In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-19-00183-CV ________________
ASIT CHOKSI, Appellant
V.
ULUPI CHOKSI, Appellee ________________________________________________________________________
On Appeal from the 410th District Court Montgomery County, Texas Trial Cause No. 17-08-10143-CV ________________________________________________________________________
MEMORANDUM OPINION
Asit Choksi appeals the trial court’s Final Decree of Divorce entered in the
proceeding involving his wife, Ulupi Choksi. 1 The trial court rendered the decree
based on the parties’ mediated settlement agreement (MSA). See Tex. Fam. Code
Ann. § 6.602. Subsequently, the trial court denied Asit’s motion for new trial.2
1 We refer to the parties by their first names for purposes of clarity. 2 Asit does not appeal the denial of his motion for new trial. 1 In three issues, Asit argues that the trial court erred by rendering a final
divorce decree based on the parties’ MSA because (1) he signed the MSA against
his will due to the “looming threat of criminal prosecution,” and an MSA procured
by fraud, duress or coercion is unenforceable, (2) there was a mutual mistake of fact
pertaining to his belief that he could transfer properties on behalf of Choksi, Ltd.,
and due to this mistaken belief, the MSA is unenforceable, and (3) certain provisions
of the MSA are illegal and violate public policy.3 Ulupi filed a brief and moved to
dismiss Asit’s appeal, arguing he waived his right to appeal under the terms the
parties reached in the MSA. For the following reasons, we affirm the trial court’s
judgment.
I. Background
Asit and Ulupi married in 1981. Both parties are physicians, and they acquired
extensive community assets, including real estate. Some of the real estate was held
by Choksi, Ltd., a limited partnership in which Asit and Ulupi held a ninety-five
percent interest. On August 17, 2017, Ulupi called police following an incident
where Asit, while intoxicated, allegedly threatened her with a firearm. Police
arrested Asit. Ultimately, he was charged with making a terroristic threat. Ulupi sued
3 Ulupi has also filed a motion to dismiss Asit’s appeal based on the waiver of Asit’s right to appeal contained in the MSA; however, since Asit has raised a claim of duress in the procurement of the MSA, we must first address the MSA’s enforceability. 2 him for divorce the following day. Asit, through counsel, asked Ulupi to mediate the
issues in their divorce that were in dispute. Before the mediation, Ulupi’s attorney
attempted to confirm that Asit had the authority to convey the properties owned by
the Choksi partnership. Asit’s counsel contacted the mediator’s office to facilitate
the mediation, and the mediation occurred on July 23, 2018, ending with a signed
MSA. Under the terms of the agreement, Asit agreed to transfer much of their real
estate, including much of the property held by Choksi, Ltd., to Ulupi. He also agreed
to sign the documents required to do so.
In bold and capital letters, the MSA provides:
AS EVIDENCED BY THEIR SIGNATURES BELOW, THE PARTIES AGREE THAT THIS BINDING MEDIATED SETTLEMENT AGREEMENT IS NOT SUBJECT TO REVOCATION AND IS NOT APPEALABLE. FURTHER, THE ATTORNEYS’ SIGNATURES BELOW WERE AFFIXED AFTER THE PARTIES SIGNED THIS AGREEMENT AND IN THE PRESENCE OF THE PARTIES.
Both parties signed the document, as did their attorneys. The MSA also states, “Each
signatory to this Agreement has entered into the settlement freely and without duress
after having consulted with professionals of his or her choice” and that the parties
“signed voluntarily and with the advice and consent of counsel on the date set out
below[.]” (Emphasis original.)
On November 13, 2018, Ulupi moved for entry of judgment based on the
MSA. Asit responded to the motion for entry of judgment claiming that “disputes
3 [ ] have arisen regarding the interpretation and/or performance of [the MSA]” and
that they further needed to take the “necessary steps to complete the disposition of
the remaining assets to be divided as set forth in the [MSA.]” In his response, Asit
asked that the “Court refer this matter to arbitration pursuant to the agreed terms of
the [MSA]” so the arbitrator could “approve[] all documents related to a final
judgment on all issues.” The parties then arbitrated to resolve any terms of the
drafting disputes, and the arbitrator signed the proposed final decree to confirm he
approved and that it conformed to the MSA. On February 14, 2019, Ulupi filed the
arbitrator’s approved decree with the court as a supplement to her motion for entry
of judgment and again urged the trial court to enter judgment.
