law-duress | contract avoidance defenses | challenges to enforceabiltiy of contracts
WHAT IS DURESS ?
Duress requires unlawful conduct or a threat of unlawful conduct of such a character as to destroy the other
party's exercise of free will and judgment. See Dallas County Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868,
878-79 (Tex. 2005); Cooper v. Cochran, 288 S.W.3d 522, 533 (Tex. App.-Dallas 2009, r. 53.7(f) motion
granted) (op. on reh'g); Deer Creek Ltd. v. N. Am. Mortgage Co., 792 S.W.2d 198, 200 (Tex. App.-Dallas 1990,
no writ). The threat must be imminent and the party must have no present means of protection. See Bolton, 185
S.W.3d at 879; Cooper, 288 S.W.3d at 533; Deer Creek, 792 S.W.2d at 200. Duress must be shown from the
acts or conduct of the party accused of duress, not the emotions of the purported victim. See Brown v. Cain
Chem., Inc., 837 S.W.2d 239, 244 (Tex. App.-Houston [1st Dist.] 1992, writ denied). The burden to prove
duress is on the party claiming it. Tex. R. Civ. P. 94; Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 650
(Tex. 1988). Generally, what constitutes duress is a question of law, but whether duress exists under a
particular set of circumstances is a fact question. See Wright v. Sydow, 173 S.W.3d 534, 544 (Tex.
App.-Houston [14th Dist.] 2004, pet. denied).
DURESS DEFENSE
It is well established that, as a matter of law, there can be no duress unless: (1) there is a threat to do
something that the party threatening has no legal right to do; (2) there is some illegal exaction or some fraud or
deception; and (3) the restraint is imminent and such as to destroy free agency without present means of
protection. Deer Creek Ltd. v. North Am. Mortgage Co., 792 S.W.2d 198, 200 (Tex. App.-Dallas 1990, no
writ);Tower Contracting Co. v. Burden Bros., Inc., 482 S.W.2d 330, 335 (Tex. Civ. App.-Dallas 1972, writ ref'd
n.r.e.). "[I]n all its forms (whether called duress, implied duress, business compulsion, economic duress or
duress of property)," a claim of duress requires a showing of "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." Dallas County Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868, 878-79 (Tex. 2005). "Threatening to
do that which a party has a legal right to do cannot form the basis of a claim of duress by business compulsion."
Sanders v. Republic Nat'l Bank, 389 S.W.2d 551, 554 (Tex. Civ. App.-Tyler 1965, no writ); see In re Oakwood
Mobile Homes, Inc., 987 S.W.2d 571, 574 (Tex. 1999) (defining duress as "a threat to do some act which the
threatening party has no legal right to do"); Windham v. Alexander, Weston & Poehner, P.C., 887 S.W.2d 182,
185 (Tex. App.-Texarkana 1994, writ denied).
HOUSTON CASELAW
Williams v. Jackson (Tex.App.- Houston [1st Dist.] Nov. 6, 2008)(superseding opinion on rehearing by Radack)
(attorney fee litigation, breach not excused, duress defense unsuccessful, justification defense fails)
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Nuchia and Higley
01-07-00850-CV Charlie C. Williams v. Freddie N. Jackson
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Hon. Roberta A. Lloyd
Duress by Jackson not Shown
Williams challenges the jury's failure to find, in response to question 3 of the jury charge, that duress by
Jackson invalidated their fee agreement. Coercion or taking an unjust advantage by one party to a
contract may invalidate the contract and render it unenforceable. See Brown v. Cain Chem., Inc., 837
S.W.2d 239, 244 (Tex. App.--Houston [1st Dist.] 1992, writ denied). To establish economic duress
sufficient to invalidate a contract, three elements must be present: (1) a threat to do something a party
has no legal right to do, (2) an illegal exaction of some fraud or deception, and (3) an imminent
restraint that destroys the victim's free agency without a present means for protection. Wright v. Sydow,
173 S.W.3d 534, 544 (Tex. App.--Houston [14th Dist.] 2004, pet. denied) (citing Dale v. Simon, 267
S.W. 467, 470 (Tex. Comm'n App. 1924)); Simpson v. MBank Dallas, N.A., 724 S.W.2d 101, 109
(Tex. App.--Dallas 1987, writ ref'd n.r.e.). Duress must derive from acts or conduct of the party accused
of duress; the emotions of the purported victim do not suffice. See Brown, 837 S.W.2d at 244.
Because "[t]he compulsion must be actual and imminent, and not merely feigned or imagined," the
acts of the defendant must be "such as to destroy free agency without present means of protection."
Sudan v. Sudan, 145 S.W.3d 280, 292 (Tex. App.--Houston [14th Dist.] 2004) (quoting Ward v.
Scarborough, 236 S.W. 434, 437 (Tex. 1922)), rev'd on other grounds, 199 S.W.3d 291 (Tex. 2006).
As in Brown, there is no evidence in this case that Jackson coerced or threatened Williams and, thus,
no evidence of the first element that Williams had to prove in order to prevail on the affirmative
defense. See Brown, 837 S.W.3d at 244. Williams also failed to show that the alleged coercion by
Jackson was imminent and effectively removed his freedom not to sign the fee agreement that
Jackson proposed. See Sudan, 199 S.W.3d at 292. Williams negated that element by his own
testimony that he signed the agreement "voluntarily." Though Williams claims he was "distraught," and
Jackson agreed that Williams was distraught, the emotional state of the complaining party does not
establish duress. See Brown, 837 S.W.2d at 244.
When viewed in the requisite light, which must favor the jury's verdict, the evidence is legally insufficient
to establish that Williams signed the fee agreement only because of duress directed at him by
Jackson. We overrule issue one.
Williams v. Jackson (Tex.App.- Houston [1st Dist.] Oct. 9, 2008)(Radack)
(attorney fee dispute, sworn account suit, no duress, no excuse to payment)
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Nuchia and Higley
01-07-00850-CV Charlie C. Williams v. Freddie N. Jackson
Appeal from Co Civil Ct at Law No 4 of Harris County
Trial Court Judge: Hon. Roberta A. Lloyd
Sudan v. Sudan, No. 04-0921 (Tex. June 30, 2006)(per curiam)(no economic duress in spousal support
agreement)
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