John D. McMahan v. Katherine C. McMahan

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

September 16, 2005 Session

JOHN D. MCMAHAN v. KATHERINE C. MCMAHAN

Appeal from the Chancery Court for Hamilton County

No. 04-0010 John F. Weaver, Chancellor

No. E2004-03032-COA-R3-CV - FILED DECEMBER 5, 2005

This matter finds its genesis in a divorce action filed by John D. McMahan (“Husband”) against his

wife, Katherine C. McMahan (“Wife”). The parties agreed to mediate their differences. At the time

of the mediation, the parties ostensibly reached an agreement as to the division of their property and

spousal support. Their agreement was reduced to longhand and, in that form, signed by both parties.

Shortly after the mediation, Wife repudiated the writing, arguing that it was not a binding agreement

because of (1) duress; (2) Wife’s lack of mental capacity to enter into a contract; and (3) the parties’

intention that the longhand document would be followed by a more formal document in which the

parties would express their final agreement. Husband filed a motion to enforce the document in

longhand form. The trial court granted Husband’s motion, holding that the writing was a valid and

enforceable contract. Wife appeals. Husband seeks damages for a frivolous appeal. We affirm the

judgment of the trial court, but decline to award damages for a frivolous appeal.

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

Affirmed; Case Remanded

CHARLES D. SUSANO , JR., J., delivered the opinion of the court, in which D. MICHAEL SWINEY and

SHARON G. LEE, JJ., joined.

John P. Konvalinka, Chattanooga, Tennessee, for the appellant, Katherine C. McMahan.

Donald Capparella, Nashville, Tennessee, for the appellee, John D. McMahan.

OPINION

I.

During the pendency of Husband’s divorce action, the parties agreed to mediation. The

mediation was held at the office of Wife’s attorney. It consumed approximately seven hours. As

a result of the mediation, a five-page, handwritten mediation agreement was prepared with the input

of the parties and their counsel. The agreement contains 32 paragraphs pertaining to property

division and spousal support. Before the parties and their counsel left the attorney’s office, each

page of the document was either signed or initialed by both Husband and Wife. It was also signed

by the Rule 311 mediator, Sarah Y. Sheppeard (“the mediator”). She prepared a report with respect

to the mediation (“the mediator’s report”) and submitted it to the trial court. The mediator’s report

indicates that both parties appeared and participated in good faith in the mediation and that the case

was settled in the mediation process.

Shortly after the mediation, Husband’s attorney drafted a final judgment of divorce and a

marital dissolution agreement (“the drafted MDA”). Husband signed the two documents. His

attorney then forwarded the signed documents to Wife’s attorney for Wife’s approval and signature.

Wife refused to sign the documents. Thereafter, Husband filed a motion in the divorce case to

enforce the mediation agreement.

In her response to Husband’s motion, Wife, who acknowledges that she is herself an

experienced Rule 31 mediator, challenged the validity of the handwritten document on the following

grounds: (1) Husband’s motion was not the proper “vehicle” to enforce the agreement; (2) Wife was

under duress and lacked sufficient mental capacity to enter into a binding contract at the time the

handwritten document was drafted and signed; and (3) the handwritten document was not intended

by the parties to be the final document but was contingent upon the parties’ approval of a formal

marital dissolution agreement and the trial court’s approval. With respect to the final point, Wife

contends that either party could repudiate the agreement at any time prior to the court’s approval of

same.

