                                                   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


APPENDIX TO 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
                                          TABLE OF CONTENTS

TABLE OF CONTENTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

APPENDIX A - Interlocutory Summary Judgment.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

APPENDIX B - Motion for Attorney’s Fee Award.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

APPENDIX C - Plaintiff’s Response to Motion for Attorney’s Fee Award. . . . . . . . . . 12

APPENDIX D - Reply to Plaintiff’s Response to Motion for Attorney’s Fee Award. . 20

APPENDIX E - Order Denying Motion for Attorney’s Fees. . . . . . . . . . . . . . . . . . . . . 23

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24




                                                           ii
                                                                                8/18/2014 4:24:01 PM
                                                                                Chris Daniel •District Clerk
                                                                                Harris County
                                                                £               Envelope No: 2197083


                                       Cause No. 2012-56941
                                                                      lh        By: SWEENEY, PAUL H




BRYAN BLACK,                                      §            IN THE DISTRICT COURT
    Plaintiff,
v.                                                §
                                                               189th JUDICIAL DISTRICT
MUHAMMAD ZAFFAR and SMITH                         §
PROTECTIVE SERVICES, INC.
     Defendants.                                  §            HARRIS COUNTY, TEXAS

                        INTERLOCUTORY SUMMARY JUDGMENT

       CAME BEFORE THE COURT FOR CONSIDERATION the Motions for Traditional

and No-Evidence Partial Summary Judgment (the “Motions”), filed by defendant Smith
              'b-\
Protective Services, Inc. (“Smith”).

       The Court, having reviewed the Motions, any responses thereto, the pleadings and papers

on file, and having heard arguments of counsel, finds that there are no genuine issues of material

fact regarding plaintiffs inability to establish at least one element in each of the claims he asserts

against Smith. Accordingly, the Motions are well-taken and should be, and are hereby

GRANTED.

       IT IS ACCORDINGLY, ORDERED, ADJUDGED, AND DECREED that plaintiff take

nothing by his claims against defendant Smith and that all of plaintiffs claims against Defendant

Smith are hereby DISMISSED, with prejudice to the re-filing of same.

       All relief not specifically granted is hereby DENIED.

       Signed this   1-c day of                   2014.




                                                       Honorable William R. Burke, Jr.
                                                       Presiding Judge

INTERLOCUTORY SUMMARY JUDGMENT                                                            page SOLO




                                                   1                         Appendix A 621
                                                                                                   9/25/2014 11:57:40 AM
                                                                                Chris Daniel • District Clerk Harris County
                                                                                                    Envelope No. 2619947
                                                                                                       By: PAUL SWEENEY
                                                                             Original File Date: 9/25/201 4 11 :57:40 AM

                                      Cause No. 2012-56941

BRYAN BLACK,                                      §            IN THE DISTRICT COURT
    Plaintiff,
v.                                                §
                                                               189th JUDICIAL DISTRICT
MUHAMMAD ZAFFAR and SMITH                         §
PROTECTIVE SERVICES, INC.
     Defendants.                                  §            HARRIS COUNTY, TEXAS

                          MOTION FOR ATTORNEY FEES AWARD

       Defendant Smith Protective Services, Inc. (“Smith”) files this Motion for Attorney Fees

Award (the “Motion”) and shows as follows:

                                    Certificate of Conference

       The undersigned certifies that agreement was sought from plaintiff to the relief requested

herein. Agreement was not reached so this Motion is submitted for the Court’s consideration.

                                 Evidence in Support of Motion

               In support of this Motion, Smith refers to the Court to the following documents

attached to the Declaration of Todd H. Tinker in Support of Motion for Attorney Fees Award

(“Tinker Declaration”):

               a.      Exhibit “A-': Declaration Invoking Settlement Offer Provisions;

               b.      Exhibit “B”: Settlement Offer Letter.

                                          Basis of Motion

       2.      On March 1 1, 2014 Smith filed with the Court its Declaration Invoking

Settlement Offer Provisions fEx. “A”1. On March 12, 2014, Smith transmitted to counsel for

plaintiff via facsimile a Settlement Offer offering to settle plaintiffs claims against Smith for

payment by Smith of the total amount of $5,000 [Tinker Declaration       ; Ex. “B”1.


MO TION FOR ATTORNEY Tl-liS AWARD                                                          page 1 of 1



                                                 2                        Appendix B 632
       3.      This Court entered an Interlocutory Summary Judgment in Smith’s behalf on

August 18, 2014, dismissing all of plaintiffs claims against Smith.

