Opinion

St. Mina Auto Sales, Inc. and Victor S. Elgohary v. Najwa Al-Muasher, D/B/A American Auto Sales, D/B/A American Auto Sales 1.1

Court: Texas Court of Appeals, 1st District (Houston)
Filed: Nov 23, 2015
Status: Published
Cited by: 0 cases
Authority: More cited than 3.1%

The opinion

ACCEPTED

01-14-00599-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

11/23/2015 8:44:00 AM

CHRISTOPHER PRINE

CLERK

FILED IN

No. 01-14-00599-CV 1st COURT OF APPEALS

HOUSTON, TEXAS

IN THE COURT OF APPEALS 11/23/2015 8:44:00 AM

FOR THE FIRST JUDICIAL DISTRICT CHRISTOPHER A. PRINE

HOUSTON, TEXAS Clerk

St. Mina Auto Sales, Inc. and Victor Elgohary,

Appellants,

Najwa Al-Muasher d/b/a American Auto Sales and American Auto Sales 1.1,

Appellees.

Appeal from the 80th Judicial District Court

Harris County, Texas

APPELLANTS’ MOTION FOR REHEARING

AND EN BANC RECONSIDERATION

ORAL ARGUMENT REQUESTED

__________________________________________________________________

Victor S. Elgohary

State Bar No. 24067587

6406 Arcadia Bend Ct

Houston, Texas 77041-6222

Phone (281) 858-0014

victor@vselgohary.com

Attorneys for Appellants

ISSUE PRESENTED

The Court erred by upholding the sanctions award and allowing the

lower court to modify the judgment.

I. ADDITIONAL STATEMENTS OF FACT

In April 2014 the owners of Mina, AAS, and Cinco met with their

priest and mediated a settlement on their own without the assistance of counsel.

Mina communicated this fact to Elgohary and asked that the case be dismissed

according to the parties’ oral agreement.

As pointed out in the original briefs, counsel for AAS – Omar Misleh

– pointed out to Elgohary that the judgment filed with the court and ultimately

entered did not conform to what Misleh signed. He sent Elgohary an e-mail on

May 16, 2014 to that effect. But before even substantively conferring with

Elgohary regarding the problem – as required by the local rules – Misleh filed his

motion for sanctions just seven days after sending the one e-mail.

The subsequent conversations between Misleh and Elgohary prior to

the sanctions hearing regarding the attempts to resolve the problems with the

judgment have not been disclosed in their entirety. Elgohary made efforts to confer

with Misleh during the last week of May 2014 by telephone regarding Misleh’s

concerns and the oversight. (R.R. 15). That telephone conference between counsel

resulted in Misleh’s e-mail dated June 2, 2014, just 4 days before the scheduled

sanctions hearing. (Exhibit A).

In that e-mail, Misleh proposed that in order to resolve the problem,

Elgohary should obtain a release from Cinco, a client Elgohary would need

authorization to represent in this matter. Misleh also proposed that Cinco continue

to be excluded from any agreed judgment. (Exhibit A). Elgohary responded the

same day by e-mail after reviewing Misleh’s proposed changes. (Exhibit B).

Misleh responded with yet another version of the settlement agreement based on

Elgohary’s comments. (Exhibit C).

After receiving Misleh’s second e-mail reply, Elgohary responded by

telephone regarding Misleh’s proposed revisions. During that telephone

conversation, Elgohary pointed out that there were still errors in the revisions to

the proposed settlement agreement between AAS and Cinco. Elgohary also

expressed concerns that under Misleh’s new proposal, there were still issues with

how all the parties would be properly bound by a final agreed judgment. During

that call, Elgohary also pointed out that Misleh’s proposed order would not be

equitable to the parties since AAS’s claims against Cinco would not be dismissed

with prejudice even if the proposed settlement agreement was signed by Cinco.

Misleh’s proposed solution also left AAS with a problem since Cinco was not

under the jurisdiction of the lower court and could not be bound by an agreed

judgment. At that point, Misleh hung up the telephone and refused to speak with

Elgohary after June 2, 2014 to work out the remaining issues, seeking instead to

obtain his $2,000 sanction against Elgohary. 1

Even after this Court issued its opinion, Elgohary again reached out to

Misleh to try to get to a resolution that would address the outstanding issues and

offered to get this dispute resolved as originally intended by all the parties under

TEX.R.APP.P. 42.1. After almost a month and multiple requests by Elgohary for a

response from Misleh regarding the proposal, Elgohary received no reply by

telephone or e-mail. In order to get a response, Elgohary had to make two trips to

Misleh’s offices to speak with him personally since he disconnected his telephone

from answering, refused to give Elgohary his alternate cell phone contact number,

and did not respond to e-mails. Misleh finally responded – after Elgohary’s second

visit to Misleh’s offices – that AAS declined Elgohary’s proposal. (Exhibit E).

