# Tonya Parks and Parks Realty Firm, LLC v. Affiliated Bank, Affiliated Bank FSB, Affiliated Bank, Inc., Bancaffiliated, Inc., Joshua Campbell, Katherine Campbell

> Court of Criminal Appeals of Texas · June 7, 2018

URL: https://www.frixlaw.com/law-library/cases/4283187

## Case

- **Court:** Court of Criminal Appeals of Texas
- **Decided:** June 7, 2018
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4283187

## How later opinions describe it (automated extraction)

- concluding that, on proper request of party, trial court was required to make findings of fact and conclusions of law following hearing on motion at which conflicting evidence was presented
- concluding unchallenged findings supported by some evidence were binding on appellate court
- concluding unchallenged findings supported by some evidence were binding on appellate court

## Opinion text

INTHECOURTOF APPEALS Fl:LED J:N
FIFTH DISTRICT OF TEXAS AT DALLAS Court of Appeals

Jt;N 0 7 2018
Lis2 Matz
Clerk 1 5th District
CAUSE NO. 05-16-00784-CV

TONY A PARKS & PARKS REALTY FIRM, LLC

vs.

AFFILIATED BANK, ET AL

On Appeal from the County Court of Law #3
Dallas County, Texas
Trial Court Cause No. CC-15-04540-C

APPELLANT'S MOTION FOR EN BANC RECONSIDERATION AND
MODIFICATION OF JUDGMENT AND MEMORANDUM OPINION OF
MAY 3, 2018

Tonya Parks
ProSe
1401 Bristlewood Dr.
McKinney, Tx 75070
telephone: (214) 980-8816
email: tonvaparks@!parksrealtvfirm.com

APPELLANTS MOTION FOR EN BANC RECONSIDER/\TION AND MODIFICATION
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
TO THE HONORABLE JUSTICES OF SAID COURT:

NOW COME TONY A PARKS PRO SE, one of the Appellants in the above-style and

numbered appeal, and pursuant to Rule 49.7 of the Texas Rule of Appellate Procedure file this

Appellant's J.'vfotionf(w En Bane Reconsideration and Afod!fication of.Judgment o(Afemorandum

Opinion on Afay 3. 2018, and. in support of same. respectfully show:

POINTS FOR EN BANC RECONSlDERATION

Appellant respectfully request this court to reconsider en bane this Court's Alemorandum

Opinion and Judgment on May 3. 2018 (which are together attached as Appendix I hereto)

because, in the opinion the court of appeals ened by ( 1) stating they do not need to address

Parks' concerns about abating the appeal back to the trial court, (2) stating they have resolved the

issues on appellant's assertion that Judge Akin abused his discretion by entering the Findings of

Fact and Conclusions of Law. (3) stating that by abating the appeal, this court allowed Parks to

have her due process by conducting a hearing to see if Parks entered into an enforceable

agreement pursuant to Rule of Civil Procedure 11 , (4) stating Affiliated Bank and Campbells

complied with the agreement and appellants breached the agreement (5) stating Judge Akin

held an evidentiary hearing to determine whether there was an agreement between the parties and

whether any agreement was enforceable, and that conflicting evidence was presented at the

hearing, (6) citing they reviewed de novo that "[t]here was no coercion,'' and .. [t]here was no

coercion or duress" based on Judge Akin's ·'Findings o.lFacts Conclusions of Law" paragraph 25

and 28. (7) stating that based on the "unchallenged" findings and the evidence at the hearing

before Judge Akin, they that concluded Judge Akin did not err by determining Parks did not

enter into the settlement agreement due to coercion or duress, (8) stating they conclude Rymer is

distinguishable and does not control whether the agreement entered into by Parks is enforceable.

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 2
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
(9) stating they will not address Appellants issue on any subsequent compliance with the

agreement by either Affiliated Bank or Appellants because it is not relevant to the issues before

Judge Akin, (10) stating accordance with this Comi's opinion on May 3, 2018 they dismissed

Appellants appeal, ( 11) by not addressing the rendition of modifying or vacating the Judgment

entered by Hon. Sally Montgomery on Mar. 24, 2016 (CR:255-256: Appendix 14) after the

hearing held on the Motion for New Trial (transcript Appendix 2) which was requested in the

Order from this court on Dec. 20,2017 (Appendix 8), (12) by not addressing Appellant's letters

to this court (Appendix 3 - tiled on July 25, 2016, Appendix 4 -Aug. 15, 2016, Appendix 5-

Aug. 22, 2016), Affidavit of Bennie Gibson (Appendix 6- filed Aug. 24, 2016), Appellants'

Response to Objection of Bennie Gibson Affidavit (Appendix 7 tiled on Aug. 30, 2016) and all

Appellants' briefs tiled that were overlooked and not addressed in the opinion of May 3, 2018,

(13) Items discussed in Oral Argument on Dec. 12, 2017 by John Browning and misrepresented

as fact to the Panel of Justices and of which this court should have taken note per the clerk's

record that and briefs submitted by Appellants after the abatement, per the order on Mar. 8,

2018, and (14) not considering the bulk of evidence of conspiracy and/or cronyism, conflict of

interest and collusion among the attorneys and judge of the trial court this, of which court may

have known, had not known or should have known when drafting the opinion on May 3, 2018.

There has also been new evidence during the appeal abatement period in which receiving justice

requires it to be heard and taken into consideration for Appellant to receive due process and

relief from this court.

STATEMENT OF THE CASE

PlaintiffTonya Parks (hereinafter also referred to as Parks or Appellant) and Parks Realty

Finn (hereinafter also refened to as ''PRF'' or Appellant) initiated the present lawsuit by filing

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 3
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
their Plaintiffs' Original Petition (the ··Petition'') on Sept. 2, 2015 and then tiled the final

Plaintiffs· Second Amended Petition on Sept. 23, 2015 (CR:40-56). Defendant Affiliated Bank

(the "Appellee") with the help of Attorneys Jerry Alexander and John Browning tiled Defendant

Affiliated Bank's Ansrver. Ver!fied Denial and .1/firmative Defenses to Plaint~//.~' Second

Amended Petition on Oct. 16, 2015 and Defendant Joshua and Katherine Campbell through their

Attorney Christopher Hansen tiled their answer to the Petition on Oct. 23, 2015. Defendant

Joshua Campbell (hereinafter also referred to as "Campbell'') alone filed a 111/otion to Dismiss

(CR:69-92) pursuant to Texas Civil Practice and Remedies Code Sec 27.001 (hereinafter also

referred to as "TCPA") on Nov. 23, 2015. Affiliated Bartle from the date of their Original

Answer to Plaintiffs' Petition on Oct. 16, 2015 to the date Josh Campbell filed in /tis name onlv

as Defendant Joshua Campbell's Afotion to Dismiss Under the Texas Citizens Participation Act

(CR:69-92) on Nov. 23, 2015 did not file any request with the trial court nor any evidence

supporting a dismissal of Appellee Affiliated Bank at or the hearings held on the Motion to

Dismiss on 1lfar. 21, 2016 and continued on 1Uar. 22, 2016. On April21, 2016. Plaintiff tiled a

Plaintiffs' JHotionfor New Trial and Alternative Afotion to Vacate, Mod(fj:, Correct or Reform

Judgment (part of his motion is in Appendix 23b a full copy is apart of the record). Hearing on

Motion for New Trial was held on June 13, 2016

This appeal arises from the dismissal by the trial court of Appellants' claims against Josh

and Katherine Campbell and Appellee Aftlliated Bank for negligence, negligent

misrepresentation. negligent hiring. retention and supervision, gross negligence, libel per se, libel

per quod, slander, business disparagement, invasion of privacy, tortious interference with

prospective contracts and business relationships, intentional inf1iction of emotional distress,

fraud. fraudulent misrepresentation, respondeat superior. and malice (see Plaintiff's Second

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 4
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
Amended Petition, CR:40-56) pursuant to the trial court's Order on Defendant Joshua

Campbell's Motion to Dismiss (CR:255-256)(Appendix 14).

After oral argument on Dec, 12, 2017 this Comi entered an Order on Dec. 20, 2017

(Appendix 8) abating this appeal and ordering the trial court ''to conduct a hearing to determine

whether Parks, individually and on beha(lofPRF. entered into the rule 11 agreement due to

coercion or duress or whether the rule 11 agreement is enforceable, de.\pite Appellants time(v

revocation (?l the coerced consent by appealing··.

On Jan. 8, 2018 Appellants filed a Motion to Recuse Judge Montgomery.

On Jan 17,2018 Appellants filed an Amended Motion to Recuse Judge Montgomery.

On Jan 30, 2018 a hearing was held on the Motion to Recuse, which motion was denied

by Judge Emily Miske!.

On Feb. 14, 2018 Appellants filed Appellants Emergency Alotion to S'tay Proceeding in

Trial Court and Reconsider and Withdraw Order that Trial Court Conduct Hearing on Whether

Trial Court Judge Coerced Plaintiff's into Entering into a Rule 11 Agreement and, in the

Alternative Motion that Case be Transferred to Other County Court to Conduct Said Hearing in

this court. On Feb. 15, 2018, this Court entered an Order denying said motion, despite Judge

Montgomery's campaign relationship with John Browning, and Browning's current campaign

for a seat in this court.

The hearing ordered by this court was conducted in the trial court on Feb 16,2018 (RSR,

Vol. 1-4), with visiting Judge Ted Akin presiding. At the conclusion of said hearing Appellee's

counsel John Browning submitted pre-prepared, ''Proposed Findings of Fact and Conclusions ql

Law" (Appendix 9) to Judge Akin.

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 5
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
On Feb. 19,2018. Appellants filed Plaintiffs·· Objections and Response to Defendant

Affiliated Bank's Proposed Findings (4'Facts and Conclusions ofLaw and Request.fhr Entry l?[

Order That Plaint(ffs' Were Denied Their Constitutional Rights to Due Process and a Fair

Hearing by an Impartial Judge, entered into a Rule 11 Agreement as a Result of Coercion or

Duress, and the Rule 11 Agreement is Not Enforceable (CSR: 11-155)

On Feb. 27, 2018 Judge Akin entered a document in the trial court entitled "Findings of

Fact and Conclusions of Law" (Appendix 10) stating the mle 11 agreement was enforceable and

Parks was not coerced or put into "extreme duress."'

On Mar. 8, 2018 this court entered an Order (Appendix 12) reinstating this appeal and

allowed Appellants to file a supplemental brief on~v allowing Parks the opportunity to file a

limited brief, not exceeding fifteen pages. raising only issues relating to the trial court's rulings

on objections at the Feb. 16, 2018 hearing and the trial court's Feb. 27, 2018 '"Findings q(Facts

and Conclusions qllaw. ··but they allowed Affiliated Bank to file any response on unlimited

issues, within fifteen pages. Parks and PRF could then file any reply. not exceeding 5 pages.

Briefs were filed and are a part of this courts record.

On May 3, 2018 this court entered aklemormrdum Opinion (Appendix 1) dismissing

this appeal.

Appellant seek relief from:

(a) The Order on Defendants Joshua Campbell's 1\fotion to Dismiss (CR:255-256: Appendix

14) entered by the Hon. Sally Montgomery, presiding judge sitting in County Court at

Law No.3 of Dallas County, Texas, in Cause No. CC-15-04540-C. in which ·'TCPA"

was misapplied,

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 6
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
(b) The Court of Appeals' Order dated Dec. 20,2017 (Appendix 8 hereto) in which

Appellant was sent back to the same court that had coerced Appellant's consent by

misapplying a Rule of Civil Procedure.

(c) The Findings (~(Fact and Conclusions oflmv (Appendix 10) dated Feb. 27, 2018,

entered by Judge Ted Akin. as visiting judge. in the County Com1 at Law No. 3 of Dallas

County, Texas in Cause No. CC-15-04540-CV in which, despite clear and convincing

evidence to the contrary, he adopted Appellee's filing verbation: and

(d) This Court's .Memorandum Opinion (Appendix 1) dated May 3, 2018.

(e) Any and all relief this court can grant and any attorney fee accrued during appeal.

Additional Statement of Fact During the Motion to Dismiss Hearing on March 22,
2016 Prior to the Order and Judgment on March 24, 2016

To began, Appellant respectfully submits that this court erred by failing to overrule Judge

Montgomery's dismissal of the case based on her misapplication of TCP A.

In the Order by this court on Dec. 20, 2016 it states that, "Campbell tiled a motion to

dismiss under the TCP A, arguing the claims against him were based on statement he made in

connection with a matter of public concern, and Parks and PRF could not establish by clear and

specific evidence a prima facie case for each essential element of their claim". Also, in the

Order by this court on Dec. 20, 2016 it also states that, "At the hearing on Campbell's Motion,

Atliliated Bank argued it "should be included as far as being dismissed" because there was no

evidence to support the causes of action asserted against it and requested that it be awarded

attorneys' fees pursuant to the TCP A··.

