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Click here for the full text of this decision FACTS:Susan Rabe sued Dillard’s alleging injury from a fall on Dillard’s premises. The parties conducted a mediation. Rabe attended the mediation by telephone conference, and her attorney attended in person. The parties reached a settlement, and Rabe authorized her attorney to execute the agreement on her behalf. Rabe subsequently refused to sign the settlement documents. As a result, Dillard’s filed a counterclaim for breach of contract based on Rabe’s failure to honor the settlement agreement and then moved for summary judgment on the counterclaim. In response to Dillard’s motion, Rabe asserted that she had entered the settlement agreement under duress. Rabe premised her affirmative defense on a statement that an a Dillard’s attorney allegedly made during the mediation. According to Rabe, the Dillard’s attorney threatened to contact Rabe’s workers’ compensation carrier to advise that Rabe had a prior injury and was “doctor shopping” for narcotics. The trial court granted the motion for summary judgment and awarded Dillard’s its attorney’s fees. Rabe appealed. HOLDING:Affirmed. The court characterized duress as the result of threats which render persons incapable of exercising their free agency and which destroy the power to withhold consent. To establish duress, the court stated that there must be proof of a threat to do something which the threatening party has no right to do. The compulsion must also be “actual and imminent” and destroy free agency without means of protection, the court stated. Rabe’s only summary judgment evidence, the court noted, consisted of statements she made in an affidavit. One statement, the court stated, described the alleged threat that the Dillard’s attorney made during the mediation. The attorney’s statement is not competent summary judgment evidence, the court stated, because Texas Rule of Civil Procedure 166a require that affidavits submitted as summary judgment evidence set forth facts that would be admissible in evidence. Communications made during an alternative dispute resolution procedure, the court stated, are confidential and may not be used as evidence. Because Rabe presented no competent summary judgment evidence of a threat, the court stated that it need not consider whether Rabe raised a question of fact as to any of the remaining elements of her claim. The absence of evidence of a threat, the court held, is fatal to Rabe’s claim of duress. OPINION:Richter, J.; Fitzgerald, Richter and Francis, J.J.

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