Elgohary attempted to confer with Misleh again regarding any concerns that might

effectuate such an agreement, but Misleh has not responded to Elgohary’s most

recent request to discuss either by telephone or e-mail.

1 Misleh informed Elgohary during one office visit that AAS has never compensated him for the services rendered.

II. ARGUMENTS & AUTHORITIES

This Court should reverse the sanctions award and the judgment overall

because the trial court’s failure to hold an evidentiary hearing led to an

improper judgment.

A. The record is absent of any evidence of misconduct or

attorneys’ fees in connection with the misconduct.

Inherent power to sanction exists to the extent necessary to deter,

alleviate, and counteract bad faith abuse of the judicial process. Metzger v. Sebek,

892 S.W.2d 20, 51 (Tex.App. – Houston [1st Dist.] 1994, writ denied)(citing Kutch

v. Del Mar College, 831 S.W.2d 506 (Tex.App. – Corpus Christi 1992, no writ). In

a sanctions context, a trial court must hold an evidentiary hearing to make the

necessary factual determinations about a party’s or attorney’s motives and

credibility as they relate to bad faith. R.M. Dudley Const. Co., Inc. v. Dawson, 258

S.W.3d 694, 709 (Tex.App. – Waco 2008, pet denied). Without such an

evidentiary hearing, the trial court has no evidence before it to determine bad faith;

an element that is required to invoke a court’s inherent power to sanction.

Alejandro v. Robstown ISD, 131 S.W.3d 663, 670 (Tex.App. – Corpus Christi

2004, no pet.) (citing Karagounis v. Prop. Co. of Am., 970 S.W.2d 761, 765

(Tex.App. – Amarillo 1998, pet. denied); see also Karlock v. Schattman, 894

S.W.2d 517, 523 (Tex.App. – Fort Worth 1995, orig. proceeding). In the context of

TEX.CIV.PRAC.&REM CODE §10 – which also has a bad faith element – the party

moving for sanctions must prove the offending party’s subjective state of mind.

Brozynski v. Kerney, 2006 WL 2160841, at *4 (Tex.App. – Waco Aug. 2, 2006,

pet. denied) (citing Mattly v. Spiegel, Inc., 19 S.W.3d 890, 896 (Tex.App. –

Houston [14th Dist.] 2002, no pet.)). The same is true under TEX.R.CIV.P. 13.

Karlock v. Schattman, 894 S.W.2d at 523.

Evidence must be admitted under the rules of evidence at an

evidentiary hearing for a trial court to consider it in a sanctions context. Alejandro

v. Bell, 84 S.W.3d 383, 393 (Tex.App. – Corpus Christi 2002, no pet.). Arguments

of counsel are not evidence. U.S. Government v. Marks, 949 S.W.2d 320, 326

(Tex. 1997); see also McCain v. NME Hospitals, Inc., 856 S.W.2d 751, 757

(Tex.App. – Dallas 1993, no writ)(citing Delgado v. Kitzman, 793 S.W.2d 332,

333 (Tex.App. – Houston [1st Dist.] 1990, no writ))(stating that arguments of

counsel are not evidence in a sanctions context).

In the lower court, there is no evidence of any bad faith or resultant

attorneys’ fees in the record because there was no evidentiary hearing which would

have afforded an opportunity for oral testimony and e-mail documents to be

properly admitted, authenticated, and cross-examined under oath. The record only

consists of argument, which contains an incomplete narrative of all the relevant

events that transpired between counsel. There is not even an affidavit of attorney’s

fees which could have been challenged. The record only contains argument and the

lower court asking how much time was required for Misleh to attend the hearing

and prepare the motion for sanctions, for which Misleh failed to even confer prior

to its filing. That is improper and is not evidence by any recognized standard.

Failure to hold an evidentiary hearing also violates Elgohary’s due process rights,

to which Elgohary is entitled when facing a charge by another colleague of such

willful, dishonest, and malicious misconduct.