In November, 2004, the trial court held an evidentiary hearing on Husband’s motion. Several

witnesses testified, including both parties and the mediator. The mediator testified that Wife

participated in the mediation process and appeared to understand what was going on. The mediator

stated that Wife did not seem confused or mentally incapacitated. In its memorandum opinion filed

November 29, 2004, the trial court held “the mediated settlement agreement to be binding and

enforceable.” In addressing Wife’s defenses to enforcement of the handwritten document, the trial

court reasoned that: (1) Wife waived any procedural objection regarding Husband’s motion by

failing to raise her objection at the evidentiary hearing; (2) Wife failed to prove by a preponderance

of the evidence that she was under duress or lacked sufficient mental capacity to enter into a binding

contract; and (3) no evidence established that the handwritten document was contingent upon or even

subject to the trial court’s approval. Wife appeals the trial court’s enforcement of the mediation

agreement. Pursuant to its memorandum opinion, the trial court subsequently held a hearing

regarding “all remaining issues” between the parties. In an order filed in March, 2005, the trial court

declared both parties entitled to a divorce pursuant to Tenn. Code Ann. § 36-4-129(b).2

1

Rule 31, Rules of the Supreme Court of the State of Tennessee.

2

Tenn. Code Ann. § 36-4-129(b) (2005) provides the following:

The court may, upon stipulation to or proof of any ground for divorce pursuant to

§ 36-4-101, grant a divorce to the party who was less at fault or, if either or both

parties are entitled to a divorce, declare the parties to be divorced, rather than

awarding a divorce to either party alone.

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II.

Wife raises the following five issues for our review: (1) whether the trial court erred in acting

upon Husband’s motion to enforce the mediation agreement; (2) whether the trial court erred when

it enforced the mediation agreement in light of Wife’s withdrawal of her consent to the agreement

prior to the trial court’s entry of a final judgment; (3) whether the trial court erred by finding that the

parties intended the mediation agreement to be a final binding document; (4) whether the trial court

erred when it determined that Wife failed to establish the defenses of lack of mental capacity and

duress; and (5) whether the trial court erred in allowing and considering the testimony of the

mediator. In his brief, Husband seeks an award of damages for a frivolous appeal.

III.

Our review of this case is de novo upon the record of the proceedings below with a

presumption of correctness as to the trial court’s factual findings, “unless the preponderance of the

evidence is otherwise.” Tenn. R. App. P. 13(d). We accord no such presumption to the trial court’s

conclusions of law. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

IV.

Wife first contends that Husband failed to follow the proper procedure for enforcement of

the subject document. Wife argues that the trial court should have required Husband to file a

separate lawsuit or amend his petition to assert a claim of accord and satisfaction before considering

the enforceability of the agreement. The trial court responded to this argument by holding that Wife

waived her objection to Husband’s motion by failing “to raise [it] at the hearing or to object to the

evidentiary hearing going forward.”

Wife contends that the trial court erred in holding that she waived her objection to the

enforcement mechanism selected by Husband. She points to the fact that her written response to

Husband’s motion, which response was filed the morning of the motion hearing,3 appropriately and

sufficiently raised the issue. Therefore, according to Wife, the trial court should have addressed the

merits of her objection. We acknowledge that Wife’s written response properly raised and addressed

her objection; however, she failed to pursue her objection at the hearing. On the contrary, she

participated fully in the hearing without stating a word in opposition to Husband’s choice of a motion

as the appropriate enforcement mechanism. There is nothing in the record reflecting that she

indicated to the trial court at the hearing that she was relying upon her written defense to the

procedure utilized by Husband. Wife neglected to prevent or nullify any harmful effect of the trial

court’s failure to rule on her written defense. See Tenn. R. App. P. 36(a). We are of the opinion that

Wife, by her failure to pursue this issue at the hearing, waived it. As previously noted, she

3

The hearing on Husband’s motion occurred on November 1, 2004. In its memorandum opinion, the trial court

stated that W ife’s responsive pleading was not filed with the clerk until three days after the motion hearing. The record

reflects otherwise. W ife’s response is clearly stamped filed on November 1, 2004 at 9:15 a.m.

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participated fully at the hearing. She introduced testimonial evidence. She filed exhibits with the

court. Yet, she never orally raised the procedural issue upon which she now seeks relief. We are

not required to grant relief to a party “who fail[s] to take whatever action was reasonably available

to prevent or nullify the harmful effect of an error.” Id. Accordingly, we decline to reverse the trial

court on this issue.