According to the TCP A "Exercise of the right of free speech" means a communication

made in connection with a matter of public concern. The business transaction between Campbell

and Parks' clients was never a matter ofpublic concern and looking at the Ripoff Report

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 7
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
defamatory statement full oflies and false representation, the Campbelrs were never a client of

Mrs. Parks so false infonnation is not a matter of public concern. The Statute also says that a

court may not dismiss a legal action under this section if the party bringing the legal action

establishes by clear and specific evidence a prima facie case for each essential element of the

claim in question. Defamatory statements classified as libel or slander must be statements that

are untrue, and the person making the statement must know that they are untrue. What is a lie

and known to be a lie when made with malicious intentions is not protected in the exercive of

the right to free speech and what is a lie ami is known to be a lie when made with malicious

intention is not a matter of public concern. In the Motion to Dismiss hearing on Mar. 22, 2016

Parks provided evidence in the hearing supported in her Plaintiffs' Response to the Campbell

Defendant's Motion to Dismiss on Mar. 21,2016 (CR:118-253) and in Attomey Jason Berent

Affidavit filed on Mar. 21,2016 that the trial court should not dismiss Parks' lawsuit. The

following evidence was submitted to evidence deceit, malicious intent, attempts to subvert the

truth, and knowledge/acquiescence by the bank:

1) A malicious/threaten text message from Josh Campbell to Parks stating, .. 'I'm going

to make an audience so you your slander will stop."

2) Af1idavit of Tonya Parks,

3) The defamatory posting on Rip-off Report,

4) Text message from Parks to Campbell requesting loan status because the title

company inforn1ed her the buyer was not going to be closing on that day and she had

not heard from the Campbell's,

5) An email from the buyer to the Campbells stating that Parks has been nothing but

professional and helpful,

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 8
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
6) An email sent from Parks to Campbell stating the buyers could lose the home they

were attempting to purchase and all the money exceeding $1 000 they had already

spent in eamest money, inspection and extension,

7) Email from the Campbells stating that the buyers loan was approved/eligible but

changed to refer/eligible which would cause an additional delay,

8) A demand letter from Affiliated Banks lawyer,

9) Rip-off report Documents stating the posting was from the Campbell's,

10) Affidavit from Tiffany Martin setting forth transaction chronology and that the

posting on Rip-off report was very similar to their transaction but identified the

"wrong bad guy"' meaning the Campbells were the problem not Parks. She states

Parks was always there for them and she was always very knowledgeable and very

compassionate. She always kept them in the loop and maintained good

communication. Without Parks they would have never been able to buy their home.

11) Letters from Buyers thanking Parks for everything she did to help them get into their

home,

12) Deposition of Campbell stating that he works in the late evening to does work for

Affiliated Bank at home which was approved ami known by Affiliated Bank.. That

he feels its ok to ''lie.'' The bank withheld emails and/or documents that the bank

provided his lawyers and he did not know \Vho was paying them,

13) An email from Josh Campbell to Parks and the buyer that was sent on Wed. Sep. 3,

2014 at 3: 15 am around the same time the Campbells wrote the posting on Rip-off

Report which would show that he was working,

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 9
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
14)An email from the buyer on Sept. 2, 2014 at 11:13 \Vondering why they were not

closing the next day,

15) An email from the listing agent on Sept. 5, 2016 stating "let's get this to the finish

line,·· and to hang in there because of all the delay Parks and the listing agent just

wanted to get the transaction closed for the buyer and seller,

16) The HUD statement for closing,

17) An a affidavit from Jason Berent providing 115 pages of the multiple felony history

of Josh Campbell and showing that he was on probation for one of the felonies when

At1iliated Bank hired him,

18) Along with lots of other evidence that would show none of the defendants should

have been dismissed.

All of which was submitted to the lower court in Plaintiffs' Response to Defendant

Campbell only Motion to Dismiss.

(Some of the evidence is attached in Appendix 23)

Josh Campbell who was a Branch Manager for Affiliated Bank only provided his

personal atl:idavit with no supporting evidence of all the claims against him.

Katherine Campbell had no motion to dismiss filed within the court only filed a

personal affidavit with no additional evidence to support the dismissal.

Affiliated Bank the employer of Josh Campbell and Katherine Campbell had no

motion to be dismissed and had not filed any summary judgment. They also did not

provide any evidence of any claims against them mentioned in Parks petition to support

their dismissal.

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION I0
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
During the hearing on Mar. 22, ~016 Judge Montgomery and all the law)'ers had the

following exchanges (the full transcript to this hearing is a part of the trial court record and or

reporter's record filed in this court and Defendant's Campbell Deposition transcript attached to

Plaintiffs Response to the motion to Dismiss incorporated her by reference):

THE COURT: So, it sounds like maybe the Campbells were saying they were preapproved and
weren't really for a home. That's what I'm getting out of it. Now if that's the case, then the
Campbe/ls set in motion this whole problem with Mrs. Parks. I realize this is coming in late, but
--and it's very concerning to me.

MR. BERENT: And also, you know, in the context of all of these things that are false, I asked
Mr. Campbell in his deposition on page 95, "Is it ever okay to lie?" He says, "Even under anv
circumstance is it okay to not tell the full truth? Yes." That's on page 95.

MR. BERENT: Okay. The elements for business disparagement, defendants published false and

disparaging infom1ation about plaintiffs, with malice, without privilege, that resulted in damages

to the plaintiff. Now, we've got the false and disparaging information about the plaintiffs that

we've seen in Exhibit A 1 with malice. In his deposition testimony lUr. Campbell says plainlv

he was frustrated with Tonva Parks, and he wanted her out of his hair. Ami he acted

intentionally, and then he lied about it. His subsequent conduct alone shows malice.

So the lower court knew that the Campbell's statements were false, thereby not

dismissible under TCP A. Furthermore, the lower court erred by dismissing Defendants

Katherine Campbell and Affiliated without motions or proper evidence supporting dismissal of

Plaintiffs causes of action. Here is another exchange:

MR. BERENT: That's fair, you're Honor. The other issue is going right to your point. Ms. Parks

is not a bad actor. Mr. Campbell is a twice convicted felon and admits that he lied, not only to

Ms. Parks, but to the bank, and also that his posts-

THE COURT: So, you're going to let the bank off: right?
MR. BERENT: No. Your Honor. There are other issues as to the bank for another day.

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION ll
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
MR. BROWNING: Actually. maybe not for another day. Your Honor. He's required to prove
evidence as to each essential element of causes of action. He's alleged causes of action against
the bank, and there's no evidence supporting those.
THE COURT: But you didn't bring a motion to dismiss today, right?
MR. BROWNING: Your Honor, it's based on the movant's motion to dismiss. The language in
the statute refers to the action. Not part of the action, not some of the claims. Refers to the legal
action. And, Your Honor, it's undisputed. as we pointed out before. that he's alleged respondent
superior where somehow, we're vicariously liable when. in fact, the only evidence, undisputed
evidence, is that this was done at Mr. Campbell's residence at three in the morning on his
home computer at his home IP address.
THE COURT: The fact that he was at home doesn't bother me if it was in the course and scope
of his business if he worked at home in his business.
MR. BROWNING: And he also testified, Your Honor, and it hasn't been controverted, that he
was not doing the bank's work. This is his own time, using his own equipment.

Actually, it was controverted because Plaintiff provided evidence to the trial court that

would show Josh Campbell was working for Affiliated Bank at the time of the posting

entered on Ripoff Report website. The posting on Ripoff Report was written around 2 or

3am in the morning on Wed, Sept. 3 2014 and he also sent an email to Parks, the buyers

and Katherine Campbell around the same time \Ved, Sept. 3, 2014 at 3:15am. This entire

incident came from a transaction in which the Camp bells were working for Affiliated

Bank. Parks did not have any relationship with the Campbells outside of them providing

loans for her clients in real estate. They were never a client of Parks. She also would not

have met them if they were not allowed to provide mortgages for Affiliated Bank who gave

them the license and branch manager position to act on their behalf and operated a

business on the behalf of Affiliated Bank.

THE COURT: I would think it would be outside his scope.
MR. BROWNING: Exactly. Because there's nothing proving that element or any element, for
that matter. ofthat cause of action, then there's nothing to support keeping the bank in here. And
the bank should be included as far as being dismissed.
THE COURT: The only pleading from you against the banks is in the respondeat superior?
MR. BROWNING: He's also alleged negligent hiring. negligent supervision, and negligent
retention. However --

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 12
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
THE COURT: Wait. wait. Negligent supervision, negligent hiring, m1d what?
MR. BROWNING: And negligent retention. Your Honor. Again, the only evidence --and
there's no evidence as to any of the elements before the Court as he was supposed to bring, much
less any essential elements. The only evidence is that Mr. Campbell did this on his own time at
his home on his own equipment his home computer. without the bank's knowledge. And, in fact
when he was asked by the bank, did you do this, he lied to them. So, Your Honor, 1 don't see
how that's negligent hiring, retention, or supervision. When we did find out, we fired him.
Now. we don't have the burden -- it's his burden to come forward with evidence to support each
essential element of every cause of action alleged in the lawsuit. not just the communication
related ones. He has not done that at all with regard to my client, m1d the bank should be
dismissed.
THE COURT: Okay.
MR. BERENT: Do you want a response, Your Honor?
THE COURT: No, J don't need it. Okay. The causes of action against Mr. Campbell are what?
MR. ROSSINI: They are --
MR. BERENT: Here's a copy.

From this exchange - The Court would not let Jason Berent respond after Mr. Brow11ing

so that he could show cause on why the bank should not be dismissed. The lower court ened by

dismissing defendants' with motion and in contravention to the evidence before her. Despite

Browning assertions. evidence was present that Josh Campbell defamatory comment was posted

while in the course of also sending work emails.

Also in deposition "1,.hich afitll copy ofthe transcript was submitted in trial court

Plaintiffs· Response to lvlotion to Dismiss and is part ofthis trial court clerks record. Jason

Berent asked Josh Campbell what his position was and he stated Branch lvlanager. He said his

responsibilities were to originated loans, build a team. make sure they were in compliance. train,

educate staff: hire crew. do payroll. met with clients, did marketing. fixed problem, created a

culture. made phone calls, responded to clients, took application, assessed credit reports,

determined whether or not people were ready to fully applyfiJr a loan, he dissolved or solved

conflicts and he commonly andjrequently worked late. He also said he ·would sometimes sleep

at the office and take work home after midnight. I also said that he 1vould sometimes ·work until

1, 2, 3, 4 o'clock in the morning to get work done because he would lose track l?f'time. He also

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 13
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
said he was given a lap top by Affiliated Bank and was able to use that computer at home.

(Appendix 23A)

Also in the deposition there was some discussion about emails that Campbell wanted to

submit in this case but the bank would not allow or let him have indicated that they originated

from a bank issued computer.

Here are a few statements also discussed in the deposition transcript of Josh Campbell

provided to Judge Montgomery: page 98 Campbell said, ·'I was very clear with the bank as to

what happened.''

He also said after being asked if a document of importance was produced on page 104,

his response was, "No, it was not. This was- this was the email that we could not find. I

know that we read the email together at the bank, but once we were gone, we had no more

access and we've- we were advised not to get email. We wanted the email. This is the

foundation of what started this. So, the bank was withholding evidence requested and the

bank clearly knew what happened, but they did not immediately tire Campbell until Parks

notified the bank of the information that came in from the Ripoff Report investigation revealing

the IP address of the Campbells confirming that Campbell defamed Parks while working tor the

bank.

Parks notified Atliliated Bank of the defamatory posting on Sept 11, 2014 by providing

evidence of emails and text messages from Campbell to Parks and Campbell to the buyer which

would show that the Camp bells made the negative posting because of the similar wording,

timing and threat Campbell to Parks stating he was going to make an audience of her. Even

though Afliliated Bank is stating the Campbells lied to them, from the deposition noted above,

Affiliated Bank clearly new what happened. When Parks reported the posting to Kerri White

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 14
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
who was the compliance officer for Affiliated Bank, Parks asked Ms. White if she thought that

the Campbells made the negative posting, she said, "I think they did, but you will never be able

to tind out because the posting is anonymous." Affiliated Bank did not terminate the Camp bells

immediately contrary to Mr. Browning's assertions, Atliliated Bank did not terminate the

Campbells until July 24, 2015, almost 1 year after the defamation posting when Parks could

prove the IP address. Had Campbell not been working for Affiliated Bank. under its authority,

Parks would not have met them or transacted business with the Campbells.

It is also clear, from the deposition present to Judge Montgomery that Affiliated Bank

accepts responsibility for the Campbells by providing them with free legal defense because he

did not know who was paying them. This was told on record before J. Montgomery during the

hearing.

