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No. 14-0192

IN THE SUPREME COURT OF TEXAS

ANDREA CROWSON,

Petitioner,

v.

THOMAS CROWSON,

Respondent.

On Appeal from the Cause No. 03-11-795-CV

in the Third District Court of Appeals

ANDREA CROWSONS REPLY BRIEF

LAW OFFICE OF MICHAEL S.TRUESDALE,PLLC

Michael S. Truesdale

State Bar No. 00791825

801 West Avenue, Suite 201

Austin, TX 78701

512-482-8671

866-847-8719 (fax)

[email protected] FOR PETITIONER

FILED

14-0192

7/28/2014 2:21:17 PM

tex-1963962

SUPREME COURT OF TE

BLAKE A. HAWTHORNE,


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TABLE OF CONTENTS

INDEX OF AUTHORITIES.................................................................................... ii

INTRODUCTION.....................................................................................................1

I. This Court should recognize that an improperly-procured MSA

need not be enforced .......................................................................................2

II. Andrea preserved her complaint about the enforcement of the

MSA over her withdrawn consent ..................................................................5

III. Evidence relating to Andreas PTSD as a basis for revoking

consent to the MSA cannot be disregarded under the guise of a

factual sufficiency review ...............................................................................7

PRAYER FOR RELIEF..........................................................................................10

CERTIFICATE OF SERVICE................................................................................11

CERTIFICATE OF COMPLIANCE ......................................................................11


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INDEX OF AUTHORITIES

Cases

Chappell Hill Bank v. Lane Bank Equip. Co.,

38 S.W.3d 237 (Tex. App.Texarkana 2001, pet. denied) ................ 6

Ewing v. Act-Catastrophe-Texas, L.C.,

375 S.W.3d 545 (Tex. App.Houston [14th

Dist.] 2012,

pet. denied)........................................................................................... 6

First Valley Bank of Los Fresnos v. Martin,

144 S.W.3d 466 (Tex. 2004)................................................................ 5

In re Lee,

411 S.W.3d 445 (Tex. 2013)................................................................ 3

Kline v. OQuinn,

874 S.W.2d 776 (Tex. App.Houston [14th

Dist.]

1994, writ denied) ................................................................................ 6

Milner v. Milner,

361 S.W.3d 615 (Tex. 2012)................................................................ 3

State Dept. of Highways v. Payne,

838 S.W.2d 235 (Tex. 1992)................................................................ 5

Statutes

Tex. Fam. Code Ann. 6.602 .................................................................... 3, 4

Tex. Fam. Code Ann. 6.602(b).................................................................... 3

Tex. Fam. Code Ann. 6.602(c).................................................................... 3

Tex. Fam. Code Ann. 6.602(d).................................................................... 5

Rules

Tex. R. App. P. 33.1....................................................................................... 2

Tex.R.App.P.33.1(a) ............................................................................... 6, 7


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TO THE HONORABLE SUPREME COURT OF TEXAS:

Andrea Crowson states as follows in reply to Thomas Crowsons Response

to her Petition for Review:

INTRODUCTION

This is the rare case in which the parties agree on the answer to the primary

legal question presented whether Texas law allows trial courts to decline to

enforce otherwise irrevocable mediated settlement agreements that are improperly

procured, i.e., the product of fraud, duress, coercion or some other illegal or

improper means. Thomas concedes a consensus among appellate courts

recognizing that such agreements need not be enforced; he simply contends this

Court need not validate that consensus. Response at xi-xii, 16-17. In contrast,

Andrea asks this Court to grant review and affirmatively address the question,

having previously left it open.

While the parties agree on the answer to that threshold question, they

disagree on two questions: how one preserves a challenge to an MSA when its

terms are later construed in an arbitration, and the quantum of evidence necessary

to support a trial courts refusal to enforce an MSA that is the byproduct of consent

given in the face of a PTSD event.

Error preservation: Consistent with Texas Rule of Appellate Procedure

33.1(a), Andrea preserved appellate review of the MSA without seeking to vacate


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the arbitration award construing its terms. On multiple occasions she sought to set

aside the MSA and the decree based thereon. Each step brought the issues Andrea

complained of on appeal to the trial courts attention and generated an adverse

ruling, as rule 33.1 requires to preserve error. A conclusion otherwise elevates

form over substance. The asserted waiver thus presents no obstacle to review.