Even if we were to find that the trial court should have addressed this issue, nevertheless we

would be compelled to find that it is without merit. Wife bases her position with respect to this

procedural issue primarily on the Supreme Court’s holding in Covert v. VonHardemutt, 53 S.W. 730

(Tenn. 1899). Covert, decided more than a century ago, involved a personal injury suit against

several defendants. Id. The defendants eventually moved the trial court to dismiss the case,

asserting that the plaintiff’s claim had been compromised and settled. Id. The defendants presented

a receipt documenting the satisfaction of the cause of action. Id. The plaintiff resisted the motion,

claiming that the receipt was unfairly obtained Id., at 731. The trial court considered the evidence

presented by both sides, sustained the defendants’ motion, and dismissed the plaintiff’s lawsuit. Id.

The High Court reversed, stating that:

[w]hen the motion to dismiss was resisted, and the validity of the

papers on which it was based was disputed, the motion should have

been overruled, and the defendants left to their right to set up the

matter of accord and satisfaction by proper plea. It was not allowable

for the court to hear testimony, and decide an issue of disputed facts

upon mere motion.

Id.; see also Aiken v. Taylor, 62 S.W. 200 (Tenn. App. 1900).

We do not believe Covert is authority for Wife’s position in this case. It was decided at a

time when rules pertaining to pleadings were very technical and rigidly enforced. With the adoption

of the Rules of Civil Procedure, we have moved beyond the rigidity of Covert.

The parties do not cite, nor have we found, any authority specifically sanctioning a motion

as the proper vehicle for enforcement of a mediation agreement. There are, however, cases where

a motion has been used, without objection, to enforce such an agreement. See Ledbetter v.

Ledbetter, 163 S.W.3d 681, 683 (Tenn. 2005); Myers v. Myers, No. E2004-01362-COA-R3-CV,

2005 WL 936925, at *1 (Tenn. Ct. App. E.S., filed April 22, 2005), perm. app. denied, October 24,

2005; Persada v. Persada, No. E2002-00397-COA-R3-CV, 2002 WL 31640564, at *1 (Tenn. Ct.

App. E.S., filed November 22, 2002). These cases all address situations in which a divorcing couple

submitted to mediation and arguably reached a mediation agreement as to property and support

rights, followed thereafter by an attempted repudiation by one of the parties. We can think of no

reason why a motion would not be a proper method of enforcing a settlement reached through the

mediation process.

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V.

Wife next attacks the validity and enforceability of the mediation agreement by asserting that

her repudiation of the agreement prior to the trial court’s entry of judgment is sanctioned by case law.

She insists that the Supreme Court’s decision in Harbour v. Brown, 732 S.W.2d 598 (Tenn. 1987),

is authority for her contention that she could withdraw her consent in this case. We disagree. In

Harbour, the parties reached a settlement on the day of trial. Id. at 599. They advised the court that

they had settled their case, but did not announce the terms of their settlement. Id. They told the

court that they would submit an order of compromise and dismissal. Id. Shortly thereafter, one of

the parties withdrew his consent to the settlement. Id. The trial court nonetheless entered an order

dismissing the case with prejudice. Id.

The Supreme Court found the trial court’s dismissal to be in error, holding that a consent

judgment could not be rendered where one of the parties to the agreement withdrew his consent and

communicated that fact to the trial court. Id. As the Court explained, “[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.” Id.

(quoting 49 C.J.S. Judgments § 174(b)). The High Court held that, until the consent judgment is

entered by the court, either party could repudiate the agreement because of “an actual or supposed

defense to the agreement.” Id., at 600.