B. In light of Misleh’s own questionable conduct, this Court’s

proposed opinion unfairly maligns Elgohary’s reputation and does a disservice to

the parties who simply wanted counsel to properly document their settlement

agreement.

Both Misleh and Elgohary were informed by their respective clients

that AAS, Cinco, and Mina reached a settlement and asked their respective counsel

that the suit be dismissed in accordance with their mutual agreement. Elgohary was

not present when the parties reached their agreement. On information and belief,

Misleh was also not present for those settlement discussions that occurred between

AAS, Mina, and Cinco.

As is Elgohary’s customary practice when documenting suits that

have been settled, he attempts to secure both a settlement agreement from the

parties and has the trial court enter an agreed judgment for all the parties involved

in the settlement. But in this case, that customary process was hindered by the fact

that Cinco was not yet under the jurisdiction of the lower court since it had not

been served with a citation; hence, any agreed judgment would not bind Cinco.

Moreover, binding Cinco to an agreed judgment using proper procedures would be

in AAS’s best interest as well. But the ability to secure a settlement agreement

along with a binding agreed judgment among all the parties became even more

frustrated when Misleh unilaterally non-suited Cinco without prejudice based on

Elgohary’s e-mail remark that he did not represent Cinco at that time.

Misleh and Elgohary first conferred by telephone only after Misleh

filed his motion for sanctions. Misleh did not even file a certificate of conference

with his sanctions motion as required by the local rules. Despite that oversight by

Misleh, Elgohary asked what Misleh wanted to do in light of the procedural mess

that had been created with Cinco’s non-suit and the judgment that had been

entered. In those discussions, Elgohary continued to voice concern as to how a

binding agreed judgment among all the parties could be obtained. At the

conclusion of that first telephone conversation, Misleh drafted a new proposed

settlement agreement between AAS and Cinco for Elgohary’s review along with

the judgment originally signed by Misleh. Exhibit A. Elgohary responded that

same day with his comments. Exhibit B. Misleh then made some of Elgohary’s

proposed changes and added additional provisions. Exhibit C. Elgohary continued

to express concerns regarding the ability to bind AAS, Cinco, and Mina to an

agreed judgment. Elgohary’s request to deal with that procedural problem went

unanswered when Misleh refused to communicate further with Elgohary on getting

the parties’ intended settlement agreement entered with the lower court in the form

of an agreed judgment that dismissed all claims made by all parties with prejudice.

With Misleh’s refusal to communicate further with Elgohary to

resolve the differences, Elgohary was left with a dilemma; either capitulate to

Misleh’s demands – which did not comport with the parties intentions and was not

even in the best interests of AAS or Cinco – or attend a sanctions hearing. Misleh

knows – as does Elgohary – that both the judgment that was entered and the one

Misleh signed was not the intent of the parties’ settlement agreement as

communicated to each of them. That fact is evidenced by both Elgohary and

Misleh offering draft settlement documents that included Cinco on multiple

occasions.

Elgohary chose to attend the sanctions hearing since Misleh’s

proposals to rectify the problems did not comport with the parties’ agreement as

Elgohary understood it and all the parties could not be bound by an agreed

judgment dismissing all claims with prejudice. Misleh’s proposal also made the

result even more problematic as it was in none of the parties’ best interest as

drafted. Moreover, accepting Misleh’s revised proposal to document the settlement

arrangement would have required Elgohary to take on the representation of Cinco

and advise it to enter into an agreement Elgohary would have felt was not in

Cinco’s best interest as presented.

But to Elgohary’s surprise at the sanctions hearing, the lower court

presumed on its own that the only solution to the disagreement as it related to the

entered judgment was for Elgohary to simply have offered to enter the judgment

that Misleh had originally signed. Had that judgment which was originally signed

by Misleh been the intention of the parties – which it is not – and had Misleh made

that request with Elgohary merely ignoring Misleh, such a stern rebuke by the

lower court and this Court would be warranted. But that is not what happened.

Counsel also “owes a duty of complete candor at all times” to the

court. Tesco Corp. v. Weatherford International, Inc., No 4:08-cv-02531 (S.D.

