Jim Arnold Corp. v. Bishop

STOVER, Justice,

concurring and dissenting.

Although I concur with the majority in overruling all of appellant’s points of error, I respectfully dissent to the majority’s decision to award ten times the total taxable costs as damages against JACOR and in favor of Bishop.

Rule 84 of the Texas Rules of Appellate Procedure authorizes us to award the prevailing appellee an amount not to exceed ten times the total taxable costs as damages against appellant if this Court determines an appellant has taken an appeal for delay and without sufficient cause. However, damages for taking appeal for delay and without sufficient cause should only be applied with prudence, caution, and after careful deliberation. Morris v. Morris, 894 S.W.2d 859, 865 (Tex.App.—Fort Worth 1995, no writ). In determining whether such delay damages should be imposed, the court of appeals must look at the case from the point of view of the advocate and determine whether he has reasonable ground to believe the ease should be reversed. Exxon Corp. v. Shuttlesworth, 800 S.W.2d 902, 908 (Tex.App.—Houston [14th Dist.] 1990, no writ); see also Apostolic Church v. Am. Honda Motor Co., 833 S.W.2d 553, 556 (Tex.App.—Tyler 1992, writ denied).

In the instant case, JACOR sued Bishop for breach of fiduciary duty, DTPA violations, tortious interference with business relationships, fraud, and malpractice. Although the trial court, through its directed verdict in favor of Bishop, found there was no evidence to support any of the claims against Bishop, appellant nonetheless had a reasonable basis to believe the directed verdict would be reversed because of Bishop’s communications with the trial judge concerning Bishop’s fees in the Al Monsoori litigation. According to testimony at trial, any fee to which Bishop was entitled would come out *773of Matthews’ fee. Because of the agreement to that effect, Bishop’s communications with the federal court judge concerning his fees was unwarranted since Bishop’s fee agreement was with Matthews and no one else. It was not unreasonable on the part of appellant to believe evidence of such conduct would constitute breach of fiduciary duty, tortious interference, and/or malpractice and would survive a directed verdict.

For that reason, I would affirm the judgment in overruling all of JACOR’s points of error, but overrule Bishop’s request under Tex.R.App. P. 84 for damages against JACOR for taking an appeal for delay and without sufficient cause.