The Harbour rule dealing with consent judgments is clear. A court may not enter a consent

judgment based upon an agreement of the parties when the terms of the agreement are not announced

to the court as a consent judgment and when one of the parties repudiates the agreement prior to the

entry of the judgment. The instant case, however, does not involve such a factual scenario. “Until

approved by the courts, a mediated agreement is essentially contractual in nature.” Ledbetter, 163

S.W.3d at 685 (citing Envtl. Abatement, Inc. v. Astrum R.E. Corp, 27 S.W.3d 530, 539 (Tenn. Ct.

App. 2000)). See also Harbour, 732 S.W.2d at 600 (acknowledging that, though a consent judgment

could not be entered once a party has repudiated the agreement, the agreement may still be a

“binding contract, subject to being enforced as other contracts.”); Myers, 2005 WL 936925, at *3

(holding the parties’ signed and written mediation agreement to be an enforceable contract because

the repudiating party failed to prove fraud, mistake, duress, or any other ground for invalidating the

contract). Where parties have reached a mediated agreement, we have consistently applied the

principles of contract law to determine whether, based upon that agreement, a judgment may be

entered in a case. Persada, 2002 WL 31640564, at *2. Wife’s reliance on Harbour is misplaced.

The trial court could not enter a consent judgment based upon the mediated agreement after her

repudiation of the agreement, but it could, as it did, enforce a contract between the parties.

VI.

Wife contends that the trial court erred in holding that the handwritten document was a valid

contract. She argues that the parties never reached a meeting of the minds with respect to the finality

of the document. Basically, she argues that the mediation agreement is unenforceable because she

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never intended the signed agreement to be a final and binding contract. Fundamental principles of

contract law are applicable here. It is well-settled that a valid and enforceable contract requires a

meeting of the minds between the contracting parties as to the essential terms of the agreement.

Higgins v. Oil, Chemical and Atomic Workers Int’l Union, Local # 3-677, 811 S.W.2d 875, 879

(Tenn. 1991) (“While a contract may be either expressed or implied, written or oral, it must result

from a meeting of the minds of the parties in mutual assent to the terms. . . .”) (quoting Johnson v.

Central Nat’l Ins. Co., 210 Tenn. 24, 34-35, 356 S.W.2d 277, 281 (1962)). In determining whether

or not to construe an instrument as a binding contract,

[t]he primary test as to the actual character of a contract is the

intention of the parties, to be gathered from the whole scope and

effect of the language used, and mere verbal formulas, if inconsistent

with the real intention, are to be disregarded. It does not matter by

what name the parties chose to designate it. But the existence of a

contract, the meeting of the minds, the intention to assume an

obligation, and the understanding are to be determined in case of

doubt not alone from the words used, but also the situation, acts, and

the conduct of the parties, and the attendant circumstances.

17 Am.Jur.2d Contracts § 4 (1991). Furthermore, when a valid and enforceable contract has been

found, the party seeking to invalidate the contract must bear the burden of proving adequate grounds

for its invalidation. Williamson v. Upchurch, 768 S.W.2d 265, 269 (Tenn. Ct. App. 1988) (citations

omitted). Wife presents multiple facts to support her assertion that she believed the agreement to

be contingent upon the execution of a marital dissolution agreement and/or court approval; however,

as discussed below, none of these facts adequately established, to the trial court’s satisfaction, her

contention that the parties never reached a meeting of the minds with respect to the finality of the

signed agreement.

Wife argues that the contingent nature of the mediation agreement is shown by its mentioning

of the execution of a marital dissolution agreement and by Husband’s subsequent tendering of the

drafted MDA. In essence, Wife would have us believe that, after seven hours of mediation and the

signing of the resulting document, the parties only intended to agree to later review, for possible

approval, a marital dissolution agreement that contains the same 32 items addressed in the

handwritten document. This argument is without merit. We agree that the execution of a marital

dissolution agreement was contemplated by the terms of the mediation agreement. Several

provisions of the agreement include the clause “following [the] execution of the MDA.” There is

no doubt that the parties anticipated that a more formal document would be drafted and signed. This,

however, does not mean that the validity of their agreement as to the 32 items was contingent upon

this being done. The parties signed the mediation agreement. We conclude from this – as did the

trial court – that they signed this document to signify their agreement to its terms.