While the criminal charges were pending, Asit, an oncologist, lost his
privileges to practice at several of the local hospitals. In the trial court and in his
appeal, he claims the loss of his privileges has adversely affected his ability to make
a living. During the evidentiary hearing on Ulopi’s motion to enter judgment, Asit
claimed he was forced to sign the agreement due to the looming threat presented by
his indictment, which interfered with his ability to consider the advice he was given
by his attorneys.
On February 14, 2019, Asit filed a supplemental response to Ulupi’s motion
to enter judgment. He asked the trial court to set aside the MSA, to conduct an
evidentiary hearing, and to compel Ulupi’s deposition, based on his claims alleging
4 he signed the MSA while under duress. He attached his declaration to the motion,
claiming Ulupi falsely accused him of making terroristic threats. While Asit was
released following his arrest, the trial court in his criminal case ordered that he not
engage in any conduct that would “harass, annoy, alarm, abuse, torment, or
embarrass Ulupi[.]” Asit further claimed Ulupi “used the continued threat of
criminal prosecution against [him] to gain substantive advantage over [him] in the[]
divorce proceedings[,]” but he did not specify how she did so. Asit claimed that to
maintain his hospital privileges, he had to disclose whether he had ever been
arrested, and during the course of the criminal case, Ulupi “directly caused [him] to
lose [his] hospital privileges” at several local hospitals. He asserted “[u]pon
information and belief[,]”Ulupi reported the fact he had been charged in a criminal
case to the Texas Medical Board, a charge that threatened his ability to maintain his
license. Boiling it down, Asit asserted in his declaration that when he signed the
MSA, he felt he “had no choice[,]” he was not exercising free will when he signed
it, and he was unable to evaluate whether to follow the advice he received from his
lawyer.
The trial court held an evidentiary hearing prior to entry of judgment. The
evidence in the hearing shows that Asit was represented by two attorneys during the
mediation. He communicated with the mediator and his attorneys but no others
during the mediation. Asit testified in the hearing that he did not communicate
5 directly with Ulupi or her legal counsel during the mediation, but he admitted that
before the mediation, he drafted a letter that he asked Ulupi to sign. After the
mediator revised the letter, he presented it to Ulupi and her attorney.
Ulupi also testified at the evidentiary hearing. She testified that shortly before
Asit’s arrest, she called 9-1-1 because she was scared. She explained that another
physician was at her house who was also frightened by Asit’s actions. The police
came to the house and questioned her. According to Ulupi, neither she nor anyone
at her request notified the Texas Medical Board or any hospitals about any matters
that might have threatened Asit’s credentials.
Following the evidentiary hearing, the trial court granted the motion for entry
of judgment and signed the final divorce decree. Asit filed a motion for new trial,
arguing he signed the MSA under duress and the property division was not “just and
right.” The trial court denied the motion and found as follows: (1) neither party
claimed that the MSA failed to meet the requirements of Texas Family Code section
6.602(b); (2) the parties signed the MSA in July of 2018, and the first time Asit
raised duress was almost seven months later, after he had requested arbitration per
the MSA; (3) Asit delayed the proceedings by causing a lawsuit to be filed in Harris
County, Texas that resulted in a Temporary Restraining Order being signed in that
court on the basis that Asit then claimed he had no authority to enter into some of
the property settlement agreements contained in the MSA, and after the Harris
6 County Court conducted a hearing on the temporary injunction and denied it, the
Court set the competing motions for entry and motion to set aside the MSA for
hearing; and (4) the evidence and arguments made at the evidentiary hearing on the
motion to set aside the MSA did not support the requested relief, and it was correctly
denied.
II. Standard of Review
Whether a mediated settlement agreement complies with the Texas Family
Code’s requirements is a question of law reviewed de novo. Spiegel v. KLRU
Endowment Fund, 228 S.W.3d 237, 241 (Tex. App.—Austin 2007, pet. denied); see
also Crowson v. Crowson, No. 03-11-00795-CV, 2013 WL 6665022, at *4 (Tex.