Tex. Aug. 25, 2014), at 11. The current record only contains argument and

Misleh’s tergiversations – rather than sworn testimony and admitted evidence –

along with an assumption by the lower court of the events that transpired between

Elgohary, Misleh, and the parties. An evidentiary hearing would have brought all

these arguments out in the form of properly admitted evidence and testimony

which could have been challenged and a fact finder could then have drawn a fully

informed conclusion as to the events and the motives of the parties and their

counsel. But without an evidentiary hearing and procedural due process, Elgohary

was left with no ability to challenge what Misleh attempted to present as the full

and complete truth in the lower court of all the events and communications that

transpired. In fact, Misleh’s failure to tell the lower court the whole story of the

communications between Misleh and Elgohary in their attempt to solve the

problem of properly documenting the settlement between the parties has ultimately

resulted in an unfair basis to impugn Elgohary’s reputation in a published opinion.

Even worse, the parties in this dispute have still not obtained a properly

documented settlement agreement and agreed judgment they made with their

priest/mediator, all because two attorneys cannot seem to work together in a

constructive manner with one attorney continuing to attack the other for some

unknown reason. This Court should not condone Misleh’s gamesmanship at the

expense of what the parties intended in their settlement discussions and Elgohary’s

reputation in the legal community.

CONCLUSION

Misleh’s tergiversations at the sanctions hearing and his subsequent

conduct in an attempt to secure $2,000 in the lower court, $5,000 in this Court and

a “win” demonstrates a lack of candor with the lower court and this Court as well

as a lack of civility and professionalism that all lawyers should strive to achieve.

The subsequent correspondence between Elgohary and Misleh to solve the

problem demonstrate that Misleh knows that AAS, Cinco, and Mina intended for

all claims and parties to be properly settled and dismissed with prejudice. Those

communications with Misleh are also a sign of a lack of bad faith on Elgohary’s

part. But Misleh chooses instead to be evasive, uncommunicative, and repeatedly

refuses to work with Elgohary in a professional and civilized manner to effectuate

the request of the parties. That type of conduct between counsel should not be

condoned by the lower court or this Court at the expense of the parties in this

action. For these reasons, Mina and Elgohary respectfully requests that this Court:

(1) grant Mina’s and Elgohary’s Motion for Rehearing and en banc

Reconsideration;

(2) grant Mina’s and Elgohary’s request for oral argument on this

matter;

(3) after rehearing, reconsideration en banc, and an oral hearing,

remand this case back to the trial court so that it may conduct a

proper evidentiary hearing on Misleh’s sanctions motion and the

parties’ intended settlement agreement or in the alternative reverse

and render the lower court’s sanctions and modified judgment

given that there is no evidence to support the sanctions; and

(4) grant Mina and Elgohary any and all other relief to which they

may be entitled.

Respectfully submitted,

______________________________

VICTOR S. ELGOHARY

State Bar No. 24067587

6406 Arcadia Bend Ct

Houston, Texas 77041-6222

Phone (281) 858-0014

victor@vselgohary.com

Attorney for Appellees, Victor Elgohary

CERTIFICATE OF SERVICE

I certify that a copy of Appellants’ Motion for Rehearing was served on

Najwa Al-Muasher and American Auto Sales, Appellees, through counsel of

record, Omar Misleh, 10190 Katy Freeway, Suite 550, Houston, TX 77043, by

electronic filing on 20 November 2015.

__________________________

VICTOR ELGOHARY

CERTIFICATE OF COMPLIANCE

I certify that the Appellants’ Motion for Rehearing and en banc

Reconsideration contains 2,483 words.

__________________________

VICTOR ELGOHARY

Exhibit A

Victor Elgohary

From: Omar Misleh <omar@mislehlaw.com>

Sent: Monday, June 02, 2014 12:15 PM

To: Victor Elgohary

Subject: Mina v. Muasher

Attachments: agreed motion to dismiss.pdf; Settlement Release (Cinco and AAS).pdf

Attached is the settlement agreement to be signed by Cinco and AAS. I mirrored most of the provisions contained in the

earlier settlement agreement between Mina and AAS. Also, attached is the original agreed motion to dismiss which you

drafted. We will need to sign this joint motion which will be presented to the court as the final order in this matter.

Sincerely,

Omar Misleh | Law Office of Omar Misleh, P.C.

10190 Katy Freeway, Suite 550 | Houston, Texas 77043 | Telephone (713) 439‐1625 | Facsimile (713) 439‐1551

This E-mail (including attachments) is covered by the Electronic Communications Privacy Act, 18 USC Sections 2510-2521, is confidential, legally

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used by a taxpayer for the purpose of avoiding penalties that may be imposed by law.

