ACCEPTED
03-14-00406-CV
7511340
THIRD COURT OF APPEALS
AUSTIN, TEXAS
10/23/2015 10:35:51 AM
JEFFREY D. KYLE
CLERK
No. 03-14-00406-CV
FILED IN
In the Third Court of Appeals 3rd AUSTIN,
COURT OF APPEALS
TEXAS
Austin, Texas 10/23/2015 10:35:51 AM
JEFFREY D. KYLE
Clerk
GARY PHILLIPS
Appellant
V.
BOO 2 YOU, LLC, GEORGE STEVEN SMITH, AND LINDA K. SMITH
Appellees
APPEAL FROM CAUSE NO. 12-0966-CC4
COUNTY COURT AT LAW NO. 4, WILLIAMSON COUNTY, TEXAS
HON. JOHN B. MCMASTER, PRESIDING
APPELLEES’ MOTION FOR SANCTIONS
Appellees George Steven Smith and Linda K. Smith (“the Smiths”)
and Boo 2 You, LLC (collectively “Appellees”) file this motion asking the
Court to determine that this appeal is frivolous and to award Appellees just
damages. See TEX. R. APP. P. 45. Appellees respectfully show:
F ACTS
Appellant is Gary Phillips (“Phillips”), the Plaintiff below. CR1. He
filed suit against Appellees, claiming he was partners with Appellees and
was owed partnership profits. Id. The trial court granted summary judgment
for Appellees on Phillips’s claims. CR211-12. The subject of this motion is
not the summary judgment, but rather Phillips’s repeated misrepresentations
of the appellate record regarding the alleged “deemed admissions” he cites
as evidence in his appeal. A close examination of the record, as
supplemented, confirms that this is one of those rare cases that warrants
sanctions from this Court.
1. There Are No Deemed Admissions as Summary Judgment
Evidence.
Phillips filed suit against Appellees on June 27, 2012. CR7. On June
5, 2013, Phillips allegedly served Appellees with several requests for
discovery, including Requests for Admissions. CR17-24. Appellees were
pro se at the time the discovery was allegedly served and never received
Phillips’s discovery requests. 2SuppCR7-10. Phillips’s counsel confirmed
that the discovery requests were returned unopened and unserved. 2RR6.
After retaining counsel, Appellees filed a Motion to Set Aside
Deemed Admissions on August 14, 2013, attaching their responses to
Phillips’s Requests for Admissions. 2SuppCR7-12. On May 20, 2014,
immediately prior to the hearing on Appellees’ First Amended Motion for
Summary Judgment, the trial court heard and granted Appellees’ Motion to
Set Aside Deemed Admissions. RR4-9. Thus, the trial court “undeemed” the
admissions before the summary-judgment hearing on Appellees’ motion for
2
summary judgment and did not consider them as evidence when granting
summary judgment. Id.
2. The Parties Fully Discovered the Case and Developed the Factual
Record Despite the Deemed Admissions.
Nine months elapsed between Appellees’ filing of their Motion to Set
Aside Deemed Admissions and the trial court’s ruling. 2SuppCR 7-12; RR4-
9. During that time, Phillips had Appellees’ written responses to his
Requests for Admissions, obtained additional documents in discovery from
Appellees, and took Appellees’ depositions. CR114-209; 2SuppCR7-12.
Although Phillips had sufficient opportunity to, and did, explore the facts of
his case through discovery, he relied upon Appellees’ allegedly “deemed
admissions,” the parties’ depositions, and documents he obtained in
discovery as support for his Response to Appellees’ First Amended Motion
for Summary Judgment. CR111-12. After the trial court set aside the deemed
admissions, Phillips did not seek a continuance of the summary judgment
hearing based on a need for additional discovery, argue he was prejudiced by
the trial court’s ruling, or ask for additional discovery at the hearing. CR110-
210; RR11-36.
3
3. Appellant Misrepresents the Record and Conceals the Trial
Court’s Order by Failing to Bring Forward Complete Record.
On appeal, Phillips claims that the “deemed admissions” he
referenced in his response to Appellees’ First Amended Motion for
Summary Judgment created a fact issue warranting reversal of the trial
court’s summary judgment and remand for trial on the merits. App. Br., at 1-
2, 6, 9, 12 (citing CR15-24). Phillips actually cites the set aside “deemed
admissions” as evidence in his opening brief, while neglecting to inform this
Court that the trial court granted Appellees’ Motion to Set Aside Deemed
Admissions prior to hearing and granting Appellees’ First Amended Motion
for Summary Judgment. Id.; RR4-9, 11-38.
