Cheryl Erma Green v. YMCA of Memphis and the Mid-South

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

October 27, 2015 Session

CHERYL ERMA GREEN v. YMCA OF MEMPHIS AND

THE MID-SOUTH

Appeal from the Circuit Court for Shelby County

No. CT00260209 Gina C. Higgins, Judge

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No. W2014-02190-COA-R3-CV – Filed November 4, 2015

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Appellant appeals the trial court‘s order enforcing a settlement agreement, arguing that

the agreement was the product of coercion on the part of her attorney. We affirm.

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

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the Court, in which ARNOLD B.

GOLDIN, J., and BRANDON O. GIBSON, J., joined.

Cheryl Erma Green, Memphis, Tennessee, Pro Se.

Eileen Kuo and James Hunter Stock, Memphis, Tennessee, for the appellees, YMCA of

Memphis and the Mid-South.

OPINION

Background

Plaintiff/Appellant Cheryl Erma Green‘s employment with the

Defendant/Appellant YMCA of Memphis and the Mid-South (―YMCA‖) was terminated

on May 29, 2008. Exactly one year later, on May 29, 2009, Ms. Green, proceeding pro

se, filed a complaint for ―Violations of the Public Protection Act and Common Law

Whistleblower Retaliation and Third Party Sexual Harassment‖ against YMCA and its

employee Pete Shattuck, who was Ms. Green‘s immediate supervisor. On July 6, 2009,

YMCA filed a motion to stay and extend the time for filing an answer and asserting

affirmative defenses, a motion for a more definite statement, and a motion to strike Ms.

Green‘s complaint, all generally contending that Ms. Green‘s complaint lacked clarity

and contained irrelevant and inflammatory factual allegations. On October 1, 2009, the

trial court entered an order granting YMCA‘s request for a stay and directing Ms. Green

to file an amended complaint. Ms. Green thereafter retained counsel and filed an

amended complaint on October 9, 2009.

On October 15, 2009, the trial court entered a consent order of voluntary dismissal

of the claims against Mr. Shattuck. On November 2, 2009, YMCA filed an answer to the

amended complaint. On September 3, 2010, the trial court entered an order permitting

Ms. Green‘s initial counsel to withdraw. Ms. Green apparently retained new counsel, and

trial was set for March 12, 2012. YMCA took Ms. Green‘s deposition on November 15,

2011. Ms. Green was represented by her second attorney during the deposition. On

January 10, 2012, however, the trial court entered a consent order permitting Ms. Green‘s

second attorney to withdraw from the case.

Thereafter, on January 17, 2012, YMCA filed a motion for summary judgment,

arguing that Ms. Green could not establish the essential elements of her claims. On

March 8, 2012, the trial court entered an order continuing the trial date to allow

additional time for discovery and for dispositive motions. At this time, Ms. Green was

represented by her third attorney. The parties were ordered to appear for a status

conference on May 2, 2012; however, the status conference was continued several times.

Eventually, on October 23, 2012, the trial court entered an order re-setting the status

conference for January 8, 2013 and ordering the parties to participate in mediation.

The case languished for several months until Ms. Green‘s third attorney was

permitted to withdraw as counsel on July 16, 2013. The parties eventually attended

mediation in an effort to settle the dispute. The first mediation was not successful. The

parties participated in a second mediation on December 9, 2013; at this mediation, Ms.

Green was represented by Attorney Stephen Biller, the fourth and final attorney to

represent her during these proceedings. At the December 2013 mediation, the parties

settled the dispute for an undisclosed sum and payment was remitted to Ms. Green. In

consideration of the settlement, Ms. Green agreed to release all claims against YMCA.

After mediation, Ms. Green, without the advice and consent of her counsel, filed

two motions for protective orders seeking to submit certain information to the court under

seal. The motions also contained several allegations of misconduct against Attorney

Biller. Both YMCA and Attorney Biller responded in opposition to Ms. Green‘s motions

for protective orders. In addition, on June 11, 2014, Attorney Biller filed a motion to

withdraw as counsel of record for Ms. Green. The trial court entered an order granting

Attorney Biller‘s motion to withdraw on June 20, 2014.

