In Re Estate of Creswell

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

May 15, 2007 Session

IN RE: ESTATE OF G. WALLACE CRESWELL, ORAL RUTH

CRESWELL v. JAMES STEWART CRESWELL

Direct Appeal from the Probate Court for Blount County

No. 04-24-250 Hon. Hugh E. Delozier, Jr., Judge

No. E2006-01741-COA-R9-CV - FILED JUNE 7, 2007

In this Estate, the parties in open court announced the terms of settlement between them of the entire

Estate. Appellant sought to set aside the settlement on the grounds of duress, but after an evidentiary

hearing the Trial Court refused to set aside the settlement. On appeal, we affirm.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Probate Court Affirmed.

HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which D. MICHAEL SWINEY ,

J., and SHARON G. LEE, J., joined.

Robert M. Cohen, Maryville, Tennessee, for appellant.

W. Phillip Reed, Maryville, Tennessee, for appellee.

OPINION

The issue before us arises out of the Estate of G. Wallace Creswell. Creswell died

testate on June 30, 2004, and his widow, Oral Ruth Creswell, presented his Will for probate, as she

was named executrix of the estate. The Will gave her certain bequests, and gave the remainder of

the Estate to Creswell’s son by a prior marriage, James Stewart Creswell. Ms. Creswell gave Notice

of Surviving Spouse’s Election Against Will, and an Application for Homestead. This matter was

set for July 13, 2005.

On July 13, the Court enquired of the parties if they were ready to proceed, and they

replied they were. Mrs. Creswell’s attorney then announced to the Court that they had reached a

settlement agreement which not only settled the motions before the Court, but also settled the entire

estate. The Court asked them to present the agreement, and Mrs. Creswell’s attorney announced that

the residence on Maury Street would be Mrs. Creswell’s sole property, free of any claim of the son,

and that he would sign a quitclaim deed acknowledging such. The attorney stated there was a

$73,000.00 CD at American Fidelity, along with a small administrative account that Mrs. Creswell

had opened for the Estate, and that she would retain both of those as her sole property.

Mrs. Creswell’s attorney stated that regarding the personalty, Mr. Creswell would

receive one washstand with a red bowl and pitcher. There was then a recess, and the parties returned

and announced that Mr. Creswell would receive two washstands, one pitcher and a bowl. The parties

agreed that Mr. Creswell would also receive all of the carnival glass, and the curio cabinet with the

collection of bells. The parties agreed that Mr. Creswell would receive the collection of mustache

cups, and the collection of clocks, and would receive the boxes of brass objects and metal art that

were in the basement. Further, that Mr. Creswell would receive the fruitwood china cabinet, and all

of the silver objects, which his mother had collected. Also Mr. Creswell would receive boxes of

coins, Masonic items, and a watch and pocketknife belonging to his father. Mr. Creswell was also

to receive a filing cabinet with records, his mother’s set of dishes, the contents of the shop, a boat

and motor, a bed and chest of drawers from the basement, and all other contents of the basement

except the lawn mower, freezer, tools, and washer/dryer. He would also get his father’s recliner, a

copper plant stand, his father’s guns, the downstairs refrigerator, and a Cadillac and a truck.

Mr. Creswell was to receive a claw and ball chair, a picture, and any other

memorabilia from his parents’ trip to Australia. The parties agreed the Court would set Mrs.

Creswell’s attorney’s fee as an administration expense chargeable to the estate, and that he would

present an affidavit of his time.

The Court asked if this was a full settlement of all claims filed by Mrs. Creswell, and

they replied it was, and stated that it was a comprehensive settlement of all the matters in the estate.

The Court then administered the oath to Mrs. Creswell, and asked her if she agreed to the settlement,

and that it was a full and complete resolution of all of her claims, and she replied in the affirmative.

The Court then administered the oath to Mr. Creswell, and asked him if he agreed to the settlement,

and agreed to it being a full and complete settlement of the estate, and if he agreed to the setting of

fees as stated, and he replied in the affirmative. The Court then stated they would be bound to their

agreement, and that the lawyers would have to draw up the documents. The Court stated that he was

happy to be able to settle things, and he thought the decedent was honored by that.