John Browning was in fact the one who told Judge Montgomery that she had to dismiss

all parties in the lawsuit including Affiliated Bank. John Browning was able to orchestrate this

dismissal because of his improper influence on Judge Montgomery and she went along with him

because of their relationship. The court did not follow the law. made up law as they went along

to get all parties dismissed and blindly agreed with everything Browning presented. There were

no grounds to dismiss any party in the Parks lawsuit with her evidence she provided to the Judge

and this court erred in not overruling the lower court's decision. Parks lawsuit was not frivolous

because it was supported by evidence on all defendants.

Another important fact to take notice in this motion, is that before Parks filed this lawsuit

on September 2, 2015 she tried to mediate with the defendants (Affiliated Bank and Affiliated

Bank representative was also the only contact for Josh Campbell at this time) so she personally

paid $1.425.00 for a full session of mediation at Gilbert Mediation Group with James J. Juneau

APPELLANTS MOTION FOR EN BANC RECONSTDERA TION AND MODIFICATION 15
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
on June 30, ~015. Parks found out through her own efforts in gathering evidence for this appeal

that the mediator Mr. James Juneau works at the same Gilbert Mediation Group as Gregory J.

McCarthy who is the long time private counsel and long time friend of Affiliated Bank and

President Garry Graham. Mr. Juneau has been working with Gilbert Mediation Group since July

2008 and Mr. McCarthy has worked with the same firm since 2009. Gilbert Mediation is a small

mediation group in Dallas who at the time only had approximately 10 mediators. Parks ended

the meditation after 8 hours because she felt that the mediator was not being fair, impartiaL he

knew a lot more about Atliliated Bank than a mediator would know about a party, he was

showing signs of advocacy for Affiliated Bank and he also started making offers without

authority (meaning - he did not go back to Afliliated Bank to notif)' them she \Vas leaving to

make another otTer) from At1iliated Bank once Parks told him she was done with the mediation,

but Parks had no idea until a year or more later that the mediator was at a cont1ict of interest

because of his close ties with Affiliated Bank's in house cmmsel Greg McCarthy. Parks had a

gut feeling that something was not right and after tinding out about this connection between the

mediator and Greg McCarthy. her feelings were right. It will also be laid out in this motion all

the colluding. manipulation and cont1ict of interest which occurred in Parks attempts to find

justice.

All of the events that have happened in this case and you will see laid out in the motion

are a true example of obstruction of justice and the loss of the integrity of the judicial system!

''The parties have a right to a fair trial under both the United States Constitution and the
Texas Constitution. See In re Afurchison. 349 U.S. 133. 136. 75 S.Ct. 623, 625, 99 L.Ed. 942
(1955) (holding that 'fa] fair trial in a fair tribunal is a basic requirement of due process'); Babcock v.
Northwest ;t[emorial Hosp., 767 S.W.2d 705, 708 (Tex.l989) (holding that. '[i]n Texas, the right to a fair
and impartial trial is guaranteed by the Constitution').'' Metzger v. Sebek, 892 S.W.2d 20, 37 (Tex. App.-
Houston [I st Dist.] 1994, writ denied).
An employer can be held liable for the acts of an employee acting within his managerial
capacity. Purvis v. Prattco, Inc., 595 S.W.2d l 03 (Tex.1980).
Even when an employee acts maliciously against a third patty, an employer can be held

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 16
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
liable for the negligent hiring of an employee who acts maliciously. Duraud v. A1oore, 879 S. W.2d 196
(Tex.Civ.App.-Houston [14th Dist.] 1994, no writ).
"An employer may be liable for punitive damages for an employee's misconduct if: (1) the
employer authorized the doing and manner of the act; OR (2) the employee was unfit and the employer
was reckless in employing him; OR (3) the employee was engaged in managerial capacity and was
acting in the scope of his employment; OR (4) the employer or manager of the employer ratified or
approved the act. King v. McGuff, 149 Tex. 432,234 S.W.2d 403,405 (1950)." Durandv.lvfoore, 879
S.W.2d 196,202 (Tex.Civ.App.-Houston[l4th Dist.] 1994, no writ.

Argument

Appellant respectfully submits that Court has erred in dismissing this appeal and stating

Parks and Parks on the behalf ofPRF entered into an enforceable mle of civil procedure 11

agreement and was not put into "extreme duress" and coerced by all the Defendants, Defendants'

lawyers Jolm G. Browning and Jerry Alexander, Gregory J. McCat1hy working the behalf of

Affiliated Bank- Defendants' Lawyer Christopher Hansen, Gino J. Rossini working on the

behalf of Josh Campbell and Katherine Campbell and the trial court Hon. Sally Montgomery to

dismiss their claims against all Defendants, by claiming Appellants' Motion for New Trial would

be dismissed by misapplication of a Rule of Civil Procedure. This Court also erred in abating the

appeal, especially to a Court already partial against Appellants.

This Opinion relies upon the "Findings of Facts and Conclusions l~{Law'' vvTitten by

John BroVvning for Judge Akin prior to the hearing held on Feb. 16,2018 which should be

reversed because the trial court's findings and conclusions oflaw are clearly and unequivocally

at odds with the facts and evidence presented at the evidentiary hearing on Feb. 16, 2018.

Specifically, the Court erred by:

(1) Stating they felt by abating the appeal this court would allow Parks to have her due

process by conducting a hearing to see if Parks entered into an enforceable agreement

pursuant to rule of civil procedure 11 and they erred by stating they do not need to address

Parks concerns about abating the appeal back to the trial court because:

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 17
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
(a) This court had enough information in the Appellants' briefs. oral argument on Dec.

12, 2017 and Appellants' letters tiled in this court to rule on the appeal without abatement to a

biased lower court. This abatement was fundamentally flawed and unconstitutional in sending

Appellants back to the same court that twice misapplied law in order to manipulate Appellant's

case and had a conflict of interest with defense counsel;

(b) It failed to properly protect the Appellants' constitutional rights by not ordering the

trial judge to recuse herself and send Appellants to an alternate county so that there would be an

unbiased or impartial Judge who did not have improper influence in the "Findings of FclC'f and

Conclusions of Law" (i.e., Appellant" s rights to procedural due process under the 14th

Amendment to the United States Constitution and/or the equivalent due process of law provision

in Art. 1, Sec 19 ofthe Texas Constitution).

(c) They put Parks in an unsafe and physically threatening environment where they knew

from Parks· own letters and briefs to this court that she would feel unsafe and threatened by the

Ot1icers of the Trial Court who could potentially do more harm. Parks was in fat physically

threatened and intimidated during the proceeding: Parks was the only African American woman

in a room full of4 Caucasian defense la\\'yers {John G. Browning. Jerry Alexander, Gregory

McCarthy and Ryan Cole)- 1 Caucasian Judge (Judge Ted Akin) who was coached/hired by

Hon. Sally Montgomery at the last minute, 1 Appellant Lawyer (Baltasar Cruz) and during the

entire hearing the trial court had 5-6 Caucasian Bailiffs in the small court room at all times with

2 BailitTs sitting on the directly next to Parks on her right in the jury box seats, 1Caucasian

Bailiff sitting directly behind Parks inside the bar in the extra chairs for additional counsel. 1

African American male Bailifi who was standing next to the Judge's bench and two others

Caucasian Bailiffs standing at each entrance door to the court room or sitting in the pews as you

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 18
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
come into the court room plus there was also another Caucasian male (who said he was an

intern) sitting next to Judge Montgomery's Bailiff (the one who had previously physically

threatened to take Parks to jail in the Motion for New Trial Hearing (RR Vol4, 25:5, full

transcript Appendix 2). Parks also witnessed Attorney John Browning speak to the court intern

several times who was directly sitting to the right of Appellant Parks. This hearing was

facilitated by this Court of Appeals Fifth District of Texas at Dallas to allow the trial court Judge,

Defendants and Defendants' Lawyers the ability to abuse, intimidate. harass and antagonized

Parks to give up her case through financial intimidation, litigation fatigue and to accelerate

Appellant's legal fees all knowing that the intended result of this appeal was not going to change

because it was premeditated which subvert Appellant's right to relief through physical

intimidation.

(2) Stating this Court had resolved the issues on appellants assert on how Judge Akin

abused his discretion by entering "'Findings of Fact and Conclusions of Law" because they

say an evidentiary hearing was held between the parties and conflicting evidence was

presented at the hearing, but yet they ignored the clear and weight of evidence and on

which this Court could have ruled without abatement based upon the lower court's March

24,2016 and June 13, 2016 hearing transcript made a part ofthe appellate record along

with Appellant Parks' letters to this court, briefs and oral argument;

(a) The ·'Findings ofFact Conclusions ofLaw" (Appendix 9) was written prior to the

hearing by Attorney John Browning and given to Judge Akin at the end of the hearing on Feb.

16, 2018, and was adopted verbation despite of the weight of clear evidence to the contrary.

(b) The on(v additional items of evidence added to the ·'Findings ofFacts and Conclusion

ofLaw" (Appendix 10) from the hearing was #18- Parks is a graduate of the University of North

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 19
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
Texas with a B.B.A degree (which is actually a Bachelors in Fine Arts in Fashion Design with a

minor in Marketing), # 19 - Parks is a licensed Realtor and owns and operates her own company,

and #20 - Parks is at least 42 years old and is a "sophisticated businesswoman", which is an

additional attempt to humiliate, intimidate and harass Appellant Parks.

(c) Because of these 3 inserts of accurate evidence presented in the hearing to generate

the "Findings qfFacts and Conclusions l~{Law. ,. this Court erred in concluding that, Parks was

not coerced or put into "extreme duress". Someone's age, education and success in a specialized

business practice does not negate J. Montgomery's clear misuse oflaw and intimidation that is

clear on the record to cause Parks to unwittingly accept a deceptive choice. Parks is not a lawyer

and had never practiced law or acted in a pro se manor for herself or anyone else prior to the

hearing on the Motion for New· Trail on June 13, 2016 so when her lawyer, Judge Montgomery

and the Defendants Lawyers misrepresented a civil procedure rule to confuse Parks into thinking

her case was over by operation of law and with Hon. Sally Montgomery haranguing Parks'

multiple times (for half an hour or longer) that her case was over and with the Bailiff threatening

jail, Parks could only know from what she was being told that she had no other means of

protection and in her eyes there was nothing else she could do about the judgment against her

and her compan.v. From what Parks was being falsely told, she had no choices except (I money

judgment against her or no money judgment against her, which can be read in the following

exchange:

The Court: Okay. I have many- if you wanted to file a motion to recuse, that would have
been fine, too. But the time is over because the case is over. (RR, Vol 4; 15: 15-17)
(Appendix 2)

Judge Sally Montgomery and the defendants' lawyers also said only Parks a non-lawyer

could on(v choose knowing Parks did not know the law. while Parks' Lawyer Jason Berent stood

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 20
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
mute. likely worrying about a malpractice claim had Parks not agreed to the agreement. for

losing Parks' case with late filings (Appendix 2 pg 13 lines 14-16). one of which was noted in

this appeal with Josh CampbelL possible sanction from J. Montgomery toward him which was

discussed in the breaks, the abusive professional assassinations written in John Browning's

Deji.mdant Affiliated Bank's Re,sponse in Opposition to Plaintiffs' Motion for New Trial and

Alternative Motion Vacate. Mod(!}•, Correct or Re.fimn Judgment (Appendix 3 exhibit F- also a

part of clerks record) which started and caused additional tension before the hearing between

Berent and Parks and many other issues, is why Parks believes that during the Motion f()f New

Trial, Mr. Berent moved into the "conspiracy to defraud'' the plaintiff with the trial court Judge

and all defense Lawyers. Also. in that hearing the record states:

Ms. Parks: So, basically, I lost my case because of date? And so, my name, I don't
get a fair trial. The bank is representing Josh.

The Court: It is what it is. And so, you want to get rid of this judgment against you
and just have the case dismissed with prejudice or do you want a judgment against
you? Those really are your two choices.

Ms. Parks: And neither one- I've walked away to two years. I've just let my whole
life go.

The Court: I'm out of time. It's 3:20. You've got to make your choice.
Ms. Parks: I just feel set up
The Court: I can't help it
Ms Parks: I just feel set up
The Court: I know you're not happy about this, and I understand. But as the judge,
I have to follow the law. So, you have to choose-
Ms. Parks: But are you supposed to let us go if you know the other side?
The Court: What'!
Ms. Parks: Didn't John Browning represent you during your campaign'!
The Court: No.
Ms, Parks: Are you sure? It was legal services. Legal service that-
The Court: It ended up I didn't use him.
Ms. Parks: Oh, but you still paid him $3,000'?
The Court: No
Mr. Browning: No
Ms. Parks: It's expenditure.

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 21
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
The Court: I did not.
Ms. Parks: It's expenditure. Did you do an amendment?
Mr. Browning: Judge, I don't think this is relevant to anything
Ms. Parks: I just feel set up.

