                                                                                  ACCEPTED
                                                                            03-13-00790-CV
                                                                                    4062436
                                                                   THIRD COURT OF APPEALS
                                                                             AUSTIN, TEXAS
                                                                         2/6/2015 4:56:11 PM
                                                                           JEFFREY D. KYLE
                                                                                      CLERK
                         No. 03-13-00790-CV

                   IN THE COURT OF APPEALS
                                                               February 6, 2015
              FOR THE THIRD DISTRICT OF TEXAS

                       AT AUSTIN, TEXAS

T. MARK ANDERSON, AS CO-EXECUTOR OF THE ESTATE OF TED M.
                                                 RECEIVED IN
   ANDERSON, AND CHRISTINE ANDERSON, AS CO-EXECUTOR       OF
                                            3rd COURT OF APPEALS
              THE ESTATE OF TED M. ANDERSON AUSTIN, TEXAS
                                                     2/6/2015 4:56:11 PM
                                                       JEFFREY D. KYLE
                                           Appellants/Cross-Appellees,
                                                             Clerk
                                v.

RICHARD T. ARCHER, DAVID R. ARCHER, CAROL ARCHER BUGG,
JOHN V. ARCHER, KAREN ARCHER BALL, AND SHERRI ARCHER

                                         Appellees/Cross-Appellants.


           BRIEF OF APPELLEES/CROSS-APPELLANTS


      Laurie Ratliff
      State Bar No. 00784817
      Frank N. Ikard Jr.
      State Bar No. 10386000
      Lauren Davis Hunt
      State Bar No. 24059657
      IKARD GOLDEN JONES, P.C.
      400 West 15th St., Suite 975
      Austin, Texas 78701
      Telephone: (512) 472-6695
      Telecopier: (512) 472-3669
      Laurieratliff@igjlaw.com

       ATTORNEYS FOR APPELLEES/CROSS-APPELLANTS
                      Oral argument requested
                  IDENTITY OF PARTIES AND COUNSEL

I.     Appellees/Cross-Appellants:

       Richard T. Archer
       David R. Archer
       Carol Archer Bugg
       John V. Archer
       Karen Archer Ball
       Sherri Archer

II.    Counsel for Appellees/Cross-Appellants:

       Laurie Ratliff
       Frank N. Ikard, Jr.
       Lauren Davis Hunt
       IKARD GOLDEN JONES, P.C.
       400 West 15th Street, Suite 975
       Austin, Texas 78701
       Telephone: (512) 472-6695
       Telecopier: (512) 472-3669
       Laurieratliff@igjlaw.com

III.   Appellants/Cross-Appellees:

       T. Mark Anderson, as Co-Executor of the Estate of Ted M. Anderson
       Christine Anderson, as Co-Executor of the Estate of Ted M. Anderson

IV.    Counsel for Appellants/Cross-Appellees:

       Gerald D. McFarlen
       THE LAW OFFICE OF GERALD D. MCFARLEN, P.C.
       28 Fabra Oaks Road
       Boerne, Texas 78006
       Telephone: (830) 331-8554
       Telecopier: (210) 568-4305
       gmcfarlen@mcfarlenlaw.com




                                         i
                                         TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL ......................................................... i

TABLE OF CONTENTS .......................................................................................... ii

TABLE OF AUTHORITIES .....................................................................................v

STATEMENT OF THE CASE .............................................................................. xiii

ISSUES PRESENTED........................................................................................... xiv

INTRODUCTION .....................................................................................................1

STATEMENT OF FACTS ........................................................................................3

SUMMARY OF THE ARGUMENT ..................................................................... 23

ARGUMENT AND AUTHORITIES ......................................................................24

I.      The Archers followed well-established Texas law when they sued Ted
        Anderson for tortious interference with their inheritance [Responsive to
        Issue 1] ...........................................................................................................24

        A.       Appellants’ briefing error waives Issue 1 ............................................25

        B.      Appellants concede Ted tortiously interfered with the Archers’
                inheritance ............................................................................................26

        C.      Texas law recognizes a cause of action for tortious interference
                with inheritance ....................................................................................27

        D.       Legal malpractice privity rule does not apply in tortious
                 interference with inheritance cases ......................................................28




                                                             ii
II.         The Archers are entitled to their attorney’s fees and litigation expenses
            incurred in the Bexar County litigation as damages
            [Responsive to Issues 2-4] ...........................................................................30

       A.          Texas law recognizes recovery of attorney’s fees incurred in
                   a prior litigation as damages ............................................................... 31

       B.         Appellants waived their argument about segregation of attorney’s
                  fees in the trial court and in their brief on appeal ............................... 36

       C.         Segregation of attorney’s fees does not apply in an
                  attorney’s-fees-as-damages case ........................................................ 37

       D.          Appellants waived their sufficiency of the evidence argument .......... 40

       E.         The evidence is factually and legally sufficient as to the
                  reasonableness and necessity of the Archers’ attorney’s fees ............ 41

       F.         The district court erred in denying the Archers’ motion for partial
                  JNOV on the full amount of attorney’s fees proved as a matter of law
                   [Cross Issue 1].................................................................................... 45

                   1.     No evidence supports jury’s thirty-percent reduction in the
                          amount of attorney’s fees the Archers paid in prior litigation... 47

                   2.     The Archers proved the entire amount of their attorney’s fees
                          paid in the Bexar County litigation as a matter of law ............. 51

III.        The district court properly granted Appellants’ motion for partial JNOV
            and awarded the Archers the amount paid to settle with the charities
            [Responsive to Issue 5] ...............................................................................55

            A.       Appellants’ briefing error waives appellate review ..........................56

            B.       Appellants’ post-verdict motions waive appellate review ................56

            C.       The Archers proved the settlement with the charities amount as a
                     matter of law [Cross Issue 2] ............................................................60




                                                           iii
                   1.      No evidence supports awarding zero damages for the
                           settlement with the charities ...................................................61

                   2.       The Archers proved as a matter of law that they paid
                            $588,054 to settle with the charities ......................................63

IV.      The district court properly calculated prejudgment interest
         [Responsive to Issues 6 & 7] .......................................................................65

          A.       Appellants waived their prejudgment interest accrual date
                   argument ...........................................................................................65

          B.       Prejudgment interest cannot be tolled ...............................................68

PRAYER FOR RELIEF ..........................................................................................70

CERTIFICATE OF COMPLIANCE .......................................................................72

CERTIFICATE OF SERVICE ................................................................................73

APPENDIX .................................................................................................. Tabs A-L




                                                          iv
                                   TABLE OF AUTHORITIES

CASES

Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. National Dev. & Research Corp.,
299 S.W.3d 106 (Tex. 2009)............................................................................. 31, 32

Alice Leasing Corp. v. Castillo,
53 S.W.3d 433 (Tex. App.—San Antonio 2001, pet. denied) .......................... 52, 61

Allman v. Butcher,
314 S.W.3d 671 (Tex. App.—Dallas 2010, no pet.) .................................. 52, 60, 63

Allstate Prop. & Cas. Ins. v. Gutierrez,
281 S.W.3d 535 (Tex. App.—El Paso 2008, no pet.)............................................. 57

AMX Enters., L.L.P. v. Master Realty Corp.,
283 S.W.3d 506 (Tex. App.—Fort Worth 2009, no pet.) ....................................... 69

Aquila Southwest Pipeline, Inc. v. Harmony Exploration, Inc.,
48 S.W. 3d 225 (Tex. App.—San Antonio 2001, pet. denied) ............................... 68

Estate of Arlitt v. Patterson,
995 S.W.2d 713 (Tex. App.—San Antonio 1999, pet. denied)
disapproved on other grounds by Belt v. Oppenheimer, Blend, Harrison & Tate,
192 S.W.3d 780 (Tex. 2006)................................................................................... 34

Arlington Home, Inc. v. Peak Envtl. Consultants, Inc.,
361 S.W.3d 773 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) ................. 61

B&W Supply, Inc. v. Beckman,
305 S.W.3d 10 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) ..................... 54

Barcelo v. Elliott,
923 S.W.2d 575 (Tex.1996) .................................................................................... 29

Bluestar Energy, Inc. v. Murphy,
205 S.W.3d 96 (Tex. App.—Eastland 2006, pet. denied) ................................ 58, 59




                                                       v
Brandes v. Rice Trust, Inc.,
966 S.W.2d 144 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) ................. 28

Brandon v. Am. Sterilizer Co.,
880 S.W.2d 488 (Tex. App.—Austin 1994, no writ) ............................................. 41

Bray v. Tejas Toyota, Inc.,
363 S.W.3d 777 (Tex. App.—Austin 2012, no pet.) .............................................. 58

Brookshire Grocery Co. v. Smith,
99 S.W.3d 819 (Tex. App.—Beaumont 2003, pet. denied).................................... 65

Bullock v. American Heart Ass’n,
360 S.W.3d 661 (Tex. App.—Dallas 2012, pet. denied) ............................ 25, 26, 37

Cain v. Bain,
709 S.W.2d 175 (Tex. 1986)............................................................................. 41, 42

Cantu v. Moore,
90 S.W.3d 821 (Tex. App.—San Antonio 2002, pet. denied) ................................ 49

Chandler v. Welborn,
156 Tex. 312, 294 S.W.2d 801 (1956).................................................................... 27

City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005)................................................................. 46, 47, 60, 61

City of San Antonio v. Hardee,
70 S.W.3d 207 (Tex. App.—San Antonio 2001, no pet.)....................................... 59

Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue,
271 S.W.3d 238 (Tex. 2008)................................................................................... 29

Cupples Coiled Pipe, Inc. v. Esco Supply Co.,
591 S.W.2d 615 (Tex. Civ. App.—El Paso 1979, writ ref’d n.r.e) .................. 35, 36

Dalton S.S. Corp. v. W.R. Zanes & Co.,
354 S.W.2d 621 (Tex. Civ. App.—Fort Worth 1962, no writ) ........................ 35, 36




                                                      vi
Dow Chem. Co. v. Francis,
46 S.W.3d 237 (Tex. 2001) ............................................................. 47, 51, 52, 60, 63

First Nat’l Bank v. Fojtik,
775 S.W.2d 632 (Tex. 1989)................................................................................... 58

First State Bank v. Keilman,
851 S.W.2d 914 (Tex. App.—Austin 1993, writ denied) ........................... 49, 50, 62

Green v. Kaposta,
152 S.W.3d 839 (Tex. App.—Dallas 2005, no pet.) .............................................. 41

Gulf States Utils. v. Low,
79 S.W.3d 561 (Tex. 2002) ..................................................................................... 49

Hawkins v. Walvoord,
25 S.W.3d 882 (Tex. App.—El Paso 2000, pet. denied) ........................................ 67

Helena Chemical v. Wilkins,
18 S.W. 3d 744 (Tex. App.—San Antonio 2000),
affirmed, 47 S.W. 3d 486 (Tex. 2001) .................................................................... 68

Helping Hands Home Care, Inc. v. Home Health of Tarrant County, Inc.,
393 S.W.3d 492 (Tex. App—Dallas 2013, pet. denied) ......................................... 46

Horizon/CMS Healthcare Corp. v. Auld,
34 S.W.3d 887 (Tex. 2000). .................................................................................... 59

Jansen v. Fitzpatrick,
14 S.W.3d 426 (Tex. App.—Houston [14th Dist.] 2000, no pet.).......................... 59

Johnson & Higgins of Texas Inc. v. Kenneco Energy, Inc.,
962 S.W.2d 507 (Tex. 1998)............................................................................. 66, 69

Keyes Helium Co. v. Regency Gas Servs., L.P.,
393 S.W.3d 858 (Tex. App.—Dallas 2013, no pet.) ............................ 25, 26, 37, 56

King v. Acker,
725 S.W.2d 750 (Tex. App.—Houston [1st Dist.] 1987, no writ) ................... 27, 30



                                                       vii
Lesikar v. Rappeport,
33 S.W.3d 282 (Tex. App.—Texarkana 2000, pet. denied) ........................ 31, 35-38

Marin Real Estate Partners, L.P. v. Vogt,
373 S.W.3d 57 (Tex. App.—San Antonio 2011, no pet.)........................... 25, 26, 56

Marshall v. Marshall,
547 U.S. 293 (2006) ................................................................................................ 28

Mason v. Mason,
No. 07-12-00007, 1014 WL 199649
(Tex. App.—Amarillo Jan. 13, 2014, no pet. (mem. op.)....................................... 57

Massey v. Columbus State Bank,
35 S.W.3d 697 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) ......... 32, 33, 34

Matthews v. Candlewood Builders, Inc.,
685 S.W.2d 649 (Tex. 1985)............................................................................. 36, 37

Matthews v. DeSoto,
721 S.W.2d 286 (Tex. 1986)................................................................................... 68

Meduna v. Holder,
No. 03-06-00484-CV, 2008 WL 1911184
(Tex. App.—Austin Apr. 30, 2008, pet. denied) (mem. op.) ............................................ 28

Mills v. Jackson,
711 S.W.2d 427 (Tex. App.—Fort Worth 1986, no writ) ................................ 49, 50

Naschke v. Gulf Coast Conference,
187 S.W.3d 653 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) ................. 35

Nationwide Mut. Ins. v. Holmes,
842 S.W.2d 335 (Tex. App.—San Antonio 1992, writ denied) ............................. 32

