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

ACCEPTED
01-14-00969-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
2/25/2015 1:30:37 PM
CHRISTOPHER PRINE
CLERK
FILED IN
1st COURT OF APPEALS
No. 01-14-00969-CV HOUSTON, TEXAS
2/25/2015 1:30:37 PM
CHRISTOPHER A. PRINE
Clerk
IN THE FIRST COURT OF APPEALS
AT HOUSTON, TEXAS
BRYAN BLACK,
Appellant
v.
SMITH PROTECTIVE SERVICES, INC.,
Appellee
On Appeal from the 189th Judicial District Court
The Honorable William R. Burke, Judge Presiding
CROSS-APPELLANT’S BRIEF
TODD H. TINKER
State Bar No. 20056150
TinkerLaw@TinkerLaw.com
LAW OFFICE OF TODD H. TINKER, PC
P.O. BOX 802606
Dallas, TX 75380
Telephone: (214) 914-3760
Facsimile: (214) 853-4328
ATTORNEY FOR APPELLEE
IDENTITY OF THE PARTIES AND COUNSEL
APPELLANT/CROSS-APPELLEE: ATTORNEY FOR APPELLANT/
CROSS-APPELLEE:
Bryan Black Patrick Hubbard
(“Black”) State Bar No. 10139500
phubbard@patrickhubbardlaw.com
HUBBARD LAW FIRM
1075 Kingwood Dr., Suite 203
Kingwood, TX 77339
Telephone: (281) 358-7035
Facsimile: (281) 358-7008
APPELLEE/CROSS-APPELLANT: ATTORNEY FOR APPELLEE/
CROSS-APPELLANT:
Smith Protective Services, Inc. Todd H. Tinker
(“Smith”) State Bar No. 20056150
TinkerLaw@TinkerLaw.com
LAW OFFICE OF TODD H. TINKER, PC
P.O. Box 802606
Dallas, Texas 75380
Telephone: (214) 914-3760
Facsimile: (214) 853-4328
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TABLE OF CONTENTS
IDENTITY OF THE PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
ISSUE PRESENTED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1. Is Smith entitled to recover its attorney’s fees and costs from plaintiff?. 2
CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
iii
TABLE OF AUTHORITIES
STATE CASES
Inwood North Homeowners' Ass'n, Inc. v. Meier,
625 S.W.2d 742, 743 (Tex. Civ. App. - Houston [1st Dist.] 1981, no writ). . . . . 2
MISCELLANEOUS
Tex. Civ. Pract. & Rem. C. §42.001, et.seq.. . . . . . . . . . . . . . . . . . . . . . . . . . . . v., 3
Tex. R. Civ. Pro. 167.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v.
iv
STATEMENT OF THE CASE
Black filed this suit against Muhammad Zaffar (“Zaffar”), Smith, and the
owners/managers of the condominium complex at which the relevant events took
place. Black alleged that he had been falsely arrested and maliciously prosecuted
following his arrest pursuant to an assault charge filed by Zaffar. Black was no-
billed by the grand jury.
Smith was granted judgment on both traditional and no-evidence summary
judgment motions. A non-jury trial was held, at which Black was granted
judgment against Zaffar, the only remaining defendant.
Smith filed a Motion for Attorney’s Fees pursuant to TRCP 167.2 and Tex.
Civ. Pract. & Rem. C. §42.001 et.seq., which Motion was denied by the trial court
without explanation. A copy of the signed Order for Interlocutory Summary
Judgment [CR 621] is filed herewith as Appendix A, a copy of the Motion for
Attorney’s Fees [CR 632-41] is filed as Appendix B, a copy of Plaintiff’s
Response [CR 642-49] is filed as Appendix C, a copy of Smith’s Reply to
Plaintiff’s Response [CR 652-54] is filed as Appendix D, and a copy of the Order
denying Motion for Attorney’s Fees [CR 655] is filed as Appendix E.
v
ISSUE PRESENTED
1. Is Smith entitled to recover its attorney’s fees and costs from
plaintiff?
vi
STATEMENT OF FACTS
Zaffar, a defendant in this matter, had been posted by Smith at the vehicle
entrance to a condominium complex at which Black was living. Irritated because
Zaffar refused entry to a guest of one of Black’s friends, Black drove down to the
gate area, parked, exited his vehicle, and proceeded to loudly berate Zaffar for his
actions, shouting and using profane language while doing so.
