ACCEPTED
03-13-00790-CV
8070550
THIRD COURT OF APPEALS
AUSTIN, TEXAS
December 8, 2015 12/3/2015 11:34:59 AM
JEFFREY D. KYLE
CLERK
No. 03-13-007 90-CV
RECEIVED IN
IN THE COURT OF APPEALS 3rd COURT OF APPEALS
AUSTIN, TEXAS
12/3/2015 11:34:59 AM
FORTHE THIRD DISTRICT OF TEXAS JEFFREY D. KYLE
Clerk
AUSTIN, TEXAS
T.MARK ANDERSON, AS CO-EXECUTOR OF THE
ESTATE OF TED M. ANDERSON, AND CHRISTINE
ANDERSON, AS CO-EXECUTOR OF THE ESTATE OF TED
M. ANDERSON
V.
RICHARD T. ARCHER, DAVID R. ARCHER, CAROL
ARCHER BUGG, JOHN V. ARCHER, KAREN ARCHER
BALL, AND SHERRI ARCHER
CROSS—APPELLEES’ BRIEF
Scott R. Kidd
State Bar No. 11385500
512-330-1713
scott@kidd1awaustin.com
Scott V. Kidd
State Bar No. 24065556
512-542-9895
svk@kidd1awaustin.com
KIDD LAW FIRM
819 West 11th Street
Austin, TX
78701
Oral Argument Requested 512-330-1709 (fax)
TABLE OF CONTENTS
Table of Contents
Index of Authorities
Caption
The Archers Are Not Entitled To An Additur Of
Claimed Attorneys Fees
There Can Be No Additur Of The Amount Of The
Settlement With The Christian Charities
Conclusion 12
Prayer 13
Certificate Of Compliance with TRAP 9.4(i) (3) 13
Certificate of Service 14
INDEX OF AUTHORITIES
CASES
City of Keller v. Wilson, 168 S.W.3d 802,
822-823 (Tex. 2005) 2
Gulf, Colorado & Santa Fe Ry. Co. v. Deen,
158 Tex. 466, 312 S.W.2d 933, 937 (1958) 9, 10
Gulf States Utility Co. v. Low, 79 S.W.3d 698,
703 (Tex. 2002) 5
Larson v. Cactus Utility Co., 730 S.W.2d 640,
641 (Tex. 1987) 10
Midland Western Building, LLC v. First Service Air
Conditioning Contractors, Inc., 300 S.W.3d 738,
739 (Tex. 2009) 10
National Plan Administrators v. National Health Ins.
Co., 150 S.W.3d 718, 740 (Tex. App.—Austin 2004),
rev’d on other grounds 235 S.W.3d 695 (Tex. 2007) 5, 8
Oyster Creek Financial Corp. Richwood Investments,
v.
Inc., 176 S.W.3d 307 (Tex. App.—Houston [1S‘ Dist]
2004, pet. den.) 11
Ponce v. Sandoval, 68 S.W.3d 799, 805 (Tex. App.—
Amarillo 2001, no pet.) 9
Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986) 10
Potter U. GMP, L.L.C., 141 S.W.3d 698, 703 (Tex. App.—
San Antonio 2004, pet. dism’d) 5
RULES
TEX. R. CIV. P. 301
TEX. R. CIV. P. 320 10
iii
No. 03-13-007 90-CV
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS
AUSTIN, TEXAS
T. MARK ANDERSON, AS CO-EXECUTOR OF THE
ESTATE OF TED M. ANDERSON, AND CHRISTINE
ANDERSON, AS CO-EXECUTOR OF THE ESTATE OF TED
M. ANDERSON
V.
RICHARD T. ARCHER, DAVID R. ARCHER, CAROL
ARCHER BUGG, JOHN V. ARCHER, KAREN ARCHER
BALL, AND SHERRI ARCHER
CROSS—APPELLEES’ BRIEF
T. Mark Anderson, as Co-Executor of the Estate of Ted M.
Anderson, and Christine Anderson, as Co-Executor of the Estate of Ted
M. Anderson, file this Cross-Appellees' Brief in response to the cross-
points raised by Richard T. Archer, David R. Archer, Carol Archer Bugg,
Iohn V. Archer, Karen Archer Ball, and Sherri Archer ("the Archers”).
This brief is limited to the cross—issues raised in the Archers’ brief, and
appellants are tendering a separate reply brief to the responsive brief
filed by the Archers.