Neill v. Yett,
746 S.W.2d 32 (Tex. App.—Austin 1988, writ denied) ................................................... 28

New Amsterdam Cas. Co. v. Texas Indus., Inc.,
414 S.W.2d 914 (Tex. 1967)................................................................................... 31


                                                         viii
Noell v. City of Carrollton,
431 S.W.3d 682 (Tex. App.—Dallas 2014, pet. denied) ...................... 21, 31, 35, 36

Northeast Tex. Motor Lines, Inc. v. Hodges,
138 Tex. 280, 158 S.W.2d 487 (1942).............................................................. 58, 59

Pacesetter Pools, Inc. v. Pierce Homes, Inc.,
86 S.W.3d 827 (Tex. App.—Austin 2002, no pet.) ................................................ 34

Peterson v. Dan Witter Reynolds, Inc.,
805 S.W.2d 541 (Tex. App.—Dallas 1991, no writ) ........................................ 35. 36

Pilgrim’s Pride Corp. v. Burnett,
No. 12-10-00037-CV, 2012 WL 381714
(Tex. App.—Tyler Feb. 3, 2012, no pet.) (mem. op.) ............................................ 69

Powell v. Narried,
463 S.W.2d 43 (Tex. Civ. App.—El Paso 1971, writ ref’d n.r.e.) ......................... 38

Rendleman v. Clarke,
909 S.W.2d 56(Tex. App.—Houston [14th Dist.] 1995, writ dism’d as moot) 40, 41

Rice v. Gregory,
780 S.W.2d 384 (Tex. App.—Texarkana 1989, writ denied)............................ 36-38

Rogers v. Texas Bd. of Architectural Examiners,
390 S.W.3d 377 (Tex. App.—Austin, no pet.) ....................................................... 29

In re Estate of Russell,
311 S.W.3d 528 (Tex. App.—El Paso 2009, no pet.)............................................. 28

Smith v. East,
411 S.W.3d 519 (Tex. App.—Austin 2013, pet. denied) ....................................... 58

Smith v. Patrick W.Y. Tam Trust,
235 S.W.3d 819 (Tex. App.—Dallas 2007), rev’d on other grounds,
296 S.W.3d 545 (Tex. 2009)............................................................................. 50, 51




                                                     ix
Southwest Airlines v. Jaeger,
867 S.W. 2d 824 (Tex. App.—El Paso 1993, writ denied) .................................... 69

Standard Fire Ins. v. Stephenson,
963 S.W.2d 81 (Tex. App.—Beaumont 1997, no pet.) .................................... 32, 33

Sunbeam Envtl. Servs., Inc. v. Texas Workers’ Comp. Ins. Facility,
71 S.W.3d 846 (Tex. App.—Austin 2002, no pet.) ................................................ 26

Tana Oil & Gas Corp. v. McCall,
104 S.W.3d 80 (Tex. 2003) ............................................................................... 35, 36

Texas Beef Cattle Co. v. Green,
883 S.W.2d 415 (Tex. App.—Beaumont 1994), rev’d on other grounds,
921 S.W.2d 203 (Tex. 1996)............................................................................. 33, 38

Texas Dept. of Transp. v. Guerra,
858 S.W.2d 44 (Tex. App.—Houston [14th Dist.] 1993, writ denied) ........... 47, 61

Texas & N.O.R. Co. v. Burden,
146 Tex. 109, 203 S.W.2d 522 (1947).............................................................. 47, 61

Tiller v. McLure,
121 S.W.3d 709 (Tex. 2003)................................................................................... 61

Turner v. Turner,
385 S.W.2d 230 (Tex. 1964)............................................................................. 32, 37

In re Estate of Valdez,
406 S.W.3d 228 (Tex. App.—San Antonio 2013, pet. denied) .............................. 28

Volkswagen of Am., Inc. v. Ramirez,
159 S.W.3d 897 (Tex. 2004)................................................................. 41, 42, 46, 47

Wein v. Sherman,
No. 03-10-00499-CV, 2013 WL 4516013
(Tex. App.—Austin August 23, 1013, no pet.) ................................................ 35, 36

Wilmer-Hutchins Indep. Sch. Dist. v. Smiley,
97 S.W.3d 702 (Tex. App.—Dallas 2003, pet. denied) .................................... 65, 66

                                                       x
Wilson v. Texas Parks & Wildlife Dept.,
853 S.W.2d 825 (Tex. App.—Austin 1993), rev’d on other grounds,
886 S.W.2d 259 (Tex. 1994)................................................................................... 26

Woollett v. Matyastik,
23 S.W.3d 48 (Tex. App.—Austin 2000, pet. denied) ........................................... 49

STATUTES AND RULES

TEX. ESTATES CODE § 54.001(a) ............................................................................. 29

TEX. ESTATES CODE § 256.002 ......................................................................... 66, 67

TEX. ESTATES CODE § 256.204 ............................................................................... 67

TEX. FIN. CODE §304.101 ........................................................................................ 66

TEX. FIN. CODE §304.104 ........................................................................................ 66

TEX. FIN. CODE §304.108(b) ................................................................................... 69

TEX. R. APP. P. 9.4(i)(1) .......................................................................................... 72

TEX. R. APP. P. 9.4(i)(2)(B)..................................................................................... 72

Tex. R. App. P. 33.1(a)(A)...................................................................................... 57

TEX. R. APP. P. 38.1(i)............................................................... 25, 37, 41, 56, 65, 66

TEX. R. APP. P. 38.2(b) ............................................................................................ 60

TEX. R. APP. P. 38.3 ................................................................................................ 26

TEX. R. CIV. P. 324(c) ............................................................................................. 60




                                                          xi
OTHER AUTHORITIES

RESTATEMENT (SECOND) OF TORTS §774B (1979) ................................................. 27

RESTATEMENT (SECOND) OF TORTS §914 (1979) .................................................... 32

RESTATEMENT (SECOND) OF TORTS §914(2) (1979) ............................................... 32




                                               xii
                         STATEMENT OF THE CASE

Nature of the case:       This is a tortious interference with inheritance case.
                          Appellees/Cross-Appellants Richard T. Archer, David R.
                          Archer, Carol Archer Bugg, John V. Archer, Karen Archer
                          Ball, and Sherri Archer sued Ted M. Anderson and others
                          for their actions that caused Appellees’ uncle, John R.
                          “Jack” Archer, to sign numerous estate planning
                          documents that disinherited the Archers. Jack signed all
                          of the disinheriting estate planning documents after a
                          stroke that rendered him mentally incapacitated. Ted died
                          during the litigation, and the co-executors of his estate
                          substituted as defendants.

Trial court disposition: After a week and a half trial, the jury returned a verdict
                         finding that Ted had tortiously interfered with the Archers’
                         inheritance and awarded $2,006,150 in damages. CR646-
                         53; App. A. The district court implicitly granted
                         Appellants’ motion for partial JNOV and awarded the
                         Archers an additional $588,054 in undisputed damages in
                         the Final Judgment. CR1470-71; App. B. The district
                         court, however, denied the Archers’ motion for partial
                         JNOV that sought the full amount of their damages that
                         were established as a matter of law. CR1209; App. H.

Relief sought:            The Archers request that this Court affirm the Final
                          Judgment on liability. By cross-issue, the Archers request
                          that the Court modify and render judgment on the total
                          damages the Archers proved as a matter of law.
                          Alternatively, the Archers seek affirmance of the Final
                          Judgment on liability and damages.




                                         xiii
                            ISSUES PRESENTED

1.   Does Texas jurisprudence recognize a cause of action for tortious interference
     with inheritance? [Responsive to Issue 1]

2.   Did the district court properly admit evidence of, and award as damages, the
     Archers’ attorney’s fees and litigation expenses incurred in prior litigation?
     [Responsive to Issues 2, 3, and 4]

3.   Did the district court properly award the Archers additional damages that were
     conceded by Appellants in post-verdict motions? [Responsive to Issue 5]

4.   Did the district court properly exercise its discretion in its pre-judgment
     interest calculation? [Responsive to Appellants’ Issues 6 and 7]

                  Appellees/Cross-Appellants’ Cross-issues:

1.   Did the district court err in denying the Archers’ motion for partial JNOV
     when the Archers established the entire amount of their attorney’s fees
     incurred in prior litigation as a matter of law?

2.   Did the district court properly grant Appellants’ motion for partial JNOV and
     award the Archers $588,054 as additional damages?




                                       xiv
TO THE HONORABLE THIRD COURT OF APPEALS:

      Appellees/Cross-Appellants Richard T. Archer, David R. Archer, Carol

Archer Bugg, John V. Archer, Karen Archer Ball, and Sherri Archer (“the Archers”)

file their Appellees/Cross-Appellants’ Brief requesting that the Court affirm the

district court’s Final Judgment on liability. By cross-issue, the Archers request that

the Court modify and render judgment awarding them their the total damages proved

as a matter of law. Alternatively, the Archers seek affirmance of the Final Judgment

on liability and damages

                                 INTRODUCTION

      In this tortious interference with inheritance rights case, the Archers seek to

recover the attorney’s fees and other monies they were forced to pay in litigation

involving their uncle, Jack Archer. Jack’s life-long estate plan left the bulk of his

more than $7.5 million estate to his nearest relatives, the Archers. Ted Anderson,

however, had other plans for Jack’s estate. Shortly after Jack suffered a catastrophic

stroke that rendered Jack mentally incapacitated, Ted Anderson obtained a power of

attorney from Jack and assembled and instructed a team of attorneys to rewrite and

cause Jack to sign three new wills, two trusts, and numerous property assignments.

The new estate planning documents not only disinherited the Archers and left Jack’s

entire estate to charities, but also made a will contest virtually impossible.
      Ted and his cohorts forced the Archers into costly and protracted legal

wranglings in a guardianship proceeding and related lawsuits that lasted more than

5 years and cost the Archers more than $3.4 million to reverse.

      In the end, the Archers successfully reinstated Jack’s original estate plan and

inherited Jack’s estate. Having successfully restored their inheritance from their

uncle, the Archers brought the underlying tortious interference with inheritance

lawsuit to recover the more than $3.4 million in attorney’s fees and other monies

paid in the guardianship litigation as damages.

      After an eight-day trial, the jury found that Ted tortiously interfered with the

Archers’ inheritance and awarded $2,006,100 in damages. In post-verdict motions,

Appellants conceded that the Archers proved more damages than the jury awarded.

As a result, the district court’s Final Judgment awarded $588,054, as conceded by

Appellants, in addition to the jury’s verdict. The district court, however, did not

grant the Archers’ post-verdict motion seeking all of the damages they proved as a

matter of law.

      The Archers seek an affirmance of the Final Judgment on liability and by

cross-issue seek a modification and rendition of judgment on the total amount of

damages that were proved as a matter of law. Alternatively, the Archers seek

affirmance of the Final Judgment on liability and damages.




                                          2
                                    STATEMENT OF FACTS

          The Archer Family. John R. “Jack” Archer lived in Corpus Christi, but spent

considerable amounts of time on his 1000-acre ranch in Blanco County. 3RR84-85.

Jack was very successful in the oil and gas business and amassed an estate worth

more than $7.5 million. 3RR78, 88; 11RRPlx28, Plx29; 12RRPlx241.1 In addition

to his home in Corpus and his ranch, Jack owned a house in Ireland, an airplane, a

large coin collection, a collection of valuable jewels, and bank accounts located all

over the world. 3RR85-86, 172-73.

          Jack was married four times, but was single when he died. 3RR78-79. He

had no children. 3RR78-79. Jack’s nearest relatives were his only brother, Richard

T. Archer, and Richard’s six children: Michael, John, David, Carol, Sherri, and

Karen. 2

          The Archer family was close-knit. For more than twenty years before Jack’s

stroke, Jack and Richard’s family spent the majority of holidays together either at

Jack’s ranch, at his home in Corpus, or at Richard’s home in Tyler. 3RR77-78, 83-

84; 4RR70. Jack remained close to the Archer children’s mother, Joanne, even after

she and Richard divorced. 3RR84; 4RR70.




1
 Plaintiffs’ Exhibit 241 is not in numerical order in the Reporter’s Record. App. C. It is found before
Plx222.
2
    Richard died while this lawsuit was pending.
                                                   3
          The Archer children were also very close to their Uncle Jack. 3RR83-84. Jack

considered the Archer children as “part his children.” 4RR71. Similarly, the Archer

children saw their Uncle Jack as a second father. 3RR88. Each Archer child had

particular activities they enjoyed doing with Uncle Jack. 3RR83-84. The Archer

children always knew that Jack wanted the ranch to stay in the family. 3RR103.

Appellant Ted Anderson admitted that Jack “really liked his nieces and nephews.”

7RR60.

          Jack and Richard established a trust for the Archer children, known as the

“ADI Trust.” 3RR89-90, 94-95; 11RRPlx3. Richard was the trustee of the ADI

Trust and the Archer children were the beneficiaries. 3RR89, 95. The Archer

children did not receive regular distributions from the trust. 3RR89. Instead, the

trust was used for significant expenses such as college tuition or down payments on

houses when the Archer children became adults. 3RR89-90.3

          Jack’s life-long estate plan: Jack’s fondness for his brother and his nieces

and nephews was reflected in his estate planning. In his 1991 Last Will and

Testament, Jack left the bulk of his estate, including his ranch, to Richard and

Richard’s six children, five of whom are Appellees/Cross-Appellants in this case.4



3
    Attached as Appendix D is a timeline of Events. 12RRPlx233. App. D.
4
    Michael Archer is not a party to this case. 3RR74-75.