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Wife also claims that the existence of other terms in the drafted MDA proves that the

mediation agreement was not intended to be a final binding document. Regardless of whether the

drafted MDA contains additional terms, Wife’s argument that these “inconsistencies” establish that

the parties never reached a meeting of the minds with regard to the 32 provisions in the mediation

agreement misses the mark. A dispute regarding the terms of the drafted MDA does not necessarily

mean that the parties did not conclusively agree to the terms delineated in the mediation agreement.

Admittedly, the parties never reached a meeting of the minds on all of the terms in the drafted MDA.

If Husband were seeking to enforce the drafted MDA, which he is not, Wife would certainly have

an argument. Here, however, Husband only seeks to enforce the signed mediation agreement as a

separate and binding contract. The terms of the drafted MDA are immaterial on this issue.

For further support of her position, Wife frequently points to Tenn. Code Ann. § 36-4-103(b),

which prescribes conditions that must be met before a court can grant a divorce on the ground of

irreconcilable differences.4 First, she contends that the trial court erred in not requiring the parties

to comply with Tenn. Code Ann. § 36-4-103(b). Then, she asserts that the lack of child custody and

maintenance provisions in the mediation agreement, which would be required in a marital dissolution

agreement under Tenn. Code Ann. § 36-4-103(b), establishes that the parties only intended the

mediation agreement to be a proposal, contingent upon the execution of a marital dissolution

agreement and/or court approval. We find Wife’s reliance on Tenn. Code Ann. § 36-4-103(b) to be

without merit. The omission of child custody and maintenance provisions from the mediation

agreement does not prove that the parties did not intend the mediation agreement to be a final

resolution with respect to the 32 provisions included in the signed document. Additionally, whether

or not the parties complied with Tenn. Code Ann. 36-4-103(b) is immaterial. The trial court

ultimately found that both parties were entitled to a divorce pursuant to Tenn. Code Ann. § 36-4-

129(b). Irreconcilable differences was not the ground upon which the parties’ divorce was premised.

Wife also makes repeated references to a note that was written and signed by her attorney

sometime during the mediation process and attached to her copy of the mediation agreement. The

note states that “[t]he proposal suggested by [Husband] as of September 15, 2004, is within range

of reasonableness but it is not what I would recommend.” Wife contends that this proves that she

believed the mediation agreement to be a mere proposal, entitling her to the right to later review and

alter the agreement prior to signing a final agreement. The existence of the note is undisputed, but

again, it does not prove what Wife claims it proves. On its face, the note simply states what it states:

in the opinion of Wife’s counsel, the terms are within the range of reasonableness but is not what

he would recommend. Despite this recommendation, Wife signed the mediation agreement. Her

issue on this point is without merit.

4

Tenn. Code Ann. § 36-4-103(b) (2005) provides the following:

No divorce should be granted on the ground of irreconcilable differences unless

the court affirmatively finds in its decree that the parties have made adequate and

sufficient provision by written agreement for the custody and maintenance of any

children of that marriage and for the equitable settlement of any property rights

between the parties.

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On numerous occasions in her brief, Wife attempts to attack the finality of the mediation

agreement by arguing that an inconsistency in Husband’s motion to enforce the agreement and the

trial court’s memorandum opinion granting the motion further supports the inconclusive nature of

the mediation agreement. Husband’s motion states that the signed mediation agreement resolved

“all issues created by the dissolution of the parties’ marriage.” In its memorandum opinion, the trial

court held that the mediation agreement was “valid and enforceable between the parties as to the

property and support rights existing between them in this divorce action; and [t]hat this cause shall

be set for further hearing upon any and all remaining issues.” Wife argues that the fact the trial court

set a future hearing for “all remaining issues” indicates that the mediation agreement was not a

memorandum of a final meeting of the minds. This argument misses the point. The mediation

agreement was enforced as a final contract as to the provisions addressed therein. Those agreed-

upon provisions were not affected by the fact that the trial court held that other issues (i.e., grounds

for divorce, Husband’s order of protection against Wife, and Wife’s motion for relief pending

appeal) would require a further hearing.