SETTLEMENT AGREEMENT AND RELEASE

RECITAL OF FACTS

This Settlement Agreement and Release (“Release” and “Agreement”) is entered

into by NAJWA ALMUASHER d/b/a AMERICAN AUTO SALES AND AMERICAN

ATUO SALES 1.1 (“AAS”) and CINCO CAR CARE, INC. (“CINCO”).

WHEREAS, on or about November 30, 2012, AAS and CINCO became parties to

a small claims court case before Precinct 5, Place 2 under Cause No. SC52C0334701

(“SC CASE”). The SC CASE also involved ST. MINA AUTO SALES, INC. (“MINA”).

The SC CASE was subsequently dismissed by AAS, CINCO and MINA.

WHEREAS, on or about February 27, 2013, MINA filed suit against AAS in the

80th District Court of Harris County, Texas under cause no. 2013-12024 (“DC CASE”).

Collectively the SC CASE and DC CASE (including the Third-Party Petition mentioned

below) shall be hereinafter referred to as the “Lawsuit”.

WHEREAS, the Lawsuit contains allegations: (a) by MINA against AAS for

failure to tender title on a 1996 Cadillac DeVille, VIN 1G6KD52Y2TU239532 (“Subject

Vehicle”) and for damages allegedly incurred by MINA to repair the Subject Vehicle;

and (b) by AAS against MINA for failure to pay the full amount for the Subject Vehicle.

WHEREAS, on or about April 21, 2014, AAS filed a Third-Party Petition under

the DC CASE against CINCO alleging conspiracy to commit fraud.

WHEREAS, on or about April 30, 2014, MINA and AAS entered into a

Settlement Agreement and Release disposing of the controversy between MINA and

AAS.

WHEREAS, AAS and CINCO now desire to dispose of the entire controversy

and dispute between themselves, including all claims and causes of action of any kind

that currently exist or that may exist in the future that relate in any way to the occurrences

described in this Agreement, alleged, or could have been alleged in the Lawsuit. The

parties recognize that there may be claims or damages arising out of the transaction or

occurrence described in this Agreement that are unknown to the parties at the time of

execution of this Agreement, or that may arise in the future. However, the parties have

negotiated this Agreement in full knowledge of the possibility of additional claims or

damages, and intend this Agreement to settle and finally dispose of all such claims or

damages arising out of the events, transaction or occurrences described herein, whether

known or unknown.

Settlement Agreement and Release Page 1 of 6

AAS and Cinco

RELEASE

1. Release by AAS. Effective upon execution of this Agreement, AAS as well as

any of its agents, representatives, employees, partners, insurers, attorneys, and

assigns hereby RELEASE, ACQUIT and FOREVER DISCHARGE CINCO and

its affiliates, directors, officers, employees, subsidiaries, agents, representatives,

attorneys, assigns, successors, and insurers of and from any claims, and causes of

action, known or unknown, pending or threatened, that were and/or could have

been asserted regarding or arising out of the demands and claims made by AAS in

the Lawsuit. This Agreement does not release or discharge any claim that AAS

may hereafter have arising out of or in connection with any breach of this

Agreement, or to enforce the provisions of this Agreement. AAS further extends

this release to all claims, demands, damages, actions, causes of action, or suits in

equity, of any kind or nature, at common law, statutory or otherwise, accruing

before the date of this Agreement and whether known or unknown on this date,

for or because of any matter or thing done, omitted, or suffered to be done or

omitted in any way directly or indirectly arising out of any of the events or

circumstances recited in this release agreement, whether asserted or not.

2. Release by CINCO. Effective upon execution of this Agreement, CINCO as well

as its affiliates, directors, officers, employees, subsidiaries, partners, agents,

representatives, attorneys, assigns, successors, insurers and assigns hereby

RELEASE, ACQUIT and FOREVER DISCHARGE AAS and its employees,

agents, representatives, attorneys, assigns, successors, and insurers of and from

any claims, and causes of action, known or unknown, pending or threatened, that

were and/or could have been asserted regarding or arising out of the demands and

claims made by CINCO in the Lawsuit. This Agreement does not release or

discharge any claim that CINCO may hereafter have arising out of or in

connection with any breach of this Agreement, or to enforce the provisions of this

Agreement. CINCO further extends this release to all claims, demands, damages,

actions, causes of action, or suits in equity, of any kind or nature, at common law,

statutory or otherwise, accruing before the date of this Agreement and whether

known or unknown on this date, for or because of any matter or thing done,

omitted, or suffered to be done or omitted in any way directly or indirectly arising

out of any of the events or circumstances recited in this release agreement,

whether asserted or not.