App.—Austin Dec. 13, 2013, pet. denied) (mem. op.). “We review a trial court’s
decision not to set aside a mediated settlement agreement for an abuse of discretion.”
In re C.H., Jr., 298 S.W.3d 800, 804 (Tex. App.—Dallas 2009, no pet.); see also 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.); Crowson, 2013
WL 6665022, at *4. If there is some substantive, probative evidence to support the
decision, a trial court does not abuse its discretion. Crowson, 2013 WL 6665022, at
*4 (citations omitted). A trial court abuses its discretion if it acts unreasonably,
arbitrarily, or without reference to any guiding rules or principles. Downer v.
7 Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985) (citations
omitted).
III. Analysis
In the present case, Asit argues in three issues that the MSA is unenforceable
because (1) it was procured by threats of criminal prosecution against him, (2) it was
the result of a mutual mistake, and (3) portions of the MSA call for relinquishing the
right to sue third parties and interfere or require evidence relevant to Asit’s criminal
case to be destroyed.
A. Law Pertaining to MSAs
A mediated settlement agreement (MSA) meeting certain statutory
requirements set forth in the Texas Family Code “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)). The statute provides:
(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 (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. 8 Tex. Fam. Code Ann. § 6.602(b)–(c). Several of our sister courts of appeals have
interpreted the statute to mean that a trial court is not required to enforce an MSA
that is illegal or procured by fraud, duress, coercion, or other dishonest means. See
Morse v. Morse, 349 S.W.3d 55, 56 (Tex. App.—El Paso 2010, no pet.); Spiegel,
228 S.W.3d at 242; In re Marriage of Joyner, 196 S.W.3d 883, 890 (Tex. App.—
Texarkana 2006, pet. denied); Boyd v. Boyd, 67 S.W.3d 398, 403–05 (Tex. App.—
Fort Worth 2002, no pet.); In re Kasschau, 11 S.W.3d 305, 312 (Tex. App.—
Houston [14th Dist.] 1999, orig. proceeding). The Texas Supreme Court has not
addressed whether procurement of an MSA by duress, fraud, coercion or is illegal
makes an otherwise statutorily-compliant MSA unenforceable. 4 See Milner, 361
S.W.3d at 619 (noting in an MSA case, 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”). Since an
MSA is a contract, general contract-interpretation principles determine its meaning.
Loya v. Loya, 526 S.W.3d 448, 451 (Tex. 2017) (citation omitted).
4 For purposes of this opinion we assume, without deciding, that a valid claim of duress would justify setting aside an MSA. 9 Neither party challenges that the MSA complied with the statute, and the
record establishes that the MSA met requisite statutory elements. See Tex. Fam.
Code Ann. § 6.602(b)–(c). The statement regarding the MSA’s irrevocability was
conspicuous, as it was capitalized and in bold. See id. § 6.602(b)(1). The parties and
their attorneys signed the MSA. See id. § 6.602(b)(2)–(3). Accordingly, absent a
defense to the MSA that makes it unenforceable, the trial court had to render a decree
consistent with the terms in the parties’ MSA. See id. § 6.602(c).
B. Issue One: Duress
In his first issue, Asit claims that the MSA is unenforceable because it was
procured by duress—the threat of a criminal prosecution that would undermine his
ability to maintain his standard of living. Assuming, without deciding, that duress is
an available defense to an MSA, we agree with the trial court that Asit did not meet
his burden to prove it applied to the MSA he signed. The party seeking to avoid
enforcement of the MSA bears the burden to show the agreement is unenforceable.
In re Marriage of Fannette, No. 10-12-00141-CV, 2013 WL 3533238, at *5 (Tex.
App.—Waco July 11, 2013, pet. denied) (mem. op.). Thus, Asit bore the burden of
proof on his claim of duress. See id.
Duress involves improper or unlawful conduct or the threat of the same that
is intended to and actually interferes with another person’s exercise of free will and
judgment. Dallas Cty. Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868, 878–79 (Tex.
