The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
February 2, 2010 Session
BOBBY R. HOPKINS v. DOYLE K. RIGGS, ET AL.
Appeal from the Chancery Court for Blount County
No. 04-081 W. Dale Young, Judge Sitting By Interchange
No. E2008-02811-COA-R3-CV - FILED APRIL 15, 2010
Bobby R. Hopkins (“Hopkins”) sued Doyle K. Riggs and Ruth Riggs1 (“the Riggs”) alleging,
in part, that the Riggs had contracted to construct a road on the Riggs’ property for Hopkins’
use and had failed to construct an adequate road. The Riggs filed a motion for summary
judgment and the Trial Court granted them summary judgment. The Riggs then sought
attorney’s fees pursuant to the parties’ contract. The parties then reached an agreement with
regard to attorney’s fees, an agreement which the Riggs subsequently alleged was breached
by Hopkins. The Riggs then filed a motion and the Trial Court entered an order granting the
Riggs additional attorney’s fees. Hopkins appeals to this Court raising issues regarding the
grant of summary judgment and the award of attorney’s fees. We affirm the grant of
summary judgment, hold that the Riggs were entitled to an award of attorney’s fees pursuant
to the parties’ contract, vacate the Trial Court’s November 25, 2008 Order granting
additional attorney’s fees, and remand this case to the Trial Court for entry of an order that
complies with the parties’ August 6, 2008 agreement.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed, in part; Vacated, in part; Case Remanded
D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,
P.J., and J OHN W. M CC LARTY, J. joined.
Brandon K. Fisher, Clinton, Tennessee, for the appellant, Bobby R. Hopkins.
Linda G. Shown, Alcoa, Tennessee, for the appellees, Doyle K. Riggs and Ruth Riggs.
1
Hopkins also sued William Lee Gribble, II, Kenneth M. Gribble, and Selena M. Gribble. Because
none of these other defendants are involved in the appeal now before us and, for ease of reading only, we
refer to the Riggs as the only defendants in this Opinion.
OPINION
Background
The suit now before us on appeal has a contentious and lengthy history. It
arises out of a previous lawsuit in which Hopkins sued a number of individuals concerning
access to a trailer park located on his real property. Although the Riggs were not parties to
this earlier suit, they made an offer to the parties involved in that suit which resulted in a
settlement of that suit. On January 14, 2003, the Trial Court entered an Agreed Order of
Dismissal (“Agreed Order of Dismissal”) of that suit which provided, in pertinent part:
This Matter Having Come before this Honorable Court upon
announcement by all parties and the undersigned non-parties, who agree to be
bound hereto, that they have settled and resolved the controversies which are
the subject of this action, as is more fully set forth herein, and for other good
cause shown, it is hereby Ordered, Decreed and Adjudged as follows:
1. All parties to this action and the undersigned non-parties, without
making any admission of fact or liability of any kind or nature whatsoever,
except as is specifically set forth herein, hereby agree and it is so ordered that,
except for Ronald E. Harris and wife, Helen H. Harris, their lien holders, heirs,
successors and assigns, they, from this time forward, shall have no easement,
right of way, right of ingress, or right of egress across Lot No. 8 and/or Lot
No. 9 of Acreage View Estates Subdivision. As described in the deeds of
conveyance for Lot No. 8 and Lot No. 9 of Acreage View Estates, there shall
be a twenty-five (25) foot right-of-way over Lot No. 8 of Acreage View
Estates for the purposes of ingress and egress to Lot No. 9, but no further or
otherwise. After sixty (60) days from the entry of this Agreed Order, Ronald
E. Harris and wife, Helen H. Harris, and/or Aaron A. Andrew and wife,
Geneva L. Andrew, jointly or severally, shall have the right to erect a
barricade, or other barrier mechanism, across the driveway currently in use at
any place on the driveway as located on Lot No. 9 such that use of said
driveway by parties other than the Harrises and the Andrews is precluded.
2. The Plaintiffs, Hopkins and Musical, shall require their invitees,
guests, lessees, and any other person or entity coming onto their property or in
possession of or having use of the property currently owned by Hopkins to use
the right-of-way and road provided to Hopkins and Musical across the property
of Doyle K. Riggs, and wife, Ruth Riggs, from and after sixty (60) days from
entry of this Order, and they shall require their invitees, guests, lessees and any
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other person or entity coming onto their property or having use of their
property to cease using the driveway across Lot No. 8 and Lot No. 9 of
Acreage View Estates.