3. Authority. AAS and CINCO each acknowledge, represents and warrants that

he/she has read and understood the effect of this Agreement and that they execute

the same for the purposes and considerations set forth in this Agreement. AAS

states that she executes this Agreement of his/her own free will and accord.

CINCO represents and warrants that has been authorized by its respective board

of directors or any lawful authority to execute this Agreement.

Settlement Agreement and Release Page 2 of 6

AAS and Cinco

4. Other Acknowledgements. AAS and CINCO each acknowledge, represent and

warrant that the release language in this Agreement is intended to, and understand

it to be a compromise and settlement and release of all claims, known or

unknown, present or future, that he/she has or may have against each other,

arising out of the matters described; that the release language is clear; that in

making this Agreement each Party had the benefit of counsel of its own choosing;

and that no promise or representation of any kind has been made except as

expressly stated in this Agreement and that neither is relying upon any such other

promise or representation in executing this Agreement; and that except for the

mutual covenants and consideration recited herein, no other consideration is to be

exchanged by or between the Parties. AAS and CINCO have relied solely and

completely upon its own judgment and the advice of its counsel in making this

Agreement.

5. No Admission of Liability. It is expressly understood and agreed that the terms

hereof are contractual and not merely recitals and that the agreements herein

contained and the consideration transferred is to compromise doubtful and

disputed claims, avoid litigation, and buy peace, and that no payments made nor

releases or other consideration given shall be construed as an admission of

liability, all liability being expressly denied by both sides.

6. No Assignment of Claims. AAS represents to CINCO and CINCO likewise

represents to AAS that they have not assigned or transferred all or any part of the

claims, demands, actions or causes of actions referred to in this Agreement to any

person, firm or corporation. AAS and CINCO further represent and warrant that

he/she/it is the full and sole owners of the claims, demands, actions or causes of

action referred to in this Agreement.

7. Severability. If one or more of the provisions, undertakings, and/or terms

embodied in this Agreement should later be found to be void, voidable, or

ineffective, that finding shall have no effect on the remainder of the provisions,

undertakings, and/or terms embodied herein, which remaining provisions,

undertakings, and/or terms shall remain in full force and effect.

8. Jurisdiction, Venue. This agreement is made according to the laws of the State of

Texas. The parties expressly agree that this agreement is governed by, and will be

construed and enforced in accordance with Texas law. The parties further agree

that the venue for any litigation arising out of this agreement shall be brought in

State District Court located in Harris County, Texas.

9. Headings. The descriptive headings of the articles and sections of this Agreement

are inserted for convenience only and do not constitute a part of the Agreement.

10. Joint Preparation. This Agreement was jointly prepared and reviewed by the

Parties hereto, each of which was represented by counsel. No rule of

Settlement Agreement and Release Page 3 of 6

AAS and Cinco

interpretation disfavoring the drafter of an agreement or instrument shall be

applied.

11. Attorneys’ Fees and Costs. The Parties shall bear their own costs, attorneys’ fees,

and expenses in connection with this Agreement.

12. Successors, Assigns. This Agreement is binding on and inures to the benefit of

the parties and their respective heirs, representatives, successors, and assigns.

13. Entire Understanding. THIS AGREEMENT CONTAINS THE ENTIRE

AGREEMENT BETWEEN THE PARTIES. IT SUPERSEDES ANY AND ALL

PRIOR AGREEMENTS, ARRANGEMENTS, OR UNDERSTANDINGS

BETWEEN THE PARTIES ON ALL SUBJECTS IN ANY WAY RELATED TO

THE TRANSACTION OR OCCURRENCE DESCRIBED IN THIS

AGREEMENT. NO ORAL UNDERSTANDINGS, STATEMENTS,

PROMISES, OR INDUCEMENTS CONTRARY TO OR CONSISTENT WITH

THE TERMS OF THIS AGREEMENT EXIST. THIS AGREEMENT IS NOT

SUBJECT TO ANY REOVCATION, MODIFICATION, WAIVER, OR

ADDITION THAT IS MADE ORALLY. THIS AGREEMENT IS SUBJECT TO

MODIFICATION, WAIVER, OR ADDITION ONLY BY MEANS OF A

WRITING SIGNED BY ALL PARTIES.