The trial court heard ample evidence regarding Wife’s allegation that the mediation

agreement was only intended as a “contingent” document. Within the bounds of its discretion, the

trial court determined that the evidence did not sustain Wife’s argument. Wife was represented by

counsel at all times during the mediation. She was an experienced Rule 31 mediator, who admittedly

“underst[ood] the process inside out.” Nothing in the record before us suggests that the terms of the

signed mediation agreement were intended to be contingent upon a later-executed marital dissolution

agreement and/or court approval. The relevant facts in the record reflect, without equivocation, that

the parties contemplated and intended the mediation agreement to be a final binding contract with

respect to its 32 provisions.

VII.

Wife also argues that the trial court erred in finding that she failed to establish lack of mental

capacity and duress as defenses to enforcement of the mediation agreement. This Court recently

summarized the law of mental capacity as a defense to the validity and enforceability of a contract

as follows:

The degree of mental capacity required to enter into a contract is a

question of law. Competency to contract does not require an ability

to act with judgment and discretion. All that is required is that the

contracting party reasonably knew and understood the nature, extent,

character, and effect of the transaction. Thus, persons will be excused

from their contractual obligations on the ground of incompetency

only when (1) they are unable to understand in a reasonable manner

the nature and consequences of the transaction or (2) when they are

unable to act in a reasonable manner in relation to the transaction, and

the other party has reason to know of their condition.

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All adults are presumed to be competent enough to enter into

contracts. Accordingly, persons seeking to invalidate a contract for

mental incapacity have the burden of proving that one or both of the

contracting parties were mentally incompetent when the contract was

formed. It is not enough to prove that a person was depressed or had

senile dementia. To prove mental incapacity, the person with the

burden of proof must establish, in light of all the surrounding facts

and circumstances, that the cognitive impairment or disease rendered

the contracting party incompetent to engage in the transaction at issue

according to the standards set forth above.

Rawlings v. John Hancock Mutual Life Ins. Co., 78 S.W.3d 291, 297 (Tenn. Ct. App. 2001)

(internal citations and footnotes omitted).

In its memorandum opinion, the trial court found the following with respect to Wife’s

assertion that she lacked the mental capacity necessary to enter into a binding contract:

[Wife] testified that at the time of signing the mediation agreement,

she had become tired of the process and desired to settle the case to

eliminate the involvement of her mother and children in the trial.

However, the evidence does not sustain that [Wife] lacked sufficient

mental capacity to enter into the agreement and the Court finds the

evidence to preponderate otherwise. While [Wife] testified that she

was ill, upset, in pain, and under mediation at the mediation, the

Court did not find her testimony to be persuasive as to her lacking

sufficient mental capacity to enter into the mediation agreement. No

one who was present at the mediation corroborated [Wife’s]

testimony. To the contrary, both [Husband] and the mediator

testified, in effect, that the wife appeared to be lucid and mentally

capable.

The evidence does not preponderate against the trial court’s finding on this issue. Wife testified that

the divorce proceeding had caused her severe emotional distress, and that she was unable to obtain

meaningful sleep during the 24 hours leading up to the mediation. She stated that, during the

mediation, she suffered bodily pain as a result of a recent surgical procedure. She testified that she

had taken higher than prescribed dosages of a narcotic pain medication and an antidepressant during

the course of the mediation. She stated that, during the latter stages of the mediation session, she

developed a migraine headache and administered a medicinal injection to alleviate the pain.

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The issue before us is whether the evidence preponderates against the trial court’s findings

with respect to Wife’s mental capacity. The trial court, in assessing the credibility of Wife’s

testimony, found that her testimony was not “persuasive.” Given this credibility determination, we

cannot say that the evidence preponderates against the trial court’s findings regarding Wife’s mental

capacity.