                                                      4
3RR99-100, 101; 11RRPlx9 at 2-3 (“1991 Will”). Jack’s 1991 Will also designated

twelve charities to split sixty percent of his mineral interests.      3RR100-01;

11RRPlx9 at 9. The 1991 Will named Richard as executor. 11RRPlx9 at 4. Jack

also named Richard as primary beneficiary of his life insurance policies and bank

accounts. 3RR92-93; 11RRPlx2, Plx4-6, Plx8.

      Jack’s stroke. On August 25, 1998, at the age of 71, Jack suffered a

debilitating, large right hemisphere stroke, leaving him physically impaired and

mentally incapacitated.   4RR148; 11RRPlx39 at PLF089274, Plx88.           Medical

experts described the stroke as “very severe,” “very significant,” and one that left

Jack “very impaired.” 4RR148, 159, 227. After his stroke, Jack remained in the

hospital for three weeks and then went to a rehab hospital before returning to his

home. 3RR108; 11RRPlx39.

      Following Jack’s stroke, Richard and the Archer children went to Corpus

Christi to assist with Jack’s care. 3RR105-06. Richard went to Corpus Christi to

care for Jack seventeen times from the date of his stroke until the early summer of

1999. 7RR85; 11RRPlx10. Richard had Jack’s house modified, obtained a van to

transport him, and found caregivers for Jack.        3RR106, 110, 111; 7RR85;

11RRPlx11. The Archer children also went to Corpus Christi to help in the months

after Jack’s stroke. 3RR106, 110.




                                         5
      Ted Anderson initiates process to disinherit the Archers. Within weeks

after Jack’s stroke, Ted Anderson began a series of actions that caused Jack to sign

new estate planning documents that disinherited the Archers.

      First, on September 24, 1998, while Jack was still in the rehab hospital after

his stroke, Ted, who was an attorney, drafted and caused Jack to sign two powers of

attorney. 6RR103; 7RR52, 64; 11RRPlx139, Plx140, Plx148. The durable power

of attorney designated Ted as Jack’s attorney-in-fact with very broad powers.

11RRPlx139. The medical power of attorney gave Ted the power to make medical

decisions for Jack. 6RR109, 111; 11RRPlx140.

      Ted later claimed to never have needed the durable power of attorney.

According to Ted, “I really haven’t had to use it. Jack signed everything we needed

signed.” 7RR55; 11RRPlx112 at 25. Ted, however, regularly used the medical

power of attorney to communicate with Jack’s doctors. 11RRPlx53, Plx54, Plx67.

      On the day Jack signed the powers of attorney, Jack had reported to the health

care providers that he had been working at this ranch in Blanco all day and that he

had not spent the night in the hospital. 6RR104; 11RRPlx43 at PLF083957. Neither

of Jack’s statements was true. Medical evidence also showed that, soon after he

signed the powers of attorney, Jack expressed confusion about the documents he had

signed. 4RR201-202; 11RRPlx43 at PLF083938.




                                         6
      One of the Archers’ medical experts opined, that based on the severity of his

stroke as reflected in the medical records dated September 24, 1998, Jack did not

have capacity. 4RR200. Further, Appellee Carol Archer Bugg visited her uncle

while he was in the rehab hospital and observed that Jack was not in any condition

to make decisions on his own. 3RR110.

      In December 1998, Ted obtained the original of Jack’s 1991 Will from the

attorney who drafted it. 6RR111-12; 11RRPlx141. Ted then made his first attempt

to disinherit the Archers. In early 1999, Ted tried to get Jack to place 600 acres of

his ranch in a charitable remainder trust. 6RR122-24; 11RRPlx145. Putting Jack’s

ranch into a charitable remainder trust would have disinherited the Archers.

6RR132. Jack, however, managed to communicate to Ted that he did not want to

sell the ranch. 11RRPlx145.

      Ted also began alienating the Archer family from Jack. By early 1999, the

Archers’ access to Jack was being limited. 3RR127. In February 1999, Jack

purportedly typed and signed a letter to Richard asking Richard not to visit him.

11RRPlx51. Jack, however, never told Richard not to visit. 7RR82-83. Expert

testimony indicated the signature on the letter was not Jack’s and, moreover that,

after his stroke, Jack could not have been able to type. 4RR203-04; 11RRPlx44.

The Archers’ phone calls to Jack were not returned. 3RR129. They received no

information on his medical condition during the spring of 1999. Id. The Archers


                                         7
also discovered that the caregivers Richard hired had been fired. 7RR85. By the

end of the summer of 1999, the Archer family did not know where Jack was living.

3RR136. The Archers even hired a private investigator to locate Jack, but to no avail.

3RR137.

      Meanwhile, Ted continued his scheming. Ted hired two estate planning

attorneys, Buster Adami and Richard Leshin, to assist him in changing Jack’s estate

plan. 6RR110-11, 127; 11RRPlx142, Plx143, Plx146.              In June 1999, Adami

prepared a codicil to Jack’s 1991 Will that added J.R. Hamilton and T. Mark

Anderson along with Richard as co-executors of Jack’s estate. 11RRPlx147. The

codicil required the three co-executors to act jointly or by majority. Id. In July 1999,

anticipating that the Archers might file a guardianship proceeding, Adami wrote the

Nueces County judges informing them that Jack was managing his affairs through

Ted and encouraging them to not grant an ex parte guardianship. 11RRPlx150. As

detailed below, at Ted’s direction, Leshin prepared the post-stroke wills and trusts

that disinherited the Archers. 6RR120.

      Ted’s efforts to disinherit the Archers by having Jack sell his ranch to charities

continued. This time, however, Ted enlisted his recently hired estate planning

attorneys, Leshin and Adami, to pressure Jack to sell. 6RR128-32; 11RRPlx151;

App. E. In July 1999, Ted wrote Adami about getting Jack to put his ranch in a

foundation for the benefit of the charities. 11RRPlx151. Ted wrote, “[h]e [Jack]


                                           8
may switch and turn but I hope that we can continue to encourage him in this

direction and since Richard [Leshin] helped me with the limited partnership for the

ranch Jack might feel comfortable with suggestions from Richard [Leshin].”

11RRPlx 151. Ted’s letter goes on to speculate about the size of Jack’s estate being

at $3 million.

      Ted surrendered his law license in June 1999. 11RRPlx148. He resigned as

Jack’s attorney-in-fact in November 1999. 11RRPlx153. Neither event, however,

limited Ted’s actions.

        The Archers seek legal advice: Concerned for Jack’s well-being when they

could not locate Jack or find out his condition, the Archers sought legal advice.

3RR132-33. In October 1999, the law firm of Ikard & Golden filed an application

for temporary guardian in Blanco County and got Richard appointed as temporary

guardian of Jack’s person and estate. 3RR140; 11RRPlx14-16. Richard made it

clear, however, that he did not want serve as permanent guardian of Jack’s estate;

rather, he wanted a third party as permanent guardian. 7RR86-87; 11RRPlx20.

      On December 29, 1999, a hearing was held on the Archers’ temporary

guardianship application in Blanco County. 11RRPlx155. Attorneys from four law

firms, including Adami and Leshin, along with a court-appointed attorney ad litem,

represented Jack at the hearing. 11RRPlx155 at 3. In response to the Archers’

request for Jack to testify regarding his wishes, all five of Jack’s attorneys agreed on


                                           9
the record that Jack needed a guardian of his person and his estate. 6RR139-40;

11RRPlx155 at 15-23.

      The agreement for a temporary guardianship meant that all of Jack’s attorneys

agreed that Jack lacked the mental and physical capabilities to care for himself and

to manage his own affairs. 6RR140-42; 11RRPlx160. Seemingly, the matter was

resolved.

      Ted continued his plan to disinherit the Archers. Despite the agreement

for a temporary guardian, and despite his resignation as Jack’s attorney-in-fact under

the power of attorney, Ted continued to seek to change Jack’s estate plan. 6RR135.

      In early January 2000, Ted sought Leshin’s advice on Jack’s estate planning,

and in particular, on how to avoid a future guardianship. 11RRPlx154, Plx157.

Leshin advised that any estate planning would have to wait until Jack was no longer

subject of a guardianship proceeding. 6RR143; 11RRPlx157. Leshin also advised

Ted on a scheme that “will make a contest of the disposition of [Jack’s] assets more

difficult.” 11RRPlx157. According to Leshin, if the temporary guardianship over

Jack were dismissed, Jack’s assets could be transferred to a revocable trust to avoid

a future guardianship and court supervision. 6RR136-37; 11RRPlx154. Jack was

not copied on any of Leshin’s estate planning letters. 11RRPlx154, Plx157.

      To effectuate the estate plan Leshin concocted, on March 16, 2000, Ted fired

all of the attorneys who represented Jack in the Blanco County guardianship who


                                         10
had agreed Jack needed a guardian. 6RR149-50; 11RRPlx162. Ted hired a trial

attorney, Doug Hearne, Sr., who repudiated the agreement that Jack needed a

temporary guardianship. 6RR159; 12RRPlx216, Plx217.

      March 2000 Will. On the same day he fired Jack’s attorneys, Ted sent Jack’s

1991 Will to Leshin. 6RR74; 11RRPlx163. On March 19, 2000, Jack signed the

March 2000 Will that Leshin drafted that left all of Jack’s assets to charities, entirely

disinheriting the Archers.       6RR151; 11RRPlx166.          The March 2000 Will

contemplated that a trust would be established to hold Jack’s assets, but that, if the

trust were not set up before Jack died, all of his assets would go to the charities.

11RRPlx166 at 1. Jack did not read the will before signing it; Leshin read it to him

at the will signing. 7RR30.

      April 2000 Will. Soon after Jack signed the March 2000 Will, Ted directed

Leshin to prepare another will and a trust. 7RR32-33; 11RRPlx170. On April 26,

2000, Jack signed the April 2000 Will, the Jack Archer Trust Indenture (“Trust”),

and several property assignments that transferred all of Jack’s assets into the Trust.

6RR153-54; 11RRPlx171-76. The Trust was to terminate on Jack’s death and its

assets to be distributed among that the twelve named charities. 11RRPlx171 at 2-3.

Ted, who was no longer licensed to practice law, explained the Trust and had Jack

sign the Trust before Leshin arrived at the will signing. 11RRPlx177. According to

Leshin, one of the purposes of the April 2000 Will was to make a will contest even


                                           11
more difficult for the Archers, by increasing the number of wills to challenge.

7RR39; 11RRPlx177.

      For the March 2000 Will, the April 2000 Will, and the Trust, Leshin received

all of his instruction for the document’s terms from Ted. 7RR27-28, 32, 36-38, 41-

42; 11RRPlx165, Plx167. Leshin never talked to Jack about the documents until the

signings. Id. Ted decided when Jack would sign documents and was present for

every signing. 6RR95-96, 156; 7RR43; 11RRPlx167.

      Although he represented Jack for three years, Leshin never had a phone

conversation with Jack or had any written correspondence with him. 7RR26-27.

Leshin’s file and billing records confirmed that his only communications on Jack’s

matter were with Ted. 6RR113-14, 118-20, 135; 11RRPlx142, Plx144, Plx149,

Plx152, Plx158, Plx161, Plx169, Plx182, Plx184-87, Plx191, Plx195, Plx196. On

the occasions when Leshin met with Jack, Ted was always present. 7RR26.

      Although Ted was Leshin’s source of information on Jack, Leshin did not

know that Jack had had a stroke. 7RR20. Leshin made no assessment of Jack’s

capacity when Jack signed the estate planning documents.         6RR158; 7RR37.

Instead, Leshin relied solely on Ted’s representations regarding Jack’s capacity.

7RR21, 37.

      Contrary to Leshin’s testimony that Ted orchestrated all of Jack’s post-stroke

wills, and that the records showed that Ted’s name was “all over everything,” Ted


                                        12
contended that he had nothing to do with the wills. 6RR71-73, 61; 7RR63. When

pressed in his deposition about his involvement, Ted refused to answer the questions.

7RR67-68.

      In May 2000, Jack signed a new durable power of attorney and medical power

of attorney naming Ted as attorney-in-fact and specifically disqualified the Archer

family from serving. 6RR159-60; 11RRPlx179, Plx180.

      Jack’s medical condition around the 2000 will signings. Jack signed the

March 2000 Will on March 19, 2000, and the April 2000 Will and Trust on April

26, 2000. 11RRPlx166, Plx171-76. Jack was admitted to an inpatient psychiatric

hospital from March 28 through April 19, 2000. 7RR33; 11RRPlx71-74. The

psychiatric hospital notes described Jack’s symptoms as “delusional paranoia” and

being “oriented to person only.” 11RRPlx73 at PLF069710, Plx74 at PLF069715.

While in the psychiatric hospital, Jack reported (incorrectly) that the year was 1928,

that he was in his thirties, that his parents were still living, and that he was in Ohio.