10 2005); In re D.E.H., 301 S.W.3d 825, 829 (Tex. App.—Fort Worth 2009, pet.
denied). To establish duress, Asit had to prove the following:
(1) a threat or action was taken without legal justification; (2) the threat or action was of such a character as to destroy the other party’s free agency; (3) the threat or action overcame the opposing party’s free will and caused it do that which it would not otherwise have done and was not legally bound to do; (4) the restraint was imminent; and (5) the opposing party had no present means of protection.
Kalyanaram v. Burck, 225 S.W.3d 291, 301 (Tex. App.—El Paso 2006, no pet.)
(citations omitted). Our sister court, the Fourteenth Court of Appeals, explained that
the threat of criminal prosecution to pressure someone to execute a contract is itself
a wrongful use of the criminal justice process that may present the trier of fact with
an issue of fact on a party’s claim of duress. See Weinberg v. Baharav, 553 S.W.3d
131, 135 (Tex. App.—Houston [14th Dist.] 2018, no. pet.). Here, the issue is whether
Asit established Ulupi intentionally threatened Asit with an imminent criminal
prosecution to interfere with Asit’s exercise of his free will and judgment.5 See id.
at 136. The trial court decided the answer to that question was no. When acting as
the factfinder, the trial court “is the sole judge of witness credibility and the weight
to give witnesses’ testimony.” In re Marriage of Lopez, No. 14-18-00797-CV, 2020
5 The Fourteenth Court of Appeals also noted that in making this determination they followed the majority rule which did not require proof that the party was innocent of the criminal allegations. See Weinberg v. Baharav, 553 S.W.3d 131, 136 (Tex. App.—Houston [14th Dist.] 2018, no pet.). 11 WL 4523594, at *2 (Tex. App.—Houston [14th Dist.] Aug. 6, 2020, no pet.) (mem.
op.) (citing City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005)).
The record shows the criminal prosecution occurred following an incident at
the parties’ home on August 17, 2017, which was almost a year before mediation.
While Asit claims Ulupi refused to drop the criminal charges she initiated against
him unless he agreed to her proposed division of the marital estate, the record shows
Asit wanted her to do so as part of the mediation and that he was the party that
injected that issue into the negotiation process. Ultimately, Ulupi agreed to a
proposal the mediator made that was relevant to the charges, which Asit also signed.
Thus, the letter that Ulupi and Asit signed differed from the version Asit initially
proposed. When asked whether Asit demanded that his wife sign the letter, he said
he “did not demand anything” but he “would like [the letter] to be signed so that my
criminal charges will go away.” Asit also agreed he never had any direct contact
with Ulupi or her legal counsel during the mediation.
Ulupi also disputed Asit’s claim that she contacted the Texas Medical Board
and informed it about the charges in his criminal case. Ulupi testified that she nor
anyone at her request ever contacted the Texas Medical Board about Asit’s case.
While Ulupi agreed that she had “one or two” conversations with the prosecutor
about the criminal case, she also testified she never called the prosecutor. She
additionally denied notifying any hospitals about matters that were relevant to Asit’s
12 credentials. Nothing in the record contradicts Ulupi’s testimony that, beyond calling
the police in August 2017 to report that Asit had threatened her, she did not take an
active role in the investigations that resulted as they related to Asit’s medical license
or privileges in those places where Asit practiced medicine.
In the context of duress, “compulsion must be actual and imminent, and not
merely feigned or imagined.” Bolton, 185 S.W.3d at 879. Duress must be established
based on the conduct of the party accused of duress rather than the emotions of the
alleged victim. Weinberg, 553 S.W.3d at 134. Therefore, we focus on Ulupi’s
conduct rather than Asit’s emotions. See id.
The Austin Court of Appeals addressed this issue in Kalyanaram and held an
ongoing threat of continued criminal prosecution cannot support a claim for duress.
Kalyanaram v. Univ. of Tex. Sys., No. 03–05-00642-CV, 2009 WL 1423920, at *6
(Tex. App.—Austin May 20, 2009, no pet.) (mem. op.). Here, the evidence
established that Ulupi did not make any imminent threat of criminal prosecution to
Asit to procure his signature on the MSA. Rather, the record established that Asit
knew Ulupi complained to the police of his actions on August 17, 2017. See id.
