No. 01-14-00969-CV

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

APPELLEE’S BRIEF

ORAL ARGUMENT RESERVED

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

ACCEPTED

01-14-00969-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

4/15/2015 11:42:22 AM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 4/15/2015 11:42:22 AM CHRISTOPHER A. PRINE Clerk
TABLE OF CONTENTS

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

-i-
TABLE OF AUTHORITIES

STATE CASES

Baptist Mem'l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998). . . . . . . 5

Banzhaf v. ADT Sec. Systems Southwest, Inc., 28 S.W.3d 180, 185

 (Tex. App. - Eastland 2000, writ den’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Coastal Transport Co., Inc. v. Crown Cent. Petroleum Corp., 

 47 Tex. Sup. Ct. J. 559, 136 S.W.3d 227, 232 (Tex. 2004). . . . . . . . . . . . . . . . . 8

CoTemp, Inc. v. Houston West Corp., 222 S.W.3d 487, 493

 (Tex. App. - Houston [14

th

 Dist.] 2007, no writ). . . . . . . . . . . . . . . . . . . . . . . . 10

Durand v. Moore, 879 S.W.2d 196, 199 (Tex. App. - Houston [14

th

 Dist] - 1994, 

 no writ (amended on different grounds)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Goodyear Tire and Rubber Co. v. Mayes, 236 S.W.3d 754, 757 (Tex. 2007).. . . 5

Greater Houston Transportation Co. v. Phillips, 801 S.W.2d 523, 525 

 (Tex.1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Martinez v. Hays Const., Inc., 355 S.W.3d 170, 180

 (Tex. App. - Houston [1st Dist.] 2011, no writ.). . . . . . . . . . . . . . . . . . . . . . . . . 10

Mayer v. Willowbrook Plaza Ltd. Partnership, 278 S.W.3d 901, 910 

 (Tex. App. - Houston [14

th

 Dist.] 2009, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . 9

McMahon v. Zimmerman, 2014 WL 1258815

 (Tex. App. - Houston [1st Dist.] 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002). . . . . . 5

Ogunbanjo v. Don McGill of West Houston, Ltd., 2014 WL 298037 *3 

 (Tex. App. - Houston [1st

 Dist.], 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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TABLE OF AUTHORITIES (cont.)

Otis Eng'g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983). . . . . . . . . . . . . . . . 5

Potharaju v. Jaising Maritime, Ltd., 193 F.Supp.2d 913, 919

 (E.D. Tex. - 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 357 (Tex. 1971). . . 5

Smith v. M Sys. Food Stores, Inc., 156 Tex. 484, 297 S.W.2d 112, 

 114 (Tex. 1957). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Wal-Mart Stores, Inc. v. Merrell, 53 Tex. Sup. Ct. J. 869, 

 313 S.W.3d 837, 838 (Tex. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Wansey v. Hole, 379 S.W.3d 246, 247-48 (Tex. 2012). . . . . . . . . . . . . . . . . . . . 10

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STATEMENT REGARDING ORAL ARGUMENT

Appellant has requested oral argument on this appeal. Appellee submits

that the issues of this appeal may be resolved by reference to the briefs and oral

argument is unnecessary. Nonetheless, should this Court grant Appellant his

request for oral argument, Appellee requests to then be allowed to be heard.

STATEMENT OF FACTS

Muhammad Zaffar (“Zaffar”), a defendant in this matter, had been posted by

Smith Protective Services, Inc. (“Smith”), defendant below, at the vehicle entrance

to a condominium complex at which Bryan Black (“Black”), plaintiff below, 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. In fact, Black also cursed at another resident whose only crime was to

inquire as to whether she could be of assistance. (Deposition of Shelley White,

pp. 27, line 20 - p. 29, line 5) [CR 112 - 114]

Upon completing his shift, Zaffar went to a Houston Police Department substation and filed a criminal assault charge against Black. After speaking with

Zaffar, and unsuccessfully attempting to speak with Black1, the investigating

1

[CR 42]

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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 after agreeing to a

settlement with Black 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.

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.