(RR, Vol4; 14: 2- 15: 5) Parks was also confused on why Hon. Sally Montgomery and

Mr. Browning would not be honest or not admit to their past lawyer-client relationship noted on

Montgomery's campaign finance report pages (in Appendix 3) that Parks was holding up during

this exchange listed above. Now knowing through the actual testimony given by John

Brmming's own admission when refusing to answer questions on the hearing of the Motion for

Recusal based on Attorney-Client privilege that they did in fact have a history of lawyer-client

relationship, but choose to deny it in the Motion for New Trial when asked by Parks.

With all that said. from the actual evidence presented during the evidentiary hearing, no

matter what your age is, your education or your success in business one can still be fraudulently

baited into an agreement that should be unenforceable and voided due to fraud, deception,

Parks' timely appeal and the court's coercion placed upon Iter..

Mr. Browning later stated on the record under oath (transcript excerpts - Appendix 13

pgs. 12-29) in the Recusal hearing held on Jan. 30, 2018 for the Motion to Recuse.!

Aiontgomery held with Judge Emily Miskel from 470 111 District Court (Family Law Judge) in

Collin County (Judge Miskel was selected and Ordered by First Administrated Judge Mary

Murphy), that he couldn't answer questions about this representation of Judge Montgomery

based upon Attorney-Client privilege.

The Recusal motion was denied even though in the hearing Judge Miskel: 1) saw

certified campaign finance report evidence showing Judge Montgomery had a conflict of interest

with the Defendant's Lawyer (because John Browning and his previous firm consulted J.

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 22
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
Montgomery and paid John Browning personally $3.000 in Nov. 2013 (Appendix 19) to his

home address and to his firm $240 in Feb 2014 and $300 in May 2015 (which could have been

invoiced from 2014 before Mr. Browning departure in late 2014- Browning joined Passman and

Jones in January 20 15) also knowing Parks lawsuit was tiled in Sept 2, 2015 and assigned to

Montgomery which was 3 to 4 short months after that payment, 2) saw evidence that Passman

and Jones. P.C., is the same finn of Judge Montgomery's former campaign chairman and is the

current law fim1 of John Browning and Jerry Alexander, 3) she also heard testimony proving J.

Montgomery and John Browning knowing lied about the relationship on the record in open

court, 4) she also heard evidence that would show Judge Montgomery and the Defendants'

lawyers knowingly misrepresented the rules of civil procedure to coerce and defraud the Plaintiff

/Appellant (Judge Miskel travels and conducts a law course with John Browning (Appendix 16)

so Judge Miskel had to have known Browning knew J. Montgomery, still had plenary power and

the misrepresentation of the rules of civil procedure was only an attempt to intimidate. coerce.

defraud the plaintiff and had improperly applied TCPA). 5) saw evidence to support Parks' then

Lawyer, Baltasar Cruz's assertion that J. Montgomery would continue to retaliate against

Appellant because of the known cont1icts in their past history, 6) heard testimony from Mr. Cruz

under oath stating that J. Montgomery was heard making racial comments by using the word

''11igger" to reference African American churches who were a party in her court room (Appendix

13 pg. 20), 7) by reading the transcript and seeing how Judge Montgomery had a total disregard

of the law when it came to the TCPA statute to dismiss Parks' lawsuit and not knowing she still

had plenary power when she did, and had to have known she did, would show that Montgomery

had a prejudice or bias towards Parks for pointing out the conf1ict of interest and opposing her

friend and previous Lawyer John Browning (Judge Montgomery has been a Judge since the late

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 23
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
90's so over 20 years), 8) J. Miskel also heard testimony from Judge Montgomery's fonner court

reporter Cayce Coskey stating Montgomery has retaliated against individuals who challenge her.

Parks tiling this appeal has challenged Judge Montgomery and Parks then lawyer. Baltasar Cruz,

was a Political Opponent of Judge Montgomery's in the late 2000's, 9) J. Miskel was also

presented and accepted evidence on a case law opinion from this court, No. 05-00-00769-cv

(Appendix 20) stating "Judge Sally Montgomery clearly abused her discretion by signing two

orders granting a new trial while a motion to recuse was pending and this court voided those

orders because she committed a clear abuse of discretion:' This court also states in that opinion,

"this is the second time in as many weeks that it was forced to address a trial judge's actions that

appears to be the result of animosity stemming from a lost election. We do not condone such

conduct and expect it to stop." and 10) read on the transcript of the Motion of New Trial where

Judge Montgomery states on the record that Parks could ''tile a motion to recuse. that would

have been tine, too. But the time is over because the case is over." (Appendix 2) based on the

judge's misuse of a rule of civil procedure (commonly used) to force Appellant to abandon her

case;

(d) As the Supreme Court of Texas has noted "[b]ias, in its usual meaning, is an

inclination towards one side ofthe issue rather than the other" while "[p]rejudice means

prejudgment." Compton v. Henrie. 36-1 S. TV2d 179, 181 (tex. 1963). Judge Montgomery's on-

record advocacy for the Defendants intentional misapplication of the laws and treatment toward

Parks in all hearings before her show that with out a doubt the judge had clear biases and/or

prejudices towards Parks;

(e) Public policy demands that a judge appear impmiial so that no doubts or suspicions

exist as to the fairness of the integrity of the court. Aetna L{le lnsur. Co. v. Lavoie, -175 U.S. 813,

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 24
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
106 S. Ct. 1580 (1986). To promote confidence in the justice system, not only must the judiciary

be fair and impartial, the judicimy must appear to be fair and impartial. See In Re .Murchison,

3-19 U.S133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955) ("justice must satisfy the appearance of

justice"): Nevv·come v. Light, 58 Tex.141, 145 (1882) ("It is the design of the law to maintain the

purity and impartiality of the courts and to insure for their decisions the respect and confidence

of the community."); J\Janges v. Garcia, 616 S. W2d 380. 382 (Tex. App.-San Antonio 1981, orig.

proceedings) ("One of the hallmarks of our system of justice is the constant attempt to prevent

even the probability of unfairness."),

In addition to the grounds set forth above. Judge Montgomery should have been recused

in order to avoid the appearance of impropriety, and in the interest of prudence, fairness and to

maintain and promote the community's confidence and respect in the judicial system. Sun

Exploration and Prod. Co. v. Jackson. 783 S. W2d 202 (Tex. 1989) (Spears, .J, concurring)

("The judiciary must be extremely diligent in avoiding any appearance of impropriety and must

hold itself to exacting standards lest it lose its legitimacy and suffer a loss of public confidence.")

(f) The abatement Order by this court to hold the evidentiary hearing had this purpose

and effect to accelerate Parks' legal fees because and cause litigation fatigue the evidence on

record in the lower court transcript could have been, but was not used in generating the

''Findings l?(Facts and Conclusions ofLaw" or otherwise determine the veracity of Appellant's

claims. It was a waste of time, money. an impediment to justice and an Obstruction of Justice

because ofjudicial misconduct the out come was detennined before Appellant appeared in court,

to fmiher wear and burden her.

(3) Stating that Affiliated Bank and Campbells complied with the agreement, and

appellants breached the agreement;

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 25
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
(a) on November 22, 2017, John Browning, on the behalf of Joshua Campbell and

while the appeal was the subject of this court's abatement sent Parks lawyer, Mr. Cruz, post-

judgment discovery request tmbeknownst to Parks' Plaintiffs counsel due to technical glitches.

After Mr. Cruz filed Appellants' Motion to Recuse Judge Afontgomery on Jan. 8, 2018. Mr.

Browning sent Mr. Cruz an email on Jan. 9, 2018 threatening to file a motion to compel and for

sanction if Parks does not respond by Jan. 17, 2018 to the post-judgment discovery request.

This was Appellees' retaliation to the filing of the 1Hotion to Recuse. Brow11ing uses the law to

further harass and intimidate Appellant. Mr. Browning did not say anything about Mr. Cruz not

responding to this request at the Oral Argument in this court on Dec. 12, 2017 or any other time

after the date the discoveries were actually due. In oral argument on Dec. 12, 2017, Mr.

Browning actually said that, --my clients can still direct me as counsel to go after that, I can

represent to you in the court as of the current date that has not happened." In oral argument. Mr.

Browning also stated he did not have the authority to decide whether the Campbells were going

to go after (pursue) Parks for the judgment of legal fees which is not be true - taking notice of the

threatening email he sent to Mr. Cruz written by Mr. Browning. After receiving the post-

judgment discovery, Parks went to speak to the Campbells at their otlice to ask the Campbells if

they were attempting to collect on the judgment and Katherine Campbell did not know what

Parks was talking about because they had not spoken with Mr. Browning so she nor her husband

had authorized Browning to do so. Mr. Browning is clearly not being honest to this court. So

while Browning is arguing that Appellant is bound by an agreement, he attempts to collect on a

judgment in contravention of the agreement without client knowledge, and lies about it to the

Court evidencing his use of process for improper purposes. Mr. Browning is clearly trying to

intimidate and retaliate against Appellant Parks who is an African American woman who owns a

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 26
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
small boutique company while she attempt to get justice from the ones who destroyed her name

and business. This same Court, in which Appellant attempts to get justice happens also to be in

the same court in which Mr. Browning is seeking to be a Court of Appeals Justice - place 11 - in

the Nov. 2018 elections.

(4) Stating that .Judge Akin held an evidentiary hearing to determine whether there was an

agreement between the parties and whether any agreement was enforceable, and which

conflicting evidence was presented at the hearing.

(a) As stated above this hearing was held and evidence was presented that this agreement

should be unenforceable due to the coercion and duress use to create it, the defective docket and

by prompt appeal and any findings by this Judge should be reversed and voided because of the

unla\\:ful misconduct and collusion of the court and defense counsel.

b) An agreement should not be enforceable if it's a product of misrepresentation,

coercion or duresss and conflicts of interest with supported convincing and overwhelming weight

of evidence would this agreement should not be enforceable.

(5) Stating that they reviewed de novo and that ••[t]here was no coercion," and ••[t]here was

no coercion or duress" based upon Judge Akin's "Findings of Facts Conclusions of Law"

paragraph 25 and 28.

(a) Paragraph 25 states There was no coercion. (Written by John Browning for Judge Ted

Akin) ''Coercion exists when a party, by the unlawful conduct of another is induced to enter into

a contract by depriving him of the exercise ofhis free will." Man Industries (India) Ltd. V.

Midcontinent Express Pipeline, LLC, 407 S.W.3d 342 (Tex. App.- Houston [141h Dist.] 2013 no

writ. When the lower court and Appellant's lawyer agreed with defense counsel in the

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 27
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
misrepresentation of the law. and used it to manipulate Appellant into believing here was over

and she would be sanctioned with attorney's fees, it created prima facie coercion on the record.

(b) Actually the conduct was unlawful by the trial Judge and all defense lawyers working

on behalf of their clients by fraudulently misrepresenting the law to induce Parks' consent and

which deprived Parks the exercise of her free will by wrongfully influencing. making threats,

lies, restraint and false urgency into believing that her case was over because of this she only had

one logical choice: to dismiss her claims against all defendants for the removal of the $96,000

awarded legal fees or rick having a judgment that could be executed against her in addition to the

tremendous personal and business losses already suffered .

With all the false information, threats of sanction and threating to take Parks to jail,

placing time pressures upon Parks (Appendix 2 pg 14line 4-5 and pg 15 lines 1-7), her attorney

standing by silently while she was coached by Judge Montgomery directly on how to accept the

deal after Parks states on the record, she is "forced'' to accept the deal, and while Judge

Montgomery stood at the defellse table with defense counsel, clear and convincing evidence

exist that the agreement was the product of duress and coercion and is unenforceable.

Parks was in a oppressive and hostile environment where none of the otlicers ofthe court

gave correct counsel or had her best interests in mind for receiving a fair outcome for Parks

loses. When the Officers of the trial court conspired to misrepresent the law TRCP 329b(e) in ex

parte discussions to then wrongfully convince Parks that her case was over because they knew

this would be he only way to get Parks to enter into an agreement because they failed at 2 out of

3 forced recesses in which they had not been able to break her. Only by misrepresenting the

rules and minutes/hours of threats and intimidation did they get Parks to agree to dismiss her

claims.

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 28
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
(c) The 1st break/recess consisted of only female Tonya Parks, her lawyer Jason Berent,

her father Bennie Gibson. Defendants' lawyers John Browning. Jerry Alexander, Greg

McCarthy, Christopher Hansen, Gino Rossini. This break lasted approximately 34 minutes with

Defendants' lawyers working on the behalf of their clients Affiliated Bank. Joshua and Katherine

Campbell- full of threats of sanctions, attorneys' fees, judgments, jail, etc, (illegal threats

without merit) with no consideration to the loses Parks and her company had already sufl:ered

because of the defamatory online posting while working for Affiliated Bank. Parks walked out

of the conference 'still not agreeing to dismiss the claims because she wanted a fair and impartial

trial. Parks learned after the judgment entered on March 24. 2016 and before the hearing on the

Motion for New Trail on June 13. 2018 through her own investigation that Judge Montgomery

and John Browning had a prior relationship that would show by her ruling and actions toward

Parks at the hearing for the Motion to Dismiss that Judge Montgomery was not impartial.