3. Doyle K. Riggs and wife, Ruth Riggs, having acquired all of the
right title and interest in and to that certain real property of Leonard A.
Shepherd and wife, Lisa L. Shepherd, including the right (if any) to use the
aforesaid driveway, shall not use the alleged right-of-way across Lot No. 8 and
Lot No. 9 of Acreage View Estates.
4. Except for the right to enforce the terms and provisions of this Order
or the right to enforce the terms and provisions of the settlement agreements
and documents executed in performance of the settlement, all claims and
causes of action asserted in this action are hereby dismissed with prejudice as
to the rebringing of the same.
***
6. In the event any provision of this Agreed Order or the settlement
documents executed in conjunction herewith must be enforced by application
to this Honorable Court, this Honorable Court may award any prevailing party
a reasonable attorney’s fee, and to the extent permitted by law, may issue any
injunction or enforce the terms of this Agreed Order without requiring the
posting of any bond.
***
8. It is expressly understood and agreed that Doyle K. Riggs and wife,
Ruth Riggs have entered into this Agreed Order of Dismissal to settle doubtful
and disputed claims for economical purposes, and they are making no factual
admissions and are expressly denying any liability for any and all claims,
demands, damages, actions, causes of action or suits of any kind or nature
whatsoever, known or unknown, which have resulted or may in the future
develop and pertain to the use and/or existence of the driveway twenty-five
(25) foot wide from Janeway Drive across Lot No. 8 and Lot No. 9 of the
Acreage View Estates and the existence and/or use of the easement known as
Ruth Riggs Way.
9. Bobby R. Hopkins shall maintain the twenty-five (25) foot wide
easement for ingress and egress to his currently existing property, such
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easement running over the property of Doyle K. Riggs and Ruth Riggs and
along a new road beginning at Hutton Ridge Road, thence along a curve and
continuing to the road known as Ruth Riggs Way and running in a straight
direction parallel with a fence. Such easement inures to the benefit and use by
Bobby R. Hopkins, his guests and visitors of his property of record in
Warranty Deed Book 606, page 191 and Warranty Deed Book 615, page 656,
and such easement shall not be extended to other properties.
In addition to the Agreed Order of Dismissal, Hopkins, the Riggs, and others
also executed an Agreement which provided, in pertinent part:
5. Riggs and Hopkins shall enter into an Easement Agreement (attached
hereto as Exhibit C) wherein access to Hopkins[’] property will be granted
across Riggs’ property for the purpose of ingress and egress to Hopkins’
property, with Hopkins to be solely responsible for maintenance of such
easement unless property owners other than Riggs become entitled to use such
easement.
The Riggs executed an Easement Agreement granting to Hopkins a twenty-five foot wide
easement for ingress and egress over property owned by the Riggs “and running along a new
road beginning at Hutton Ridge Road, thence along a curve and continuing to the road known
as Ruth Riggs Way and running in a straight direction parallel with a fence to [Hopkins’]
property of record….”
In June of 2004, Hopkins sued the Riggs alleging, among other things, that the
Riggs had agreed to construct a new road for Hopkins and that the Riggs had failed to
provide an adequate road that could be used by Hopkins and his guests and invitees. The
Riggs answered the complaint denying, among other things, the allegations with regard to
construction of the road and alleging in a counter-claim, in part, that Hopkins had failed to
maintain properly the easement granted to him by the Riggs.
The Riggs filed a motion for summary judgment supported by, among other
things, the affidavit of Robert Abbott which states, in pertinent part:
2. I am the Engineering Director for the Blount County Highway
Department. I have worked with the Blount County Highway Department for
twenty[-]seven years. In my position as Engineering Director, I am familiar
with the minimum standards for road construction in Blount County. We
maintain and enforce road construction regulations for public and private roads
built in Blount County.
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3. In August 2003, the department was contacted by someone who uses
the easement which goes across the property at 5923 Hutton Ridge Road and
provides ingress and egress to property owned by Bobby Hopkins that is used
as a mobile home park. This person complained about the difficulties in using
the road.
4. I and others in my department went out to view the road, and pulled
maps and performed other necessary work to determined the circumstances
surrounding this easement.