(explaining where appellant knew that opposing party forwarded his information to
the district attorney two years before the settlement agreement was executed,
forwarding the information was no longer a threat); see also Burck, 225 S.W.3d at
13 302. The only evidence before us established that Ulupi contacted law enforcement
with her criminal complaint almost a year before the parties executed the MSA.
For duress or undue influence to suffice to set aside a contract, “it must
originate from one who is a party to the contract[,]” and courts will not set aside a
contract “when the alleged duress derives from a third person who has no
involvement with the opposite party to the contract.” See Burck, 225 S.W.3d at 302
(citations omitted). Once Ulupi called the police, any criminal prosecution was out
of her hands, and any “threat of prosecution no longer emanated from [appellee], but
rather from the District Attorney’s Office.” See id. (citations omitted). Apart from
Ulupi’s initial phone call to the police, there is no evidence of any conduct she
engaged in pertaining to the criminal prosecution.
The trial court, as the factfinder, was free to believe Ulupi’s testimony and
disbelieve Asit’s bald assertions to the contrary. See Lopez, 2020 WL 4523594, at
*2 (explaining the factfinder is the sole judge of witness credibility and the weight
to give their testimony). We conclude that given the testimony in the hearing, the
trial court could have reasonably determined that Asit, not Ulupi, required the terms
of the MSA to include matters that were related to Asit’s criminal case before he
would agree to sign the MSA. We hold the trial court did not abuse its discretion in
refusing to set aside the statutorily compliant MSA. We overrule Asit’s first issue.
14 C. Issue Two: Mutual Mistake
In his second issue, Asit contends that “due to the mutual mistake that he could
convey property that he did not own, the MSA included provisions where he agreed
to convey property owned by Choksi, Ltd.” “Mutual mistake occurs when the parties
to an agreement have a common intention, but the written instrument does not reflect
that intent.” Toler v. Sanders, 371 S.W.3d 477, 481 (Tex. App.—Houston [1st Dist.]
2012, no pet.) (citing Dyer v. Cotton, 333 S.W.3d 703, 718 (Tex. App.—Houston
[1st Dist.] 2010, no pet.)).
We disagree the evidence establishes the MSA contains terms on which
parties made a “mutual mistake.” First, the evidence fails to show that the agreement
does not express the parties’ intent. And even if it did, the evidence fails to show the
alleged mistake is one that was either mutual or inconsistent with what Ulupi
intended.
The record shows that prior to mediating the matter, the attorneys for the
respective parties communicated about Asit’s authority to convey title to the various
properties to the extent title was held by the family partnership. Asit participated in
the mediation with two attorneys present on his behalf and executed the MSA after
extensive negotiations, without ever raising any issue about his lack of authority to
execute the necessary documentation to transfer ownership of property held by the
family partnership. It was not until sometime after mediation and arbitration that
15 Asit sought and obtained a temporary restraining order on behalf of Choksi, Ltd. in
Harris County which prohibited Ulupi from “[p]urs[u]ing any motion to enforce the
MSA to the extent it purports to require Choksi, Ltd. to convey property without
compliance with the terms of the partnership agreement.”6 However, neither the
partnership agreement or its terms have been made a part of the record before us.
Absent such evidence, Asit has failed to show that any provision of the MSA
required a property transfer in violation of the partnership agreement or that the
transfers outlined in the MSA were inconsistent with the partnership agreement. Asit
cannot misrepresent his authority to transfer properties at a mediation, sign an MSA,
move to arbitrate under the terms of the MSA, and then seek to have the MSA set
aside based on his misrepresentation of authority by characterizing it as a “mistake.”
We overrule issue two.
D. Issue Three: Illegality
In his last issue, Asit contends the MSA contains provisions that are illegal
and violate public policy. Specifically, he asserts that certain portions of the MSA
call for relinquishing rights controlled by third parties’ to sue, while other portions
require the parties to interfere with proceedings that involve ongoing civil and
criminal matters involving Asit. But Asit fails to identify where the MSA requires
6 The record indicates that the Harris County Court ultimately denied the injunction. 16 third parties to relinquish any rights or requires anyone to interfere in any other
proceedings related to his criminal case. Rather, it appears that Asit contends that by
getting Ulupi to agree to the terms of the letter she signed that he hoped to use to get
the prosecutor to drop his criminal case, the MSA is illegal.