       4.      Pursuant to TRCP 167.2 and Tex. Civ. Pract. & Rem. C. §42.001 et.seq., because

plaintiff failed to obtain a judgment against Smith that was at least 80% of the amount offered by

Smith in settlement, Smith is entitled to an award of attorney’s fees and costs incurred

subsequent to the March 26, 2014 deadline for plaintiff to accept the settlement offer.

       5.      From March 27, 2014 through the filing of this Motion, counsel for defendant has

worked approximately 25 hours and Smith has incurred a total of $8793.97 in costs and expenses

during that same time period [Tinker Declaration, If 5]. The reasonable value of the attorney’s

fees provided by the undersigned to Smith is $8,125.00 [Tinker Declaration, If 4].

       6.      Plaintiff received judgment from defendant Muhammed Zaffar in the amount of

$49,500.00 Accordingly, pursuant to Tex. Civ. Pract. & Rem. C. §42.004, Smith is entitled to

judgment from plaintiff in the amount of $16,918.97.

                                    NOTICE OF SUBMISSION

       Please take notice that this Motion will be determined upon submission on or after 8:00

a.m. on Monday, October 13, 2014.

       WHEREFORE, BASED UPON THE FOREGOING, defendant Smith Protective

Services, Inc. requests that, upon notice and opportunity to be heard, the Court grant this Motion,

and grant Smith judgment against plaintiff in the amount of $16,918.97, plus post-judgment

interest at the highest rate allowed by law, and such other and further relief, at law or in equity, to

which Smith may show itself to be justly entitled.




MOTION FOR ATTORNEY FEES AWARD                                                            page 2 of 1



                                                  3                         Appendix B 633
                                             Respectfully submitted:




                                             ToddH. Tinker
                                             SBN 20056150
                                             TinkerLaw@TinkerLaw.com

                                             Law Office of Todd H. Tinker, P.C.
                                             P.O. Box 802606
                                             Dallas, Texas 75380

                                             (214)914-3760 (Phone)
                                             (214) 853-4328 (Fax)

                                CERTIFICATE OF SERVICE

        The undersigned hereby certifies that the foregoing will be served upon all parties and/or

                                                    _
counsel upon whom service is required pursuant to the Texas Rules of Civil Procedure as set
forth below on September 25th, 2014.



                                                     Todd H. Tinker
Via Email
Patrick G. Hubbard, Esq
phubbard@patrickhubbardlaw.com




MOTION FOR ATTORNEY FEES AWARD                                                         page 3 of 1



                                                4                        Appendix B 634
                                                                               9/25/2014 11:57:40 AM
                                                                                            -
                                                                               Chris Daniel District Clerk
                                                                               Harris County
                                                                               Envelope No: 2619947
                                                                               By: SWEENEY, PAUL H

                                      Cause No. 2012-56941

BRYAN BLACK,                                     §            IN THE DISTRICT COURT
    Plaintiff,
v.                                               §
                                                              189th JUDICIAL DISTRICT
MUHAMMAD ZAFFAR and SMITH                        §
PROTECTIVE SERVICES, INC.
     Defendants.                                 §            HARRIS COUNTY, TEXAS

        DECLARATION OF TODD H. TINKER IN SUPPORT OF MOTION FOR
                          ATTORNEY’S FEES

       My name is Todd H. Tinker, my date of birth is June 5, 1962, and my address is PO Box

6447, San Antonio, Texas, 78209. I declare under penalty of perjury that the foregoing is true

and correct.

       1.      I was licensed to practice law in the State of Texas in November, 1989. 1 have

continuously practiced law in Texas since that time. My practice consists primarily of trying

civil cases of various types. In the last 15 years I have tried numerous bench and jury trials

involving personal injury, breach of contract, civil RICO, Title VII, and other various tort cases.

I have been lead counsel on all of these matters. I have tried cases in both state and federal

courts, and have otherwise handled cases in Dallas, Tarrant, Harris, Bexar, Travis, and other

counties in Texas. I am familiar with the range of prevailing legal fees being charged by counsel

of similar experience in Texas, including in Harris County.

       2.      Since 1994 I have been employed as general counsel for Smith Protective

Services, Inc. (“Smith”). As such, I am compensated on a monthly retainer basis for my services

performed for Smith. From March 26th through the execution of this declaration, this lawsuit was

the primary matter on which I performed services for Smith.