5. As a result of this review, we have determined that the road which
goes across the property situated at 5923 Hutton Ridge Road and provides for
ingress and egress to property owned by Bobby Hopkins that is used for a
mobile home park is not subject to any minimum standards or other road
building regulations of our department. It is a private road going across
private property, and because no subdivision of property took place at the time
that the road was put in, construction of the road was not subject to any
regulations or minimum standards set by Blount County Highway Department.
The Riggs also filed a copy of Hopkins’s deposition testimony. During the deposition,
Hopkins testified about the Agreed Order of Dismissal explaining that during the first suit
the Trial Court Judge:
informed us that we were all suing the wrong people, that we needed to sue
Doyle Riggs, that he was the responsible party in this case.… Well, Mr. Riggs
stood up at this time and told him that he could solve this problem by building
us a new road and giving us an easement through his property and sell me the
property and eliminate the whole situation that we were in.
When asked what his understanding of the agreement entered into was, Hopkins stated:
That I’d get a road better than what I had and that I’d be able to bring my
invitees in, my mobile homes, and my kin folks, and then I would be able to
buy lot number three and I could put two trailers on it, and after I bought it, I
would buy the remaining ten acres of his property.
Hopkins was asked if he had worked with the Riggs in getting all the details
handled as to when and where the road was to be constructed and Hopkins replied, “No.”
He stated: “I watched while they were building this road and told them, you know, what I
agreed on and what I didn’t agree on.” Hopkins testified that he watched and informed the
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people building the road that they were putting it in the wrong place. He told them that the
road was supposed to be parallel to the fence instead of following the old tractor road. When
asked if he had insisted that the road be put in where it eventually was, Hopkins stated:
“That’s what we agreed on in court.” Further, he agreed that he made sure that it was laid
out that way.
Hopkins testified that he has problems with the grade of the road and stated:
“We’ve got a hill that’s like a 37 grade that the county says is supposed to be 13 at the max
and there’s no drainage and there’s no culverts on this road and when it rains, the whole hill
washes away.” When asked, Hopkins agreed that the grade of the road is the way it is
because he directed that the road be put in where it is and stated: “That was the agreement
where the road would be.”
Hopkins wants the easement to be wider than 25 feet at the point where it meets
Hutton Ridge Road. He testified:
Well, I’m not an engineer and the way they engineered it, they said that it
would be a 30-foot radius on one side and a 60-foot radius on the other side.
Ed of the road commission said it would take that to get a mobile home in
there. He said that’s what it would have to be.
When asked if there was any other agreement for the Riggs to construct a road
other than the Agreed Order of Dismissal, Hopkins replied: “None that I know of.” Hopkins,
however, insisted that he had a verbal agreement for the Riggs to construct a road entered
into when they were in court entering into the Agreed Order of Dismissal. He stated: “This
all happened at the same time in court when we agreed and everything.”
Hopkins admitted that he and Doyle Riggs never discussed the base of the road,
whether it would be asphalt or gravel, nor what the Riggs would pay to construct the road.
Hopkins further agreed that the entire road was to be built upon property owned by the Riggs.
Hopkins conceded that he had agreed to maintain the easement. When asked what there was
for him to maintain, he replied: “A road.… It come from Hutton Ridge to my property.”
Hopkins also claimed that he and Doyle Riggs entered into a verbal contract
on March 12, 2002, approximately ten months before the entry of the Agreed Order of
Dismissal, during a discussion at the Riggs’ house. He explained:
A year before we ever built the road, I was at this house and I took that letter
up there from Virginia Crouch that she and Andrews they said that they was
suing me and Doyle. And I took that up there and that’s when he told me, he
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says, well, we’ll eliminate this problem.
He said if worse comes to worse, we’ll just build a new road. And he
said we’ll come on that side of the house. He said you can’t come down this
side and said we’ll just curve it in. And asked me if I’d still buy the property
and I said yes.
And that’s when I told him I’d have to, you know, buy lot three and put
a couple of trailers on it or I couldn’t buy that all at one time. And I said after
I did that, I’d buy the rest of this and I’d have a good road, you know, and
wouldn’t have no problems, and he just moved to Madisonville.
Hopkins then stated that the easement agreement shows “what we agreed on.” When asked,
Hopkins admitted that during this conversation when they made the alleged verbal
agreement, he and Doyle Riggs did not agree on any other terms of the contract and that
nothing was put into writing. Hopkins agreed that during their conversation he and Doyle
Riggs did not agree for the Riggs to get permits, did not agree on anything with regard to
drainage, did not agree about meeting zoning regulations, did not agree about what type of
gravel would be used, did not agree about the grade of the road, did not agree that the road
would be safe and usable, and did not agree as to when the road would be completed.
