SE Property Holdings, LLC v. Harrell et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SE PROPERTY HOLDINGS, LLC, )
)
Plaintiff, )
)
v. ) CIV. ACT. NO. 1:22-cv-123-TFM-B
)
DAVID L. HARRELL, et al., )
)
Defendants. )
MEMORANDUM OPINION AND ORDER
Pending before the Court is SE Property Holdings, LLC’s Motion to Enforce Compromise
(Doc. 107, filed 10/29/24). In its motion, SE Property Holdings , LLC (“Plaintiff” or “SEPH”),
requests that the Court enforce a settlement agreement (the “Settlement”) as to Defendant Carolyn
Harrell (“Mrs. Harrell”), Defendant Southern Land Brokers, LLC (“SLB”) (Mrs. Harrell and SLB,
the “Defendants”), and Bell Hollow, LLC (“Bell Hollow”), a non-party to this litigation that
executed the Settlement.1 Defendants did not file a written response to the motion. The Court
held a hearing on the matter on December 2, 2024. Having considered the Motion, oral arguments
and evidence presented at the hearing, the Court issued an oral ruling announcing its findings and
conclusions on December 3, 2024. See Doc. 128. Based on the evidence presented at the hearing
and as stated on the record on December 3, 2024, the Court ordered that the motion was granted
1 Defendant David L. Harrell (“Mr. Harrell”) also executed the Settlement, but this case has been
stayed as to him given that he is currently a debtor in a Chapter 7 bankruptcy proceeding. SEPH
has filed a motion with the Bankruptcy Court to approve the Settlement as to Mr. Harrell, who
testified at the Hearing that he did not object to the Settlement being enforced as to him. In this
Order, Mr. Harrell, Mrs. Harrell, SLB, and Bell Hollow will sometimes be referred to collectively
as the “Harrell Parties.”
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and that a written opinion would follow. This is that opinion.2
I. JURISDICTION AND VENUE
The Court has subject matter jurisdiction over the claims in this action pursuant to 28
U.S.C. § 1332 (diversity jurisdiction). The Court has personal jurisdiction over the claims in this
action because the events that gave rise to this action occurred within this district. See Consol.
Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291-92 (11th Cir. 2000) (“Specific jurisdiction arises
out of a party’s activities in the forum that are related to the cause of action alleged in the
complaint. . . . General personal jurisdiction, on the other hand, arises from a defendant’s contacts
with the forum that are unrelated to the cause of action being litigated. The due process
requirements for general personal jurisdiction are more stringent than for specific personal
jurisdiction, and require a showing of continuous and systematic general business contacts between
the defendant and the forum state.”). Venue is proper in this Court pursuant to 28 U.S.C. §
1391(b)(2) because a substantial part of the events that gave rise to the claims in this matter
occurred in this judicial district.
2 The Court had instructed SEPH to submit a draft opinion which was received on December 13,
2024. See Docs. 128, 131. However, after review, the Court determined that it was not sufficient
for the intended robust ruling and merely repeated what the Court had already orally stated (as
noted by the transcript) with no additional citation or analysis. As such, the Court drafted this
opinion independent of that submission. This morning, after the Court had already finished its
opinion, the Court received SEPH’s notice of the bankruptcy court’s ruling (Doc. 132) and
therefore added to the opinion to incorporate that additional update and reference. The Court is
aware that a revised draft opinion was submitted by email in the morning and then docketed
pursuant to the Court’s policy (see Doc. 133), but as the Court has already made its determination
and finished its opinion, it was not considered or utilized. Additionally, the Court was made aware
through its lead law clerk that several emails had been exchanged and the parties had been
informed that the Court does not accept letter pleadings or debate. At this time, the Court declines
to wait further on the release of this opinion as the parties had adequate opportunity to litigate at
the hearing and after the first submission on December 13, 2024. The Court finds no need to wait
on any further objections or responses since the Court already declined to utilize the draft opinions
submitted.