Similarly, we hold that the trial court did not err in determining that Wife failed to establish

her defense of duress. Duress is defined as “an unlawful restraint, intimidation, or compulsion of

another to such an extent and degree as to induce such other person to do or perform some act which

he is not legally bound to do, contrary to his will and inclination.” McClellan v. McClellan, 873

S.W.2d 350, 351-52 (Tenn. Ct. App. 1993) (citing Johnson v. Ford, 147 Tenn. 63, 86, 245 S.W. 531

(1922)). “The alleged coercive event must be of such severity, either threatened, impending or

actually afflicted, so as to overcome the mind and will of a person of ordinary firmness.” McClellan,

873 S.W.2d at 351-52 (citing Fogg v. Union Bank, 63 Tenn. [4 Baxter] 530, 535 (1830)).

Wife testified that, prior to the mediation, Husband sent messages threatening to “destroy

her” if their divorce case proceeded to trial. She also stated that she was shocked and distressed to

find out that Husband had subpoenaed her 80-year-old mother to the trial and included the parties’

two children in his list of trial witnesses. Wife claims that these actions by Husband were intended

to intimidate her and amount to duress. We do not agree. Husband’s listing and subpoenaing of trial

witnesses was reasonable given the fact that the parties’ divorce trial was set to occur five days after

the mediation. Furthermore, the proof does not establish that Husband’s alleged remark to “destroy

her” at trial compelled Wife to go against her will at the mediation session. Wife’s testimony simply

does not rise to the level required for a duress defense. See McClellan, 873 S.W.2d at 351-52

(holding that a wife’s threat to file a divorce action did not amount to duress); Golden v. Hood, No.

E1999-02443-COA-MR3-CV, 2000 WL 122195, at *2 (Tenn. Ct. App. E.S., filed January 26, 2000)

(holding that an alleged threat to withdraw as the party’s counsel if the party fails to sign the

proposed mediation agreement did not constitute duress); see also 86 C.J.S. Threats & Unlawful

Communication § 30 (1997) (“[T]he assertion of an intention to pursue a legal remedy ordinarily is

not considered duress.”). Again, Wife failed to carry her burden of proof. The evidence does not

preponderate against the trial court’s findings on the issue of duress.

VIII.

Wife additionally asserts that the trial court committed reversible error by permitting the

mediator to testify regarding Wife’s mental capacity. She contends that the trial court’s admission

of the mediator’s testimony violated both the confidentiality and admissibility of evidence standard

with respect to Rule 31 mediations. See Rules 31(10)(d) and 31(7), Rules of the Supreme Court of

the State of Tennessee (“Rules of the Supreme Court”) (2005).

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Rule 31(10)(d) states that participating Rule 31 neutrals shall “[p]reserve and maintain the

confidentiality of all information obtained during [the proceeding] and shall not divulge information

obtained by them [during the proceedings] without the consent of the parties, except as otherwise

may be required by law.” Rule 31(7) addresses the admissibility of evidence of conduct or

statements made in the course of a Rule 31 proceeding. The rule states that such evidence “shall be

inadmissible to the same extent as conduct or statements are inadmissible under Tennessee Rule of

Evidence 408.” Tenn. R. Evid. 408 provides that evidence of conduct or statements made in

compromise negotiations are “not admissible to prove liability for or invalidity of a civil claim or

its amount or a criminal charge or its punishment.” However, Rule 408 “does not require exclusion

when the evidence is offered for another purpose, such as proving bias or prejudice of a witness,

negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or

prosecution.” Id.

In the instant case, the mediator testified as to whether she perceived Wife as fully

understanding and participating in the mediation process. She stated that Wife seemed to understand

the parties’ assets, and that she did not recall noticing any confusion on Wife’s part. She stated that

Wife appeared to be able to participate fully in the process, and that she did not observe any slurred

speech by Wife. She further testified that she would not have allowed Wife to sign the mediation

agreement had she noticed any confusion or incapacity on Wife’s part.

