                                                                                              ACCEPTED
                                                                                           14-15-00759-cv
                                                                          FOURTEENTH COURT OF APPEALS
                                                                                       HOUSTON, TEXAS
                                                                                     9/25/2015 4:24:59 PM
                                                                                    CHRISTOPHER PRINE
                                                                                                   CLERK


                              CAUSE NO. 14-15-00759-CV

                                         In The                       FILED IN
                                                               14th COURT OF APPEALS
                                                                  HOUSTON, TEXAS
                           FOURTEENTH COURT OF APPEALS         9/25/2015 4:24:59 PM
                                                               CHRISTOPHER A. PRINE
                                  at HOUSTON, TEXAS                     Clerk



                                 DALE GENE JOHNSON,
                                      Appellant,

                                           v.

                       DENISE WALTERS, INDEPENDENT EXECUTOR
                     OF THE ESTATE OF INGA J. JOHNSON, DECEASED,
                                       Appellee.


                   On Petition for Permissive Interlocutory Appeal from
                        Cause No. 409,860 in Probate Court No. 2 of
                  Harris County, Texas, Hon. Mike Wood, Presiding Judge


                APPELLEE'S RESPONSE TO APPELLANT'S PETITION FOR
                       PERMISSIVE INTERLOCUTORY APPEAL


                                         Judith W. Lenox
                                         Texas Bar No. 12204400
                                         Dinkins Kelly Lenox Lamb & Walker, LLP
                                         2500 East T.C. Jester Blvd., #675
                                         Houston, TX 77008
                                         Tel. 713-759-0900
                                         Fax 713-759-9549
                                         jlenox@dinkinslaw.com

                                         ATTORNEYS FOR APPELLEE



JOH305600
ND: 4841-0347-9080, v. 1
                           IDENTITY OF PARTIES AND COUNSEL


Appellant:                         Dale Gene Johnson

Appellant's Counsel:               Alan B. Daughtry
                                   Texas Bar No. 00793583
                                   3535 West Alabama, Suite 444
                                   Houston, Texas 77098
                                   Telephone: 281-300-5202
                                   Facsimile: 281-404-44 78
                                   alan@alandaughtrylaw.com

                                   Michael Lawrence Mott
                                   Texas Bar No. 00797119
                                   Law Office of Michael L. Mott, PC
                                   3355 W. Alabama, Suite 444
                                   Houston, Texas 77098-1876
                                   Telephone: 713-228-1010
                                   Facsimile: 866-290-6351
                                   mlm@mottlawpc.com


Appellee:                          Denise Walters, Independent Executor of
                                   the Estate of Inga J. Johnson, Deceased

Appellee's Counsel:                Judith W. Lenox
                                   Texas Bar No. 12204400
                                   Dinkins Kelly Lenox Lamb & Walker, LLP
                                   2500 East T.C. Jester Blvd., #675
                                   Houston, Texas 77008
                                   Telephone: 713-759-0900
                                   Facsimile: 713-759-9549
                                   jlenox@dinkinslaw.com



JOH305600
ND: 4841-0347-9080, v. 1
                                  TABLE OF CONTENTS

Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   1


Table of Contents ........................................... ii

Statement of Undisputed Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Index of Authorities .......................................... 3

Issue Presented .............................................. 4

Summary of Arguments and Authorities .......................... 4

Conclusion ................................................ 8

Certificate of Service ........... ~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Certificate of Compliance .................................... 11




JOH305600
ND: 4841-0347-9080, v. 1                         ii
                            STATEMENT OF UNDISPUTED FACTS

1.                   Inga J. Johnson ("Inga") and Dale Gene Johnson ("Dale") were

married on or about December 23, 2005.

2.                   On the date of their marriage, Dale owned properties known as

(i) 167 Isaacks Road, (ii) 716 1st Street East, (iii) 317 North Avenue H, and

(iv) 175 Isaacks Road, all of which properties (together "Properties") are in

Humble, Harris County, Texas.

3.                   By Deeds dated October 10, 2008, and December 19, 2008,

Dale conveyed an undivided one-half (1/2) interest in the Properties to Inga.

4.                   On January 5, 2010, Inga filed for divorce from Mr. Johnson in

the 246th Judicial District Court of Harris County, Texas ("Divorce Court").

5.                   On July 1, 2011, Inga and Dale executed an Informal Settlement

Agreement ("ISA"), specifically made to be pursuant to Texas Family Code

Section 6.604.