By order entered February 28, 2007, the Trial Court granted the Riggs summary
judgment. The Riggs then filed a motion seeking an award of attorney’s fees and
discretionary costs pursuant to the Agreed Order of Dismissal. By order entered December
14, 2007, the Trial Court ordered Hopkins to pay the Riggs’ attorney’s fees in the amount of
$36,720 plus ten percent interest and further ordered Hopkins to pay discretionary costs of
$2,428 plus ten percent interest.
On February 26, 2008, the Trial Court entered a Final Judgment Between
Plaintiff Bobby R. Hopkins and Defendants Doyle K. Riggs and Wife, Ruth Riggs pursuant
to Tenn. R. Civ. P. 54.02. Hopkins moved to set aside the February 26, 2008 judgment
alleging that the Riggs’ counter-complaint had “not been disposed of by any Motion or
pleading by any party and remains an issue to be decided between Plaintiff Bobby R.
Hopkins and Defendants Doyle K. Riggs and wife, Ruth Riggs.” The Riggs filed a motion
for sanctions. Hopkins also filed an appeal with this Court, which subsequently was
dismissed.
On August 6, 2008, the parties were able to reach an agreement with regard to
the pending motion to set aside the February 26, 2008 judgment and the pending motion for
sanctions. This agreement was memorialized in a transcript and the Trial Court entered an
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order on August 22, 2008 finding and holding that the parties had agreed to dismiss the
motion to set aside the final judgment and the motion for sanctions, and dismissing these
motions with prejudice.
In pertinent part, the Agreement entered into by the parties on August 6, 2008
(“August 6, 2008 Agreement”) provides:
Today a check will be written by Bobby R. Hopkins in the amount of twenty
thousand dollars and no cents made payable to Doyle and Ruth Riggs. The
sum of fifteen hundred dollars will be paid by Bobby R. Hopkins to Doyle and
Ruth Riggs by September 6th at 12:00 p.m. midnight. Time is of the essence,
or on September 7, 2008 an entry of twenty-seven thousand eight hundred
dollars no cents plus ten percent statutory interest will be entered as a
judgment with no right of appeal and immediate execution shall issue.
The appeal of Bobby Hopkins to the Appellate Court in this matter will
be dismissed effective today, and counsel for Mr. Hopkins will file the
necessary paperwork to have that appeal dismissed. Doyle and Ruth Riggs
shall agree to release the lien on the property of Bobby R. Hopkins.
***
And [Hopkins’ attorney] will forward to [the Riggs’ attorney] the release that
they’re requesting Doyle and Ruth Riggs to sign, and assuming that that will
be acceptable, then the Riggs will sign that immediately and it will be
forwarded back to [Hopkins’ attorney] for recording in the Blount County
Register of Deeds office.
All court costs will be taxed to Bobby R. Hopkins, and the court
reporter fee today will be shared between Bobby R. Hopkins and Doyle and
Ruth Riggs.
Is that your understanding, [Hopkins’ attorney]?
[HOPKINS’ ATTORNEY]: It is, and I just want to clarify that the
twenty-seven thousand eight hundred judgment, which we don’t anticipate
being entered, but if it is entered, that overtakes the previous judgment for
attorney’s fees in this case.
[THE RIGGS’ ATTORNEY]: That is correct, because we are receiving
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twenty thousand dollars today.
After the terms of the agreement were announced, Hopkins and the Riggs were sworn in and
each was asked if they understood and agreed with those terms and all parties stated that they
understood and agreed. The same day the agreement was memorialized, Hopkins presented
two checks made out to the Riggs, one in the amount of $4,500 and one in the amount of
$15,500, which together totaled $20,000.
The check in the amount of $15,500 which Hopkins provided to the Riggs on
August 6, 2008 was returned for insufficient funds. On August 20, 2008, the Riggs filed a
motion seeking to enforce the parties’ August 6, 2008 agreement. In this motion, the Riggs
requested a judgment against Hopkins in the amount of $43,300. Hopkins delivered a check
for $17,000 to the Riggs’ attorney by having the check slipped under the attorney’s office
door on September 5, 2008. The Trial Court held a hearing and entered an order on
September 8, 20082 finding and holding, inter alia, that Hopkins had materially and willfully
breached the parties’ August 6, 2008 agreement by presenting a check for $15,500 which was
returned for insufficient funds, and that the Riggs shall have a judgment against Hopkins for
$44,800 plus statutory interest of ten percent with a credit of $17,000 for the payment that
Hopkins delivered to the Riggs’ attorney on September 5, 2008. The Trial Court certified
the September 8, 2008 judgment as a final judgment pursuant to Tenn. R. Civ. P. 54.02.