DECLARATION OF TODD H, TINKER IN SUPPORT OF MOTION FOR ATTORNEY’S FEES                  page 1 of 4



                                                 5                        Appendix B 635
       3.     Since March 26, 2014, 1 have expended significant time and effort representing

Smith in this lawsuit. Among the tasks that I have performed from then until now are the

following:

       a.     appearing in Fort Worth for the scheduled deposition of Rhianna Galindo, a
              purported fact witness in this case;

       b.     taking the depositions of plaintiff, plaintiffs expert witness, and Officer Lui from
              the Houston Police Department;

       c.     preparing defendant’s Third Amended Answer;

       d.     conducting legal research into issues to be including in defendant’s motions for
              summary judgment;

       e.     preparing defendant’s Traditional Motion for Summary Judgment, accompanying
              affidavits, and proposed order;

       f.     preparing defendant’s No-Evidence Motion for Summary Judgment;

       g-     attending mediation;

       h.     preparing the Reply to Plaintiffs Response to Smith’s Motion for Summary
              Judgment;

       i.     attending the 7/11/14 hearing on Smith’s Traditional Motion for Partial Summary
              Judgment;

       j-     preparing a Second Motion to Dismiss;

       k.     preparing an Amended Motion to Strike Plaintiffs Expert Witness;

       1.     attending the 8/15/14 hearing on Smith’s No-Evidence Motion for Partial
              Summary Judgment;

       m.     research for, preparing and filing a new proceeding in Tarrant County to compel
              the attendance of Rhianna Galindo for deposition;

       n.     preparing a Fourth Amended Answer.




DECLARATION OF TODD H. TINKER IN SUPPORT OJ- MOTION FOR ATTORNEY'S FEES               page 2 of 4



                                               6                        Appendix B 636
       4.      I estimate that, excluding travel time, I have expended at least 25 hours on the

above-referenced tasks and others not listed for this matter. It is my opinion that, were I

compensated by Smith for my representation in this matter at an hourly rate of $325 per hour,

which I believe to be a reasonable rate for an attorney of my experience practicing in Harris

County, Texas, Smith would have paid me at least $8,125 from March 26, 2014 through the

present. This amount is significantly less than Smith has actually paid me for my services during

that time period.

       5.      In addition, Smith has paid directly or reimbursed me the amount of $5,095.10 for

court reporting, transcription, and service of documents, notices, and pleadings since March 26,

2014. In addition, Smith has reimbursed me the amount of $3,698.87 for filing fees, postage,

travel, lodging, and other expenses incident to and necessary for the services rendered by me for

Smith in this matter since March 26, 2014.

       6.      Accordingly, it is my opinion that a total amount of $16,918.97 represents a

reasonable and necessary amount to be adjudged against plaintiff for the fees and expenses

incurred by Smith subsequent to plaintiffs rejection of Smith’s settlement offer.

       7.      Attached hereto as Exhibit “A” is a true and accurate copy of the Declaration

Invoking Settlement Offer Provisions. Attached hereto as Exhibit “B” is a true and accurate copy

of the March 12, 2014 Confidential Settlement Proposal sent to counsel for plaintiff.




DECLARATION OF TODD H. TINKER IN SUPPORT Oh MOTION FOR ATTORNEY’S l-LLS                 page 3 of 4



                                                 7                        Appendix B 637
      Executed in Bexar County, State of Texas, on the 25Ul day of September, 2014.




                                          Todd H. Tinker, Declarant




DECLARATION OF TODD H. TINKER IN SUPPORT OF MOTION FOR ATTORNEY’S FEES            page 4 of 4



                                             8                        Appendix B 638
                                       Cause No. 2012-56941

BRYAN BLACK,                                       §            IN THE DISTRICT COURT
    Plaintiff,
v.                                                 §

MUHAMMAD ZAFFAR, SMITH                             §            189th JUDICIAL DISTRICT
PROTECTIVE SERVICES, INC., and
THE OAKS CONDOMINIUM                               §
ASSOCIATION,
     Defendants.                                   §            HARRIS COUNTY, TEXAS

 DEFENDANT’S DECLARATION INVOKING SETTLEMENT OFFER PROVISIONS

TO THE HONORABLE COURT:

         Defendant Smith Protective Services, Inc. (“Smith”), files this declaration invoking the

settlement offer provisions of Texas law in the above action, and respectfully shows:

                Defendant files this declaration pursuant to Tex. CP&RC § 42.002(c) and TRCP

167.2.