SUMMARY OF THE ARGUMENT

The trial court correctly granted Smith’s Motions for Summary Judgment on

the grounds that there were no genuine issues of material fact regarding Black’s

failure to demonstrate the following: 1) that any of Zaffar’s conduct was

committed while in the course and scope of his employment with Smith; 2) that

Smith owed any duty to Black to support any claims for negligence; or 3) that any

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alleged negligence on Smith’s part proximately caused any harm suffered by

Black.

In this appeal, Black takes the same shotgun approach employed in the trial

court - scattering about allegations regarding alleged wrongs committed by Zaffar

and Smith. What Black’s evidence does show is: 1) on one occasion when he felt

threatened by a co-worker, Zaffar notified his supervisors [CR 506]; 2) that when

he felt threatened by a guest, Zaffar called the police [CR 505]; and 3) that when

he felt he had been assaulted by Black, he filed a police report. Rather than

demonstrating that Zaffar presented any danger to anyone, what the evidence

demonstrates is he was a person who did not take matters into his own hands, but

who sought help from the appropriate authorities.

ARGUMENT AND AUTHORITIES

Under the guise of Argument and Authorities in his Brief, Black makes

various unsupported and inaccurate statements of fact, without reference to any

evidence supporting such statements. These include that Zaffar threatened to kill

anybody [Black Brief, p. 9, ll 4-5]; that any of Zaffar’s claims of threats or assaults

were, in fact, false [Black Brief, p. 9, ll 10-12; p. 11, ll. 3-5]; or that Zaffar was not

counseled regarding how to handle difficult customers [Black Brief, p. 12, ll 5-8].

Rather Black would have this Court assume the truth of such assertions. This

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Court cannot give Black the benefit of the doubt on these issues as the record is

absolutely devoid of evidence supporting these alleged facts.

Respondeat Superior Liability of Smith

As acknowledged by Black in his Brief (p. 4), the producing cause of

Black’s harm is the filing of an allegedly false police complaint by Zaffar upon

which the Houston Police Department failed to conduct an adequate investigation

before having Black arrested. Black would have this court hold Smith liable for

Zaffar’s allegedly false report. The undersigned has researched, but been unable

to locate, any legal authority for the proposition that an employer has a duty to tell

its employees not to lie to law enforcement personnel.

2

 The corollary to such a

holding (and just as nonsensical) would be that an employer has the right to tell its

employees to lie to law enforcement personnel. There also seems to be no legal

authority for employers to dictate to employees whether and under what

circumstances they may file a criminal complaint when they believe they have

been assaulted.

2 Even if it had a duty to independently investigate the incidence, there was insufficient

time between the incidence and Zaffar’s report to the police for Smith to do anything.

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The question then becomes what conduct of its employee can Smith be

liable for? The answer, of course, is those acts committed in the course and scope

of the employee’s duties.

Generally, a person has no duty to control the conduct of another.

Otis Eng'g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983). Under

the theory of respondeat superior, however, an employer may be

vicariously liable for the negligent acts of its employee if the

employee's actions are within the course and scope of his

employment. Baptist Mem'l Hosp. Sys. v. Sampson, 969 S.W.2d 945,

947 (Tex. 1998). “[A]n employer is liable for its employee's tort only

when the tortious act falls within the scope of the employee's general

authority in furtherance of the employer's business and for the

accomplishment of the object for which the employee was hired.”

Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex.

2002) (citing Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d

354, 357 (Tex. 1971)). The employee's acts must be of the same

general nature as the conduct authorized or incidental to the conduct

authorized to be within the scope of employment. Minyard Food

Stores, 80 S.W.3d at 577 (citing Smith v. M Sys. Food Stores, Inc.,

156 Tex. 484, 297 S.W.2d 112, 114 (Tex. 1957)). Accordingly, “if an

employee deviates from the performance of his duties for his own

purposes, the employer is not responsible for what occurs during that

deviation.” Minyard Food Stores, 80 S.W.3d at 577.

