Saied Emami v. Kathy Jo Emami ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00319-CV
___________________________
SAIED EMAMI, Appellant
V.
KATHY JO EMAMI, Appellee
On Appeal from the 233rd District Court
Tarrant County, Texas
Trial Court No. 233-686313-20
Before Kerr, Birdwell, and Bassel, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
I. Introduction
Appellant Saied Emami (Husband) appeals the trial court’s denial of his motion
to revoke a mediated settlement agreement (MSA) and entry of a final decree of
divorce pursuant to the MSA. In a single issue, Husband argues that the trial court
erred in excluding his testimony regarding communications with his former attorney
on the grounds that such testimony would violate the attorney–client privilege.
Husband therefore requests that we vacate the decree and remand this case for a new
hearing on the motion. Because we conclude that the exclusion of the evidence did
not cause the rendition of an improper judgment, we affirm.
II. Background
Husband and Appellee Kathy Jo Emami (Wife) married in 1990. In July 2020,
Wife filed a petition for divorce, and Husband subsequently filed a counterpetition.
On July 7, 2021, the parties engaged in mediation and signed the MSA, which was
filed in the trial court the following day.
On July 28 and 29, 2021, Husband’s new counsel filed a motion requesting that
the trial court set aside the MSA on the grounds that it had been procured by duress. 1
The motion also cites coercion and fraud as bases for setting aside the MSA.
1
However, the excluded evidence at issue here relates only to duress, not fraud.
Moreover, although “duress” and “coercion” are not exactly the same, they are often
used interchangeably, and it appears that Husband does not intend them as separate
defenses in this case. See White v. Skagit Bonded Collectors, LLC, No. C21-0697-LK,
2022 WL 2046286, at *12 n.6 (W.D. Wash. June 7, 2022) (“Courts use ‘coercion’ and
2
In the affidavit attached to the motion, Husband claimed the duress was based upon
certain alleged threats and coercive statements made by his former attorney Farid
Moghadassi and the mediator during the mediation. 2 Moghadassi filed a response
opposing the motion as well as a petition in intervention seeking attorney’s fees.
On September 27, 2021, the trial court held a hearing on the motion and the
fee petition. During the hearing, Husband’s new counsel called Husband to testify.
When Husband’s new attorney asked a question concerning what Husband and
Moghadassi discussed during mediation—broaching the allegations in Husband’s
affidavit—Moghadassi successfully objected on the grounds that, among other things,
such testimony would violate the attorney–client privilege.3 Husband’s new counsel
understood the trial court’s ruling to mean that all questions regarding what Husband
and Moghadassi discussed during the course of Moghadassi’s representation of
Husband, including what was said during the mediation, were off limits. Accordingly,
‘duress’ interchangeably.”). Indeed, Husband’s briefing in this court focuses solely on
duress, not fraud or coercion, as a basis for setting aside the MSA, and duress was the
only defense the trial court referenced in its ruling on the motion. Accordingly, for
purposes of this appeal, we will consider only Husband’s claim of duress.
2
In general terms, Husband bases his claim of duress on alleged pressure from
Moghadassi and the mediator to sign the MSA. Specifically, Husband alleges that
Moghadassi, inter alia, told him in a “loud voice” to sign the MSA and threatened to
withdraw from representation if Husband did not sign it and that the mediator told
Husband that she was married to a police officer (which caused Husband to feel
threatened) and implied that Husband’s claims would not likely prevail at trial.
3
Moghadassi also objected on relevance grounds. However, the trial court
granted his objection as to attorney–client privilege, and it is only that objection with
which we are concerned for purposes of this appeal.
3
she did not ask any more questions concerning Moghadassi’s alleged threats and
coercive statements during the mediation. 4
At the conclusion of the hearing, the trial court denied the motion and granted
Moghadassi’s fee petition. The trial court signed the divorce decree shortly thereafter.
This appeal followed.
III. Standard of Review
We review a trial court’s ruling in admitting or excluding evidence under an
abuse of discretion standard. Richmond Condos. v. Skipworth Com. Plumbing, Inc., 245
S.W.3d 646, 664–65 (Tex. App.—Fort Worth 2008, pet. denied) (op. on reh’g) (citing
Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000) (op. on reh’g)). A
trial court abuses its discretion in admitting or excluding evidence if it acts without
reference to any guiding rules and principles or if the act complained of is arbitrary
and unreasonable. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex.