On November 10, 2008, Hopkins filed a motion to set aside the order entered
September 8, 2008 or, in the alternative, to enforce the August 6, 2008 Agreement. On
November 25, 2008, the Trial Court entered an order modifying its September 8, 2008 order
and holding that the Riggs shall have a judgment against Hopkins in the amount of
$34,433.81 plus post-judgment interest of ten percent per annum. The Trial Court certified
the November 25, 2008 order as a final judgment pursuant to Tenn. R. Civ. P. 54.02.
On December 23, 2008, Hopkins filed a motion to reconsider or, in the
alternative, for clarification. The Trial Court denied this motion by order entered April 22,
2009 finding that a motion to reconsider is not authorized and that no clarification was
necessary. Hopkins then filed this appeal to this Court.
Discussion
Although not stated exactly as such, Hopkins raises five issues on appeal: 1)
2
The order actually was signed and entered by the Trial Court on September 9, 2008. The parties
and the Trial Court, however, all refer to this order as the September 8, 2008 order. For the sake of
continuity, we will refer to this order as the September 8, 2008 order.
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whether the Trial Court erred in certifying the November 25, 2008 order as a final judgment;
2) whether the Trial Court erred in granting summary judgment to the Riggs; 3) whether the
Trial Court erred in awarding to the Riggs attorney’s fees in its December 14, 2007 order;
4) whether the Trial Court erred in awarding to the Riggs additional attorney’s fees in its
September 8, 2008 order as modified by the November 25, 2008 order; and, 5) whether the
award of attorney’s fees is excessive. The Riggs move this Court to take notice of “the post
judgment settlement agreement entered into by the parties, pursuant to Rule 14, T.R.A.P. and
attached hereto as Exhibit 2 and in the Technical Record at Vol. VI.” The Riggs also raise
an issue regarding whether this appeal should be deemed frivolous as Hopkins waived his
right to appeal in the August 6, 2008 Agreement, and request an award of attorney’s fees on
appeal.
We first address the issue of whether the Trial Court erred in certifying the
November 25, 2008 order as a final judgment. Hopkins asserts in his brief on appeal that
the Riggs filed a counter-claim that “never reached disposition” and for this reason the Trial
Court erred in certifying the judgment as a final judgment. Interestingly, a careful and
thorough review of the record on appeal reveals that on July 19, 2007, Hopkins filed a
Motion to Dismiss Counter-Complaint which alleged, in pertinent part:
1. The Counter-Complaint does not state a claim on which relief can
be granted pursuant to Rule 12 of the Tennessee Rules of Civil Procedure.
2. In the alternative, [Hopkins] would show that the Counter-Complaint
prays for no action on behalf of [Hopkins]. Rather, the only action requested
is that [Hopkins] be required to maintain a road. Without judgment requested
against [Hopkins], the Counter-Complaint seeks nothing from Counter-
Defendant Bobby Hopkins and should be dismissed.
More importantly, however, the Trial Court specifically certified its November
25, 2008 order as a final judgment stating:
Notwithstanding that there are other issues related to other parties in
this case, the Court directs that this Judgment finalizes all claims between
[P]laintiff and Defendants Riggs and is a final judgment under Rule 54.02 of
the Tennessee Rules of Civil Procedure., [sic] and the Court makes the express
determination that there is no just reason for delay.
Thus, the Trial Court ruled upon all issues before it with regard to these parties and implicitly
dismissed the counter-complaint. The Riggs raise no issue regarding the dismissal of their
counter-complaint. The Trial Court complied with Tenn. R. Civ. P. 54.02 and properly
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certified the November 25, 2008 order as a final judgment. This issue is without merit.
We next consider whether the Trial Court erred in granting summary judgment
to the Riggs. Our Supreme Court reiterated the standard of review in summary judgment
cases as follows:
The scope of review of a grant of summary judgment is well
established. Because our inquiry involves a question of law, no presumption
of correctness attaches to the judgment, and our task is to review the record to
determine whether the requirements of Rule 56 of the Tennessee Rules of Civil
Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.
