No.14-0192 __________________________________________________________________ IN THE SUPREME COURT OF TEXAS __________________________________________________________________ ANDREA A. CROWSON, Petitioner v. THOMAS D. CROWSON, J R., Respondent __________________________________________________________________ On Appeal from the Third Court of Appeals No. 03-11-00795-CV __________________________________________________________________ THOMAS D. CROWSON, JR.’S RESPONSE TO PETITION FOR REVIEW __________________________________________________________________ Monte L. Swearengen State Bar No. 18871700
[email protected] Patricia J . Dixon State Bar No. 24072068
[email protected] GRAY & BECKER, P.C. 900 West Avenue Austin, Texas 78701 Telephone: (512) 482-0061 Facsimile: (512) 482-0069 COUNSEL FOR RESPONDENT THOMAS D. CROWSON, J R. FILED 14-0192 7/14/2014 4:16:10 PM tex-1818580 SUPREME COURT OF TEXAS BLAKE A. HAWTHORNE, CLERK i IDENTITY OF PARTIES AND COUNSEL RESPONDENT/Appellee below: Thomas D. Crowson, J r. Trial Counsel: Eric Robertson Ausley, Algert, Robertson, & Flores LLP 3307 Northland Drive, Suite 420 Austin, Texas, 78731 512/454-8791 512/454-9091 (fax) Trial and Appellate Counsel: Richard E. Gray, III Monte L. Swearengen Patricia J . Dixon Gray & Becker, P.C. 900 West Avenue Austin, TX 78701 512/482-0061 512/482-0924 (fax) PETITIONER/Appellant below: Andrea A. Crowson Trial Counsel: J ohn Barrett Kathleen Coble Barrett & Coble ii 7200 N. MoPac Expressway, Ste. 440 Austin, Texas 78731 512/482-8193 512/482-0525 (fax) Bradley Coldwell Coldwell Bowes, LLP 919 Congress Ave., Ste. 1200 Austin, Texas 78701 512/472-2040 512/472-2030 (fax) J ason Davis Gretchen Scardino The Davis Group, Inc. 112 E. Pecan Street, Suite 777 San Antonio, Texas 78205 210/853-5882 210/220-8395 (fax) J ames A. Vaught Vaught Law Firm, P.C. 5929 Balcones Drive, Suite 201 Austin, Texas 78731 512/961-5393 512/610-9980 (fax) Bruce Thrasher LAW OFFICES OF BRUCE THRASHER 3 Lakeway Center Ct., Suite 220 Lakeway, Texas 78734 512/263-5141 512/263-5142 (fax) iii Trial and Appellate Counsel: Erin M. Thrash THRASH LAW FIRM 3 Lakeway Center Ct., Suite 100 Austin, Texas 78734 512/263-5400 512/263-5402 (fax) Michael S. Truesdale Law Office of Michael S. Truesdale, PLLC 801 West Avenue, Suite 201 Austin, TX 78701 512/507-3812 866/847-8719 (fax) INTERVENORS Law Office of J ohn Barrett Barrett and Coble Trial Counsel: J ohn Barrett Kathleen Coble Barrett and Coble 7200 N. MoPac Expressway, Ste. 440 Austin, Texas 78731 512/ 482-8193 512/482-0525 (fax) Appellate Counsel J ohn Barrett Barrett and Coble 7200 N. MoPac Expressway, Ste. 440 Austin, Texas 78731 512/482-8193 512/482-0525 (fax) iv TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL ............................................................ i TABLE OF CONTENTS ......................................................................................... iv INDEX OF AUTHORITIES .................................................................................... vi STATEMENT OF THE CASE ................................................................................ ix STATEMENT REGARDING J URISDICTION ..................................................... xi RESPONSIVE ISSUES ......................................................................................... xiv I. Texas Family Code §6.602 does not have an exception to enforcement of irrevocable mediated settlement agreements in cases where family violence has occurred—and this Court should not create one. ........................................................................ xiv II. The appellate court properly held that the failure to seek to vacate or modify a binding arbitration award waived any complaints about entry of that arbitration award. ............................. xiv III. The appellate court applied the correct standard in reviewing the factual sufficiency of the evidence upon which the trial court rejected claims that the mediated settlement agreement was procured by duress, coercion or undue influence. ..................... xiv STATEMENT OF FACTS ........................................................................................ 1 A. Mediation was by agreement. ................................................................ 1 B. Mediation resulted in an enforceable and irrevocable MSA. ................ 2 C. The trial court rendered judgment on the MSA. ................................... 2 D. The parties were ordered to binding arbitration. ................................... 4 E. Nearly one month after rendition of judgment, Andrea attempted to set aside the MSA. ............................................................ 5 F. The Arbitration Award was confirmed. ................................................ 5 G. Andrea filed a Motion for New Trial. ................................................... 5 H. Andrea appealed only the property division. ........................................ 9 STANDARD OF REVIEW ..................................................................................... 10 SUMMARY OF THE ARGUMENT ...................................................................... 11 ARGUMENT AND AUTHORITIES ...................................................................... 13 v I. THIS COURT SHOULD DECLINE PETITIONER’S REQUEST TO CARVE OUT A NEW EXCEPTION TO THE ENFORCEABILITY OF IRREVOCABLE MEDIATED SETTLEMENT AGREEMENTS. ...................................................... 13 A. An MSA meeting statutory requirements is enforceable. ................... 13 B. Section 6.602 has no enforcement exception based on family violence. .............................................................................................. 15 C. Current law already precludes enforcement of an illegally obtained MSA. ..................................................................................... 