In addition, Phillips requested only a partial record for his appeal,
omitting Appellees’ Motion to Set Aside and the reporter’s record. CR215-
16. Because the trial court ruled on Appellees’ Motion to Set Aside Deemed
Admissions from the bench, rather than entering a written order, neither the
Clerk’s Record nor the First Supplemental Clerk’s Record Phillips requested
contains the trial court’s ruling on Appellees’ Motion to Set Aside Deemed
Admissions, and Phillips specifically omitted Appellees’ Motion to Set
Aside Deemed Admissions from his request to the clerk for items to include
4
in the appellate record. See CR215-16. 1SuppCR; RR9.1 Nor did Phillips
request that the reporter transcribe and forward to this Court its record of the
hearing on Appellees’ Motion to Set Aside Deemed Admissions. See RR38.
These items only appear in the appellate record because Appellees requested
and paid for them. See 2SuppCR; SuppRR.2
The reporter’s record not only contains the court’s ruling on
Appellees’ Motion to Set Aside Deemed Admissions, it also includes
argument and evidence the trial court considered in awarding Appellees
sanctions. RR24-38. Thus, the record on which Appellant relies in its appeal
was incomplete because it did not allow this Court to fully review the trial
court’s evidentiary rulings, and the evidence and argument it considered in
awarding sanctions. TEX. R. APP. P. 34.1. Accordingly, Appellees requested
a supplemental clerk’s record, including their Motion to Set Aside Deemed
Admissions, and the reporter’s record, containing the evidence and argument
1 The Clerk’s Record includes the Court’s Orders and Events, noting that Appellees
(Defendants below) filed a Motion to Set Aside Deemed Admissions on August 14, 2014.
CR5. That motion was re-set for hearing by the trial court on May 20, 2014, the same day
the trial court heard Appellees’ First Amended Motion for Summary Judgment. CR6.
After finding these notations, counsel for Appellees requested the Second Supplemental
Clerk’s Record, ordered the Reporter’s Record, and filed a third (opposed) motion to
extend time to file Appellees’ brief to allow for the preparation of these records.
2SuppCR13; RR38; Appellees’ Opposed Third Motion to Extend Time, filed November
6, 2014.
2 The original Court Reporter’s Certificate erroneously states that appellant paid for
the reporter’s record RR38. On December 30, 2014, the reporter filed an amended
certificate correcting this error.
5
the trial court considered regarding Appellees’ Motion to Set Aside Deemed
Admissions and Appellees’ request for sanctions. See 2SuppCR13-14; see
also RR, generally.
4. In His Reply, Phillips Improperly Attempts to Raise a New Point
of Error and Demonstrates That His Misrepresentations Were
Intentional.
Appellees raised these issues in their response to Phillips’s opening
brief. In his reply, Phillips claimed, for the first time, that the trial court’s
ruling on Appellees’ Motion to Set Aside Deemed Admissions was “invalid”
and had “no effect.” App. Br., at 1-3. Phillips attempted to cite authorities
for his newly-minted argument and added several arguments, without citing
record evidence, concerning “prejudice” resulting from the trial court’s
ruling. Id. None of these arguments were presented to the trial court or to
this Court before Phillips filed his reply brief. Compare id. with RR,
generally, and App. Br., generally.
A RGUMENT AND A UTHORITIES
1. Phillips Cannot Raise a New Point of Error in His Reply, and
Even if He Could, It Is Wrong.
Phillips is barred from challenging the trial court’s grant of Appellees’
Motion to Set Aside Deemed Admissions for the first time in his reply. TEX.
R. APP. P. 38.3; Howell v. Texas Workers' Comp. Comm’n, 143 S.W.3d 416,
439 (Tex. App.—Austin 2004, pet. denied) (rules of appellate procedure do
6
not allow appellant to include in reply brief new issue not raised by its
original brief). But even if he could, he is wrong: the trial court’s ruling is
valid, and Phillips cannot pretend that his mischaracterization of the record
and evidence in his appeal were unintentional or have merit.
Trial courts have broad discretion in permitting parties to withdraw
deemed admissions, particularly when the deemed admissions go to the
merits of the dispute. TEX. R. CIV. P. 198.3; Wheeler v. Green, 157 S.W.3d
439 (Tex. 2005) (per curiam). The trial court’s ruling from the bench,
granting Appellees’ Motion to Set Aside Deemed Admissions, was proper,
regardless whether a written order was ever entered. Nat. Cas. Co. v. Lane
Exp., Inc., 998 S.W.2d 256, 262 (Tex. App.—Dallas 1999, pet. denied).
Further, the trial court did not need to grant Appellees additional time
to answer Phillips’s Requests for Admissions: Appellees attached their
responses to Phillips’s Requests for Admissions to their motion, so by the
time the trial court granted Appellees’ motion, Phillips had been in
possession of Appellees’ responses for more than nine months. 2SuppCR 7-
12; RR4-9.
This fact is significant for two reasons. First, despite his unsupported
argument to the contrary, it demonstrates there was no prejudice to Phillips.
Not only did Phillips have Appellees’ responses during the entire discovery
7
period, he had sufficient time to, and did, develop a factual record in
addition to Appellees’ responses. See CR 110-210. Phillips never argued
below that he was prejudiced by the trial court’s ruling, nor could he. RR 11-
34. Thus, Phillips cannot now, for the first time in his reply, claim he was
prejudiced by the trial court’s granting of Appellees’ Motion to Set Aside
Deemed Admissions.
