Cheryl Erma Green v. YMCA of Memphis and the Mid-South ( 2015 )

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
________________________________
No. W2014-02190-COA-R3-CV – Filed November 4, 2015
_________________________________
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.
1
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
7
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).
4
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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