Kenneth and Angela Sinclair appeal an order enforcing a settlement agreement, urging that it was errоr to require them to sign an easement which contained terms and conditions not agreed to in the mediatеd settlement agreement. We agree and reverse.
The Sinclairs sued Clay Electric Cooperative, Inc. (Clay) alleging that Clay had constructed power lines across the Sinclairs’ property without permissiоn and without the benefit of an easement. Subsequently the parties entered into a settlement agreement, pursuant to court ordered mediation, whereby Clay agreed to relocate its electric power line and pay the Sinclairs $5,000 plus attorney’s fees in return for an easement over the Sinclairs’ proрerty. Thereafter, Clay provided a form easement agreement for the Sinclairs’ signature. The Sinclairs refused to sign the tendered grant of easement because it did not conform to the settlement agreement entered into by the parties. Specifically, the Sinclairs contend the legal description varied signifiсantly from the parties’ settlement agreement and, further, the easement contained material prоvisions not agreed to in the settlement agreement.
Clay moved the trial court for enforcement of the settlement agreement and the cause was noticed for hearing for August 10, 1990. The Sinclairs moved for a cоntinuance and noticed the continuance hearing for August 2, 1990. The Sinclairs did not personally appeаr at the August 2nd hearing but were represented by their counsel. The trial court denied the continuance and, rather than waiting for the scheduled August 10th hearing, proceeded to rule on Clay’s motion to enforce the settlement agreement. The record does not reflect that the Sinclairs’ attorney agreed to this procedure. The Sinclairs were never given an opportunity to be heard in person or to present testimony or other evidence regarding Clay’s motion to enforce. At the conclusion of the August 2nd hearing, the court entered an order requiring the Sin-clairs to execute Clay’s easement within 15 days; otherwise, the easement would be deemed self-executing.
Initially, the Sinclairs contend that the legal description containеd in the easement is at variance with the description in the settlement agreement. After examining both legal descriptions, we agree that one cannot compare the two and determine, as a matter of law, without receiving evidence, they describe the same property.
Additionally, the proposеd easement contained four express provisions not provided in the mediated settlement agreеment, to wit: 1) the right to cut, trim and control the growth of trees and shrubberies by chemical means, machinery or otherwise; 2) the right to keeр the easement clear of all buildings, structures or other obstructions; 3) the right to license or permit the joint use оf the system, or related underground facilities by any other person; and 4) the right to enter upon and use other lands of the Sinclairs to provide access to the easement.
The mediated settlement agreemеnt only requires the Sinclairs to convey to Clay an electric utility easement. This is a limited grant of an easement,
Whether it is reasonable to control growth of treеs and shrubbery within the easement by chemicals or machinery depends upon the nature and extent of thosе chemicals and perhaps the type or size of
For all of these reasons the оrder of the trial court requiring the Sinclairs to sign the easement agreement proposed by Clay is reversеd and this cause remanded to the trial court to enforce the settlement in strict accordance with its terms.
REVERSED and REMANDED.
Notes
. See generally Homer v. Dadeland Shopping Center, Inc.,