16 II. THIS COURT SHOULD DECLINE REVIEW BECAUSE IT IS WELL SETTLED THAT AN ARBITRATION AWARD MUST BE CONFIRMED BY THE TRIAL COURT IN THE ABSENCE OF A MOTION TO VACATE, MODIFY OR CORRECT THE AWARD. ................................................................. 17 III. THIS COURT SHOULD DECLINE REVIEW BECAUSE THE TRIAL COURT AND THE APPELLATE COURT FOUND THE EVIDENCE DID NOT SUPPORT ANDREA’S CLAIMS OF DURESS, COERCION OR UNDUE INFLUENCE. ...................................................................................... 19 PRAYER FOR RELIEF .......................................................................................... 21 CERTIFICATE OF SERVICE ................................................................................ 22 CERTIFICATE OF COMPLIANCE ....................................................................... 22 vi INDEX OF AUTHORITIES Cases Boyd v. Boyd, 67 S.W.3d 398 (Tex. App.—Fort Worth 2002, no pet.) .............................................................. xii Bracamontes v. Bracamontes, No. 13-11-00779-CV, 2013 WL 3895361 (Tex. App.—Corpus Christi J uly 25, 2013, pet. denied) ..................................... 17 Brooks v. Brooks, 257 S.W.3d 418 (Tex. App.—Fort Worth 2008, pet. denied) ......................................................... 17 Byrd v. Byrd, No. 04-11-00700-CV, 2012 WL 6013424 (Tex. App.—San Antonio Nov. 30, 2012, no pet.) .............................................. 17 City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ........................................................................................................... 10 Crowson v. Crowson, No. 03-11-00195-CV (Tex. App.—Austin Dec. 13, 2013, reh’g denied, J an. 31, 2014) ......................... x Dallas County Community College District v. Bolton, 185 S.W.3d 868 (Tex. 2005) ........................................................................................................... 19 Durham v. Durham, No. 03-03-00303-CV, 2004 WL 579224 (Tex. App.—Austin March 25, 2004, no pet.) ..................................................... 16 Gaskin v. Gaskin, No. 02-06-039-CV, 2006 WL 2507319 (Tex. App.—Fort Worth August 31, 2006, pet. denied) ...................................... 16 Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757 (Tex. 2003) ........................................................................................................... 10 Hall v. Hall, No. 12-03-00417-CV, 2005 WL 1000619 (Tex. App.—Tyler Apr. 29, 2005, no pet.) .......................................................... 17 In re Calderon, 96 S.W.3d 711 (Tex. App.—Tyler 2003, orig. proceeding) ......................................................... 17 In re D.E.H., 301 S.W.3d 825 (Tex. App.—Fort Worth 2009, pet. denied) ......................................................... 20 In re Haliburton Co., 80 S.W.3d 566 (Tex. 2002) ........................................................................................................... 19 In re Kasschau, 11 S.W.3d 305 (Tex. App.—Houston [14 th Dist.] 1999, orig. proceeding) ................................. xii vii In re Lee, 411 S.W.3d 445 (Tex. 2013) ................................................................................................... passim In re Marriage of Fannette, No. 10-12-00141-CV, 2013 WL 3533238 (Tex. App.—Waco J uly 11, 2013, no pet.) ................................................... 16, 21 In re Marriage of Joyner, 196 S.W.3d 883 (Tex. App.—Texarkana 2006, pet. denied) ......................................................... xii Mann v. Mann, No. 04-07-00154-CV, 2008 WL 577266 (Tex. App.—San Antonio Mar. 5, 2008, pet. denied) .......................................... 17 Milner v. Milner, 361 S.W.3d 615 (Tex. 2012) ................................................................................................... passim Morse v. Morse, 349 S.W.3d 55 (Tex. App.—El Paso 2010, no pet.) .................................................................... xii Spiegal v. KLRU Endowment Fund, 228 S.W.3d 237 (Tex. App.—Austin 2007, pet. denied) ............................................................... xii Teleometrics Int’l v. Hall, 922 S.W.2d 189 (Tex. App.—Houston [1 st Dist.] 1995, writ denied) ............................................ 18 Torres v. Torres, No. 14-12-00436-CV, 2013 WL 776278 (Tex. App.—Houston [14 th Dist.] Feb. 28, 2013, no pet.) ................................... 17 Walker v. Packer, 877 S.W.2d 833 (Tex.1992) ............................................................................................................ 10 Zimmerman v. Zimmerman, No. 04-04-00347-CV, 2005 WL 1812613 (Tex. App.—San Antonio August 3, 2004, pet. denied) ...................................... 16 Statutes Tex. Civ. Prac. & Rem. Code §154.002 .................................................................. 15 Tex. Civ. Prac. & Rem. Code §171.022 ........................................................... 18, 19 Tex. Civ. Prac. & Rem. Code §171.054(c) .............................................................. 18 Tex. Civ. Prac. & Rem. Code §171.088 ........................................................... 17, 18 Tex. Civ. Prac. & Rem. Code §171.088(a) .............................................................. 17 Texas Family Code §153.0071 ........................................................................ passim Texas Family Code §153.0071(e-l) ....................................................................... xiii Texas Family Code §153.0071(f) ....................................................................... xii, 1 Texas Family Code §6.602 .............................................................................. passim viii Texas Family Code §6.602(b) .................................................................................. 