Evidentiary points: As to the evidence, while the trial court made findings

about Andreas capacity to enter into the MSA, it did so without referring to the

unique context, shown by the evidence, of her PTSD episode, and its effect on her

ability to enter into a binding and irrevocable agreement. In fact, neither the trial

court nor the court of appeals referenced any of the evidence particular to PTSD in

concluding that Andrea freely consented to the MSA. When that evidence is

accounted for, the error below is manifest, warranting this Courts review and

correction.

I. This Court should recognize that an improperly-procured MSA need

not be enforced

The starting point for this petition is Family Code section 6.602. Generally,

consent to a mediated settlement agreement complying with statutory formalities is

irrevocable and a trial court must render judgment on the agreement. Tex. Fam.

Code 6.602(b, c). But the terms of section 6.602 are where this petition begins,

not where it ends.


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The key legal question is whether a trial court must enforce a mediated

settlement agreement procured in a manner such that its enforcement would offend

other policies, i.e., when the agreement is the byproduct of some illegal/improper

means. Both parties agree that the answer is no. See Response at 16 (collecting

cases showing that current law already precludes enforcement of an illegally

obtained MSA.). But twice in the last two years this Court recognized the

question, but left it open. See Milner v. Milner, 361 S.W.3d 615, 619 (Tex. 2012);

In re Lee, 411 S.W.3d 445, 455 n.10 (Tex. 2013).

Thomas inaccurately suggests that Andrea seeks to engraft on section 6.602

a generic exception invalidating MSAs whenever there is a finding of family

violence. See Response at 13, 18. Instead, she simply seeks recognition of the

same exception to enforceability found in the consensus of cases cited by Thomas.

Specifically, Andrea asks this Court to hold that, if the circumstances surrounding

the execution of an otherwise irrevocable mediated settlement agreement show it is

the product of some recognized improper means (including conduct that interferes

with another persons exercise of free will and judgment), the agreement need not

be enforced and a party may withdraw consent to the MSA.

Thomass response suggests Andrea equates the impact of a PTSD episode

with an instance of family violence. But while PTSD certainly can result from

family violence, not every instance of family violence results in an onset of PTSD


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in the victim. Nor does every mediation arising in a case with family violence

necessarily result in a triggered PTSD event affecting the validity of a partys

consent to an MSA.

Once Andreas PTSD event had been triggered by acts on Thomass behalf,

she no longer operated under her free will and judgment. Her flashbacks to the

night of the assault and fear that she was making Thomas mad, left her as terrified

and traumatized about what would happen if she did not sign an agreement as she

would have been in the face of an actual threat of imminent physical violence

typically associated with duress, coercion or undue influence. The record showed

that the episode led Andrea to execute an agreement to which she never would

have agreed had she been in command of her faculties. But the rulings below

make no account for those facts, facts that should have placed Andreas case

within the enforcement exception recognized by other courts.

Whether Andrea formally invoked the provisions of section 6.602(d) prior to

the mediation has no bearing on this petition. From a practical standpoint, the

parties conducted the mediation as if section 6.602(d) provisions were in place, as

Thomas concedes (Response at 1, n.2). But those procedures did not protect

Andrea from a PTSD episode triggered by the faxes and calls made by Thomass

criminal defense lawyer, rendering her failure to invoke them immaterial. See7RR

21-22; 4RR 29-30.


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In short, this Court should grant review to validate the common-sense

recognition by other courts that improperly-procured MSAs need not be enforced

even if otherwise irrevocable, and that parties like Andrea should be entitled to

demonstrate how and why a PTSD event could render a resulting MSA as being

improperly procured and subject to rescission.

II. Andrea preserved her complaint about the enforcement of the MSA

over her withdrawn consent

Thomas cannot assert waiver to oppose the petition. The merits of Andreas

claim were sufficiently preserved to warrant review.