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II. BACKGROUND
On April 25, 2024, the Court held a status conference to discuss the status of the case in
light of the pending bankruptcy petition in the United States Bankruptcy Court for the Middle
District of Alabama. See Doc. 77. The Court set an additional follow up conference for May 1,
2024. See Doc. 79. After these two status conferences, the Court determined it necessary to brief
the issue about the impact of the bankruptcy stay on the overall case since the Court could not
proceed against Defendant David Harrell (“Mr. Harrell”). See Doc. 83. After the Court received
the parties’ briefs (Docs. 88, 89), the Court determined on May 17, 2024, that the trial would be
continued until after the Bankruptcy trial scheduled August 2024. See Docs. 90, 91. On September
3, 2024, the Court was made aware that the parties had reached a settlement in the bankruptcy
proceedings during the trial proceedings and directed the parties to file a joint status report
indicating how that settlement impacted the claims and counterclaims in this case. See Doc. 99.
During that time frame, the parties’ positions diverged as to whether there was in fact a global
resolution of the cases. See Docs. 100, 101, 103, 104, 105, 106.
SEPH then filed the instant motion to enforce the compromise. See Doc. 107. The Court
held the briefing on the motion in abeyance pending the upcoming pretrial conference. See Doc.
108. The Court noted that it had concerns regarding jurisdictional questions involving multiple
courts over differing lawsuits, parties, and a non-party. Id.
At the pretrial conference on November 8, 2024, the Court discussed the posture of the
case and informed the parties of its intention to proceed with a consolidated proceeding given the
length of time this case has taken to resolve. The Court would first proceed with the motion to
enforce compromise on December 2, 2024. If that motion did not resolve the case, the Court would
proceed with a hearing on the partial motion for summary judgment and motion to strike
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evidentiary materials. Finally, if needed, the Court would proceed to a jury trial on December 9,
2024. See Docs. 114, 120.
On December 2, 2024, the Court held an evidentiary hearing and oral arguments on the
motion to enforce compromise. After reviewing the motion (Doc. 107) plus exhibits, hearing and
reviewing the evidence presented (Doc. 129), and having oral arguments made by counsel, the
Court issued its oral ruling on December 3, 2024. See Doc. 130. Put simply, the Court determined
that the motion to enforce was due to be granted.
III. DISCUSSION AND ANALYSIS
“Federal courts possess certain inherent powers . . . to manage their own affairs so as to
achieve the orderly and expeditious disposition of cases.” Goodyear Tire & Rubber Co. v. Haeger,
581 U.S. 101, 107 (2017) (citation and internal quotation marks omitted). One such “inherent
power [is] to . . . enforce settlement agreements entered into by parties litigant in a pending case.”
Cia Anon Venezolana De Navegacion v. Harris, 374 F.2d 33, 36 (5th Cir. 1967).3 “A district court
retains ‘jurisdiction to enforce a settlement agreement when . . . a party claims a breach of the
settlement agreement before the court has dismissed the action.’” Szanto v. Bistritz, 743 F. App’x
940, 942 (11th Cir. 2018)4 (quoting Kent v. Baker, 815 F. 2d 1395, 1396 (11th Cir. 1987)).
“Principles governing general contract law apply to interpret settlement agreements.” Resnick v.
Uccello Immobilien GMBH, Inc., 227 F.3d 1347, 1350 (11th Cir. 2000) (citations omitted). “When
3 Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (adopting all
decisions of the former Fifth Circuit announced prior to October 1, 1981 as binding precedent in
the Eleventh Circuit.
4 In this Circuit, “[u]npublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir. R. 36-2 (effective Dec. 1, 2014); see also Henry v.
Comm’r of Soc. Sec., 802 F.3d 1264, 1267 n.1 (11th Cir. 2015) (per curiam) (“Cases printed in the
Federal Appendix are cited as persuasive authority.”).
