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Crook v. Jock7/13/2005
he other harmless from and against any and all said liability or claims of liability set forth herein.
8. In the event that either party has to seek Court intervention for the purposes of interpreting or enforcing this Order, the prevailing party shall have his or her reasonable attorney's fees and costs of litigation paid for by the non-prevailing party. The Court shall determine the identity of the prevailing and non-prevailing party as the Court deems just and proper.
Neither plaintiff signed the Agreement and Consent Order of Dismissal. Plaintiffs appeal the entry of the consent decree and assert that they did not consent to the agreed order.
II.
The dispositive issue in this case is whether the trial court erred by entering the Agreement and Consent Order of Dismissal. After thoroughly reviewing the statement of the evidence in this case, we are unable to determine whether Plaintiffs withdrew their consent to the agreed order prior to its entry. The respective views contained in the statement of the evidence are, in the opinion of this Court, inharmonious and irreconcilable.
A consent judgment does not reflect the judgment of the court, but is merely an agreement between the parties to a lawsuit which has been placed into the record by the court. In re Estate of Jones, 154 S.W.2d 582, 585 (Tenn. Ct. App. 2004) (citing Harbour v. Brown for Ulrich, 732 S.W.2d 598, 599 (Tenn. 1987)). Therefore, the deferential standard of review afforded to a trial court's findings of fact is inapplicable in cases like the one presently before us. See Harbour v. Brown for Ulrich, 732 S.W.2d 598, 600 (Tenn. 1987). It is well-settled that, when a trial judge knows before entry of a consent judgment that one of the parties has withdrawn consent or has otherwise repudiated the agreement, the trial court lacks the power to enter the consent judgment. Harbour, 732 S.W.2d at 600; In re Estate of Jones, 154 S.W.2d at 585; Environmental Abatement, Inc. v. Astrum R.E. Corp., 27 S.W.3d 530, 535-38 (Tenn. Ct. App. 2000); Sullivan County v. Lyon, 20 S.W.3d 676, 677 (Tenn. Ct. App. 1999). Rather, consent must "exist at the very moment the court undertakes to make the agreement the judgment of the court." Lyon, 20 S.W.3d at 677 (quoting Harbour, 732 S.W.2d at 599 (quoting Burnaman v. Heaton, 240 S.W.2d 288, 291 (Tex. 1951))).
In this case, due to the conflicting nature of the statement of the evidence, we are unable to conclude that consent existed on the part of Plaintiffs at the time the trial court entered the Agreement and Consent Order of Dismissal as the judgment of the court. Moreover, it is clear from the record that Doyle B. Crook, Sr. was neither present at the settlement conference nor included as a party to the consent decree. As previously stated, the record does not contain a transcript, which might have clarified the events that surrounded the entry of the consent decree. Instead, this Court is presented with a statement of the evidence where the facts are susceptible to two dramatically different interpretations of the proceedings surrounding the entry of the consent decree.
The judgment of the trial court is vacated. We have considered Plaintiffs' numerous other issues and consider them to be without merit or rendered moot by our decision in this case. This case is remanded for further proceedings as may be necessary. Costs of this appeal are taxed to Defendant/Appellee, Angela R. Jock, for which execution may issue if necessary.
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