in the Estate of Adel Sheshtawy

Opinion

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.

-1- 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.

-2- 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

9. The trial court approved the settlement agreement. Appellee’s

Appendix, Item 4; ROA, pp. 124-126.

-3- 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

-4- 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).

-5- 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.

-6- 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

-7- 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

-8- 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.

-9-