in the Estate of Adel Sheshtawy ( 2015 )

ACCEPTED
14-14-00515-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
1/19/2015 1:48:25 PM
CHRISTOPHER PRINE
CLERK
CASE NO. 14-14-00515-CV
__________________
FILED IN
14th COURT OF APPEALS
IN THE FOURTEENTH COURT OF APPEALSHOUSTON, TEXAS
1/19/2015 1:48:25 PM
HOUSTON TEXAS CHRISTOPHER A. PRINE
Clerk
___________________
VALENTINA SPASSOVA SHESHTAWY, Appellant
v.
MICHAEL FUQUA, ADMINISTRATOR OF THE ESTATE OF ADEL
SHESHTAWY, DECEASED, Appellant
_________________________________________________________________
On Appeal from Probate Court Number One
Harris County, Texas
Probate Court Cause No. 407,499-406
_________________________________________________________________
APPELLEE’S RESPONSE
TO APPELLANT’S REPLY BRIEF
_____________________________________________________________________________
Michael L. Fuqua, Attorney at Law
Lead Counsel
Fuqua & Associates, P.C.
5005 Riverway, Suite 250
Houston, Texas 77056
(713) 960-0277 - Telephone
(713) 960-1064 - Facsimile
mlfuqua@fuqualegal.com
Attorney for Appellee
Michael L. Fuqua, Temporary Administrator
of the Estate of Adel Sheshtawy, Deceased
TABLE OF CONTENTS
Table of Contents..............................................................................................i
Index of Authorities..........................................................................................ii
Statement of Facts.............................................................................................1
Response to Arguments in Reply Brief ...........................................................1
Common Law Marriage Dispute..................................................1
Preliminary Inventory and Appraisement....................................2
Homestead Occupancy.................................................................2
Settlement Agreement Required Sale of Homestead...................3
Use of Sales Proceeds...................................................................4
Contract Construction - Waiver of Homestead............................4
Trial Court Properly Dismissed Valentina’s Action....................6
Prayer.................................................................................................................7
Certificate of Service.........................................................................................8
Certificate of Compliance. ................................................................................9
i
INDEX OF AUTHORITIES
Cases
Balandran v. Safeco Ins. Co., 972 S.W.2d 738, 741 (Tex. 1998).........................5
Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd.,
940 S.W.2d 587, 587 (Tex. 1996).........................................................................5
Langley v. Jernigan, 76 S.W.3d 752, 756
(Tex.App. – Waco 2002, pet. filed)....................................................................5, 6
Nat’l Union Fire Ins. Co. v. CBI Indus., Inc.,
907 S.W.2d 517, 520 (Tex. 1995)......................................................................5, 6
Tenneco Inc. v. Enterprise Prods. Co.,
925 S.W.2d 640, 643 (Tex. 1996).........................................................................5
Rules
TEX.R.CIV.P. 91a...............................................................................................6, 7
ii
STATEMENT OF FACTS
Appellee objects to Appellant’s statement of facts in Appellant’s Reply
Brief and incorporates herein Appellee’s statement of facts set forth in Appellee’s
Amended Brief.
RESPONSE TO ARGUMENTS IN REPLY BRIEF
Common Law Marriage Dispute
1. This issue of whether a common law marriage existed between
Appellant and Adel Sheshtawy is immaterial to the determination of the appellate
issues in this case. Appellant’s common law marriage suit was fully and finally
resolved by the Rule 11 and Final Settlement Agreement (the “Settlement
Agreement”) entered into by the parties and approved by the trial court July 17,
2013. Appellee’s Appendix, Item 3; ROA, pp. 32, 39-41; Appellee’s Appendix,
Item 4; ROA, pp. 124-126. Appellant affirmatively waived any rights to which she
would be entitled to receive as the decedent’s common law spouse by executing
the settlement agreement. Appellee’s Appendix, Item 3; ROA, pp. 32-41;
Appellee’s Appendix, Item 4; ROA, pp. 124-126.
