In re Estate of Sheshtawy

• Decision Date: 29 September 2015
• Docket Number: NO. 14–14–00515–CV,14–14–00515–CV
• Citation: 478 S.W.3d 82
• Parties: In the Estate of Adel Sheshtawy, Deceased
• Court: Texas Court of Appeals

478 S.W.3d 82

In the Estate of Adel Sheshtawy, Deceased

NO. 14–14–00515–CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinions filed September 29, 2015.

Valentina Sheshtawy, Houston, TX, for appellant.

Michael Fuqua, Houston, TX, for appellee.

Panel consists of Justices Jamison, Busby, and Brown

MAJORITY OPINION

J. Brett Busby, Justice

Appellant Valentina Spassova Tasseva Shestawy filed a petition in the District Court of Harris County seeking to enjoin the sale of her house by appellee Michael Fuqua, temporary administrator of the estate of Valentina's deceased husband, Adel Shestawy. Valentina alleged the residence qualified as her homestead under the Texas Constitution and Texas Estates Code and thus could not lawfully be sold. The case was transferred to the Harris County Probate Court with jurisdiction over the administration of Adel's estate. The administrator filed a motion to dismiss the case as a baseless cause of action, arguing Valentina had signed a settlement agreement waiving her homestead rights, and the probate court granted the motion.

Valentina raises seven issues on appeal. In her first three issues, she argues the probate court erred in denying her request for a temporary injunction. We overrule these issues because the probate court's dismissal is a final judgment that rendered the denial of a temporary injunction moot. Valentina also asserts that the settlement agreement is revocable, and the probate court thus erred in granting the administrator's motion and awarding attorney's fees. But Valentina's petition does not suggest that the agreement is revocable. We therefore hold that the probate court properly granted the administrator's motion to dismiss and awarded the administrator reasonable and necessary attorney's fees. Finally, Valentina contends the probate court erred by approving the administrator's inventory list that included the homestead property and by not setting aside the homestead property for the use of the family. We overrule these issues because Valentina did not include them in her petition, and these claims do not demonstrate that her petition has any basis in law or fact given her waiver of the homestead right. We affirm the judgment of the probate court.

BACKGROUND

Valentina filed an original petition in the district court seeking an injunction prohibiting appellee, as temporary administrator of the estate, from selling her home on Cabo Blanco Court in Houston, Texas. To support her request for injunctive relief, Valentina alleged the following facts in her original petition.

Valentina and Adel entered into an informal marriage in 2005. Adel purchased the Cabo Blanco residence during the marriage, and the couple lived in the home beginning in 2008. The couple had a child, Lily, in April of that year. Valentina also had a minor child, Nikolay, who resided in the home.

In August 2010, the couple began divorce proceedings, during which the court concluded that an informal marriage existed between Valentina and Adel. Before the divorce was finalized, Adel died. The divorce case was subsequently transferred to the probate court with jurisdiction over Adel's estate, where Valentina filed a petition seeking a declaration of informal marriage that is included in our record. According to Valentina, the Cabo Blanco residence should have been removed from Adel's estate because it qualifies as a homestead for her and her children. Nevertheless, the property was left in Adel's estate.

Subsequently, Valentina was advised by her then-attorney to sign a settlement agreement of the informal-marriage suit, which she did in May 2013. The probate court approved the settlement agreement in July 2013. The settlement agreement granted Cameron McCulloch, attorney ad litem for Lily, the right to sell the Cabo Blanco residence. Under the agreement, McCulloch would use the proceeds from the sale of the house to purchase a new home for Valentina and her children. Our record shows that in January 2014, Valentina filed a motion in the informal-marriage suit (allegedly on behalf of Lily) seeking to set aside and void the settlement agreement, which the probate court denied.

Valentina filed her petition seeking to enjoin the sale of the Cabo Blanco residence in district court in April 2014. In her petition, Valentina alleged that she signed the "grossly unfair" settlement agreement due to poor advice from her attorney, and that she planned to sue him for malpractice. Furthermore, Valentina alleged that at the time the settlement agreement was executed, McCulloch was neither Lily's guardian ad litem nor guardian of the estate. Valentina alleged McCulloch thus did not have the authority to sign the agreement on Lily's behalf. Based on these allegations, Valentina took the position that selling the residence would violate section 52, Article 16 of the Texas Constitution.

