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

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

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 HOUSTON, TEXAS 2/25/2015 1:30:37 PM CHRISTOPHER A. PRINE Clerk
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

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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 nobilled 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 substation 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

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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/CROSSAPPELLANT

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CERTIFICATE OF SERVICE

This is to certify that on the 25

th

 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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