11RRPlx71 at PLF038490. The psychiatric hospital notes are replete with entries

describing Jack as confused, disoriented, and having delusional and suicidal

thoughts. 11RRPlx71 at PLF038490, PLF038492, PLF038493, PLF038494. One of

Jack’s doctors, Dr. Still, opined that Jack was incapacitated in May 2000. 7RR88-

89.




                                           13
      Jack was again admitted to a psychiatric hospital in June 2000. 11RRPlx81,

82. The records are filled with statements that Jack was suffering from paranoia,

confusion, disorientation, and having delusional thoughts.           11RRPlx82 at

PLF064633, PLF 064634, PLF064637, PLF064638.

      Leshin testified that he did not know that Jack was admitted to a psychiatric

hospital for delusions and paranoia only nine days after signing the March 2000 Will.

7RR31, 35-36. Further, when Jack signed the new estate planning documents in

March and April of 2000, Jack had had no contact with his family and was only

around Ted Anderson and Pam Rucker, a former girlfriend. 3RR153-54.

      Bexar County Guardianship and related litigation. By repudiating the

Blanco County temporary guardianship, Ted forced the Archers to file a new

guardianship proceeding. 11RRPlx18. In May 2000, David Archer and Carol

Archer Bugg filed the Bexar County guardianship proceeding, seeking an

independent person as guardian of Jack’s estate and person.             3RR144-46;

11RRPlx18. Jack’s attorneys contested the guardianship, contending Jack was

competent and did not need a guardianship. 3RR147.

      While the Bexar County guardianship was pending, the Archers discovered

for the first time, that they had been disinherited and that the several people had

taken money from Jack since his stroke. 6RR23; 11RRPlx21, 12RRPlx218. In




                                         14
particular, the Archers learned that the attorneys Ted hired were being paid from

Jack’s assets without court approval. 7RR106; 11RRPlx21.

      Medical evidence detailed impact of Jack’s stroke. During the guardianship

proceeding, the Archers also learned about the extent of Jack’s medical condition.

      In addition to the psychiatric hospital records, Jack’s medical records

chronicled the severe impact that his August 1998 stroke had on his mental capacity.

One of Jack’s treating physicians, Dr. Faulk, wrote in November 1999 that Jack was

“obviously unable to control his estate in his current condition, and will require

assistance in having his wishes carried through.” 11RRPlx68. A court-appointed

doctor, Dr. Lichtenstein, who examined Jack in September 2000, reported that Jack’s

stroke rendered him mentally and physically incapacitated and in need of a guardian.

11RRPlx88. Dr. Lichtenstein examined Jack again in June 2001 and reaffirmed his

earlier opinion. 11RRPlx104. Dr. Still testified that in May 2001 Jack was not able

to speak. 7RR91. Dr. Faulk, opined in June 2001 that Jack was “incapacitated to

handle any of his affairs” “by any standard medical or legal.” 11RRPlx105. Jack’s

in-chambers interview with the Bexar County probate judge in January 2001 and his

July 2001 deposition further demonstrated Jack’s severely diminished capacity.

4RR220-21; 11RRPlx27, 11RRPlx93 at 61-86.

      The Archers’ medical expert witnesses, Dr. Richard Coons and Dr. William

Dailey, both opined that Jack was incapacitated and in need of a guardian from the


                                        15
date of his stroke in August 1998 onward.          4RR200, 248-49; 5RR109-10;

11RRPlx105. Dr. Dailey testified that Jack’s lack of mental capacity would have

been obvious to lay people who came in contact with Jack. 4RR276.

      Probate court appoints temporary guardians. The probate court appointed

Pam Rucker, Jack’s former girlfriend, as temporary guardian of his person.

11RRPlx189. As temporary guardian, Pam refused to allow the Archers to visit Jack

and forced the family to seek court-ordered visitation to see their uncle. 3RR151;

7RR120-21.

      The probate court appointed J.R. Hamilton as temporary guardian of Jack’s

estate. 11RRPlx190. Hamilton’s April 2001 accounting listed Jack as having no

assets, and that all of his assets were held in trust. 12RRPlx218. The accounting

gave the Archers their first indication that they had been disinherited. 3RR149;

12RRPlx218.

      May 2001 Will. While the Bexar County guardianship proceeding was

pending, Ted had Jack sign another will and an amendment to the Trust.

11RRPlx192, Plx194. The May 2001 Will and the trust amendment removed

Hamilton as executor and successor trustee, and replaced him with Ted’s son, T.

Mark Anderson.       6RR160-61; 11RRPlx192, Plx194.          Jack signed another

guardianship directive that disqualified the Archer family from serving as guardian.

11RRPlx193.


                                        16
      Archers change their attorney’s fees agreement. After learning that they had

been disinherited, the Archers changed their attorney’s fee arrangement with their

law firm from hourly to a contingent fee in November 2001.                  6RR22. The

contingency fee was based on getting the Archers reinstated as beneficiaries. It

reinstated, the law firm would receive a percentage of the value of Jack’s estate,

including monies brought into Jack’s guardianship estate through lawsuits against

Ted and the attorneys he had hired. 6RR23-26; 11RRPlx22 at 2-3.

      Lawsuits filed in the Bexar County guardianship. The Archers filed

several lawsuits within the guardianship to challenge the validity of the Trust and to

try to recover the hundreds of thousands of dollars that had been taken from Jack

since his stroke. 3RR154-55; 4RR38-39.

      Lawsuit over the validity of the Trust and settlement with the charities. The

existence of competing wills – one leaving Jack’s estate to the Archers and three

wills and a trust leaving Jack’s entire estate to the charities – set the stage for a will

contest. 6RR64-65, 68-69. Rather than pursue a costly, contentious will contest, the

Archers filed a declaratory judgment action to determine the validity of the Trusts

while Jack was still alive. 3RR157-58; 6RR70-71; 11RRPlx23.                  Contrary to

Appellants’ assertion, the Archers did not “sue the Christian Charities.” Appts. Br.

at 14. As named beneficiaries in the Trust, the charities were necessary parties to the

declaratory judgment action. 6RR62-63.


                                           17
      Lawsuits against parties who had wrongfully taken money from Jack: The

Archers filed three lawsuits against individuals who had taken advantage of Jack

after his stroke. These lawsuits were filed in November 2001 by Appellee Sherri

Archer Loveday, derivatively on Jack and his guardianship estate’s behalf, against

the following defendants 3RR154-55; 4RR38-39; 7RR121-22:

      1)     Hearne Sr., Leshin, Adami, and Anderson for legal malpractice
             12RRDx12;

      2)     Ted Anderson and Pam Rucker for breach of fiduciary duty and for
             intentional infliction of emotional distress 12RRDx13; and

      3)     J.R. Hamilton, as temporary guardian of Jack’s estate, and the bond
             company for breach of duty by failing to obtain court approval of
             expenses and for paying expenses from Jack’s trust 7RR117-18, 123;
             12RRDx14.

      Lawsuit for tortious interference with inheritance. The Archers also filed a

lawsuit for tortious interference with inheritance against Ted, Hearne Sr., and Leshin

in February 2003. CR98-117. The probate court abated the lawsuit until after Jack

died because generally, a tortious interference with inheritance claim does not ripen

until death. 6RR15-17.

      Contrary to Appellants’ characterization, the Archers were very successful in

the Bexar County guardianship and related litigation. Appts. Br. at 10. First, as a

result of the lawsuit against Pam Rucker, she resigned as guardian, and the probate

court appointed Appellee Carol Archer Bugg as Jack’s permanent guardian of the

person.; 3RR164-6; 7RR123-24; 11RRPlx25. The Archers also got J.R. Hamilton
                                         18
removed as temporary guardian of Jack’s estate. 7RR117-18, 120. The probate

court granted the Archers’ request for an independent guardian of the estate and

appointed Robert McIntyre as guardian of Jack’s estate. 3RR166; 7RR102-03;

12RRPlx240.

       Second, by challenging the validity of the post-stroke Trust and settling with

the charities, the Archers nullified the estate-planning documents that Ted, and

others working with Ted, had Jack sign that disinherited the family. 7RR102-03.

The Archers and the charities reached a settlement before Jack died and thus,

avoided a will contest. 4RR35-36; 11RRPlx23. The charities agreed to not file

Jack’s post-stroke wills for probate, leaving Jack’s 1991 Will in place. 11RRPlx23

at 9-13. The Archers had to give much more to the charities than Jack’s 1991 will

left to the charities. The Archers paid the twelve designated charities $588,054 over

and above what Jack’s 1991 Will left them. 3RR159-61; 11RRPlx24, Plx30,

12RRPlx2415.

       Finally, the lawsuits filed against Hearne Sr., Adami, and Hamilton resulted

in hundreds of thousands of dollars being returned to Jack’s guardianship estate in

settlements with. 6RR60-62; 12RRPlx241.




5
 Plaintiffs’ Exhibit 241 is not in numerical order in the Reporter’s Record. App. C. It is found before
Plx222.
                                                  19
      Remainder of Jack’s life. As a result of the Archers’ efforts, Jack returned

to living on his ranch, near his brother Richard. 7RR102-03. Carol remained his

guardian for the rest of his life. 3RR166-68. Jack was never put in a psychiatric

hospital after Carol became his guardian. 3RR168. After the Archers moved Jack

back to his ranch, Jack never heard from Ted. 3RR169.

      Jack died on April 17, 2006. 3RR170; 11RRPlx28. Jack’s 1991 Will was

probated and the Archers received the inheritance Jack intended for them to have.

3RR174; 11RRPlx27, Plx36. Regaining their inheritance, however, came at a

significant monetary cost.

      The Travis County case. In the underlying lawsuit here, the Archers sought

the difference between what they actually received from Jack’s estate and what they

would have received had Ted not tortiously interfered. CR654-710. The Archers

sought as damages the amount paid to get themselves reinstated as beneficiaries: 1)

their attorney’s fees paid in the Bexar County litigation of $2,865,928 and 2) the

amount paid to settle with the charities of $588,054, for a total of $3,453,982.

6RR79; 7RR102-03; 12RRPlx241. App. C.

      The Archers originally brought the tortious interference lawsuit in the Bexar

County guardianship.     Once Jack died, the Bexar County probate court lost

jurisdiction over the tortious interference lawsuit and dismissed it. 6RR15-16. The




                                        20
   Archers then refiled in Travis County based on defendant Doug Hearne Sr.’s

   residence in Travis County. 6RR15-17; CR5-25.

         Ted died on March 28, 2006, while this lawsuit was pending. T. Mark

   Anderson and Christine Anderson, the Co-Executors of Ted M. Anderson’s Estate,

   substituted as defendants.

         May 2013 trial. After settlements with Leshin and Hearne Sr.’s estate, the

   Archers proceeded to trial on May 13, 2013 against T. Mark Anderson and Christine

   Anderson, as co-executors of Ted’s estate. On May 23, the jury returned its verdict

   and found that Ted tortiously interfered with the Archers’ inheritance. Appellants

   do not dispute this finding on appeal. The jury awarded damages as follows:

   Plaintiff’s Uncontroverted Evidence of                  Jury’s Damage Award
                   Damages
    Attorney’s fees &                               Attorney’s fees &    $2,865,928 – 30%
   litigation expenses        $2,865,928           litigation expenses     = $2,006,150
Settlement with charities                            Settlement with
                              + $588,054                 charities               $0

                  $3,453,982                                      $2,006,150

   CR1470-71; 6RR42, 56-58, 11RRPlx24; 12RRPlx241. App. B, C.

         Post-verdict motions. The Archers filed a motion for partial JNOV, seeking

   the $588,054 paid to the charities and the full amount of their attorney’s fees paid in

   the prior litigation. CR749-1197; 1140-96; 1198-1208. The district court denied the

   Archers’ motion on July 17, 2013. CR1209; App. H.


                                             21
      Appellants also filed motions for partial JNOV, conceding that the Archers

proved the settlement with the charities of $588,054. CR1210-1218, 1264-1275;

App. I, J.

      The district court implicitly granted Appellants’ motion for JNOV, and signed

a Final Judgment that awarded the Archers $588,054 in addition to the $2,006,150.

CR1470-1471; App. B. Applying settlement credits and prejudgment interest, the

district court’s Final Judgment awarded the Archers $2,564,899.90 plus interest.

CR1470-1471; 1461; App. B, K.

      Appellants filed their notice of appeal. CR 1507-1509. The Archer Family

filed their notice of appeal to raise their cross-issues, seeking the full amount of their

damages proved as a matter of law. CR1510-1512.

      Appellants filed no supersedeas bond.




                                           22
                        SUMMARY OF THE ARGUMENT

       Appellants raise four primary issues on appeal. Appellants have waived in

the district court or in their brief on appeal at least some part of their argument under

each issue.

       The jury found that Ted tortiously interfered with the Archers’ inheritance.

That fact finding is not challenged on appeal. Instead, Appellants contend that Ted’s

tortious conduct is not actionable. Contrary to Appellants’ argument, Texas law has

long recognized a cause of action for tortious interference with inheritance when a

person by fraud, duress, or other tortious means prevents another person from

receiving an inheritance from a third party that she would otherwise have received.

