Case Information
*-661 appellants are tendering a separate reply brief to the responsive brief
The Archers argued below that one component of damages they
There Can Be No Additur Of The Amount Of The Settlement With
The jury generally has broad discretion to award damages within Likewise, jury could have determined that the legal malpractice reasonable trier of fact could have formed a firm belief or conviction *-656 Haught and lkard testified in summary fashion about Various
$588,054.00 that Archers subsequently claimed had been omitted
all that may be done by the trial court TEX. R. CIV. P. 320; Deen, 312
307 (Tex. App.—-Houston [15‘ Dist] 2004, pet. den.). Accordingly, this
addition, suits against the guardians were described, and evidence
TABLE OF CONTENTS
ence. Accordingly, the Archers
is within range of Values in the evid
INDEX OF AUTHORITIES
RULES
No. 03-13-007 90-CV
The Christian Charities
Certificate of Service
filed by Archers.
allegedly suffered were attorneys fees they incurred as a result of
that the fact or finding was true. actions, in whole or in part, were unrelated to the alleged tortious range of evidence presented at trial. Gulf States Utility Ca. V. Low, 79 *-626 lawsuits they filed and actions they took in representation of the
by jury. The answer given by the jury is within the range of possible
S.W.2d at 937. No court is free to simply substitute its judgment for that
was introduced about the attorneys’ work and charges for that
court must overrule Archers’ second cross-point.
cross-points must be overruled.
Table of Contents
CASES
TEX. R. CIV. P. 301
The Archers asked the trial court to add $588,054.00 to the
A copy of this brief has been served on Laurie Ratliff, 400 W. 15th alleged tortious interference by Ted Anderson. (RR. Vol. 3, pp. 176-
The Archers try to cast their cross-point as an attack on a jury IN THE COURT OF APPEALS
interference. Additionally, damage question was not merely about S.W.3d 561, 566 (Tex. 2002). The jury's findings may not be set aside *-595 Archers. Those lawyers also testified about agreements made with
damage verdicts under the evidence in the case. Simply adding *-591 of jury, or to reweigh the evidence, set aside a jury finding, and make
representation. The time records for lawyers’ representation in the
Index of Authorities
Street, Suite 975, Austin, TX 78701, by email and fax on 3rd day of
City of Keller v. Wilson, 168 S.W.3d 802, *-581 amount of jury's verdict by way of a motion for judgment NOV. The *-580 TEX. R. CIV. P. 320
10
December, 2015.
The Archers Are Not Entitled to An Additur of Claimed
_
177). But under their evidence Archers sought to recover the fees
822-823 (Tex. 2005)
2 the damages that resulted from the alleged interference, it was a *-565 verdict on attorneys fees. It is not. There were no jury questions merely because its reasoning in arriving at amount of damages is
FOR THE THIRD DISTRICT OF TEXAS Archers, including the morphing of their hourly fee into a contingent
$588,054.00 to the verdict found by the jury would be, and was,
a different finding merely because court feels a different result is
Conclusion
guardianship proceedings, legal malpractice cases, and the cases
PRAYER
Caption
Attorneys Fees
trial court purported to overrule Archers’ motion for judgment NOV,
Gulf, Colorado & Santa Fe Ry. Co. v. Deen,
and expenses for various lawsuits: the guardianship proceeding in
question that asked for damages proximately caused by the alleged unclear. Potter v. GMP, L.L.C., 141 S.W.3d 698, 703 (Tex. App.—~San submitted which asked about attorneys fees. The question that was *-533 fee, acquisition of an interest in the Archer Ranch, and the sale of
AUSTIN, TEXAS
more reasonable. See Larson V. Cactus Utility C0., 730 S.W.2d 640, 64-1
improper.
