Diogu Law Firm PLLC v. Melanson,
No. 14-18-01053-CV (Tex. App. Oct. 20, 2020)
JUSTICE MEAGAN HASSAN | REPUBLISHED BY LIT: JAN 11, 2022
The judicial proceedings privilege is an affirmative defense.
Wilkinson v. USAA Fed. Sav. Bank Tr. Servs., No. 14-13-00111-CV, 2014 WL 3002400, at *6 (Tex. App. Houston [14th Dist.] July 1, 2014, pet. denied) (mem. op .); see also ProPublica, Inc. v. Frazier, No. 01-19-00009-CV, 2020 WL 370563, at *7 (Tex. App. Houston [1st Dist.] Jan. 23, 2020, pet. filed) (mem. op.).
It applies to judges, counsel, and parties, among others.
Landrys, Inc. v. Animal Legal Def. Fund, 566 S.W.3d 41, 57 (Tex. App. Houston [14th Dist.] 2018, p et. denied); Wilkinson, 2014 WL 3002400, at *6.
Under the judicial proceedings privilege, any statement made in the due course of or in serious contemplation of a judicial or quasi-judicial proceeding is absolutely privileged and cannot serve as the basis for a defamation lawsuit.
Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 487 (Tex. 2015) (Green, J. dissenting); Shell Oil Co. v. Writt, 464 S.W.3d 650, 654-55 (Tex. 2015); James v. Brown, 637 S.W.2d 914, 916 (Tex. 1982) (per curiam); Landrys, Inc., 566 S.W.3d at 57.
Thus, the privilege provides the defendant with a defense against the plaintiffs defamation suit that is based on communications made in the course of a judicial or quasi-judicial proceeding;
the judicial proceedings privilege does not provide protection to the plaintiff who brought the defamation suit.
Therefore, even accepting Appellants apparent (but erroneous) assertion that their defamation suit is based on statements Diogu made at the Fulshear City Council meeting and that the council meeting was a judicial proceeding, Appellants cannot claim the judicial proceedings privilege because the privilege protects the party against whom the defamation suit (based on communications made in the course of a judicial or quasi-judicial proceeding) is brought.
Appellants as the plaintiffs in this defamation suit cannot assert the judicial proceedings privilege and avoid the sanctions and attorneys fees the trial court awarded against them as provided by the TCPA after the court granted Appellees TCPA motions to dismiss Appellants defamation suit.
On September 21, 2018, Judge Shoemake signed a final judgment in the defamation suit ordering that
(1) Appellants’ claims are dismissed with prejudice;
(2) Appellants’ Motion to Disqualify Opposing Counsels is denied because it was filed in violation of Texas Rule of Civil Procedure 13;
(3) Appellants must pay Appellees $3,159.00 as reasonable and necessary attorney’s fees incurred in defending said motion;
(4) Appellees’ TCPA motions to dismiss are granted;
(5) Appellants pay Appellees $52,853.00 as reasonable and necessary attorney’s fees in defending “the case in chief and for filing and presenting the Motion[s] to Dismiss” as well as attorney’s fees in the event of an appeal;
(6) Appellants pay Appellees “the additional amount of $105,706.00 as sanctions to deter the bringing of similar actions and to promote the purposes of” the TCPA.
The same day, the trial judge also signed findings of fact and conclusions of law.
Total Bill: $161,718
INTERIM ORDER REGARDING LAKELAND WEST CAPITAL 41, L.L.C.’S MOTION FOR RELIEF FROM THE AUTOMATIC STAY REGARDING 4726 GAINSBOROUGH DR, BROOKSHIRE, TX 77423
(Relates to Docket No. 28)
ON THIS DAY came for hearing Lakeland West Capital 41, L.L.C.’s Motion for Relief Under 11 U.S.C. § 362(d)(1) from the Automatic Stay Regarding 4726 Gainsborough Drive, Brookshire, TX 77423, the responses filed, evidence presented, and arguments of counsel.
It is, therefore, ORDERED that Lakeland West Capital 41, L.L.C., its successors and assigns (“Lakeland”), is permitted to post that certain real property known as 4726 GAINSBOROUGH DRIVE, BROOKSHIRE, TX 77423 being further described on Exhibit “A” attached hereto (the “Property”), for a February 1, 2022 foreclosure sale; provided, however, that Lakeland shall not proceed with a non-judicial foreclosure sale without further order of the Court.
