BNP Paribas v. Honeycutt

Filing 21

MEMORANDUM AND ORDER GRANTED 15 MOTION to Supplement as to 12 MOTION for Judgment on Pleadings Judgment.Plaintiff is awarded $71,840.11 in fees. It is furtherORDERED that counsel for Plaintiff shall submit by May 26, 2015, a proposed Final Judgment consistent with the Courts rulings in this case (Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BNP PARIBAS,
Plaintiff,
v.
DAVID E. HONEYCUTT,
Defendant.

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CIVIL ACTION NO. H-15-0015

MEMORANDUM AND ORDER
The case is now before the Court on the Supplemental Motion for Summary
Judgment on Legal Fees (“Motion for Fees”) [Doc. # 15] filed by BNP Paribas
(“BNPP”), to which Defendant David E. Honeycutt filed a Response [Doc. # 16], and
Plaintiff filed a Reply [Doc. # 18]. Plaintiff filed “Additional Evidence of Plaintiff’s
Attorney Fees” [Doc. # 20] regarding additional fees incurred after the Motion for
Fees was filed. Having reviewed the full record and applicable legal authorities, and
having considered the parties’ arguments at the hearing on May 18, 2015, the Court
grants the Motion for Fees.
I.

BACKGROUND
On July 27, 2007, BNPP made loans totalling $17 million to Beckville

Properties, LLC (“Beckville”). On March 19, 2008, Defendant executed a Guaranty
in favor of BNPP, in which Defendant unconditionally guaranteed payment on

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Beckville’s indebtedness, subject to a limit of $4 million. On December 13, 2013,
Defendant entered into a Settlement Agreement in which he ratified and reaffirmed
the Guaranty. Defendant also acknowledged in the Settlement Agreement that the
unpaid balance due on the Beckville loans (exclusive of enforcement costs) was
$703,354.22, and he agreed to pay that amount by December 31, 2014.
In the Settlement Agreement, Defendant specifically agreed that “any additional
attorney fees and expenses arising out of any subsequent failure to pay” the
indebtedness under the Settlement Agreement “shall be reasonable and necessary, and
Honeycutt agrees not to contest them.” See Settlement Agreement, attached to Motion
for Judgment on the Pleadings [Doc. # 12], p. 2 (p. 94 of 133).
Defendant Honeycutt failed to make timely payment under the Settlement
Agreement. Plaintiff filed this lawsuit, and by Order [Doc. # 17] entered April 22,
2015, the Court granted judgment on the pleadings in favor of Plaintiff against
Defendant.

Plaintiff now seeks to recover attorneys’ fees in the amount of

$71,840.11.
II.

ANALYSIS
Plaintiff seeks to recover attorneys’ fees under the Settlement Agreement and

pursuant to § 38.001 of the Texas Civil Practice and Remedies Code. Section 38.001
provides that a person “may recover reasonable attorney’s fees from an individual or

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corporation, in addition to the amount of a valid claim and costs, if the claim is for .
. . an oral or written contract.” TEX. CIVIL PRAC. & REM. CODE § 38.001(8). Section
38.001 requires that the requested fees be reasonable, but does not require a showing
that the fees were necessary. See Cordova v. Southwestern Bell Yellow Pages, Inc.,
148 S.W.3d 441, 446 (Tex. App. – El Paso 2004, no pet.).
To recover attorney’s fees under § 38.001, “a party must (1) prevail on a cause
of action for which attorney's fees are recoverable, and (2) recover damages.” Green
Int’l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997). Plaintiff has satisfied each of
these requirements. Therefore, this Court has no discretion to deny attorneys’ fees,
but has discretion to determine the amount of fees to be awarded. See Ventling v.
Johnson, __ S.W.3d __, 2015 WL 2148056, *8 (Tex. May 8, 2015) (citing Bocquet
v. Herring, 972 S.W.2d 19, 20 (Tex. 1998)).
Defendant argues that Plaintiff has failed to demonstrate that the requested fees
are reasonable. In the Settlement Agreement, however, Defendant affirmatively
waived his right to contest the amount of fees.

Waiver is the “intentional

relinquishment of a known right or intentional conduct inconsistent with claiming that
right.” Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003). In the Settlement
Agreement, Defendant, who was represented by counsel, intentionally agreed to
forego his right to object to the amount of future attorneys’ fees incurred by Plaintiff

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should Defendant fail to comply with his payment obligations. As a result, Defendant
waived that right and cannot object to the reasonableness of the requested fees.
Additionally, even if Defendant had not waived the right to challenge the
amount of fees, the Court has carefully reviewed the fee request and finds that the
claimed fees are reasonable. The amount of reasonable fees is a question of fact. See
Intern. Sec. Life Ins. Co. v. Spray, 468 S.W.2d 347, 349 (Tex. 1971). Where, as here,
the attorney has presented uncontroverted, detailed evidence regarding the requested
fees, the reasonableness is presumed to be true if the opposing party had the
opportunity to refute the evidence and failed to do so. See Ragsdale v. Progressive
Voters League, 801 S.W.2d 880, 882 (Tex. 1990). In this case, Plaintiff has presented
detailed time records supporting the reasonableness of the fee request. The records
reflect billing judgment. For example, several hours worked by an associate with the
law firm are not charged to Plaintiff. There are no charges for work performed before
Defendant advised Plaintiff that he would not make the payment required under the
Settlement Agreement. There is no indication of duplicate work. The number of
hours and the hourly rate are neither excessive nor unreasonable. The Court finds that
the amount of fees requested is reasonable, particularly in light of the size of the
indebtedness and the history of the parties’ dealings with each other. Plaintiff is
entitled to recover its requested fees.

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III.

CONCLUSION AND ORDER
Defendant in the Settlement Agreement waived his right to contest the

reasonableness of the fees incurred in collecting under the Guaranty. Even if
Defendant had not waived the right to challenge the amount of fees requested, the
Court finds that the amount of fees charged to Plaintiff by its attorneys was
reasonable. As a result, it is hereby
ORDERED that the Supplemental Motion for Summary Judgment on Legal
Fees [Doc. # 15] is GRANTED and Plaintiff is awarded $71,840.11 in fees. It is
further
ORDERED that counsel for Plaintiff shall submit by May 26, 2015, a proposed
Final Judgment consistent with the Court’s rulings in this case.
SIGNED at Houston, Texas, this 19th day of May, 2015.

NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

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