2002) (op. on reh’g); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
(Tex. 1985). To obtain reversal of a judgment based on the erroneous admission or
exclusion of evidence, an appellant must show not only that the trial court’s ruling
was in error but also that the error probably caused the rendition of an improper
judgment. Tex. R. App. P. 44.1(a)(1); Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617
4
This understanding of the trial court’s ruling is supported by the trial court’s
subsequent clarifying statement during Moghadassi’s testimony that “[a]ttorney–client
privilege is intact and thereby any questions concerning what happened during the
time of representation is off limits.”
4
(Tex. 2000); Ledbetter v. Mo. Pac. R.R. Co., 12 S.W.3d 139, 142 (Tex. App.—Tyler 1999,
pet. denied). Thus, to successfully challenge an evidentiary ruling, an appellant
generally must show that the judgment turns on the excluded evidence. Ledbetter, 12
S.W.3d at 142 (citing City of Brownsville v. Alvarado, 897 S.W.2d 750, 753–54 (Tex.
1995)).
Likewise, “[w]e review a trial court’s decision not to set aside a mediated
settlement agreement for an abuse of discretion.” 5 In re C.H., 298 S.W.3d 800, 804
(Tex. App.—Dallas 2009, no pet.); accord In re Marriage of Atherton, No. 14-17-00601-
CV, 2018 WL 6217624, at *2 (Tex. App.—Houston [14th Dist.] Nov. 29, 2018, pet.
denied) (mem. op.). A trial court does not abuse its discretion so long as there is
some substantive, probative evidence to support the decision. Crowson v. Crowson,
No. 03-11-00795-CV, 2013 WL 6665022, at *4 (Tex. App.—Austin Dec. 13, 2013,
pet. denied) (mem. op.); Granger v. Granger, 236 S.W.3d 852, 855–56 (Tex. App.—Tyler
2007, pet. denied).
5
Appellant’s brief erroneously states that the appropriate standard of review on
this issue is de novo. However, the de novo standard applies only to the question of
whether a mediated settlement agreement complies with the requirements set forth in
the Texas Family Code, not a trial court’s decision regarding whether to set aside such
an agreement. See, e.g., Choksi v. Choksi, No. 09-19-00183-CV, 2020 WL 6787410, at
*3 (Tex. App.—Beaumont Nov. 19, 2020, pet. denied) (mem. op.).
5
IV. Discussion
While the overarching issue in this appeal is whether the trial court abused its
discretion by deciding not to set aside the MSA, reaching a decision on this ultimate
question necessarily involves the resolution of three sub-issues:
1. Did Husband properly preserve his claim that the trial court erred in
excluding testimony regarding the matters set forth in the affidavit?
2. Did the trial court err in excluding testimony regarding the matters set forth
in the affidavit on the grounds that it would violate the attorney–client
privilege?
3. If the trial court’s evidentiary ruling was erroneous, was this error harmful?
We will address each of these issues in turn.
1. Did Husband Preserve His Claim of Error on the Evidentiary Ruling?
As a threshold matter, we must determine whether Husband properly
preserved his claim that the trial court abused its discretion in excluding testimony
regarding the matters set forth in the affidavit attached to his motion to set aside the
MSA.
In her brief, Wife asserts that Husband forfeited the issue by failing to object or
make an offer of proof during the hearing on the motion. As the ruling in question
involves the exclusion—not the admission—of evidence, an objection alone is
ordinarily insufficient to preserve a claim of error. See Tex. R. Evid. 103(a). Rather,
to preserve a claim of error based upon the exclusion of evidence, a party must make
6
an offer of proof unless the substance is apparent from the context. Tex. R. Evid.
103(a)(2). “The primary purpose of an offer of proof is to enable the appellate court
to determine whether the exclusion was erroneous and harmful. A secondary purpose
is to permit the trial judge to reconsider his ruling in light of the actual evidence.” In
re L.L.J., Nos. 02-14-00407-CV, 02-14-00408-CV, 2015 WL 5634111, at *1 (Tex.
App.—Fort Worth Sept. 24, 2015, no pet.) (mem. op.) (citations omitted).
