                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo

                                   No. 07-15-00088-CV


                      IN RE MARIO ALBERTO LECHUGA, RELATOR



                                  Original Proceeding

                                     May 7, 2015

                             MEMORANDUM OPINION
                      Before CAMPBELL and HANCOCK and PIRTLE, JJ.


       Relator, Mario Alberto Lechuga, filed a petition for writ of mandamus seeking an

order from this Court directing the trial court to vacate its February 24, 2015 order on

motion to set aside mediated settlement agreement and enter judgment in accordance

with the settlement’s terms. The respondent is the Honorable Delwin McGee, Judge of

the Moore County Court at Law. The real-party-in-interest is Rosa Lechuga. Upon

request by this Court, Rosa filed a response to Mario’s petition. We will conditionally

grant the petition.
                           Factual and Procedural Background


       The Lechugas are in the process of getting a divorce. After being referred to

mediation by court order, the parties entered into a mediated settlement agreement

(MSA) on November 19, 2014. The MSA resolved the parties’ dispute regarding child-

related issues and division of the marital estate.


       On December 17, 2014, Rosa filed a motion to set aside the MSA.              In this

motion, Rosa states that “[a]fter thought and reflection regarding the [MSA], [Rosa]

believes that the Agreement is not fair and does not reflect a fair division of the

properties.”   She also indicates that she “‘rushed into’ the agreement without a full

understanding of what she was agreeing to.” After a hearing was held on the motion,

the trial court ordered that the MSA be set aside and that Rosa reimburse Mario for

mediation expenses incurred in reaching the MSA.         Mario filed the instant original

proceeding challenging the trial court’s order setting aside the MSA.


       In this original proceeding, Mario presents two issues.          Mario’s first issue

contends that the trial court clearly abused its discretion when it set aside the MSA that

complied with the requisites of Texas Family Code sections 6.602 and 153.0071. By his

second issue, Mario contends that none of the statutory or common law defenses to

enforcement of a statutorily compliant MSA apply in this case.




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                                 Standard for Mandamus Relief


        Mandamus issues only to correct a clear abuse of discretion, or the violation of a

duty imposed by law, and where there is no adequate remedy by appeal.1 In re Daisy

Mfg. Co., 17 S.W.3d 654, 658 (Tex. 2000) (orig. proceeding) (per curiam). The question

of whether the trial court erroneously refused to render judgment on an MSA is a proper

subject for mandamus. In re Lee, 411 S.W.3d at 450 n.7. A clear failure by the trial

court to properly analyze or apply the law constitutes an abuse of discretion. Walker v.

Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). To demonstrate an abuse

of discretion of a trial court's resolution of factual matters, the relator must establish that

the trial court could reasonably have reached only one decision and that its finding to

the contrary is arbitrary and unreasonable. See id. The reviewing court defers to the

trial court's factual determinations if they are supported by the evidence, but reviews the

trial court's legal determinations de novo. In re Labatt Food Serv., L.P., 279 S.W.3d

640, 643 (Tex. 2009) (orig. proceeding). Thus, we review the trial court's determination

that an MSA is or is not enforceable, which is a conclusion of law, de novo. Boyd v.

Boyd, 67 S.W.3d 398, 404-05 (Tex. App.—Fort Worth 2002, no pet.).


                                              The MSA


        By his first issue, Mario contends that the parties signed an irrevocable MSA,

under Texas Family Code sections 6.602 and 153.0071. By his second issue, Mario


        1
          After setting aside the MSA, the trial court ordered the parties back to mediation. Because of
this second mediation and any subsequent trial, Rosa contends that Mario is not denied an adequate
remedy at law in this case. However, the Texas Supreme Court has expressly provided that a trial court’s
erroneous refusal to enter judgment on a statutorily compliant MSA is properly remedied by mandamus
relief. See In re Lee, 411 S.W.3d 445, 450 n.7 (Tex. 2013) (orig. proceeding).

                                                   3
contends that no statutory or common law defenses to enforcement of a statutorily

compliant MSA apply in this case. As such, Mario contends that the trial court clearly

abused its discretion in granting Rosa’s motion to set aside the MSA.


        An MSA is binding on the parties if the agreement: (1) provides, in a prominently

displayed statement that is in boldfaced type, capital letters, or underlined, that the

agreement is not subject to revocation; (2) is signed by each party to the agreement;

and (3) is signed by each party’s attorney, if any, who is present at the time the

agreement is signed. TEX. FAM. CODE ANN. §§ 6.602(b) (West 2006), 153.0071(d) (West

2014).2 If an MSA meets these requirements, a party is entitled to judgment on the

MSA notwithstanding Rule 11 of the Texas Rules of Civil Procedure or any other rule of

law. §§ 6.602(c), 153.0071(e).


        In the present case, neither party disputes that the MSA met each of the

requirements above.         Further, our review of the MSA reveals that it meets these

requisites. Rather, the dispute in this proceeding relates to whether there was evidence

that would establish a defense to the provisions cited above that make an MSA

irrevocable and entitled to enforcement.


