Bryan Black v. Smith Protective Services, Inc. ( 2015 )

ACCEPTED
01-14-00969-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
3/19/2015 3:41:11 PM
CHRISTOPHER PRINE
CLERK
NO. 0l-14-00969-CV
FILED IN
1st COURT OF APPEALS
TN THE FIRST COURT OF APPEALS HOUSTON, TEXAS
AT HOUSTON, TEXAS 3/19/2015 3:41:11 PM
CHRISTOPHER A. PRINE
Clerk
BRYAN BLACK
Appellant, Cross Appellee
v.
SMITH PROTECTIVE SERVICES, INC.
Appellee, Cross Appellant
ON APPEAL FROM THE
189TH JUTIICIAL DISTzuCT COURT OF HARzuS COLINTY, TEXAS
BRIEF OF CROSS APPELLEEO BRYAN BLACK
ORAL ARGUMENT REQUESTED
MMi*)å\n
LAW OFFICBS OF
PATIìICK G. TIUBIIAIII), P.C.
Patrick G. I-Iubbard
Texas Bar No. 10139500
1075 Kingwood Drive, Suite 203
Houston, Texas 77339
Telephone: (28 1) 358-7 035
Facsimile: (281) 358-7008
ATTOIìNEY FOII AI'I'ELLAI\1'
Ilryan lìlack,
IDENTITY OF PARTIES AND COUNSBL
Appellant: Bryan Black
Represented By: Patrick G. Hubbard
Law Offices of Patrick G. Hubbard, P.C.
phubbard@patri ckhubbardl aw. com
Texas Bar No. 10139500
1075 Kingwood Drive, Suite 203
Houston, Texas 77339
Telephone: (281) 358-7035
Facsimile: (281) 358-7008
Appellee: Smith Protective Services, Inc.
Represented by: Todd H. Tinker
Law Office of Todd FL Tinker, P. C.
tinkerlaw@tinkerlaw. com
Texas Bar No. 20056150
P. O. Box 75380
Dallas, Texas 75380
Telephone: (214) 914-37 60
Facsimile: (214) 853-4328
TABLE OF CONTENTS
IDENTITYOFTHEPARTIESANDCOLINSEL.... .......ii
TABLE OF CONTENTS .......iii
TABLE OF AUTHORITIES .........iv
STATEMENT OF THE CASE/STATEMENT OF FACTS .........1
SLIN4MARY OF THE ARGUMENT. ......2
ARGTTMENT AND AUTHORITIES .,,....2-5
PRAYER .......5
CERTIF'ICATE OF SERVICE. ........6
111
TABI,E OF AUTHORITIES
Statutes
Texas Rule of Civil Procedure 167.5(c) a
J
Texas Rule of Appellate Procedure 33.2 4
Texas Rule of Evidence 103 a
J
TEX. R. EVID. 103(aX2), (b) 4
Cases
Beckett v. state, 2012 Tex. App. LEXIS 2293,8-9 (Tex. App.-Dallas
publicarion)
[Mar. 22,] 2012, no pet. hist.) (not designated for 3
Bobbora v. (Jnitrin Ins. servs.,255 s.w.3d 331,33s (Tex. App.-Dallas
2008, no pet.)
Cale's Clean Scene Carwash, Inc. v. Hubbard, T6 S.W. 3d784,787
(Tex. App.-Houston [14th Dist.] 200| no pet) 4
Duke v. state,365 s.w. 3d722 (Tex. App.-Texarkana 20l2,pet. ref d) J
Fletcher v. Minn. Min. & Mfg. Co.,57 S.W.3d 602,606 (Tex.
App.-Houston [1st Dist.] 2001, pet. denied)1" 4
Guidry v. State, g S.V/.3d 133, t53 (Tex" Crim" App" lggg) 3,4
Lone starr Multi-Theatres, Ltd. v. Max Interests, Ltd.,365 s.w. 3d 6gg
(Tex. App.-Houston [l't Dist] 20IL no pet.) 4
Midland fitr. BHg. LLC v. First Serv. Air Conditioning Contractors, Inc.
300 S.W.3d 738 739 (Tex.2009). 4
,Sink v. ,\ink. 764 W W 3d ?4O (Tev Ann ps,Lwe) 2v\2
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IV
STATEMENT OF THE CASE/STATEMENT OF FACTS
Bryan Black sued Smith Protective Seruices, Inc. and Zaffar based upon a
wrongful arrest that Zaffar, an employee of Smith Protective Services, Inc.
initiated falsely claiming that Black had assaulted him with a baseball bat. The
charges were dropped. Smith Protective Services, Inc. was granted an
Interlocutory Summary Judgment against Black on August 20,2014 (Appendix A)
after having made an offer to settle the ease for $5,000.00 (Appenelix B), whieh
was not accepted by Black. The remainder of the case proceeded to trial at which
Zaffar failed to appear and defend himself, and Smith failed to appear at trial and
offer any proof of attorneys' fees, and a final default judgment was taken against
Zaffar on September 23, 2014 (Appendix C, CR 647 -648).
Smith filed a Motion for Attorney's Fees Award on September 25, 2014
(Appenciix B). tslack demanded an orai hearing. At the orai hearing Smith's
counsel only presented an oral review of their Motion for Attorneys' Fees Award
and failed to offer any testimony or evidence. Black's counsel reminded the Court
that a final trial had taken place and that Smith failed to appear. The Court denied
the Motion for Attorney's Fee Award on December 3, 2014.
SUMMARY OF ARGUMENT
The basis for Smith Protective Services, lnc.'s Motion for Attorney Fee
Award is that Smith made an offer to settle during trtal, the settlement offer was
not accepted, and Smith prevailed on dismissing the Plaintiffs claims in a
summary judgment.
The motion fails as a matter of law for several reasons:
(a) The Motion for Attorneys' Fee Award was not filed timely before final
judgment.
(b)Smith failed to offer any evidence or proof of evidence at the time of the
hearing on the Motion for Attorneys' Fee Award or make an offer of a bill of
exceptions"
ARGUMBNT AND AUTHORITIES
Defendant, Smith's Motions for Summary Judgment were granted on
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rrrf. u300 S.W. 3d735 739 (Tex.2009).
PRAYER
WHEREFORE, PREMISES CONSIDERED, Cross Appellee, Black prays
that upon hearing hereof the Court deny appeal on the Motion for Attorney Fees
and that Cross Appellant take nothing, and that Cross Appellee have all relief to
which he is justly entitled.
ctfully Submitted,
I
LAW OFFICES OF
PATRICK G. HUBBARD, P.C.
Patrick G. Hubbard
phub b ard @p atricl