6.                   Inga died on December 14, 2011.

7.                   The Partition or Exchange Agreement referenced in the ISA was

never signed.

8.                   The ISA was never examined by the Divorce Court for a


JOH305600
ND: 4841-0347-9080, v. 1                      1
determination as to whether the terms of the ISA were just and right, as set

out in Texas Family Code Section 6.604.




JOH305600
ND: 4841-0347-9080, v. 1              2
                           INDEX OF AUTHORITIES

Cases                                                              Page

In the Interest of M.A.H.J A.B.H.J and C. T.H.J Children) 365 SW3d
       814 (Tex.App.-Dallas 2012, no pet.) ........................ 6

Byrnes v. Byrnes, 19 SW3d 556 (Tex.App.-Fort Worth 2000, no writ) .... 8

Statutes

Tex. Family Code§ 4.102 ..................................... 8

Tex. Family Code § 6.601 ..................................... 5

Tex. Family Code § 6.602 ..................................... 5

Tex. Family Code § 6.604 .............................. 1 - 2, 4 - 7




JOH305600
ND: 4841-0347-9080, v. 1            3
                                         ISSUE PRESENTED

          Whether an Informal Settlement Agreement ("ISA"), executed pursuant to Texas
          Family Code Section 6.604, which ISA on its face contemplates a formal Partition
          or Exchange Agreement to be executed at a future date, some of the terms of
          which are included only by general references to a manual, is binding on the
          parties as a conventional contract, without a just and right determination by the
          Court.

                           SUMMARY OF ARGUMENTS AND AUTHORITIES

                     Section 6.604 of the Texas Family Code provides, as follows:

                            (a)     The parties to a suit for dissolution of a marriage may agree
                     to one or more informal settlement conferences and may agree that the
                     settlement conferences may be conducted with or without the presence of
                     the parties' attorneys, if any.

                            (b)   A written settlement agreement reached at an informal
                     settlement conference is binding on the parties if the agreement:

                                    (1)   provides, in a prominently displayed statement that is
                     in boldfaced type or in capital letters or underlined, that the agreement is
                     not subject to revocation;

                                   (2)    is signed by each party to the agreement; and

                                   (3)    is signed by the party's attorney, if any, who is present
                     at the time the agreement is signed.

                           (c)    If a written settlement agreement meets the requirements of
                     Subsection (b), a party is entitled to judgment on the settlement agreement
                     notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of
                     law.

                             (d)    If the court finds that the terms of the written informal
                     settlement agreement are just and right, those terms are binding on the
                     court. If the court approves the agreement, the court may set forth the
                     agreement in full or incorporate the agreement by reference in the final
                     decree.


JOH305600
ND: 4841-0347-9080, v. 1                            4
                             (e)   If the court finds that the terms of the written informal
                     settlement agreement are not just and right, the court may request the
                     parties to submit a revised agreement or set the case for a contested
                     hearing.

Tex. Family Code §6.604.

                     An Informal Settlement Agreement is only one of three (3)

procedures for alternative dispute resolution that are described in

Subchapter G of the Texas Family Code. Significantly, the first two (2)

procedures, arbitration (Section 6.601) and mediation (Section 6.602), do

not have the provisions related to the Court's just and right determination.

Obviously, these procedures are conducted by a neutral third party. Since

an informal settlement conference may occur with or without the presence

of the parties' attorneys and it is not conducted by a neutral third party,

presumably, the additional safeguard of the Court's review is added.

Tex. Family Code §6.601-602.

                     Section 6.604 states that a written settlement agreement

reached at an informal settlement conference is binding on the parties if the

agreement meets certain specifications. Tex. Family Code §6.604 (emphasis




JOH305600
ND: 4841-0347-9080, v. 1                           5
supplied). The question becomes, then, what does "binding" mean in this

context. Tex. Family Code §6.604.

                     In In the Interest of M.A.H., A.B.H., and C. T.H., Children, 365

SW3d 814 (Tex.App.-Dallas 2012, no pet.), dealing with a negotiated

agreement in a divorce proceeding which the wife was challenging, the

Court affirmed the trial court's judgment ordering the parties divorced, but

in all other respects remanded the case for further proceedings on the

enforcement of the agreement. M.A.H., at 822. The appellate court, after

setting forth the provisions of Section 6.604(b) of the Texas Family Code,

which describes the circumstances to make an agreement binding on the

parties, stated as follows:

          If the agreement meets these requirements, then "a party is entitled to judgment
          on the settlement agreement notwithstanding Rule 11, Texas Rules of Civil
          Procedure, or another rule of law." Id. §6.604(c). Although an agreement that
          meets these requirements is binding on the parties) it is not binding on the trial court
          unless the court finds the agreement's terms "are just and right. 820 Id., §6.604(d).
          If the court so finds, then the agreement is binding on the court. However, if the
          court finds the terms are not just and right, "the court may request the parties to
          submit a revised agreement or-set the case for a contested hearing." Id.
          §6.604(e). M.A.H.) at 819-820. (See also Camero v. Camero, 2014 WL 2547607,
          holding that the trial court had impliedly found a written agreement pursuant to
          an informal settlement conference to be just and right when it rendered judgment
          that the agreement was binding .and enforceable). (emphasis supplied)

M.A.H., at 819-820.



JOH305600
ND: 4841-0347-9080, v. 1                          6
The appellate court in M.A.H. affirmed the trial court's judgment ordering

the parties divorced, but in all other respects sent the case back for further

proceedings regarding the agreement, noting that the "just and right"

determination made by the trial court appeared to be based in part on the

trial court's erroneous decision to enforce certain provisions in the

agreement regarding the children, noting that those issues are outside the

scope of an agreement under Section 6.604 of the Texas Family Code.

M.A.H., at 822.

                     In the present case, Dale is, on the one hand, saying that the ISA

was made pursuant to Section 6.604 of the Texas Family Code, but at the

same time he ignores an important step set out in that very statute. Once

the ISA was signed, neither Dale nor· Inga could unilaterally rescind the

agreement, it is binding on them; however, that does not make the ISA

enforceable under Section 6.604. The Court must review the ISA and,

whether or not a divorce is actually granted, determine if the terms of the

ISA are just and right. Tex. Family Code §6.604.

                     The deeds done in 2008 resulted in both Dale and Inga owning

undivided one-half (1/2) interests in the Properties as their respective


JOH305600
ND: 4841-0347-9080, v. 1                       7
separate property. Property owned or claimed by a spouse before marriage

or acquired by a spouse during marriage by gift is that spouse's separate

property. Tex. Family Code §§3.001(1) and (2). Separate property is not a

proper subject of a Partition or Exchange Agreement. Tex. Family Code

§4.102. Accordingly, the contemplated Partition and Exchange Agreement,

in and of itself, could not operate to transfer Inga's undivided one-half (1/2)

separate property interest in the Properties to Dale. See Byrnes v Byrnes,

19 SW3d 556 (Tex.App.-Fort Worth 2000, no writ). In fact the terms of

the ISA and the proposed Partition and Exchange Agreement do not even

require deeds to be executed by Inga. Rather the attached schedules merely

set aside to Dale and Inga the real property in their respective names, and

the lists in the schedules are specifically not exclusive.

                                        CONCLUSION

                     Appellee agrees that the issue regarding the enforceability of the

ISA is a controlling legal issue in the probate litigation. Accordingly,

Appellee has no objection to the Court's granting the petition and accepting

this interlocutory appeal.




JOH305600
ND: 4841-0347-9080, v. 1                       8
                           Respectfully submitted,

                           DINKINS KELLY LENOX LAMB &
                                     ' L.L.P .


                                   . Lenox
                                 Bar No. 12204400

                           2500 East T.C. Jester Blvd., #675
                           Houston, Texas 77008
                           Telephone: 713- 759-0900
                           Facsimile: 713-759-9549
                           jlenox@dinkinslaw.com




JOH305600
ND: 4841-0347-9080, v. 1     9
                           CERTIFICATE OF SERVICE

           I certify that a true and correct copy of this document was
served upon counsel listed below through e-filing service, on the 25th day
of September, 2015.

Alan B. Daughtry
3535 West Alabama, Suite 444
Houston, Texas 77098
alan@alandaughtrylaw. com

Michael Lawrence Mott
Law Office of Michael L. Mott, PC
3355 W. Alabama, Suite 444
Houston, Texas 77098-1876
mlm@mottlawpc.com




JOH305600
ND: 4841-0347-9080, v. 1             10
                           CERTIFICATE OF COMPLIANCE

            I hereby certify that the foregoing pleading has been compiled
using a computer program in WordPerfect with 14-point font conventional
typeface for the body of the pleading, and 12-point font for inserts.
Excluding the portions of the pleading not counted by Tex. R. App. P. 9, this
pleading contains 1, 753 words.




JOH305600
ND: 4841-0347-9080, v. 1              11