14. Counterpart Execution. This Agreement may be executed in any number of

counterparts, each of which shall be deemed an original, but all of which collectively

shall constitute one and the same instrument. It shall not be necessary for the proof of

this Agreement that any party produce or account for more than one such counterpart.

This Agreement may be executed by facsimile or other electronic transmission and

such facsimile or other electronic signatures shall be afforded the same force and

effect as original signatures for all purposes.

[SIGNATURE PAGE FOLLOWS]

Settlement Agreement and Release Page 4 of 6

AAS and Cinco

AGREED:

CINCO CAR CARE, INC.

By: ________________________________________

Name: _____________________________________

Title: ______________________________________

Date: ______________________________________

ACKNOWLEDGEMENT

STATE OF TEXAS §

COUNTY OF HARRIS §

Before me, the undersigned Notary Public, on this day personally appeared Cinco

Car Care, Inc., by and through its President Adham Mickhail, proved to me through

his/her driver license to be the persons whose name is subscribed to the attached

agreement. He/She acknowledged to me that he/she executed the attached Agreement for

purposes and consideration expressed in the attached agreement, on behalf of said

corporation.

SWORN TO AND SUBSCRIBED BEFORE ME this the ______ day of June, 2014

[seal]

__________________________________________

Notary Public in and for the State of Texas

My Commission Expires: ____________________

Settlement Agreement and Release Page 5 of 6

AAS and Cinco

AGREED:

NAJWA ALMUASHER d/b/a AMERICAN AUTO SALES and AMERICAN AUTO

SALES 1.1

By: ________________________________________

Name: _____________________________________

Title: ______________________________________

Date: ______________________________________

ACKNOWLEDGEMENT

STATE OF TEXAS §

COUNTY OF HARRIS §

Before me, the undersigned Notary Public, on this day personally appeared Najwa

Almuasher, proved to me through his/her driver license to be the persons whose name is

subscribed to the attached Agreement. He/She acknowledged to me that he/she executed

the attached Agreement for purposes and consideration expressed in the attached

Agreement.

SWORN TO AND SUBSCRIBED BEFORE ME this the ______ day of June, 2014

[seal]

__________________________________________

Notary Public in and for the State of Texas

My Commission Expires: ____________________

Settlement Agreement and Release Page 6 of 6

AAS and Cinco

NO. 2013-12024.

ST. MINA AUTO SALES, INC., § IN THE DISTRICT COURT OF

Plaintiff, §

v. § HARRIS COUNTY, TEXAS

NAJWA AL-MUASHER, §

d/b/a AMERICAN AUTO SALES, §

d/b/a AMERICAN AUTO SALES 1.1 §

Defendant. § 80th JUDICIAL DISTRICT

AGREED JOINT MOTION TO DISMISS

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Plaintiff ST. MINA AUTO SALES, INC. (“Plaintiff” and “Counter-

Defendant”) and Defendant NAJWA AL-MUASHER d/b/a AMERICAN AUTO

SALES d/b/a AMERICAN AUTO SALES 1.1 (“Defendant” and Counter-Plaintiff) in

the above-captioned suit and file this, their Agreed Motion to Dismiss with prejudice

the present action and in support hereof would respectfully show the court as follows:

Plaintiff and Counter Plaintiff announce to the Court that all matters in controversy

between them and Defendant and Counter-Defendant have been fully and finally

resolved. Plaintiff and Counter-Plaintiff wish to dismiss all claims and causes of

actions against Defendant and Counter-Defendant.

Plaintiffs and Defendants hereby move this Court to dismiss this case with prejudice

with costs to be taxed against the party incurring same.

WHEREFORE PREMISES CONSIDERED, Plaintiff ST. MINA AUTO SALES and

Defendant NAJWA AL-MUASHER d/b/a AMERICAN AUTO SALES d/b/a

AMERICAN AUTO SALES 1.1 respectfully request the Court GRANT this Agreed

Motion to Dismiss with prejudice.

______________________________________

Victor S. Elgohary

State Bar No. 24067587

6406 Arcadia Bend Ct.

Houston, TX 77041-6222

(281) 858-0014

victor@vselgohary.com

ATTORNEY FOR ST. MINA AUTO SALES

And

LAW OFFICE OF OMAR MISLEH, P.C.

