                                                                               ACCEPTED
                                                                           05-15-00589-CV
                                                                FIFTH COURT OF APPEALS
                                                                           DALLAS, TEXAS
                                                                    11/25/2015 11:45:27 PM
                                                                                LISA MATZ
                                                                                    CLERK

                      No. 05-15-00589-CV
             IN THE COURT OF APPEALS FOR THE
                  FIFTH DISTRICT OF TEXAS         FILED IN
                                            5th COURT OF APPEALS
                          AT DALLAS             DALLAS, TEXAS
                                                 11/25/2015 11:45:27 PM
                                                        LISA MATZ
                                                          Clerk
           Estate of Alan Morgan Humphrey, Deceased


             On Appeal from the Probate Court No. 3
                      Dallas County, Texas
               Trial Court Cause No PR-13-02943



                    BRIEF OF APPELLANT
                        Denna M. Shaw
                            Pro Se
                         3650 Asbury
                       Dallas, TX 75205
                       (P) 214.219.1312
                    denna3644@yahoo.com


                          APPELLANT


Oral Argument Requested
                  IDENTITY OF PARTIES AND COUNSEL


1. Plaintiff/Appellant:    Denna M. Shaw

Trial counsel:             None

Appellate counsel:         None

2. Defendants/Appellees:   Roger Humphrey
                           George Abney


Trial counsel:             Brandy Baxter Thompson
                           Calloway, Norris, Burdette & Weber, PLLC
                           3811 Turtle Creek Blvd., Suite 400
                           Dallas, Texas 75219

                           Nathan Griffin
                           D. Woodard Glenn, P.C.
                           2626 Cole Avenue, Suite 510
                           Dallas, TX 75204

Appellate counsel:         Unknown




                                  ii
                                     TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL............................................... ii
TABLE OF CONTENTS …..................................................................... iii
INDEX OF AUTHORITIES ….................................................................. v
STATEMENT REGARDING ORAL ARGUMENT ................................. vii
STATEMENT OF THE CASE ............................................................... viii
ISSUES ON APPEAL ............................................................................. x
STATEMENT OF FACTS ....................................................................... 1
SUMMARY OF ARGUMENT ................................................................... 9

ARGUMENTS AND AUTHORITIES ....................................................... 10


.......................................................................................... 29
PRAYER ................................................................................................... 29
CERTIFICATE OF COMPLIANCE............................................................ 33
CERTIFICATE OF SERVICE………………………………………………… 33




                                                     Iv

                                   INDEX OF AUTHORITIES
Cases

In the Estate of Joseph T. Marek, II,
No. 05-13-01008-CV (Tex. App.—Dallas 2014) (mem. op) ..................

Fitzgibbon v. Hughes
No. 04-13-00261-CV, (Tex. App.—San Antonio 2014)(mem. op.) ........

Vickery v. Am. Youth Camps, Inc.,
532 S.W. 2nd 292 (Tex. 1976) (per curiam)…………………………………


Rules

Texas Rules of Professional Conduct




                                      Vi

             STATEMENT REGARDING ORAL ARGUMENT

Appellant respectfully requests oral argument. Appellant believes that the
opportunity for to be heard and answer questions would better help the
Court to address the issues. Appellant feels that she would be better able
to discuss her argument as opposed to writing it in a form unfamiliar to her.
                                ii
                      STATEMENT OF THE CASE

After the death of Alan M. Humphrey, Appellant Denna Shaw (Shaw) filed a

Petition for Declaratory Judgement and Application for Preliminary

Injunction (CR5-) Shaw sought a judgment that she was the spouse of Alan

M. Humphrey. Shaw‘s attorney never asked the court to approve the

Injunction.

Roger Humphrey, brother to Alan M. Humphrey, filed a response denying

that Denna M. Shaw was the wife of Alan Humphrey or that she was
entitled to any ownership of the estate outside of what was left to her in

Alan Humphrey‘s Last Will and Testament. (CR-24) The executor, George

Abney did not participate in this action.

The executor and Humphrey ignored the claim against the estate and

proceeded to administer the estate as they saw fit even though there was a

claim against the estate.

The case was set for trial, but due to Shaw‘s mother becoming ill and the

trial was postponed until July 21, 2014. On July 21, 2014, Shaw came

ready for trial, but was railroaded into accepting what she now knows is a

purported family settlement agreement. The purported agreement was read

into the record and included a contingency and time to accept from a

beneficiary who was not a party to the suit, G. Alex Carlson. One named

beneficiary, Scott Humphrey, was totally left out of the agreement and not

mentioned at all in the discussion on the record.

The court did not at that time render judgment. (CR-54 lines 5-20)

Mr. Carlson declined to accept their offer by the time required. Carlson sent

his refusal to accept the purported agreement by email to Roger

Humphrey‘s attorney, by email on August 20, 2014. (CR-68-70) and hired

his own attorney.

