Tenn.App. 84, 359 S.W.2d 837 (1962).
The general rule defining the power of a court to enter a consent judgment is set forth in 49 C.J.S. Judgments Sec. 174(b), as follows:
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.
In making reference to the general rule in Burnaman v. Heaton, 150...
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Lovlace v. Copley
...from an agreed order. The judicial system favors the resolution of disputes by agreement between the parties. Harbour v. Brown ex rel. Ulrich, 732 S.W.2d 598, 599 (Tenn.1987); Kelly v. Walker, 208 Tenn. 388, 346 S.W.2d 253, 255 (1961); Kittrelle v. Philsar Dev. Co., 50 Tenn.App. 84, 359 S.W......
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...the parties and approved by the court.” Third Nat. Bank v. Scribner, 212 Tenn. 400, 370 S.W.2d 482, 486 (1963); accord Harbour v. Brown, 732 S.W.2d 598, 599-600 (Tenn.1987). Thus, the parties' agreement to arbitrate embodied in the consent order falls within the scope of the TUAA. Three sta......
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Vannucci v. Memphis Obstetrics and Gynecological Association, P.C., No. W2005-00725-COA-R3-CV (Tenn. App. 7/11/2006)
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