(d) The 2nd break/recess consisted of the same people for approximately 23 mins, but this

time the defendants' lawyers left the last few minutes leaving Jason Berent, Bennie Gibson and

Parks to speak privately. In this break, the defense lawyers went back into the court room with

Judge Montgomery with the door closed (allowing tor ex parte discussion) and toward the end

Judge Montgomery opened the door after being with the defense lawyer alone to tell Parks. Mr.

Berent and Mr. Gibson that they needed to make a decision because she had grounds for

sanctioning Parks for bringing a frivolous lawsuit. The Defendants' Lawyers were able to hear

this exchange because the door was open. Parks tiled Bennie Gibson .•Ufidavit on Aug. 24, 2016

in this court to support these facts (Appendix 6) and additional items noted in Appellants·

Response to Appellees' O~jection to Bennie Gibson Affidavit tiled in this court on Aug. 30, 2016

(Appendix 7). In the response to the objection filed August 30, 2016, it says "Mr. Gibson was

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 29
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
also in the hallway \Vhen Jerry Alexander, John Browning, Chris Hansen, Gino Rossini and Greg

McCarthy left the courtroom before Tonya Parks and Jason Berent. While in the hallway,

Bennie Gibson witnessed Judge Sally Montgomery's BailitT call out John Browning's name to

escort him into Judge Sally Montgomery's chambers following the hearing on June 13,2016.

The other lawyers who were with John Browning at the time went also into chambers for a

private meeting. Tonya Parks' lawyer at the time Jason Berent was not in attendance at this

meeting as far as Tonya Parks knows." This would - along with - other assertions in this motion

-show ex parte communication between defendants' lawyers and Judge Montgomery and her

advocacy for the Defendants because in the Motion to Dismiss hearing Judge Montgomery states

that the Defendants were the individuals who caused the problems for Parks and that she hated

the Defendants Campbells' lied, but she still wrongfully influenced by the defense counsel to

dismiss all parties from Parks lawsuit by ignoring, misapplying and/or not interpreting the TCPA

statute as to all parties according to the actual law. including the Affiliated Bank without a

motion, and then awarded Detendants inflated and fabricated legal fees even with Montgomery

stating on the record in the hearing for the Motion for New Trial that:

"No, they didn't have their own motion pending at the time ofthe hearing. And the
issue of attorney fees was not fully discussed, I would agree." (RR vo14; 4: 17-19)

(e) After the 2nd break/recess- Parks went back into court to obtain her day in court in

her hopes and prayers of getting a new trial with a Judge who had already threatened Parks.

Once the hearing started again this exchange occurred:

Court: Okay. So do we have any agreement'!
Mr. Berent: No agreements, Your Honor.
The Court: Okay I'm going to grant the new trial as to Affiliated Bank.

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 30
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
Mr. Hansen: Your Honor, there's one thing we were just talking. And it appears
that this hearing is after the 75th day, and the motion for new trial has already been
overruled by operation of law, it looks.
The Court: Has it'!
Mr. Browning: Yes, Your Honor.
Mr. Berent: I believe that's accurate, Your Honor.
Mr. Hansen: The 75th day was .June 7 following the entry of the judgment in this
case on March 24. Therefore, as of June 8 it's overruled by operation of law under the Rule
329b, subpart E.
The Court: I know the rules. I just don't know the dates.
Mr. Hansen: I'm sorry.
(f) Before this exchange Parks still wanted to move forward to get her Motion for New
Trial granted so that she could recuse J. Montgomery to get an impartial Judge who did not have
any long history or strong affiliation with the Defendants' lawyers like Montgomery has with
John Browning and Passman & Jones LLP. Judge Montgomery should have been recused, but
Parks did not know until after the judgment was \\Titten and tiled. J. Montgomery should have
voluntarily recused herself from conducting any proceeding in Parks case for any one or more of
the following reasons. 1) she has ·•an interest in the subject matter in controversy'' as
contemplated under Rule 18b.(a)(2) TRCP: 2) her "impartiality might reasonable be
questioned'', as contemplated under Rule 18. (b)( 1) TRCP: 3) she "has a personal bias or
prejudice concerning the subject matter or a party," as contemplated under Rule 18b.(b)(1)
TRCP; 4) she "has personal knowledge of disputed evidentiary facts concerning the proceeding",
as contemplated under Rule 18b.(b)(3) TRCP; and/or E) she ··is a material witness conceming
the proceeding", as contemplated under Rule 18b.(b)(4) TRCP.
(g) After the 3rct break/recess which was approximately 10 minutes, with he tirst few

minutes in the court room with everyone present while Mr. Berent studied the TRCP 329b(e) in a

law books, after which Parks and her lawyer went into a private room leaving J. Montgomery

and the Defendants' lawyers in the Court (again with an opportunity for ex parte discussion).

When retumed to the court room, this exchange occmTed:

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 31
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
The Court: Where are we?
Mr. Berent: Do we have an agreement?
Ms. Parks: I didn't really get to talk to you.
The Court: Come on up. I can't hear you back there.
Ms. Parks: I was just answering that I really didn't get a chance to talk to him to see
what--- to see, you know, what my parameters were, if that's something that I had to sign
off on.
The Court: All you have to do is say you accept their modifying the judgment where
there's no judgment against you:
Ms. Parks: And then after that ...
The Court: That's it, though.
Ms. Parks: Then there's no additional trial.
The Court: No, because you've run out of time.
The Witness: And why did I run out of time?
The Court: Because you're over 75 day on the hearing for the motion for new trial.
Ms. Parks: And who sets the hearing. Did the Court set the hearing?
The Court: I have nothing to do with that, except for my clerks.
Ms. Parks: No, so why was it set after the 75 days?
Mr. Berent: Ms. Parks is concerned that I did not set the hearing timely, and I'm
trying to explain that the clerk sets the hearing.
The Court: I didn't know about this issue. If I had known about this issue, we could
have set it sooner, but I didn't know about it.
Ms. Parks: So, basically, I lost my case because date? And so my name, I don't get a
fair trial. The bank is representing Josh.
The Court: It is what it is. And so you want to get rid of this judgment against you
and have the case dismissed with prejudice or do you want a judgment against you? Those
really are your two choices.
Ms. Parks: And neither one- I've walked away to two years. l've just let my whole
life go.
The Court: I'm out of time. It's 3:20. You've got to make your choice
Ms. Parks: I just feel set up.

APPELLANTS MOTION FOR EN BANC RECONSTDERA TION AND MODIFICATION 32
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
(g) The Texas Rule of Civil Procedures 329b subpart E clearly states:

If a motion for new trial is timely filed by any party, the trial court, regardless of
whether an appeal has been perfected, has plenary power to grant a new trial or to
vacate, modify, correct, or reform the judgment until thirty days after all such
timely-filed motions are overruled, either by a written and signed order or by
operation of law, whichever occurs first.

This means that J. Montgomery still had 30 days after the 75th day. giving Parks a total of 105

days, for J. Montgomery to grant a New Trial because Parks I'vfotionfor lv'e1t' Trial was timely

filed. All representations' that Appellants' case was over were fraudulent and/or erroneous. So

clearly knowing that all the defense la\v-yers were looking up the rule in the law books, surprised

by the defense's assertion, plaintifi' s lawyer had to time to look up the rule that had been

discussed ex parte, in plaintiffs' absence. Mr. Hansen said they were even talking about it while

they were in the room with Judge Montgomery and Parks was in the meeting with Mr. Berent

and her father before J. Montgomery walked in the room and threatened Parks with sanctions.

It is unlikely, with professed knowledge of the law, long history of practicing law,

through education. awards, accomplishment. etc (Appendix 17), that the judge's conduct was

unintentional, rather it was a connivance and scheme to defeat Parks' claims, manipulate Parks,

for the benefit of Defendants and their attorneys. One could only see that this was an attempt by

all the officers of the court to Deceive Parks a non-lawyer by fraudulently misrepresenting the

law ofTRCP 329b subpart E to get Parks to act in a way of not using her free will because she

did not know that the law clearly states that she had a total of 105 days not the 75 days they were

telling Parks. There is no way that the lmvyers and judge in that room could have made a

mistake like this other than to defraud the plaintiff into doing something she would have not

done if she knew she still had more days like Parks represented after the first t\vo breaks full of

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 33
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
threats. Parks consistently requested a new fair trail (which should have been given according

to the American Constitution) until the judge persisted with phony defense-biased options. Parks

did not understand why her case was over which can be seen in the exchange above because

Parks could not have known the law and Parks was being tleceived to by all present in the court

while her advocate was paralyzed by the idea of a potential malpractice claim.. It was a

complete Conspiracy and Collusion with the Actors o(the Court and the only person in the

room who was not privileged to this conspiracy was the plaintiffTonya Parks. Parks was

coerced into a dismissal of her case because Judge Montgomery at Dallas County Court of

Law #3, John G. Browning on the behalf of Affiliated Bank, Jerry Alexander on the behalf of

Affiliated Bank, Greg ~McCarthy on the behalf of Affiliated Bank, Christopher Hansen on the

behalf of Josh and Katherine Campbell, Gino Rossini on the behalf of Josh and Katherine

Campbell and Jason M. Berent all conspired through their collective acts to "coerce" and put

Parks in "e.l:treme duress" by their unlawful conduct to induce Tonya Parks and Tonya Parks

on the behalf of Parks Realty to enter into a contract which deprived her of the exercise of

free will and judgment. As Parks had shown when she did not agree to the same agreement that

was discussed multiple times in the first two breaks/recesses - then Judge Montgomery acting as

Judge said she was going to grant Parks a new trial - then Mr. Hansen after a discussion in the

courtroom outside of Plaintiffs' presence, lied about TRCP 329b(e), a final desperate means to

manipulate Parks so this was when the unlawful conduct of coercion starts. The consent is void

."iince it was not knowing, intelligently given aml was immediately revoked, Under Texas law.

the term ·'duress" rather then "coercion" is used when parties are seeking to avoid a contract.

One element of duress is improper or unlawful conduct and/or threat of improper or unlawful

conduct that is intended to and does interfere with another's person exercise of free will and

APPELLANTS MOTION FOR EN BANC RECONSTDERA TION AND MODIFICATION 34
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
judgment. The threat must be imminent and the party must have no present means of protection.

Further "duress'' must be shown from the acts or conduct of the party accused of duress as is

clear from the record in the case. With that said, the conduct was from the party accused of the

duress and it was very unlawful because it was a conspiracy to deceive/deprive Parks. Parks did

not have proper protection because her own lawyer was ineffective and assented to the

assertions being made against Parks. In addition, when Parks asked the court for permission to

go into the hallway to obtain advise from or consult with her father who was in the hall, J.

Montgomery denied Parks of that free agency to speak with someone who she knew had her best

interest since Parks had already stated on the record she felt that she did not have proper

representation.

Judge Montgomery has sho\\n through her own violation of the law and she has violated

her judicial oath (Appendix 21) that through conduct that breached her duty (which occurs

when one person has a duty of care toward another person but fails to live up to that standard,

which in this was the duty of fairness, truth and impartiality). A person may be liable for injury

case if their breach of duty caused another person's injury. Her conduct is a, breach of trust (any

act which is in violation of her duties) and she has obstructed justice (the crime or act of

willfully interfering with the process of justice and law especially by int1uencing, threatening,

ham1ing, or impeding a witness. potential witness, juror, or judicial, such as J. Akin, or legal

officer or by furnishing false information in or otherwise impeding an investigation or legal

process). Judge Montgomery has shown through her own actions that she was not preserving,

protecting and defending the Constitution and laws of the United States and Texas per her

judicial oath. With J. Montgomery going along with all the lawyers who she aided to

intentionally furnish false infonnation by misrepresenting and/or ignoring (to be ignorant of, or

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 35
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
unacquainted with. the disregard willfully; to refuse to recognize; to decline to take notice of) the

law to induce Parks into an agreement to dismissal of case for the defendants in contravention of

what was true and accurate. Parks would not have done (dismissed her case) if she knew what

under TRCP 329b subpart E really meant.

Per Judge Akin's and Jolm Brow11ing's findings, because someone is 40 plus years of

age, a college graduate, runs her own business and is a sophisticated businesswoman does not

mean they can't be forced to enter into a fraudulent agreement that should be voided. It also

should not matter if the party had a lawyer where that lawyer was clearly not protecting the

interest of his client (which they acted on). rendered ineffective after which the Judge spoke only

and directly to Parks, not her attorney. Judge 1l'lontgomery even said, "I know the rules"- so

she should have know11 what they were saying was false which can also be presumed to have

misapplied the law intentionally. J. Montgomery has a duty to protect and defend the laws of our

State so she should have said, "no. that's not the correct interpretation ofTRCP 329b subpart E''.

but she did not and went along with the lawyers after several ex parte consultations to collude,

coerce and/or conspire against Parks while threatening artificial time constraints. sanctions, and

jail. J. Montgomery showed that she had a conflict of interest and was not impartial by the

defense and aiding them in manipulating Parks to their advantage. She and all the lmvyers had a

duty and went against the Texas Rules qj'Civil Procedures hy not maintaining the integrity (~lthe

profession because of their zmlmvfill conduct. Judge Montgomery acting as Judge also violated

the Texas Code oj'.Judicial Conduct (Appendix 22). Judge Montgomery is to defend the law even

if a patty's own attorney is showing an ignorance of the law and/or lack of knowledge of the law

so that the court can maintain the integrity of the judicial system.