Second, record evidence that Phillips possessed Appellees’ discovery
responses as of August 14, 2013 reveals a pattern of misrepresenting the
record. The record clearly demonstrates Phillips had Appellees’ responses to
his Requests for Admissions five weeks after they were due under Texas
Rule of Civil Procedure 198.2(a). CR18-24; 2SuppCR7-12. And yet, even
when attempting to explain his mischaracterization of the appellate record,
Phillips claims that by “undeeming the admissions [the trial court] deprived
Phillips of that form of discovery” and “wholly excus[ed] Appellees from
having to answer admission requests at all.” App. Reply, at 2. The appellate
record irrefutably establishes that trial court did no such thing. Phillips was
only “deprived” of Appellees’ responses for five weeks because Phillips has
had them since August 13, 2013.
Thus, Phillips is incorrect: the trial court could and properly did grant
Appellees’ Motion to Set Aside Deemed Admissions. See TEX. R. CIV. P.
8
198.3. Further, even if the trial court’s actions were improper, Phillips failed
to raise any issue regarding the trial court’s ruling in his opening brief and is
barred from raising it in his reply. TEX. R. APP. P. 38.3. Finally, even when
attempting to explain his misrepresentations, Phillips again misrepresents
both the record and the trial court’s actions. App. Reply, at 2; 2SuppCR7-12.
Phillips’s repeated misrepresentations are intentional, unexcused, and
sanctionable.
2. Appellate Sanctions Are Justified Based on Phillips’s Frivolous
Appeal and Misrepresentations of the Record.
Under Rule 45, the appellate court first must determine that an appeal
is frivolous before it can consider awarding just damages to any prevailing
party. Glassman v. Goodfriend, 347 S.W.3d 772, 781-82 (Tex. App.—
Houston [14th Dist.] 2011, pet. denied) (en banc). Under the plain meaning
of Rule 45, this Court may award just damages if, after considering
everything in its file, this court makes an objective determination that the
appeal is frivolous. See TEX. R. APP. P. 45; Smith v. Brown, 51 S.W.3d 376,
381 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (en banc). To
determine whether an appeal is objectively frivolous, the court considers the
record from Appellant’s counsels’ viewpoint and decides whether he had
reasonable grounds to believe the case could be reversed on appeal. See
Smith, 51 S.W.3d at 381.
9
Here, Phillips only requested a portion of the appellate record,
choosing to omit the reporter’s record and Appellees’ Motion to Set Aside
Deemed Admissions. CR215-16. At common law, when a complete record
of the evidence at trial has not been filed, the appellate court presumes that
the omitted evidence supports the trial court's judgment. See Enterprise
Leasing v. Barrios, 156 S.W.3d 547, 550 (Tex. 2004); see also Christiansen
v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (applying Rule 53(d), the
predecessor to Rule 34.6(c)).
Filing his appeal from the trial court’s ruling, relying on deemed
admissions when the trial court clearly did not (and arguing the appeals
court should as well), and omitting both Appellees’ Motion to Set Aside
Deemed Admissions and the trial court’s express ruling on the motion
demonstrates that Phillips’s appeal is objectively frivolous. This Court
would have presumed that the unincluded portions of the record supported
the trial court’s granting of Appellees’ First Amended Motion for Summary
Judgment and award of sanctions. Enterprise, 156 S.W.3d at 550. Thus,
there were no reasonable grounds to believe that an appellate court would
reverse the trial court’s judgment in the absence of a complete record,
objectively considering the record from the viewpoint of the attorney
representing Phillips.
10
Although it is not necessary for this court to consider Phillips’s bad
faith when determining whether to sanction him, the court may consider
Phillips’s bad faith when determining a sanctions amount. Smith, 51 S.W.3d
at 381. Here, Phillips’s strategic omission of portions of the appellate record
afforded him the ability to deny the existence of a significant evidentiary
ruling when a complete record would have conclusively disproved his
argument. Moreover, by selectively omitting unfavorable rulings, Phillips
could simply pretend on appeal that the “deemed admissions” were part of
the evidence the trial court considered when granting Appellees’ First
Amended Motion for Summary Judgment. Phillips’s mischaracterization of
the record is particularly offensive because (1) it was his burden to put the
complete record of the summary judgment evidence properly before this
Court, (2) he intentionally failed to do so, and (3) he attempted to dodge the
issue by making new arguments in his reply brief rather than admitting the
omission’s significance to his appeal.
Texas Disciplinary Rule of Professional Conduct 3.03(a)(1) states that
a lawyer “shall not knowingly ... make a false statement of material fact or
law to a tribunal.” TEX. DISCIPLINARY R. OF PROF’L CONDUCT 3.03(a)(1),
reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G app. A (Vernon 2005)
11
(TEX. STATE BAR R. art. X., § 9). Additionally, the Standards for Appellate
Conduct provide:
As professionals and advocates, counsel assist the Court in the
administration of justice at the appellate level. Through briefs
and oral submissions, counsel provide a fair and accurate
understanding of the facts and law applicable to their case.... 3.
