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

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