14 Texas Family Code §6.602(c) .................................................................................. 14 Texas Family Code §6.602(d) ....................................................................... xii, 1, 15 ix STATEMENT OF THE CASE Petitioner Andrea A. Crowson (“Andrea”) filed for divorce on April 16, 2010. Clerk’s Record 28-14 (“CR”). Respondent Thomas D. Crowson, J r. (“Thomas”) answered suit on April 28, 2010. CR47-51. On May 14, 2010, an Agreed Final Protective Order was entered. CR62-71. The parties agreed to mediate on J uly 14 and 15, 2011. Volume 3 Reporter’s Record at 12 (hereinafter “RR” preceded by volume number and followed by page references). The parties entered into an irrevocable mediated settlement agreement (“MSA”) dividing the community estate and providing for the conservatorship, support and possession of the three minor children. CR854- 848; 4RR6. On J uly 29, 2011, after hearing the testimony of the parties and confirming that the MSA met the statutory requirements of Texas Family Code §§6.602 and 153.0071, the trial court rendered judgment pursuant to the MSA and granted the divorce. 4RR43-44; 48. Disputes arose as to the wording of the final decree. On August 18, 2011, the court heard Thomas’s Motion to Compel Arbitration as to those drafting disputes. 5RR1-11. The court ordered the parties to binding arbitration on September 1, 2011, resulting in an Arbitration Award. CR625-688. x On September 8, 2011, the trial court heard Thomas’s Motion to Sign and Enter the Final Decree of Divorce in the form of the Arbitration Award. 6RR1-8. Upon granting that motion, the court confirmed the Award and signed the Final Decree of Divorce on September 8, 2011, noting that judgment had previously been rendered in open court on J uly 29, 2011. CR760-822. Andrea then filed a Motion for New Trial on October 5, 2011, which was heard on November 16, 2011. CR825-835; 7RR1-89. The Motion challenged the judgment as to both the property division and the conservatorship, possession, and support of the minor children. CR828, 831-832. The Motion for New Trial was denied on November 16, 2011. CR836-837. Andrea appealed the property division to the Third Court of Appeals, but abandoned the children’s issues. See Crowson v. Crowson, No. 03-11-00195-CV (Tex. App.—Austin, Dec. 13, 2013, reh’g denied, J an. 31, 2014) (hereinafter “Slip Op.”) at 10, fn. 6. The Third Court of Appeals affirmed the trial court’s Final Decree of Divorce on December 13, 2013. On J anuary 31, 2014, Andrea’s motion for re- hearing and request for en banc review was denied by the Third Court of Appeals. xi STATEMENT REGARDING JURISDICTION Petitioner incorrectly argues that the Third Court of Appeals committed an error of law that this Court should correct. As will be discussed in this Response, Petitioner waived the relief sought by failing to seek to modify or vacate the arbitration award as required by Texas Civil Practice & Remedies Code, Chapter 171. This case is not the case the Court left for another day in Milner v. Milner, 361 S.W.3d 615, 619 (Tex. 2012): “This appeal does not involve allegations of fraud or dishonesty, and so we leave the applicability of those defenses for another case.” Petitioner incorrectly argues that this case squarely presents that very issue. As the Third Court of Appeals pointed out, Petitioner’s allegation of fraud was waived for failure to cite any evidence of fraud in the record (Slip op. at 11, fn. 7); and the evidence did not support her claims of duress, coercion, and undue influence. Id. at 13. The Third Court found that substantive evidence supported the trial court’s refusal to accept Andrea’s defenses of duress, coercion, and undue influence. Id. at 14. Notably, there is no split of authority as to the issue of whether an otherwise irrevocable mediated settlement agreement procured by fraud, duress or other xii dishonest means is enforceable and Milner cites several cases so holding. 1 There is no need for this Court to address that issue, especially in this case where the factfinder concluded there was no fraud, duress, coercion or other illegality; and where the appellate court found the evidence supporting that conclusion to be factually sufficient. Petitioner incorrectly argues that enforcement of this MSA that was fully compliant with the applicable statutory requirements of §6.602 should be reviewed by this Court to “prevent an absurd result” (citing to the dissenting opinion in In re Lee, 411 S.W.3d 445, 480 (Tex. 2013) (Green, J ., dissenting)). As will be discussed in this Response, the Texas Family Code addresses mediated settlement agreements in the context of family violence and offers protection to the victims of family violence. This Court held in In re Lee, that enforcing an MSA meeting statutory requirements does not leave trial courts with no ability to protect a child put at risk by the parents’ agreement. Id. at 461. Likewise, §6.602(d) and §153.0071(f) allow victims of family violence to object to participating in mediation. An additional statutory protection in the Family Code allows trial courts to decline to enforce mediated settlement agreements where family violence impaired a party’s ability to make decisions and where the agreement reached is 1 Boyd v. Boyd, 67 S.W.3d 398, 403-05 (Tex. App.—Fort Worth 2002, no pet.); Spiegal v. KLRU Endowment Fund, 228 S.W.3d 237, 242 (Tex. App.—Austin 2007, pet. denied); In re Marriage of Joyner, 196 S.W.3d 883, 890 (Tex. App.—Texarkana 2006, pet. denied); In re Kasschau, 11 S.W.3d 305 (Tex. App.—Houston [14 th Dist.] 1999, orig. proceeding); Morse v. Morse, 349 S.W.3d 55, 56 (Tex. App.