         2.     This declaration is made at least 45 days prior to the trial setting of this cause.


                                                Respectfully submitted:




                                               Todd H. Tinker
                                               SBN 20056150

                                                Law Office of Todd H. Tinker, P.C.
                                                P.O. Box 802606
                                                Dallas, Texas 75380

                                                (214) 914-3760 (Phone)
                                                (214) 853-4328 (Fax)
                                                TinkerLaw@TinkerLaw.com



DI-H-NDANT'S DECLARATION INVOKING SI-TTLHMI-NT OFH-R PROVISIONS                             page 1 of 2



                                                  9                         Appendix B
                                                                               Exhibit A, 639
                                                                                          page 1 of 2
                                CERTIFICATE OF SERV ICE

        The undersigned hereby certifies that the foregoing will be served upon all parties and'or
counsel upon whom service is required pursuant to the Texas Rules of Civil Procedure as set
forth below on March 1 1 , 20 1 4.                   _

                                                     Todd H. Tinker
Via Facsimile
(281)358-7008
Patrick G. Hubbard, Esq

Via Certified Mail,
Return-Receipt Requested

Muhammad Zaffar
15335 Park Row Blvd.
#1903
Houston, TX 77084




DI-H-NDANT'S DECLARATION INVOKING SI-TTL1-MI-NT OFFliR PROVISIONS                      page 2 of 2



                                               10                        Appendix B
                                                                            Exhibit A, 640
                                                                                       page 2 of 2
                                        LAW OFFICE OF
                                TODDH. TINKER                  P.C.
P.O. Box 802606                                                                    Ph: (214)914-3760
Dallas, Texas 75380                                                               Fax: (214) 853-4328
                                                                          TinkerLaw@TinkerLaw.com


                                Confidential Settlement Proposal

                                              March 12, 2014

Via Facsimile
(281)358-7008

Patrick G. Hubbard, Esq.
1075 Kingwood Dr.,
Suite 203
Kingwood, TX 77339

                  RE:   Cause No. 2012-56941; Black v. Zaffar, et.al.

Dear Mr. Hubbard:

     This Settlement Offer is made pursuant to TRCP 167 and Ch. 42 of the Tex. Civ. Pract.
& Rem. C.

        My client, Smith Protective Services, Inc., offers to pay the amount of $5,000.00 in full
and final settlement of any and all claims against it by your client Bryan Black. Acceptance will
require a complete release of all claims, an acknowledgment of no liability on Smith’s behalf,
indemnity against third-party claims, and dismissal of the pending suit with prejudice. The
parties will bear their own respective costs.

         This offer will remain open only until 12:00 noon on Thursday, March 26, 2014.

                                              Respectfully,



                                              Todd H. Tinker




                                               11                       Appendix BB, 641
                                                                                     page 1 of 1
                                                                           Exhibit
                                                                                                                  10/2/2014 2:54:19 PM
                                                                                              Chris Daniel •Dislrict Clerk Harris County
                                                                                                                 Envelope No. 2702495
                                                                                                                    By: PAUL SWEENEY
                                                                                                            Filed: 10/2/2014 2:54:19 PM




                                                             NO. 2012-56941

      BRYAN BLACK                                                         §   IN THE DISTRICT COURT
      Plaintiff,                                                          §
                                                                          §
      V.                                                                  §   189TH JUDICIAL DISTRICT
                                                                          §
      MUHAMMAD ZAFFAR, SMITH                                              §
      PROTECTIVE SERVICES, INC.                                           §
                                                                          §
                                                                          §
                                                                          §
                                                                          §
     Defendants.                                                          §   OF HARRIS COUNTY, TEXAS



             PLAINTIFF’S RESPONSE AND OPPOSITION TO DEFENDANT. SMITH
            PROTECTIVE SERVICES. INC. MOTION FOR ATTORNEY FEES AWARD
                  And REQUEST FOR ORAL HEARING/NOT SUBMISSION

              NOW COMES Bryan Black, Plaintiff in the above-entitled and numbered cause,
   and files this, his Response in Opposition of the Motion for Attorney Fees Award of
   Smith Protective Services, Inc. and shows the Court the following:

                                                             I.
                                               General Statement of Opposition

             The basis for Smith Protective Services, Inc.’s Motion for Attorney Fee Award is that

   Smith made an offer to settle during trial, 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 offer was extended from the original date by a verbal offer, and then withdrawn by way of

   an e-mail dated July 22, 2014 by stating that “The settlement offer I conveyed after our last

   hearing will be withdrawn if not accepted by 5pm CST this Friday, July                   25th. (Exhibit A).      The

   offer was not accepted by Plaintiff therefore it was withdrawn according to basic contract law.