It is further ORDERED that the hearing on Lakeland West Capital 41, L.L.C.’s Motion for Relief filed at Docket No. 28, on December 17, 2021, at 9:00 a.m. (C.S.T.), continued to January 19, 2022 at 3:30 p.m.
APPROVED AND ENTRY REQUESTED:
HIRSCH & WESTHEIMER, P.C.
By: /s/ Michael J. Durrschmidt
Michael J. Durrschmidt
Texas Bar No. 06287650
State Bar No. 24097994
1415 Louisiana, Floor 36
Houston, Texas 77002
ATTORNEYS FOR LAKELAND WEST CAPITAL 41, LLC
APPROVED AS TO FORM:
DIOGU KALU DIOGU, II
By: /s/ Diogu Kalu Diogu, II
Diogu Law Firm PLLC
Texas Bar No. 24000340
4726 Gainsborough Dr.
Brookshire, Texas 77423
Case before Judge Sim Lake terminated in Nov. 2021 after bankruptcy proceedings commenced.
Commission for Lawyer Discipline vs Diogu Kalu Diogu, II
Case Type: Other Civil
Date Filed: 01/06/2021
Location: 458th District Court
Case No. 21-DCV-279744
Last entry: 10/08/2021
Diogu was referred to the State Bar of Texas by Judge Shoemake’s Fort Bend court. There is no opinion available on the docket and there is no sanctionable conduct noted on Diogu’s Texas Bar Profile as at January 2022.
Offord v. City of Fulshear,
(5th Cir. June 9, 2021)
REPUBLISHED BY LIT: JAN 11, 2022
I. Factual & Procedural Background
Offord began working in the position of City Secretary in May 2006.
Offord was hired as an “at-will” employee meaning that either party could terminate the employment relationship at any time, with or without cause.
She was generally supervised by the mayor, the city council, and the planning commission.
James Roberts was serving as mayor when Offord was hired, and Tommy Kuykendall was elected as mayor in 2010.
C.J. Snipes served as city manager during most of the time Offord worked for the City.
He was replaced by Kenny Seymour in 2018. In March 2018, Seymour terminated Offord’s employment on grounds that she had violated the City’s employment policies against “misrepresentation or lying to a . . . member of the public” to the potential detriment of the City and for violating various “laws relating to dishonest activities or fraud.”
The City cited these reasons because it had discovered that, in another case culminating around early 2018,1 Offord’s current counsel, Diogu Kalu Diogu, had filed an invalid deed in the Fort Bend County real property records.
The deed falsely claimed ownership of an easement on property that Diogu controlled when, in actuality, the City rightfully owned the easement.
In litigating that case, the city attorney researched the chain of title to the easement and, during that process, learned that a sanctions motion and order existed against Offord in a 2012 probate case where she was represented by Diogu.
C. The City’s Motion for Sanctions
Finally, pending before this court is the City’s previously filed motion for sanctions against Offord’s attorney, Diogu, including appellate costs and attorney’s fees.
The City does not seek sanctions against Offord individually.
Diogu has responded to the City’s motion arguing that it is premature because at the time it was filed, this court had not yet ruled on the merits of Offord’s appeal. Offord submitted an affidavit in support of Diogu’s response clarifying that she fully supported the filing of this appeal and was not persuaded by Diogu to file a purportedly frivolous appeal, as the City suggests. Offord expresses in her affidavit that the City is attempting to “create a wedge” between herself and Diogu by filing for sanctions against him alone.
“Federal Rule of Appellate Procedure 38 confers broad discretion on federal courts of appeals to award sanctions in any appeal the court determines to be ‘frivolous.’”
Sun Coast Res., Inc. v. Conrad, 958 F.3d 396, 398 (5th Cir. 2020) (citing Fed. R. App. P. 38 (“If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.”)).
“An appeal is frivolous if the result is obvious or the arguments of error are wholly without merit[.]”
Coghlan v. Starkey, 852 F.2d 806, 811 (5th Cir. 1988).
However, we have acknowledged that Rule 38 sanctions are best applied in matters involving malice, as opposed to incompetence.
Sun Coast, 985 F.3d at 398.
We have observed that Offord has advanced numerous meritless arguments and that, in some contexts, she has misconstrued and misapplied the applicable law. But the arguments that she advances on appeal, although often disorganized, confusing, and unpersuasive, do not rise to the level of malice.