—El Paso 2010, no pet.). xiii not in the child’s best interest. Texas Family Code §153.0071(e-l). These provisions insure that enforcement of irrevocable mediated settlement agreements in cases involving family violence will not generate in an “absurd result.” Enforcement of the MSA in this case does not lead to an absurd result where the protections provided by the Family Code were not sought; where no objection to mediation based on family violence was made; where the parties proceeded to mediation by agreement; where only the property division was challenged on appeal; and where the factfinder concluded there was no impairment in the party’s decision making abilities at mediation. This Court should decline review and deny the Petition for Review. xiv RESPONSIVE ISSUES I. Texas Family Code §6.602 does not have an exception to enforcement of irrevocable mediated settlement agreements in cases where family violence has occurred—and this Court should not create one. II. The appellate court properly held that the failure to seek to vacate or modify a binding arbitration award waived any complaints about entry of that arbitration award. III. The appellate court applied the correct standard in reviewing the factual sufficiency of the evidence upon which the trial court rejected claims that the mediated settlement agreement was procured by duress, coercion or undue influence. 1 STATEMENT OF FACTS A. Mediation was by agreement. Petitioner Andrea A. Crowson (“Andrea”) filed for divorce from Thomas D. Crowson, J r. (“Thomas”) on April 16, 2010. CR28-40. A little over a year later, on May 9, 2011, the parties confirmed their agreement to mediate the case on or before J uly 15, 2011. The trial court determined that the mediation was pursuant to agreement, not a court order. 7RR15-16, 19. Shortly before mediation, Andrea’s counsel, J ohn Barrett and Kathleen Coble, were permitted to withdraw, despite the upcoming mediation set for J uly 14. CR241. Andrea was at the hearing and consented to the withdrawal of two of her four attorneys representing her at the time. 3RR3, 9; CR241. New counsel appeared as of J uly 6. Id. No request was made to extend the deadline by which the parties previously agreed to mediate. 7RR18-19. The record shows no objection was made to mediating based upon family violence, despite the protective order that was in place. No request was made to invoke the protective measures of §6.602(d) or §153.0071 (f-l) to ensure the physical and emotional safety of Andrea. 2 CR1144-1148. 2 Andrea’s attorney did assure her that she and Thomas would be in separate rooms during mediation. 7RR20. 2 B. Mediation resulted in an enforceable and irrevocable MSA. The parties and their counsel signed the MSA pursuant to Texas Family Code §6.602 and §153.0071. CR854-898. Page one stated in large bolded type, in capital letters, and underlined that, “THIS AGREEMENT IS NOT SUBJECT TO REVOCATION.” CR854. Counsel and the parties were well aware of the prior finding of family violence in that the MSA specifically referred to the May 14, 2010, Agreed Final Protective Order and the February 25, 2011, Order Modifying Final Protective Order (which remained in effect except where inconsistent with the terms of the MSA). CR855. The parties negotiated a phase- out over time of the supervised possession of the children by Thomas previously required by the protective orders. CR866-867. C. The trial court rendered judgment on the MSA. The final provision of the MSA repeated that it was not subject to revocation and cited sections 6.602 and 153.0071 of the Family Code acknowledging that either party was entitled to judgment on the MSA as a matter of law. CR856. On J uly 21, 2011, Andrea’s counsel, J ames A. Vaught, informed Thomas’s counsel that Andrea was “repudiating” the MSA because she “[could not] agree with the mediation.” CR355. Mr. Vaught stated he had no choice but to withdraw as Andrea’s counsel. Id. 3 That correspondence resulted in Thomas’s Motion for Enforcement of MSA and Motion to Enter Final Decree of Divorce. CR304-433. That Motion was heard on J uly 29, 2011. 4RR1-48. When the hearing began, Andrea’s counsel withdrew his pending Motion to Withdraw based on Andrea’s representation to him that she knew the MSA was irrevocable. 4RR3. When the hearing began, Andrea consented to the withdrawal of her tort claim counsel, J ason Davis and Gretchen Scardino. 4RR4-5. The court instructed the parties that the hearing was to determine whether judgment should be rendered. 4RR6. The court determined that both parties were capable of understanding the proceedings and were not experiencing any mental process, either emotional or cognitive, that precluded going forward. 4RR7-8. Andrea testified, under oath, that she was not being compelled to resolve the case through the MSA; that she was acting “freely and voluntarily;” and that she did not know of any material misrepresentation having been made to her. 4RR10, 11, 12. Andrea testified that she understood that the MSA was not subject to revocation. 4RR16. The trial court asked Andrea whether she was unclear about any of the MSA provisions. 4RR16-17. Andrea testified that by the end of the two day mediation “things just weren’t very, very clear;” that she was not as focused as she should have been. 4RR17. 4 Andrea then testified as to a fax received during mediation pertaining to criminal charges pending against Thomas. 4RR18. She testified that her attorney repeatedly told her not to worry about the fax; that it had nothing to do with the mediation. 4RR18-19. A second fax arrived and Andrea testified that she was “scared” and could not “focus.” 4RR20. 3 She then testified that she had been “diagnosed as possibly having PTSD.” 4RR20. The court continued questioning Andrea. 4RR20-14,29-30,33-43. At the conclusion of the hearing the court, as factfinder, stated that it did not believe she was cognitively impaired and did not believe she was operating under any intoxicant or “other thing that would have vitiated her consent” to the MSA. 4RR47-48. The court rendered the divorce. 