Upon completing his shift, Zaffar went to a Houston Police Department sub-
station and filed a criminal assault charge against Black. After speaking with
Zaffar, and unsuccessfully attempting to speak with Black, the investigating
officer referred the matter to an Assistant District Attorney, who caused an arrest
warrant to be issued for Black.
Black was subsequently arrested, incarcerated from early on a Friday
evening until early Sunday morning, and released on bail. Black instituted this
suit against the owners and management of the condominium complex, Zaffar, and
Smith. The condominium defendants were dismissed and on August 20, 2014, the
trial court signed an Order granting Smith’s Motions for No-Evidence and
Traditional Summary Judgment, dismissing all of Black’s claims against Smith
[Appendix A].
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When the case was called to trial, in the absence of an appearance by Zaffar,
Black submitted his evidence to the court without a jury, and judgment was
granted in his favor and against Zaffar on September 23, 2014 [CR, pp. 630-31].
Smith filed its Motion for Attorney Fees Award on September 25, 2014
[Appendix B]. By Order dated December 3, 2014, the trial court denied Smith’s
Motion for Attorney’s Fee Award [Appendix E]. Smith appeals this Order.
SUMMARY OF THE ARGUMENT
The trial court erred in denying Smith’s Motion for Award of Attorney’s
Fees as, upon proof of compliance with the statutory and procedural requirements,
such an award was mandatory, and not within the trial court’s discretion as to
whether to grant to deny an award.
ARGUMENT AND AUTHORITIES
1. Is Smith Entitled to Recover its Attorney’s Fees and Costs from
Plaintiff?
Smith incorporates in the entirety the evidence and arguments submitted to
the trial court in Appendices B and D.
As authority for the proposition that an award of attorney’s fees to Smith
was mandatory rather than discretionary, Smith relies on Inwood North
Homeowners' Ass'n, Inc. v. Meier, 625 S.W.2d 742, 743 (Tex. Civ. App. - Houston
2
[1st Dist.] 1981, no writ). The applicable statute, Tex. Civ. Pract. & Rem. C.
§42.004 provides that, “(a) If a settlement offer is made and rejected and the
judgment to be rendered will be significantly less favorable to the rejecting
party than was the settlement offer, the offering party shall recover litigation costs
from the rejecting party.” [emphasis added].
Accordingly, as Smith provided the trial court with evidence that it filed the
requisite declaration, made a settlement offer to Black which was rejected when
not timely accepted, and the judgment (dismissal) was significantly less favorable
to Black than the settlement offer, Smith demonstrated its entitlement to attorney’s
fees and costs as a matter of law.
CONCLUSION AND PRAYER
In the absence of any findings of fact or conclusions of law by the trial court
regarding its denial of Smith’s Motion for Award of Attorney’s Fees, this Court is
essentially forced to review the trial court’s ruling de novo. The evidence is
undisputed that Smith complied with the applicable statute, presented the trial
court with both evidence of its compliance, and evidence of the reasonableness of
the fees and costs sought to be recovered. Accordingly, the trial court erred in
denying Smith its fees and costs and this Court should reverse the trial court’s
judgment in this regard and render judgment that Smith recover its reasonable
3
attorney’s fees in the amount of $8,125.00 and costs in the amount of $8,793.97,
for a total judgment against Black in the amount of $16,918.97, plus applicable
pre and post-judgment interest.
Smith prays for judgment in this amount, and such other and further relief,
at law or in equity to which it may show itself to be justly entitled.
Respectfully submitted,
LAW OFFICE OF TODD H. TINKER, PC
P.O. Box 802606
Dallas, Texas 75380
(214) 914-3760 (telephone)
(214) 853-4328 (facsimile)
By: ________________________________
TODD H. TINKER
State Bar No. 20056150
TinkerLaw@TinkerLaw.com
ATTORNEY FOR APPELLEE/CROSS-
APPELLANT
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CERTIFICATE OF SERVICE
This is to certify that on the 25th day of February, 2015, a true and correct
copy of the above and foregoing has been served upon counsel of record via e-file
and email as follows:
Via Email
Patrick G. Hubbard, Esq
phubbard@patrickhubbardlaw.com
______________________________________
Todd H. Tinker
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