1997); Cowden v. Sovran Bank/Cent. S., 816 S.W.2d 741, 744 (Tenn. 1991).
A summary judgment may be granted only when there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter
of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.
1993). The party seeking the summary judgment has the ultimate burden of
persuasion “that there are no disputed, material facts creating a genuine issue
for trial . . . and that he is entitled to judgment as a matter of law.” Id. at 215.
If that motion is properly supported, the burden to establish a genuine issue of
material fact shifts to the non-moving party. In order to shift the burden, the
movant must either affirmatively negate an essential element of the
nonmovant’s claim or demonstrate that the nonmoving party cannot establish
an essential element of his case. Id. at 215 n.5; Hannan v. Alltel Publ’g Co.,
270 S.W.3d 1, 8-9 (Tenn. 2008). “[C]onclusory assertion[s]” are not sufficient
to shift the burden to the non-moving party. Byrd, 847 S.W.2d at 215; see also
Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our state does not
apply the federal standard for summary judgment. The standard established
in McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998),
sets out, in the words of one authority, “a reasonable, predictable summary
judgment jurisprudence for our state.” Judy M. Cornett, The Legacy of Byrd
v. Hall: Gossiping About Summary Judgment in Tennessee, 69 Tenn. L. Rev.
175, 220 (2001).
Courts must view the evidence and all reasonable inferences therefrom
in the light most favorable to the non-moving party. Robinson v. Omer, 952
S.W.2d 423, 426 (Tenn. 1997). A grant of summary judgment is appropriate
only when the facts and the reasonable inferences from those facts would
permit a reasonable person to reach only one conclusion. Staples v. CBL &
Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). In making that assessment, this
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Court must discard all countervailing evidence. Byrd, 847 S.W.2d at 210-11.
Recently, this Court confirmed these principles in Hannan.
Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 363-64 (Tenn. 2009).
The Trial Court interpreted the contract at issue in this case, i.e., the Agreed
Order of Dismissal. As this Court explained in Kafozi v. Windward:
In resolving a dispute concerning contract interpretation, our task is to
ascertain the intention of the parties based upon the usual, natural, and
ordinary meaning of the contract language. Planters Gin Co. v. Fed.
Compress & Warehouse Co., Inc., 78 S.W.3d 885, 889-90 (Tenn. 2002)(citing
Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn. 1999)). A determination of
the intention of the parties “is generally treated as a question of law because
the words of the contract are definite and undisputed, and in deciding the legal
effect of the words, there is no genuine factual issue left for a jury to decide.”
Planters Gin Co., 78 S.W.3d at 890 (citing 5 Joseph M. Perillo, Corbin on
Contracts, § 24.30 (rev. ed. 1998); Doe v. HCA Health Servs. of Tenn., Inc.,
46 S.W.3d 191, 196 (Tenn. 2001)). The central tenet of contract construction
is that the intent of the contracting parties at the time of executing the
agreement should govern. Planters Gin Co., 78 S.W.3d at 890. The parties’
intent is presumed to be that specifically expressed in the body of the contract.
"In other words, the object to be attained in construing a contract is to ascertain
the meaning and intent of the parties as expressed in the language used and to
give effect to such intent if it does not conflict with any rule of law, good
morals, or public policy." Id. (quoting 17 Am. Jur. 2d, Contracts, § 245).
This Court's initial task in construing the Contract at issue is to
determine whether the language of the contract is ambiguous. Planters Gin
Co., 78 S.W.3d at 890. If the language is clear and unambiguous, the literal
meaning of the language controls the outcome of the dispute. Id. A contract
is ambiguous only when its meaning is uncertain and may fairly be understood
in more than one way. Id. (emphasis added). If the contract is found to be
ambiguous, we then apply established rules of construction to determine the
intent of the parties. Id. Only if ambiguity remains after applying the pertinent
rules of construction does the legal meaning of the contract become a question
of fact. Id.
Kafozi v. Windward Cove, LLC, 184 S.W.3d 693, 698-99 (Tenn. Ct. App. 2005).