4RR48. D. The parties were ordered to binding arbitration. When drafting disputes arose as to the final decree, Thomas filed a Motion to Compel Arbitration pursuant to the MSA which was heard on August 18, 2011. 5RR1-11; CR566-613, 261. Mr. Vaught was allowed to withdraw and new counsel appeared on behalf of Andrea. 5RR3-4. At that August 18 hearing, the court was orally asked to set 3 The Petition for Review, at p. 2, states that Andrea was “shaken to the core.” She did not testify to that. The Petition, at p. 2, concludes, without a citation to the record, that the faxes and her proximity to Thomas triggered “flashbacks” resulting in a PTSD “episode.” No such testimony is found in the record. The Petition at pp.2-3, also asserts that comments made by the mediator “reinforced [Andrea’s] PTSD event” with no citation to the record to substantiate any PTSD event occurred. 5 aside the MSA, at which time the court acknowledged that it had previously received and enforced the MSA. 5RR8. The parties were ordered to arbitration on September 1, 2011. 5RR10. Andrea made no objection to being ordered to arbitration at the hearing. 5RR1-11. The Arbitration Award was dated September 1, 2011. CR625-688. E. Nearly one month after rendition of judgment, Andrea attempted to set aside the MSA. On August 23, 2011, Andrea filed her Motion to Set Aside or Decline to Enforce a Mediated Settlement Agreement. 4 CR619-624. On September 8, 2011, Andrea filed a Notice of Lack of Capacity and Notice of Withdrawal of Consent to Mediated Settlement Agreement. CR758-759. Andrea’s counsel neither set the Motion for hearing nor requested the court to take action regarding the Notice. F. The Arbitration Award was confirmed. Following the September 1, 2011, arbitration, Thomas presented the Arbitration Award to the trial court for confirmation and the Final Decree of Divorce which was rendered in open court on J uly 29, 2011, was signed by the court on September 8, 2011. CR760-822. Andrea made no objection to entry of the Arbitration Award at this hearing. 6RR1-8. G. Andrea filed a Motion for New Trial. 4 Andrea’s Motion to Set Aside or Decline to Enforce the MSA was later denied with the notation that the motion was filed after judgment was rendered on J uly 29, 2011. CR823-824. 6 On October 5, 2011, Andrea filed a Motion for New Trial. Among the grounds for Andrea’s request that the court grant the Motion for New Trial was that the court erred in entering judgment on the MSA in light of Andrea’s contractual defenses of lack of capacity, duress, coercion, undue influence, unconscionable terms and fraud. CR825-828. The Motion was heard on November 16, 2011. 7RR1-89. During the course of the hearing Andrea attempted to recant her testimony given at the J uly 29, 2011, hearing. However, on cross-examination she testified that she had testified truthfully at the J uly 29 hearing; that she had been under oath at that time; and that she stood by her earlier testimony in response to the court’s questions to her at that hearing. 7RR73-74. To support her Motion for New Trial, Andrea testified that she was “nervous” and “scared” at mediation despite being told by one of her three attorneys at mediation that she would not be in the same room with Thomas during mediation. 7RR20, 7RR65. Andrea confirmed that prior to mediation she had attended a “significant number” of hearings where Thomas was present and had attended Thomas’s four to five hour oral deposition. 7RR70-71. Andrea called Alissa Sherry, Ph.D. (“Sherry”) as a witness. 7RR33. Sherry conducted psychological evaluations of the parties in November 2010. 7RR35-36, 52. Sherry diagnosed Andrea as having Post-Traumatic Stress Disorder (“PTSD”). 7 7RR38. Sherry testified that Andrea had a history of childhood abuse from her parents that “laid the groundwork” for her PTSD. 7RR40-41. Sherry testified generally 5 about the effects of PTSD but could offer no opinion as to what happened at mediation or the possible effects of PTSD on Andrea at mediation: “I can’t speak to what went on in their particular mediation.” 7RR45. Sherry was not present at mediation. 7RR56. Sherry did not know whether Andrea and Thomas were kept in separate rooms during mediation. 7RR56. Sherry did not know how many attorneys represented Andrea at mediation. 7RR57. Sherry had not talked to Andrea since the November 2010 evaluation. 7RR58, 59. Sherry had not been given any information on Andrea’s state of mind on J uly 14 and 15, 2011. 7RR58. Sherry had not been provided with “any new material” since her November 2010 evaluation of Andrea. 7RR59. The court inquired of Sherry: 5 Contrary to the description of Sherry’s testimony in the Petition for Review, at p. 8, Sherry did not testify that Andrea’s PTSD “likely would make her shut down…, make it difficult for her to make rational decisions and put her at great risk of not being able to assert her own needs.” The testimony was as to “someone” with PTSD and to a “person” with PTSD. Sherry was not testifying as to Andrea’s possible response. 7RR39. Additionally, Sherry did not testify that Andrea would experience floods of anxiety when confronted by Thomas, but rather “an abused party” in general could have that reaction. 7RR46. 8 Court: …[T]he mediation occurred eight months after your…evaluation. You’re not here to testify as to Ms. Crowson’s mental state on the day of mediation, are you? Sherry: No, sir. Court: And to be fair, it would be pushing it to ask, since you have no new data, as to if you have a reliable and valid opinion as to her mental state on or about J uly 14 th , 2011? Sherry: Correct. I don’t have an opinion about that. 7RR63-64. The court examined Andrea’s testimony from the J uly 29, 2011, hearing and concluded that there was no time during mediation when Andrea reflected an inability to recall details. The court rejected Andrea’s allegation that she “blanked out” given that she testified to the events of both days of mediation, indicating that she had a recollection throughout mediation. 