An Order was filed on September 13, 2005, stating the parties had settled all issues

pending in the Estate, and that the only thing remaining was to close the Estate and set attorney’s

fees and administrative costs, and set forth the details of the settlement.

The next Order entered was on September 21, 2005, reciting that Mr. Creswell made

-2-

an oral motion to set aside the September 13 agreement, and the Court states that for good cause, the

Order was set aside, and ordered that a transcript be prepared of the July 13 hearing so that the

parties could prepare an appropriate Agreed Order. Mrs. Creswell then filed a Motion on November

4, 2005, stating that the parties (including Mr. Creswell’s new attorney) had received a copy of the

transcript but could not reach an Agreed Order. She attached a proposed Order which the motion

stated was believed to be an accurate statement of the settlement.

The Court then entered an Order Allowing Substitution of Counsel on November 8,

2005, and allowed attorney Robert Cohen to be substituted for Mr. Creswell’s former attorney.

Ultimately, on January 26, 2006, the Court held an evidentiary hearing on whether

the agreement between the parties should be set aside at the insistence of Mr. Creswell. At that

hearing, Mr. Creswell testified that they were in court on July 13, 2005, and that Mr. Reed

announced a settlement to the court. Creswell testified that at one point during the announcement,

they stopped and went back and he conferred with his attorney, and then the announcement

continued. Creswell admitted that he “swore to the agreement.”

Mr. Creswell testified that his understanding was that he did not have to be in court

when the motions regarding homestead, etc., were heard, because “that’s guaranteed by the statute

and there’s no hearing about it”. He stated that his understanding was that the hearing was

perfunctory, and his attendance was not required. Creswell testified that he wished to repudiate the

agreement made that day, and that he had been frustrated with his attorney for some time. He

testified that he was under a great deal of pressure that day, because they were going through

“whirlwind” negotiations with various offers being made, and he did not have a coherent, written

document to go by. He stated that he was frustrated that his father’s wishes were being preempted,

because his father said in the Will that the personalty was to go to him, but the statute allowed his

step-mother to change that. Mr. Creswell testified there had been an “angry exchange”, and he

agreed to the settlement because of what was said in the recess, and he “felt that I had limited or no

protection legally from my attorney when I came back out here.”

Following the hearing, the Court entered an Order on May 10, 2006, reciting that the

Motion to Repudiate Agreement had been heard and dismissed. The Order then stated the terms of

the announced settlement, and further stated that Mr. Creswell would receive all other assets of the

Estate including, but not limited to, the Hillard Lyons investments and Met Life Insurance, stating

these items were inadvertently omitted from the transcript.

The Court concluded that Mr. Creswell’s discussions with his attorney and his

attorney’s alleged threat to withdraw did not establish duress or lack of consent, and that Creswell

entered into the agreement knowingly and voluntarily. Subsequently, the Court granted Creswell’s

Motion for an interlocutory appeal, pursuant to Rule 9, which we granted.

The issues before the Court are:

-3-

1. Whether the Trial Court erred by refusing to allow Creswell to repudiate the

agreement announced to the Trial Court on July 13, 2005?

2. Whether the Trial Court erred by modifying and/or adding provisions to the

agreement announced on July 13, 2005,?

3. Whether this appeal is frivolous and justifies an award of damages?

Mr. Creswell argues that the parties’ settlement agreement should have been set aside,

because it was the product of duress, ambiguity, and/or mutual mistake of fact. Regarding duress,

Mr. Creswell claims that he was very frustrated with the process and with his attorney, and that while

the announcement was being made, he had a conference with his attorney that “multiplied” his

anxious mental state, and they had an “angry exchange” but he felt he had no choice but to “roll

over” and accept the agreement. He charges that the agreement is ambiguous because Mrs.