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On July 30, 2014, YMCA filed a motion to enforce the settlement agreement or in

the alternative for summary judgment. On August 22, 2014, Ms. Green, proceeding pro

se, filed a third motion for a protective order and to rescind the mediated settlement

agreement. Ms. Green did not deny that she signed the mediated settlement agreement.

Instead, Ms. Green asserted that the settlement agreement should be rescinded because

her attorney had an undisclosed conflict of interest and the attorney coerced her into

signing the agreement. Ms. Green indicated that she was willing and able to repay all

settlement funds that were remitted to her by YMCA. Ms. Green, however, never

returned any portion of the settlement proceeds to the trial court or YMCA.

On August 28, 2014, Ms. Green also filed an answer to YMCA‘s motion to

enforce the settlement agreement. In her answer, Ms. Green asserted that Attorney Biller

misled her as to the purpose of the mediation, as her objective was to return to work.

According to Ms. Green, given ―the deception from the inception and given the intensity

of the mediation setting, Ms. Green felt as if she had no choice but to sign the agreement

presented by [YMCA].‖ In support of her answer to the motion to enforce the settlement

agreement, Ms. Green submitted a sworn affidavit detailing Attorney Biller‘s alleged

conduct at the mediation.

On October 3, 2014, the trial court entered an order dismissing the case with

prejudice ―[u]pon Motion by [YMCA] to Enforce Settlement Agreement and it appearing

to the Court that all matters in controversy . . . with regard to these parties have been

settled[.]‖ The trial court‘s order did not specifically address Ms. Green‘s allegations of

duress. On April 2, 2015, the trial court entered an amended order, which was identical to

the first order, except that it also denied YMCA‘s request for attorney‘s fees. Ms. Green

filed a timely notice of appeal.

Issues Presented

Ms. Green raises one issue for our review, which is taken, and slightly restated,

from her appellate brief: Whether YMCA‘s Motion to Enforce Settlement Agreement or

in the Alternative for Summary Judgment was properly granted in light of evidence

presented by Ms. Green in response to YMCA‘s motion. In its brief, YMCA also

requested attorney‘s fees incurred in defending a frivolous appeal.

Discussion

As an initial matter, we note that Ms. Green is proceeding pro se in this appeal. As

this Court explained:

Parties who decide to represent themselves are entitled

to fair and equal treatment by the courts. Whitaker v.

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Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000);

Paehler v. Union Planters Nat’l Bank, Inc., 971 S.W.2d

393, 396 (Tenn. Ct. App. 1997). The courts should take into

account that many pro se litigants have no legal training and

little familiarity with the judicial system. Irvin v. City of

Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App. 1988).

However, the courts must also be mindful of the boundary

between fairness to a pro se litigant and unfairness to the pro

se litigant‘s adversary. Thus, the courts must not excuse pro

se litigants from complying with the same substantive and

procedural rules that represented parties are expected to

observe. Edmundson v. Pratt, 945 S.W.2d 754, 755 (Tenn.

Ct. App. 1996); Kaylor v. Bradley, 912 S.W.2d 728, 733 n. 4

(Tenn. Ct. App. 1995).

The courts give pro se litigants who are untrained in

the law a certain amount of leeway in drafting their pleadings

and briefs. Whitaker v. Whirlpool Corp., 32 S.W.3d at 227;

Paehler v. Union Planters Nat’l Bank, Inc., 971 S.W.2d at

397. Accordingly, we measure the papers prepared by pro se

litigants using standards that are less stringent than those

applied to papers prepared by lawyers. Hughes v. Rowe, 449

U.S. 5, 9–10, 101 S.Ct. 173, 176, 66 L.Ed.2d 163 (1980);

Baxter v. Rose, 523 S.W.2d 930, 939 (Tenn. 1975);

Winchester v. Little, 996 S.W.2d 818, 824 (Tenn. Ct. App.

1998).

