No. 14-0192 __________________________________________________________________

IN THE SUPREME COURT OF TEXAS

__________________________________________________________________

ANDREA A. CROWSON, Petitioner

v.

THOMAS D. CROWSON, JR.,

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 monte.swearengen@graybecker.com Patricia J. Dixon State Bar No. 24072068 patricia.dixon@graybecker.com

GRAY & BECKER, P.C. 900 West Avenue

Austin, Texas 78701 Telephone: (512) 482-0061 Facsimile: (512) 482-0069 COUNSEL FOR RESPONDENT THOMAS D. CROWSON, JR.

FILED14-01927/14/2014 4:16:10 PMtex-1818580SUPREME COURT OF TEXASBLAKE A. HAWTHORNE, CLERK

i

IDENTITY OF PARTIES AND COUNSEL RESPONDENT/Appellee below: Thomas D. Crowson, Jr. 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: John 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) Jason Davis Gretchen Scardino The Davis Group, Inc. 112 E. Pecan Street, Suite 777 San Antonio, Texas 78205 210/853-5882 210/220-8395 (fax) James 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 John Barrett Barrett and Coble Trial Counsel: John Barrett Kathleen Coble Barrett and Coble 7200 N. MoPac Expressway, Ste. 440 Austin, Texas 78731 512/ 482-8193 512/482-0525 (fax) Appellate Counsel John 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 ............................................................ iTABLE OF CONTENTS ......................................................................................... ivINDEX OF AUTHORITIES .................................................................................... viSTATEMENT OF THE CASE ................................................................................ ixSTATEMENT REGARDING JURISDICTION ..................................................... xiRESPONSIVE 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 occurredand 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 ........................................................................................ 1A. Mediation was by agreement. ................................................................ 1B. Mediation resulted in an enforceable and irrevocable MSA. ................ 2C. The trial court rendered judgment on the MSA. ................................... 2D. The parties were ordered to binding arbitration. ................................... 4E. Nearly one month after rendition of judgment, Andrea

attempted to set aside the MSA. ............................................................ 5F. The Arbitration Award was confirmed. ................................................ 5G. Andrea filed a Motion for New Trial. ................................................... 5H. Andrea appealed only the property division. ........................................ 9

STANDARD OF REVIEW ..................................................................................... 10SUMMARY OF THE ARGUMENT ...................................................................... 11ARGUMENT AND AUTHORITIES ...................................................................... 13

v

I. THIS COURT SHOULD DECLINE PETITIONERS REQUEST TO CARVE OUT A NEW EXCEPTION TO THE ENFORCEABILITY OF IRREVOCABLE MEDIATED SETTLEMENT AGREEMENTS. ...................................................... 13

A. An MSA meeting statutory requirements is enforceable. ................... 13B. Section 6.602 has no enforcement exception based on family

violence. .............................................................................................. 15C. Current law already precludes enforcement of an illegally

obtained MSA. ..................................................................................... 16II. 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 ANDREAS CLAIMS OF DURESS, COERCION OR UNDUE INFLUENCE. ...................................................................................... 19

PRAYER FOR RELIEF .......................................................................................... 21CERTIFICATE OF SERVICE ................................................................................ 22CERTIFICATE OF COMPLIANCE ....................................................................... 22

vi

INDEX OF AUTHORITIES

CasesBoyd 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 July 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, rehg denied, Jan. 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 [14th 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 July 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 Intl v. Hall, 922 S.W.2d 189 (Tex. App.Houston [1st Dist.] 1995, writ denied) ............................................ 18

Torres v. Torres, No. 14-12-00436-CV, 2013 WL 776278 (Tex. App.Houston [14th 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

StatutesTex. 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. Clerks Record 28-14 (CR). Respondent Thomas D. Crowson, Jr.