The Archers’ cross-points assume that jury only awarded *-528 against guardians were introduced by the Archers. (Pl. Ex. 210). The
Wherefore, the Andersons pray
that the court overrule the
The Archers Are Not Entitled To An Additur Of
§co§ R. Kidd
The Archers’ first cross-point argues that they established their
158 Tex. 466, 312 S.W.2d 933, 937 (1958)
but then essentially granted it by adding $588,054.00 to the jury's
9, 10
Claimed Attorneys Fees
Blanco County, guardianship proceeding in Bexar County, various
Antonio 2004, pet. dism’d). When trial evidence supports a range of *-503 submitted was a general question about damages. That question was as interference. Proximate cause by its definition requires foreseeability of
that interest to Archers. Notably, the Archers also introduced into
What Archers asked of the trial court, and are asking of this
(Tex. 1987); Pool V. Ford Motor Company, 715 S.W.2d 629, 634 (Tex.
jury was asked to determine the damages that were proximately caused
them a part of their attorneys fees and none of cost of the settlement
Archers’ cross—points.
damages as a matter of law, and that jury was simply not permitted
Gulf States Utility Co. v. Low, 79 S.W.3d 698,
verdict in its judgment. [CR 1209, 1470).
T. MARK ANDERSON, AS CO-EXECUTOR OF THE
There Can Be No Additur Of The Amount Of The
legal malpractice actions, and suits against guardians. (RR. Vol. 3, pp.
the harm and damages sought. The jury could have reasonably *-472 awards, as opposed to two distinct options, an award within that range 703 (Tex. 2002)
follows:
evidence billing records reflecting detailed descriptions of work by the
5
court, is for the court to engage in "additur." The Rules of Civil
ESTATE OF TED M. ANDERSON, AND CHRISTINE
by the alleged tortious interference. The jury had an obligation to
with Christian Charities, but that assumption is not only baseless, it
1986).
KIDD LAW FIRM
Settlement With The Christian Charities
to award them less than maximum amount that the Archers asked
The Archer's treat claim for the amount of the settlement with *-451 ANDERSON, AS CO-EXECUTOR OF THE ESTATE OF TED *-450 819 West 11th Street
136-137, 144-, 154, 164).
determined that the only legal fees that were proximately caused by the What sum of money, if paid now in cash, would fairly and is an appropriate exercise of jury's discretion, and the reviewing *-441 Larson v. Cactus Utility Co., 730 S.W.2d 640,
lawyers on each of two guardianships, the malpractice cases against
Procedure do not provide for "additur" by courts to increase amount
The Archers assert that Andersons did not controvert their
is improper. The damage submission that Archers requested, and
determine which of those suits and charges were the result of the
M. ANDERSON
Austin, TX 78701
for. The Archers are wrong. The damage question submitted by the
Conclusion
12 Christian Charities as if it were something separate and apart from reasonably compensate Plaintiffs for their damages, if any, *-425 641 (Tex. 1987)
10
512-330-1709 (fax)
The Archers did offer evidence of their fee arrangements with *-411 court is not permitted to speculate on how jury actually arrived at alleged interference were those incurred in getting the Christian
proximately caused by the tortious interference? various lawyers, the suits against the guardians and others. (Pl. Ex.
found as damages by jury in response to properly submitted damage
evidence of attorneys fees. In present case, Carol Bugg and the
which trial court gave, is a broad, general damage submission. The
alleged tortious interference by Ted Anderson and which were not, and
V.
court below was one requested by the Archers. (CR 542, 545). The
Prayer damages awarded in the jury's verdict, but it is not. The damage
13
Midland Western Building, LLC v. First Service Air
their attorneys. (RR Vol. 3 p. 138, Vol. 6 p. 22; P1. Ex. 14, 22]. That fee
Charities to agree to settle. Eliminating some of these claimed attorneys
"Proximate cause" means a cause that was a its award. National Plan Administrators v. National Health Ins. Co., 150 *-379 210). While Haught and Ikard testified as to alleged amount of the
Conditioning Contractors, Inc., 300 S.W.3d 738,
questions. Ponce V. Sandoval, 68 S.W.3d 799, 805 (Tex. App.—Amaril1o
Archers’ evidence on attorneys fees was not clear, direct, positive, and
lawyer-witnesses called by Archers were cross-examined about the
which were reasonably foreseeable and which were not. The jury was
RICHARD T. ARCHER, DAVID R. ARCHER, CAROL
trial court having submitted question they requested, the Archers
Certificate Of Compliance with TRAP 9.4(i) (3)
question submitted to jury was a broad submission of damages
13 *-363 substantial factor in bringing about an event, and *-362 739 (Tex. 2009)
10
ARCHER BUGG, JOHN V. ARCHER, KAREN ARCHER
Scott R. Kidd
arrangement began as an hourly fee and then morphed into a
fees from damage calculation, as the jury could reasonably have *-349 S.W.3d 718, 740 (Tex. App.—Austin 2004) rev’d on other grounds, 235 without which cause such event would not have *-348 contingent fee under their agreement with Archers, the jury had
2001, no pet). A trial court is limited in actions it may take in
various suits that had been filed and the actions that had been taken.