       The district court correctly awarded the Archers their attorney’s fees incurred

in prior litigation as a result of Ted’s tortious conduct as damages. As Texas

Supreme Court precedent holds, attorney’s fees and litigation expenses incurred in

prior litigation with a third party are recoverable as actual damages.

       In addition to their attorney’s fees, the district court properly awarded an

additional $588,054 to jury’s verdict of $2,006,150. Appellants conceded in their

post-verdict motions that the Archers established the $588,054 as the amount paid

to settle with the charities.

       Finally, the district court properly calculated prejudgment interest. Well-

established law prohibits tolling of prejudgment interest as argued by Appellants.


                                           23
        By cross issue, the Archers seek the entire amount of their attorney’s fees paid

in the prior litigation that were proved as a matter of law. Appellants offered no

evidence or expert witness to controvert the Archers’ attorney’s fees evidence.

        For these reasons and those set out below, the district court correctly signed a

final judgment on liability. The Archers request modification and rendition of

judgment on their full damages proved as a matter of law. Alternatively, the Archers

request the Court affirm the Final Judgment on liability and damages.

                            ARGUMENT AND AUTHORITIES

I.      The Archers followed well-established Texas law when they sued Ted
        Anderson for tortious interference with their inheritance. [Responsive to
        Issue 1]

        Appellants do not challenge, and thus concede, that Ted tortiously interfered

with the Archers’ inheritance. Appellants urge this Court to conclude, however, that

there is no cause of action for tortious interference with inheritance. Appellants’

briefing error waives this Court’s review. Even considering Appellants’ waived

argument, Texas law has long recognize tortious interference with inheritance as a

cause of action.6




6
  Appellants only filed a general denial. CR62-65. Appellants raised the affirmative defense of whether
tortious interference with inheritance is a recognized cause of action for the first time in their amended
motion for partial JNOV filed July 25, 2013, more than two months after the verdict. CR1264-1275. App.
J.


                                                   24
      A.     Appellants’ briefing error waives Issue 1.

      According to Appellants, 1) Texas law does not recognize a cause of action

for tortious interference with inheritance, and 2) if the tort exists, it does not apply

to attorneys. Appellants have waived both arguments.

      In support of their first argument, Appellants cite no authority for their

contention that tortious interference with inheritance does not exist. TEX. R. APP. P.

38.1(i). Their only authorities cited—King v. Acker and Meduna v. Holder—

demonstrate that the tort does exist. Appellants make no argument to distinguish

these and other controlling authority. Appts. Br. at 21. Marin Real Estate Partners,

L.P. v. Vogt, 373 S.W.3d 57, 81 (Tex. App.—San Antonio 2011, no pet.). Thus, this

argument is waived.

      In their second argument that tortious interference with inheritance does not

apply to attorneys, Appellants rely on evidence from the appellate record, but do not

cite to any place in the over 9,000-page record. (The Clerk’s Record is 2917 pages

and the Reporter’s Record is 6311 pages).        Appts. Br. at 21-23. Accordingly,

Appellants have waived Issue 1. See TEX. R. APP. P. 38.1(i) (brief must contain a

clear and concise argument with appropriate citation to authorities and to the record).

The failure to provide substantive analysis or cite authority waives the complaint.

Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d at 81. This Court has no duty


                                          25
to review a voluminous record without guidance from an appellant to determine if

an issue raised constitutes reversible error. Keyes Helium Co. v. Regency Gas Servs.,

L.P., 393 S.W.3d 858, 861 (Tex. App.—Dallas 2013, no pet.); Bullock v. American

Heart Ass’n, 360 S.W.3d 661, 665 (Tex. App.—Dallas 2012, pet. denied) (appellate

court has no duty or right to perform an independent review of the record and

applicable law to determine whether there was error).

       Accordingly, this Court should overrule Issue One. Alternatively, if this

Court considers Issue 1, both of Appellants’ arguments fail.

       B.      Appellants concede Ted tortiously interfered with the Archers’
               inheritance.

        The jury found that Ted Anderson tortiously interfered with the Archers’

inheritance from Jack Archer. CR646-53, 650. App. A. Appellants do not challenge

the jury’s liability finding. Appts. Br. at 21-23.7 Unchallenged jury findings are

binding on appeal. Wilson v. Texas Parks & Wildlife Dept., 853 S.W.2d 825, 832

(Tex. App.—Austin 1993), rev’d on other grounds, 886 S.W.2d 259 (Tex. 1994);

Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d at 81. Thus, Issue 1 is a legal

question answered by well-established law in Texas that requires no review of the

evidence.




7
 Appellants further cannot raise sufficiency in their Reply Brief. TEX. R. APP. P. 38.3; Sunbeam Envtl.
Servs., Inc. v. Texas Workers’ Comp. Ins. Facility, 71 S.W.3d 846, 851 (Tex. App.—Austin 2002, no pet.).
                                                  26
      C.     Texas law recognizes a cause of action for tortious interference with
             inheritance.

      Appellants fail to cite a single case to support their argument that the tortious

interference with inheritance does not exist. Appts. Br. at 21-23.

      Tortious interference with inheritance was first recognized in King v. Acker,

725 S.W.2d 750, 754 (Tex. App.—Houston [1st Dist.] 1987, no writ). App. F.

There, King’s second wife forged a power of attorney and a will, while King was in

a coma and then attempted to transfer $400,000 in stock from King to herself. Id.

751-52. A jury found that the second wife tortiously interfered with children’s and

first wife’s inheritance. Id. at 752.

      On appeal, the court held “that a cause of action for tortious interference with

inheritance rights exists in Texas.” Id. at 754. The Houston First Court of Appeals

in part relied on the Restatement of Torts which states that,

      One who by fraud, duress or other tortious means intentionally prevents
      another from receiving from a third person an inheritance or gift that he
      would otherwise have received is subject to liability to the other for loss
      of the inheritance or gift.

Id. (citing RESTATEMENT (SECOND)        OF   TORTS §774B (1979)). The court also

recognized that in equity, “the law affords a remedy for every invasion of a legal

right.” King v. Acker, 725 S.W.2d at 754 (citing Chandler v. Welborn, 156 Tex. 312,

319, 294 S.W.2d 801, 807 (1956)) (“where there is a right, there is a remedy”).


                                             27
      In the twenty-eight years since King v. Acker, neither the Texas Supreme

Court, nor any court of appeals, has found that tortious interference with inheritance

is not a valid cause of action.

      This Court has twice recognized the tort.        In Neill v. Yett, this Court

acknowledged the holding in King v. Acker, but did not comment substantively on

the tort because the cause of action was barred by limitations. 746 S.W.2d 32, 35

(Tex. App.—Austin 1988, writ denied). In Meduna v. Holder, this Court set out the

jury instruction for a tortious interference claim. No. 03-06-00484-CV, 2008 WL

1911184 at *2 (Tex. App.—Austin Apr. 30, 2008, pet. denied) (mem. op.) (trial court

submitted issue on whether party had “tortiously interfered with Ruth's inheritance-

‘by undue influence, fraud, or other wrongful means, intentionally prevent[ing]

another from receiving an inheritance or gift that she would otherwise have

received.’”).

      Other courts of appeals have likewise recognized tortious interference with

inheritance. In re Estate of Valdez, 406 S.W.3d 228, 233 (Tex. App.—San Antonio

2013, pet. denied); In re Estate of Russell, 311 S.W.3d 528, 535 (Tex. App.—El

Paso 2009, no pet.); Brandes v. Rice Trust, Inc., 966 S.W.2d 144, 149-50 (Tex.

App.—Houston [14th Dist.] 1998, pet. denied). The United States Supreme Court

has also concluded that Texas law recognizes tortious interference with inheritance.

Marshall v. Marshall, 547 U.S. 293, 313 (2006).


                                         28
      Finally, the Texas Estates Code confirms the existence of tortious interference

with inheritance. Estates Code § 54.001 provides that “the filing or contesting in

probate court of a pleading relating to a decedent’s estate does not constitute tortious

interference with inheritance of the estate.” TEX. ESTATES CODE § 54.001(a) (former

Probate Code §10C). Section 54.001(a) permits a party to assert a will contest

without the proponents of the challenged will accusing the contestants of tortious

interference with inheritance. Section 54.001(a) would be meaningless if tortious

interference with inheritance was not a viable, recognized cause of action in Texas.

See Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex.

2008) (Court must not interpret a statute in a manner that renders any part of the

statute meaningless or superfluous); Rogers v. Texas Bd. of Architectural Examiners,

390 S.W.3d 377, 387 (Tex. App.—Austin, no pet.) (same).

      D.     Legal malpractice privity rule does not apply in tortious
             interference with inheritance cases.

      In their second argument, Appellants contend that a tortious interference with

inheritance claim cannot be brought against an attorney. Appts. Br. at 21-23.

Appellants rely on a single case, Barcelo v. Elliott, that has no application here.

      In Barcelo v. Elliott, the Texas Supreme Court held in a legal malpractice case

that an attorney drafting a will or a trust owes no duty of care to the beneficiaries.

Barcelo v. Elliott, 923 S.W.2d 575, 579 (Tex. 1996). The rule in Barcelo applies



                                          29
when 1) an attorney who 2) drafted a will or trust 3) is being sued for legal

malpractice. None of these facts is present here.

      First, when the Archers sued Ted, he was no longer an attorney. He had

resigned his license to practice law four years before the Archers brought their

tortious interference lawsuit. 11RRPlx148. Second, Ted did not draft the wills or

trusts at issue. 6RR164-65. It was undisputed that Leshin prepared the post-stroke

wills and trusts that Jack signed. 11RRPlx167, Plx177. Third, the Archers did not

sue Ted for legal malpractice; they sued Ted for tortious interference with

inheritance. CR98-117, 654-719. Finally, tortious interference with inheritance is

not based on the existence of a duty. See King v. Acker, 725 S.W.2d at 752-54 (duty

is not an element of tortious interference with inheritance).

      Accordingly, because tortious interference with inheritance is long-

recognized in Texas jurisprudence, this Court should overrule Issue 1.

II.   The Archers are entitled to their attorney’s fees and litigation expenses
      incurred in the Bexar County litigation as damages. [Responsive to Issues
      2-4]

      Appellants raise three arguments to the district court’s award of attorney’s

fees and expenses paid by the Archers in prior litigation as damages: 1) attorney’s

fees cannot be recovered as damages, (Appts. Br. at 23-27); 2) the Archers had a

duty to segregate attorney’s fees and failed to meet their burden, (Appts. Br. at 27-




                                          30
29); and 3) the evidence is legally and factually insufficient to show the

reasonableness and necessity of the Archers’ attorney’s fees, (Appts. Br. at 29-31).

      As set out below, well-established Texas law refutes Appellants’ first

argument. Appellants have waived their second and third arguments.

      A.     Texas jurisprudence recognizes recovery of attorney’s fees
             incurred in prior litigation as damages.

      Because of Ted’s tortious conduct in having Jack change his estate plan and

disinherit the Archers, the Archers had to hire attorneys and pursue litigation to

reinstate their uncle’s original estate plan set out in Jack’s 1991 Will. The Archers

put on undisputed evidence that they incurred $2,865,928 in attorney’s fees and

litigation expenses in the Bexar County guardianship litigation to get themselves

reinstated as Jack intended. 6RR42, 52-53; 12RRPlx241. App. C. Texas law allows

the Archers to recover those attorney’s fees and litigation expenses incurred in prior

litigation with a third party as actual damages. Lesikar v. Rappeport, 33 S.W.3d

282, 306 (Tex. App.—Texarkana 2000, pet. denied).

      Texas follows the “American Rule” that attorney’s fees are only recoverable

if provided by contract or by statute. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v.

National Dev. & Research Corp., 299 S.W.3d 106, 120-23 (Tex. 2009); New

Amsterdam Cas. Co. v. Texas Indus., Inc., 414 S.W.2d 914, 915 (Tex. 1967). The

American Rule does not apply, however, where a party is seeking attorney’s fees

incurred in a prior case that were caused by a third party. Akin, Gump, 299 S.W.3d
                                         31
at 120; Noell v. City of Carrollton, 431 S.W.3d 682,715-16 (Tex. App.—Dallas

2014, pet. denied). Attorney’s fees may be recoverable, however, under equitable

principles. Nationwide Mut. Ins. v. Holmes, 842 S.W.2d 335, 341 (Tex. App.—San

Antonio 1992, writ denied).

       The Texas Supreme Court in Turner v. Turner addressed an equitable

exception to the general rule called the “tort of another exception.” 385 S.W.2d 230,

233 (Tex. 1964). App. G. Under the “tort of another exception,”

       One who through the tort of another has been required to act in the
       protection of his interests by bringing or defending an action against a
       third person is entitled to recover reasonable compensation for loss of
       time, attorney fees and other expenditures thereby suffered or incurred
       in the earlier action.

RESTATEMENT (SECOND) OF TORTS §914 (1979); see also Turner, 385 S.W.2d at 234.

       Under Turner, a plaintiff can recover attorney’s fees as damages if: 1) the

plaintiff was involved in litigation with a third party (the “first suit”); 2) the plaintiff

incurred reasonable and necessary attorney’s fees in good faith during the litigation;

3) the litigation was the natural and proximate consequence of defendant’s tortious

conduct; and 4) the plaintiff sought recovery of attorney’s fees from defendant in a

later suit (the “second suit”). See Turner, 385 S.W.2d at 234; see also RESTATEMENT

(SECOND) OF TORTS § 914(2) (1979); Standard Fire Ins. v. Stephenson, 963 S.W.2d

81, 90 (Tex. App.—Beaumont 1997, no pet.); Massey v. Columbus State Bank, 35

S.W.3d 697 (Tex. App.—Houston [1st Dist.] 2001, pet. denied).


