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
1075 Kingwood Drive, Suite 203

Houston, Texas 77339

Telephone: (28 1) 358-7 035

Facsimile: (281) 358-7008ATTOIìNEY FOII AI'I'ELLAI\1'Ilryan lìlack,

Appellant:Represented By:

Appellee:Represented by:

IDENTITY OF PARTIES AND COUNSBL

Bryan BlackPatrick G. Hubbard

Law Offices of Patrick G. Hubbard, P.C.phubbard@patri ckhubbardl aw. comTexas Bar No. 10139500

1075 Kingwood Drive, Suite 203

Houston, Texas 77339Telephone: (281) 358-7035

Facsimile: (281) 358-7008

Smith Protective Services, Inc.

Todd H. Tinker

Law Office of Todd FL Tinker, P. C.

tinkerlaw@tinkerlaw. com

Texas Bar No. 20056150

P. O. Box 75380Dallas, Texas 75380Telephone: (214) 914-37 60

Facsimile: (214) 853-4328
TABLE OF CONTENTS .......iii

TABLE OF AUTHORITIES .........iv

STATEMENT OF THE CASE/STATEMENT OF FACTS .........1SLIN4MARY OF THE ARGUMENT. ......2

ARGTTMENT AND AUTHORITIES .,,....2-5PRAYER .......5CERTIF'ICATE OF SERVICE. ........6

111
o

Appellate Procedure 33.2

Texas Rule of Evidence 103

TEX. R. EVID. 103(aX2), (b)

Cases

Beckett v. state, 2012 Tex. App. LEXIS 2293,8-9 (Tex. App.-Dallas

[Mar. 22,] 2012, no pet. hist.) (not designated for publicarion) 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)

Duke v. state,365 s.w. 3d722 (Tex. App.-Texarkana 20l2,pet. ref d)

Fletcher v. Minn. Min. & Mfg. Co.,57 S.W.3d 602,606 (Tex.

App.-Houston [1st Dist.] 2001, pet. denied)1"

Guidry v. State, g S.V/.3d 133, t53 (Tex" Crim" App" lggg)

Lone starr Multi-Theatres, Ltd. v. Max Interests, Ltd.,365 s.w. 3d 6gg

(Tex. App.-Houston [l't Dist] 20IL no pet.) 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 -Tlolloc )O1) n^ ^ar \ z " \^ -,^. ^ ^rr. ps,Lwe) 2v\2 tLv veu., .1

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IV
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 andoffer 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.
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

Â"^"-f ,)fl aA1 A -lL^ ^^^^ .,,^^ ^^11^l ,C^- +-i^t ^- +L^ .^^^-i+^ ^.^ Ct^-^¿^.^^t^ ^-^ 1Fl r-r.LróLrùL .Lw) .Lwt-Ì. rrrf. u<rùE w¿ls vclllçu tul LIl¡al uil Llltr illçttL5 uil ùçPtgllluçl I /,

2014, and a final judgment was signed on September 23,2014 (Appendix C, CR

647-648). Smith Protective Services, lnc. did not appear at trial. The Court's

judgment rendered a final default judgment verdict against Zaffar and further

indicated that all other claims are denied, and that alI costs were taxed against

Defendant, Zaffar. Pointing out the obvious, Smith had from August 20,2014

until September 17, 2014 to file their Motion for Attorney's Fees Award, and they
costs of court against Zaffar.

Texas Rule of Civil Procedure 167.5(c) indicates that the court must,

upon request, conduct a hearing on a request for an award of litigation costs, at

which the affected parties may present evidence. Black did request a hearing on

Smith's Motion, and a hearing was granted, but Smith offered no proof, no

testimony, and no evidence at the hearing. Smith only offered oral argument on

the issue and it was denied. Texas Rule of Evidence 103 covers offers of proof. In

a pair of cases, the issue of an offer of proof determined the outcome of the

appellate point. rn Beckett v. State, 2012 Tex. App. LEXIS 2293, B-9 (Tex. App.-

Dallas [Mar. 22,] 2012, no pet. hist.), the trial court excluded evidence about a^-^-^-i^+i^- l-,''* +^^ .,^^-^ L^l.^*^ +l^^ ^ff^-- -J f---¿l- -1--^1 - I 11-- , - -- yrtvùvrrPLr\rIr \rILrB Lçll Jçixlt UçILIç tlIç UllgIlSË AIIU IUIüIlçI exçlUU9U tllg UOIIlfnen[Sof one testifoing expert about an excluded expert's opinion .In Dulce v. State, 2012

Tex. App. LEXIS 2376 (Tex. App.-Texarkana [Mar. 27,]2012, no per. hist.), the

trial court excluded affidavits signed by the witness and denied impeachment from

the affidavits. Both courts reasoned that to preserve a complaint about the

erroneous exclusion of evidence, the complaining party must bring forward a

record indicating the nature of the evidence. See Guidry v. State, g S.W.3d 133,
a timely offer of proof or bill of exceptions. See TEX. R. EVID. 103(a)(2), (b);

Guidry,9 S.W.3d af I53. "Absent a showing of what such evidence would have

been, or an offer of a statement concerning what the excluded evidence wouldshow, nothing is presented for review." Guidry,,9 S.W.3d at l53.In both Beckett v.

State and Duke v. State the complete absence of an offer of proof of the excluded

evidence prevented appellate review. Lone Starr Multi-Theetres, Ltd. v. Max

Interests, Ltd.,365 S.W. 3d 688

(Tex. App.-Houston [1't Dist] 2011. no pet.) see also Sink v. Sink,364 W.\M. 3d

340 (Tex. App.-Dallas, 2012 no pet ("Texas rccognizes two types of offers to

preserve error: the offer of proof and the formal bill of exception. See lFletcher v.

Minn. Min. e L[fs. Co., 57 S.V/.3d 602,606 (Tex. App.-Houston flst Dist.]

2001, pet.denied)]. ... When no offer of proof is made before the trial court, the

party must introduce the excluded evidence into the record by a formal bill of

exception. See Bobbora v. Unitrin Ins. Servs.,255 S.W.3d 331,335 (Tex. App.-

Dallas 2008, no pet."). Texas Rule of Appellate Procedure 33.2 provides that no

speeial words are required but the fbrmal bill of exceptions must be filed no later

than thirty days after trial. However, even when attorneys' fees are otherwise
¡l4th Dist.l 2001, no pet). Also see Mídland w. Btdg. LLC v. First serv. Air

Conditioning Contractors, Inc. 300 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 Feesand that Cross Appellant take nothing, and that Cross Appellee have all relief to

which he is justly entitled.

I

PATRICK G. HUBBARD, P.C.Patrick G. Hubbard

phub b ard @p atricl<hub b ard I aw. c om

Texas Bar No. 10139500

1075 Kingwood Drive, Suite 203

Houston, Texas 77339Telephone: (28 1) 358-7035Facsimile: (281) 358-7008

ATTORNEY FOR APPELLANT

AND CROSS-APPELLEE,Bryan Black,

ctfully Submitted,

LAW OFFICES OF
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py

of the above and foregoing has been served upon counsel of record via e-file and

email as follows:

Via EmailTodd H. Tinkero Esq

Tinkerlaw@TinkerLaw. com

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