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Preliminary Inventory and Appraisement
2. Appellee’s Reply Brief fails to specify the manner in which the trial
court’s approval of the preliminary inventory and appraisement in the probate
proceeding was not made in accordance with the law, the facts relied upon to
support her argument or any reference to credible evidence in the record on appeal
to support her argument.
3. The decedent owned fee simple title to the real property in issue;
therefore, the real property was properly listed as an estate asset in the preliminary
inventory and appraisement filed in the trial court.
4. Valentina did not object to the inventory and appraisal until June 16,
2014 - more than a year after she signed the settlement agreement, and the trial
court properly refused to entertain objections which Valentina had expressly
waived in the settlement agreement.
Homestead Occupancy
5. Although the Court did not enter an order setting the property aside as
homestead, Valentina and Lily have resided in the property continuously from the
date of Adel’s death. No party made any attempt to remove Valentina and Lily
from the property except in accordance with the settlement agreement. Appellee’s
Appendix, Item 3; ROA, pp. 32, 35.
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Settlement Agreement Required Sale of Homestead
6. The Settlement Agreement authorized and directed the sale of the
property in issue to fund a majority of the cash payment to Valentina. Appellee’s
Appendix, Item 3; ROA, pp. 32, 34-35. Valentina agreed to accept $145,000 in full
and final settlement of all claims which were or could have been brought relating
to Valentina’s common law marriage suit, Adel’s Estate, the residential real
property located at 12206 Cabo Blanco Lane, or Adel’s two adult children, Nader
and Hanya. Appellee’s Appendix, Item 3; ROA, pp. 32-35 (Emphasis added).
7. The Settlement Agreement provided that the property would be sold
and Valentina would receive a cash payment of $100,000 from the sales proceeds
at closing. Appellee’s Appendix, Item 3; ROA, pp. 32, 34-35.
8. The Settlement Agreement further provided that the property would
be sold, up to $250,000 of the sales proceeds would be used to “purchase a new
homestead for Lily” and proceeds pending the purchase of Lily’s new homestead
would be used for short term suitable housing for Lily and Valentina. Appellee’s
Appendix, Item 3; ROA, pp. 32, 35.
9. The trial court approved the settlement agreement. Appellee’s
Appendix, Item 4; ROA, pp. 124-126.
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10. The trial court found it was necessary to sell the property as
evidenced by the settlement agreement. ROA, pp. 137-139.
Use of Sales Proceeds
11. Upon sale of the property, Temporary Administrator will be mandated
by the trial court orders approving the settlement agreement and the sale of the
property to remit $100,000 of the sales proceeds to Valentina, utilize up to
$250,000 of the sales proceeds to acquire a new homestead for Lily, and use any
proceeds pending the purchase of Lily’s new homestead for short term suitable
housing for Lily and Valentina. Appellee’s Appendix, Item 4; ROA, pp. 124-126;
ROA, pp. 137-139; Appellee’s Appendix, Item 3; ROA, pp. 32, 34-35.
12. Only to the extent funds remain after the satisfaction of each of the
settlement agreement obligations to Lily and Valentina would any of the sales
proceeds be available to pay estate administration expenses. ROA, pp. 137-139.
13. Therefore, Valentina’s assertion that insufficient sales proceeds will
be available to purchase a new homestead for Lily are unfounded and without
support in the record.
Contract Construction - Waiver of Homestead
9. Valentina and Lily waived any homestead rights by entering into the
Settlement Agreement expressly providing for: (a) the sale of the home in which
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they resided; and (b) the purchase of a new homestead for Lily. Appellee’s
Appendix, Item 4; ROA, pp. 124-126; ROA, pp. 137-139; Appellee’s Appendix,
Item 3; ROA, pp. 32, 34-35.