The Archers Are Not Entitled to An Additur of Claimed
Attorneys Fees
The Archers’ first cross-point argues that they established their
damages as a matter of law, and that the jury was simply not permitted
to award them less than the maximum amount that the Archers asked
for. The Archers are wrong. The damage question submitted by the
court below was the one requested by the Archers. (CR 542, 545). The
trial court having submitted the question they requested, the Archers
now do not like the answer they received from the jury.
The Archers are complaining that the court did not grant the
motion for INOV that they filed after receiving this verdict. The
standard the court must apply in determining whether a INOV would be
proper is stated in City of Keller v. Wilson, 168 S.W.3d 802, 822-823
(Tex. 2005). A trial court properly denies a motion for directed verdict
and a motion for INOV if, looking at all the evidence in the light most
favorable to the fact challenged or the finding found by the jury, a
reasonable trier of fact could have formed a firm belief or conviction
that the fact or finding was true.
The Archers try to cast their cross-point as an attack on a jury
verdict on attorneys fees. It is not. There were no jury questions
submitted which asked about attorneys fees. The question that was
submitted was a general question about damages. That question was as
follows:
What sum of money, if paid now
in cash, would fairly and
reasonably compensate Plaintiffs for their damages, if any,
proximately caused by the tortious interference?
"Proximate cause" means a cause
that was a
substantial factor in bringing about an event, and
without which cause such event would not have
occurred. In order to be a proximate cause, the act or
omission complained of must be such that a person
using the degree of care required of him would have
foreseen that the event, or some similar event, might
reasonably result therefrom.
Consider the following element of damages and none
other: the difference in value, if any, of the
inheritance actually received by Plaintiffs and the
value of the inheritance that Plaintiffs would have
received from Jack Archer had there been no
interference by the Defendant.
Answer in dollars and cents, if any.
Answer: $2,006,150.00
The Archers argued below that one component of the damages they
allegedly suffered were the attorneys fees they incurred as a result of
the alleged tortious interference by Ted Anderson. (RR. Vol. 3, pp. 176-
177). But under their evidence the Archers sought to recover the fees
and expenses for various lawsuits: the guardianship proceeding in
Blanco County, the guardianship proceeding in Bexar County, various
legal malpractice actions, and suits against guardians. (RR. Vol. 3, pp.
136-137, 144-, 154, 164).
The Archers did offer evidence of their fee arrangements with
their attorneys. (RR Vol. 3 p. 138, Vol. 6 p. 22; P1. Ex. 14, 22]. That fee
arrangement began as an hourly fee and then morphed into a
contingent fee arrangement. (RR Vol. 3 p. 138, 155). The Archers
offered some evidence that they had paid attorneys fees and litigation
expenses under their various arrangements up to an amount of
$2,865,928.00. (Vol. 6 p. 52). But the jury was not asked what amount
was paid under the Archers’ various fee agreements with their lawyers.
The jury was asked for the amount of money that would compensate the
Archers for the damages proximatebz caused by Ted Anderson's alleged
interference. (CR 646, 651)
The jury generally has broad discretion to award damages within
the range of evidence presented at trial. Gulf States Utility Ca. V. Low, 79
S.W.3d 561, 566 (Tex. 2002). The jury's findings may not be set aside
merely because its reasoning in arriving at the amount of damages is
unclear. Potter v. GMP, L.L.C., 141 S.W.3d 698, 703 (Tex. App.—~San
Antonio 2004, pet. dism’d). When the trial evidence supports a range of
awards, as opposed to two distinct options, an award within that range
is an appropriate exercise of the jury's discretion, and the reviewing
court is not permitted to speculate on how the jury actually arrived at
its award. National Plan Administrators v. National Health Ins. Co., 150
S.W.3d 718, 740 (Tex. App.—Austin 2004) rev’d on other grounds, 235
S.W.3d 695 (Tex. 2007).
The evidence of the Archers’ claimed damages consisted primarily
of the testimony of Carol Bugg, Mary Haught, and Frank lkard, exhibits
related to the services provided to the Archers by those lawyers, the
expenses related to those services, and exhibits related to the
settlements with various persons sued by the Archers over the years.
(RR Vol. 3 pp. 136-138, 144, 154, 164; Vol. 6 pp. 15, 22, 30, 31, 43; Pl. Ex.
203, 204, 205, 206, 207, 208, 210, 211, 212). The Archers also offered
evidence about their settlement with the Christian Charities.
Haught and lkard testified in summary fashion about the Various
lawsuits they filed and actions they took in representation of the
Archers. Those lawyers also testified about the agreements made with
the Archers, including the morphing of their hourly fee into a contingent
fee, the acquisition of an interest in the Archer Ranch, and the sale of
that interest to the Archers. Notably, the Archers also introduced into
evidence billing records reflecting detailed descriptions of work by the
lawyers on each of the two guardianships, the malpractice cases against
the various lawyers, the suits against the guardians and others. (Pl. Ex.