7RR85-86. The court found nothing that indicated cognitive impairment. 7RR86-87. The court concluded that Andrea was not cognitively impaired; that “she had the capacity to contract; and that she entered into the MSA knowingly, intentionally, voluntarily, of her own free will and volition.” 7RR86-87. Concluding that there was no new evidence or new ground not presented on J uly 29, 2011, the court denied the motion for new trial. 7RR88. 9 H. Andrea appealed only the property division. Andrea appealed the property division to the Third Court of Appeals; no issues were raised as to conservatorship, possession, or support of the children. Slip op. at 10, fn. 6. The Third Court of Appeals reviewed whether the MSA met statutory requirements de novo as a question of law. The trial court’s decision to enforce the MSA was reviewed on an abuse of discretion standard. Slip op. at 9. The Third Court of Appeals held that Andrea waived her complaints about the Final Decree by failing to seek to vacate the Arbitration Award pursuant to Texas Civil Practice & Remedies Code Chapter 171. Slip op. at 12. The Third Court of Appeals held that even if Andrea had not waived her complaints, that the evidence did not support her claims of duress, coercion, and undue influence. Slip op. at 13. 10 STANDARD OF REVIEW The Texas Constitution provides that the factual sufficiency of the evidence is left to the courts of appeal. Tex. Const. Art. V §6; City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). This Court has jurisdiction to “determine whether a court of appeals has applied the correct standard in conducting a factual sufficiency review.” Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). Where the trial court has held an evidentiary hearing and has resolved disputed fact issues, reviewing courts may not substitute their judgment on the facts for that of the trial court: With respect to resolution of factual issues or matters committed to the trial court’s discretion…the reviewing court may not substitute its judgment for that of the trial court. Walker v. Packer, 877 S.W.2d 833, 839 (Tex.1992). 11 SUMMARY OF THE ARGUMENT The Third Court of Appeals correctly concluded that Andrea waived her complaints about the property division in the Final Decree of Divorce because she did not seek to correct, modify, or vacate the binding Arbitration Award. The Third Court also correctly concluded that the evidence failed to support Andrea’s claims of duress, coercion or undue influence. The trial court, as factfinder, held that Andrea was not cognitively impaired at mediation, but rather, had entered into the MSA voluntarily and of her own free will. There is no need for this Court to review this case to address whether an otherwise irrevocable MSA must be enforced if obtained by fraud, duress, coercion or other illegal means. That is currently the unanimous opinion of each court of appeals having addressed the issue. Petitioner’s argument is really that this Court should carve out a new exception to the enforceability of mediated settlement agreements under Texas Family Code §6.602. Statutory construction, as detailed by this Court in In re Lee, 411 S.W.3d 455 (Tex. 2013), precludes such an exception. The Legislature has already addressed protective measures for victims of family violence in the context of mediations. Andrea simply did not choose to avail herself of those provisions. 12 Rather than establishing or announcing any groundbreaking principle of state law, the Third Court of Appeals merely correctly applied established law to the unique facts of this case. This Court should decline review. 13 ARGUMENT AND AUTHORITIES I. THIS COURT SHOULD DECLINE PETITIONER’S REQUEST TO CARVE OUT A NEW EXCEPTION TO THE ENFORCEABILITY OF IRREVOCABLE MEDIATED SETTLEMENT AGREEMENTS. Petitioner frames her argument as a request for this Court’s review to approve what the courts of appeal have already established—that trial courts need not enforce a mediated settlement agreement, otherwise irrevocable, that is the product of fraud, duress, coercion or other improper means. However, based upon the factual findings of the trial court, Andrea failed to prove the MSA in this case was procured by fraud, duress, coercion or other improper means. A closer examination of Andrea’s argument reveals that what she is actually requesting is for this Court to determine that the mediated property division under §6.602 is unenforceable where there was a finding of family violence. Such an “exception” to enforcement of the property division is no more proper here than the relief requested in In re Lee, 411 S.W.3d 445 (Tex. 2013),—that being the application of a best interest of the child determination under §153.0071(e-l) where there was no allegation or finding of family violence. A. An MSA meeting statutory requirements is enforceable. This Court has addressed the enforcement of irrevocable mediated settlement agreements in two fairly recent opinions. In Milner v. Milner, 361 S.W.3d 615, 616 (Tex. 2012), this Court acknowledged the statutory limits placed 14 on trial courts where the mediated settlement agreement meets the §6.602 requirements: The Texas Family Code provides for a mediated settlement agreement that ostensibly cannot be revoked after its execution provided certain formalities are followed. Tex. Fam. Code §6.602(b). If a mediated settlement agreement meets the formal statutory requirements, the trial court will not go behind the signed agreement to evaluate its merits, but must render judgment on the parties’ agreement. Id. §6.602(c). This Court held in Milner that the appellate court erred in setting aside an MSA meeting the requirements of §6.602 because it concluded “there was no meeting of the minds.” Id. After examining the language in the MSA this Court found the MSA to be ambiguous and that the parties’ intent was a question of fact. Id. at 622. To determine the “appropriate authority” to resolve the dispute as to the intent of the parties, the Court looked to the MSA itself, which provided that in the event of a dispute regarding the language used in the final decree, that the mediator would arbitrate such disputes and make the final decision. Id. The clear import of this decision is to give effect to the language of §6.602—if the MSA meets the statutory requirements, it is not to be set aside, but rather, it is to be enforced. 