Hessmer v. Hessmer, 138 S.W.3d 901, 903–04 (Tenn. Ct. App. 2003). Accordingly, we

keep these principles in mind in considering Ms. Green‘s appeal. From our review of Ms.

Green‘s appellate brief, however, we note that she has fully complied with Rule 27 of the

Tennessee Rules of Appellate Procedure, in that her brief contains all required elements,

including appropriate references to the record and citation to relevant authority. See

generally Tenn. R. App. P. 27(a).

Enforcement of the Settlement Agreement

We, therefore, proceed to consider the substance of Ms. Green‘s appeal—whether

the trial court erred in failing to set aside the settlement agreement. We first note that Ms.

Green does not dispute that she signed a mediated settlement agreement in which she was

paid a sum of money in consideration for releasing all claims against YMCA. ―The

judicial system favors the resolution of disputes by agreement between the parties.‖

Lovlace v. Copley, 418 S.W.3d 1, 29 (Tenn. 2013) ―Consent decrees, compromise and

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settlement agreements, and agreed orders are favored by the courts and represent the

achievement of an amicable result to pending litigation.‖ In re Estate of Williams, No.

M2000-02434-COA-R3-CV, 2003 WL 1961805, at *11 (Tenn. Ct. App. Apr. 28, 2003).

―[S]ettlement agreements made during or in contemplation of litigation are

enforceable as contracts.‖ Barnes v. Barnes, 193 S.W.3d 495, 498 (Tenn. 2006) (citing

Ledbetter v. Ledbetter, 163 S.W.3d 681, 685 (Tenn. 2005) (stating that ―a mediated

agreement is essentially contractual in nature‖); Harbour v. Brown for Ulrich, 732

S.W.2d 598, 600 (Tenn. 1987) (stating that a settlement agreement may be ―a binding

contract, subject to being enforced as other contracts‖); Envtl. Abatement, Inc. v. Astrum

R.E. Corp., 27 S.W.3d 530, 539 (Tenn. Ct. App. 2000) (stating that ―[a] compromise and

settlement agreement is merely a contract between the parties to litigation and, as such,

issues of enforceability of a settlement agreement are governed by contract law‖)); see

also Matlock v. Rourk, No. M2009-01109-COA-R3-CV, 2010 WL 2836638, at *3

(Tenn. Ct. App. July 20, 2010) (―An agreement reached after mediation which is reduced

to writing and is signed by both parties is construed and enforced in the same manner as

other contracts.‖). Because settlement agreements are subject to general contract law,

they are ―also subject to the same defenses that may be raised to defeat enforcement of

other contracts.‖ Matlock, 2010 WL 2836638, at *3. Here, Ms. Green seeks rescission of

the contract.

The Tennessee Court of Appeals has described the remedy of rescission as ―the

unmaking of a contract, or an undoing of it from the beginning, and not merely a

termination, . . . [.] It is the annulling, abrogation of the contract and the placing of the

parties to it in status quo.‖ Stonecipher v. Estate of Gray, No. M1998-00980-COA-R3-

CV, 2001 WL 468673, at *4 n.2 (Tenn. Ct. App. May 4, 2001) (quoting 22 Tenn. Juris.,

Rescission, Cancellation and Reformation § 1 at 34 (1999)). We recognize that rescission

of a contract is an ―extreme‖ remedy that courts should be hesitant to employ. Loveday v.

Cate, 854 S.W.2d 877, 879 (Tenn.App.1992); see also James Cable Partners v.

Jamestown, 818 S.W.2d 338, 343 (Tenn. Ct. App. 1991) (holding that rescission is a

remedy which ―should be exercised sparingly and only when the situation demands

such‖); Robinson v. Brooks, 577 S.W.2d 207, 208 (Tenn. Ct. App. 1978) (―[R]escission

of a contract is not looked upon lightly. It is available only under the most demanding

circumstances.‖). However, the decision as to whether a situation warrants rescission

rests in the sound discretion of the trial court. See Vakil v. Idnani, 748 S.W.2d 196, 199

(Tenn. Ct. App. 1987).