If anything is apparent from Offord’s affidavit, it is that she emphatically supports the allegations of discrimination that Diogu has advanced on her behalf.
That said, we warn Offord and Diogu against future unnecessary filings or bad faith tactics of any kind in this court.
We exercise our discretion not to grant sanctions under Rule 38 in this particular instance.5
The City’s motion is denied.
DIOGU, MARK K vs. NON-ADVERSARY (CHANGE OF NAME)
JudgeName: LINDA MARIE DUNSON
JUN 5, 1995 | REPUBLISHED BY LIT: JAN 11, 2022
A name change is noted in the Harris County Court records changing Mark K Diogu’s name to Diogu Kalu Diogu.
U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:21-cv-03201
Create an Alert for This Case on RECAP
|Diogu v. Lakeland West Capital 41, L.L.C. et al
Assigned to: Judge Sim Lake
Cause: 28:1331 Fed. Question
|Date Filed: 10/01/2021
Jury Demand: Plaintiff
Nature of Suit: 220 Real Property: Foreclosure
Jurisdiction: Federal Question
|Diogu Kalu Diogu, II||represented by||Tanika J. Solomon
T. J. Solomon Law Group, P.L.L.C.
2120 Welch Street
Houston, TX 77019
ATTORNEY TO BE NOTICED
|Lakeland West Capital 41, L.L.C.||represented by||Benjamin Witten Allen
Wallace & Allen, LLP
Houston, TX 77002
ATTORNEY TO BE NOTICED
|Veritex Community Bank|
|Date Filed||#||Docket Text|
|10/01/2021||1||NOTICE OF REMOVAL from 434th District Court of Fort Bend County, Texas, case number 21-DCV-287068 (Filing fee $ 402 receipt number 0541-27132912) filed by Lakeland West Capital 41, L.L.C.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Civil Cover Sheet)(Allen, Benjamin) (Entered: 10/01/2021)|
|10/04/2021||2||ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 1/21/2022 at 03:00 PM in Courtroom 9B before Judge Sim Lake. (Signed by Judge Sim Lake) Parties notified.(sanderson, 4) (Entered: 10/04/2021)|
|Date Filed||Document Text|
|November 16, 2021||Filing 21 ORDER – Pltf filed a #20 Notice of Dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). Plaintiff asserts that the dismissal is warranted pursuant to the filing of his Chapter 13 Bankruptcy on November 2, 2021. Accordingly, this Court accepts the Notice of Voluntary Dismissal and this action is hereby DISMISSED without prejudice against refiling the same. Each party will bear its own costs…*** Case terminated on 11/16/21. (Signed by Judge Sim Lake) Parties notified.(sanderson, 4)|
|November 15, 2021||Filing 20 NOTICE of Dismissal as to All Parties by Diogu Kalu Diogu, II, filed. (Diogu, Diogu)|
|November 12, 2021||Filing 19 SUGGESTION OF BANKRUPTCY by Lakeland West Capital 41, L.L.C., filed.(Allen, Benjamin)|
|November 12, 2021||Filing 18 MOTION to Dismiss #8 Amended Complaint/Counterclaim/Crossclaim etc., Motions referred to Christina A Bryan. by Lakeland West Capital 41, L.L.C., filed. Motion Docket Date 12/3/2021. (Allen, Benjamin)|
|November 8, 2021||Filing 17 ORDER granting #10 Motion for Extension of Time to Respond to Defendant’s’ Motions.(Signed by Magistrate Judge Christina A Bryan) Parties notified.(cjan, 4)|
|November 1, 2021||Filing 16 ORDER – CASE REFERRED to Magistrate Judge Christina A Bryan. Parties to advise court w/in 20 days if they will consent to Judge Bryan. *** Initial Conference set for 1/21/2022 at 03:00 PM before Judge Sim Lake is CANCELLED. *** (Signed by Judge Sim Lake) (Attachments: #1 Consent Form) Parties notified.(sanderson, 4)|