We hold that Husband preserved his claim of error regarding the trial court’s
exclusion of his testimony.6 The affidavit attached to the motion informed the trial
court of the substance of Husband’s duress complaint, and the trial court’s statements
on the record suggest that he had reviewed the affidavit and was familiar with its
contents.7 Thus, when he made his ruling, the trial judge was aware of the subject
matter of Husband’s intended testimony. Given the totality of the circumstances and
assuming that the content of Husband’s excluded testimony would have been, in all
6
We emphasize the narrowness of this ruling. The best practice would have
been for Husband’s counsel to make a formal offer of proof after the trial court
sustained Moghadassi’s objection or, failing that, to have filed a formal bill of
exception. See Tex. R. App. P. 33.2; Tex. R. Evid. 103(a)(2). However, given the
context of the trial court’s evidentiary ruling and Husband’s trial counsel’s reasonable
interpretation that this ruling would have precluded her from making an offer of
proof, we conclude that, on these specific facts, the issue has been preserved. Cf. First
United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 221–22 (Tex. 2017)
(“We generally hesitate to turn away claims based on waiver or failure to preserve the
issue.”).
7
The trial court, in addressing Moghadassi’s objection on the grounds of
attorney–client privilege, noted that the “information or advice that you’ve given
him . . . is somewhat the crux of what we’re here to talk about today, as to whether
that information rose to some other level.”
7
meaningful respects, identical to that of the affidavit,8 the substance was apparent
from the context, and the claim of error was preserved. See Turner v. Peril, 50 S.W.3d
742, 745 (Tex. App.—Dallas 2001, pet. denied) (op. on reh’g) (concluding affidavits
satisfied Tex. R. Evid. 103(a)(2) where they were offered, the substance was known to
the trial court, and they appeared in the clerk’s record); see also Akin v. Santa Clara Land
Co., Ltd., 34 S.W.3d 334, 339 (Tex. App.—San Antonio 2000, pet. denied) (addressing
the merits of appellant’s point of error regarding excluded expert testimony even
though appellant had not presented an offer of proof where discussion on the record
suggested that the trial court was aware of the substance of expert’s intended
testimony).
2. Was the Exclusion of Husband’s Testimony Erroneous?
The trial court excluded Husband’s testimony regarding his interactions with
Moghadassi at the mediation on the grounds that such testimony would violate the
8
In her brief, Wife correctly asserts that “Husband’s affidavit, by its nature, can
do no more than reflect Husband’s intended testimony” and that it cannot provide
any insight into how Moghadassi might have testified had the trial court overruled his
objection based on attorney–client privilege. However, a formal offer of proof would
have suffered from the same limitation. Here, we are concerned with the trial court’s
exclusion of Husband’s testimony, not any potentially conflicting evidence from
Moghadassi. However, if Husband had been allowed to testify regarding the matters
set forth in his affidavit, Moghadassi should certainly have been afforded the
opportunity to present his version of events. Cf. Joseph v. State, 3 S.W.3d 627, 637 (Tex.
App.—Houston [14th Dist.] 1999, no pet.) (“The privilege is not an inviolable seal
upon the attorney’s lips. . . . [W]here . . . the client alleges a breach of duty to him by
the attorney, we have not the slightest scruple about deciding that he thereby waives
the privilege as to all communications relevant to that issue.” (quoting Laughner v.
United States, 373 F.2d 326, 327 (5th Cir. 1967))).
8
attorney–client privilege. We hold that the trial court erred in excluding this
testimony.
It is well settled that the attorney–client privilege belongs to the client, not the
attorney, and can be invoked only on the client’s behalf. See Tex. R. Evid. 503(b)–(c);
West v. Solito, 563 S.W.2d 240, 244 n.2 (Tex. 1978) (orig. proceeding); In re Guardianship
of Benavides, No. 04-13-00196-CV, 2014 WL 1494606, at *3 (Tex. App.—San Antonio
Apr. 16, 2014, no pet.) (mem. op.); Bearden v. Boone, 693 S.W.2d 25, 27 (Tex. App.—
Amarillo 1985, orig. proceeding). An attorney may not assert the privilege in his own
capacity. Benavides, 2014 WL 1494606, at *3 (citing Cole v. Gabriel, 822 S.W.2d 296, 296
(Tex. App.—Fort Worth 1991, orig. proceeding) (op. on reh’g)); Turner v. Montgomery,
836 S.W.2d 848, 850 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (“An
attorney cannot claim the privilege to protect himself . . . .”). While an attorney can
assert (or waive) the privilege on behalf of a client or former client, he may do so only
when acting under the client’s authority. See Burnett v. State, 642 S.W.2d 765, 770 (Tex.