free from contradiction. The jury was not asked to find a reasonable
well within its rights to reject all of attorneys fee claims that the
State Bar No. 11385500
BALL, AND SHERRI ARCHER
now do not like answer they received from the jury.
without any separate blanks for elements of those damages, and no
Certificate of Service
occurred. In order to be a proximate cause, act or *-332 14
National Plan Administrators v. National Health Ins.
512-330-1713
contingent fee arrangement. (RR Vol. 3 p. 138, 155). The Archers
done, will reduce amount that the jury could award as damages to
S.W.3d 695 (Tex. 2007).
omission complained of must be such that a person before it lawyers’ time records and could decide that certain of the
Co., 150 S.W.3d 718, 740 (Tex. App.—Austin 2004),
regard to a jury finding on damages. If a jury finding has no support in
(RR Vol. 3 pp. 188-190, 191-196; Vol. 4 pp. 24, 28, 57-60; Vol. 6 pp. 59-
attorneys fee for work done by the Archers’ attorneys; the jury was
Archers had not proved were proximately caused by Ted Anderson's
scott@kiddlawaustin.com
The Archers are complaining that the court did not grant the
direction to the jury as to the specific elements that it was to consider
using degree of care required of him would have *-300 rev’d on other grounds 235 S.W.3d 695 (Tex. 2007)
5, 8
Scott V. Kidd
offered some evidence that they had paid attorneys fees and litigation
CROSS—APPELLEES’ BRIEF
an amount below that awarded by jury in its verdict, even when the
The evidence of the Archers’ claimed damages consisted primarily *-288 charges were not caused by of the alleged tortious actions of Ted
foreseen that event, or some similar event, might evidence, the finding may be disregarded. See TEX. R. CIV. P. 301; 62, 65-66, 127). As the Supreme Court of Texas noted in Midland
alleged tortious interference. The jury's answer to single damage
asked to find the damages that proximately resulted from Ted
State Bar No. 24065556
motion for INOV that they filed after receiving this verdict. The
other than difference in inheritance that the plaintiffs would have
reasonably result therefrom.
Oyster Creek Financial Corp. v. Richwood Investments,
512-542-9895
expenses under their various arrangements up to an amount of
amount of the claimed $588,054.00 settlement with the Christian
of testimony of Carol Bugg, Mary Haught, and Frank lkard, exhibits
Anderson. As an example, jury could reasonably have determined
Gulfi Colorado & Santa Fe Ry. Co. v. Deen, 158 Tex. 466, 312 S.W.2d 933,
Western Building, LLC v. First Service Air Conditioning Contractors, Inc.,
Anderson’s alleged tortious interference. The jury could reasonably
Inc., 176 S.W.3d 307 (Tex. App.—Houston [1S‘ Dist]
question probably already included $588,054.00 that the Archers
svk@kiddlawaustin.com
standard the court must apply in determining whether a INOV would be
received absent the alleged interference. That is the form of the
Consider following element of damages and none *-241 T. Mark Anderson, as Co-Executor of the Estate of Ted M.
2004, pet. den.)
11
$2,865,928.00. (Vol. 6 p. 52). But jury was not asked what amount
related to services provided to the Archers by those lawyers, the Charities is included.
the difference in value, if any, of the other:
that the initial guardianship proceedings were not the result of the
937 (1958). If evidence was conclusive as to the matter so that no
300 S.W.3d 738, 739 (Tex. 2009), an attorneys fee award is not
wanted trial court to simply add to the jury's considered verdict.
decide that Various of actions taken by those lawyers were not the
Certificate of Compliance with TRAP 9.4(i)(3)
proper is stated in City of Keller v. Wilson, 168 S.W.3d 802, 822-823
question that Archers requested. The court is not permitted to
inheritance actually received by Plaintiffs and the *-210 Anderson, and Christine Anderson, as Co-Executor of Estate of Ted *-206 Ponce v. Sandoval, 68 S.W.3d 799, 805 (Tex. App.—
was paid under Archers’ various fee agreements with their lawyers.