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 36
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
The hearing held on Feb 16, 2018 was not a fair hearing with an impartial Judge and

Judge Akin was fully connected \Vith John Browning and Judge Montgomery as will be more

fully laid out hereinafter. Also, the hearing was held Friday, Feb 16, 2018 and Judge Akin said

that he would have a decision by Monday, February 19, 2018, but he did not have his "Findings

(?lFacts and Conclusions qlLaw" tiled with the court until Feb. 27,2018 using the same

''Findings (~IFact and Conclusions ofLmv ., previously prepared by John Bro\\'ning. This was an

11 day of a delay.

(7) Stating that they based their decision on the unchallenged findings and the

evidence at the hearing before Judge Akin, they concluded Judge Akin did not err by

determining Parks entered into the settlement agreement without coercion or duress.

(a) First, Mr. Cruz did challenge the findings and evidence. Judge Akin used only the

verbation, pre-hearing proposed defense findings despite clear and contrary evidence and

testimony from Parks except to erroneously add Parks' education and experiences against her.

Judge Akin's hearing conduct was unabashedly weighted against Parks and he would sustain a

lot of the testimony that would show Parks refusing to allow testimony that proved she was

coerced, put in extreme duress, threatened. or improperly int1uence into an agreement, but

allowing the defense lawyer, John Browning to use a near limitless questioning on irrelevant

matters beyond the scope of the hearing and matters nearly 1 years after the Motion for New

Trial hearing that was held on June 13, 2016. Parks even notice John Browning and Judge Akin

making knowing and colluding facial expressions to each other that are not seen when a Judge is

impartial. In fact, J. Akin was not impartial, is a colleague of Montgomery, had been briefed

against Parks before the hearing, and was improperly inf1uenced in his decision and J. Akin is

large campaign donor to J. Montgomery. This would also show that Judge Akin \Vas in on the

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 37
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
conspiracy to deceive Parks. Due to this conspiracy and unlawful practices. any action Judge

Akin took in deciding on Parks case should be reversed. This court should not have abated the

appeal to the same court in which the conflict of interest exist

(8) Stating they conclude Rymer is distinguishable and does not control whether the

agreement entered into by Parks is enforceable.

(a) Parks has spoken with Rymer and through their conversation could tell that even

though their cases \vere different, Judge Montgomery actions were still the same in depriving

one party by denying intitled valid claims.

(9) Stating they will not address Appellant's issue on any subsequent compliance with the

agreement by either Affiliated Bank or Appellants because it is not relevant to the issues

before Judge Akin.

(a) Relevant to this matter is Browning's cont1icting positions that the Campbells can

execute on a judgment for awarded their legal tees, which would necessitate the agreement be

tmenforceable, and that the agreement is enforceable as to Afliliated Bank, all while an appeal

was pending, for the purpose of manipulating and intimidating Parks.

(b) John Bnmming is representing the defendants, but using conflicting/opposing process.

Browning is attempting judgment execution for one party in this appeal to intimidate, harass and

bully Parks, while using a conflicting attempt to enforce an appealed agreement at the same time,

all while Judge Montgomery left the docket/record uncorrected and refused to use her remaining

plenary po\ver to order a new trial. This is an abuse of process and should not be permitted

especially as John Browning is running for judge on Court of Appeals.

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 38
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
(c) Browning should not be permitted to appear in front of this court as he runs for a

judgeship in it and is a Republican candidate with all the current Justices who are Republican

and all have Democrat opponents.

(d) Browning has been allowed. by all courts. to unethically influence decisions by

misrepresenting the law to intimidate, harass and manipulate Parks. Even though he is

representing the defendant, he should still be ethical and follow the letter of the law. There is no

excuse to deprive someone of their due process. 14 amendment and their right to a fair and

unbiased trial.

(10) Not addressing the rendition issue of modifying or vacating the Judgement entered by

Hon. Sally Montgomery on March 24, 2016 (CR: 255-256- Appendix 14) after the hearing

held on the Motion for New Trial (transcript Appendix 2).

(a) This comi stated in its Order on December 20, 2017 that "Accordingly, ifthere was

an enforceable rule 11 agreement, the trial court had a duty to enforce the agreement entered into

by the parties by modifying or vacating the March 24 1h Order to reflect the parties' agreement

see in re Barton, 2017 WL 6275920 at (trial court ''has no authority to render judgment which

does not fall strictly within the terms of the agreement dictated into the record by themselves"),

but failed to do so" because Parks revoked any consent by appeal shortly and timely after the

agreement. Once Parks spoke with competent counsel who knew the law and she became aware

that she was lied to and that Montgomery still had the power to grant Parks a new triaL but the

trial court were telling Parks that her case was over. That's all Parks could hear and it was

devastating to Parks with no one advocating on her defense because of the conspiracy between

Lawyers and Judge. Everyone in the court room knew their role to deceived Parks into entering

into an agreement she would not have done if she new she had the opportunity to continue her

APPELLANTS MOTION FOR EN BANC RECONSIDERA TJON AND MODIFICATION 39
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
lawsuit. Parks thought her case was over because that's what she understood and they

denied/restrained her the opportunity to speak with someone who was sitting in the hall who

would have told her to leave and move forward with the appeal because they were lying to Parks.

With the events that has happen to Parks in her tight for justice would show a true case of

obstruction of justice in the Dallas County Court of Law #3 and Parks prays that this court does

not condone this type of injustice. Although Parks is 43 years of age, a college graduate,

successful business women Parks still needed to speak with someone who understood the law

because Parks is not a lawyer nor had Parks ever practiced or studied law before the hearing on

June 13, 2016.

John Browning also stated in Oral Argument on Dec. 12, 2017 that they did not go to the

efforts of Modifying the Judgment because they thought the case was over (as if he controls the

lower court), but Parks had communicated her desires to AppeaL to defense counsel who would

not respond to Parks' emails or calls. Jason Berent also knew Parks wanted to file this appeal,

but he did not file it nor did he timely release himself as Parks Attorney of Record.

(11) In not addressing Appellants' letters to this court (Appendix 3- filed on July 25, 2016,

Appendix 4- August 15, 2016, Appendix 5-August 22, 2016), Affidavit of Bennie Gibson

(Appendix 6- filed August 24, 2016), Appellants' Response to Objection of Bennie Gibson

Affidavit (Appendix 7 filed on August 30, 2016) and all Appellants' briefs tiled that were

overlooked and not addressed in the opinion.

(a) In the letters, motions, responses and briefs, Parks mentions ''conflicts of interesf'.

"undue influences," "voided judgment," ..fraud" (as a material representation. which was

false, and which was either known to be t~1lse when made or \vas asserted without knowledge of

its truth, which was intended to be acted upon. which was relied upon. and which caused injury.

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 40
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
Union Pac{jic Resources Group, Inc. v. Rhone-Poulenc. Inc., 247 F. 3d 547), ·•conspiracy" (is

characterized by an agreement between two or more people for the purposes of promoting or

committing a crime), '"conspiracy to defraud" (on pati of two or more persons with a common

purpose. supported by concerted action to defraud, that each has the intent to do it and that it is

common to each of them, and that each has the understanding of that purpose), "collision" (a

secret or illegal cooperation or conspiracy, especially in order to cheat and deceive others).

(b) Parks hopes this court can see by the evidence presented in this court a clear picture

of things that happen behind the scenes. As outlined hereinabove there have been multiple ex

parte communications and conferences among the Judges and Defendants; /Appellees' Lawyers

(in furtherance of their common purposes). Communication also occurred when the plaintifTs or

plaintifT counsel had not been present and same with appellant and appellants counsel.

(Appendix 15). For example, Judge Montgomery was scheduled to conduct the hearing Ordered

by this Court on December 20. 2017 and again on February 15. 2018, but somehow shortly

before and after business hours Appellants counsel learned that Browning had submitted the pre-

hearing defense documents to a visiting Judge Akin. Without any court notification to

Appellants', Browning knew that J. Montgomery had decided to have J. Akin conduct the

hearing only because of an approaching after hours trru1smitting email to J. Akin which cc' d Mr.

Cruz. Upon arrival at the courthouse on February 16,2018, Appellants found J. Montgomery on

the bench in an unrelated matter from which she had descend the bench to conduct an ex patie

discussion with defense counsel (Appendix 15 which pictures J. Montgomery, defense lawyer

Browning. Alexander, McCarthy and Cole conferencing ex parte. Upon seeing Parks the judge

retreated and never spoke to plaintiff or her attorney). When the parties proceeded to J. Akin

courtroom for the hearing, it was cleru· that had been briefed on this case. as the last minute

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 41
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
reassigmnent (without time to notify all parties of the change) would not have permitted his

detailed and thorough knowledge of the details he had, had he not been briefed. At the

conclusion ofthe hearing J. Akin said that he would issue his decision the next day, but instead

took nearly two week to issue his decision, allowing for plenty of time for J. Montgomery to read

the hearing transcript and int1uence the decision. It is clear from the lengthy careers. experience,

education and convoluted inter-relationship that cronyism has repeatedly determined the

decisions in this case. (See face book posts. comments, campaign materials, pictures and resumes

in Appendix 15-17)

(c) Parks tiled a complaint with the OCC (Office of Comptroller of Currency) shortly

after filing this appeal to report Afliliated Bank had other issues and a loan oflicer who was hired

by Affiliated Bank's team despite the employee's prior Felony conviction for forgeries and theft.

The OCC enforced the laws which required Affiliated Bank to tire this individual with all the

felonies for forgeries and theft. Despite OCC' s demand to file the individuaL the person was still

working at the bank as a loan officer, so the OCC had to reiterate its demand on Afliliated Bank

to immediately tenninate him. Recently, Parks noticed this individual still had websites showing

this individual still had advertise websites that would direct a person back to Affiliated Bank to

apply for loans under his contact which would look as if he was still employed with Affiliated

Bank. Parks has a voicemail message from the OCC confirming the same findings and they will

be pursuing the bank again. Also Parks was told by the OCC that they have taken other actions

from her compliant, but can not be known to the public. Josh Campbell was also hired by

Affiliated Bank despite prior multiple felonies. If Affiliated Bank would not hire individual with

this type of history Parks would not be going through this today. Aftiliated Bank hires

individuals who could pose a threat to the personal identity of the elderly and their community

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 42
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
they serve with employees like this. This type of hiring is a risk to the public and in

contravention of conswner protection statutes which is why the OCC enforced the termination of

one of their employees who was still working for Affiliated Bank. Parks does not want

Atliliated Bank to be able to hurt anyone else like they have done to her, her family and her

business. This evidence, combined with the misapplication of law, make it clear that the bank

knowingly, intentionally and/or negligently hire, direct, or supervise its employees so they

should have never been dismissed.

( 12) Items discussed in Oral Argument on Dec. 12, 2017 by John Browning and presented

as fact to the Panel of Justices in this court that were false and this court should have taken

judicial notice of the clerk's record that was presented to this court and briefs submitted by

Appellants after the abatement per the order on Mar. 8, 2018.

(a) John Browning was not truthful with this court when he stated he did not have

authority to attempt to collect the fabricated legal fees. As argued above, Browning had already

begun judgment execution prior to this Court's hearing, but did not force the issue until

Appellant filed a motion to recuse Judge Montgomery (his past client) also his clients the

Campbell knew nothing of it and he used this attempt to harass appellants tor filing a motion to

recuse Judge Montgomery a formal client of his. Either Browning lied or he lacked authority,

either of which is an ethics violation.

(b) When Justice Robert M. Fillmore asked Mr. Browning why Browning thought he

could not tile and why, according to the statue, did he not tile a summary judgment motion tor

his clients absent a stay of proceeding, Mr. Browning stated that he wanted to file a summary

judgment, but he said Judge Montgomery ordered a stay on other proceeding. As is clear on the

docket and the record, there was never an order to stay placed on the proceedings, so Browning

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 43
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
statement was a falsehood. especially in light of his attempts to both collect judgment and

enforce dismissal for defendants after the appeal was filed.

(13) By not looking at all evidence which would show a conspiracy and collusion between

the Officers of the Court and entertained when drafting its opinion dated May 3, 2018 and

Parks has also retrieved new evidence during the abatement and has more evidence coming

in that happened during the abatement of this appeal.