Goodyear Tire and Rubber Co. v. Mayes, 236 S.W.3d 754, 757 (Tex. 2007);

see also, Durand v. Moore, 879 S.W.2d 196, 199 (Tex. App. - Houston [14

th

 Dist]

- 1994, no writ (amended on different grounds)); Ogunbanjo v. Don McGill of

West Houston, Ltd., 2014 WL 298037 *3 (Tex. App. - Houston [1st

 Dist.], 2014).

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In the instant case, the Summary Judgment Evidence established that any

actions taken by Zaffar in filing a criminal charge against Black and pursuing the

filing of the criminal complaint and Black’s arrest were not within the course and

scope of his duties with Smith (Amaya Affidavit, ¶¶ 4 and 7)[CR 15 - 25]. Black

admitted in his Sixth Amended Petition [CR 459, ¶8], and in his Brief (p. 4) that

Zaffar did not file the criminal complaint against Black until after Zaffar had left

work the night of the incident.

Reporting alleged crimes occurring at The Oaks was not even part of the

security officers’ normal duties. As noted in the Post Orders (written instructions

for each guard post), the security officers, upon the occurrence of any emergency,

were to first call Lee Krause, the Property Manager (Amaya Affidavit, Exhibit

“A”, p. 1 (bottom))[CR 20]. The security officers’ duties include maintaining

“communications with Property Management and the Smith Office in reference to

security matters.” (Id. ¶G, at p. 4)[CR 23]. The only time the security officers

were to contact Houston Police were if a suspicious person on the property runs

after being asked to identify themselves (Id., ¶ VII(B)(7), at p. 4)[CR 23].

To hold that an employer had some duty to control an employee’s choice or

conduct in pursuing assault charges when that employee thought they had been

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assaulted would be to improperly (and arguably impermissibly) insert employers

into the business of authorized law enforcement personnel.

Accordingly, Zaffar’s actions in filing the criminal complaint against Black

were clearly not within the course and scope of his duties with Smith and were not

in any manner incidental to such duties. The trial court’s grant of summary

judgment against Smith for any actions attributable to Zaffar should be upheld.

Smith Owed No Duty to Black

As the basis for its Negligent Hiring claim, Black relies upon Smith’s

alleged failure to comply with some if its own hiring policies [CR 462]. For his

Negligent Training claim, Black claims that Smith should have trained its guards

to report assaults on themselves to supervisors immediately after their occurrence

and in failing to train their security officers to not file false reports. [CR 463]. 

Regarding Negligent Supervision, Investigation, and Failure to Warn, Black seems

to allege that Smith failed to warn Black and other residents of Zaffar’s past (and

unverified) conduct with respect to other residents and Smith failed to investigate

whether Black had actually assaulted Zaffar [CR 463]. Black alleged that Smith

Negligently Retained Zaffar in the face of Zaffar’s past conduct [CR 463-64]. 

Finally, Black alleges that Smith was Negligent in the manner in which it provided

Security, apparently for not having a plan to address the handling of criminal

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complaints against residents and for not demanding that surveillance cameras be

functioning or warning residents that the cameras were not functioning [CR 464].

Black’s expert expressed amorphous opinions that alleged irregularities in

Mohammed Zaffar’s application paperwork should have caused Smith to look

closer into Zaffar’s background and, had Smith done so, they may have chosen not

to hire him. In fact, Black submitted no credible, admissible summary judgment

evidence supporting such allegations.

3

Black, however, alleged no facts, and introduced no evidence in response to

Smith’s no-evidence summary judgment motion, that Smith owed any duties to

Black regarding any of the alleged claims of negligence.

“Plaintiffs' negligence claim required proof of three elements: a legal duty

owed by ADT to them; a breach of that duty; and damages proximately resulting

from that breach.” Banzhaf v. ADT Sec. Systems Southwest, Inc., 28 S.W.3d 180,

185 (Tex. App. - Eastland 2000, writ den’d) (citing to, Greater Houston

Transportation Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990)). ADT was an

3

It is well-established that an expert’s conclusory opinions, without demonstrating any

basis in fact, are insufficient to establish facts in issue. McMahon v. Zimmerman, 2014

WL 1258815 (Tex. App. - Houston [1

st

 Dist.] 2014); Coastal Transport Co., Inc. v.

