                                                                        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
             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


       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
               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




                                    ii
                                     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




                                                      iii
                                     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 no-

billed 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 sub-

station 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].

                                          1
      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

                                          3
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/CROSS-
                                        APPELLANT




                                           4
                         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




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