IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
FILED
December 29, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
E1999-01192-COA-R3-CV
SULLIVAN COUNTY, TENNESSEE ) C/A NO. 03A01-9902-CV-00059
and THE SULLIVAN COUNTY )
BUILDING COMMISSIONER, )
)
Plaintiffs-Appellees,)
)
)
)
) APPEAL AS OF RIGHT FROM THE
v. ) SULLIVAN COUNTY LAW COURT
)
)
)
)
)
JOE ELLIS LYON, )
)
Defendant-Appellant. ) HONORABLE JOHN S. McLELLAN, III,
) JUDGE
For Appellant For Appellees
JOE ELLIS LYON DANIEL P. STREET
Pro Se Sullivan County Attorney
Bluff City, Tennessee Blountville, Tennessee
O P I N IO N
1
VACATED AND REMANDED Susano, J.
2
This appeal arises out of the trial court’s entry of an
“agreed” order ostensibly resolving a dispute between plaintiffs
Sullivan County and the Sullivan County Building Commissioner
(collectively “the County”) and defendant Joe Ellis Lyon
(“Lyon”). Lyon appeals, arguing that he did not consent to the
entry of the order. We find and hold that the order should not
have been entered.
I.
This dispute originated as an action brought by the
County against Lyon in the General Sessions Court for Sullivan
County. The civil warrant alleged violations of the Sullivan
County Zoning Resolution (“the Resolution”). The General
Sessions Court found that Lyon was in violation of the Resolution
and issued an injunction ordering him to remove certain heavy
equipment and related parts from his property.
Lyon appealed to the Law Court for Sullivan County. On
November 5, 1998, counsel for the County and counsel for Lyon
discussed by phone the possibility of settlement. The County’s
counsel drafted a proposed agreed order. The next day, the
County, Lyon, and Lyon’s counsel negotiated the terms of the
settlement for four hours. This negotiation resulted in a
document entitled “Agreed Order” consisting of typewritten
provisions and numerous handwritten modifications (“the Original
Agreed Order”). Lyon informed his attorney and the County that
he would not sign the document until it was re-typed. After Lyon
left the building, the parties’ counsel met with the trial judge,
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signed the Original Agreed Order, and “announced” it in open
court. Lyon’s signature line was left blank. In Lyon’s absence,
the trial court was unable to confirm his consent to the rough-
draft, not-ready-to-be-entered order; and, at that juncture, was
therefore unable to orally bind him personally to it.
When the County’s attorney presented the re-typed Agreed
Order to Lyon, Lyon refused to sign it, asserting that it
contained provisions to which he had not agreed. The County’s
attorney then presented the Original Agreed Order to the trial
court. This Order was signed by the trial judge and filed on
December 1, 1998. Lyon appeals, asserting that he did not
consent to the Original Agreed Order.
II.
We hold that the trial court’s entry of the Original
Agreed Order was improper. A court’s power to render a judgment
by consent is necessarily dependent upon the consent of the
parties. Harbour v. Brown for Ulrich, 732 S.W.2d 598, 599 (Tenn.
1987). This consent must “exist at the very moment the court
undertakes to make the agreement the judgment of the court.” Id.
(quoting Burnaman v. Heaton, 240 S.W.2d 288, 291 (Tex. 1951)).
We find and hold that consent did not exist at the time
the trial court undertook to make the agreement the judgment of
the court. It was only after Lyon refused to sign the re-typed
Agreed Order that the County presented the Original Agreed Order
to the trial court for filing. Because consent did not exist at
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the time the judgment was entered, the consent judgment is
invalid.
The judgment of the trial court is vacated. This case
is remanded for further determinations consistent with this
opinion, pursuant to applicable law. Costs on appeal are taxed
to the appellee.
__________________________
Charles D. Susano, Jr., J.
CONCUR:
________________________
Houston M. Goddard, P.J.
________________________
D. Michael Swiney, J.
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