John Mervin v. Ken Davis, E2016-00508-COA-R3-CV

Background

Neighbors John and Sharon Merwin and Ken and Martha Davis had ongoing disputes after the Merwins moved into a cul-de-sac; Merwin erected a “911” sign near the Davises’ property.
A June 2014 confrontation about the sign led the Davises to file a general sessions civil warrant and criminal complaints against Mr. Merwin.
In September 2014 the parties executed a written global settlement: Merwins would remove/relocate the sign, have no contact, and not pursue further suits; Davises agreed to dismiss the civil warrant and two criminal summonses and not discuss Merwin’s dementia.
The general sessions civil warrant was dismissed with prejudice on September 12, 2014; the criminal case was not dismissed at an October hearing (case continued), but was dismissed in January 2015 after Merwin obtained counsel; the Merwins removed the sign by November 2014.
The Merwins sued in circuit court alleging nuisance, trespass, IIED, assault, defamation, malicious prosecution, civil conversion, civil conspiracy, and breach of the settlement agreement; the trial court dismissed pre-September 12 claims as res judicata and granted directed verdicts on breach and malicious-prosecution-related claims.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the settlement was an enforceable contract	Merwins: written settlement created binding contract requiring Davises to dismiss criminal charges	Davises: agreement is a settlement but they lacked authority to dismiss criminal charges; performance limited	Contract enforceable, but impossibility applies to criminal-dismissal term; no breach proven
Whether Davises breached by failing to have criminal charges dismissed at October hearing	Merwins: Davises failed to dismiss as promised, breaching the contract	Davises: they lacked authority to dismiss; the DA controls prosecution; they partially performed by dismissing civil warrant	No breach; doctrine of impossibility precludes liability and Davises partially performed
Whether Davises breached by encouraging prosecution (telling DA they wanted Merwin jailed)	Merwins: Davises encouraged continuation of prosecution, undermining settlement	Davises: such statements do not establish contractual breach or causation; no time limit in contract; Merwins had not fully performed	Court held evidence insufficient to show breach or that Davises were first to materially breach
Whether claims arising before 9/12/2014 are barred by res judicata	Merwins: dismissal wasn’t final on merits because Davises didn’t comply with settlement	Davises: civil warrant dismissal with prejudice is a final judgment on the merits; res judicata bars same claims	Held: dismissal with prejudice is final; pre-9/12/2014 claims barred by res judicata

Key Cases Cited

ARC LifeMed, Inc. v. AMC-Tennessee, Inc., 183 S.W.3d 1 (Tenn. Ct. App. 2005) (elements required to prove breach of contract)
Thompson v. Hensley, 136 S.W.3d 925 (Tenn. Ct. App. 2003) (requirements for an enforceable contract)
Klosterman Dev. Corp. v. Outlaw Aircraft Sales, Inc., 102 S.W.3d 621 (Tenn. Ct. App. 2002) (contract formation principles)
Waddle v. Elrod, 367 S.W.3d 217 (Tenn. 2012) (settlement agreements treated as contracts)
United Brake Sys., Inc. v. Am. Envtl. Prot., Inc., 963 S.W.2d 749 (Tenn. Ct. App. 1997) (consequences when parties themselves breach contract)
Jackson v. Smith, 287 S.W.3d 486 (Tenn. 2012) (elements to establish res judicata)
Gerber v. Holcomb, 219 S.W.3d 914 (Tenn. Ct. App. 2006) (summary judgment standards for res judicata defense)
Creech v. Addington, 281 S.W.3d 363 (Tenn. 2009) (when a dismissal with prejudice is a final judgment on the merits)
Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446 (Tenn. 1995) (finality of judgments)
Bean v. Bean, 40 S.W.3d 52 (Tenn. Ct. App. 2000) (issues not briefed are waived on appeal)
Black v. Blount, 938 S.W.2d 394 (Tenn. 1996) (issues raised first on appeal are waived)