                                            32
      Applying the rule in Turner, the Archers were involved in litigation with third

parties [the “first suit” is the declaratory judgment action involving the charities in

the Bexar County guardianship] (11RRPlx23); the Archers incurred reasonable and

necessary attorney’s fees in good faith during the litigation [through a contingency

fee contract] (12RRPlx241); the prior litigation was a natural and proximate

consequence of Ted’s tortious conduct in interfering with Jack’s estate plan and

causing Jack to disinherit the Archers entirely in favor of the charities (3RR76-78);

and the Archers sought recovery of the attorney’s fees and other monies they were

forced to pay in the prior litigation from Ted in a later lawsuit [the “second suit” is

the underlying lawsuit] (CR654-719).

      Numerous cases have cited the rule in Turner and awarded attorney’s fees as

damages. In Standard Fire Ins. v. Stephenson, a surviving spouse sued her deceased

husband’s workers’ compensation carrier for bad faith following the husband’s

work-related death. The wife prevailed in the bad faith case (the second suit) and

was awarded as damages her attorney’s fees paid to pursue the workers’

compensation claim (the first suit). 963 S.W.2d at 90 (citing Texas Beef Cattle Co.

v. Green, 883 S.W.2d 415, 430 (Tex. App.—Beaumont 1994), rev’d on other

grounds, 921 S.W.2d 203 (Tex. 1996).

      In Massey v. Columbus State Bank, the plaintiff incurred over $100,000 in

attorney’s fees in defending false and defamatory complaints lodged by the


                                          33
defendant (the first suit.) Citing Turner, the court of appeals concluded that “as a

result of these wrongful acts, the Bank was forced to spend $104,000 responding to

and defending against all of these complaints and grievances. The trial court

properly allowed these attorney’s fees as an element of actual damages.” (in the

second suit). 35 S.W.3d at 702.

        In Arlitt v. Patterson, following a six-year will contest, the family sued their

attorneys for negligence in connection with the attorney’s estate-planning services.

Citing Turner, the court of appeals recognized that “contractual or statutory

authorization is not necessary to recover attorney’s fees and costs as damages.” 995

S.W.2d 713, 721 (Tex. App.—San Antonio 199, pet. denied), disapproved on other

grounds by, Belt v. Oppenheimer, Blend, Harrison & Tate, 192 S.W.3d 780 (Tex.

2006). The court reversed a summary judgment denying the attorney’s fees.

      Other cases recite the rule, but conclude the party requesting attorney’s fees

as damages failed to meet one of the requirements. This Court, citing Lesikar and

Massey, recognized that, in equity, attorney’s fees may be awarded as damages.

Pacesetter Pools, Inc. v. Pierce Homes, Inc., 86 S.W.3d 827, 833-34 (Tex. App.—

Austin 2002, no pet.). The Court, however, concluded that equitable principles did

not apply where one tortfeasor sought to recover its attorney’s fees from another

tortfeasor. Because attorney’s fees as damages must involve an innocent party, the

attorney’s fees were denied. Id.


                                          34
      In Lesikar v. Rappeport, the defendants breached fiduciary duties owed to the

plaintiff by wrongfully transferring oil and gas leases to themselves. Lesikar, 33

S.W.3d at 306. The defendants’ conduct forced plaintiff to incur attorney’s fees to

contest the transfers. The court of appeals set out the standard for recovering

attorney’s fees as damages because of the wrongful act of a defendant that forces a

plaintiff to incur attorney’s fees. Id. Plaintiff was ultimately not awarded fees

because she failed to put on evidence of the reasonableness and necessity of her

attorney’s fees. Id. at 307.

      Appellants cited cases miss the mark. Their cases do not meet the elements

to recover attorney’s fees as damages:     Wein v. Sherman involved an attempt to

attorney’s fees in a “first suit” and not in a “second suit.” No. 03-10-00499-CV,

2013 WL 4516013 at *__ (Tex. App.—Austin August 23, 1013, no pet.); Tana Oil

& Gas Corp. v. McCall, 104 S.W.3d 80, 81-83 (Tex. 2003) involved an attorney

seeking to recover attorney’s fees for defending himself; Naschke v. Gulf Coast

Conference, 187 S.W.3d 653, 655 (Tex. App.—Houston [14th Dist.] 2006, pet.

denied) involved an incorrect charge in an attorney’s fees as damages case; Peterson

v. Dan Witter Reynolds, Inc., 805 S.W.2d 541, 549 (Tex. App.—Dallas 1991, no

writ) has been rejected by later Dallas cases, Noell v. City of Carrollton, 431 S.W.2d

682, 715-16 (Tex. App.—Dallas 2013, pet denied); and Cupples Coiled Pipe, Inc. v.

Esco Supply Co., 591 S.W.2d 615, 619 (Tex. Civ. App.—El Paso 1979, writ ref’d


                                         35
n.r.e.) and Dalton S.S. Corp. v. W.R. Zanes & Co., 354 S.W.2d 621, 624 (Tex. Civ.

App.—Fort Worth 1962, no writ) both requested attorney’s fees in a “first suit” and

did not involve a “second suit.”

      Accordingly, under Turner and the other cases set out above, the Archers are

entitled to recover their attorney’s fees as damages from earlier litigation in Bexar

County caused by Ted’s undisputed tortious conduct.

      B.     Appellants waived their argument about segregation of attorney’s
             fees.

      Assuming segregation is an issue in an attorney’s fees as damages case, which

the Archers dispute, Appellants waived any argument about the segregation of

attorney’s fees.

      Appellants objected to the Archers’ attorney’s fees evidence solely on the

ground that the Archers could not recover attorney’s fees as damages. 6RR13-17.

Appellants made no objection to the evidence on the basis of segregation. Id.

Further, Appellants made no objection to the damage question in the charge based

on segregation or on any other basis. 9RR94-95; App. L.

      To preserve error on the failure to segregate attorney’s fees, the challenging

party must either object to the attorney’s fees evidence on the basis of the failure to

segregate or object to the charge, pointing out the failure to segregate attorney’s fees;

otherwise, the issue is waived. Lesikar v. Rappeport, 33 S.W.3d at 306; Rice v.



                                           36
Gregory, 780 S.W.2d 384, 389 (Tex. App.—Texarkana 1989, writ denied); see also

Matthews v. Candlewood Builders, Inc., 685 S.W.2d 649, 650 (Tex. 1985).

      Appellants also waived their segregation argument on appeal. Appts. Br. at

28-29. Appellants’ argument purports to refer to the record, but contains no record

citations. Instead, it states “(RR )” and “(CR )” with no page references. This is

waiver. TEX. R. APP. P. 38.1(i). This Court has no duty to review a voluminous

record without guidance from an appellant to determine if an issue raised constitutes

reversible error. Keyes Helium Co. v. Regency Gas Servs., L.P., 393 S.W.3d at 861.

Bullock v. American Heart Ass’n, 360 S.W.3d at 665 (appellate court has no duty or

right to perform an independent review of the record and applicable law to determine

whether there was error). This is particularly true given that the record in this appeal

is over 9,000 pages.

      C.     Segregation of attorney’s fees does not apply in an attorney’s fees
             as damages case.

      Alternatively, even considering Appellants’ waived argument, segregation of

attorney’s fees has no application here. Segregation is based on some attorney’s fees

being recoverable (by contract or by statute) and some attorney’s fees being not

recoverable. Attorney’s fees as damages, on the other hand, are based on a plaintiff

being involved in litigation with a third party because of defendant’s tortious conduct

and incurring attorney’s fees. See Turner, 385 S.W.2d at 234. Further, the Archers



                                          37
did not seek their attorney’s fees in this case. They only sought as damages their

attorney’s fees incurred in the prior litigation.

      When recovering attorney’s fees as damages from a prior lawsuit, the only

issue is whether the attorney’s fees were reasonable and necessary. Lesikar v.

Rappeport, 33 S.W.3d at 306; Powell v. Narried, 463 S.W.2d 43, 46 (Tex. Civ.

App.—El Paso 1971, writ ref’d n.r.e.); see also Texas Beef Cattle Co. v. Green, 883

S.W.2d at 430 (recovery of attorney’s fees as damages does not require segregation

when there are multiple parties involved). In an attorney’s fees as damages case,

courts do not address whether the underlying lawsuit involved a claim for attorney’s

fees under a contract or by statute. Rice v. Gregory, 780 S.W.2d at 389; Lesikar, 33

S.W.3d at 306. None of Appellants’ cited authorities on segregation were attorney’s

fees as damages cases. Appts. Br. at 27-28.

      Appellants’ waived argument on segregation is refuted by the record. First,

the Archers’ witness on attorney’s fees testified that the Archers’ attorney’s fees

could not have been segregated because of the substantial overlap in the

guardianship proceeding and related lawsuits. 6RR63-64. All of the legal work was

intertwined. 6RR29; 12RRPlx211, Plx212. The Archers’ ability to settle with the

charities was based on the legal work performed in Jack’s contested guardianship

proceeding, during which the Archers developed their proof that Jack lacked mental

capacity when he signed the post-stroke wills and trusts.


                                           38
The core issue in all of the litigation was Jack’s mental capacity when the various

documents were signed and Ted’s taking advantage of Jack’s lack of capacity.

      Second, Appellants’ contention that some of the lawsuits the Archers pursued

in the Bexar County guardianship did not involve Ted and thus supports segregation

of fees, is also refuted by the record. As record reflects, Ted was the source for all

of the litigation that the Archers were forced to pursue involving their uncle.

      Ted’s tortious conduct in having Jack change his estate plan pitted the Archers

against the charities in what would have been a will contest. 6RR64-65; 11RRPlx23.

Ted’s tortious conduct caused Jack to sign three post-stroke wills and two trusts that

disinherited the Archers in favor of the charities. 11RRPlx166, Plx171, Plx172,

Plx192, Plx194. There would have been no dispute had Ted not gotten Jack to

change his 1991 Will.

      Ted’s tortious conduct in having Jack sign the new wills and trusts also

precipitated the other lawsuits that the Archers filed derivatively on Jack and his

estate’s behalf. The other litigation the Archer family pursed was a direct result of

being disinherited. Ted hired and directed the attorneys (Leshin, Adami, and Hearne

Sr.) and Hamilton, all of whom were sued and paid settlements in the Bexar County

lawsuits. 6RR71-72; 11RRPlx119, Plx122, Plx142, Plx143, Plx146, Plx151, Plx154,

Plx155, Plx157, Plx165, Plx167, Plx170, Plx172, Plx179, Plx183; 12RRPlx227,

Plx241. App. C.


                                          39
      Ted wired $400,000 from Jack’s bank account to Hearne Sr. to pay all of the

attorney’s fees. 6RR74. These fees were eventually reimbursed to Jack’s estate as a

result of the Archers’ lawsuit. 6RR60-62. Ted instructed Leshin to put J.R. Hamilton

in as trustee of Jack’s Trust. 6RR71-72. Hamilton also settled and paid money back

to Jack. That is, without Ted wanting to change Jack’s estate plan, Leshin, Hearne,

Sr., Adami, or J.R. Hamilton would not have been involved.

      As Appellee Carol Archer Bugg testified, but for Ted’s conduct, her family

would not have been in years of litigation and been forced to pay millions in

attorney’s fees and settlement money simply to obtain what their Uncle Jack had

always intended. 3RR176-178.

      Appellants offered no evidence on the issue of segregation.

      Every lawsuit the Archers were forced to pursue in the Bexar County

guardianship was directly tied to Ted, and without Ted’s tortious conduct, the

Archers would not have been forced to pursue. Accordingly, there is no basis to

segregate attorney’s fees on the basis that Ted was not involved.

      D.     Appellants waive their sufficiency of the evidence argument.

      Appellants argue that the evidence was legally and factually insufficient to

show the reasonableness and necessity of the Archers’ attorney’s fees. Appts. Br. at

29-31. Appellants’ argument consists of two conclusory statements without citation

to the record. A sufficiency of the evidence point must cite to the record or the issue


                                          40
is waived. Rendleman v. Clarke, 909 S.W.2d 56, 58-59 (Tex. App.—Houston [14th

Dist.] 1995, writ dism’d as moot) (sufficiency point waived by failure to refer to

reporter’s record). This Court has no duty to perform an independent review of the

record and applicable law to determine whether there was error. Green v. Kaposta,

152 S.W.3d 839, 841 (Tex. App.—Dallas 2005, no pet.); Brandon v. Am. Sterilizer

Co., 880 S.W.2d 488, 493-94 (Tex. App.—Austin 1994, no writ). Accordingly,

Appellants waive their sufficiency argument. TEX. R. APP. P. 38.1(i).

       E.    The evidence is factually and legally sufficient as to the
             reasonableness and necessity of the Archers’ attorney’s fees.

      In the event the Court considers Appellants’ waived argument, the evidence

is legally and factually sufficient to show reasonableness and necessity of the

Archers’ attorney’s fees.