At their essence, error preservation rules require parties to make trial courts

aware of complaints and obtain ruling on those complaints as predicates to

appellate review. See generally,TEX.R.APP.P.33.1(a);see also, e.g., State Dept.

of Highways v. Payne, 838 S.W.2d 235, 241 (Tex. 1992) (error preservation should

depend upon whether matter was timely brought to trial courts attention for

ruling). This Court has endeavored to focus appellate review on substantive

issues and simplify the procedures for error preservation, departing from

procedures creating technical traps through procedures that elevated form over

substance. First Valley Bank of Los Fresnos v. Martin, 144 S.W.3d 466, 474

(Tex. 2004) (Wainwright, J., concurring). Thus, error preservation rules should

ensure trial courts are not ambushed, after-the-fact, by complaints not first brought


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to their attention and on which they were given no advanced opportunity to review,

consider, and rule upon. See, e.g., Chappell Hill Bank v. Lane Bank Equip. Co., 38

S.W.3d 237, 247 (Tex. App.Texarkana 2001, pet. denied).

Andrea gave the trial court numerous opportunities in that regard. She tried

to withdraw her consent to the MSA before it was accepted and explained why.

See, e.g., 4RR 3, 18-21. And before arbitration was compelled, she asked the court

to set aside the MSA. 5RR at 7. She also asked the court to refrain from

compelling arbitration while she sought to set aside the MSA. 5RR 10. She filed a

written motion seeking to set aside the MSA before the arbitration was conducted,

CR 619, and thereafter filed a notice that consent to the MSA had been withdrawn,

CR 758. And she moved for a new trial after judgment was rendered, again

complaining about the validity of her consent to the MSA, CR 825, and asked the

court to set aside the decree and the MSA, 7RR 32. At each step the trial court

denied or overruled her requests to do so. These actions preserved her right to

complain about the MSA, satisfying both the spirit and letter of Rule 33.1(a).1

That the waiver argument and ruling elevate form over substance is

demonstrated by Andreas motion for new trial. Thomas argues that Andrea did

1Those steps also distinguish this case from the ones relied upon to find waiver. Unlike

here, those cases both involved challenges to arbitrations asserting theories not first

raised in the trial court. See Ewing v. Act-Catastrophe-Texas, L.C.,375 S.W.3d 545

(Tex. App.Houston [14thDist.] 2012, pet. denied);Kline v. OQuinn, 874 S.W.2d 776

(Tex. App.Houston [14th

Dist.] 1994, writ denied).


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not seek to vacate the arbitration award that implemented the final decree.

Response at 17-18. However, Andreas motion for new trial sought to set aside

that final decree on the ground that the MSA was invalid. CR 825. Indeed, no

purpose would have been served by requiring an additional, separate objection to

the confirmation of the arbitration award raising the same complaint that Andrea

did not properly consent to the MSA. On these facts, the waiver ruling is a retreat

from this Courts progress in reaching the substance of issues rather than avoiding

review on procedural grounds.

III. Evidence relating to Andreas PTSD as a basis for revoking consent to

the MSA cannot be disregarded under the guise of a factual sufficiency

review

As to the evidence supporting the trial courts ruling, the appellate courts

analysis is contextually incomplete. The totality of its evidentiary discussion is as

follows:

Although [at the prove-up hearing] Andrea stated she wasnt focused

during the mediation and did not remember what she signed, she recited in

considerable detail the events of the day. She testified that she read and

understood the MSA, it contained a prominently displayed statement in

boldface type that it was not subject to revocation, she and her attorney

signed it, and she was not compelled to go forward with the approval of the

MSA but was doing so freely and voluntarily. Further at the hearing on her

motion for new trial, Andrea testified that she stood by her testimony at the

prove-up hearing. Although she testified that being near Thomas and

hearing his voice made her anxious and scared, there is no evidence of any

force or threat or that Andrea lacked free will or was unable to withhold

consent to the MSA.


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Slip op. at 13-14.