Counsel should not misrepresent, mischaracterize, misquote, or
miscite the factual record or legal authorities.
Twist v. McAllen Nat’l Bank, 248 S.W. 3d 351, 365 (Tex. App.—Corpus
Christi-Edinburg 2007 (orig. proceeding [mand. denied]) (citing Texas
Supreme Court, Standards for Appellate Conduct, available at
http://www.txcourts.gov/media/514719/standards-for-appellate-conduct.pdf)
see also In re Hasbro, Inc., 97 S.W.3d 894, 897 n.2 (Tex. App.—Dallas
2003, orig. proceeding).
Phillips violated these standards and worse by not only claiming that
his evidence—the allegedly deemed admissions—were evidence that this
Court should consider on appeal, but also by deliberately requesting an
incomplete appellate record, omitting Appellees’ Motion to Set Aside
Deemed Admissions, their Responses to Appellant’s Requests for
Admissions, and the trial court’s ruling undeeming the admissions. Phillips’s
actions, under these circumstances, demonstrate improper motivation and
purpose—in short, bad faith.
12
Under these facts, the Court may appropriately exercise its discretion
to award just damages to the prevailing party. In making this determination,
the Court should consider the circumstances revealed by the record, briefs,
and other papers filed in this Court, and weigh factors that include the
following: the failure to present a complete record, the failure to file a
response to a request for appellate sanctions, and the filing of an inadequate
appellate brief. Tate v. E.I DuPont de Nemours & Co., Inc., 954 S.W.2d 872,
875 (Tex. App.—Houston [14th Dist.] 1997, no pet.). Several factors are
present here.
Appellees have already addressed Phillips’s failure to request a
complete record. But in addition to failing to request the record, Phillips
mischaracterized and omitted a critical evidentiary ruling that impacted the
evidence the trial court considered, and that this Court can consider, in this
appeal.
Phillips bears the burden of negating all possible grounds for the trial
court’s ruling. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380
(Tex. 1993); Humane Soc’y of Dallas v. Dallas Morning News L.P., 180
S.W.3d 921, 923 (Tex. App.—Dallas 2005, no pet.) (citing Star-Telegram,
Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995)); see also Tex. Workers’
Comp. Comm’n v. Patient Advocates of Tex., 136 S.W.3d 643, 648 (Tex.
13
2004) (“The reviewing court must affirm summary judgment if any of the
summary judgment grounds are meritorious.”); see Pisharodi v. Six, No. 13-
07-019-CV, 2008 WL 3521330, at *3 (Tex. App.—Corpus Christi Aug. 7,
2008, no pet.) (mem. op.). By omitting the trial court’s ruling on the motion
to set aside the deemed admissions, by attempting to include the deemed
admissions as part of the appellate evidentiary record, by failing to address
the trial court’s ruling setting aside the deemed admissions in his opening
briefs, and (when caught) by fashioning a pretextual and legally incorrect
excuse for his lack of candor, Phillips failed to meet that burden. Thus, not
only was the record incomplete, so were Phillips’s briefs.
The evidence that Appellees submitted, along with the undeemed
admissions, was more than sufficient to obtain summary judgment on
Phillips’s claims—a premise Phillips’s failure to apprise the Court of the
true state of the record implicitly concedes.
As reflected in the attached Affidavit of D. Todd Smith, Appellees
have incurred and paid $20,491.79 in attorney fees and expenses defending
this appeal, including the filing of their brief, preparation of this motion, and
dealing with supplementation of the record. See Exhibit A; see also
2SuppCR15; SuppRR38. That amount represents just damages to Appellants
for having to deal with Phillips’s frivolous appeal. See Hunt v. CIT
14
Grp./Consumer Fin., Inc., No. 03-09-00046-CV, 2010 WL 1508082, at *9
(Tex. App.—Austin Apr. 15, 2010) (mem. op.) (noting that “[c]ourts
awarding sanctions for a frivolous appeal under rule 45 typically award
attorney’s fees for the appeal” and that “[p]roof by affidavit is a proper
method of establishing the appropriate sanction for the filing of a frivolous
appeal”).
C ONCLUSION AND P RAYER
Appellant, Gary Phillips, and his counsel misrepresented the record
and the proceedings below, and filed an objectively meritless appeal. The
full record, obtained by Appellees, and the parties’ briefs on appeal
demonstrate both Appellant’s misrepresentation of the trial court
proceedings, the evidence considered by the trial court, the evidence on
appeal, and the vexatiousness of the litigation. For all of the reasons set forth
above, Appellees respectfully request that this Court award appellate
sanctions in the amount of $20,491.79 for the costs and fees Appellees have
incurred defending themselves on appeal and presenting this motion to the
Court. Appellees request all other appropriate relief to which they are
entitled.
