                                                                            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




                             111
                          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
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                                       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
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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

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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,
 153 (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

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
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




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