|November 1, 2021||Filing 15 ORDER – Plaintiff seeks to restrain a foreclosure of his home scheduled for November 2, 2021. Having carefully considered the parties arguments, the court concludes that Plaintiff’s #8 First Amended Complaint and #9 Ex Parte EMERGENCY MOTION First MOTION for Temporary Restraining Order should be and are hereby DENIED because Plaintiff has not shown that he is likely to succeed on the merits or that he will suffer irreparable injury if the foreclosure occurs as scheduled on November 2, 2021. (Signed by Judge Sim Lake) Parties notified.(sanderson, 4)|
|November 1, 2021||Filing 14 First CERTIFICATE OF INTERESTED PARTIES by Diogu Kalu Diogu, II, filed.(Diogu, Diogu)|
|November 1, 2021||Filing 13 First Proposed Pretrial Order by Diogu Kalu Diogu, II(Diogu, Diogu)|
|November 1, 2021||Filing 12 First REPLY to Response to #4 MOTION to Dismiss Original Complaint, #10 First MOTION for Extension of Time Respond to Defendants’ motion to Dismiss, #3 MOTION to Dismiss , #9 Ex Parte EMERGENCY MOTIONFirst MOTION for Temporary Restraining Order, #5 MOTION for Joinder as to #4 MOTION to Dismiss Original Complaint, filed by Diogu Kalu Diogu, II. (Attachments: #1 Exhibit Rescission of Laon)(Diogu, Diogu)|
|October 31, 2021||Filing 11 RESPONSE in Opposition to #9 Ex Parte EMERGENCY MOTIONFirst MOTION for Temporary Restraining Order, filed by Lakeland West Capital 41, L.L.C.. (Attachments: #1 Exhibit, #2 Exhibit, #3 Exhibit, #4 Proposed Order)(Allen, Benjamin)|
|October 29, 2021||Filing 10 First MOTION for Extension of Time Respond to Defendants’ motion to Dismiss by Diogu Kalu Diogu, II, filed. Motion Docket Date 11/19/2021. (Attachments: #1 Proposed Order)(Diogu, Diogu)|
|October 29, 2021||Filing 9 Ex Parte EMERGENCY MOTION( Motion Docket Date 11/19/2021.), First MOTION for Temporary Restraining Order by Diogu Kalu Diogu, II, filed. (Attachments: #1 Complaint Amended Complaint In support, #2 Exhibit Exhibits 1-15, #3 Affidavit In support for TRO, #4 Exhibit Exhibits 1, 4 and 15)(Diogu, Diogu)|
|October 29, 2021||Filing 8 First AMENDED COMPLAINT with JURY DEMAND against All Defendants filed by Diogu Kalu Diogu, II. Related document: #1 Notice of Removal, filed by Lakeland West Capital 41, L.L.C.. (Attachments: #1 Affidavit Support of Amended Complaint, #2 Exhibit Exhibits 1-15)(Diogu, Diogu)|
|October 19, 2021||Filing 7 CERTIFICATE OF INTERESTED PARTIES by Lakeland West Capital 41, L.L.C., filed.(Allen, Benjamin)|
|October 19, 2021||Filing 6 CERTIFICATE OF INTERESTED PARTIES by Veritex Community Bank, filed.(Clark, Brian)|
|October 8, 2021||Filing 5 MOTION for Joinder as to #4 MOTION to Dismiss Original Complaint by Lakeland West Capital 41, L.L.C., filed. Motion Docket Date 10/29/2021. (Allen, Benjamin)|
|October 8, 2021||Filing 4 MOTION to Dismiss Original Complaint by Veritex Community Bank, filed. Motion Docket Date 10/29/2021. (Attachments: #1 Proposed Order Order)(Clark, Brian)|
|October 8, 2021||Filing 3 MOTION to Dismiss by Lakeland West Capital 41, L.L.C., filed. Motion Docket Date 10/29/2021. (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7, #8 Proposed Order on Defendant’s Motion to Dismiss)(Allen, Benjamin)|
|October 4, 2021||Filing 2 ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 1/21/2022 at 03:00 PM in Courtroom 9B before Judge Sim Lake. (Signed by Judge Sim Lake) Parties notified.(sanderson, 4)|
|October 1, 2021||Filing 1 NOTICE OF REMOVAL from 434th District Court of Fort Bend County, Texas, case number 21-DCV-287068 (Filing fee $ 402 receipt number 0541-27132912) filed by Lakeland West Capital 41, L.L.C.. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Civil Cover Sheet)(Allen, Benjamin)|
Southern District of Texas (Houston)
Bankruptcy Petition #: 21-33581
|Assigned to: Bankruptcy Judge David R Jones
Diogu Kalu Diogu, II
4726 Gainsborough Dr
Brookshire, TX 77423
OUTSIDE U. S.
