Farrar & Ball, LLP et al v. hudson et al
MEMORANDUM AND ORDER granting 14 Motion to Enforce. The state court orders will be fully enforced by this Court, and the award of attorneys' fees will be enforced in an amount to be determined at the conclusion of this litigation.(Signed by Judge Nancy F Atlas) Parties notified.(TDR, 4)
United States District Court
Southern District of Texas
April 30, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
Defendant/Third-Party Plaintiff, §
WESLEY T. BALL, KYLE W.
FARRAR, DAVID ROMAGOSA,
JR., and RHONDA HERBERT,
David J. Bradley, Clerk
FARRAR & BALL, LLP,
CIVIL ACTION NO. H-16-3341
MEMORANDUM AND ORDER
This case is before the Court on the Motion to Enforce Orders for Sanctions1
(“Motion to Enforce”) [Doc. # 14] filed by Plaintiff Farrar & Ball, LLP (“Farrar &
Ball”) and Third-Party Defendants Wesley T. Ball, Kyle W. Farrar, David Romagosa,
Jr., and Rhonda Herbert. Third-Party Plaintiff Nicole Hudson filed a Response [Doc.
# 15], and Movants filed a Reply [Doc. # 17]. Having considered the full record and
the applicable legal authorities, the Court grants the Motion to Enforce to the extent
The Court notes that the award of attorneys’ fees by the Texas state court was not a
sanction, but was an award of fees pursuant to Texas state law.
that the Court enforces the dismissal of certain claims and the award of attorney’s fees
against Hudson, in an amount to be determined at the conclusion of this lawsuit.
Farrar & Ball is a law firm in Houston, Texas, where Nicole Hudson was
employed as a paralegal. Farrar & Ball filed this lawsuit against Hudson in Texas
state court for theft based on Hudson’s claims for overtime compensation for hours
she allegedly did not work.
Hudson filed counterclaims against Farrar & Ball and others, including claims
for defamation and malicious prosecution. Prior to removal of the lawsuit, Texas state
court Judge Michael Gomez dismissed Hudson’s claims for defamation and malicious
prosecution by separate orders. See Orders, Exh. 1 and Exh. 2 to Motion to Enforce.
Judge Gomez awarded Farrar & Ball its attorneys’ fees in an amount to “be
determined at a later date.” See id.
Following removal, this Court ordered Hudson to file any request for
reconsideration of the state court orders by March 8, 2017. See Hearing Minutes and
Order [Doc. # 10]. Hudson neither filed a motion for reconsideration of either state
court order, nor requested an extension of the March 8, 2017 deadline. As a result,
this Court will not reconsider the state court orders.
On March 31, 2017, more than three weeks after the expiration of the deadline
for any request for this Court to reconsider the state court orders, Movants filed their
Motion to Enforce. Movants seek $11,625.00 in attorneys’ fees and costs. The
Motion to Enforce has been fully briefed and is now ripe for decision.
ENFORCEMENT OF STATE COURT ORDERS
On November 2, 2016, State Court Judge Gomez conducted a hearing on the
Chapter 27 motion to dismiss the defamation claim and the Rule 91a motion to
dismiss the malicious prosecution claim. Hudson was originally represented by
attorney Taft Foley. At the beginning of the November 2, 2016, hearing, attorneys
Jimmie Brown and Debra Jennings were substituted as counsel for Hudson.
Following the November 2 hearing, State Court Judge Gomez dismissed
Hudson’s defamation claim pursuant to Chapter 27 of the Texas Civil Practice &
Remedies Code. The state court noted that Hudson’s defamation claim was based on
statements published in Law360 and LexisNexis quoting from pleadings in the
underlying lawsuit, and on statements made during the Texas Workforce Commission
proceedings. The state court held that Hudson failed to allege the defamation claim
adequately and, even if he presumed that her allegations established a prima facie
case, the defamation claim was subject to dismissal because it was based on privileged
statements in judicial or quasi-judicial proceedings.
Hudson has presented no legal or factual basis for challenging the dismissal of
the defamation claim. Except in cases involving a governmental entity or a public
official acting in his official capacity or under color of law, Chapter 27 requires an
award of attorneys’ fees upon dismissal of the claim. See TEX. CIV. PRAC. & REM.
CODE § 27.009.
While the case was pending in state court, Movants sought dismissal of
Hudson’s fraud, intentional infliction of emotional distress, and malicious prosecution
claims pursuant to Texas Rule of Civil Procedure 91a. In response, Hudson filed an
amended pleading abandoning the fraud and intentional infliction of emotional
distress claims. Hudson continued, however, to pursue her malicious prosecution
claim. At the November 2 hearing, Mr. Brown advised State Court Judge Gomez that
he had “no idea about [the] malicious prosecution,” and both Mr. Brown and Ms.
Jennings stated that they had no response to the motion to dismiss the malicious
prosecution claim. See Transcript, Exh. 3 to Motion to Enforce, p. 50. Absent an
ability by counsel to explain the basis for the malicious prosecution claim, State Court
Judge Gomez dismissed it. Because an award of attorneys’ fees is mandatory under
Rule 91a,2 State Court Judge Gomez awarded Movants their attorneys’ fees in an
amount to be determined later.
See TEX. R. CIV. P. 91a(7).
Hudson has not challenged the validity of the state court orders, and she
provides no legal or factual basis for this Court not to enforce them. In her Response,
Hudson addresses the merits of her remaining claims for race discrimination,
retaliation, and breach of contract. The merits of her remaining claims is not relevant
to the Motion to Enforce. Hudson cites legal authority governing an award of
attorneys’ fees as a sanction for discovery abuses – legal authority that is irrelevant
to the Motion to Enforce an award of attorneys’ fees pursuant to Chapter 27 and
Rule 91a. Finally, and most puzzling, Hudson provides a lengthy discussion of the
law regarding witness tampering. There are not currently, nor have there ever been,
any allegations of witness tampering in this case.
Hudson failed to file a timely request for this Court to reconsider the state court
orders. Moreover, she has not provided any rationale for this Court not to enforce the
state court orders dismissing the defamation and malicious prosecution claims and
awarding attorneys’ fees pursuant to Chapter 27 and Rule 91a. As a result, the Court
will grant the Motion to Enforce and will enforce the dismissal of the claims and the
award of attorneys’ fees. The Court will determine the amount of fees at the
conclusion of this lawsuit.
CONCLUSION AND ORDER
Based on the foregoing, it is hereby
ORDERED that the Motion to Enforce [Doc. # 14] is GRANTED. The state
court orders will be fully enforced by this Court, and the award of attorneys’ fees will
be enforced in an amount to be determined at the conclusion of this litigation.
SIGNED at Houston, Texas, this 30th day of April, 2017.
NAN Y F. ATLAS
STATES DISTRICT JUDGE
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