The record does not support either the no evidence or sufficient

evidence conclusions drawn from that discussion because Andrea testified to so

much more that give context to the pertinent points. For example she testified that

while, by the date of the prove-up hearing, she understood the MSA, she had not

understood it when she signed it, and did not remember what she was signing. 4RR

16-18. She testified she was more than merely anxious and scared, but that

when she learned of the faxes from Thomass criminal defense counsel she could

not breath, could not comprehend, and could not focus. 4RR 27-28. She identified

various components of the MSA to which she never would have agreed had she

been in full command of her faculties including provisions modifying Thomass

custody of their children, requiring her to pay her own medical and legal bills,

requiring her and the children to move out of the house, and disposing of frozen

embryos. See4RR 27-31. The conclusion, in the face of that testimony that went

unmentioned below, that there was no evidence of any force or threat or that

factually sufficient evidence supported the finding Andrea lacked free will or was

unable to withhold consent to the MSA is simply insupportable.

Moreover, the appellate courts discussion gives no regard to the testimony

of Dr. Sherry that provided a context for Andreas testimony. The appellate

courts discussion does not recognize Andreas PTSD diagnosis, 8RR 83, nor does


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it account for Dr. Sherrys testimony about how PTSD could affect a partys ability

to participate in a mediation that one diagnosed with PTSD could feel undue

influence, that a triggered event could make a party re-experience the traumatic

event and render it hard to make decisions, and that the longer a mediation

proceeded, the more difficult it would be for a traumatized person to hold herself

together. 7RR 39, 41-42, 45-46. Nor did it address Dr. Sherrys testimony that a

triggered PTSD event would make it difficult for a PTSD victim to make rational

decision, would leave such a person at great risk of not being able to assert her own

needs, to protect herself and her children, and would leave her fearful to do so in

any event. 7RR 41-42, 47. And it makes no account for the fact that the

symptoms of a PTSD event likely would remain invisible to those not trained to

make such observations. 7RR 48.

Thus, while Dr. Sherry did not attend the mediation or evaluate Andrea after

her initial diagnosis, her discussion of her earlier diagnosis, coupled with her

testimony about what she would expect someone suffering from PTSD could

experience in a high-stress situation such as a mediation, coupled further with

Andreas testimony about what she actually experienced, validated Andreas basis

for seeking to withdraw her consent.

Without accounting for Dr. Sherrys testimony as providing context for

Andreas, the appellate courts exclusive focus on portions of Andreas testimony


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simply does not demonstrate factually sufficient evidence in support of the trial

courts conclusions and the trial courts finding of no evidence of cognitive

impairment. CompareCity of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005).

The isolated testimony from Andrea cannot be reviewed in a vacuum it must be

understood in the context provided by Dr. Sherrys, a step not taken below. At an

absolute minimum, this matter should be remanded for reconsideration in light of

all the evidence, particularly the evidence relevant to Andreas PTSD and its

impact on her consent as testified to by Dr. Sherry.

PRAYER FOR RELIEF

Wherefore, Andrea Crowson respectfully prays that this Court request

briefing on the merits, and thereafter grant review, reverse the judgment of the

court of appeals, and remand this matter for additional proceedings.

Respectfully submitted,

/S/Michael S. Truesdale


LAW OFFICE OF MICHAEL S.TRUESDALE,PLLC

State Bar No. 00791825

801 West Avenue, Suite 201

Austin, TX 78701

512-482-8671

866-847-8719 (fax)

[email protected]

COUNSEL FOR ANDREA CROWSON


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CERTIFICATE OF SERVICE

On July 28, 2014, the undersigned certifies that he served a copy of this

Brief of Appellants on the following in the manner listed below, in compliance

with Texas Rules of Appellate Procedure 9.5 and 25.1(e):

/S/Michael S. Truesdale


SBN 00791825

GRAY &BECKER,P.C.

Richard E. Gray

Monte L. Swearengen

Patricia Dixon

900 West Avenue

Austin, TX 78701

512-482-0061

512-482-0924 (fax)

(Counsel for Respondent Thomas Crowson)

CERTIFICATE OF COMPLIANCE

The undersigned certifies that this brief complies with the word limitation

contained in Texas Rule of Appellate Procedure 9.4(i)(2)(E) in that the brief

contains a total of 2,356 words, excluding parts of the brief exempted by Tex. R.App. P. 9.4(i)(1), as calculated by the word count tool of Microsoft Word (2008)

for Mac./s/ Michael S. Truesdale


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