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We begin our analysis of this issue by noting that although Hopkins asserts that
he had an oral contract with the Riggs, he admitted that there had been no agreement
regarding any of the details or particulars regarding the construction of the road, and further
admitted that what he and the Riggs had agreed to was memorialized in the Agreed Order of
Dismissal. Hopkins testified that during the conversation that he had with Doyle Riggs prior
to the entry of the Agreed Order of Dismissal, Doyle Riggs stated: “if worse comes to worse,
we’ll just build a new road.” Hopkins, however, admitted that whatever he and Doyle Riggs
agreed to during that conversation was memorialized in the Easement Agreement entered into
by the parties pursuant to the Agreed Order of Dismissal. Furthermore, a vague statement
such as “if worse comes to worse” is insufficient to support the assertion that a contract was
formed based upon this language. Hopkins testified that despite his assertions of an oral
contract, he and the Riggs never reached any agreement whatsoever with regard to any details
of constructing a road and, as such, any such alleged oral agreement is simply too vague to
constitute a contract. Further, Hopkins admitted that the agreement reached between him and
Doyle Riggs was memorialized in the Agreed Order of Dismissal and the Easement
Agreement entered into by the parties in connection therewith. Therefore, the assertion that
an oral contract for the construction of the road exists is without merit.
With regard to the contract embodied in the Agreed Order of Dismissal, we
begin by noting that the contract is not ambiguous. As such, we must look to the literal
meaning of the words of the contract to determine the intention of the parties. In the Agreed
Order of Dismissal, Hopkins agreed, as pertinent to this issue, “to use the right-of-way and
road provided to Hopkins and Musical across the property of Doyle K. Riggs, and wife, Ruth
Riggs, from and after sixty (60) days from entry of this Order…;” to require his invitees,
guests, and lessees to use this road; and to maintain this road. The Riggs agreed, with regard
to this issue, to grant Hopkins a “twenty-five (25) foot wide easement for ingress and egress
to his currently existing property, such easement running over the property of Doyle K. Riggs
and Ruth Riggs and along a new road beginning at Hutton Ridge Road, thence along a curve
and continuing to the road known as Ruth Riggs Way and running in a straight direction
parallel with a fence.”
Nowhere in the Agreed Order of Dismissal does it provide any specifics stating
that the Riggs had agreed to build a road of any type. Rather, the Agreed Order of Dismissal
clearly and unambiguously states that the Riggs agreed to provide an easement that could be
used for ingress and egress, which they did. The Riggs did not agree to construct a road. We
find, as did the Trial Court, that there are no genuine issues of material fact in dispute and
that the Riggs are entitled to summary judgment as a matter of law.
Next we consider whether the Trial Court erred in awarding to the Riggs
attorney’s fees in its December 14, 2007 order. The Agreed Order of Dismissal clearly and
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unambiguously provides: “In the event any provision of this Agreed Order or the settlement
documents executed in conjunction herewith must be enforced by application to this
Honorable Court, this Honorable Court may award any prevailing party a reasonable
attorney’s fee ….” Hopkins attempted to enforce the Agreed Order of Dismissal by
application to the Trial Court and, therefore, the Trial Court may award attorney’s fees to
“any prevailing party” in this action. As Hopkins attempted to enforce the Agreed Order of
Dismissal and the Riggs prevailed in the suit when they were granted summary judgment, we
fail to see how Hopkins can now assert that the Riggs may not be awarded attorney’s fees
pursuant to the Agreed Order of Dismissal. As the Trial Court may award the Riggs
attorney’s fees pursuant to the parties’ contract, we need not discuss whether an award would
be proper on equitable grounds.
We next consider whether the Trial Court erred in awarding to the Riggs
additional attorney’s fees in its September 8, 2008 order as modified by the Trial Court’s
November 25, 2008 order. The record on appeal reveals that Hopkins and the Riggs reached
an agreement with regard to the Trial Court’s December 14, 2007 order, which ordered that
the Riggs had a judgment against Hopkins for $36,720 in attorney’s fees, and $2,428 in costs,
plus statutory interest on both amounts. The agreement reached by the parties was
memorialized in the August 6, 2008 Agreement. In pertinent part, the August 6, 2008
Agreement provided that if Hopkins failed to deliver by September 6, 2008 the monies as
specified, then a judgment would be entered in the amount of $27,800, plus ten percent
statutory interest. Hopkins did fail to deliver the monies as specified when one of the checks
that he provided on August 6th as required by the August 6, 2008 Agreement was returned
for insufficient funds. Thus, as per the parties’ August 6, 2008 Agreement, a judgment of
$27,800 plus statutory interest should have been entered.