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the facts material to the question whether a contract was formed are in dispute, the fact-finder must
resolve that dispute.” Walker v. Walker, 144 So. 3d 359, 364 (Ala. Civ. App. 2013) (citing
Sunnyland Mobile Homes, Inc. v. Thompson, 384 So. 2d 1111 (Ala. Civ. App. 1980)). “However,
when the facts material to the question whether a contract was formed are undisputed, the existence
of a contract is a question of law for the court.” Id. (citing Denson v. Kirkpatrick Drilling Co., 144
So. 86, 91 (Ala. 1932)).
While general principles of contract law apply to the settlement agreement at issue, the
Court will recite Alabama’s substantive law as a reference. See Winn-Dixie Stores, Inc. v.
Dolgencorp, LLC, 746 F.3d 1008, 1020 (11th Cir. 2014) (“Erie Railroad Co. v. Tompkins, 304
U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), commands that we apply the substantive law of
Florida, the forum state, in this diversity action filed in the Southern District of Florida.” (citing
Nebula Glass Int’l, Inc. v. Reichhold, Inc., 454 F.3d 1203, 1212 (11th Cir. 2006)). “[T]he basic
elements of a contract are an offer and an acceptance, consideration, and mutual assent to the
essential terms of the agreement.” Sirote & Permutt, P.C. v. Caldwell, 293 So. 3d 867, 873 (Ala.
2019) (citations omitted). “It is well settled that whether parties have entered a contract is
determined by reference to the reasonable meaning of the parties’ external and objective actions.”
SGB Const. Servs., Inc. v. Ray Sumlin Const. Co., Inc., 644 So. 2d 892, 895 (Ala. 1994). “Conduct
of one party from which the other may reasonably draw an inference of assent to an agreement is
effective as acceptance.” Id. (citing Deeco, Inc. v. 3-M Co., 435 So. 2d 1260 (Ala. 1983)).
“However, settlement agreements, like other agreements, are not valid when there has been no
meeting of the minds with regard to the final terms of the agreement, . . . , or when the parties have
merely agreed to later agree . . . .” Grayson v. Hanson, 843 So. 2d 146, 150-51 (Ala. 2002) (internal
citations omitted).
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Under Alabama law, whether the parties to a settlement had a meeting of the minds
“sufficient to form a contract is judged by objective factors, not the subjective state of mind of a
particular party” and depends on the “objective conduct” of the parties. Alassmar v. City of
Homewood, Civ. Act. No. 2:10-CV-2100-TMP, 2012 WL 13026677, at *4-555 (N.D. Ala. Mar.
12, 2012) (citing Allen v. Allen, 903 So. 2d 835, 841 (Ala. Civ. App. 2004)). The Alabama
Supreme Court has stated the following with regard to the phrase “meeting of the minds”:
Gonzales’s argument is premised upon a misconception of the time-honored phrase
‘meeting of the minds.’ It is true that there is no contract unless the parties assent
to the same thing and in the same sense. But if one seeks to convey his meaning
by expressions importing something different, or attaches to the proposition of the
other a significance not authorized, whatever injury may result from the
misunderstanding must be visited upon him. Thompson v. Ray, 46 Ala. 224 (1871).
Stated another way, the law of contracts is premised upon an objective rather than
a subjective manifestation of intent approach.
Professor Corbin, in his treatise on contract law, speaks to the issue of mutual assent
as follows:
“Agreement consists of mutual expressions; it does not consist of
harmonious intentions or states of mind. . . . At present, however, what we
observe for judicial purposes is the conduct of the parties. We observe this
conduct and we describe it as the expression of a state of mind. It is by the
conduct of two parties, by their bodily manifestations, that we must
determine the existence of what is called agreement. That is what is meant
by the anciently honored term ‘meeting of the minds.’ That is what is meant
by mutual assent.