15
Respectfully submitted,
SMITH LAW GROUP LLLP
1250 Capital of Texas Highway South
Three Cielo Center, Suite 601
Austin, Texas 78746
(512) 439-3230
(512) 439-3232 (fax)
/s/D. Todd Smith
D. Todd Smith
State Bar No. 00797451
todd@appealsplus.com
Laura P. Haley
State Bar No. 24012766
laura@appealsplus.com
Appellate Counsel for Appellees
C ERTIFICATE OF C ONFERENCE
I certify that, on October 22, 2015, I placed a telephone call to
Appellant’s counsel, Bill Malone, in an attempt to confer about the merits of
this motion. I did not reach Mr. Malone, but left him a detailed message. I
did not receive a return call before submitting this motion to the Court.
/s/ D. Todd Smith
D. Todd Smith
16
C ERTIFICATE OF S ERVICE
On October 23, 2015, in compliance with Texas Rule of Appellate
Procedure 9.5, I served this document by e-service, e-mail, facsimile, or mail
to:
Bill Malone
LAW OFFICES OF BILL MALONE, JR.
8650 Spicewood Springs, #145-598
Austin, Texas 78739
Lead Appellate Counsel for Appellant
Gary Philips
/s/ D. Todd Smith
D. Todd Smith
17
S TAT E OF TEXAS
§
§
C O U N T Y O F T R AV I S §
AFFIDAVIT OF P. TODD SMITH
BEFORE ME, the undersigned notary, personally appeared D. Todd Smith,
a person whose identity is known to me. After I administered an oath to him, upon
his oath, he said:
"My name is D. Todd Smith. I am over the age of eighteen, of sound mind,
and capable of making this affidavit. The facts stated in this affidavit are within my
personal knowledge and are true and correct.
1. I am an attorney licensed to practice in the State of Texas, having
been admitted on November 1, 1996. I am the founder and managing partner of
Smith Law Group LLLP, formerly known as Smith Law Group, P.C. ("SLG"), the
firm in which I currently practice law.
2. My entire career as a lawyer has been devoted to civil trial and
appellate litigation. I have litigated cases in state and federal courts in locations
throughout Texas and in various other state and federal jurisdictions. I have also
litigated a number of matters before the American Arbitration Association and
other privately appointed arbitrators.
3. I became a briefing attorney to Texas Supreme Court Justice Raul A.
Gonzalez upon graduating from St. Mary's University School of Law. After
completing my term at the Supreme Court, I joined the Dallas office of Fulbright &
Jaworski L.L.P., where I was a member of the litigation and appellate practice
groups. I later transferred to Fulbright's Austin office, where I practiced until 2006,
when I left to start my own firm focusing on civil appellate matters. I have been
board-certified in Civil Appellate Law by the Texas Board of Legal Specialization
since December 2005.
4. I have held several leadership positions in various state and local bar
associations over the years. Among other things, I am a former member of the
State Bar Appellate Section Council and have chaired the Austin Bar Association's
Exhibit A
Civil Appellate Law Section. I am also a frequent writer and speaker on a variety
of legal-related topics.
5. I have nearly 18 years experience as a civil litigator in private
practice. During that time, I have handled cases in a variety of subject areas. I am
familiar with the reasonable, necessary, and customary fees charged by attorneys
practicing in Texas and in Travis and Williamson Counties for handling appeals,
complex civil litigation, and related matters. Indeed, I have testified as an expert
witness on appellate attorney fees.
6. Since September 11, 2014, SLG has provided professional legal
services to Boo 2 You, LLC, George Steven Smith, and Linda K. Smith in
connection with Gary Phillips's appeal from the final summary judgment signed in
Cause No. 12-0966-CC4 in the County at Law Number Four of Williamson
County, Texas, which is docketed in the Third Court of Appeals as No. 03-14-
00406-CV. Over that time, SLG has generated six billing statements, two of which
primarily involved collection efforts and are not at issue. The last four, Invoice
Nos. 1202, 1248, 1294, and 1314, are attached to this affidavit and incorporated by
reference. All of these invoices have been paid in full.
7. I am the custodian of the records of my law practice relating to the
invoicing of professional services SLG performs. Each of the invoices identified in
the foregoing paragraph are printouts of the computer time records documenting
the time SLG has spent performing work in this matter. All of the time indicated in
these documents was actually expended on the topics stated in the printouts. These
records were kept in the regular course of SLG's law practice, and it was the
regular course of business of SLG's law practice for an SLG employee or
representative with knowledge of the act, event, condition, or opinion is recorded,
to make the record or to transmit information thereof to be included in such record.
The record was made at or near the time reflected thereon or reasonably soon
thereafter. The invoices are the originals or an exact duplicate of the originals.