   Plaintiffs Response and Opposition to Motion for Attorney Fees Award                                            Page 1

                                                                    12                    Appendix C 642
(b) Rule 167.3(Withdrawal, Acceptance and Rejection of Offer) provides:                         An offer can be

   withdrawn before it is accepted. Withdrawal is effective when written notice of the withdrawal

   is served on the offeree. Once an unaccepted offer has been withdrawn, it cannot be accepted or

   be the basis for        awarding litigation         costs under this rule. If the offer cannot be the basis for

   awarding litigation costs under the rule, then Defendant’s motion fails, and Defendant’s motion

   should be denied.

(c) A second reason Defendant’s motion should be denied is that Defendant’s Motions for Summary

   Judgment were granted prior to the date the Court called the remainder of this case for trial.

   Defendant’s counsel for Smith Protective Services, Inc., Todd Tinker, failed to appear at docket

   call when the case was set for trial the following Wednesday at 9:00 a.m., September 10, 2014.

   The Court heard evidence on a default basis against Muhammad Zaffar, and rendered a default

   judgment against Zaffar, and also noted that counsel for Smith Protective Services, Inc. did not

   appear. Defendant could have presented his motion and evidence on attorneys’ fees at that time,

   and had said Smith Protective Services, Inc. appeared, Plaintiff would not have waived a jury, as

   they would have wanted a jury to decide any claims involving attorney’s fees. This Court

   granted a final judgment and denied any relief not granted at that trial before the bench. A copy

   of that judgment is attached hereto as Exhibit B.

                                                                     II.

            In the event the Court does not dismiss Defendant, Smith Protective Services, Inc.’s

  motion, then Plaintiff desires to invoke their right to a jury trial on the issue of attorneys’ fees as

  a jury fee was paid. “The right to a jury trial is one of our most precious rights, holding a sacred

  place in English and American history.” General Motors Corp. v. Gavle. 951 S.W.2d 469, 476

  (Tex. 1997). Under article one, section 15 of the Texas Constitution, “[t]he right to trial by jury



  Plaintiffs Response and Opposition to Motion for Attorney Fees Award                                       Page 2

                                                                   13                  Appendix C 643
 shall remain inviolate” and we closely scrutinize any denial of this important right to a litigant.

 See Tex Const, art. I, § 15; City of Garland, 969 S.W.2d 548, 558 (Tex. App. Dallas 1988),          —
 aff d, 22 S.W. 3d 351 (Tex. 2000). The denial of the constitutional right to a jury trial constitutes

 reversible error. McDaniel v.               Yarborough.        898 S.W.2d 251, 253 (Tex. 1995). In that case, the

 trial court heard evidence of attorneys’ fees without a jury present as fact finder and entered

 judgment on its own finding as to the amount of reasonable and necessary fees in this case.

 To determine whether the trial court erred by denying the Property Owners their right to a jury

 trial on the issue of attorneys’ fees, the Court must first determine whether the statute authorizing

the trial court to award of attorneys’ fees permits a jury trial on the issue.

           Here, the statute authorizing attorneys’ fees is the Rule 167.4 of the Texas Rules of Civil

Procedure which provides in pertinent part that:                        “   (a) Generally. If a settlement offer made

under this rule is rejected, and the judgment to be awarded on the monetary claims covered by

the offer is significantly less favorable to the offeree than was the offer, the court must award the

offeror litigation costs against the offeree from the time the offer was rejected to the time of

judgment. .” On the face of this provision, it would appear that the trial court, not the jury,

determines the amount of attorneys’ fees in these actions. However, the Texas Supreme Court

has held that, while this statute vests the trial court with the discretion to determine whether to

award attorneys’ fees, the amount of the attorneys’ fees is a question of fact for the jury to

decide.    City    of Garland. 22 S.W3d at 367-68. Accordingly, the Court held that the Property

Owners had a right to a Jury trial on the issue of the amount of reasonable and necessary

attorneys’ fees to be awarded.