Rule 31 confidentiality and inadmissibility of evidence under Tenn. R. Evid. 408 are not

implicated by the mediator’s testimony in this case. See Rule 31(5), Rules of the Supreme Court

(requiring Rule 31 neutrals to file a report specifically addressing whether both parties appeared and

participated in the process); see also Persada, 2002 WL 31640564, at *1 (noting that, in a similar

mediation agreement context, the mediator testified “that both parties seemed to fully understand and

acquiesce in the agreement”). The mediator in this case was careful not to testify to statements or

assertive conduct made by Wife. She did not disclose confidential information or attempt to prove

liability via conduct or statements made in the course of the mediation. We find no error in the trial

court’s decision to receive the testimony of the mediator in this case.

IX.

In summation, we conclude that our recent decision in Myers v. Myers controls the instant

case. The parties in Myers, a divorcing husband and wife, reached a settlement agreement after a

six-hour mediation session. 2005 WL 936925, at *1. The agreement was memorialized by a five-

page written document. Id. The document was drafted on site by the mediator and signed by both

parties and their attorneys. Id. The husband’s attorney then drafted a marital dissolution agreement,

but before it was completed, the wife repudiated the agreement. Id. An evidentiary hearing was held

in response to the husband’s filing of a motion to enforce the mediation agreement. Id. The wife

testified that she believed her husband misrepresented her interest in their property, and that the

agreement was therefore unfair. Id. She also testified that she felt pressured to sign the agreement.

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Id. After considering the wife’s testimony and proof regarding fraud, mistake, duress, and any other

ground to invalidate the contract, the trial court determined that the wife had simply changed her

mind and entered a judgment enforcing the mediation agreement. Id., at *3. This Court affirmed

that judgment. Id.

Wife attempts to distinguish the current situation from Myers by stating that the party seeking

to repudiate the agreement in Myers did not offer “evidence to dispute the other party’s claim that

a ‘meeting of the minds’ was reached relative to all essential matters of the purported agreement.”

In essence, Wife appears to be asserting that the case of Myers v. Myers does not control because,

unlike Wife in the instant case, the repudiating party in Myers did not present evidence disputing the

parties’ intended finality of the signed agreement. This argument is not well-taken. As analogous

to the matter now before us, the wife in Myers disputed the husband’s contract claim by arguing that

her repudiation was permissible under Harbour and by offering evidence regarding her claim of

certain contract defenses. The fact that Wife also asserts that the parties never contemplated the

mediation agreement as a final document does not sufficiently distinguish the present case from

Myers. This additional assertion is merely another contract defense and attempt at rescission. Thus,

as previously discussed, the applicable rules of contract law govern. As found by the trial court in

the instant case, Wife simply failed to present sufficient evidence to justify a finding that a meeting

of the minds did not occur with respect to the finality and intended purpose of the signed mediation

agreement.

X.

Wife filed a motion to supplement the record with certain documents. Husband objects to

the requested supplementation. There is nothing in the two documents referred to in the motion

other than argument and statements of counsel for the parties. The contents of those documents have

no bearing on the issues in this case. The motion is denied.

XI.

While we find no merit in the issues raised by Wife, we do not consider this appeal to be

frivolous. See Cole v. Dych, 535 S.W.2d 315, 323 (Tenn. 1976) (Henry, J.) (on petition to rehear).

Consequently, we decline to award damages for a frivolous appeal.

XII.

The judgment of the trial court is affirmed. The case is remanded to the trial court for

enforcement of the trial court’s judgment and for collection of costs assessed below, all pursuant to

applicable law. Costs on appeal are taxed against the appellant, Katherine C. McMahan.

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_______________________________

CHARLES D. SUSANO, JR., JUDGE

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