“[One] may be ‘bound’ by a contract in ways that he did not intend, foresee,
or understand. The juristic effect (the resulting legal relations) of a man's
expressions in word or act may be very different from what he supposed it
would be. . . . [B]ut it is of much greater importance to realize that the courts
must determine the requirements of justice and that the legal effects thus
given to expressions of agreement are seldom exactly what one or both of
5 The Court did not find a citation available on Lexis Nexis as of the date of this opinion.
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the agreeing parties supposed or expected.” A. Corbin, Corbin on Contracts
§ 9 (1952).
. . .
Where a contract is unambiguous and plain in expression, we know of no canon of
construction that warrants an interpretation the only effect of which is to relieve a
party to the contract from consequences deemed by him hard or unfair. Where the
parties express without ambiguity their intention, no court can alter the agreement,
and no room for judicial construction is left. Springdale Gayfer’s Store Co., supra,
citing Lee v. Cochran, 157 Ala. 311, 313, 47 So. 581 (1908).
Lilley v. Gonzales, 417 So. 2d 161, 163 (Ala. 1982).
“If a party to a [federal] suit who has previously authorized a settlement changes his mind
when presented with the settlement documents, that party remains bound by the terms of the
agreement.” Fulgence v. J. Ray McDermott & Co., 662 F.2d 1207, 1209 (5th Cir. 1981)6 (citations
omitted).
A. Carolyn Harrell and Southern Land Brokers LLC
The Court turns to the settlement as it relates to Mrs. Harrell and SLB. At the evidentiary
hearing, the Court heard testimony from Mr. Harrell, Mrs. Harrell, and Mr. Anthony Bush (“Mr.
Bush”), who is Mr. Harrell’s bankruptcy counsel.7,8
Having heard the testimony of Mr. Harrell and Mrs. Harrell, the Court finds the testimony
was not credible, and the Court has drawn negative inferences from their testimony.
The Settlement (which was admitted at the Hearing as Plaintiff’s Exhibit 10) was entered
6 Fulgence was decided by the Fifth Circuit after September 1981. Therefore, it is persuasive but
not binding under Bonner, 661 F.2d 1206.
7 Mr. Bush’s testimony was directed and ordered by the Court, as the Court confirmed several
times during the Hearing.
8 The Court notes that because of the lack of jurisdiction over Bell Hollow that it makes no specific
findings here, but that nothing presented caused the Court to doubt any of its findings with regards
to the parties in this lawsuit.
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by Plaintiff and the Harrell Parties as a result of arms-length negotiations that began only after the
Harrell Parties (through Mr. Bush) approached Plaintiff (through Plaintiff’s counsel) during a
break in a trial in the related proceeding pending in the United States Bankruptcy Court for the
Middle District of Alabama (the “Bankruptcy Court”). The Court found no breach in professional
responsibility inasmuch as the parties negotiated at arm’s length and in good faith.
The Settlement was executed by each of the Plaintiffs, Mr. Harrell, Mrs. Harrell, and SLB,
without coercion or duress, and the Harrell Parties each understood the terms of the Settlement
being executed. There is no evidence that any party executed the Settlement due to fraud,
illegality, mistake, or any other possible grounds that would justify not enforcing the Settlement.
The Court is tasked only with determining whether there was a valid contractual agreement reached
between the parties, and the Court finds that there was such an agreement, including with respect
to Mr. Harrell, Mrs. Harrell, and SLB.
The undisputed evidence established that Mr. Harrell entered the Settlement and does not
object to its enforcement as to him. Additionally, the evidence established that Mrs. Harrell
discussed the Settlement with her husband and her husband’s counsel, Mr. Bush. While it is clear
that Mrs. Harrell and SLB were represented by Mr. Whittelsey, the Court finds that she was an
active participant in the negotiations though she may not have utilized Mr. Whittelsey in the
manner in which he would have liked. As noted by the Court, clients sometimes do things that
perhaps their lawyers might disagree with or counsel against. But, ultimately, lawyers do not own
clients – the clients own the lawyers. And sometimes clients make decisions without their lawyers
as Mrs. Harrell did here – whether that was wise or unwise.
