                  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.

                                                          -2-
                                                           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.

                                                           -3-
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.




                                                 -4-
                                                  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


                                                  -5-
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.




                                                 -6-
        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.

                                                          -7-
         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.

                                                   -8-
               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.




                                                 -9-
       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).



                                                 -10-
       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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