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


                    DISSENTING OPINION
      I disagree with the majority’s conclusion that because Valentina signed a
settlement agreement waiving her homestead rights, she is unable to contest the
validity of that very agreement. I therefore respectfully dissent.

      Rule 91a provides a mechanism for the quick dismissal of causes of action
with no basis in law or fact, as judged solely by the sufficiency of the pleadings
raising the cause of action and any properly attached pleading exhibits. Tex. R.
Civ. P. 91a.1, 91a.6. It is a harsh remedy that should be strictly construed. See
Gaskill v. VHS San Antonio Partners, LLC, 456 S.W.3d 234, 238 (Tex. App.—San
Antonio 2014, pet. filed). A cause of action has no basis in law—the part of the
rule on which the majority appears to rely—if the allegations, taken as true,
together with inferences reasonably drawn from them, do not entitle the claimant to
the relief sought. See Tex. R. Civ. P. 91a.

      The majority essentially holds that because Valentina admitted in her
petition that she signed a settlement agreement that included an apparent waiver of
her homestead rights, she has no possible avenue for asserting those homestead
rights to prevent the sale of her home. While acknowledging that in her petition
Valentina asserts the settlement agreement at issue was “grossly unfair,” the
majority emphasizes that she does not explicitly seek revocation of the agreement
on that basis. Valentina, however, does seek to enjoin performance under the
terms of the agreement. The clear implication of this request is that the waiver of
homestead rights contained in the settlement agreement should not be enforced
because it would be unconscionable to do so. Indeed, the Texas Supreme Court
has held that “grossly unfair bargains should not be enforced.” Venture Cotton Co-
op. v. Freeman, 435 S.W.3d 222, 228 (Tex. 2014) (citing 49 David R. Dow &
Craig Smyser, Texas Practice Series: Contract Law § 3.9 (2005)); see also Hoover
Slovacek LLP v. Walton, 206 S.W.3d 557, 565 (Tex. 2006) (“If a contract or term
thereof is unconscionable at the time the contract is made a court may refuse to
enforce the contract, or may enforce the remainder of the contract without the
unconscionable term, or may so limit the application of any unconscionable term
as to avoid any unconscionable result.”) (quoting Restatement (Second) of
Contracts § 208 (1981)). Although Texas courts generally do not inquire into the
relative fairness of the terms of a contract, allegations of unconscionability are an
exception to this general principle based on the freedom to contract. See Venture
Cotton, 435 S.W.3d at 228.


                                          2
      Valentina’s petition does not contain enough information regarding the
settlement agreement or the circumstances under which it was executed to make a
determination regarding the fairness of its terms possible at this stage of the
litigation. More importantly for purposes of this appeal, the quick and harsh Rule
91a procedures are ill-suited for and not intended to encompass such an
examination. This is not a simple case of a pleading that fails to state a cause of
action with a basis in law and fact, as the majority maintains.

      Accordingly, Valentina’s sixth and seventh issues, assailing the trial court’s
dismissal of her petition, should be sustained, and the trial court’s order dismissing
her causes of action and awarding attorney’s fees to the temporary administrator
should be reversed and remanded. The remainder of Valentina’s issues would
thereby be rendered moot.

      For the foregoing reasons, I respectfully dissent.




                                       /s/       Martha Hill Jamison
                                                 Justice



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




                                             3