The Tennessee Supreme Court has held that courts should only rescind contracts

―‗where some such element as actual fraud, accident, mistake or insolvency . . . appear to

justify it.‘‖ Early v. St., 192 Tenn. 463, 474, 241 S.W.2d 531, 536 (Tenn. 1951) (quoting

McMillan v. Am. Suburban Corp., 136 Tenn. 53, 188 S.W. 615, 617 (Tenn. 1916)).

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―Generally speaking, rescission is appropriate when a party has been induced to enter into

a contract by fraud, duress or undue influence. It is also appropriate in other limited

situations.‖ B.L. Hodge Co. v. Roxco, Ltd., No. 03A01-9704-CH-00144, 1997 WL

644960, at *3 (Tenn. Ct. App. Oct. 16, 1997); see also Belote v. Henderson, 45 Tenn.

471, 475 (1868) (involving duress); Atkins v. Kirkpatrick, 823 S.W.2d 547, 552 (Tenn.

Ct. App. 1991) (―Fraudulent misrepresentation can be a ground for the rescission of a

contract.‖); Robinson v. Brooks, 577 S.W.2d 207 (Tenn. Ct. App. 1978) (involving

mutual mistake).

In this case, Ms. Green asserts that the contract should be rescinded on the basis of

duress.1 ―Tennessee has long recognized that a contract, although valid on its face, may

not be enforceable if it can be proved that the contracting party acted under duress.‖

Holloway v. Evers, No. M2006-01644-COA-R3CV, 2007 WL 4322128, at *8 (Tenn. Ct.

App. Dec. 6, 2007). While many of the early cases involved acts performed under threat

of physical harm, see Belote v. Henderson, 45 Tenn. (5 Cold.) 471 (Tenn. 1868)

(involving the sale of a horse under threat of arrest by military authority); Willard v.

Willard, 65 Tenn. (6 Baxt.) 207 (Tenn. 1873) (involving a shotgun wedding); Pride v.

Baker, 64 S.W. 329 (Tenn. Ch. App. 1901) (involving a deed executed under death

threat), other forms of coercion can constitute duress. Holloway v. Evers, 2007 WL

4322128, at *8 (citing Johnson v. Ford, 245 S.W. 531, 540 (Tenn. 1922)). As explained

by this Court:

―Duress‖ is 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. The alleged

coercive event must be of such severity, either threatened,

impending or actually inflicted, so as to overcome the mind

and will of a person of ordinary firmness. To constitute

duress, the danger must not only exist, but must be shown to

have actually operated upon the mind, and to have constituted

the controlling motive for the performance of the act sought

to be avoided.

Cummings Inc. v. Dorgan, 320 S.W.3d 316, 331–32 (Tenn. Ct. App. 2009) (quoting

Hardy v. Harris, No. 01-A-01-9001-CH-00005, 1990 WL 61429, at *1–*2 (Tenn. Ct.

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As discussed supra, the trial court did not address Ms. Green‘s duress argument in its order

enforcing the settlement. Although neither party specifically takes issue with the trial court‘s lack of

specificity, we encourage trial courts to address the arguments raised by the parties when ruling on

dispositive motions.

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App. May 11, 1990)). The burden of proof lies with the party asserting duress. Hardy,

1990 WL 61429, at *2.

This Court considered a request for rescission of a contract due to duress in

Holloway v. Evers. In Holloway, the plaintiff alleged that his business partners took

advantage of his weak financial situation and health problems to coerce him into selling

his portion of a jointly-owned business. Holloway, 2007 WL 4322128, at *9. The Court

of Appeals, however, concluded that the plaintiff‘s allegations failed to show duress on

the part of the business partners, as the plaintiff ―presented no evidence of any wrongful

or illegal act by [the business partners.]‖ According to the Court:

The financial and health problems he was facing were

unfortunate and undoubtedly caused him stress. However,

they were not caused by the defendants, and many people

are required to make business and other decisions while

facing such problems. There is simply no evidence that some

action by the defendants deprived [the plaintiff] of his free

will to make the best decision he could in the circumstances.

