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

13

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)