Affirmed and Majority and Dissenting Opinions filed September 29, 2015.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00515-CV

          IN THE ESTATE OF ADEL SHESHTAWY, DECEASED


                    On Appeal from the Probate Court No 1
                             Harris County, Texas
                      Trial Court Cause No. 407,499-406

                     MAJORITY                OPINION

      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.


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      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.

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       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

       1
        Our record shows that in November 2014, Valentina filed with the probate court a
supplement to her petition seeking to enjoin the sale of the Cabo Blanco residence. Because the
probate court had dismissed her injunction suit in June 2014, we do not consider the
supplemental petition.

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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 II 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

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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, 33 S.W. 217, 218 (Tex. 1895);
Copeland v. Tarrant Appraisal Dist., 906 S.W.2d 148, 151 (Tex. App.—Fort
Worth 1995, writ denied). Homestead rights can be waived. See Ferguson v.
Ferguson, 111 S.W.3d 589, 598 (Tex. App.—Fort Worth 2003, pet. denied).

      B.       Whether Valentina’s petition has a basis in law and fact

      In her petition, Valentina conceded that she signed the settlement agreement
and that the agreement granted McCulloch the ability to sell the homestead. Even
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a liberal construction of the petition demonstrates that Valentina’s request to enjoin
the sale of her homestead has no basis in law or in fact because the petition
acknowledges that she signed an agreement permitting the sale, and it does not ask
the court to revoke that agreement.       Therefore, a rule of law (waiver) bars
Valentina’s cause of action to enjoin the sale, and the facts pleaded refute that
cause of action. See, e.g., In re Essex Ins. Co., 450 S.W.3d 524, 527 (Tex. 2014)
(per curiam) (holding trial court abused discretion in denying Rule 91a motion
where cause of action barred by legal rule); Dailey v. Thorpe, 445 S.W.3d 785,
789–90 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (holding trial court did not
err in granting Rule 91a motion where documents attached to petition disproved
factual basis of cause of action). We hold the probate court properly dismissed her
petition and awarded the administrator—as the prevailing party on the motion—
reasonable and necessary attorney’s fees under Texas Rule of Civil Procedure 91a.

      Valentina makes two arguments in support of her contention that her petition
nevertheless has a basis in law and in fact.        Valentina first argues that the
settlement agreement is revocable. But making this argument on appeal cannot
supply a basis in law or fact because the petition did not ask the probate court to
revoke the agreement, and Valentina did not include any allegations or plead any
causes of action that would support revocation.        Absent allegations of fraud,
misrepresentation, or deceit, a party is bound by the terms of the contract she
signed, regardless of whether she read it or believed it had different terms. In re
McKinney, 167 S.W.3d 833, 835 (Tex. 2005). Valentina’s petition did not contain
any such allegations.

      Our dissenting colleague argues that Valentina’s statement in her petition
that the settlement agreement was “grossly unfair” should be interpreted as a claim
that the agreement was unconscionable. But Valentina’s petition does not ask the

                                          7
trial court to set aside the settlement agreement on unconscionability grounds.2
Indeed, the petition does not ask the court for any relief regarding the agreement at
all; it attributes Valentina’s decision to sign the unfair agreement to “poor advice”
from her lawyer and states that she plans to sue the lawyer for malpractice.
Valentina certainly knew how to ask the court to set aside the settlement
agreement, having previously done so unsuccessfully in the informal-marriage suit.
We see no indication in this petition that Valentina intended to renew that
unsuccessful request.        Though Wooley dictates that we construe a petition
dismissed under rule 91a liberally, 447 S.W.3d at 75, we may not “use a liberal
construction of the petition as a license to read into the petition a claim that it does
not contain.” Flowers v. Flowers, 407 S.W.3d 452, 458 (Tex. App.–Houston [14th
Dist.] 2013, no pet.) (holding trial court erred in modifying terms of divorce decree
regarding possession where party did not seek that relief).

       Valentina next attempts to rely on Lily’s homestead rights. Valentina argues
that McCulloch was not Lily’s guardian ad litem or guardian of the estate when he
signed the settlement agreement on Lily’s behalf.                But it is undisputed that
McCulloch was Lily’s attorney ad litem at all relevant times, and Valentina’s
petition does not purport to sue on Lily’s behalf. Thus, Valentina may not argue
on appeal that she was entitled to an injunction based on a violation of Lily’s
homestead rights. Accordingly, we overrule her sixth and seventh issues.

III.   Valentina did not plead for the relief requested in her fourth and fifth
       issues.
       In her fourth issue, Valentina asserts that the probate court erred in
approving the administrator’s inventory that included the Cabo Blanco residence,

       2
         Nor is it clear that setting aside the settlement agreement in its entirety would be the
proper remedy even if the agreement were unconscionable. See Hoover Slovacek LLP v. Walton,
206 S.W.3d 557, 565 (Tex. 2006).

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which should not have been listed because it qualified for the homestead
exemption. In her fifth issue, Valentina argues that the court erred by not setting
aside the Cabo Blanco residence as her homestead. We address these issues
together.

         Given the settlement agreement in which Valentina waived her homestead
rights, these complaints do not indicate that Valentina’s request for injunctive
relief has any basis in law or in fact. In addition, Valentina did not include either
of these issues in her petition. See Cunningham v. Parkdale Bank, 660 S.W.2d
810, 813 (Tex. 1983) (“[A] party may not be granted relief in the absence of
pleadings to support that relief.”); Salomon v. Lesay, 369 S.W.3d 540, 553 (Tex.
App.–Houston [1st Dist.] 2012, no pet.); see also Tex. R. Civ. P. 301 (“The
judgment of the court shall conform to the pleadings, the nature of the case proved
and the verdict, if any, and shall be so framed as to give the party all the relief to
which he may be entitled either in law or equity.”). Rather, these issues appear to
relate to rulings made by the probate court in the case regarding administration of
Adel’s estate, which were not the subject of Valentina’s notice of appeal. We
overrule Valentina’s fourth and fifth issues.

                                    CONCLUSION

         Having overruled Valentina’s issues, we affirm the judgment of the probate
court.




                                       /s/       J. Brett Busby
                                                 Justice


Panel consists of Justices Jamison, Busby, and Brown (Jamison, J., dissenting).

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