The August 6, 2008 Agreement did not, however, provide for any further
awards of attorney’s fees incurred in enforcing the August 6, 2008 Agreement. Thus, the
Riggs were not entitled to an award of additional attorney’s fees in the September 8, 2008
order, or in any subsequent orders enforcing the parties’ August 6, 2008 Agreement. The
September 8, 2008 order did not enforce the Agreed Order of Dismissal, which already had
been enforced by the August 6, 2008 Agreement. Rather, the September 8, 2008 order
enforced the parties’ August 6, 2008 Agreement which did not provide for any further award
of attorney’s fees to any party.
Therefore, we vacate the Trial Court’s November 25, 2008 order and remand
this case to the Trial Court for entry of an order which complies with the parties’ August 6,
2008 Agreement, with credit to be given for amounts already paid by Hopkins. Neither party
is entitled to attorney’s fees in connection with the order which we hereby direct the Trial
Court to enter.
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Next we consider whether the award of attorney’s fees was excessive. Given
that we have vacated the Trial Court’s November 25, 2008 order awarding additional
attorney’s fees, this issue is pretermitted with regard to the attorney’s fees awarded in that
order. As for the first order awarding attorney’s fees, i.e., the December 14, 2007 order,
Hopkins and the Riggs reached an agreement with regard to it, the August 6, 2008
Agreement. In the August 6, 2008 Agreement, Hopkins and the Riggs agreed as to amounts
that Hopkins would pay to the Riggs. As Hopkins freely and voluntarily agreed to the
amounts he would pay in lieu of the December 14, 2007 order, he cannot now claim that the
amount of attorney’s fees awarded by this order was excessive. This issue is without merit.
We next consider the Riggs’ motion requesting that this Court take notice of
the post-judgment settlement agreement entered into by the parties. This so called post-
judgment settlement agreement to which the Riggs refer is the August 6, 2008 Agreement,
which is not a post-judgment settlement. As it already had properly been included in the
record on appeal, we are puzzled as to why the Riggs felt it was necessary to ask this Court
to take notice of this agreement. As the August 6, 2008 Agreement was properly included
in the record on appeal and has been considered by this Court as discussed fully above, this
motion is moot.
Finally, we consider the issue raised by the Riggs of whether this appeal should
be deemed frivolous as Hopkins waived his right to appeal in the August 6, 2008 Agreement.
“‘A frivolous appeal is one that is ‘devoid of merit,’ or one in which there is little prospect
that [an appeal] can ever succeed.’” Morton v. Morton, 182 S.W.3d 821, 838 (Tenn. Ct. App.
2005) (quoting Industrial Dev. Bd. of the City of Tullahoma v. Hancock, 901 S.W.2d 382,
385 (Tenn. Ct. App. 1995)).
The assertion that Hopkins waived his right to appeal in the August 6, 2008
Agreement is correct insofar as Hopkins waived his right to appeal a judgment put down in
compliance with the August 6, 2008 Agreement. As discussed above, however, the
November 25, 2008 order did not comply with the parties’ August 6, 2008 Agreement. As
such, Hopkins did not waive his right to appeal the November 25, 2008 final order.
Furthermore, the Riggs assert that Hopkins waived his right to appeal the grant of summary
judgment by virtue of the August 6, 2008 Agreement. This assertion is incorrect. The
August 6, 2008 Agreement clearly and unambiguously provides that Hopkins waived his
right to appeal entry of a judgment in the amount of $27,800 plus ten percent statutory
interest. Such a judgment never was entered. Hopkins did not waive his right to appeal any
other judgment. As such, we find that Hopkins did not waive his right to appeal the issues
now before us. As Hopkins has prevailed, albeit partially in this appeal, in the sense that this
Court has vacated the November 25, 2008 order, we decline to find this appeal frivolous and
further decline to award any attorney’s fees on appeal.
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Conclusion
The judgment of the Trial Court is affirmed as to the grant of summary
judgment to the Riggs. The judgment of the Trial Court is vacated as to the November 25,
2008 order awarding additional attorney’s fees to the Riggs, and this cause is remanded to
the Trial Court for entry of an order which complies with the parties’ August 6, 2008
Agreement, and for collection of the costs below. The costs on appeal are assessed one-half
against the appellant, Bobby R. Hopkins and his surety; and one-half against the appellees,
Doyle K. Riggs and Ruth Riggs.
_________________________________
D. MICHAEL SWINEY, JUDGE
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