DALLAS – Law firm Burt Barr and Associates LLP is asking the
U.S. District Court for the Northern District of Texas to reject a second
attempt from a client to collect $3.16 million awarded in connection with a
sexual harassment lawsuit.
Martina Smart Simmons originally filed a lawsuit in March
2015 against Burt Barr and Associates, and attorneys John H. Barr and John
Howell House. Simmons alleged that the defendants failed to file proper
procedures when they obtained a $3 million final judgment against Piyush V.
Patel on behalf of Simmons in the 238th Judicial District Court of Midland
Patel was Simmons’ employer in connection with his medical
practice. Simmons alleged that Patel committed numerous acts of sexual
harassment, false imprisonment, and, ultimately, retaliation against her. She
hired Burt Barr and Associates to represent her in her claims against Patel.
A $155,000 judgment against The Heart Center and Heart Place
Hospital, LP was obtained from the Equal Employment Opportunity Commission on
Sept. 23, 2004.
In 2004 and 2005, Patel and some of his affiliated entities
filed for bankruptcy in the Western District of Texas. According to Simmons’
original complaint, the defendants obtained the $3 million judgment against
Patel in 2011 without obtaining relief from the bankruptcy court. Specifically,
Simmons claimed that the defendants failed to protect her claims by not
obtaining relief from the automatic stay imposed by the bankruptcy filings
before the judgment was entered, and by failing to object to Patel’s and the
other debtors’ discharge of Simmons’ claims in the various bankruptcy cases.
As a result of the defendants’ alleged misconduct, Simmons’
claims were discharged in the bankruptcy proceedings and the $3 million
judgment “is not any good.”
Simmons subsequently filed her lawsuit against the
defendants, asserting claims for legal malpractice, negligent infliction of
mental anguish and emotional distress and Texas Deceptive Trade Practices Act (DTPA)
violations. In March, the district court granted the defendants’ motion to
dismiss the negligent infliction of mental anguish and DTPA violations claims,
but denied their motion to dismiss the legal malpractice claim.
After the March ruling, Simmons filed a second amended complaint,
which asserts the legal malpractice claim. The defendants have asked the court
to reject the second amended complaint.
In their June 3 reply filed in defense of their dismissal
motion, the defendants said Simmons “is proposing that the court presume that
Dr. Patel had real property subject to collection, that Dr. Patel possessed
excess equity of at least $3.155 million in the presumed property and that plaintiff
would have collected on the underlying judgments, merely because Dr. Patel’s bankruptcy
attorney informed defendants that the debts were discharged.”
“Plaintiff’s presumption that the underlying judgments would
have been collectable because Dr. Patel’s bankruptcy attorney responded to defendants’
attempt at collection is insufficient to state the element of collectability,”
the defendants said in their reply. “Alleging that a lawyer wrote a letter informing
a creditor seeking payment that the creditor’s collection effort was unlawful
due to discharge in bankruptcy is not an allegation that allows a plausible
conclusion the bankrupt debtor holds title to real estate with equity, or that
he has come into $3.155 million or any other amount.”