• .Judge Montgomery - has been a Judge for over 20 years and lawyer since 1980

• John Browning - had been a Lawyer since 1989 and has won several awards and

teaches lawyers and Judges ethics and is running for place 11 in the 5th Court of

Appeals as a Republican candidate. (Parks has been told by some of his endorser

that have reviewed this entire case that they would not have endorsed him if they

had seen Parks case prior to endorsing him, but unfortunately it was too late for

them to take the endorsement back. but they willllot give him any more money

toward his campaign because of his unethical practices in this case toward Parks).

• Jerry Alexander - has been a la\\-)'er since 1972 before Parks was even born and

still did not know Judge Montgomery still had Plenary Power, but some how

Tonya Parks a nonlawyer was the only one who could make a choice when

Montgomery still had time to grant Parks her New Trial.

• Gregory McCarthy- has been a lawyer since 1985 and works closely with Garry

Graham president of Affiliated Bank. He is also a close friend to Garry Graham

and has been cited in a book called The Texas lv!iracle and Playing Possum the

Tale of the River Card both written by John Marshall. Parks has been told by the

Oftice of Comptroller of Currency that they are aware of these two books.

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 44
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
• Christopher Hansen - has been a la\\';er since 1994 and is a partner in his law

firm.

• Gino Rossini - has been a lawyer since 1998 and is a partner in his law firm.

• Ryan Cole - has been a lawyer since the late 1990's and has followed John

Browning around to di±Terent firms throughout his career.

• .Jason Berent- Plaintiff Lawyer has been a lawyer since 2000

• Judge Ted Akin -lawyer and or Judge since 1955

(a) In looking at the careers and the length of time these Lawyers and Judges have been

practicing law (Appendix 15) you can \Vithout a shadow of a doubt know these officers of the

court were intending to deceive Parks.

(b) Parks has pictures that she took outside of Judge Montgomery's court room the

morning of the said hearing on Feb 16,2018 with Judge Ted Akin. In these pictures Parks

caught Judge Montgomery, John Browning, .Jerry Alexander, Ryan Cole, and Greg

McCarthy speaking (ex parte communication) without Mr. Cruz. Since Judge

Montgomery was not going to hear the hearing Ordered, she was in another hearing and

got off the bench to go to the door to privately speak with all the defendant lawyers who

had arrived for the hearing Ordered by this Court - .John Browning, Jerry Alexander,

Greg McCarthy and Ryan Cole (Appendix 15).

(c) Parks' lawyer Baltasar Cruz was not present so Judge Montgomery should have

waited to have any communication with the other side without both sides being present-

especially for of the reasons this hearing was ordered. When she noticed Parks walk up - she

immediately walked away. On another note, Baltasar had no idea Judge Akin was going to have

any involvement in the hearing on Feb. 16, 2016 until the late evening before the hearing

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 45
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
because Mr. Cmz received a cc'd email from John Browning sending documents for review to

Judge Akin. Baltasar was not able to send Plaintiffs' documents until the early morning the day

of the hearing. Somehow John Browning knew about this before Mr. Cmz had any kind of

notice of this change and could prepare Judge Akin's with Parks' documents. Even after sending

documents, Parks and Mr. Cruz had no idea until the time of the hearing that Judge Akin was

going to hear the ordered hearing.

(d) This court erred in denying on Feb. 15, 2018 (Appendix 11) Appellants' Emergency

1Hotion to Stay Proceedings in the Trial Court and Reconsider and Withdraw Order rhat Trial

Court Conduct Hearing on FVhether Trial Court Judge Coerced Plaintiff's into Entering into a

Rule 11 Agreement and. in Alternative 1Hotion that Case be T!·an~'[erred to Other Court to

Conduct Said Hearing which was filed on Feb. 14, 2018, for all the foregoing reasons.

(e) Parks has also attached a letter from First Assistant District Attorney Office of

Dallas Michael Snipes stating he has carefully reviewed Parks complaint and that he wishes he

had jurisdiction to help Parks, but he did not, but advised Parks to seek help through Appeal

and the Judicial Board. (Appendix 18)

(f) On Friday 18.2018 Mr. Gibson sent off for a Freedom oflnformation Act. 5U.S.C.

552 requests for Investigation of Records for AHiliated Bank. (Appendix 23)

Conclusion

Appellant respectfully contends that. based upon all of the foregoing the Opinion

contains clear errors of fact and law, in the Trials Court's Judge Akin's "Finding ofFacts

Conclusions (?(Law'' without using all the actual evidence presented in the hearing which was

ordered by this court to have during the abatement. This court erred in abating the appeal to the

same lower court, disregarded the evidence presented in Appellant's briefs. letters to the court.

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 46
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
motions to both this court and the trial court and oral argument. This court also erred in allowing

the lower court to improperly excluded actual evidence presented in making the ruling to dismiss

Appellant's lawsuit.

Prayer

Parks prays to God that you will look at all the action and evidence of misconduct form

the trial court and not look at your long personal relationships and history with Mr. Browning to

make thing right and return Parks to status quo. Parks knows that you don't know her, but please

trust that she is coming to this court sincerely asking for help from the years of abuse she has

suffered from all the lawyers during the trial court at the motion to dismiss, the defendants. and

the trial Judge Sally Montgomery and Judge Ted Akin.

Just because a person has known and/or worked with a person for many years does not

mean that you really know what a person will do behind close doors when they feel no one is

watching. With the help of the trial court Judge, John Browning and his team have done a lot

illegal and unethical thing according to the law in this case. Everyone who has really looked into

this case who are Lawyers, elected officials and regular citizens have all said what has happened

to Parks was wrong. Some have said they wished they could help her. but they could not. Some

have said if they go against J. Montgomery it would be ··lawyer suicide", and some have said

what they did was just evil (one ofwa"> John Browning's own campaign endorsers). Many have

said what happened to Parks was not fair and or justified because her evidence was clear.

Please do not turn a blind eye to this and please return integrity and justice to the court by

willing to call one of your own (.Jolm Browning).

Just like in the Me-Too Movement, people are hearing about people they have know11 and

loved, but they had no idea what they were doing when no one was watching. Please act as you

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 47
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
did \Vhen you did not condone the actions of the Judges cited in the opinion on the recusal of J.

Montgomery in the past and reversed everything (Appendix 20).

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays this

Honorable Court grant this Motion, reconsider its Opinion, accept additional evidence presented

in this Motion, reverse the Trial Court's ''Findings (?(Facts Conclusions qf'Law" entered on Feb.

27, 2018, reverse the lower court order of March 24 and grant Appellant such additional and

t\.1rther relief. legal or equitable, special or general, to which she may be entitled in law and

equity.

Respectfully submitted,

Tonya arks
ProSe
1401 Bristlewood Dr
McKinney, Tx 75070
(214) 980-8816
tonvaparks(ii!parksrealtvtirm.com

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 48
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
Certificate of Service

I certify that on this. the i 11 day of Jw1e. 2018, complete and accurate copy of this
document was electronically served upon the following attomeys for Appellee by means of this
transmission to their respective electronic filing service provides in compliance with rule 9.5 of
the Texas Rules of Appellate Procedures:

John G. Browning
Jerry Alexander
Passman & Jones. PC
2500 Renaissance Tower
1201 Elm Street
Dallas, Tx 75270

Tonya Parks

APPELLANTS MOTION FOR EN BANC RECONSIDERATION AND MODIFICATION 49
OF JUDGMENT AND MEMORANDUM OPINION OF MAY 3, 2018
APPENDIX 1
Dismissed and Opfnfon Filed May 3, 2018

In The
Qtnurt nf Appeala
lt1ift}f iliatrirt nf we*ail at ilallas
No. 05-16-00784-CV

TONYA PARKS AND PARKS REALTY FIRM, LLC, Appellants
v.
AFFILIATED BANK, Appellee

On Appeal from the County Court at Law No. 3
Dallas County, Texas
Trial Court Cause No. CC-15-04540-C

MEMORANDUM OPINION
Before Justices Lang-Miers, Fillmore, and Stoddart
Opinion by Justice Fillmore
Tonya Parks and Parks Realty Firm, LLC (PRF) appealed from a trial court order signed

by the Honorable Sally Montgomery that dismissed appeltants' ciaims against Affiliated Bank

pursuant to the Texas Citizens Participation Act, see TEX. Civ. PRAC. & REM. CODE ANN.

§§ 27.001-.0ll(West 2015) (the TCPA), and awarded Affiliated Bank $29,876.40 in attorneys'

fees. The record, however, reflects that Parks, individually and on behalf of PRF, orally agreed

on the record not to appeal the order. Because Judge Montgomery did not modify the order to

reflect that agreement, we abated this appeal and remanded the case to the trial court for a

determination of whether Parks, individually and on behalf of PRF, voluntarily entered into an
agreement under rule of civil procedure 11, i pursuant to which appellants forfeited their right to

bring this appeal, and whether any agreement was enforceable.

The Honorable Ted Akin conducted an evidentiary hearing and determined Parks agreed

in open court not to appeal the order dismissing appellants' claims and the agreement was

enforceable pursuant to rule of civil procedure 11. Appellants filed a supplemental brief asserting

( 1) this Court erred by abating this appeal because any agreement made by Parks is unenforceable

due to Judge Montgomery's violation of appellants' right to procedural due process, and (2) Judge

Akin abused his discretion by entering findings of fact and conclusions of law when there had not

been a trial and by determining Parks did not enter into the agreement due to coercion or duress,

the agreement was enforceable, Affiliated Bank complied with the agreement, and appellants

breached the agreement. We dismiss this appeal.

Background

Appellants sued Joshua A. Campbell and his former employer, Affiliated Bank, asserting

a number of causes of action based on an internet posting by Campbell concerning Parks's work

as a real estate agent. Campbell filed a motion to dismiss under the TCPA on grounds the claims

against him were based on statements he made in connection with a matter of public concern and

appellants could not establish by clear and specific evidence a prima facie case for each essential

element of their claims. Campbell requested the dismissal of the claims against him and the award

of reasonable attorneys' fees. At the hearing on Campbell's motion, Affiliated Bank argued it

"should be included as far as being dismissed" because there was no evidence to support the causes

of action asserted against it. Affiliated Bank also requested that it be awarded attorneys' fees

pursuant to the TCP A. On March 24, 2016, Judge Montgomery signed an Order on Defendant

1
Rule of civil procedure II states that, unless otherwise provided in the rules of civil procedure, "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." TEX. R. CIV. P. II.

-2-
Joshua Campbelrs Motion to Dismiss (the March 24th Order), dismissing with prejudice

appellants' claims against both Campbell and Affiliated Bank and awarding $62,297.50 to

Campbell and $29,876.40 to Affiliated Bank for court costs, reasonable attorneys' fees, and other

expenses incurred in defending the litigation.

Appellants filed a motion for new trial. At the hearing on the motion, the parties agreed

on the record that (1) Campbell and Affiliated Bank would not seek to recover the fees and

expenses awarded in the March 24th Order, and (2) appellants would not appeal the March 24th

Order. However, Parks subsequently filed a prose notice of appeal for both herself and PRF.

Affiliated Bank moved to dismiss the appeal based, in part, on Parks's agreement not to appeal the

March 24th Order. 2 Parks and PRF responded Parks was "coerced by the trial court" into non-

suiting their claims under "extreme duress."

After retaining counsel, appellants filed an appellate brief arguing in four issues that the

trial court erred by dismissing appellants' claims against Affiliated Bank and the dismissal violated

appellants' right to procedural due process. Following oral argument, we abated this appeal and

remanded the case to the trial court for findings relating to whether Parks, individually and on

behalf of PRF, voluntarily entered into an agreement under rule of civil procedure 11, pursuant to

which appellants forfeited their right to bring this appeal, and whether any agreement was

enforceable.

In compliance with our order, Judge Akin conducted an evidentiary hearing on February

16, 2018. Judge Akin admitted into evidence pleadings from the underlying proceedings as well

as the transcript of the hearing on appellants' motion for new trial. Parks also testified about the

hearing on appellants' motion for new trial and her state of mind at the time she agreed to the

2
On December 2, 2016, we dismissed appellant's appeal against Campbell because the notice of appeal was untimely as to him.

-3-
settlement. On February 26, 2018, Judge Akin entered findings of fact and conclusions of law.