15 B. Section 6.602 has no enforcement exception based on family violence. The more recent opinion, In re Lee, 411 S.W.3d 445, 449 (Tex. 2013), recognized the importance of the public policy to “encourage the peaceable resolution of disputes, with special consideration given to disputes involving the parent-child relationship, including the mediation of issues involving conservatorship, possession, and support of children, and the early settlement of pending litigation through voluntary settlement procedures.” (citing Tex. Civ. Prac. & Rem. Code §154.002) (emphasis in original). In In re Lee, this Court held that the Legislature provided a very narrow exception to the enforcement of a validly executed MSA based on a best interest of the child determination where the MSA meets the statutory requirements of §153.0071(d). Id. at 450. Refusal to enter judgment on the MSA in In re Lee was reversible error because there was no finding or even an allegation of family violence to open the door for a best interest of the child determination as provided by the statute. It is noteworthy that in the instant case, where there was a finding of family violence, there was no objection to mediation of the case pursuant to §6.602(d) or §153.0071(f). Rather, the parties agreed to mediation. 7RR15-16,19. Andrea abandoned the issues concerning the children on appeal and never argued to the 16 court of appeals that the MSA was not in the best interest of the children. 6 Thus, §153.0071 is inapplicable here. Section 6.602 controls. This Court is being asked to create an enforcement exception based on family violence similar to the one at §153.0071(e-l) as to children’s issues, and to incorporate it into §6.602 as to property issues. Statutory construction, as discussed in In re Lee, simply will not support the creation of such an exception. C. Current law already precludes enforcement of an illegally obtained MSA. The Milner opinion recognizes, without any criticism, a line of appellate cases recognizing that §6.602 does not require enforcement of an illegally obtained MSA. Id. at 619. 7 In addition to the cases cited in Milner, the following cases have also held that an MSA procurement by fraud, duress or other dishonest means is rendered unenforceable: In re Marriage of Fannette, No. 10-12-00141-CV, 2013 WL 3533238, at *5 (Tex. App.—Waco J uly 11, 2013, no pet.)(mem. op.); Durham v. Durham, No. 03-03-00303-CV, 2004 WL 579224, at *2 (Tex. App.— Austin March 25, 2004, no pet.)(mem. op.); Zimmerman v. Zimmerman, No. 04- 04-00347-CV, 2005 WL 1812613, at *2 (Tex. App.—San Antonio August 3, 2004, pet. denied)(mem. op.); Gaskin v. Gaskin, No. 02-06-039-CV, 2006 WL 2507319, at *4 (Tex. App.—Fort Worth August 31, 2006, pet. denied)(mem. op); Hall v. 6 The Third Court of Appeals noted that Andrea challenged the MSA as to conservatorship and possession in her motion for new trial but did not raise that issue on appeal, but rather only challenged the MSA as to the property division under section 6.602. Slip op. at 10, fn. 6. 7 See fn. 1, supra. 17 Hall, No. 12-03-00417-CV, 2005 WL 1000619, at *2-3 (Tex. App.—Tyler Apr. 29, 2005, no pet.)(mem. op.); Brooks v. Brooks, 257 S.W.3d 418, 422 (Tex. App.—Fort Worth 2008, pet. denied); Torres v. Torres, No. 14-12-00436-CV, 2013 WL 776278, at *2 (Tex. App.—Houston [14 th Dist.] Feb. 28, 2013, no pet.)(mem. op.); Byrd v. Byrd, No. 04-11-00700-CV, 2012 WL 6013424, at *3 (Tex. App.—San Antonio Nov. 30, 2012, no pet.)(mem. op.); In re Calderon, 96 S.W.3d 711, 720 (Tex. App.—Tyler 2003, orig. proceeding); Bracamontes v. Bracamontes, No. 13-11-00779-CV, 2013 WL 3895361, at *4 (Tex. App.—Corpus Christi J uly 25, 2013, pet. denied)(mem. op.). II. THIS COURT SHOULD DECLINE REVIEW BECAUSE IT IS WELL SETTLED THAT AN ARBITRATION AWARD MUST BE CONFIRMED BY THE TRIAL COURT IN THE ABSENCE OF A MOTION TO VACATE, MODIFY OR CORRECT THE AWARD. Chapter 171 of the Texas Civil Practice & Remedies Code controls arbitration agreements. By statute the grounds for vacating an arbitration award are strictly limited. Tex. Civ. Prac. & Rem. Code §171.088(a). This statute is the sole remedy for a party unhappy with an arbitrator’s decision. See Mann v. Mann, No. 04-07-00154-CV, 2008 WL 577266, at *2 (Tex. App.—San Antonio Mar. 5, 2008, pet. denied)(mem. op.). It is undisputed that the MSA required the parties to submit to binding arbitration as to any disputes arising from the interpretation or performance of the MSA. CR261. It is also undisputed that Andrea did not object to arbitration when ordered by the trial court. 5RR1-11. Andrea did not challenge 18 the arbitration clause within the MSA as being unconscionable pursuant to Tex. Civ. Prac. & Rem. Code §171.022. Andrea did not object to the Arbitration Award being confirmed by the trial court on September 8, 2011. 