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Harvey v. Turner

Court of Appeals of Tennessee, Nashville

March 26, 2015


Session Date January 23, 2015

Appeal from the Chancery Court for DeKalb County No. 2007105 Ronald Thurman, Chancellor

Darrell G. Townsend, Nashville, Tennessee, for the appellant, Phillips Turner, Jr.

T. Michael O'Mara, Cookeville, Tennessee and Robb S. Harvey, Nashville, Tennessee, for the appellees, Nancy Hart Diehl Harvey, Executrix of the Estate of W. Joseph Diehl, Jr., and Patricia Simpson.

Andy D. Bennett, J., delivered the opinion of the court, in which Richard H. Dinkins, and W. Neal McBrayer, JJ., joined.



Joseph Diehl, Jr. and the Yount Family Partnership ("Diehl"), Patricia Simpson ("Simpson"), and Phillips Turner, Jr. ("Turner") are owners of adjoining tracts of land off Coconut Ridge Road near Center Hill Lake. Their lands slope westward toward the lake. Diehl's property is east of Turner's and Simpson's. Simpson, who owns multiple lots, owns the lots to the southeast and northeast of Turner's. Thus, Turner's land is bordered on three sides by two of Simpson's lots and Diehl's lot. The land west of Turner's and Simpson's lots is owned by the U.S. Army Corps of Engineers, which is not involved in this action.

Diehl and Simpson sued Turner on September 11, 2007. Diehl claimed that blasting and excavation by Turner had intruded upon and damaged the Diehl property, including damaging the lateral support of his property. Although the complaint alleged Turner had promised to build a retaining wall, Diehl's complaint expressed concern that the wall would be built on Diehl's land, not Turner's, and that further trespasses would result. Both Diehl and Simpson claimed that the blasting and excavation destroyed a dirt road on Diehl's property upon which Simpson had an easement. Both Diehl and Simpson alleged that Turner had built a gate on the Diehl property blocking the easement and denying both Diehl and Simpson access to their property. They sought a restraining order to stop further trespasses, to prevent construction of a retaining wall that did not provide lateral support for Diehl's property, for removal of materials placed on Simpson's property, and for removal of the gate. They also sought approval of any plans for a retaining wall prior to construction, damages for trespass/conversion, and a declaratory judgment to set the boundary lines and quiet title.

A couple of weeks later, the parties worked out an agreed order, pursuant to which Turner was to remove the gate and not construct a retaining wall without the prior approval of the plaintiffs or the court. The litigation continued over the next six years. Finally, the trial court heard three days of testimony, August 26 - 28, 2013. The trial was to resume September 4, 2013.

In the interim, counsel for all parties exchanged emails and telephone calls about settling the case. An "agreement in principle" was negotiated. Counsel for the parties appeared in court on September 4 to announce the settlement. By agreement, the parties did not attend. As stated to the trial court, the settlement consisted of a confidential agreement that Turner would pay an unspecified amount[1] to the plaintiffs, and all parties would accept the survey of Richard Puckett as to the establishment of a boundary line between Turner's property and the properties of Diehl and Simpson. Turner agreed to construct a retaining wall entirely on his property "roughly 110 feet long, " at his expense, running from where the present retaining wall ends along the Diehl-Turner property line to where the I-beams for the gate are. Scott Miller would design the wall and the design would be submitted to the plaintiffs for approval. The wall would be built within seven months of the completion of the plans. The disputed area would be redrawn to provide Turner with a 20-foot property strip. If Turner decided to install a gate at the end of his property, it would open entirely onto his property. Turner's easement for ingress-egress would be expanded to allow the water lines and the gas line to remain, but no additional lines would be placed along the easement, and the easement would not be expanded further. Turner would allow access to his property to permit its use in removing designated trees from the plaintiffs' properties, upon thirty days notice from the plaintiffs. Turner would not attempt to stop construction of a roadway on the 20-foot easement as long as there was no damage to his property. At least 60 days before construction is to begin, the plaintiffs would provide Turner with the plans. The parties would agree to an equitable means to maintain the easement. As to the common gate, all parties would use reasonable efforts to keep it locked when not in use and would use it solely for ingress and egress. They would try to find a solar-operated system to power an electronic key pad on the gate. Turner would install a new security light, in consultation with Simpson, that would be directed solely toward Turner's property and operate on a system that would only come on at night and only upon the detection of movement. Turner would not utilize the turnaround area near the common gateway. All parties would make good faith and reasonable efforts not to leave unattended vehicles on the roadway blocking access. Turner would not apply herbicides on the common roadway or elsewhere on the Diehl or Simpson properties. The parties also agreed that the trial court would retain jurisdiction to enforce the settlement. Both attorneys affirmed to the court that their clients had agreed to the settlement. The court accepted the settlement.

The parties could not agree on the final settlement document, so a hearing was held on December 4, 2013. Apparently, Turner felt that there was supposed to be a mention of a sewer line in the agreement. The trial court did not. The court stated:

As it relates to the sewer, unless – and this goes for both sides. What was announced to the Court on 9/4, in the Court's mind, was a settlement. I think the essential terms are there. They can be readily identified. If it's not contained [in] those e-mails or announced in court, it doesn't exist, which means if the sewer is not in there, it's not part of the settlement that was announced at court. The Court finds that there was a meeting of the minds and that that issue was not part of it.

The court discussed the various parts of the settlement and then stated:

The settlement I accepted was what is contained in our able court reporter's transcript, and that's going to be the terms of it. If there's something that – issues that have arisen since then, that's a different lawsuit. In the Court's mind, that resolves all the issues that I was going to try. . . . What took place after the fact, in the Court's mind, is just language in a release. But as far as I was concerned and based on what my understanding was in trying this case, is that the parties had reached a meeting of the minds, that there were e-mails and documents back and forth which substantiated that. The court found that there was a binding settlement. Turner appealed.[2]


In Petersen v. Genesis Learning Centers, No. M2004-01503-COA-R3-CV, 2005 WL 3416303, at *4 (Tenn. Ct. App. Dec. 13, 2005), this Court stated:

Absent a demonstration of fraud or other compelling circumstances, a court should honor and enforce a settlement agreement as it would any other contract. Moffett, Larson, & Johnson v. Carman, No. 01-A-01-9501-CH00007, 1995 WL 322642, at *3 (Tenn. Ct. App. May 26, 1995). The formation, interpretation, and enforceability of settlement agreements are governed by general contract law. Sweeten v. Trade Envelopes, Inc ., 938 S.W.2d 383, 386 (Tenn. 1996). In order to be enforceable, a contract "must result from a meeting of the minds of the parties in mutual assent to the terms." Id. (quoting Higgins v. Oil, Chem. & Atomic Workers, 811 S.W.2d 875, 879 (Tenn. 1991)). Thus, absent mutual assent to the essential terms of a claimed settlement agreement, the agreement cannot be enforceable. State v. Clements, 925 S.W.2d 224, 227 (Tenn. 1996).

Turner maintains that the purported settlement cannot be enforced for three reasons: the "agreement in principle" was subject to a more formal, written settlement agreement; the purported settlement was not agreed to by the parties in open court; and the purported settlement agreement was subject to a condition precedent.

Expectation of a More Formal Settlement

Turner claims that counsel for the parties stated that they had reached an "agreement in principle" and that the parties expected a more formal settlement agreement to be drafted and executed. He maintains that the "agreement in principle" is simply an unenforceable agreement to agree. The formal, ...

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