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
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, 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 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 ........................................................................................ 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 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. ................... 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 ANDREAS
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, rehg 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 Intl 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. Clerks 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
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 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 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 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 childrens issues. See Crowson v. Crowson, No. 03-11-00195-CV
(Tex. App.Austin, Dec. 13, 2013, rehg denied, J an. 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 J anuary 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 [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 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, 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, Andreas 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
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
J uly 21, 2011, Andreas counsel, J ames 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 J uly 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, 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 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 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
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 J uly 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 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 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 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 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
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 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 J uly 14
th
, 2011?
Sherry: Correct. I dont have an opinion about that.
7RR63-64.
The court examined Andreas 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 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
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 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 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 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 [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 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 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 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 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 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, 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
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 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