Parker v. Exeter Finance Corp.

Filing 39

MEMORANDUM OPINION AND ORDER: Accordingly, it is ordered that Parker and Exeter shall perform the Settlement Agreement contained at ECF Doc. No. 34 in accordance with its terms, subject to the attorney's lien held by Lemberg Law in the amount of $5,000 and its right to payment from the settlement proceeds held in escrow. This civil action is dismissed with prejudice by judgment filed today. (Ordered by Judge Sidney A Fitzwater on 8/11/2015) (ctf)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
PATRICIA PARKER,
Plaintiff,
VS.
EXETER FINANCE CORP.,
Defendant.

§
§
§
§ Civil Action No. 3:14-CV-4007-D
§
§
§
§
§

MEMORANDUM OPINION
AND ORDER
In this action by plaintiff Patricia Parker (“Parker”) against defendant Exeter Finance
Corporation (“Exeter”)—in which Parker, through her counsel, filed an April 10, 2015 notice
of settlement—the following six motions are pending: (1) Parker’s pro se May 18, 2015
motion to withdraw all settlement offers; (2) Parker’s pro se May 18, 2015 motion to remove
attorney of record; (3) Exeter’s May 20, 2015 motion to enforce settlement agreement; (4)
the May 21, 2015 motion of Jenny DeFrancisco, Esquire (“DeFrancisco”) to withdraw as
counsel and assert attorney’s lien; (5) Parker’s pro se May 26, 2015 application to proceed
in district court without prepaying fees or costs; and (6) Parker’s pro se May 26, 2015 motion
for the appointment of counsel. The court enforces the settlement agreement, enters a final
judgment dismissing this lawsuit, and decides the other motions as set out below.1
1

Under § 205(a)(5) of the E-Government Act of 2002 and the definition of “written
opinion” adopted by the Judicial Conference of the United States, this is a “written opinion[]
issued by the court” because it “sets forth a reasoned explanation for [the] court’s decision.”
It has been written, however, primarily for the parties, to decide issues presented in this case,
and not for publication in an official reporter, and should be understood accordingly.

I
Parker, represented by DeFrancisco and the Lemberg Law LLC law firm (“Lemberg
Law”), filed suit against Exeter in this court in November 2014 seeking to recover for alleged
violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. Parker is
alleged to reside in Florida. DeFrancisco and Lemberg Law office in Connecticut. Exeter
is alleged to have an address in Irving, Texas. After Exeter was served, but before it filed
a responsive pleading, Parker, through her counsel, notified the court on April 10, 2015 that
the case had settled. The court closed the case administratively for statistical purposes based
on the announced settlement.
On May 6, 2015 Parker filed several pro se motions—which the court treated as
motions to remove her counsel, reopen the case, and set it for trial, and for a default
judgment—challenging the purported settlement.2 The court denied the motions, principally
because it declined in its discretion to permit Parker to proceed pro se while simultaneously
being represented by retained counsel. The court stated that it would not consider any of her
pro se filings until she had clearly and unequivocally discharged DeFrancisco and Lemberg
Law as her counsel.
The instant motions have been filed by Parker pro se, DeFrancisco, and Exeter and

2

After the court denied Parker’s pro se motion for a default judgment, she filed a pro
se notice of appeal, and the appeal has been docketed in the Fifth Circuit. See Parker v.
Exeter Fin. Corp., No. 15-10461 (5th Cir. May 22, 2015). Because Parker is appealing an
unappealable order, the appeal does not deprive this court of subject matter jurisdiction to
enter today’s rulings or judgment.
-2-