But these arguments were never raised in the trial court or in Asit’s motion
for new trial. We hold that Asit failed to preserve these arguments for our review.
See Tex. R. App. P. 33.1(a) (requiring a party to show he complained to the trial
court with a timely request, objection, or motion).
Even had Asit done so, however, his arguments still lack merit. Asit relies on
In re Kasschau, to support his argument in his brief. See 11 S.W.3d at 314. In that
case, a husband made illegal recordings of his wife with third parties, and the
settlement provided that the recordings would be destroyed. See id at 312. The court
found the destruction of evidence related to a possible criminal proceeding was
illegal and refused to enter judgment on the agreement. See id at 314. But here, the
MSA does not contain any provisions that call for any evidence in Asit’s criminal
case to be destroyed. While Asit points to the letter that Ulupi signed in the
mediation, the letter is not part of the MSA. Moreover, the letter does not require
17 anyone to destroy evidence, call for Ulupi to change her testimony, or require her to
refuse to cooperate with the prosecutor in Asit’s criminal case.7
7 In its entirety, the letter signed by both parties provided as follows:
To Whom it May Concern:
This letter explains the context and some chronology leading up to the events that occurred on August 17 and 18, 2017 and the subsequent divorce action.
Asit and Ulupi Choksi have been married for 37 years. We have raised 3 children who are now grown and on their own.
There has been stress during the marriage, which increased in severity in 2016 and 2017. The event (sic) that occurred in the home on August 17 and 18, 2017 were regrettable and likely a result of this increased stress. Furthermore, the events on that date have caused us both additional suffering for each and the family as a whole.
Neither party admits guilt as a result of the August 17 and 18, 2017 event.
Asit getting upset, threatening to commit suicide with his history of possible infidelity and Ulupi calling the police to report the threats resulting in Asit’s arrest and charges being filed were regrettable.
We regret the unfortunate events of August 17 and 18, 2017.
Both of us will use our best efforts to move forward without further harm or problems for each other, and reject feelings of hostility or anger towards each other.
Both of us will use our best efforts to not disparage each other in the presence of family or friends.
18 We dismiss issue three for failure to preserve error.
E. Motion to Dismiss: Waiver of Right to Appeal
In response to Asit’s appellate brief, Ulupi filed a motion to dismiss the appeal
based on the language in the MSA waiving the parties’ right of appeal. Having
determined that Asit’s arguments for setting aside the statutorily compliant MSA
lack merit and that the MSA is enforceable, we now turn to whether the parties
waived their right to appeal. Parties can waive their right to appeal. See Huber v.
Huber, No. 04-17-00326-CV, 2018 WL 1831655, at *4–5 (Tex. App.—San Antonio
Apr. 18, 2018, pet. denied) (mem. op.) (in the context of an informal settlement
agreement, holding parties waived their right to appeal); see also Matter of Estate of
Spiller, No. 04-18-00522-CV, 2019 WL 2360100 at *2 (Tex. App.—San Antonio
June 5, 2019, pet. denied) (mem. op.) (analyzing waiver in the context of Rule 11
agreement); Emerson v. Emerson, 559 S.W.3d 727, 729 (Tex. App.—Houston [14th
Dist.] 2018, no pet.) (concluding parties waived right to appeal in Rule 11 agreement
and dismissing appeal).
The language here, however, is distinct from the cases cited. The language the
parties used in this MSA was “THE PARTIES AGREE THAT THIS BINDING
We will use our best efforts to maintain a friendly relationship with each other so that neither of us hurts each other or our children.
To the extent that one of us was hurt or upset by the other party’s actions, an apology is given as it was never the intent to hurt that party. 19 MEDIATED SETTLEMENT AGREEMENT IS NOT SUBJECT TO
REVOCATION AND IS NOT APPEALABLE.” The language in Huber differed
in that it expressly stated that “[t]he parties waive their right to file and/or prosecute
a motion for new trial or appeal[.]” 8 Huber, 2018 WL 1831655, at *1. The language
in the MSA before us is akin to the language found in Center Rose Partners, Ltd. v.