          167.5(c) Hearing required. 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. The Plaintiff



Plaintiff’s Response and Opposition to Motion for Attorney Fees Award                                           Page 3

                                                                  14                       Appendix C 644
 would also request an adequate time to do discovery, as it appears that Mr. Tinker has a retainer

 fee arrangement wherein he is paid a certain fee whether he is engaged in litigation or not, and

 that could make a difference in the amount of attorneys’ fees, if any, to be awarded.

           WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that upon hearing hereof the

 Court deny the Motion for Attorney Fees or in the alternative, that the Court set a date for

 discovery to be completed of at least 60 days, and then a trial date giving the required notice, and

 that Defendant take nothing, and that Plaintiff have all relief to which he is justly entitled.
                                                               Resi     illy submitted,

                                                                          Ah/
                                                                                           )
                                                              By:
                                                              Patrick G, Hubbard
                                                                                m                V


                                                              Texas Bar No. 10139500
                                                              1075 Kingwood Dr, Suite 203
                                                              Kingwood, TX 77339
                                                              Tel. (281) 358-7035
                                                              Fax. (281) 358-7008
                                                              Email: phubbard@patrickhubbardlavv.com
                                                              Attorney for Plaintiff

                                             CERTIFICATE OF SERVICE

       I certify that on October 2, 2014 a true and correct copy of Plaintiff s Response to Motion
for Attorneys’ Fees was served in the manner indicated on:

Mr. Todd FI. Tinker
Law Office of Todd H. Tinker, P.C.
P. O. Box 802606
Dallas, Texas 75380
By Email: TinkeriawfSitinkerlaw.com
Attorney for Smith Protective Services, Inc.

Muhammad Zaffar
15335 Park Row Blvd. # 1903
Houston, Texas 77084
By First Class Mai l


                                                                      Patrick G. Hubbard

PiamtHF* Response anti Opposition to Motion fot Attorney Fees Award                                    Page 4

                                                                15                        Appendix C 645
                                           Exhibit A



       FW: Black v Zaffar (confidential settlement communication)
Patrick Hubbard
To




---
Me
Today at 12:54 PM


     Original Message
From: Todd Tinker [mail to:
Sent: Tuesday, July 22, 2014 1:13 PM
To: Patrick Hubbard
Subject: Black v Zaffar (confidential settlement communication)

Pat,

The settlement offer I conveyed after our last hearing will be withdrawn if
not accepted by 5pm CST this Friday, July 25th.

No subsequent offer will be made as I do not believe your client will be
able to obtain a judgment against Smith greater than the $20,000 that will
be required to prevent an award of fees and costs pursuant to TPRC
42.002 ($15,000 settlement credit for Oaks and $5,000 prior offer of
j udgment ).
Todd Tinker


This message may contain privileged attorney-client information. If you are
not the intended recipient, please notify the sender and delete this
message. Thank you.

Reply. Reply AH or Forward | More




                                              16                    Appendix C 646
                                                                         fz-                      -  9/1W20H 11 54 00AIW
                                                                                      Cfms Dame! District Clark Harris County
                                                                                                      Envelope No. 255584?
                                                                                                        8y PAUL SWEENEY


                                                  NO, 2012-56941
                                                                            fk
         BRYAN BLACK                                     §     IN THE DISTRICT COURT
         Plaintiff,                                      §
                                                         §
         V.                                              §     189TH JUDICIAL DISTRICT
                                                         §
         MUHAMMAD ZAFFAR, SMITH                          §
         PROTECTIVE SERVICES, INC'.,                     §
                                                         §
                                                         §
                                                         §
                                                         §
        Defendants.                                      §    OF HARRIS COUNTY, TEXAS

                                              FINAL JUDGMENT

               A hearing on this cause was held on September 17. 2014. The Plaintiff appeared and

       announced to the Court that they were ready for trial. Defendant, Muhammad Zaffar, although

       having filed an answer, failed to appear. Smith Protective Services, Inc. did not appear. The

      Court approved a trial amendment for intentional tort and punitive damages. The Court

      determined that Muhammad Zaffar and ail other parties had been sent notice of trial, and the trial

      coordinator called the phone number associated with Defendant’s answer, and also advised him

      of the date and time of trial, and confirmed that the address where Defendant Zaffar had been

      served was associated with the phone number on the answer. The bailiff called die name of

      Muhammad Zaffar three, times outside the doorway of the courtroom, and there was no response.