Crim. App. 1982) (“Since . . . it is the client who is the holder of the privilege, the
power to waive it is his, and he alone, or his attorney or agent acting with his authority,
may exercise this power.”); 81 Am. Jur. 2d Witnesses § 325 (“The attorney–client
privilege may be claimed either by the client or the attorney, but the attorney’s
authority to claim the privilege . . . is only on behalf of the client.” (footnotes
omitted)).
9
In this case, it was Moghadassi, not Husband, who asserted the attorney–client
privilege at the hearing on the motion. However, by this time, Moghadassi no longer
represented Husband, who had retained new counsel. In fact, when Moghadassi
asserted the privilege, he and Husband were adverse parties—not only had
Moghadassi filed the fee petition, in which he sought a judgment against Husband for
unpaid attorney’s fees, but he had also filed a response opposing the relief sought in
Husband’s motion to set aside the MSA. In this context, Moghadassi’s invocation of
the privilege was not merely unauthorized but was directly in conflict with Husband’s
legal objectives, not to mention Husband’s evident desire to testify in support of his
motion. While there is a presumption under Rule 503 that a former attorney has
authority to assert the privilege on the client’s behalf, this presumption is overcome
by the facts and circumstances surrounding the assertion of the privilege in this case.
Tex. R. Evid. 503(c). Given Husband’s and Moghadassi’s diametrically opposed
interests at the hearing, one cannot reasonably conclude that Moghadassi’s invocation
of the privilege was “on behalf of” Husband or with Husband’s authority. Rather,
under these facts, it appears that Moghadassi invoked the privilege to protect himself,
which, as stated above, is impermissible. See Turner, 836 S.W.2d at 850.
Permitting an attorney to use the attorney–client privilege offensively against a
former client to curtail the presentation of evidence that might be detrimental,
unflattering, or embarrassing to the attorney would turn the privilege on its head. The
privilege exists for the protection of the client, not the attorney. See id. (holding an
10
attorney cannot claim the privilege to protect himself); see also Carmona v. State, 941
S.W.2d 949, 953 (Tex. Crim. App. 1997). Thus, allowing an attorney to use the
privilege in the manner in which Moghadassi employed it in this case would run
counter to its purpose.
As the holder of the privilege, Husband had the right to waive it if he so chose.
See Burnett, 642 S.W.2d at 770; see also U.S. v. Juarez, 573 F.2d 267, 276 (5th Cir. 1978)
(recognizing “the bedrock principle that the attorney–client privilege is the client’s and
his alone” and “[i]f the client wishes to waive it, the attorney may not assert it, either
for the client’s or for his own benefit”). Indeed, Husband arguably did so by filing
the motion to set aside the MSA in which he based his claim of duress in large part on
the conduct and communications of Moghadassi, his former counsel, at the
mediation. See Bailey v. State, 469 S.W.3d 762, 774–75 (Tex. App.—Houston [1st
Dist.] 2015) (en banc op. on reh’g) (recognizing that the privilege regarding attorney–
client communications may be implicitly waived by raising issues regarding the
performance of counsel), aff’d, 507 S.W.3d 740 (Tex. Crim. App. 2016); see also Tex. R.
Evid. 503(d)(3) (stating no privilege exists as to communication relevant to issue of
breach of duty by lawyer to client or by client to lawyer); Rhone-Poulenc Rorer Inc. v.