210). While Haught and Ikard testified as to the alleged amount of the
contingent fee under their agreement with the Archers, the jury had
before it the lawyers’ time records and could decide that certain of the
charges were not caused by of the alleged tortious actions of Ted
Anderson. As an example, the jury could reasonably have determined
that the initial guardianship proceedings were not the result of the
alleged tortious interference by Ted Anderson and have eliminated the
legal fees associated with that entire proceeding from its damage
calculation. The jury could have reasonably determined that the legal
fees for the entire Bexar County guardianship proceeding, or some part
of it, were not the result of Ted Anderson's alleged interference.
Likewise, the jury could have determined that the legal malpractice
actions, in whole or in part, were unrelated to the alleged tortious
interference. Additionally, the damage question was not merely about
the damages that resulted from the alleged interference, it was a
question that asked for the damages proximately caused by the alleged
interference. Proximate cause by its definition requires foreseeability of
the harm and damages sought. The jury could have reasonably
determined that the only legal fees that were proximately caused by the
alleged interference were those incurred in getting the Christian
Charities to agree to settle. Eliminating some of these claimed attorneys
fees from the damage calculation, as the jury could reasonably have
done, will reduce the amount that the jury could award as damages to
an amount below that awarded by the jury in its verdict, even when the
amount of the claimed $588,054.00 settlement with the Christian
Charities is included.
We do not know, and are not permitted to speculate, as to how the
jury arrived at its answer to the damage question. The jury's answer is
within the range of possible verdicts, and is therefore supported by
evidence. The trial court properly denied the Archers’ motion for INOV.
There Can Be No Additur Of The Amount Of The Settlement With
The Christian Charities
The Archers asked the trial court to add $588,054.00 to the
amount of the jury's verdict by way of a motion for judgment NOV. The
trial court purported to overrule the Archers’ motion for judgment NOV,
but then essentially granted it by adding $588,054.00 to the jury's
verdict in its judgment. [CR 1209, 1470).
The Archer's treat the claim for the amount of the settlement with
the Christian Charities as if it were something separate and apart from
the damages awarded in the jury's verdict, but it is not. The damage
question submitted to the jury was a broad submission of damages
without any separate blanks for the elements of those damages, and no
direction to the jury as to the specific elements that it was to consider
other than the difference in inheritance that the plaintiffs would have
received absent the alleged interference. That is the form of the
question that the Archers requested. The court is not permitted to
speculate as to how the jury arrived at its answer to the damage
question. National Plan Administrators, 150 S.W.3d at 740. Accordingly,
neither this court nor the trial court is entitled to speculate as to
whether the jury's answer to the damage question included the
$588,054.00 that the Archers subsequently claimed had been omitted
by the jury. The answer given by the jury is within the range of possible
damage verdicts under the evidence in the case. Simply adding
$588,054.00 to the verdict found by the jury would be, and was,
improper.
What the Archers asked of the trial court, and are asking of this
court, is for the court to engage in "additur." The Rules of Civil
Procedure do not provide for "additur" by courts to increase the amount
found as damages by the jury in response to properly submitted damage
questions. Ponce V. Sandoval, 68 S.W.3d 799, 805 (Tex. App.—Amaril1o
2001, no pet). A trial court is limited in the actions it may take in
regard to a jury finding on damages. If a jury finding has no support in
the evidence, the finding may be disregarded. See TEX. R. CIV. P. 301;
Gulfi Colorado & Santa Fe Ry. Co. v. Deen, 158 Tex. 466, 312 S.W.2d 933,
937 (1958). If the evidence was conclusive as to the matter so that no
question remained to be resolved by the jury and a directed verdict
would have been proper, then the finding may also be disregarded. TEX.
R. CIV. P. 301; Deerz, 312 S.W.2d at 937. If legally sufficient evidence
supports a finding of damages, but the jury's damage finding is
manifestly too small or too large, a new trial may be granted, but that is
all that may be done by the trial court TEX. R. CIV. P. 320; Deen, 312
S.W.2d at 937. No court is free to simply substitute its judgment for that
of the jury, or to reweigh the evidence, set aside a jury finding, and make
a different finding merely because the court feels a different result is
more reasonable. See Larson V. Cactus Utility C0., 730 S.W.2d 640, 64-1
(Tex. 1987); Pool V. Ford Motor Company, 715 S.W.2d 629, 634 (Tex.
1986).