6RR1-8. Andrea had twenty days after September 8, 2011, to seek modification or correction of the Arbitration Award. Id. at §171.054(c). The docket sheet shows no such relief was sought. CR1144-1148. Andrea had ninety days to seek to vacate the Arbitration Award as being obtained by corruption, fraud or other undue means. Id. at §171.088. No such relief was sought. CR1144-1148. In the absence of a motion to vacate, modify or correct the Arbitration Award, the trial court had no option but to confirm it. Id. at §171.087. The Third Court of Appeals correctly applied the statutory requirements as to the Arbitration Award and held that Andrea’s failure to seek to vacate it resulted in a waiver of her complaints about the Final Decree entered pursuant to the MSA. See Teleometrics Int’l v. Hall, 922 S.W.2d 189, 192 (Tex. App.— Houston [1 st Dist.] 1995, writ denied). Petitioner offered no rationale for this Court to review this matter in light of the holding of the Third Court of Appeals that Andrea waived her complaints by not following the procedures to challenge or vacate the Arbitration Award. 8 8 Even if the Court is persuaded that Andrea’s request for an exception to the enforcement of the MSA as to the property division under §6.602 based upon family violence has merit, the 19 Rather, the argument seems to be that if the MSA was illegally obtained, there is no need to seek to set aside an arbitration award. This Court has held that in applying §171.022, determining whether an arbitration clause is unconscionable includes a determination if the clause was obtained by fraud or other improper means. In re Haliburton Co., 80 S.W.3d 566, 571 (Tex. 2002). Therefore, Andrea’s later efforts to set aside the entire MSA did not excuse her failure to challenge it at the hearing on the Motion to Compel arbitration. That argument is precluded by Tex. Prac. & Rem. Code §171.022 which required Andrea to challenge the arbitration provision itself. She clearly did not do so. III. THIS COURT SHOULD DECLINE REVIEW BECAUSE THE TRIAL COURT AND THE APPELLATE COURT FOUND THE EVIDENCE DID NOT SUPPORT ANDREA’S CLAIMS OF DURESS, COERCION OR UNDUE INFLUENCE. 9 Andrea argues that her PTSD rendered her incapable of making rational decisions. Andrea offered testimony at two hearings regarding this claim. 4RR1- 48; 7RR1-89. The evidence failed to convince the factfinder that PTSD or any other factor vitiated her consent. Duress results from some threat that renders a person unable to exercise free will. Dallas County Community College District v. Bolton, 185 S.W.3d 868, 878 (Tex. 2005). No evidence of such a threat appears in the record. Coercion is outcome here will be the same. Andrea waived relief by failing to follow the statutory procedures for vacating the Arbitration Award. 9 As noted previously, Andrea’s fraud claim was waived on appeal. Slip op. at 11, fn. 7. 20 where someone is compelled to perform an act by force or threat. In re D.E.H., 301 S.W.3d 825, 829 (Tex. App.—Fort Worth 2009, pet. denied). Undue influence is the overcoming of free will. Id. at 828. Andrea’s own testimony dispells her claims of duress, coercion, or undue influence. To the extent that Andrea argues that the trial court should have refused to enter judgment on the MSA based upon family violence impairing her ability to make decisions, the transcript from the J uly 29, 2011, hearing shows that the trial court did not believe Andrea was impaired. 4RR47. The trial court made the following findings as to Andrea’s mental capacity: Andrea was of above average intelligence. Andrea was not cognitively impaired at mediation; and Andrea was not operating under any intoxicant or other substance that would have vitiated her consent to the MSA. 4RR47-48. After receiving Andrea’s testimony at the November 16, 2011, hearing on her Motion for New Trial, which included a description of family violence (7RR11-14), the trial court found that she was not cognitively impaired at mediation, but rather had the capacity to contract and that she entered into the MSA “knowingly, intentionally, voluntarily, of her own free will and violation.” 7RR87. These factual determinations were within the preview of the trial court. “[W]e note that the trial judge, as the factfinder in this case, was entitled to believe all, some, or none of witnesses testimony…[Internal citations omitted]. And based on its comments in open court…we find that the 21 trial court did not believe [petitioner’s] version of the story.” In re Marriage of Fannette, No. 10-12-00141-CV, 2013 WL3533238, at *6 (Tex. App.—Waco J uly 11, 2013, no pet.)(mem. op.). The Third Court of Appeals, after reviewing the evidence, found that there was “substantive, probative evidence” to support the trial court’s decision not to set aside the MSA on the grounds raised and that the trial court acted within its discretion in enforcing the MSA. Slip op. at 14. PRAYER FOR RELIEF FOR THESE REASONS, Thomas D. Crowson, J r. requests the Court to deny the Petition for Review. Respectfully submitted, Gray & Becker, P.C. 900 West Avenue Austin, Texas 78701 Tel: (512) 482-0061 Fax: (512) 482-0924 By: /s/ Monte L. Swearengen Monte L. Swearengen State Bar No. 18871700
[email protected] Patricia J . Dixon State Bar No. 24072068
[email protected] Attorneys for Thomas D. Crowson, Jr. 22 CERTIFICATE OF SERVICE The undersigned certifies that a true and correct copy of the above Response to Petition for Review was served on the following via facsimile on this the 14th day of J uly, 2014. Michael S. Truesdale Fax No. 866-847-8719 Law Office of Michael S. Truesdale, PLLC 801 West Avenue, Suite 201 Austin, TX 78701 Mr. J ohn Barrett Fax No. 512-482-0525 BARRETT AND COBLE 7200 North Mo Pac Expressway, Suite 440 Austin, TX 78731 /s/ Monte L. Swearengen Monte L. Swearengen CERTIFICATE OF COMPLIANCE The undersigned certifies that this brief complies with the word limitation contained in Texas Rules of Appellate Procedure 9.4(i)(2)(E) in that the brief contains a total of 4,422 words, excluding parts of the brief exempted by Rule 9.4(i)(l) as calculated by the word count tool of Microsoft Word 2010. /s/ Monte L. Swearengen Monte L. Swearengen