____________________________________

Omar Misleh

State Bar No. 24037122

10190 Katy Freeway, Suite 550

Houston, TX 77043

Tel. No. (713) 439-1625

Fax No. (713) 439-1551

ATTORNEY FOR NAJWA AL-MUASHER d/b/a AMERICAN AUTO

SALES

NO. 2013-12024.

ST. MINA AUTO SALES, INC., § IN THE DISTRICT COURT OF

Plaintiff, §

v. § HARRIS COUNTY, TEXAS

NAJWA AL-MUASHER, §

d/b/a AMERICAN AUTO SALES, §

d/b/a AMERICAN AUTO SALES 1.1 §

Defendant. § 80th JUDICIAL DISTRICT

ORDER GRANTING AGREED MOTION TO DISMISS

On this day came to be considered the Agreed Motion to Dismiss Defendant NAJWA

AL-MUASHER d/b/a AMERICAN AUTO SALES d/b/a AMERICAN AUTO SALES

1.1 and Counter Defendant ST.MINA AUTO SALES. The Court, having reviewed the

pleadings in this matter and being advised that the parties have reached a resolution of

this dispute, is of the opinion and finds that the Agreed Motion to Dismiss is

meritorious and should be GRANTED.

IT IS, THEREFORE, ORDERED that the present action by Plaintiff ST.MINA AUTO

SALES against Defendant NAJWA AL-MUASHER d/b/a AMERICAN AUTO SALES

d/b/a AMERICAN AUTO SALES 1.1 as well as the present action by Counter-Plaintiff

NAJWA AL-MUASHER d/b/a AMERICAN AUTO SALES d/b/a AMERICAN AUTO

SALES 1.1against Counter-Defendant ST. MINA AUTO SALES is hereby DISMISSED

with prejudice, with costs to be taxed against the party incurring same.

DATED this ____ day of _____________, 2014.

_______________________________

JUDGE PRESIDING

Exhibit B

Victor Elgohary

From: Victor Elgohary <victor@vselgohary.com>

Sent: Monday, June 02, 2014 1:54 PM

To: 'Omar Misleh'

Subject: RE: Mina v. Muasher

Attachments: Settlement Release (Cinco and AAS).pdf

My comments on the agreement are attached.

As we previously discussed, the proposed motion and order you attached are of no effect if Cinco Car Care is not under

the jurisdiction of the court with proper service. Such an order would be void with regard to Cinco and Najwa if that is

the case. That is one of the problems with the current order and notice of non‐suit as they stand. If we are going to fix

this properly under the rules of civil procedure, I would suggest that the procedural posture – if there has been no

service on Cinco – would be a motion by Najwa under 329b(g) to reform the order of non‐suit previously filed to read

“dismissed with prejudice.”

Please advise if you are willing to draft and file a motion to modify before I reach out to the owners of Cinco with this

request to enter into this settlement agreement.

‐‐

Victor

Victor Elgohary

6406 Arcadia Bend Ct.

Houston, Texas 77041

281.858.0014

victor@vselgohary.com

From: Omar Misleh [mailto:omar@mislehlaw.com]

Sent: Monday, June 02, 2014 12:15 PM

To: Victor Elgohary

Subject: Mina v. Muasher

Attached is the settlement agreement to be signed by Cinco and AAS. I mirrored most of the provisions contained in the

earlier settlement agreement between Mina and AAS. Also, attached is the original agreed motion to dismiss which you

drafted. We will need to sign this joint motion which will be presented to the court as the final order in this matter.

Sincerely,

Omar Misleh | Law Office of Omar Misleh, P.C.

10190 Katy Freeway, Suite 550 | Houston, Texas 77043 | Telephone (713) 439‐1625 | Facsimile (713) 439‐1551

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SETTLEMENT AGREEMENT AND RELEASE

RECITAL OF FACTS

This Settlement Agreement and Release (“Release” and “Agreement”) is entered

into by NAJWA ALMUASHER d/b/a AMERICAN AUTO SALES AND AMERICAN

ATUO SALES 1.1 (“AAS”) and CINCO CAR CARE, INC. (“CINCO”).

WHEREAS, on or about November 30, 2012, AAS and CINCO became parties to

a small claims court case before Precinct 5, Place 2 under Cause No. SC52C0334701

(“SC CASE”). The SC CASE also involved ST. MINA AUTO SALES, INC. (“MINA”).

The SC CASE was subsequently dismissed by AAS, CINCO and MINA.

This is not an accurate statement of the small claims court case. Those were not the parties.