How Can I Void a Settlement Based on Duress?
Full Question:
Answer:
Duress is defined as the constraint of another’s will so that he is forced to give consent when he is not in reality willing to do so. Duress must destroy the free will of a party and cause him to do an act or form a contract not of his own volition. The alleged coercive event must be of such severity, either threatened, impending, or actually afflicted, so as to overcome the mind and will of a person of ordinary firmness. Duress is viewed with a subjective test, looking at the individual characteristics of the person allegedly influenced, and duress does not occur if the person has a reasonable alternative to succumbing and fails to avail themselves of the alternative.
Please see the following TX statute:
§ 42.003 CIV. PRAC. & REM. Making Settlement Offer
A settlement offer must:
(1) be in writing;
(2) state that it is made under this chapter;
(3) state the terms by which the claims may be settled;
(4) state a deadline by which the settlement offer must be accepted; and
(5) be served on all parties to whom the settlement offer is made.
§ 42.004 CIV. PRAC. & REM. Awarding Litigation Costs
(a) If a settlement offer is made and rejected and the judgment to be
rendered will be significantly less favorable to the rejecting party than
was the settlement offer, the offering party shall recover litigation
costs from the rejecting party.
(b) A judgment will be significantly less favorable to the rejecting
party than is the settlement offer if:
(1) the rejecting party is a claimant and the award will be less than
80 percent of the rejected offer; or
(2) the rejecting party is a defendant and the award will be more
than 120 percent of the rejected offer.
(c) The litigation costs that may be recovered by the offering party
under this section are limited to those litigation costs incurred by the
offering party after the date the rejecting party rejected the settlement
offer.
(d) The litigation costs that may be awarded under this chapter may not
be greater than an amount computed by:
(1) determining the sum of:
(A) 50 percent of the economic damages to be awarded to the
claimant in the judgment;
(B) 100 percent of the noneconomic damages to be awarded to the
claimant in the judgment; and
(C) 100 percent of the exemplary or additional damages to be
awarded to the claimant in the judgment; and
(2) subtracting from the amount determined under Subdivision (1) the
amount of any statutory or contractual liens in connection with the
occurrences or incidents giving rise to the claim.
(e) If a claimant or defendant is entitled to recover fees and costs
under another law, that claimant or defendant may not recover litigation
costs in addition to the fees and costs recoverable under the other law.
(f) If a claimant or defendant is entitled to recover fees and costs
under another law, the court must not include fees and costs incurred by
that claimant or defendant after the date of rejection of the settlement
offer when calculating the amount of the judgment to be rendered under
Subsection (a).
(g) If litigation costs are to be awarded against a claimant, those
litigation costs shall be awarded to the defendant in the judgment as an
offset against the claimant's recovery from that defendant.
Please see the following TX court rules:
RULE 11. AGREEMENTS TO BE IN WRITING
Unless otherwise provided in these rules, no agreement
between attorneys or parties touching any suit pending will
be enforced unless it be in writing, signed and filed with
the papers as part of the record, or unless it be made in
open court and entered of record.
167.1. GENERALLY
Certain litigation costs may be awarded against a party
who rejects an offer made substantially in accordance with
this rule to settle a claim for monetary damages — including
a counterclaim, crossclaim, or third-party claim — except
in:
(a) a class action;
(b) a shareholder's derivative action;
(c) an action by or against the State, a unit of state
government, or a political subdivision of the State;
(d) an action brought under the Family Code;
(e) an action to collect workers' compensation benefits
under title 5, subtitle A of the Labor Code; or
(f) an action filed in a justice of the peace court or small
claims court.
167.2. SETTLEMENT OFFER
(a) Defendant's declaration a prerequisite; deadline.
A settlement offer under this rule may not be made until a
defendant — a party against whom a claim for monetary damages
is made — files a declaration invoking this rule. When a
defendant files such a declaration, an offer or offers may be
made under this rule to settle only those claims by and
against that defendant. The declaration must be filed no
later than 45 days before the case is set for conventional
trial on the merits.
(b) Requirements of an offer. A settlement offer must:
(1) be in writing;
(2) state that it is made under Rule 167 and Chapter 42 of
the Texas Civil Practice and Remedies Code;
(3) identify the party or parties making the offer and the
party or parties to whom the offer is made;
(4) state the terms by which all monetary claims — including
any attorney fees, interest, and costs that would be
recoverable up to the time of the offer — between the offeror
or offerors on the one hand and the offeree or offerees on
the other may be settled;
(5) state a deadline — no sooner than 14 days after the
offer is served — by which the offer must be accepted;
(6) be served on all parties to whom the offer is made.
(c) Conditions of offer. An offer may be made subject
to reasonable conditions, including the execution of
appropriate releases, indemnities, and other documents. An
offeree may object to a condition by written notice served on
the offeror before the deadline stated in the offer. A
condition to which no such objection is made is presumed to
have been reasonable. Rejection of an offer made subject to a
condition determined by the trial court to have been
unreasonable cannot be the basis for an award of litigation
costs under this rule.
(d) Non-monetary and excepted claims not included An
offer must not include non-monetary claims and other claims
to which this rule does not apply.
(e) Time limitations. An offer may not be made:
(1) before a defendant's declaration is filed;
(2) within 60 days after the appearance in the case of the
offeror or offeree, whichever is later;
(3) within 14 days before the date the case is set for a
conventional trial on the merits, except that an offer may
be made within that period if it is in response to, and
within seven days of, a prior offer.
(f) Successive offers. A party may make an offer
after having made or rejected a prior offer. A rejection of
an offer is subject to imposition of litigation costs under
this rule only if the offer is more favorable to the offeree
than any prior offer.
167.3. WITHDRAWAL, ACCEPTANCE, AND REJECTION OF OFFER
(a) Withdrawal of offer. An offer can be withdrawn
before it is accepted. Withdrawal is effective when written
notice of the withdrawal is served on the offeree. Once an
unaccepted offer has been withdrawn, it cannot be accepted or
be the basis for awarding litigation costs under this rule.
(b) Acceptance of offer. An offer that has not been
withdrawn can be accepted only by written notice served on
the offeror by the deadline stated in the offer. When an
offer is accepted, the offeror or offeree may file the offer
and acceptance and may move the court to enforce the
settlement.
(c) Rejection of offer. An offer that is not withdrawn
or accepted is rejected. An offer may also be rejected by
written notice served on the offeror by the deadline stated
in the offer.
(d) Objection to offer made before an offeror's joinder
or designation of responsible third party. An offer made
before an offeror joins another party or designates a
responsible third party may not be the basis for awarding
litigation costs under this rule against an offeree who files
an objection to the offer within 15 days after service of the
offeror's pleading or designation.