(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 July 14 and 15, 2011. Volume 3

Reporters 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 July 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 Thomass 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 Thomass 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 July 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 childrens issues. See Crowson v. Crowson, No. 03-11-00195-CV

(Tex. App.Austin, Dec. 13, 2013, rehg denied, Jan. 31, 2014) (hereinafter Slip

Op.) at 10, fn. 6.

The Third Court of Appeals affirmed the trial courts Final Decree of

Divorce on December 13, 2013. On January 31, 2014, Andreas 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, Petitioners 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 courts

refusal to accept Andreas 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 partys 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 [14th Dist.] 1999, orig. proceeding); Morse v. Morse, 349 S.W.3d 55, 56 (Tex. App.El Paso 2010, no pet.).

xiii

not in the childs 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 partys

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 occurredand 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, Jr. (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 July 15, 2011. The trial court determined that the mediation was pursuant

to agreement, not a court order. 7RR15-16, 19.

Shortly before mediation, Andreas counsel, John Barrett and Kathleen

Coble, were permitted to withdraw, despite the upcoming mediation set for July

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 July 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 Andreas 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

July 21, 2011, Andreas counsel, James A. Vaught, informed Thomass 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

Andreas counsel. Id.

3

That correspondence resulted in Thomass Motion for Enforcement of MSA

and Motion to Enter Final Decree of Divorce. CR304-433. That Motion was

heard on July 29, 2011. 4RR1-48. When the hearing began, Andreas counsel

withdrew his pending Motion to Withdraw based on Andreas 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, Jason 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 werent 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 [Andreas] 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. Andreas 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 July 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 Andreas 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 July 29, 2011. CR823-824.

6

On October 5, 2011, Andrea filed a Motion for New Trial. Among the

grounds for Andreas request that the court grant the Motion for New Trial was

that the court erred in entering judgment on the MSA in light of Andreas

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 July 29, 2011, hearing. However, on cross-examination she testified

that she had testified truthfully at the July 29 hearing; that she had been under oath

at that time; and that she stood by her earlier testimony in response to the courts

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 Thomass 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 generally5 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 cant 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 Andreas state of mind on July 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 Sherrys testimony in the Petition for Review, at p. 8, Sherry did not testify that Andreas 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 Andreas 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 yourevaluation. Youre not here to testify as to Ms. Crowsons 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 July 14th, 2011?

Sherry: Correct. I dont have an opinion about that.

7RR63-64.

The court examined Andreas testimony from the July 29, 2011, hearing and

concluded that there was no time during mediation when Andrea reflected an

inability to recall details. The court rejected Andreas 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

July 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 courts 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 courts discretionthe 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

Andreas 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.

Petitioners 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 PETITIONERS REQUEST TO CARVE OUT A NEW EXCEPTION TO THE ENFORCEABILITY OF IRREVOCABLE MEDIATED SETTLEMENT AGREEMENTS.

Petitioner frames her argument as a request for this Courts review to

approve what the courts of appeal have already establishedthat 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 Andreas 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

6.602if 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 childrens 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 July 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 [14th 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 July 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 arbitrators 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 Andreas failure to seek to vacate it

resulted in a waiver of her complaints about the Final Decree entered pursuant to

the MSA. See Teleometrics Intl v. Hall, 922 S.W.2d 189, 192 (Tex. App.

Houston [1st 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 Andreas 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,

Andreas 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 ANDREAS 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, Andreas 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.

Andreas 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 July 29, 2011, hearing shows that the trial

court did not believe Andrea was impaired. 4RR47. The trial court made the

following findings as to Andreas 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 Andreas 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 courtwe find that the

21

trial court did not believe [petitioners] version of the story.

In re Marriage of Fannette, No. 10-12-00141-CV, 2013 WL3533238, at *6 (Tex.

App.Waco July 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 courts 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, Jr. 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 monte.swearengen@graybecker.com Patricia J. Dixon State Bar No. 24072068 patricia.dixon@graybecker.com 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 July, 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. John 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