10. The primary goal in construing a written contract is to ascertain and
give effect to the intent of the parties as expressed in the instrument. Balandran
v. Safeco Ins. Co., 972 S.W.2d 738, 741 (Tex. 1998).
10. If a written contract is worded so that it can be given a definite or
certain legal meaning, then it is not ambiguous. Nat’l Union Fire Ins. Co. v. CBI
Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995).
11. In interpreting the parties’ agreement, the reviewing court must
examine all parts of the contract and the circumstances surrounding the
formulation of the contract. Columbia Gas Transmission Corp. v. New Ulm Gas,
Ltd., 940 S.W.2d 587, 587 (Tex. 1996).
12. To establish waiver of a homestead right, there must be proof of clear,
unequivocal and decisive acts showing an intent to waive. Langley v. Jernigan, 76
S.W.3d 752, 756 (Tex.App. – Waco 2002, pet. filed).
13. The intent to waive may be either expressly made or inferred from
intentional conduct that is inconsistent with an intent to claim the right. Tenneco
Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996).
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14. The intent to waive homestead rights is evidenced by the express
provisions in the settlement agreement referencing the sale of the property, the use
of the sales proceeds to fund the settlement payment to Valentina, and the
requirement that a portion of the sales proceeds be used to purchase a new
homestead for Lily. Appellee’s Appendix, Item 4; ROA, pp. 124-126; ROA, pp.
137-139; Appellee’s Appendix, Item 3; ROA, pp. 32, 34-35; Langley v. Jernigan,
76 S.W.3d 752, 756 (Tex.App. – Waco 2002, pet. filed).
15. The terms of the settlement agreement providing for the sale of the
property are unambiguous and reflect that Valentina and Lily’s residence would be
sold as a result of the negotiated settlement of the parties’ dispute. Nat’l Union
Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995).
Trial Court Properly Dismissed Valentina’s Injunction Suit as Baseless
In response to Valentina’s injunction suit, Temporary Administrator
asserted affirmative defenses including waiver, release, estoppel and res judicata.
ROA, p. 99, 100. On May 23, 2014, Temporary Administrator moved to dismiss
Valentina’s injunction suit as a baseless cause of action pursuant to TEX.R.CIV.P.
91a. ROA, pp. 398-405. For the reasons set forth in Appellee’s Amended Brief
and this Response, the trial court properly dismissed Valentina’s suit as baseless.
ROA, pp. 406-407.
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PRAYER
For the foregoing reasons, Michael L. Fuqua, Temporary Administrator of
the Estate of Adel Sheshtawy, Deceased, respectfully requests that this Honorable
Court affirm the trial court’s order dismissing Appellant’s proceeding as a baseless
cause of action pursuant to TEX.R.CIV.P. 91a and for such further relief to which
he may be entitled.
Respectfully submitted on this 19th day of January, 2015.
FUQUA & ASSOCIATES, P.C.
5005 Riverway, Suite 250
Houston, Texas 77056
Telephone: 713.960-0277
Facsimile: 713.960-1064
mlfuqua@fuqualegal.com
By: /s/ Michael L. Fuqua
Michael L. Fuqua
State Bar No. 24055511
COUNSEL FOR APPELLEE
Michael L. Fuqua, Temporary
Administrator of the Estate of Adel
Sheshtawy, Deceased
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CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing
document has been sent in accordance with Rule 9.5 of the Texas Rules of
Appellate Procedure upon each of the persons listed below on this 19th day of
January, 2015
Valentina Spassova Sheshtawy, pro se
12206 Cabo Blanco Court
Houston, Texas 77041
email: valentinasheshtawy@yahoo.com
/s/ Michael L. Fuqua
Michael L. Fuqua
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CERTIFICATE OF COMPLIANCE
In accordance with TEX.R.APP.P. 9.4(i)(3), the undesigned certifies that
Appellee’s Response to Appellant’s Reply Brief contains 1,633 words.
/s/ Michael L. Fuqua
Michael L. Fuqua
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