Creswell’s attorney stated during the announcement there might be other things in the house that they

had not specifically identified. He claims a mutual mistake of fact because the parties anticipated

that a hearing would be held on the day the settlement was entered.

We have defined duress as “a condition of mind produced by the improper external

pressure or influence that practically destroys the free agency of a party, and causes him to do and

act or make a contract not of his own volition, but under such wrongful external pressure.” Rainey

v. Rainey, 795 S.W.2d 139, 147 (Tenn. Ct. App. 1990). This Court went on to explain: “Although

a determination of whether a party was pressured by duress can be difficult in light of the subjective

nature of that party's mental condition at the time, ‘[w]hether such external pressure or influence is

sufficient to destroy the free agency of a party, is a question to be determined by the age, sex,

intelligence, experience and force of will of the party, the nature of the act, and all the attendant facts

and circumstances.’” Id. (citations omitted). We have further defined duress as consisting of

“unlawful restraint, intimidation, or compulsion that is so severe that it overcomes the mind or will

of ordinary persons.” Boote v. Shivers, 198 S.W.3d 732, 745 (Tenn. Ct. App. 2005).

The evidence in this record does not establish that the duress complained of by Mr.

Creswell was sufficient to destroy his free agency, or that it was severe enough to overcome his will.

He basically states that he was under pressure, was anxious, and that his attorney threatened to

withdraw if he did not agree to the settlement. As the Trial Court found, however, none of these

allegations, if true, would be sufficient to show that a man of Mr. Creswell’s age, experience, and

intelligence1 was overcome or pressured to agree to a settlement that he did not want. See also

1

Mr. Creswell holds a degree in Nuclear Engineering from the University of Tennessee, and

did graduate level studies at Georgia Tech and the National Institute of Health. He has worked as

an Engineer for the Tennessee Valley Authority, and as a Reactor Inspector for the Nuclear

Regulatory Commission.

-4-

Golden v. Hood, 2000 WL 122195 (Tenn. Ct. App. Jan. 26, 2000).

Absent such a showing, the settlement must be enforced, since its terms were

announced in open court, were affirmed by both parties under oath, and received the sanction of the

Court at that time. As was recently explained by the Supreme Court when dealing with the issue of

a party’s repudiation of a settlement agreement that was not announced to the court:

We begin our analysis with the case of Harbour v. Brown for Ulrich, 732

S.W.2d 598 (Tenn. 1987). In that case, the appellant sought specific performance of

an alleged real estate contract and the enjoining of a threatened foreclosure action

under an existing deed of trust. The appellant filed a cross-complaint for judgment

on the note secured by the deed of trust. On the day of trial, the parties announced

that they had reached an agreement, the terms of which were not announced to the

court. Prior to entry of judgment, the appellee repudiated the terms of the agreement.

Holding that the agreement was not enforceable, this Court stated that although the

resolution of disputes by agreement is encouraged, "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." Id. at 599 (citing Van

Donselaar v. Van Donselaar, 249 Iowa 504, 87 N.W.2d 311 (1958)). The Court in

Harbour further held that "consent must exist at the very moment the court

undertakes to make the agreement the judgment of the court." Harbour, 732 S.W.2d

at 599 (quoting Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288 (1951)). Thus,

"until entered by the court, the matter being the question of an agreement between the

parties, either party may repudiate the agreement because of an actual or supposed

defense to the agreement." Harbour, 732 S.W.2d at 600.

***

Citing to language in Harbour, the Court of Appeals in Environmental

Abatement noted an exception to the general rule that consent must exist at the time

of judgment. That exception would allow a court to enter a consent judgment "which

merely documents an earlier agreement even where consent does not exist at the time

of entry of the written order." Id. at 538-39. The exception provides further that

when the terms of an agreement are announced or stipulated in open court, a judge

may later enter a consent judgment based on that agreement regardless of a party's

repudiation between the time of the announcement and the judgment. Id. at 539.

This exception is rooted in the language in Harbour, which states that " '[t]he 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.' " Harbour, 732 S.W.2d at 599 (quoting

49 C.J.S. Judgments § 174(b)).

Ledbetter v. Ledbetter, 163 S.W.3d 681, 684-685 (Tenn. 2005).