      Appellants do not attack the sufficiency of the evidence on the amount of the

attorney’s fees paid by the Archers or the amount of damages the jury found. Appts.

Br. at 29-31. Instead, Appellants attack only the evidentiary foundation of the

reasonableness and necessity of the Archers’ attorney’s fees.

      This Court reviews a factual sufficiency point by considering all of the

evidence to determine if there is some evidence supporting the finding, and then

determines whether the finding is so weak or against the overwhelming weight of

the evidence as to be manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.

1986). This Court can sustain a legal sufficiency challenge only if: “(a) there is a
                                        41
complete absence of evidence of a vital fact, (b) the court is barred by rules of law

or of evidence from giving weight to the only evidence offered to prove a vital fact,

(c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d)

the evidence conclusively establishes the opposite of the vital fact.” Volkswagen of

Am., Inc. v. Ramirez, 159 S.W.3d 897, 903 (Tex. 2004).

       The evidence here is both legally and factually sufficient to support the

Archers’ attorney’s fees as being reasonable and necessary. After the Archers

presented extensive testimony on the amount of attorney’s fees paid for the Bexar

County litigation, (see infra II.F. at 51) Frank Ikard, one of the attorneys who

represented the Archers throughout the Bexar County litigation, provided expert

testimony as to the reasonableness and necessity for the attorney’s fees. 7RR94-

139.

       Ikard testified that he had practiced law for more than 40 years and in the

fiduciary litigation area for more than 20 years. 7RR108.          Ikard explained the

nature of the problems and issues in the case from the outset, as well as the strategies

and work pursued on the Archers’ behalf. 7RR96-97, 110-25.

       Ikard went through the Texas Disciplinary Rules 1.04(b) to support the

reasonableness and necessity of the attorney’s fees. 7RR110-25. Ikard explained

that the fee arrangement was originally hourly but then changed to a contingent fee.

7RR106-07. Ikard’s firm represented the Archers for close to a decade. 7RR110.


                                          42
      Ikard testified about the number of hours spent on the case and the expenses

incurred. 7RR110. Ikard explained the novelty and complexity of the issues,

beginning with the difficulty in trying to serve Jack in the original guardianship

proceeding because he was being moved from location to location to avoid service.

7RR110-11; 11RRPlx17. A further complicating and novel factor was that Jack had

five attorneys agreeing in court that he needed a guardian. 7RR112-13. While the

attorneys tried to memorialize the agreement, Ted fired the attorneys and hired

another one to repudiate the agreement calling for a guardian. Id. This imposed

additional expense and difficulty and forced the Archers to refile the guardianship.

7RR112, 114-15. According to Ikard, it was novel and unusual to have someone in

Jack’s position in an agreed guardianship and, when the guardianship agreement was

repudiated, to have Jack put all of his assets in trust with Jack as trustee. 7RR112-

13.

      Another complicating factor in the case was the court-appointed temporary

guardian of the estate, J.R. Hamilton, who eventually was removed because he failed

to file statutory reports on the ward’s estate. 7RR117-18. After Hamilton, there were

a series of temporary guardians. 7RR120. Another unusual matter was that the

court-appointed temporary guardian of Jack’s person refused to allow the Archers

to visit him. 7RR120-21. This forced the Archers to seek court-ordered visitation.

7RR121. Another complicating factor was that Hearne Sr. obtained $400,000 from


                                         43
Jack’s bank account through Ted and used the money to pay the attorneys

representing Jack, without court approval. 7RR121-22. Hearne Sr. was eventually

ordered to repay this money. Id.

       Further, Ikard testified to the successes obtained by his firm’s representation

of the Archers. 7RR110-25. Ikard testified to the amount involved and the results

obtained. 7RR95. In particular, the Archers were reunited with their uncle, the post-

stroke wills were set aside, Bugg became Jack’s guardian, and an independent third

party became the guardian of Jack’s estate. 7RR102-03. The Archers were also

successful in recovering monies that had been wrongfully taken from Jack. 7RR105,

122-24.

       Finally, Ikard testified that the attorney’s fees incurred and paid by the

Archers were both reasonable and necessary. 7RR110-26; 125-26. Ikard also

testified that the forty-percent contingency fee was usual and customary in Travis

County for the kind of legal worked performed on the Archers’ behalf. 7RR125-26.

       Appellants made no attempt to attack Ikard’s credentials, credibility, or his

opinions on the reasonableness of and necessity for the attorney’s fees the Archers

paid. 7RR126-39.

       Further, Ikard’s expert opinion was uncontroverted. Appellants offered no

witness or other evidence on the issue of the attorney’s fees that the Archers paid in

the prior litigation.


                                          44
      Accordingly, the evidence was both legally and factually sufficient to support

the reasonableness and necessity for the Archers’ attorney’s fees and litigation

expenses paid in the prior litigation. Thus, this Court can affirm the damage award

in the Final Judgment. As set out below, the Archers seek additional damages. This

Court should overrule Issues 2, 3 and 4.

      F.     The district court erred in denying the Archers’ motion for partial
             JNOV on the full amount of attorney’s fees proved as a matter of
             law. [Cross Issue 1]

      By cross-issue, the Archers seek the full amount of their attorney’s fees paid

in the prior litigation as damages that were proved as a matter of law, but which were

not awarded by the district court. The Archers seek the entire amount of attorney’s

fees paid in the prior litigation of $2,865,928, along with the $588,054 awarded by

the district court in post-verdict motions. CR1461. App. K.

      The Archers’ damage model:

      The following damage discussion relates to the arguments under II.F. and

III.C. See infra III.C at 60. The Archers put on uncontroverted evidence of their total

damages of $3,453,982. This amount consisted of the settlement with the charities

of $588,054 and the $2,865,928 in attorney’s fees paid. The jury’s damage award

reduced the Archers’ attorney’s fees damages by thirty percent and (as addressed in

III. C. below) entirely omitted the $588,054 paid to settle with the charities. By

making these two deductions, the resulting damages in the verdict are $2,006,150:


                                           45
    Plaintiff’s Uncontroverted Evidence of                           Jury’s Damage Award
                    Damages
     Attorney’s fees &                                      Attorney’s fees &         $2,865,928 – 30%
    litigation expenses      $2,865,928                    litigation expenses          = $2,006,150
      Settlement with                                        Settlement with
          charities         + $588,054                           charities                       $0

                     $3,453,982                                              $2,006,150

CR1470-71; 6RR42, 56-58, 11RRPlx24; 12RRPlx241. App. B, C.

        Because their damages evidence was uncontroverted, the Archers filed a

motion for partial JNOV and sought the entire amount of their attorney’s fees and

the settlement with the charities. After a hearing, on July 17, 2013, the district court

denied the Archers’ motion for partial JNOV. 8 CR1209; App. H.

        This Court reviews a district court’s ruling on a motion for JNOV under a

legal sufficiency standard. Helping Hands Home Care, Inc. v. Home Health of

Tarrant County, Inc., 393 S.W.3d 492, 515 (Tex. App—Dallas 2013, pet. denied);

City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). To sustain a legal

sufficiency challenge, this Court must find: “(a) there is a complete absence of

evidence of a vital fact, (b) the court is barred by rules of law or of evidence from

giving weight to the only evidence offered to prove a vital fact, (c) the evidence

offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence



8
 The Archers also requested a partial directed verdict on damages and objected to the charge on this basis.
9RR73-76, 93-94.


                                                    46
conclusively establishes the opposite of the vital fact.” Volkswagen of America, Inc.

v. Ramirez, 159 S.W.3d at 903.

      In reviewing a matter of law challenge, this Court first examines the record

for evidence that supports the finding, while ignoring contrary evidence. Dow

Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). If there is no evidence to

support the finding, this Court then examines the entire record to determine if the

contrary proposition is established as a matter of law. Id.

      In a legal sufficiency review, the jury is not free to disregard undisputed

evidence. With undisputed evidence, the jury may draw whatever inferences they

wish as long as more than one inference is possible. City of Keller, 168 S.W.3d at

821. If the evidence allows only one inference, neither the jury nor the reviewing

court may disregard it. Id. at 822. The jury decides issues raised by conflicting

evidence, “but where there is evidence upon an issue and there is no evidence to the

contrary, then the jury has not the right to disregard the undisputed evidence and

decide such issue in accordance with their wishes.” Texas Dept. of Transp. v.

Guerra, 858 S.W.2d 44, 47 (Tex. App.—Houston [14th Dist.] 1993, writ denied)

(quoting Texas & N.O.R. Co. v. Burden, 146 Tex. 109, 203 S.W.2d 522, 530 (1947)).

             1.    No evidence supports the jury’s thirty-percent reduction of
                   the attorney’s fees the Archers paid in prior litigation.

      The jury reduced the Archers attorney’s fees paid in the Bexar County

litigation of $2,865,928 by 30%. CR646-653, 651. App. A. This Court’s first
                                         47
inquiry is to consider the evidence that supports the jury’s verdict that reduced the

Archers’ attorney’s fees paid in prior litigation.

          The jury was asked the following question for damages with the following

instruction:

          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?

          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.

CR646-653, 651.9

          The Archers presented uncontroverted evidence that the amount of attorney’s

fees and litigation expenses that they paid as a result of the Bexar County litigation

was $2,865,928. 6RR42, 52-53, 57; 12RRPlx241. App. C. The Archers further

presented expert testimony as to the reasonableness and necessity of those attorney’s

fees. See supra II.E. at 41.

          In response to the Archers’ evidence, Appellants had the burden to put on

contradictory expert evidence. Appellants failed to do so. Instead, Appellants’

evidence and entire case went to one issue—Jack’s mental status when he signed




9
    This question also contained a definition of “proximate cause.” CR646-653, 651. App. A.
                                                    48
multiple wills and trusts after his debilitating stroke. None of Appellants’ witnesses

or documentary evidence addressed the Archers’ attorney’s fees.

      Appellants offered no expert witness on attorney’s fees. Expert testimony is

required to support an award of attorney’s fees. Woollett v. Matyastik, 23 S.W.3d

48, 52 (Tex. App.—Austin 2000, pet. denied); Cantu v. Moore, 90 S.W.3d 821, 826

(Tex. App.—San Antonio 2002, pet. denied). Appellants had to present expert

testimony that the Archers’ attorney’s fees in the prior litigation were not reasonable

and necessary. Without expert testimony that the Archers’ fees were not reasonable

and necessary, Appellants have no basis to attack the amount of the attorney’s fees.

      Appellants offered no evidence to create a range of damages. See Gulf States

Utils. v. Low, 79 S.W.3d 561, 566 (Tex. 2002) (jury can award damages within the

range of evidence presented at trial). Appellants offered no evidence to support a

thirty-percent reduction in the Archers’ attorney’s fees paid or to set up a range of

damages. Appellants did not adduce any evidence on cross-examination of the

Archers’ witnesses to support the jury’s reduction of attorney’s fees paid in the prior

litigation. 3RR178-218; 4RR5-32, 51-63; 6RR59-68. Appellants also offered no

evidence to support the jury’s reduction of the Archers’ total damages by

approximately 58% ($3,453,982 total damages x 58% = $2,003,309.56).

      Further, the jury is not free to arrive at a damages number on their own that is

not supported by the evidence or to “pull figures out of a hat.” First State Bank v.


                                          49
Keilman, 851 S.W.2d 914, 930-31 (Tex. App.—Austin 1993, writ denied); Mills v.

Jackson, 711 S.W.2d 427, 434 (Tex. App.—Fort Worth 1986, no writ).

      In particular, with uncontradicted evidence of attorney’s fees, the jury is not

free to pick a number. Smith v. Patrick W.Y. Tam Trust, 235 S.W.3d 819, 828-29

(Tex. App.—Dallas 2007), rev’d on other grounds, 296 S.W.3d 545 (Tex. 2009). In

Smith, the Trust sued the Smiths as guarantors on a lease when the lessee defaulted,

and sought actual damages of $200,000 and $47,438.75 in attorney’s fees. 235

S.W.3d at 828-29. The jury awarded $65,000 in damages and no attorney’s fees.

Id. at 822. The trial court rendered judgment on the damages amount and awarded

$7,500 in attorney’s fees.

      The Dallas Court of Appeals vacated the $7,500 attorney’s fees award and

rendered judgment for the Trust’s $47,438.75 in attorney’s fees. Id. at 829. The

Dallas Court of Appeals rejected the Smiths’ argument that the jury was entitled to

disregard the uncontroverted evidence and award no attorney’s fees. In response to

the Trust’s uncontroverted evidence of its attorney’s fees, the Smiths failed to

present evidence that the attorney’s fees were not necessary or that the Trust’s

attorney’s legal work had no value. Id. Accordingly, the court of appeals concluded

there was “no evidence to support the jury’s finding of no attorney’s fees.” Id. The

court of appeals rendered judgment for $47,438.75 in attorney’s fees.




                                         50
       The court of appeals noted that the Smiths had ample opportunity to question

or challenge the Trust’s attorney’s fees evidence. Id. at 828. The Smiths, however,

did not challenge the amount of the fees charged, the nature of the services provided,

or whether the amount reflected the nature and complexity of the case. Id.