8. The services reflected in Invoice Nos. 1202, 1248, 1294, and 1314
were necessary to defend against Phillips's appeal on behalf of Boo 2 You, LLC,
George Steven Smith, and Linda K. Smith and to prosecute Appellee's Motion for
Sanctions. The narratives accompanying SLG's time entries itemize specific tasks
and the time required for those tasks.
9. The hourly rates charged for the work listed are reasonable given the
qualifications of SLG lawyers and paralegals, their level of experience, the amount
and complexity of the work involved, the hourly rates other lawyers charge in this
geographic area, and SLG's relationship with the clients, which did not exist
before September 11, 2014.
10. The time spent on the tasks necessary to the representation was
likewise reasonable. SLG was not involved at the trial-court level and therefore
had to acquaint itself with the facts and legal issues sufficiently to represent its
clients' interests. All time allocated to all tasks was necessary to adequately
respond to and defend against Phillips's appeal, which seeks to reverse a summary
judgment on Phillips's claims for breach of contract, breach of fiduciary duty, and
unjust enrichment and an order that Phillips pay $10,000 in sanctions for filing a
frivolous lawsuit.
11. The expenses reflected on these invoices were actually incurred, were
necessary to the representation, and were reasonable.
12. Based on the invoices referenced in Paragraph 6, Boo 2 You, LLC,
George Steven Smith, and Linda K. Smith have incurred appellate attorney fees
and costs totaling $20,491.79 to defend the trial court's judgment and bring their
motion for sanctions. These fees are consistent with what is customarily charged in
this area for the same or similar services for attorneys with my experience,
reputation, and ability, considering the time and labor required, the novelty and
difficulty of the questions involved, the skill required to perform the legal service
properly, and the nature and length of SLG's relationship with these clients."
Further, Affiant sayeth naught.
§.%U
D. Todd Smith, Affiant
SWORN TO AND SUBSCRIBED BEFORE ME by D. Todd Smith on October
22,2015.
"^ KENNETH E. DAWSON
f'\ MY COMMISSION EXPIRES d for the State of
W£S# December 5,2016
Texas
INVOICE
Invoice # 1202
Date: 12/04/2014
Due Upon Receipt
1250 S Capital of Texas Hwy, Suite 3-601
Austin, TX 78746
Phone: (512) 439-3230
www.appealsplus.com
George Steven Smith
Boo 2 You
1904 Oak Hollow Drive
Round Rock, Texas 78681
Account Summary
Outstanding Balance New Charges Payments Received Amount Currently Due
( $0.00 + $15,916.79 )-( $15,916.79 )= $0.00
14-0023 Boo 2 You
Summary Judgment/Appeal
Services
Type Date Attorney Description Quantity Rate Total
Service 11/03/2014 LPH Review record for drafting brief. 2.30 $250.00 $575.00
Service 11/04/2014 LPH Finish reviewing record to draft brief; review 4.20 $250.00 $1,050.00
supplemental record regarding bond.
Service 11/05/2014 DTS Analyze potential effect 0.50 $375.00 $187.50
may have on appeal;
consider possible actions in
; confer with L. Haley
concerning same.
Service 11/05/2014 LPH Begin drafting, researching brief; call B. 7.50 $250.00 $1,875.00
Malone and county court clerk to verify
bond deposit; call T. Pitts regarding order
on undeeming admissions; call/email court
reporter re: record of summary judgment
hearing and motion to undeem admissions.
Service 11/06/2014 LPH Continue researching and drafting 4.80 $250.00 $1,200.00
appellees' brief, correspond with trial court
reporter re: transcript for hearing on
Page 1 of 4
Invoice # 1202 - 12/04/2014
undeeming admissions; draft 3d motion to
extend time to allow for filing of transcript
and supplemental clerk's record;
correspond with opposing counsel re:
opposition to extension.
Service 11/10/2014 LPH Continue drafting appellee brief 1.00 $250.00 $250.00
Service 11/11/2014 LPH Continue drafting and researching 2.10 $250.00 $525.00
appellees' brief.
Service 11/12/2014 LPH Continue drafting and researching 5.20 $250.00 $1,300.00
appellees' brief
Service 11/17/2014 LPH Drafting appellees' brief. 5.30 $250.00 $1,325.00
Service 11/20/2014 LPH Continue researching and drafting brief 2.40 $250.00 $600.00
regarding factors courts consider for
partnership; add citations to clerk's record.
Service 11/21/2014 LPH Review reporter's record; draft sections of 5.20 $250.00 $1,300.00
brief regarding appellant's
misrepresentation to the court and
undeemed admissions.
Service 11/22/2014 LPH Continue drafting breach and researching 4.60 $250.00 $1,150.00
cases regarding partnership factors.
Service 11/23/2014 LPH Continue drafting and researching brief; 7.30 $250.00 $1,825.00
complete sections regarding additional
claims filed by Appellant, summary of
argument, issues presented.
Service 11/24/2014 DTS Review and revise final draft of Appellees' 1.20 $375.00 $450.00
Brief.