Home Indem. Co., 32 F.3d 851, 863 (3d Cir. 1994) (“There is authority for the
proposition that a party can waive the attorney[–]client privilege by asserting claims or
defenses that put his or her attorney’s advice in issue in the litigation.”); Cox v. Adm’r
U.S. Steel & Carnegie, 17 F.3d 1386, 1417 (11th Cir. 1994) (“The great weight of
11
authority holds that the attorney–client privilege is waived when a litigant places
information protected by it in issue through some affirmative act for his own
benefit . . . .” (quoting Conkling v. Turner, 883 F.2d 431, 434 (5th Cir. 1989))). Even if
the filing of the motion in and of itself did not waive the privilege, the filing of the
affidavit could be considered to have effectuated such a waiver concerning the
specific matters set forth therein. See Tex. R. Evid. 511(a)(1); Tex. Tech Univ. Health
Scis. Ctr. – El Paso v. Niehay, 641 S.W.3d 761, 789 (Tex. App.—El Paso 2022, pet.
filed) (per curiam) (“The attorney–client privilege is waived when the holder of the
privilege voluntarily discloses the privileged material to a third party.”); see also Rowe
Int’l Corp. v. Ecast, Inc., 241 F.R.D. 296, 301 (N.D. Ill. 2007) (mem. op.) (holding that
by knowingly allowing deposition testimony containing privileged information to
become part of a public record, party waived his right to later assert the privilege). As
the affidavit had already become part of the trial court’s record, preventing Husband
from testifying about its contents to preserve the attorney–client privilege was
tantamount to closing the barn door after the horse had already bolted.
In sum, because (1) the attorney–client privilege belonged to Husband, (2) he
had the right to waive it (and arguably already had), and (3) Moghadassi, as an adverse
party, did not have authority to assert the privilege on Husband’s behalf, the trial
court abused its discretion in excluding Husband’s testimony.
12
3. Was the Error Harmful?
As noted above, we will not reverse a judgment based on the erroneous
admission or exclusion of evidence unless it can be shown that the error probably
caused the rendition of an improper judgment. Tex. R. App. P. 44.1(a); Able, 35
S.W.3d at 617; Ledbetter, 12 S.W.3d at 142. To meet this burden, an appellant
ordinarily must show that the judgment turns on the excluded evidence. Ledbetter, 12
S.W.3d at 142. Thus, here, we will reverse the trial court’s decision only if we
determine that but for the trial court’s error, Husband likely could have successfully
established a claim of duress that would justify setting aside the MSA.
A. The Law Concerning MSAs
Section 6.602 of the Texas Family Code provides that a mediated settlement
agreement that meets certain statutory requirements “is binding on the parties and
requires the rendition of a divorce decree that adopts the parties’ agreement.” Milner
v. Milner, 361 S.W.3d 615, 618 (Tex. 2012) (citing Tex. Fam. Code Ann. § 6.602(b)–
(c)).9 “Unlike other settlement agreements in family law, the trial court is not required
9
In relevant part, the statute provides as follows:
(b) A mediated settlement agreement is binding on the parties if the
agreement:
(1) provides, in a prominently displayed statement that is in boldfaced
type or capital letters or underlined, that the agreement is not subject
to revocation;
(2) is signed by each party to the agreement; and
13
to determine if the property division is ‘just and right’ before approving an MSA.” Id.(citing In re Marriage of Joyner, 196 S.W.3d 883, 889, 891 (Tex. App.—Texarkana 2006,
pet. denied)). An MSA is also unique in that, unlike an ordinary settlement agreement
which can be revoked by either party before the court renders judgment on it, an
MSA that complies with Section 6.602 is irrevocable once signed. Id.The Texas Supreme Court has declined to address whether, despite the
language of Section 6.602(c), a court may nevertheless set aside an MSA that complies
with the statutory formalities on the grounds that it is illegal or was procured by fraud,
duress, or coercion. Id. at 619 (noting that the court was “leav[ing] the applicability of
those defenses for another case”); see also Highsmith v. Highsmith, 587 S.W.3d 771, 777
n.5 (Tex. 2019) (“As in Milner, we need not and do not address whether an MSA that
complies with the statutory formalities may nevertheless be set aside on the ground
that it is illegal or was procured by fraud, duress, or coercion.”). However, like many
of our sister courts, we have previously held that a trial court is not required to
enforce an MSA that complies with the statutory requirements if it is illegal or was
(3) is signed by the party’s attorney, if any, who is present at the time
the agreement is signed.
(c) If a mediated settlement agreement meets the requirements of this
section, a party is entitled to judgment on the mediated settlement
agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or
another rule of law.
Tex. Fam. Code Ann. § 6.602(b)–(c).