-5-

Tennessee Courts uniformly hold that if the terms of a settlement are announced to

the court or memorialized in a signed, enforceable contract, a judgment may be entered thereon, even

if one party later repudiates. See Barnes v. Barnes, 193 S.W.3d 495 (Tenn. 2006); McMahan v.

McMahan, 2005 WL 3287475 (Tenn. Ct. App. 2005); Myers v. Myers, 2005 WL 936925 (Tenn. Ct.

App. Apr. 22, 2005); Persada v. Persada, 2002 WL 31640564 (Tenn. Ct. App. Nov. 22, 2002);

Golden v. Hood, 2000 WL 122195 (Tenn. Ct. App. Jan. 26, 2000).

Mr. Creswell further attacks the agreement by arguing that the terms were ambiguous,

because reference was made to “miscellaneous items in boxes”, and because the Hillard Lyons

account and Met Life Insurance were not specifically announced. A review of the proceedings,

demonstrates that its terms were sufficiently definite, and that the parties intent was for the widow

to have certain items, and then Mr. Creswell to have the rest, including the Hillard Lyons account

and Met Life Insurance, as well as various boxes of personalty in the basement that were referenced.

The parties’ intent is clear, and was appropriately memorialized in the written Orders. The terms

of the settlement were very definite and specific, especially in dealing with the items of personalty

that Mr. Creswell wanted, and there has been no ambiguity shown that would invalidate the

agreement.

Finally, Creswell argues there was a mutual mistake of fact which would render the

agreement voidable, in that the parties believed they were there for a hearing on the day they reached

a settlement, but he asserts that a hearing could not have taken place, because no administrator ad

litem had been appointed, there had been no inventory/accounting, etc. The record establishes that

the hearing had been set on Mrs. Creswell’s motions regarding year’s support, personal property,

etc., and that the Trial Court stated at the beginning of the hearing that those issues would be heard,

at which time the parties announced they had settled not only those issues, but the entire Estate. The

record does not support Mr. Creswell’s assertions regarding mutual mistake of fact. Assuming

arguendo he had a misunderstanding regarding what would occur on that day, there is no showing

of mutual misunderstanding. We hold that the Court properly entered Judgment validating the

agreement.

Next, Creswell argues the Trial Court impermissibly added provisions to the terms

of the settlement, since the Hillard Lyons account and Met Life Insurance proceeds were not

mentioned in the announcement made in open court. However, Mr. Creswell admitted he was

supposed to receive the Hillard Lyons account and the Met Life Insurance, and that this was the

parties’ intent. These items were part of the “rest of the Estate” that was to go to Mr. Creswell, and

were properly dealt with in the written Orders submitted to and entered by the Court. The parties’

intent in the settlement agreement was for Mr. Creswell to have these items, as he admits, and thus

he cannot show that they were “impermissibly” added to the terms of the settlement by the Court.

Likewise, the parties clearly agreed that the attorney’s fees would be set by the Court

and charged as an expense against the Estate, as this was part of the announced settlement.

Creswell’s argument that, by awarding him the remainder of the estate, the Court somehow

-6-

improperly charged this fee to him is without merit. The parties’ announcement was clear that this

fee would be charged to the Estate as an administration expense. Creswell simply seeks to avoid his

agreement by arguing that this is somehow inappropriate. If Creswell is to receive the remainder of

the Estate, excepting certain specific items awarded to Mrs. Creswell, under the agreement, whether

the fee is charged to the Estate as a whole or to his remainder is a distinction without a difference.

Creswell’s argument is without merit.

Mrs. Creswell argues that she should be awarded damages for Mr. Creswell’s filing

a frivolous appeal. In our discretion, we overrule this Motion and affirm the Trial Court with the

cost of the appeal assessed to James Stewart Creswell.

______________________________

HERSCHEL PICKENS FRANKS, P.J.

-7-