The Archers assert that the Andersons did not controvert their
evidence of attorneys fees. In the present case, Carol Bugg and the
lawyer-witnesses called by the Archers were cross-examined about the
various suits that had been filed and the actions that had been taken.
(RR Vol. 3 pp. 188-190, 191-196; Vol. 4 pp. 24, 28, 57-60; Vol. 6 pp. 59-
62, 65-66, 127). As the Supreme Court of Texas noted in Midland
Western Building, LLC v. First Service Air Conditioning Contractors, Inc.,
300 S.W.3d 738, 739 (Tex. 2009), an attorneys fee award is not
supported by uncontradicted testimony when the testifying lawyer has
admitted some potentially adverse facts on cross-examination. Cross-
examination is the offering of controverting evidence. There were
admissions by Carol Bugg and the testifying lawyer-witnesses that some
of the lawsuits filed by them had nothing to do with Ted Anderson. In
10
addition, the suits against the guardians were described, and evidence
was introduced about the attorneys’ work and charges for that
representation. The time records for the lawyers’ representation in the
guardianship proceedings, the legal malpractice cases, and the cases
against the guardians were introduced by the Archers. (Pl. Ex. 210). The
jury was asked to determine the damages that were proximately caused
by the alleged tortious interference. The jury had an obligation to
determine which of those suits and charges were the result of the
alleged tortious interference by Ted Anderson and which were not, and
which were reasonably foreseeable and which were not. The jury was
well within its rights to reject all of the attorneys fee claims that the
Archers had not proved were proximately caused by Ted Anderson's
alleged tortious interference. The jury's answer to the single damage
question probably already included the $588,054.00 that the Archers
wanted the trial court to simply add to the jury's considered verdict.
But the amount of those damages was disputed, the verdict is within the
range of the evidence on damages, and no damage figure was
established as a matter of law. For a disputed amount of damages,
neither the trial court nor this court has the authority to employ additur.
Oyster Creek Financial Corp. v. Richwood Investments, Inc., 176 S.W.3d
11
307 (Tex. App.—-Houston [15‘ Dist] 2004, pet. den.). Accordingly, this
court must overrule the Archers’ second cross-point.
Conclusion
The Archers’ cross-points assume that the jury only awarded
them a part of their attorneys fees and none of the cost of the settlement
with the Christian Charities, but that assumption is not only baseless, it
is improper. The damage submission that the Archers requested, and
which the trial court gave, is a broad, general damage submission. The
Archers’ evidence on attorneys fees was not clear, direct, positive, and
free from contradiction. The jury was not asked to find a reasonable
attorneys fee for the work done by the Archers’ attorneys; the jury was
asked to find the damages that proximately resulted from Ted
Anderson’s alleged tortious interference. The jury could reasonably
decide that Various of the actions taken by those lawyers were not the
result of Ted Anderson’s alleged interference, and have only awarded a
significantly lower amount than the Archers sought. The court cannot
assume that the jury did not include the $588,054.00 settlement with
the Christian Charities in the damages it awarded. While the Archers
may not like the verdict as to damages, the amount awarded by the jury
12
is within the range of Values in the evid ence. Accordingly, the Archers
cross-points must be overruled.
PRAYER
Wherefore, the Andersons pray that the court overrule the
Archers’ cross—points.
KIDD LAW FIRM
819 West 11th Street
Austin, TX 78701
512-330-1709 (fax)
Scott R. Kidd
State Bar No. 11385500
512-330-1713
scott@kiddlawaustin.com
Scott V. Kidd
State Bar No. 24065556
512-542-9895
svk@kiddlawaustin.com
Certificate of Compliance with TRAP 9.4(i)(3)
This brief contains a total of 2502 Words excluding the parts
exempted under TRAP 9.4(i)(1), as verified by Microsoft Word for
Mac. This brief is therefore in compliance with TRAP 9.4(i)(2)(B).
13
Certificate of Service
A copy of this brief has been served on Laurie Ratliff, 400 W. 15th
Street, Suite 975, Austin, TX 78701, by email and fax on the 3rd day of
December, 2015. _
§co§ R. Kidd
14
T. Mark Anderson, as Co-Executor of the Estate of Ted Anderson, and Christine Anderson, as Co-Executor of the Estate of Ted Anderson//Cross-Appellants, David R. Archer, Carol Archer Bugg, John v. Archer, Karen Archer Ball, and Sherri Archer v. Richard T. Archer, David R. Archer, Carol Archer Bugg, John v. Archer, Karen Archer Ball, and Sherri Archer//Cross-Appellees, T. Mark Anderson, Co-Executor of the Estate of Ted Anderson, and Christine Anderson, as Co-Executor
Combined Opinion