Roger Humphrey then filed a Joint Motion for Entry of Judgment Based on
Settlement Agreement. (CR 29) Thereafter Shaw filed a Motion to

Withdraw Settlement Agreement. (CR 62) Shaw‘s attorney withdrew at the

end of July 2014.

Kevin Spencer filed their notice of appearance on behalf of George

Alexander Carlson (Carlson) on September 25, 2014. (CR-72) Shortly after

Roger Humphrey filed a Supplement to Defendant‘s Original Answer to

Plaintiff‘s Original Petition, Counterclaim, and request for Disclosure,

adding a claim for Breach of Contract. (CR-74-80)

During a hearing the trial court did not know if the purported settlement

agreement could be enforced and asked the attorney‘s to brief the issue.

Spencer Law filed their brief (CR-105-111) but opposing counsel did not.



A trial was scheduled for January 2015, but notice was not sent to

Carlson‘s attorney of record. Once Carlson‘s attorney found out about the

hearing and lack of notice, they filed a Plea in Intervention on Carlson‘s

behalf, which was followed by a Motion to Strike by Roger Humphrey‘s

attorney. (CR-150) The Motion was granted by the court. At trial, the court

ruled against Shaw. A final judgment was signed on February 10, 2015.

Following the granting of the judgment, Shaw filed a Motion for New Trial.
(CR-185-227) Notice of Appeal to the 5th Court of Appeals was filed on
May 8, 2015. (CR-228)

The appellate record consists of the electronically filed one volume Clerk‘s

Record, consecutively numbered pages 1 – 242 and the electronically

filed three volume Reporter‘s Record.




                           ISSUES ON APPEAL

Did the trial court abuse its discretion in enforcing a purported settlement
agreement when the conditions precedent to formation were not
performed?

Did the trial court abuse its discretions when enforcing a purported
settlement agreement that was not in strict or literal compliance with the
agreement read into the record?

Did the trial court abuse its discretion in enforcing a purported family
settlement agreement in a probate matter when all parties were not in
agreement?
Did opposing counsel make statements in pleadings which they knew were
misleading, untruthful and not based on facts? Did this cause harm to
Shaw?

Did the trial court deny Shaw her right to put on her case? Were Shaw‘ due
process rights denied?

Did the trial court abuse its discretion when G. Alex Carlson was denied his
right to intervene and be heard as an interested party?




                                     X
TO THE HONORABLE COURT OF APPEALS:

                         STATEMENT OF FACTS
  1. Alan M. Humphrey, husband of Denna M. Shaw completed

suicide on April 20, 2013. Shaw discovered his body. Shaw was in total

shock. Humphrey had been ill for some time (he was granted disability in

2008) and on a large amount of medication for chronic pain, which caused

him to be housebound and bedridden for months at a time. Due to his

illness and inability to function normally, Shaw looked after Humphrey‘s
needs. Humphrey‘s family knew he was fragile and on medication.

  2. It should be noted that Roger Humphrey and Alan Humphrey were

not close and had a very contentious relationship, especially when it came

to Alan‘s stance on his family. For example since moving to our present

home in 2008, not one member of the immediate Humphrey family has

ever visited. Roger Humphrey had no personal knowledge of what or how

Alan Humphrey and Shaw conducted their personal lives or their business.

Interestingly Roger Humphrey, on finding out about Alan Humphrey‘s death

came to Dallas from his out of state home in a blaze of speed that would

make Carl Lewis proud. Much like the family in the Joseph T. Marek

case(No. 05-13-01008-CV) heard by this court, on arriving in Dallas, Roger

Humphrey set about to make sure that Shaw was not going to receive what

she was entitled to and told she would receive.

  3. Shaw was forced to file a case in probate court to preserve her

rights.(CR-5)It is uncontroverted that Shaw and Humphrey had lived

together continuously from 1998 until Humphrey‘s untimely death. It is

uncontroverted that Shaw and Humphrey represented to others that they

were married and were thought of as such by the community as evidenced

by affidavits. (CR-12-22) However, Roger Humphrey seems to think that

only his thoughts and/or those of the other Humphrey members, all
interested parties with something to gain matter over uninterested

community members who do not stand to profit and who interacted with

Denna and Alan over a number of years.

   4. Shaw hired an attorney and expected him to properly handle her

case, however he ramrodded Shaw into agreeing to a purported

settlement agreement. (CR-37-55)


   5. The purported settlement read into the record contemplated a release
from Shaw and MR. ALDOUS:

―Alex Carlson who is one of the residuary beneficiaries who is Ms. Shaw‘s
son. In exchange for a release from those two as flowing to the estate…..‖
(CR-39, Lines 12-15) In exchange for that, Ms. Shaw will waive any and all
claims to the estate and that is also contemplated for Alex Carlson. That
they will not make any more claims…‖ (CR-39, lines 20-23)

   6. Further noted on the record is the fact that ―All of this is agreed to by
 Ms. Shaw; however Mr. Carlson, who is of the age of majority has to
consult with his attorney and will have to agree to any of these terms‖ (CR-
40, lines 22-25)

   7. (CR-43, lines 4-11) ―And in terms of a deadline for Mr. Carlson to
either accept or reject, I did not discuss that with them other than I know
that the lawyer he‘s been consulting with is out until Wednesday. I would
ask for – until midweek next week.
   MR GRIFFIN: How about the end of business on Monday, would that be
   sufficient?
   Mr. ALDOUS: I think that‘s sufficient.