Bailey, which was that “arbitrators’ decisions” were “non-appealable.” See 587
S.W.3d 514, 523–24 (Tex. App.—Houston [14th Dist.] 2019, no pet.).
In determining the parties did not agree to waive their right to appeal, the
Fourteenth Court of Appeals reasoned “the parties agreed that the Award would be
non-appealable, not that the trial court’s judgment on the Award would be non-
appealable.” Id. at 524 (emphasis added). Similarly, Ulupi and Asit agreed that the
MSA was not appealable rather than the actual judgment on the MSA.9 More
importantly, there is no language indicating a waiver of the right to appeal, and we
presume had they wanted to do so, the parties would have included that language.
8 Appellee also cites Connor v. Connor for the proposition that the appellant could waive the right to appeal in an MSA. See No. 01-17-00268-CV, 2018 WL 3542911, at *1 (Tex. App.—Houston [1st Dist.] July 24, 2018, pet. denied) (mem. op.). The dismissal opinion in that case does not contain any of the express language from the MSA, it merely notes that the appellant waived her right to appeal the trial court’s order. See id. 9 While we recognize that arbitration awards are unique, the binding nature of MSAs are similar, and if an MSA complies with the statute, courts make no independent review of whether “the property division is ‘just and right[.]’” See Milner v. Milner, 361 S.W.3d 615, 618 (Tex. 2012) (quoting In re Marriage of Joyner, 196 S.W.3d 883, 889, 891 (Tex. App.—Texarkana 2006, pet. denied)). 20 Instead, the MSA characterizes the agreement itself as something that is “not
appealable.” In this specific context, we cannot conclude that the parties intended to
waive their right to appeal the trial court’s judgment based on the MSA’s language.
Accordingly, we deny Ulupi’s motion to dismiss.
F. Rule 45 Sanctions
By way of cross-point and in her motion to dismiss, Ulupi contends that this
court should sanction Asit pursuant to Texas Rule of Appellate Procedure 45. See
Tex. R. App. 45. Ulupi contends Asit’s appeal is “objectively frivolous,” because he
waived his right to appeal in the MSA, and she further argues that he has
“demonstrated a continued pattern of obstruction and delay in the face of the
MSA[.]” See id. If an appellate court determines that an appeal is frivolous, Rule 45
allows it to award “just damages.” See id. “Whether to grant sanctions for a frivolous
appeal is a matter of discretion that this court exercises with prudence and caution
and only after careful deliberation in truly egregious circumstances.” Goss v. Hous.
Cmty. Newspapers, 252 S.W.3d 652, 657 (Tex. App.—Houston [14th Dist.] 2008,
no pet.); see also Cook v. Izen, No. 09-17-00025-CV, 2019 WL 385926, at *8 (Tex.
App.—Beaumont Jan. 31, 2019, no. pet.) (mem. op.).
While we agree that the trial court’s motion for new trial mentioned repeated
delays by Asit, we cannot agree with Ulupi that his appeal was “objectively
frivolous,” as we have determined above that the MSA language did not constitute
21 a waiver of his right to appeal. We are mindful of Ulupi’s frustrations, but we note
that “Rule 45 does not require this court to award just damages after every frivolous
appeal; rather, the award of damages is a discretionary decision ‘exercise[d] with
prudence and caution after careful deliberation.’” Jacobs v. Jacobs, No. 14-12-
00755-CV, 2013 WL 3968462, at *3 (Tex. App.—Houston [14th Dist.] Aug. 1,
2013, no pet.) (mem. op.) (citations omitted) (refusing to sanction husband where
parties had signed MSA when dispute arose over arbitration provision and transfer
of assets despite husband’s “attempts to delay the proceedings below and in [the]
interlocutory appeal”). Applying our discretion, we decline to award Rule 45
damages.
IV. Conclusion
The trial court did not abuse its discretion when it determined the MSA was
not procured under duress, was therefore enforceable, and rendered a final divorce
decree based on the statutorily compliant MSA. We affirm the trial court’s judgment.
AFFIRMED.
________________________________ CHARLES KREGER Justice
Submitted on October 6, 2020 Opinion Delivered November 19, 2020
Before McKeithen, C.J., Kreger, and Horton, JJ.