Service 11/24/2014 LPH Finalize argument regarding partnership 6.50 $250.00 $1,625.00
and other causes of action; draft fact
section and sanctions section; finalize brief;
forward to paralegal and DTS for review
and comment; review comments and make
final revisions; file.
Service 11/24/2014 PM Review Table of Contents and confirm 0.60 $100.00 $60.00
correct page cites to all headers; Review all
cites to authorities and confirm cites were
all properly coded for inclusion in Table of
Authorities;
Service 11/24/2014 PM Review email correspondence from L. 2.40 $100.00 $240.00
Haley forwarding draft Appellee's Brief;
Begin reformatting the cover page and
page numbers; Begin review of outline
form, revise and reformat outline styles
contained in same for the Table of
Contents; Generate the Table of Contents;
Review and cite check the authorities
referenced in same, review in Westlaw to
Page 2 of 4
Invoice # 1202 - 12/04/2014
check cites as needed; Review and mark
citations within the document; Make
additional revisions to the Table of
Contents; Generate Index of Authorities;
Prepare email correspondence to L. Haley
forwarding final draft for review;
Service 11/24/2014 PM Review email correspondence from L. 0.90 $100.00 $90.00
Haley forwarding red-line draft of Appellee's
Brief; Review and accept changes made in
same; Generate new Table of Contents;
Revise and update Index of Authorities;
Convert same to PDF; Email L. Haley re
log-in information for FileTime; Insert
bookmarks into same; Hyperlink Table of
Contents; Prepare email correspondence to
L. Haley forwarding copy of final brief to be
filed;
Service 11/24/2014 PM Review email correspondence from L. 0.30 $100.00 $30.00
Haley re filing it under T. Smith; Review
follow-up email from L. Haley and revise
same; Review on FileTime and file
Appellees' Brief, set up case, e-Serve
same;
Services Subtotal $15,657.50
Expenses
Type Date Description Quantity Rate Total
Expense 11/06/2014 FedEx: Fee delivered to Court Reporter 1.00 $12.43 $12.43
Expense 11/06/2014 Reporter Fee: Reporter's Record [check 1922] 1.00 $210.00 $210.00
Expense 11/06/2014 ProDoc: eFiling Third Motion for Extension to File 1.00 $13.63 $13.63
Appellees' Brief
Expense 11/07/2014 County Clerk fee for Supplement to Clerk's Record 1.00 $10.22 $10.22
Expense 11/07/2014 ProDoc: eFiling Letter to Williamson County Court re 1.00 $5.40 $5.40
Supplement to Reporter's Record
Expense 11/07/2014 ProDoc: eFiling Letter to Williamson County Court re 1.00 $5.40 $5.40
Supplement to Clerk's Record
Expense 11/24/2014 ProDoc: eFiling Appellee's Brief 1.00 $2.21 $2.21
Expenses Subtotal $259.29
Time Keeper Position Quantity Rate Total
Laura Haley Attorney 58.4 $250.00 $14,600.00
Page 3 of 4
Invoice # 1202 - 12/04/2014
D. Todd Smith Attorney 1.7 $375.00 $637.50
Patricia Muniz Non-Attorney 4.2 $100.00 $420.00
Subtotal $15,916.79
Total $15,916.79
Payment (12/04/2014) -$7,406.90
Payment (01/02/2015) -$8,509.89
Balance Owing $0.00
Detailed Statement of Account
Current Invoice
Invoice Number Due On Amount Due Payments Received Balance Due
1202 12/04/2014 $15,916.79 $15,916.79 $0.00
Account Balance
Trust Account Balance $0.00
Total Account Balance $0.00
Please make all checks payable to: Smith Law Group, P.C., Tax ID No. XX-XXXXXXX.
Payment is due upon receipt.
Visit https://payments.lawpay.com/bpl/lp2162392 to pay this invoice online via credit card.
Page 4 of 4
INVOICE
Invoice # 1248
Date: 01/07/2015
Due Upon Receipt
1250 S Capital of Texas Hwy, Suite 3-601
Austin, TX 78746
Phone: (512) 439-3230
www.appealsplus.com
George Steven Smith
Boo 2 You
1904 Oak Hollow Drive
Round Rock, Texas 78681
Account Summary
Outstanding Balance New Charges Payments Received Amount Currently Due
( $0.00 + $862.50 )-( $862.50 )= $0.00
14-0023 Boo 2 You
Summary Judgment/Appeal
Type Date Attorney Description Quantity Rate Total
Service 12/15/2014 DTS Receive and review appellant's reply brief; 0.30 $375.00 $112.50
consider prospects for sanctions.
Service 12/17/2014 DTS Review authorities supporting sanctions for 1.20 $375.00 $450.00
frivolous appeals.
Service 12/19/2014 DTS NO CHARGE: Forward copy of appellant's 0.20 $0.00 $0.00
reply brief to client; email exchange with
client concerning possible sanctions
motion.