Id. (emphasis added). Thus, the lack of action by the defendants was a determinative

factor in the Court‘s conclusion that duress had not been shown.

In this case, the only allegations regarding duress pertain to Attorney Biller, rather

than YMCA. Indeed, from our review of Ms. Green‘s response to the motion to enforce

the settlement agreement and her appellate brief, Ms. Green directs no allegations of

misconduct of any kind at YMCA.2 Thus, much like in Holloway, even taking Ms.

Green‘s allegations as true, ―[t]here is simply no evidence that some action by [YMCA]

deprived [Ms. Green] of h[er] free will to make the best decision [s]he could in the

circumstances.‖3 Id.; but see Delgado v. UHS Lakeside, LLC, No. 11-3111, 2013 WL

2

At oral argument, Ms. Green asserted that several documents not contained in the record

indicate that YMCA colluded with Attorney Biller to coerce Ms. Green into signing the settlement

agreement. As we indicated at oral argument, however, documents that are not contained in the record on

appeal cannot be considered by this Court. See Limbaugh v. Mueller Refrigeration Co., No. M2007-

00999-WCR3WC, 2008 WL 4378191, at *5 (Tenn. Workers Comp. Panel Sept. 26, 2008) (indicating that

courts may not consider documents that were not ―introduced to and admitted by the trial court‖).

Accordingly, there is nothing in the appellate record to suggest that Attorney Biller‘s actions should be

attributed to YMCA.

3

At oral argument, Ms. Green also indicated that Attorney Biller committed fraud in order to

convince her to sign the mediated settlement agreement. Typically, contentions that are not supported by

relevant argument and citation to authorities in the argument section of the appellant‘s brief are

considered waived. See Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App. 2000). Regardless, Ms. Green‘s

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4648294, at *7 (W.D. Tenn. Aug. 29, 2013), appeal dismissed (6th Cir. Apr. 9, 2014)

(considering the actions of the plaintiff‘s attorney in determining whether duress had

been shown) (discussed in more detail, infra).

Moreover, even considering the allegations regarding Attorney Biller, we cannot

conclude that Attorney Biller‘s purported conduct at the mediation amounted to a

―coercive event . . . of such severity, either threatened, impending or actually inflicted, so

as to overcome the mind and will of a person of ordinary firmness.‖ Cummings, 320

S.W.3d at 331. Here, Ms. Green alleges that Attorney Biller changed the strategy and

desired outcome of the mediation from allowing Ms. Green to return to work to solely a

request for damages. In addition, Ms. Green alleges that Attorney Biller did not allow her

to speak during the mediation and informed her that her case could not be won due to the

weakness of her deposition testimony. Ms. Green‘s affidavit, however, admits that prior

to the mediation, Ms. Green was aware that she had the option to ―walk[] away from the

mediation.‖ Indeed, the parties do not dispute that Ms. Green had previously participated

in mediation with YMCA that did not result in a settlement. Neither party has cited any

Tennessee caselaw directly on this subject. Our research has revealed, however, that the

United States District Court for the Western District of Tennessee, applying Tennessee

law, has previously considered this issue. See Delgado, 2013 WL 4648294, at *7. The

Tennessee Supreme Court has indicated that, although not binding on Tennessee courts,

we may utilize federal caselaw as persuasive authority. Harris v. Chern, 33 S.W.3d 741,

745 n.2 (Tenn. 2000). In Delgado, like in this case, the client alleged that her attorney

coerced her into settling her case. Delgado, 2013 WL 4648294, at *7. The federal court

held, however, that ―communicating to his client the advisability of settlement a case‖

fraud argument must fail for the same reasons as Ms. Green‘s duress argument: Ms. Green has simply

asserted no fraudulent action on the part of YMCA. In order to establish a claim of fraud, the party

asserting that claim must show that:

(1) the defendant made a representation of an existing or past fact; (2)

the representation was false when made; (3) the representation was in

regard to a material fact; (4) the false representation was made either

knowingly or without belief in its truth or recklessly; (5) plaintiff

reasonably relied on the misrepresented fact; and (6) plaintiff suffered

damage as a result of the misrepresentation.