What is clear is that Mrs. Harrell’s testimony at the bankruptcy trial in the related adversary
proceeding was devastating and called into serious doubt her credibility should she be called to
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testify at any subsequent trial. In fact, the Court having reviewed the testimony, finds that her
testimony then and now, to be charitable, are both less than candid until she is confronted with
undeniable evidence that causes her to grudgingly tell the truth. After consultation with Mr. Bush,
both Mr. Harrell and Mrs. Harrell decided to have Mr. Bush approach counsel for Plaintiff
regarding settlement during a break in the trial after Mrs. Harrell’s testimony concluded, in an
attempt to resolve matters before they got any worse.
The Court finds that the terms of the Settlement are not unconscionable in any sense, as
both Plaintiff and the Harrell Parties negotiated on several points and all parties gave up things
during the course of those negotiations.
Mrs. Harrell and SLB’s counsel, “Mr. Whittelsey” insinuated at the hearing that either
counsel for SEPH or counsel for Mr. Harrell in the bankruptcy case, Mr. Bush, violated ethical
duties during the negotiations but identified no evidence or law supporting this contention. In fact,
the undisputed evidence at the Hearing established that: (1) counsel for Plaintiff communicated
only with Mr. Bush; (2) Mr. Bush communicated with Defendants’ counsel, Mr. Whittelsey, before
the Settlement was finalized and executed; and (3) Mr. Bush provided Defendants with a copy of
the Settlement such that Defendants could have provided their counsel with a copy. Any argument
that the Settlement should be deemed unenforceable due to alleged ethical violations by counsel
is hereby rejected as having no basis in fact or law.
Based on the foregoing, the Court finds not only that by a preponderance of the evidence,
but also that beyond a reasonable doubt, the Settlement is an enforceable agreement between
Plaintiff, Mrs. Harrell, and SLB. To quote the Eleventh Circuit, the Court “cannot allow a litigant
to attack the integrity of the settlement process by attempting to recharacterize the focus of his
litigation after he decides he is unhappy with the settlement.” Murchison v. Grand Cypress Hotel
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Corp., 13 F.3d 1483, 1487 (11th Cir. 1994).
B. Bell Hollow LLC
The Court now turns to a discussion as to Bell Hollow, LLC (“Bell Hollow”), a non-party
to this litigation that executed the Settlement. With respect to Bell Hollow, Defendants’ counsel
implied at the Hearing that the Court may not have jurisdiction to enforce the Settlement as to Bell
Hollow, a non-party. Notably, Defendants cited no law in support of this argument nor did he file
any written objections or otherwise respond either as counsel for Mrs. Harrell, SLB, or Bell
Hollow.
Plaintiff argues that Rule 71 of the Federal Rules of Civil Procedure permits a Court to
enforce orders against a non-party. Rule 71 states, “When an order grants relief for a nonparty or
may be enforced against a nonparty, the procedure for enforcing the order is the same as for a
party.” FED. R. CIV. P. 71. Plaintiff also cites to Spotnana, Inc. v. Am. Talent Agency, Inc., Case
No. 09-CV-3698(LAP), 2013 U.S. Dist. LEXIS 15208, at *8-9, 2013 WL 227546 (S.D.N.Y. Jan.
22, 2013). The Court finds that the case is not squarely on point and the reliance upon it may be
misplaced.
The Eleventh Circuit has made it clear that “a district court has jurisdiction to enforce a
settlement agreement . . . when one party refuses to abide by the agreement prior to dismissal [of
the case].” Kent v. Baker, 815 F.2d 1395, 1399-1400 (11th Cir. 1987). This is not to say, however,
that a district court has jurisdiction over a contract dispute involving non-parties, particularly
where the settlement agreement does not contain a clause reserving jurisdiction. Since Bell Hollow
is not a party to this action, the Court does not have direct subject matter or personal jurisdiction
over it as a non-party and lacks the ability to enter a judgment that would be directly enforceable
against Bell Hollow. See, e.g. Castro v. Capital One Servs., Civ. Act. No. 8:16-cv-889, 2017 U.S.
