Gary Phillips v. Boo 2 You, LLC George Steven Smith And Linda K. Smith

• Court: Court of Appeals of Texas
• Decided: October 23, 2015
• Docket: 03-14-00406-CV
• Status: Published

Opinion

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

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

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

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

Invoice Number Due On Amount Due Payments Received Balance Due

1248 01/07/2015 $862.50 $862.50 $0.00

Please make all checks payable to: Smith Law Group, P.C., Tax ID No. XX-XXXXXXX.

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

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.

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

Page 1 of 2 Invoice # 1294 - 03/11/2015

Invoice Number Due On Amount Due Payments Received Balance Due

1294 03/11/2015 $1,000.00 $1,000.00 $0.00

Please make all checks payable to: Smith Law Group, P.C., Tax ID No. XX-XXXXXXX.

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

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

Please make all amounts payable to: Smith Law Group LLLP

Page 2 of 2