      A jury was waived, and the Court heard testimony from the Plaintiff.
%             The Court has considered the pleadings and official records on file in this cause, the
13-
      evidence, and the parties' arguments, and the Court renders the following judgment:
s
f-
              1.      On the claim of intentional tort for malicious prosecution, the Court finds in favor
3     of Plaintiff, Bryan Black andSÿgainst Defendant, Muhammad Zaffar in the amount of actual
1
zi    damages of $29,500.00, and punitive damages of $20,000.00, or a total judgment of $49,500.00
1
5
a                                                   EXHIBIT
£
E
<s
                                                      17                          Appendix C 647
              2.      Plaintiff, Bryan Black is entitled to prejudgment interest on the damages awarded

       herein, measured from September 27, 2012 to the date of judgment, at the rate of 5% per annum,

      and post judgment from the date ol'judgment at the rate of 5% per annum.

              3.      Defendant, Smith Protective Services, Inc. was granted a final summary judgment

      on August 20, 20 1 4 and did not appear.

              4      Defendant, Oaks of Woodlake Condominium Association, Inc. was non-suited

      earlier as a result of an agreed settlement.

             5.      All other claims are denied.

             7.      Costs are hereby taxed against Defendant, Muhammad Zaffar.

             IT IS ORDERED that any party in favor of whom judgment is awarded is entitled to

     enforce this judgment through abstract, execution and any other process necessary.

             All relief not expressly granted herein is DENIED.
                         SEP 2 3 2014 ., 2007.
             SIGNED on




                                                     JUDGE PRESIDING

     APPROVED AS TO FORM:




                     1
     Patrick G. Hubbard
cu   Texas Bar No. 101 39500
     1 075 Kingwood Dr, Suite 203

I
2
     Kingwood, TX 77339
     Tel. (281) 358-7035
     Fax. (281)358-7008
     Attorney for Plaintiff
Z
s
I
-I
s
u
                                                     18                       Appendix C 648
                 ...•


            *'
         / ,9/
         lo  5
                        A

                             Jji

      I, Chris Daniel, District Clerk of Harris
      County, Texas certify that this is a true and
      correct copy of the original record filed and or
      recorded in my office, electronically or hard
      copy, as it appears on this date.
      Witness my official hand and seal of office
      this October 2. 2014


      Certified Document Number:        62467531 Total Pages: 2




     Chris Daniel, DISTRICT CLERK
     HARRIS COUNTY, TEXAS




In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclcrk.com



                                                         19                    Appendix C 649
                                                                                                     10/3/2014 12:27:51 PM
                                                                                  Chris Daniel - District Clerk Harris County
                                                                                                      Envelope No. 2713722
                                                                                                         By: PAUL SWEENEY
                                                                                              Filed: 10/3/2014 12:27:51 PM

                                         Cause No. 2012-56941

BRYAN BLACK,                                        §            IN THE DISTRICT COURT
    Plaintiff,
v.                                                  §
                                                                 189th JUDICIAL DISTRICT
MUHAMMAD ZAFFAR and SMITH                           §
PROTECTIVE SERVICES, INC.
     Defendants.                                    §            HARRIS COUNTY, TEXAS

 REPLY TO PLAINTIFF’S RESPONSE TO MOTION FOR ATTORNEY FEES AWARD

            Defendant Smith Protective Services, Inc. (“Smith”) files this Reply to Plaintiffs

Response to Motion for Attorney Fees Award (the “Reply”) and shows as follows:

Smith Never Extended its Original Statutory Settlement Offer

            1.     Plaintiff attempts to construe an oral settlement proposal made to plaintiffs

counsel after the July 1 1, 2014 hearing on Smith’s Tradition Motion for Partial Summary

Judgment as an extension of Smith’s statutory settlement offer. Plaintiff is mistaken.