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Dist. LEXIS 223327, *3-4, 2017 WL 8809513 (M.D. Fla. June 8, 2017).
While that would often end the analysis as to a non-party, in this case, it is not quite that
black and white. Rule 71 does provide some measure of relief, in this instance. The reason for
that is because even if the Court’s direct jurisdiction over Bell Hollow is lacking, the settlement is
nevertheless enforceable through Mrs. Harrell (over whom jurisdiction is absolutely clear). In this
case, Bell Hollow is wholly owned by Mrs. Harrell and represented by the same counsel as Mrs.
Harrell and SLB. See Doc. 106 at 5, PageID.1630. The evidence at the hearing established without
any doubt that Mrs. Harrell owns 100% of the membership interests in Bell Hollow, and
Defendants did not dispute that the Court has jurisdiction over Mrs. Harrell and can order her to
comply with the Settlement’s terms. Therefore, the question of jurisdiction is a non-issue in this
case because Bell Hollow can be compelled to comply through Mrs. Harrell.9
Therefore, while the Court cannot enter judgment as to Bell Hollow, the Court through its
ancillary jurisdiction may enforce any issues as they arise involving Carolyn Harrell and a lack of
compliance with this Court’s order.
C. David L. Harrell
As previously noted, Mr. Harrell is subject to the automatic stay pursuant to 11 U.S.C. §
362(a). See Doc. 43. On January 22, 2025, the Bankruptcy Court entered an order approving the
Settlement and ordering SEPH and Mr. Harrell to comply with the Settlement’s terms. See Doc.
132; In re David Lynn Harrell, Case No. 22-30877-CLH; SE Property Holdings LLC v. David
Lynn Harrell, Adversary Proceeding No. 22-03028-CLH (M.D. Ala.). As such, it would appear
9 Neither the Defendants nor Bell Hollow filed any written response to the motion to enforce. Bell
Hollow did not seek to intervene despite its counsel’s clear awareness of the motion and Bell
Hollow’s execution of the Settlement. Mr. Whittelsey also asked questions related to Bell
Hollow’s benefits under the Settlement which seemingly indicated that its interests were being
represented at the hearing.
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that the enforcement action is also resolved against Mr. Harrell in this case.
SEPH and David Harrell shall confer and file a joint status report regarding the status of
this case, the automatic stay, and whether there are any matters that need resolution in this court
or whether judgment may be entered as to this defendant as well.
IV. CONCLUSION
Based on the foregoing, the Court GRANTS in part the SE Property Holdings, LLC’s
Motion to Enforce Compromise (Doc. 107) as it relates to Carolyn Harrell and Southern Land
Brokers, LLC. Defendant Carolyn Harrell and SLB are ORDERED to take any actions required
of them under the Settlement to effectuate its terms. The Court declines to enforce the action
against Bell Hollow LLC for lack of jurisdiction, but retains jurisdiction to enforce the settlement
terms through Carolyn Harrell.
SEPH and David Harrell are DIRECTED to file a joint status report regarding the status
of this case as to this defendant on or before February 7, 2025.
The Court will enter Rule 58 judgment as to all its dispositive rulings to include this opinion
against the parties once the case has reached its full conclusion.10
DONE and ORDERED this 23rd day of January 2025.
s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES DISTRICT JUDGE
10 If the parties wish to pursue a partial certification of judgment, they may do so by filing a motion
on or before February 14, 2025. The motion must address the analysis raised in Peden v.
Stephens, 50 F.4th 872 (11th Cir. 2022) and Doe #1 v. Red Roof Inns, Inc., 21 F.4th 714, 722-23
(11th Cir. 2021) on the limited circumstances where partial judgment may be appropriate.
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