14
procured by fraud, duress, or coercion. Boyd v. Boyd, 67 S.W.3d 398, 403–05 (Tex.
App.—Fort Worth 2002, no pet.). Accord Morse v. Morse, 349 S.W.3d 55, 56 (Tex.
App.—El Paso 2010, no pet.); Spiegel v. KLRU Endowment Fund, 228 S.W.3d 237, 242
(Tex. App.—Austin 2007, pet. denied); Joyner, 196 S.W.3d at 890; In re Kasschau, 11
S.W.3d 305, 312 (Tex. App.—Houston [14th Dist.] 1999, orig. proceeding) (op. on
reh’g); cf. Choksi, 2020 WL 6787410, at *4 (assuming without deciding that duress is an
available defense to the enforcement of an MSA).
The MSA in this case appears to comply with the provisions of Section 6.602,
and neither party contends otherwise. Accordingly, absent a defense to the MSA that
makes it unenforceable, the trial court had no choice but to render a decree consistent
with the MSA’s terms. See Tex. Fam. Code Ann. § 6.602(c); Milner, 361 S.W.3d at
618–19.
B. Duress
Husband contends that the MSA should be set aside because it was procured
by duress. While there are several different types of duress, “[a] common element of
duress in all its forms . . . is improper or unlawful conduct or threat of improper or
unlawful conduct that is intended to and does interfere with another person’s exercise
of free will and judgment.” Dall. Cnty. Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868, 878–
79 (Tex. 2005). The threat must be “actual and imminent,” not merely “feigned or
imagined.” Id. at 879. A claim of duress “must be established based on the conduct
of the party accused of duress, not the emotions of the purported victim.” Weinberg v.
15
Baharav, 553 S.W.3d 131, 134 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (citing
Parks v. Affiliated Bank, No. 05-16-00784-CV, 2018 WL 2057545, at *5 (Tex. App.—
Dallas May 3, 2018, pet. denied) (mem. op.)). It is well settled that a claim of duress
must be based on the conduct of the other party to the contract.10 See Dimmitt v.
Robbins, 74 Tex. 441, 446, 12 S.W. 94, 97 (1889); Choksi, 2020 WL 6787410, at *5;
Weinberg, 553 S.W.3d at 134; Burck, 225 S.W.3d at 302; Kosowska v. Khan, 929 S.W.2d
505, 508 (Tex. App.—San Antonio 1996, writ denied); Marriage of Banks, 887 S.W.2d
at 163–64; King v. Bishop, 879 S.W.2d 222, 224 (Tex. App.—Houston [14th Dist.]
1994, no writ). “Courts will not invalidate contracts on grounds of duress when the
10
Husband’s attempts to dispute this settled principle of contract law are
unpersuasive. See Appellant’s Reply Brief, pp. 4–5. First, the language Husband cites
from this court’s opinion in In re D.E.H., 301 S.W.3d 825, 829 (Tex. App.—Fort
Worth 2009, pet. denied) (en banc op. on reh’g), that duress occurs when a person is
incapable of exercising her free agency “due to some kind of threat” does not conflict
with the settled principle that duress must arise from the conduct of the other party to
the contract. The quoted language from In re D.E.H. is silent regarding whether the
“threat” must originate from the opposing party. Indeed, this question was not
squarely at issue in In re D.E.H. as appellant had contended that she “was placed
under great duress by other parties to the suit.” Id. at 827 (emphasis added). Second, the
language Husband quotes from Kalyanaram v. Burck is equally unconvincing.
Kalyanaram v. Burck, 225 S.W.3d 291, 302 (Tex. App.—El Paso, 2006, no pet.). The
passage quoted by Husband contains the Burck court’s analysis of whether opposing
counsel’s statements during a deposition rose to the level of duress. Id. As a party’s
attorney would be someone for whom the party is responsible, the court’s analysis
was consistent with the principle that duress must be based on the conduct of the
opposing party. Cf. In re Marriage of Banks, 887 S.W.2d 160, 163–64 (Tex. App.—
Texarkana 1994, no writ) (holding appellant had no valid claim of duress where there
was no allegation of misconduct by the opposing party “or anyone for whom he is
responsible,” including his attorney).