PNC Multifamily Capital Institutional Fund XXVI Ltd. P’ship v. Bluff City Cmty. Dev. Corp., 387

S.W.3d 525, 548 (Tenn. Ct. App. 2012) (emphasis added). As there is no allegation in the record on

appeal that YMCA defrauded Ms. Green, Ms. Green cannot prevail on her argument that the settlement

agreement should be rescinded due to fraud.

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does not amount to duress sufficient to rescind a settlement agreement. Id. Following the

persuasive authority presented in Delgado, Ms. Green‘s allegations, even taken as true,

fail to show ―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.‖ Cummings, 320 S.W.3d at 331.

Accordingly, the trial court did not err in granting YMCA‘s motion to enforce the

settlement agreement.4

Frivolous Appeal

Under Tennessee Code Annotated Section 27-1-122 this court may award

damages for prosecuting a frivolous appeal:

When it appears to any reviewing court that the appeal from

any court of record was frivolous or taken solely for delay,

the court may, either upon motion of a party or of its own

motion, award just damages against the appellant, which may

include but need not be limited to, costs, interest on the

judgment, and expenses incurred by the appellee as a result of

the appeal.

YMCA argues that Ms. Green‘s appeal is frivolous pursuant to Tennessee Code

Annotated Section 27-1-122 and contends that it is entitled to attorney‘s fees and costs

incurred in defending this appeal.

A frivolous appeal is one that is devoid of merit, Combustion Eng’g, Inc. v.

Kennedy, 562 S.W.2d 202, 205 (Tenn. 1978), or one that has no reasonable chance of

succeeding. Davis v. Gulf Ins. Group, 546 S.W.2d 583, 586 (Tenn. 1977); Jackson v.

Aldridge, 6 S.W.3d 501, 504 (Tenn. Ct. App. 1999); Indus. Dev. Bd. v. Hancock, 901

S.W.2d 382, 385 (Tenn. Ct. App. 1995). Thus, an appeal in which the reviewing court‘s

ability to address the issues raised is undermined by the appellant‘s failure to provide an

adequate record is deemed frivolous because it has no reasonable chance of succeeding.

Brooks v. United Uniform Co., 682 S.W.2d 913, 915 (Tenn. 1984).

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In its appellate brief, YMCA also argues that Ms. Green cannot rescind the settlement

agreement because she has not returned the consideration that she received as a result of the settlement

agreement either to YMCA or the trial court, citing Smith v. Boyd, 2 Tenn. App. 334, 338 (Tenn. Ct.

App. 1925) (―It is the settled rule that where the plaintiff seeks to repudiate a settlement or adjustment of

a claim for personal injuries, that a tender of the amount received in the alleged settlement must first be

made.‖). Because we have determined that Ms. Green is not entitled to rescind the settlement agreement

due to duress or fraud, we need not consider this argument.

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Although Ms. Green was not ultimately successful, we do not conclude that this

appeal was frivolous or taken solely for delay. Ms. Green‘s brief was fully compliant

with Rule 27 of the Tennessee Rules of Appellate Procedure, and her argument was

cogent. Furthermore, it appears that the trial court failed to specifically address Ms.

Green‘s contentions in its order enforcing the settlement. Under these circumstances, we

will not sanction Ms. Green for seeking redress in this Court, regardless of whether she

actually prevailed in her appeal. Accordingly, we decline to award YMCA attorney‘s fees

incurred in defending this appeal.

Conclusion

The judgment of the Circuit Court of Shelby County is affirmed and this cause is

remanded to the trial court for all further proceedings as are necessary and are consistent

with this Opinion. Costs of this appeal are taxed to Appellant Cheryl Erma Green, and

her surety, for which execution may issue if necessary.

_________________________________

J. STEVEN STAFFORD, JUDGE

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