Judge Akin specifically found: 3

1. Parks is at least forty-two years old, has a B.B.A. degree from the University of North
Texas, is a licensed realtor, owns and operates her own company, and is a sophisticated
businesswoman;

2. In the underlying case, appellants' motion for new trial was heard on June 13, 2016,
more than seventy-five days after the March 24th Order was signed;

3. Appellants were represented by counsel during the hearing, and appellants counsel was
among the counsel who represented to Judge Montgomery that appellants' motion for
new trial had been overruled by operation of law;

4. During the hearing, Judge Montgomery directed the parties to confer regarding
potential settlement at three separate junctures, including one break that lasted for more
than thirty minutes;

5. After the final break, during which Parks conferred with her counsel, the parties
announced they had reached an agreement;

6. Counsel for all parties agreed on the record that Ca:tnpbeU and Affiliated Bank would
forego seeking to recover the attorneys' fees awarded in the March 24th Order in
exchange for a "full waiver of any appeal or further filings" by appellants;

7. The agreement constituted a "dismissal with prejudice" with appellants "giving a full
and complete release of all claims" against Affiliated Bank and Campbell;

8. Defense counsel requested that Parks give her verbal assent to the agreement on the
record;

9. Appellants' counsel "made it clear to his client that it was her decision, stating 'I'm not
telling you what to do. I'm not pressuring you. It's your decision'";

10. After Parks expressed reluctance about the agreement, Judge Montgomery asked her
whether she was going to dismiss the case with prejudice;

11. Parks stated "whatever you guys want," and Judge Montgomery advised Parks that she
was the only one who could make the agreement and Judge Montgomery could not do
it for her;

12. Parks responded that she would accept the settlement, but indicated she had been "put
in this position" and had not had the "representation she wanted to have";

3
The numbering of the findings set out in this opinion do not correspond with the numbering of the findings in Judge Akin's findings of fact
and conclusions of law.

-4-
13. Judge Montgomery advised Parks that she needed to say yes or no to the agreement
and that Judge Montgomery could not make the choice for her;

14. Parks "tried to claim she was 'forced' to accept the settlement," and Judge Montgomery
cautioned her that the settlement "would not hold" under those circumstances;

15. Parks stated in open court, "I accept the deal";

16. Affiliated Bank and Campbell complied with the agreement and did not pursue
collection of the attorneys' fees awarded in the March 24th Order; and

17. Appellants breached the agreement by filing a notice of appeal.

Judge Akin concluded Parks did not enter into the agreement due to coercion or duress from her

cotitlsel, the other parties, oi Judge Montgomery, and the parties' agreement was enforceable under

rule of civil procedure 11.

We granted appellants' request to file supplemental briefing, but specifically limited the

supplemental briefing to "issues relating to the trial court's rulings on objections at the February

16, 2018 hearing and the trial court's February 21,2018 findings of fact and conclusions oflaw.;'

Appellants filed a supplemental brief complaining in six issues, numbered five through ten, that

this Court erred by abating this appeal because any agreement made by Parks was unenforceable

due to Judge Montgomery's violation of appellants' right to procedural due process and Judge

Akin abused his discretion by ( 1) entering findings of fact and conclusions of law in a case in

which there was not a trial, and (2) determining Parks did not enter into the rule 11 agreement due

to coercion or duress, the rule 11 agreement was enforceable, Affiliated Bank and Campbell

complied with the agreement, and appellants breached the agreement.

Abating the Appeal

In their fifth issue, appellants complain this Court erred by abating this appeal and

remanding the case to the trial court for findings pertaining to any agreement between the parties.

This complaint is outside the limited scope of issues on which we allowed supplemental briefing.

Accordingly, we will not address appellants' fifth issue.
-5-
Authority to Enter Findings ofFact and Conclusfons of Law

In their sixth issue, appellants assert Judge Akin abused his discretion by entering findings

of fact and conclusions of law because findings of fact and conclusions of law may be made only

pursuant to rules of civil procedure 296 through 299a following a bench trial. Rule of civil

procedure 296 provides that "'Ti]n any case tried in the district or county court without a jury, any

party may request the court to state in writing its findings of fact and conclusions of law." TEX.

R. CIV. P. 296. "A case is 'tried' when the court's judgment is based on an evidentiary hearing

containing conflicting testimony." R.H. v. Smith, 339 S.W.3d 756, 761 (Tex. App.-Dallas 2011,

no pet.); see also Shanklin v. Shanklin, No. l3-15-0U392-CV, 2016 WL 3tJ62707, at *2 (Tex.

App.-Corpus Christi July 21, 2016, no pet.) (mem. op.). "Findings and conclusions are

appropriate if there is an evidentiary hearing and the trial court is called upon to determine

questions of fact based on conflicting evidence." Ezy-Lift of Ca., Inc. v. EZY Acquisition, LLC,

No. 01-13-0005·8-CV, 2014 WL 1516239, at *3 (Tex. App.-Houston[lst Dist.] Apr. 17, 2014,

pet. denied) (quoting Int 'l Union, United Auto., Aerospace Agric. Implement Workers ofAm.-UA W

v. Gen. Motors Corp., 104 S.W.3d 126, 129 (Tex. App.-Fort Worth 2003, no pet.)).

Judge Akin held an evidentiary hearing to determine whether there was an agreement

between the parties and whether any agreement was enforceable, and conflicting evidence was

presented at the hearing. Accordingly, Judge Akin did not err by entering findings of fact and

conclusions oflaw. See My Three Sons, Ltd. v. Midway/Parker Med. Ctr., L.P., No. 05-15-01068-

CV, 2017 WL 2351082, at *7 (Tex. App.-Dallas May 31, 2017, no pet.) (mem. op.) (noting trial

court is permitted to make findings of fact and conclusions of law following evidentiary hearing);

R.H., 339 S.W.3d at 761 (concluding that, on proper request of party, trial court was required to

make findings of fact and conclusions of law following hearing on motion at which conflicting

evidence was presented). We resolve appellants' sixth issue against them.

-6-
Findings ofFact and Condusions ofLaw

In their seventh through tenth issues, appellants argue Judge Akin abused his discretion by

ruling Parks did not enter into the settlement agreement due to coercion or duress, the agreement

is enforceable pursuant to rule of civil procedure 11, Affiliated Bank and Campbell complied with

the agreement, and appellants breached the agreement.

Standard of Review

Findings of fact entered in a case tried to the court have the same force as a jury verdict

upon questions. Anderson v. City ofSeven Points, 806 S.W.2d 791, 794 (Tex. 1991); Scott Pelley

P. C. v. Wynne, No. 05-15-01560-CV, 2017 WL 3699-823, at *8 (Tex. App.-Da11as Aug. 28, 2017,

pet. denied) (mem. op.). We thus review findings of fact by the same standards that are applied in

reviewing the legal and factual sufficiency of the evidence supporting a jury finding. Anderson,

806 S.W.2d at 794; Scott Pelley P.C., 2017 WL 3699823, at *8. Unchallenged findings offact are

binding on this Court unless the contrary is established as a matter of law or there is no evidence

to support the finding. Walker v. Anderson, 232 S.W.3d 899, 907 (Tex. App.-Dallas 2007, no

pet.); see also Tenaska Energy, Inc. v. Ponderosa Pine Energy, LLC, 437 S.W.3d 518, 526 (Tex.

2014) (concluding unchallenged findings supported by some evidence were binding on appellate

court); McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986).

We review the trial court's conclusions of law de novo. BMC Software Belgium, NV v.

Marchand, 83 S.W.3d 789, 794-95 (Tex. 2002); Credit Suisse AG v. Claymore Holdings, LLC,

No. 05-15-01463-CV, 2018 WL 947902, at *4 (Tex. App.-Dallas Feb. 20, 2018, no pet. h.)

(mem. op.). We may not reverse a trial court's conclusion oflaw unless it is erroneous as a matter

oflaw. Credit Suisse AG, 2018 WL 947902, at *4.

Duress or Coercion

-7-
Citing to paragraphs twenty-five and twenty-eight of Judge Akin's findings of fact and

conclusions oflaw, appellants argue in their seventh issue that the "trial court abused its discretion

in ruling that Parks, individually and on behalf of PRF, did not enter into the rule 11 agreement

due to coercion or duress[.]"' The standard of review relied on by appellants is not applicable to

our review of either the trial court's findings of fact or conclusions oflaw. See BMC Software

Belgium, NV, 83 S.W.3d at 794-95; Anderson, 806 S.W.2d at 794. However, whether an

agreement is voluntary is generally a question oflaw. See Tower Contracting Co., Inc. of Tex. v.

Burden Bros, Inc., 482 S.W.2d 330, 335 (Tex. Civ. App.-Dallas 1972, writ refd n.r.e.) ("What

constitutes duress is a question oflaw but whether the facts exist to make up the elements of duress

may be an issue of fact."); see also Dallas Cty. Cmty. Coli. Dist. v. Bolton, 185 S.W.3d 868, 880

(Tex. 2005) ("Where the facts are undisputed, determination of whether a payment is voluntary or

involuntary is a question of law."); Park Plaza Solo, LLC v. Benchmark-Hereford, Inc., No. 07-

16-00004-CV, 2016 WL 6242824, at *2 (Tex. App.-Amarillo Oct. 24, 2016, no pet.) (mem. op.)

("[W]hether or not circumstances of duress are established is generally a question of fact, but

whether established facts constitute duress is a matter of law to be determined by the court.").

Paragraphs twenty-five and twenty-eight of Judge Akin's findings of fact and conclusions of law

state "[t}here was no coercion," and '"[t]here was no coercion or duress." We conclude these are

conclusions of law that we review de novo.

"Coercion exists when a party by !he unlawful conduct of another, is induced to enter into

a contract which deprives him of the exercise of his free will." Man Indus. (India), Ltd. v.

Midcontinent Express Pipeline, LLC, 407 S.W.3d 342, 367 (Tex. App.-Houston I14th Dist.]

2013, pet. denied) (quoting Metro-Goldwyn-Mayer Distrib. Corp. v. Cocke, 56 S.W.2d 489, 491

(Tex. Civ. App.-Amarillo 1933, no writ). Generally, under Texas law, the term "duress" rather

than "coercion" is used when parties are seeking to avoid a contract. Id. "A common element of

-8-
duress in all its forms (whether called duress, implied duress, business compulsion, economic

duress or duress of property) is 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." Bolton, 185 S.W.3d at 878-79; see also McCord v. Goode, 308 S.W.3d 409, 413 (Tex.

App.-Dallas 2010, no pet.). ''The threat must be imminent and the party musthave no present

means of protection." McCord, 368 S.W.3d at 413. Further, "[d]uress must be shown from the

acts or conduct of the party accused of duress, not the emotions ofthe purported victim." !d. There

can be no duress when the threatened conduct is not unlawful. In re C.E. W, No. 05-14-00459-

CV, 2015 Wt 5W9336, at *3 (Tex. App.-Oalias Aug. 31,2015, pet. denied).

Appellants argue they established Parks entered into the agreement under duress because

Judge Montgomery falsely represented that she no longer had jurisdiction to grant appellants'

motion for new trial and threatened to leave an "unlawful judgment" in place and sanction

appellants for bringing a frivolous lawsuit if Parks did not agree to settle the case; these "threats"

were "of such a character as to destroy the free agency" of Parks to refuse the settlement; and these

"threats" "overcame Parks' [s] will and caused her to do that which she would not otherwise have

done."

Judge Akin found that Parks was at least forty-two years old, has a college degree, runs her

own business, and is a sophisticated businesswoman. He also found that Parks was represented

by counsel at the motion for new trial hearing, had an opportunity to confer with her counsel about

the proposed settlement agreement on multiple occasions, was cautioned by Judge Montgomery

that she was the only one who could make the decision to accept the offer of Campbell and

Affiliated Bank to settle the case, and agreed in open court to the settlement. These facts are

supported by evidence admitted at the hearing, including the transcript of the motion for new trial

-9-
hearing and Parks's testimony. 4 The record also reflects that, although she was highly emotional

at the hearing on the motion for new trial, Parks understood the consequences of accepting or

refusing the settlement and agreed to the settle in order to avoid a "$96,000 judgment" against her.

Based on the unchallenged findings and the evidence at the hearing before Judge Akin, we

conclude Judge Akin did not err by determining Parks did not enter into the settlement agreement

due to coercion or duress. We resolve appellants' seventh issue against them.

Enforceability of Rule 11 Agreement

Relying on Rymer v. Lewis, 206 S.W.3d 732 (Tex. App.-Dallas 2006, no pet.), appellants

argue in their eighth issue that Judge Akin erred by concluding the rule 11 agreement entered into

by the parties was enforceable. Rymer involved the appeal to the county court of a forcible detainer

judgment in the amount of $5,000 in favor of Rymer's landlord. Id. at 733-34. Both Rymer and

her landlord appeared pro se in the county court. I d. at 734 n.1. During the pendency of the appeal,

Rymer paid $1,20() into the registry of the county court. Id. at 734. Rymer and her landlord

subsequently agreed Rymer would vacate the property and the landlord would receive the $1,200.

Id. at 734. Before an order memorializing the agreement was presented to the trial court, the

landlord moved Rymer's property from the house into the garage. Id. Rymer alleged the landlord

caused thousands of dollars of damage to the property. !d.

Rymer informed the trial court that she no longer consented to the original terms of the

parties' agreement because the landlord had damaged her property. !d. After the trial court

expressed concern about the landlord's actions, Rymer informed the trial court that she wanted the

case dismissed to allow her to recover the mone

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4283187. Public record. Not legal advice.