16
alleged duress derives from a third person who has no involvement with the opposite
party to the contract.” Burck, 225 S.W.3d at 302.
Here, Husband’s claim of duress is based entirely on the conduct and
statements of Moghadassi and the mediator, not Wife or her counsel. Indeed,
Husband admitted on the record that he felt no duress from Wife—the only other
party to the MSA—during the mediation process. Thus, even accepting all of
Husband’s allegations in the affidavit as true,11 Husband cannot establish a valid claim
of duress. See Weinberg, 553 S.W.3d at 134; Burck, 225 S.W.3d at 302.
Moreover, even if a valid claim of duress could be based upon the conduct of
nonparties, Husband’s claim of duress would still fail. In general terms, Husband
bases his claim of duress on his allegations (1) that Moghadassi coerced him to sign
the MSA by, inter alia, urging him in a “loud voice” to sign it and threatening to
withdraw as Husband’s attorney if he did not do so and (2) that the mediator likewise
pressured him to sign the MSA by, inter alia, pointing out that juries in Tarrant County
“would not be diverse,” which Husband took to mean that he would likely lose at
trial. 12 While the actions and statements complained of by Husband might have
caused him to feel pressure to sign the MSA, none of Husband’s allegations describe
11
We note that Moghadassi disputed Husband’s factual allegations, and if the
trial court had allowed Husband to testify, Moghadassi should have been granted the
opportunity to rebut Husband’s testimony. See supra note 8.
12
Husband also alleges that he felt time pressured by Moghadassi’s statements
that Husband was taking too long and intimidated by the mediator’s comments that
she was married to a police officer and that the trial judge was a military retiree.
17
any action that Moghadassi or the mediator lacked the legal right to take. See Osorno v.
Osorno, 76 S.W.3d 509, 511 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (“For
duress to be a contract defense, it must consist of a threat to do something the
threatening party has no legal right to do.”). Indeed, it is the job of a good mediator
to point out to the parties the flaws in their respective cases and the risks that they
face if they do not reach an agreement. See Patnaude v. Sears Pest Control, Inc., No. 08-
61980-CIV, 2009 WL 10667066, at *7 (S.D. Fla. June 1, 2009) (“[T]he Court notes
that it is a mediator’s function to apprise each party of the strengths and weaknesses
of its claims and defenses, as well as the potential liability that a party exposes himself
to if he chooses to continue to litigate.”); cf. Page v. Horel, No. C-09-0289 EMC (pr),
2011 WL 5117562, at *6 (N.D. Cal. Oct. 28, 2011) (concluding there was no duress
where a mediator pointed out weaknesses in a party’s case and strengths in the
opponent’s case as this is a “routine technique used to facilitate settlement” and does
not constitute duress). Without any perceived litigation risks, parties would have little
incentive to settle. Similarly, an attorney and client may sometimes disagree on what
course of action is in the client’s best interests. In such instances, an attorney may
zealously attempt to persuade the client to do something he does not want to do. Not
even Moghadassi’s threat to withdraw as counsel rises to the level of duress because
Husband could have protected himself by seeking replacement counsel and
attempting to reschedule the mediation. See Creative Mfg. v. Unik, Inc., 726 S.W.2d 207,
211–12 (Tex. App.—Fort Worth 1987, writ ref’d n.r.e.) (finding no duress where
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defendant, whose attorney had withdrawn before trial, could have protected itself by
requesting continuance of trial rather than entering into license agreement to settle
case). While Husband may have felt pressure from the alleged actions and statements
of Moghadassi and the mediator, their alleged conduct does not rise to the level of
duress. See Weinberg, 553 S.W.3d at 134 (noting that a claim of duress must be
established by the conduct of the person accused of duress, not the emotions of the
purported victim).
Because Husband’s allegations as set forth in the motion and the affidavit—
even if true—do not establish a valid claim of duress, the trial court’s error in
excluding his testimony did not cause the rendition of an improper judgment.
V. Conclusion
While the trial court erred in excluding Husband’s testimony, the error did not
lead to the rendition of an improper judgment. We therefore affirm both the trial
court’s order denying the motion and the divorce decree rendered on the binding
MSA. See Tex. R. App. P. 43.2(a).
/s/ Wade Birdwell
Wade Birdwell
Justice
Delivered: August 11, 2022
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