            2.     Smith’s original settlement offer, by its very terms, expired on March 26, 2014

[Ex. “B” to Motion for Attorney’s Fees]. Accordingly, by having expired prior to July 1 1, 2014,

it was not subject to being extended. Furthermore, the oral settlement offer was not intended to

be, nor did it comply with the requirements of a statutory settlement proposal as it was not in

writing, and did not state that it was made pursuant to Tex. Civ. Pract. & Rem. C. §42.001,

et.seq. .




            i
                   Tex. Civ. Pract. & Rem. C. §42.003
REPLY TO PLAINTIFF S RESPONSE TO MOTION FOR ATTORNEY FEES AWARD                             page 1 of 1



                                                   20                       Appendix D 652
Plaintiff's Waiver of his Right to a Jury Applies to the Reasonableness of Statutory
Attorney's Fees

       3.      Plaintiff asserts that, had Smith appeared at the trial date and suggested that it

would be pursuing its attorney’s fees claim, plaintiff would have elected not to waive his right to

a jury. However, implicit in the statute and the rule, is the fact that a defendant such as Smith,

which was dismissed prior to the trial date, cannot know whether it will be entitled to attorney’s

fees until plaintiff has recovered judgment against any remaining parties. [TRCP 167.4; Civ.

Pract. & Rem. C. §42.0042]

       4.      Plaintiff, however, knew prior to trial that Smith was asserting a right to recover

attorney’s fees and, in fact, anticipated it would be so entitled. [Ex. “A” to Plaintiffs Response to

Motion for Attorney’s Fees] Being on notice of that fact, it was up to plaintiff to take steps to

preserve his right to have any remaining issues tried by jury. He failed to do so.

       WHEREFORE, BASED UPON THE FOREGOING, defendant Smith Protective

Services, Inc. respectfully prays that, upon notice and opportunity to be heard, the Court grant its

Motion for Attorney’s Fees, and grant it such other and further relief, at law or in equity, to

which it may show itself to be justly entitled.




       2
               Award of fees and costs limited to amount awarded to plaintiff.
REPLY TO PLAINTIFFS R1-SPONS1- TO MOTION FOR ATTORNEY FEES AWARD                         page 2 of 1



                                                  21                       Appendix D 653
                                             Respectfully submitted:




                                             ToddH. Tinker
                                             SBN 20056150
                                             TinkerLaw@TinkerLaw.com

                                             Law Office of Todd H. Tinker, P.C.
                                             P.O. Box 802606
                                             Dallas, Texas 75380

                                             (214)914-3760 (Phone)
                                             (214) 853-4328 (Fax)

                                CERTIFICATE OF SERVICE

        The undersigned hereby certifies that the foregoing will be served upon all parties and/or
counsel upon whom service is required pursuant to the Texas Rules of Civil Procedure as set
forth below on October 3rd ,2014.



                                                     Todd H. Tinker
Via Email
Patrick G. Hubbard, Esq
phubbard@patrickhubbardlaw.com




REPLY TO PLAINTIFF’S RESPONSE TO MOTION FOR ATTORNEY FEES AWARD                        page 3 of 1



                                               22                        Appendix D 654
                                                                                                      JfcL
                                                                     NO. 2012-56941
                                                                                                       ATF£
                BRYAN BLACK                                                §    IN THE DISTRICT COURT
                Plaintiff,                                                 §
                                                                           §
                V.                                                         §    I89TH JUDICIAL DISTRICT
                                                                           §
                MUHAMMAD ZAFFAR, SMITH                                     §
                PROTECTIVE SERVICES, INC.,                                 §
                Defendants.                                                §    OF HARRIS COUNTY, TEXAS
*                        ORDER DENYING DEFENDANT’S MOTION FOR ATTORNEYS’ FEES
I£ *3                   On this the           day   of                      2Q14, came on to be heard Defendant’s Motion
Q    CM   -
J-I'buj       for Award of Attorneys’ Fees, and the Court, after considering such motion, finds that
,9» §zz
JS|i
  | Defendant’s Motion should in all respects be DENIED.
J= « c >*
OXLUCQ
                        IT IS THEREFORE, ORDERED by the Court that Defendant’s Motion for Attorneys’

              Fees against Plaintiff is DENIED.

                        SIGNED this          3 day of                                             .,2014.




                                                                               Judge Presiding
k&‘.          Approved*



              By:
              Patrick G. Hubbard, Attorney for Plaintiff
              Texas Bar No. 10139500
              1075 Kingwood Dr, Suite 203
              Kingwood, TX 77339
              Tel. (281)358-7035
              Fax. (281)358-7008
              Email : phubbard@patrickhubbardlaw.com


 •


              Ordei Denying Defendant'* Motion Tor Attorney's Pecs
                                                                         23                      Appendix E 655Solo
                                                                                                            Page
                                         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

                          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




                                           24