After Valentina filed her petition in district court, the case was transferred to the probate court with jurisdiction over Adel's estate, which denied her request for a temporary injunction. The administrator filed a motion to dismiss the petition as a baseless cause of action under Rule 91a of the Texas Rules of Civil Procedure. The probate court granted the motion in June 2014 and awarded the administrator $3,715 in reasonable and necessary attorney's fees. This appeal followed.¹

ANALYSIS

Valentina raises seven issues on appeal. Because her first three issues challenge the probate court's denial of the temporary injunction, we consolidate them into one.

I. Valentina's request for temporary injunctive relief was mooted by the probate court's final order dismissing her petition.

To obtain temporary injunctive relief, a party must show (1) a harmful act, (2) imminent, irreparable harm, and (3) no adequate remedy at law. Kaufmann v. Morales, 93 S.W.3d 650, 653 (Tex.App.–Houston [14th Dist.] 2002, no pet.). An interlocutory order granting or denying a temporary injunction is normally reviewed on appeal for an abuse of discretion. James v. Easton, 368 S.W.3d 799, 805 (Tex.App.–Houston [14th Dist.] 2012, pet. denied). A final judgment renders moot a challenge to a trial court's decision granting or denying temporary injunctive relief. See Isuani v. Manske–Sheffield Radiology Group, P.A., 802 S.W.2d 235, 236 (Tex.1991).

Valentina argues the probate court abused its discretion in denying her request for a temporary injunction. She contends that a permanent injunction will likely be granted because the home qualifies as her homestead under the Texas Estates Code, and that she will suffer imminent and irreparable harm if the court does not enjoin the administrator from selling the home.

The judge's order granting the administrator's motion to dismiss the petition as a baseless cause of action is a final judgment, however, not an order granting or denying Valentina's request for temporary injunctive relief. This final judgment rendered moot any issue on appeal relating to Valentina's request for a temporary injunction. See Isuani, 802 S.W.2d at 236 ; Jordan v. Landry's Seafood Rest., Inc., 89 S.W.3d 737, 741 (Tex.App.–Houston [1st Dist.] 2002, pet. denied) ; Lowe v. Farm Credit Bank of Texas, 2 S.W.3d 293, 300 (Tex.App.–San Antonio 1999, pet. denied). We overrule Valentina's first three issues. We address Valentina's request for permanent injunctive relief in Part 11 below.

II. The probate court properly dismissed Valentina's petition and awarded the administrator's attorney's fees because the request for injunctive relief had no basis in law or in fact.

We next consider Valentina's sixth and seventh issues, addressing them together. In her sixth issue, Valentina argues the settlement agreement waiving her homestead rights is revocable. In her seventh issue, Valentina asserts that the probate court erred in dismissing her petition as baseless and awarding the administrator $3,715 in reasonable and necessary attorney's fees.

A. Standard of review and applicable law

Rule 91a provides that a party may move to dismiss a cause of action on the grounds that it has no basis in law or fact. Tex. R. Civ. P. 91a. A cause of action has no basis in law if the allegations taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. Id. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded. Id.

We review de novo whether a cause of action has any basis in law or in fact. Wooley v. Schaffer, 447 S.W.3d 71, 75 (Tex.App.–Houston [14th Dist.] 2014, pet. denied). We base our review on the allegations of the live petition and also consider any attachments thereto. Id. To determine whether the cause of action has a basis in law and fact, we construe the pleadings liberally in favor of the plaintiff, looking to the pleader's intent and accepting as true the factual allegations in the pleadings. Id. We apply the fair-notice pleading standard to determine whether the allegations of the petition are sufficient to allege a cause of action. Id. ; see Roark v. Allen, 633 S.W.2d 804, 810 (Tex.1982) ("A petition is sufficient if it gives fair and adequate notice of the facts upon which the pleader bases his claim."). Under the rule, the court must award the prevailing party on the motion all costs and reasonable and necessary attorney fees incurred with respect to the challenged cause of action in the trial court. Tex.R. Civ. P. 91a.7.

As noted above, Valentina's petition seeks to enjoin the sale of the Cabo Blanco residence, which she claims as her homestead. A surviving spouse retains the right to use and occupy the homestead so long as he or she elects to do so. Tex. Const. art. XVI, § 52 ; Tex. Estates Code Ann. § 102.003 (West 2014). This right continues as long as the surviving spouse uses or occupies the property, or until he or she abandons that right. Moore v. Moore, 89 Tex. 29, 33 S.W. 217, 218 (1895) ; Copeland v. Tarrant Appraisal Dist., 906 S.W.2d 148, 151 (Tex.App.–Fort...