Service 12/22/2014 DTS NO CHARGE: Exchange emails with client 0.20 $0.00 $0.00
regarding authority to seek sanctions for
frivolous appeal; receive client's instructions
to pursue same.
Service 12/27/2014 DTS NO CHARGE: Additional email exchange 0.20 $0.00 $0.00
with client regarding sanctions motion and
further handling.
Service 12/31/2014 LPH Begin draft of motion for sanctions. 1.20 $250.00 $300.00
Time Keeper Position Quantity Rate Total
Page 1 of 2
Invoice # 1248 - 01/07/2015
Laura Haley Attorney 1.2 $250.00 $300.00
D. Todd Smith Attorney 1.5 $375.00 $562.50
D. Todd Smith Attorney 0.6 $0.00 $0.00
Subtotal $862.50
Total $862.50
Payment (04/02/2015) -$862.50
Balance Owing $0.00
Detailed Statement of Account
Current Invoice
Invoice Number Due On Amount Due Payments Received Balance Due
1248 01/07/2015 $862.50 $862.50 $0.00
Account Balance
Trust Account Balance $0.00
Total Account Balance $0.00
Please make all checks payable to: Smith Law Group, P.C., Tax ID No. XX-XXXXXXX.
Payment is due upon receipt.
Visit https://secure.lawpay.com/pages/smithlawgrouppc/trust to pay this invoice online via credit card.
Page 2 of 2
INVOICE
Invoice # 1294
Date: 03/11/2015
Due Upon Receipt
1250 S Capital of Texas Hwy, Suite 3-601
Austin, TX 78746
Phone: (512) 439-3230
www.appealsplus.com
George Steven Smith
Boo 2 You
1904 Oak Hollow Drive
Round Rock, Texas 78681
Account Summary
Outstanding Balance New Charges Payments Received Amount Currently Due
( $0.00 + $1,000.00 )-( $1,000.00 )= $0.00
14-0023 Boo 2 You
Summary Judgment/Appeal
Type Date Attorney Description Quantity Rate Total
Service 02/24/2015 LPH Continue drafting motion for sanctions; 1.70 $250.00 $425.00
research re: deemed admissions.
Service 02/25/2015 LPH Continue drafting sanctions motion; review 2.30 $250.00 $575.00
record for additional information re: service
of admissions, length of discovery period,
and discovery of facts.
Time Keeper Position Quantity Rate Total
Laura Haley Attorney 4.0 $250.00 $1,000.00
Subtotal $1,000.00
Total $1,000.00
Payment (04/02/2015) -$1,000.00
Balance Owing $0.00
Page 1 of 2
Invoice # 1294 - 03/11/2015
Detailed Statement of Account
Current Invoice
Invoice Number Due On Amount Due Payments Received Balance Due
1294 03/11/2015 $1,000.00 $1,000.00 $0.00
Account Balance
Trust Account Balance $0.00
Total Account Balance $0.00
Please make all checks payable to: Smith Law Group, P.C., Tax ID No. XX-XXXXXXX.
Payment is due upon receipt.
Visit https://secure.lawpay.com/pages/smithlawgrouppc/trust to pay this invoice online via credit card.
Page 2 of 2
INVOICE
Invoice # 1314
Date: 04/15/2015
Due Upon Receipt
1250 S Capital of Texas Hwy, Suite 3-601
Austin, TX 78746
Phone: (512) 439-3230
www.appealsplus.com
George Steven Smith
Boo 2 You
1904 Oak Hollow Drive
Round Rock, Texas 78681
Account Summary
Outstanding Balance New Charges Payments Received Amount Currently Due
( $0.00 + $2,712.50 )-( $2,712.50 )= $0.00
14-0023 Boo 2 You
Summary Judgment/Appeal
Type Date Attorney Description Quantity Rate Total
Service 03/18/2015 LPH Draft motion for sanctions. 3.00 $250.00 $750.00
Service 03/19/2015 LPH Finalize motion for sanctions; forward to 2.00 $250.00 $500.00
DTS for review.
Service 04/15/2015 DTS Review and revise motion for sanctions; 3.50 $375.00 $1,312.50
research proper method for proving up
sanctions on appeal; prepare affidavit in
support of sanctions request; email to
clients concerning these issues.
Service 04/15/2015 LPH Review DTS revisions to sanctions motion; 0.60 $250.00 $150.00
revise motion; forward to DTS.
Time Keeper Quantity Rate Total
Laura Haley 5.6 $250.00 $1,400.00
D. Todd Smith 3.5 $375.00 $1,312.50
Subtotal $2,712.50
Total $2,712.50
Page 1 of 2
Invoice # 1314 - 04/15/2015
Payment (10/09/2015) -$2,712.50
Balance Owing $0.00
Account Balance
Trust Account Balance $0.00
Total Account Balance $0.00
Please make all amounts payable to: Smith Law Group LLLP
Payment is due upon receipt.
Page 2 of 2
Gary Phillips v. Boo 2 You, LLC George Steven Smith And Linda K. Smith
Combined Opinion