SSN / ITIN: xxx-xx-9066
|represented by||Diogu Kalu Diogu, II
Attorney at Law
4726 Gainsborough Dr
Brookshire, TX 77423
Fax : 713-429-5237
Email: firstname.lastname@example.orgMichael Glen Walker, Sr
Walker & Patterson, P.C.
Houston, TX 77092
Fax : 713-956-5570
William E. Heitkamp
Office of Chapter 13 Trustee
9821 Katy Freeway
Houston, TX 77024
Office of the US Trustee
515 Rusk Ave
Houston, TX 77002
|Filing Date||#||Docket Text|
(14 pgs; 3 docs)
|Amended Schedule A/B: Property for Individual (Filed By Diogu Kalu Diogu II). (Attachments: # 1 Exhibit Attachment 1 # 2 Exhibit Attachment 2) (Diogu, Diogu) (Entered: 12/17/2021)|
(164 pgs; 23 docs)
|Exhibit List (Filed By Lakeland West Capital 41, LLC ).(Related document(s):46 Exhibit List, Witness List) (Attachments: # 1 Exhibit 29 # 2 Exhibit 30 # 3 Exhibit 31 # 4 Exhibit 32 # 5 Exhibit 33 # 6 Exhibit 34 # 7 Exhibit 35 # 8 Exhibit 36 # 9 Exhibit 37 # 10 Exhibit 38 # 11 Exhibit 39 # 12 Exhibit 40 # 13 Exhibit 41 # 14 Exhibit 42 # 15 Exhibit 43 # 16 Exhibit 44 # 17 Exhibit 45 # 18 Exhibit 46 # 19 Exhibit 47 # 20 Exhibit 48 # 21 Exhibit 49 # 22 Exhibit 50) (Lewinski, Kim) (Entered: 12/17/2021)|
|12/17/2021||53||Courtroom Minutes. Time Hearing Held: 9:00 AM. Appearances: Diogu Kalu Diogu, II, Pro se Debtor; Michael Durrscmidt and Kim Liwinski for Lakeland West Capital 41, LLC. (Related document(s):28 Motion for Relief From Stay) Lakeland West Capital 41, LLC exhibits 46-19, 46-23 through 46-28, 46-20, 46-22 admitted. The Court heard from all interested parties. By agreement, today’s Hearing is continued to 1/19/2022 at 03:30 PM at Houston, Courtroom 400 (DRJ). (VrianaPortillo) (Entered: 12/17/2021)|
(3 pgs; 2 docs)
|Proposed Order Submission After Hearing (Filed By Lakeland West Capital 41, LLC ).(Related document(s):28 Motion for Relief From Stay) (Attachments: # 1 Exhibit A – Legal Description) (Lewinski, Kim) (Entered: 12/17/2021)|
|PDF with attached Audio File. Court Date & Time [ 12/17/2021 9:00:17 AM ]. File Size [ 43974 KB ]. Run Time [ 01:31:37 ]. (admin). (Entered: 12/17/2021)|
|Interim Order Regarding Lakeland West Capital 41, L.L.C.’s Motion for Relief from the Automatic Stay Regarding 4726 Gainsborough Dr., Brookshire, TX 77423 Signed on 12/20/2021 (Related document(s):28 Motion for Relief From Stay) (emiller) (Entered: 12/20/2021)|
|Amended Objection to Confirmation of Plan Filed by Fort Bend County. (Related document(s):35 Objection to Confirmation of the Plan) (Dillman, John) (Entered: 12/21/2021)|
|Notice of Appearance and Request for Notice Filed by Michael Glen Walker Sr Filed by on behalf of Diogu Kalu Diogu II (Walker, Michael) (Entered: 12/22/2021)|
|BNC Certificate of Mailing. (Related document(s):56 Generic Order) No. of Notices: 2. Notice Date 12/22/2021. (Admin.) (Entered: 12/22/2021)|
|Notice of Appearance and Request for Notice Filed by Brian Talbot Cumings Filed by on behalf of Denise Robbins, David Melanson, Tricia Krenek, Eddie Krenek (Cumings, Brian) (Entered: 01/04/2022)|