        A court is authorized to decline to enter a judgment on an MSA that meets the

above standard if the court finds that a party to the MSA was a victim of family violence,

that the family violence impaired the party’s ability to make decisions, and the MSA is

not in the best interest of the child or children. §§ 6.602(e-1); 153.0071(e-1). For this

narrow exception to apply, all three requirements must be found by the trial court. See

        2
          Further reference to provisions of the Texas Family Code will be by reference to “section ___,”
or “§ ___.”

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In re Lee, 411 S.W.3d at 453. No allegation or evidence of family violence exists in this

case. Therefore, the statutory exception to the irrevocability of the MSA does not apply.


       In addition to the statutory exception, some courts of appeals have held that an

MSA that meets the statutory requirements need not be enforced by a trial court if the

MSA is illegal or was procured by fraud, duress, coercion, or other dishonest means.3

See In re Hanson, No. 12-14-00015-CV, 2015 Tex. App. LEXIS 1927, at *7-8 (Tex.

App.—Tyler Feb. 27, 2015, orig. proceeding) (mem. op.); In re A.B., No. 05-14-01123-

CV, 2015 Tex. App. LEXIS 708, at *14 (Tex. App.—Dallas Jan. 27, 2015, no pet.)

(mem. op.); Boyd, 67 S.W.3d at 403-05. In the present case, there is no allegation or

evidence that any provision of the MSA is illegal.            Rather, Rosa has made certain

allegations that could indicate that she entered into the MSA under duress and/or that

Mario fraudulently failed to disclose certain marital assets.


       Rosa made certain contentions that she entered into the MSA under duress. In

her motion to set aside the MSA, Rosa contended that she was “‘rushed into’ the [MSA]

without a full understanding of what she was agreeing to.” At the hearing on the motion,

Rosa elaborated by explaining that she felt pressured to sign the MSA because she

knew that her attorney had to leave early for an appointment. Further, Rosa contended

at the hearing that neither her attorney nor Mario’s attorney reminded her that she did

not have to sign the MSA on the day that she entered into it. “Duress occurs when, due

to some kind of threat, a person is incapable of exercising her free agency and unable


       3
            Because we conclude that there was no evidence that the MSA in this case was illegal or
procured by fraud, duress, coercion, or other dishonest means, we need not determine whether we agree
that such evidence establishes an exception to the irrevocability and entitlement to enforcement of a
statutorily compliant MSA.

                                                 5
to withhold consent.” In re D.E.H., 301 S.W.3d 825, 829 (Tex. App.—Fort Worth 2009,

pet. denied) (en banc). Nothing that Rosa identified in her motion or at the hearing on

her motion constituted a threat and nothing could be said to have risen to a level that

would make Rosa incapable of exercising her free agency or unable to withhold her

consent. Therefore, to the extent that it set aside the MSA on the basis that Rosa

entered into it under duress, the trial court abused its discretion.


       However, Rosa also makes contentions that could indicate that she entered into

the MSA due to Mario’s fraud. In her motion to set aside the MSA, Rosa contends that

the MSA is not fair and does not reflect a fair division of the community estate. In her

testimony at the hearing, Rosa stated that she believes that Mario has failed to disclose

assets of the community. Review of the record reveals that the only allegation of a

failure to disclose assets made by Rosa relate to a debt on the family house that was

awarded to Mario in the MSA. However, Rosa testified that she was aware of the debt

at the time that the parties entered into the MSA. In fact, the MSA makes Mario liable

for the debt on the house. As such, there is no evidence that Mario failed to disclose

any assets or debts. Rather, it appears that Rosa, “after thought and reflection,” simply

decided that she was not happy with the property division reflected in the MSA.

However, dissatisfaction with the agreement reflected in an MSA is not a valid basis

upon which the trial court can set aside a statutorily compliant MSA. See §§ 6.602(c),

153.0071(e) (a party is entitled to judgment on a statutorily compliant MSA); Boyd, 67

S.W.3d at 403-05 (exception if procured by fraudulent nondisclosure). Mere surmise

and speculation is no evidence of fraud. See KCM Fin. LLC v. Bradshaw, 58 Tex. Sup.

Ct. J. 437, 2015 Tex. LEXIS 220, at *46 (Tex. Mar. 6, 2015). As such, to the extent that


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the trial court set aside the MSA due to Mario’s fraudulent nondisclosure, we conclude

that it abused its discretion.


       Because there was no evidence presented to the trial court that would support

either the statutory or the case law exceptions to the trial court’s duty to enforce a

statutorily compliant MSA, we conclude that the trial court abused its discretion in

setting aside the parties’ MSA.


                                        Conclusion


       Having concluded that the trial court abused its discretion when it granted Rosa’s

motion to set aside the parties’ MSA and that mandamus relief is available to correct

this abuse of discretion, we conditionally grant mandamus relief. We trust that the trial

court will promptly vacate its February 24, 2015 Order on Motion to Set Aside Mediated

Settlement Agreement and render judgment on the parties’ MSA. The writ will issue

only if the trial court fails to comply with the Court’s opinion and order within ten days

after the date of the opinion and order. The trial court shall furnish this Court, within the

time for compliance with this Court’s opinion and order, a certified copy of its order

evidencing such compliance.




                                          Mackey K. Hancock
                                              Justice




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