   MR. GRIFFIN: …it goes without saying, but I‘d say it anyway, that this
   matter will be dismissed with prejudice.
   MR. ALDOUS: Correct
   THE COURT: The action now pending before the court cause number
   we‘re talking about today will be dismissed with prejudice. (CR-43, lines
   14-19)

   8. MR. GRIFFIN: And you understand that you‘ve agreed to accept the
      home at 3650 Asberry paid up-to-date at the time of the transfer to
      you in exchange for waiving any other claims you might have against
      the estate?

      A. Correct

      Q. And you understand that your son Alex has to have his own
      separate agreement to also agree to have that home deeded to both
      you and he?

      A. Yes (CR-45, lines 4-12)

   9. MR. GRIFFIN: And you understand that you will have no further
      claims against the estate after this proceeding, after this agreement, if
      it becomes final? (CR-46, lines 2-4)

   10.The court did not render judgment at the conclusion of the hearing
   stating: Now we‘re finished.
   Mr. ALDOUS: Thank you, Your Honor.
   THE COURT: Thank you all for your efforts in this case. I know it has
   been a somewhat arduous undertaking.
   MR. GRIFFIN:Thank you.
   MS. THOMPSON: Thank you, Judge (CR-54, lines 13-19)

      11.After the hearing a document was produced to Denna Shaw which

was not in conformity with the purported settlement agreement read into

the record. In addition to additional language not discussed or agreed to on

the record, Alex Carlson did not agree to participate.

12. After Carlson did not agree to participate in the purported settlement

agreement and after Shaw refused to sign a document that was not in
compliance with the record Roger Humphrey filed a petition with the court

complaining that ―To date, all Parties have signed the Settlement

Agreement except for Denna Shaw‖ (CR-30, #6) Which was untrue.

George Alexander Carlson, who was included in the original documents

produced for signature also did not sign. Also, the original document listed

clearly lists George Alexander Carlson as a Party.

In addition R. Humphrey complains that is ―consistent with the settlement

agreement read into the record‖ yet failed to produce a document that was

consistent with the record.

13. After Carlson refused to sign and hired representation, Shaw withdrew

her agreement. The Humphrey‘s attempted to enforce the purported

settlement agreement and totally ignore the fact that a person who they
stated must also agree did not agree.

14. Roger Humphrey then filed a Supplement to Defendant‘s Original

Answer to Plaintiff‘s Original Petition, Counterclaim, and request for

Disclosure (CR-74) stating ―Denna and George Alexander Carlson will

receive the following property‖ omitting the need for G. Alex Carlson‘s

signature and approval to put the deed in both names. (CR-75) Adding

language about a storage that was not mentioned or discussed at the

hearing (CR-75, 4a-iii) Stating that ―Denna or Alex shall be responsible for
any and all costs associated with the Stored Personal Property‖ (CR-75,

4f) and (CR-76, 4j) Denna shall assume all debt related to 3650 Asbury,

including taxes, insurance and the mortgage. All outstanding expenses will

be paid up to date at the time of transfer of property to Denna and Alex.

Again transferring debts, and property to Alex that, according to the record

required Alex to agree. Alex was included on the deed without his specific

approval and that is a violation of what opposing counsel stated was a

requirement.

15. Roger Humphrey asserted a Breach of Contract claim against Shaw,

but Shaw is not required to perform as there was no contract to breach.

The purported agreement was not rendered. It was not intended to be final

as evidenced by opposing counsel‘s own words ―if it becomes final‖ with no

objection by attorney‘s. Not a one. It was clear Alex Carlson was required

to agree sign off in order to have the deed placed in both names and have

the house transferred.

16. In addition, a family settlement agreement in probate requires for all to

agree. Even if Denna and Alex Carlson signed the ‗agreement‖ it would fail

because another beneficiary who stood to have his share altered was not

included. Counsel tries to get around that by stating something to the

effect of he (Scott Humphrey) is in agreement without other proof. How
easy would that be for everyone? Someone could just state…oh he or she

agrees. I have not found any information that supports that reasoning.


17. A trial date was ultimately set attempting to enforce the purported

agreement by a Breach of Contract claim. A notice was not sent to Carlson

or his attorney. Carlson‘s attorney filed a Plea in Intervention (CR-138),

which was denied by Judge Peyton. After denial of the Plea in Intervention,

the Breach of contract claim was heard by the Court. Although the

―agreement‖ did not conform to what was read into the record, did not

conform to a probate family settlement agreement (as all did not agree),

Alex Carlson did not agree to participate, the Court disregarded this

evidence and ruled in favor of Roger Humphrey ordering Shaw to pay

damages.
