Appellant=s and Appellee=s Motions for Rehearing Overruled; Affirmed in part, Reversed and Remanded in part; Opinion Issued January 15, 2004 Withdrawn; and Majority and Dissenting Opinions on Third Motion for Rehearing filed June 17, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-01-00854-CV
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MARGARET DYE SUDAN, now known as
MAGGIE MACKENZIE, Appellant
V.
PHILIP P. SUDAN, JR., Appellee
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On Appeal from the 309th District Court
Harris County, Texas
Trial Court Cause No. 93-06003A
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D I S S E N T I N G O P I N I O N O N T H I R D
M O T I O N F O R R E H E A R I N G
I respectfully dissent to that portion of the majority opinion sustaining Mackenzie=s challenge to Sudan=s motion for summary judgment on Mackenzie=s claim of economic duress. It is my considered opinion that the averments in Mackenzie=s affidavit are not sufficient to raise a fact issue on economic duress. Duress is an affirmative defense in confession and avoidance of the affirmative defense of release. Brown v. Cain Chem., Inc., 837 S.W.2d 239, 242B43 (Tex. App.CHouston [1st Dist.] 1992, writ denied). There can be no duress without the following: (1) a threat or action taken without legal justification; (2) the action or threat was of such a character as to destroy the other party=s free agency; (3) the threat or action overcame the party=s free will and caused her to do that which she would not otherwise have done and that which it was not legally bound to do; (4) the restraint was imminent; and (5) the opposing party had no present means of protection. HRN, Inc. v. Shell Oil Co., et al., 102 S.W.3d 205, 215 (Tex. App.CHouston [14th Dist.] 2003 pet. granted). See also, Chapman Children=s Trust v. Porter & Hedges, L.L.P., 32 S.W.3d 429, 443.
Accepting Mackenzie=s statements as true, I find her affidavit to be conclusory relative to the following elements of economic duress: (1) imminency of restraint from doing what she would have otherwise not done, and (2) no present means of protection when the amendment was signed. The bare assertion that she did not have an attorney is ineffective to prevent entry of summary judgment. HRN Inc., 102 S.W.3d at 216; see also, Burrow v. Arce, 997 S.W.2d 229, 235B36 (Tex. 1999); In re Am. Home Prods. Corp., 985 S.W.2d 68, 74 (Tex. 1998). Clearly, Mackenzie could have initiated this suit for temporary orders and enforcement of the divorce decree before signing the amendment which is the subject of this appeal. Accordingly, I would not sustain Mackenzie=s challenge to the summary judgment negating her economic duress contention.
/s/ Charles W. Seymore
Justice
Judgment rendered and Majority and Dissenting Opinions filed June 17, 2004.
Panel consists of Justices Hudson, Edelman, and Seymore (Edelman, J. majority).