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

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 " \^ -,^. ^ ^rr. )O1) n^ tLv ^ar \ z .1 veu., -Tlolloc

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 ,)fl aA1 A -lL^ Â"^"-f r-r.LróLrùL .Lw) .Lwt-Ì. ^^^^ .,,^^ rrrf. u<rùE ^^11^l ,C^- w¿ls vclllçu tul +-i^t ^- +L^ LIl¡al uil Llltr .^^^-i+^ ^.^ Ct^-^¿^.^^t^ illçttL5 uil 1Fl 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 failed to do so until September 25, 2014, two days after the final judgment was signed. Defendant's counsel for Smith Protective Services, lnc. failed to appear at either docket call or trial when the case was called for trial. The Court rendered all 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 l-,''* +^^ .,^^-^ yrtvùvrrPLr\rIr ^-^-^-i^+i^- \rILrB Lçll Jçixlt L^l.^*^ UçILIç +l^^ ^ff^-- tlIç UllgIlSË -J f---¿l- AIIU -1--^1 - I 11-- IUIüIlçI exçlUU9U , - -- tllg UOIIlfnen[S of 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, (Tex. Crim. App. 1999). There is no record in this instance, because no record was made, and there was no offer of proof on attorneys' fees. lJnless the excluded evidence is apparent from the context of the record, the offering party must present 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 would show, 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 (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 mandated, denial is appropriate 'oif the evidence: (1) failed to prove (a) that any attorney's services were provided; or (b) the value of the services provided. Cale's Clean Scene Carwash, Inc. v. Hubbard, 76 S.w. 3d 784,787 (Tex. App.-Houston ¡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 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<hub b ard I aw. c om Texas Bar No. 10139500 1075 Kingwood Drive, Suite 203 Houston, Texas 77339 Telephone: (28 1) 358-7035 Facsimile: (281) 358-7008 ATTORNEY FOR APPELLANT AND CROSS-APPELLEE, Bryan Black, CERTIFICATE OF SERVICE .ûþ This is to certiff that on the -!-\ day of March ,20!5, 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 Todd H. Tinkero Esq Tinkerlaw@TinkerLaw. com