We do not know, and are not permitted to speculate, as to how the
expenses related to those services, and exhibits related to the
value of the inheritance that Plaintiffs would have *-195 alleged tortious interference by Ted Anderson and have eliminated the
question remained to be resolved by the jury and a directed verdict
supported by uncontradicted testimony when testifying lawyer has
result of Ted Anderson’s alleged interference, and have only awarded a
But amount of those damages was disputed, the verdict is within the
Amarillo 2001, no pet.)
9
This brief contains a total of 2502 Words excluding parts
(Tex. 2005). A trial court properly denies a motion for directed verdict
speculate as to how the jury arrived at its answer to the damage
received from Jack Archer had there been no *-180 M. Anderson, file this Cross-Appellees' Brief in response to cross-
exempted under TRAP 9.4(i)(1), as verified by Microsoft Word for
The jury was asked for amount of money that would compensate the
jury arrived at its answer to the damage question. The jury's answer is
settlements with various persons sued by Archers over the years.
legal fees associated with that entire proceeding from its damage interference by the Defendant.
would have been proper, then finding may also be disregarded. TEX.
admitted some potentially adverse facts on cross-examination. Cross-
significantly lower amount than Archers sought. The court cannot
range of the evidence on damages, and no damage figure was
Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986)
Mac. This brief is therefore in compliance with TRAP 9.4(i)(2)(B).
10
and a motion for INOV if, looking at all evidence in the light most
question. National Plan Administrators, 150 S.W.3d at 740. Accordingly,
points raised by Richard T. Archer, David R. Archer, Carol Archer Bugg, *-138 Archers for damages proximatebz caused by Ted Anderson's alleged
within the range of possible verdicts, and is therefore supported by
Answer in dollars and cents, if any.
(RR Vol. 3 pp. 136-138, 144, 154, 164; Vol. 6 pp. 15, 22, 30, 31, 43; Pl. Ex.
calculation. The jury could have reasonably determined that legal
R. CIV. P. 301; Deerz, 312 S.W.2d at 937. If legally sufficient evidence
examination is the offering of controverting evidence. There were
assume that jury did not include the $588,054.00 settlement with
established as a matter of law. For a disputed amount of damages,
Potter U. GMP, L.L.C., 141 S.W.3d 698, 703 (Tex. App.—
favorable to fact challenged or the finding found by the jury, a
neither this court nor the trial court is entitled to speculate as to
Iohn V. Archer, Karen Archer Ball, and Sherri Archer ("the Archers”). *-111 San Antonio 2004, pet. dism’d)
5
interference. (CR 646, 651)
evidence. The trial court properly denied the Archers’ motion for INOV.
203, 204, 205, 206, 207, 208, 210, 211, 212). The Archers also offered
Answer: $2,006,150.00
fees for entire Bexar County guardianship proceeding, or some part
supports a finding of damages, but the jury's damage finding is
admissions by Carol Bugg and testifying lawyer-witnesses that some
neither the trial court nor this court has the authority to employ additur. Christian Charities in the damages it awarded. While the Archers
whether the jury's answer to the damage question included the
This brief is limited to cross—issues raised in the Archers’ brief, and
evidence about their settlement with Christian Charities.
of it, were not the result of Ted Anderson's alleged interference.
manifestly too small or too large, a new trial may be granted, but that is
of lawsuits filed by them had nothing to do with Ted Anderson. In *-68 may not like verdict as to damages, the amount awarded by the jury
Oyster Creek Financial Corp. v. Richwood Investments, Inc., 176 S.W.3d
iii
10
11
12
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14
RECEIVED IN 3rd COURT OF APPEALS AUSTIN, TEXAS
12/3/2015 11:34:59 AM
JEFFREY D. KYLE Clerk
THIRD COURT OF APPEALS 12/3/2015 11:34:59 AM JEFFREY D. KYLE AUSTIN, TEXAS 03-13-00790-CV *1 ACCEPTED [8070550] CLERK
No. 03-13-007 90-CV
IN THE COURT OF APPEALS
FORTHE 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
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)