Crown Cent. Petroleum Corp., 47 Tex. Sup. Ct. J. 559, 136 S.W.3d 227, 232 (Tex.

2004); Wal-Mart Stores, Inc. v. Merrell, 53 Tex. Sup. Ct. J. 869, 313 S.W.3d 837, 838

(Tex. 2010).

-8-
alarm services provider and, with respect to allegations of a duty owed to plaintiffs

by ADT, the court noted:

Plaintiffs' claim of a contractual legal duty is premised on an

assumption that ADT's being in the security business required it to

protect Herman's employees. That premise is too broad. ADT is in the

business of providing security services for both property and

employees, but it provides those services only pursuant to contracts

with its customers. The customer selects the services for which it will

pay. Id.

See also, Mayer v. Willowbrook Plaza Ltd. Partnership, 278 S.W.3d 901,

910 (Tex. App. - Houston [14

th

 Dist.] 2009, no pet.)(“However, security

companies such as ERMC II owe no generalized duty to provide security services

beyond their contract terms.”); Potharaju v. Jaising Maritime, Ltd., 193 F.Supp.2d

913, 919 (E.D. Tex. - 2002).

In the instant case, Black introduced no credible summary judgment

evidence that Smith owed any duty to anyone other than the party which hired it;

The Oaks of Woodlake. Accordingly, the trial court properly granted summary

judgment to Smith as a matter of law on plaintiff’s negligence claims.

Proximate Cause

There was no evidence that any alleged negligence on the part of Smith

during the hiring or employment of Zaffar proximately caused the harm alleged to

have been suffered by Black. At most, any such alleged negligence merely created

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a situation - the employment of Zaffar - that presented the circumstances leading

up to the actions made the basis of Black’s lawsuit. 

“The components of proximate cause are cause-in-fact and foreseeability” 

CoTemp, Inc. v. Houston West Corp., 222 S.W.3d 487, 493 (Tex. App. - Houston

[14

th

 Dist.] 2007, no writ) [citation omitted].

The test for cause-in-fact is whether the negligent act or omission was

a substantial factor in bringing about the injury without which the

harm would not have occurred. In determining whether the

defendant's conduct was a substantial factor in bringing about the

plaintiff's injuries, a court will consider whether the forces generated

by the defendant's conduct are still in existence at the time of the

injury; if so, the defendant's conduct was a substantial factor in

causing the plaintiff's injuries. The “but for” test is satisfied by

demonstrating that, but for the defendant's conduct, the plaintiff's

injuries would not have occurred. Cause-in-fact, however, is not

shown if the defendant's negligence did no more than furnish a

condition which made the injury possible.

Id. [internal citations omitted]. See also, Wansey v. Hole, 379 S.W.3d 246,

247-48 (Tex. 2012).

“An employer is not negligent when there is nothing in the employee's

background that would cause a reasonable employer not to hire or retain the

employee.” Martinez v. Hays Const., Inc., 355 S.W.3d 170, 180 (Tex. App. -

Houston [1st Dist.] 2011, no writ.). Black produced no such evidence showing that

Smith acted in any unreasonable manner in hiring, training, or retaining Zaffar. 

What Black alleged was that Zaffar had a history of falsely accusing people of

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assault. And in response to his belief that he was assaulted, Zaffar contacted the

police. Nothing in the record, even read most favorably to Black, established that

Zaffar had ever actually filed a false claim. More importantly, in the instant case,

even if Zaffar’s version of events was false, any causation for Black’s damages

attributable to Zaffar’s actions ceased when, by Black’s own admission, the

Houston Police Department failed to determine the veracity of Zaffar’s charges

against Black.

Smith prays that Black’s appeal be in all things denied, and that Smith have

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/CROSSAPPELLANT

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CERTIFICATE OF SERVICE

This is to certify that on the 15

th

 day of April, 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

CERTIFICATE OF COMPLIANCE

The undersigned hereby certifies that this Brief consists of 2947 words,

including this Certificate.

 

Todd H. Tinker

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