are now before the court for decision.
II
The court turns first to Parker’s motion to remove attorney of record and
DeFrancisco’s motion to withdraw as counsel and assert attorney’s lien. The court grants
Parker’s motion to remove attorney of record and DeFrancisco’s motion to withdraw as
counsel.
DeFrancisco also moves to assert an attorney’s lien against the settlement proceeds
in accordance with the August 21, 2014 legal services agreement that Parker signed when
she retained Lemberg Law as her counsel. Regardless whether this question should be
decided under Texas law (where Parker filed suit) or Connecticut law (where DeFrancisco
and her law firm office), DeFrancisco is entitled to this relief.
“Under Texas law, a contract may establish an attorney’s lien for money received in
judgment or settlement of a matter.” Norem v. Norem, 2008 WL 2245821, at *6 (N.D. Tex.
June 2, 2008) (Stickney, J.) (quoting United States v. Betancourt, 2005 WL 3348908, at *3
(S.D. Tex. Dec. 8, 2005)). The managing partner of Lemberg Law has offered uncontested
evidence that supports the firm’s assertion of a contractual attorney’s lien.
Connecticut recognizes the availability of an “attorney’s charging lien.” The concept
of an attorney’s charging lien is rooted in common law, and is founded on the equitable right
of an attorney to recover fees and costs due for services out of the judgment obtained.
Olszewski v. Jordan, 109 A.3d 910, 913 (Conn. 2015).

-3-

[A]n attorney’s charging lien does not merely give the attorney
an enforceable right against the property of another, but rather
it gives the attorney an equitable ownership interest in the
client’s cause of action, and the client’s property right in his or
her own cause of action is only what remains after transfer to the
attorney of the attorney’s agreed-on share.
Id.
The court therefore holds that DeFrancisco is entitled to assert an attorney’s lien
against the settlement proceeds.
III
The court next considers Parker’s motion to withdraw all settlement offers and
Exeter’s motion to enforce settlement agreement. The court denies Parker’s motion and
grants Exeter’s motion.
Federal law determines whether a settlement agreement is valid “where [as here] the
substantive rights and liabilities of the parties derive from federal law.” Chen v. Highland
Capital Mgmt., L.P., 2012 WL 5935602 (N.D. Tex. Nov. 27, 2012) (Fitzwater, C.J.) (quoting
Mid-S. Towing Co. v. Har-Win, Inc., 733 F.2d 386, 389 (5th Cir. 1984)). To enforce a
settlement, “[a] district court has inherent power to recognize, encourage, and when
necessary enforce settlement agreements reached by the parties.” Harmon v. Journal Publ’g
Co., 476 Fed. Appx. 756, 757 (5th Cir. 2012) (per curiam) (quoting Bell v. Schexnayder, 36
F.3d 447, 449 (5th Cir. 1994)).
The evidence is undisputed that Parker, through her retained counsel, and Exeter
agreed to settle this lawsuit. The record contains the signed settlement agreement. Parker

-4-

does not deny that she signed the settlement agreement or that she settled the lawsuit.
Instead, she asserts that she has several issues with her attorney, that agreements were made
with deceit, and that she was not allowed to make a counteroffer. But issues that Parker may
have with her attorney are between her and her attorney, and they do not prove that the
settlement agreement is invalid and that it should not be enforced. The court therefore grants
Exeter’s motion to enforce settlement agreement and denies Parker’s motion to withdraw all
settlement offers.
IV
Finally, the court considers Parker’s application to proceed in district court without
prepaying fees or costs, and her motion for the appointment of counsel.
The court denies without prejudice as moot Parker’s application to proceed in district
court without prepaying fees or costs. Because the court is enforcing the settlement
agreement and dismissing this lawsuit, there is no need to grant Parker leave to proceed in
this court in forma pauperis.3
The court also denies Parker’s motion for the appointment of counsel. It is clear that
Parker agreed to the settlement with Exeter and that the settlement should be enforced, which
ends her lawsuit in this court. She is not entitled to appointed counsel for further proceedings

3

It appears from the docket that the clerk of court has treated Parker’s application to
proceed as having been filed in connection with her notice of appeal from the court’s denial
of her motion for default judgment. That appeal is likely to be dismissed because Parker is
attempting to appeal an unappealable order. See supra note 2. If she later appeals and has
a basis to seek such relief anew, she can file another motion for the court’s consideration.
-5-

in this court or on appeal.
*

*

*

Accordingly, it is ordered that Parker and Exeter shall perform the Settlement
Agreement contained at ECF Doc. No. 34 in accordance with its terms, subject to the
attorney’s lien held by Lemberg Law in the amount of $5,000 and its right to payment from
the settlement proceeds held in escrow. This civil action is dismissed with prejudice by
judgment filed today.
SO ORDERED
August 11, 2015.

_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE

-6-