       The Texas Supreme Court reversed, but only on the remedy awarded by the

court of appeals. Smith, 296 S.W.3d at 548. The supreme court recognized the same

problem as the court of appeals: “no evidence supported the jury’s refusal to award

any attorney’s fees (as the court of appeals correctly noted).” Id. The supreme court,

however, concluded that the remedy had to be a remand to consider the amount of

attorney’s fees in light of the reduction in actual damages. Id.

       Applying the reasoning in Smith, the jury was not free to disregard the

Archers’ uncontradicted evidence that they paid $2,865,928 in attorney’s fees and

litigation expenses in the prior litigation and arbitrarily pick another number with no

evidentiary basis. Thus, no evidence supports the jury’s 30% reduction of attorney’s

fees that the Archers paid in the earlier litigation in Bexar County by apportioning

liability.

             2.     The Archers proved the entire amount of their attorney’s
                    fees paid in the Bexar County litigation as a matter of law.

       After reviewing the evidence in support of the jury’s verdict, this Court must

then consider all of the evidence to determine whether the Archers established their



                                          51
damages as a matter of law. Dow Chem. Co., 46 S.W.3d at 241; Allman, 314 S.W.3d

at 673.

      The Archers’ attorney’s fees paid in the prior litigation was uncontroverted.

A jury may not disregard uncontroverted evidence. Alice Leasing Corp. v. Castillo,

53 S.W.3d 433, 445 (Tex. App.—San Antonio 2001, pet. denied).

      Three witnesses testified about the amount of attorney’s fees paid by the

Archers. First, Bugg testified about the contentiousness of the litigation from its

inception until its conclusion. 3RR140-147, 151-155, 157-164. According to Bugg,

when the Archers could no longer pursue the litigation on an hourly basis, they

converted to a contingency fee. 3RR155-156.

      Mary Haught, one of the Archers’ former attorneys, provided a detailed

explanation of the attorney’s fees and litigation expenses that the Archers paid to be

reinstated as beneficiaries under Jack’s will. 6RR26-53. Haught explained that the

Archers converted from an hourly fee arrangement to a contingency fee after

learning of the disinheritance. 6RR22-26. The contingency fee was based on getting

the Archers reinstated as beneficiaries and then the law firm received a percentage

of the value of Jack’s estate, including monies brought into Jack’s guardianship

estate through lawsuits against Ted and the attorneys he had hired. 3RR155-56;

6RR23-26; 11RRPlx22 at 2-3. The law firm further agreed to sue the various people

who had taken money from Jack and receive a percentage of any of that recovery.


                                         52
6RR23-26. When the contingency fee contract was entered, the Archers knew they

had been disinherited. 6RR24.

        Haught then explained the contingency fee calculation. 12RRPlx241. App.

C. 10 The calculation began with calculating the total value of Jack’s estate. Using

the estate tax return that valued Jack’s estate at $3,848,678 and an agreed upon value

for Jack’s ranch of $3,730,866, the total estate value of Jack’s estate was $7,579.544.

6RR26-29; 12RRPlx202, Plx241. Monies received as a result of the Bexar County

guardianship lawsuits were added to the total estate value. 6RR29-32; 12RRPlx203

(Adami settlement), Plx204(Hearne Sr. settlement), Plx205, Plx206, Plx207

(Hamilton settlement), Plx241.

        Because the calculation is based on money that was actually received by the

Archer Family, monies that the Archers had to pay to probate Jack’s will and the

monies paid to settle with the charities were subtracted. 6RR32-35; 12RRPlx241.

This left $7,256,058 as “litigation proceeds.”

        The firm’s expenses of $538,096 and the fees paid the Archers of $118,454

were subtracted. 6RR36-39, 39-40; 12RRPlx209, Plx241. This calculation left

$6,599,508 as the amount to which the contingency fee percentage was applied.

6RR40; 12RRPlx241. The firm’s forty-percent contingency fee was $2,639,803.20



10
   Plaintiffs’ Exhibit 241 is not in numerical order in the Reporter’s Record. App. C. It is found before
Plx222.
                                                   53
plus expenses of $538,096, which came to a total fee due the law firm of $3,177,899.

6RR40-41; 12RRPlx241. App. C. The Archers and the law firm negotiated the total

fee down to $2,865,928. 6RR42,52-53; 12RRPlx241. At the end of the day, the

Archers paid $2,865,928 in attorney’s fees to Ikard & Golden. 6RR53; 12RRPlx

241. Haught went on to explain how the firm was paid as set out on Plx241 page 2.

6RR29-32, 40-53.

      Finally, as set out above, and incorporated here by reference to avoid

repetition, Frank Ikard testified as the reasonable and necessity of the $2,865,928 in

attorney’s fees paid by the Archers. See supra II.E. at 41.

      Through the testimony of Bugg, Haught, and Ikard, and the exhibits during

their respective testimony, the Archers proved as a matter of law the amount of the

attorney’s fees the Archers paid in the prior litigation: $2,865,928. The evidence

supports only one inference.

      Appellants had every opportunity to challenge the Archers’ evidence on the

attorney’s fees portion of damages. The Archers’ evidence of damages was not

called into question on cross-examination and was never controverted. “Clear,

direct, and uncontroverted evidence of attorney’s fees is taken as true as a matter of

law, especially when the opposing party has the means and opportunity to disprove

the testimony.” B&W Supply, Inc. v. Beckman, 305 S.W.3d 10, 20-21 (Tex. App.—




                                         54
Houston [1st Dist.] 2009, pet. denied). Appellants do not challenge the amount of

attorney’s fees paid on appeal.

       A reasonable juror could have disregarded the undisputed evidence of

$2,865,928 as the amount the Archers paid in attorney’s fees. Accordingly, the

district court erred in denying the Archers’ motion for partial JNOV.

       Thus, in addition to seeking an affirmance of the Final Judgment of liability,

the Archers request that the Court sustain their Cross Issue 1 and render judgment

that the district court should have rendered on their total attorney’s fees paid in the

prior litigation and proved as a matter of law of $2,865,928, in addition to the

$588,054 that the district court awarded post-verdict.

       In the alternative, based on the legal and factual sufficiency of the evidence

of attorney’s fees discussed above, the Archers request that this Court affirm the

Final Judgment on liability and damages.

III.   The district court properly granted Appellants’ motion for partial JNOV
       and awarded the Archers the amount paid to settle with the charities.
       [Responsive to Issue 5]

       Appellants complain of the district court’s award of an additional $588,054 in

damages to settle with the charities. As set out above in the damage model chart,

the jury’s award omitted the $588,054 that the Archers paid to settle with the

charities. Supra II.F. at 45-46. Appellants have waived this issue. Even considering




                                          55
the waived issue, the district court correctly modified the jury’s damage award and

awarded the Archers’ additional damages.

      A.     Appellants’ briefing error waives appellate review.

      In Issue 5, Appellants cite no authority, make no cites to record, and offer no

cogent arguments. Appts. Br. at 31-32. See TEX. R. APP. P. 38.1(i) (brief must

contain a clear and concise argument with appropriate citation to authorities and to

the record). The failure to provide substantive analysis or cite authority waives the

complaint. Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 75. Further, this

Court has no duty to review a voluminous record without guidance from an appellant

to determine if an issue raised constitutes reversible error. Keyes Helium Co. v.

Regency Gas Servs., L.P., 393 S.W.3d at 861. Accordingly, Issue 5 is waived.

      B.     Appellants’ post-verdict motions waive appellate review.

      Appellants’ post-verdict motions, which unqualifiedly urged the district court

to award the Archers the additional damages of $588,054, waive this Court’s review.

      In their motion for partial JNOV, Appellants agreed without reservation that

the Archers proved their settlement with the charities cost them $588,054 and that

the district court should revise the Jury’s Verdict:

      For the reasons given above, Defendants respectfully urge the Court to
      grant their Motion for Partial Judgment Notwithstanding the Verdict,
      and modify the jury’s finding on damages to reflect the only element
      properly proved, that is, $588,054.00, the amount paid by Plaintiffs in
      settlement with the charities in the prior litigation . . . . .


                                          56
CR1210-18, 1217 (emphasis added); App. I

      After the district court heard and denied the Archers’ motion for partial JNOV

on July 17, 2013 (CR1209), and after the Archers pointed out that Appellants had

conceded the Archers were entitled to the $588,054 in additional damages on July

18, (CR1235-51), Appellants filed an amended motion for partial JNOV on July 25,

but still affirmatively acknowledged that the Archers proved the settlement with the

charities number:

      In the alternative [if the district court concluded tortious interference
      with inheritance is a valid cause of action], Defendants urge the Court
      to grant their Motion for Partial Judgment Notwithstanding the Verdict,
      and reduce the jury’s finding on damages to $588,054.00, the amount
      paid by Plaintiffs in settlement with the charities in the prior litigation
      ....

CR1264, 1273 (emphasis added); App. J

      When district court signed the Final Judgment, only Appellants’ amended

motion for JNOV remained pending (along with both parties’ briefs in support of a

prejudgment interest calculation). CR1276, 1278-1469, 1252, 1260. Accordingly,

the district court implicitly granted Appellants’ amended motion for JNOV when the

court signed the Final Judgment and added $588,054 to the jury’s $2,006,150.

CR1470-71; see TEX. R. APP. P. 33.1(a)(A); Allstate Prop. & Cas. Ins. v. Gutierrez,

281 S.W.3d 535, 539 (Tex. App.—El Paso 2008, no pet.) (final judgment implicitly

denied motion for leave to amend pleadings); Mason v. Mason, No. 07-12-00007,



                                          57
2014 WL 199649 at *6 (Tex. App.—Amarillo Jan. 13, 2014, no pet. (mem. op.)

(final judgment implicitly granted post-verdict request for pre-judgment interest).

      Applying settlement credits and prejudgment interest, the Final Judgment

awarded the Archers $2,564,899.90 plus post-judgment interest.        CR1235, 1461,

1470-71. App. B, K.

      For several reasons, Appellants’ post-verdict motions waive this Court’s

review of the district court’s award of the $588,054 in damages.

      First, Appellants failed to preserve their complaint in the trial court. In both

motions for partial JNOV, Appellants requested, without qualification, the district

court to award $588,054 to the Archers. CR1217, 1273. App. I, J. Appellants never

preserved the argument they now raise on appeal. CR 1210-18, 1264-75; see First

Nat’l Bank v. Fojtik, 775 S.W.2d 632, 633 (Tex. 1989); Smith v. East, 411 S.W.3d

519, 528-29 (Tex. App.—Austin 2013, pet. denied) (to preserve right to complain

about judgment, motion must state its disagreement with the content and result of

the judgment); Bray v. Tejas Toyota, Inc., 363 S.W.3d 777, 787 (Tex. App.—Austin

2012, no pet.) (same). Appellants never stated in their motions for JNOV, as

required by this Court in Smith and Bray, that they specifically reserved the right to

complain on appeal about the $588,054 in damages. Accordingly, the failure to

comply with the rule in Fojtik/Smith/Bray results in waiver of Issue 5.




                                         58
      Second, Appellants invited the alleged error of which they now complain. A

party may not invite error by asking “something of a court and then complain that

the court committed error in giving it to him.” Northeast Tex. Motor Lines, Inc. v.

Hodges, 138 Tex. 280, 158 S.W.2d 487, 488 (1942); Bluestar Energy, Inc. v.

Murphy, 205 S.W.3d 96, 101 (Tex. App.—Eastland 2006, pet. denied). Appellants

unqualifiedly requested the district court to award the Archers $588,054, and the

district court did precisely what Appellants requested. Thus, the invited error

doctrine bars this Court’s review of Issue 5.

       Finally, Appellants judicially admitted the $588,054 in damages. A judicial

admission is a clear, deliberate, and unequivocal statement that “occurs when an

assertion of fact is conclusively established in live pleadings, making the

introduction of other pleadings or evidence unnecessary.” Horizon/CMS Healthcare

Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000). A judicial admission bars the party

from disputing the admitted fact. Id.

      The judicial admission doctrine applies not only to pleadings, but also to post-

trial filings and even statements made in an appellate brief. Jansen v. Fitzpatrick,

14 S.W.3d 426, 431 (Tex. App.—Houston [14th Dist.] 2000, no pet); City of San

Antonio v. Hardee, 70 S.W.3d 207, 212 (Tex. App.—San Antonio 2001, no pet.).




                                         59
      Appellants’ statement in their motions for partial JNOV of the “amount paid,”

and “properly proved” damages of $588,054 are judicial admissions. CR1217, 1273.

App. I, J. Accordingly, Appellants waive appellate review of Issue 5.

      C.     The Archers proved the settlement with the charities amount as a
             matter of law. [Cross Issue 2]

      Alternatively, even considering Appellants’ waived Issue 5, the district court

properly granted Appellants’ JNOV and awarded the Archers the settlement with the

charities amount. In the event this Court sustains Issue 5 and reverses the district

court’s award of $588,054, and to avoid rendition of judgment on the verdict, the

Archers bring a cross issue on the amount of damages paid to settle with the charities.

See TEX. R. APP. P. 38.2(b); TEX. R. CIV. P. 324(c).

      This Court reviews a JNOV under a legal sufficiency standard. When a party

challenges the legal sufficiency of the evidence supporting an adverse finding on an

issue on which the party had the burden of proof, it must show that the evidence

establishes as a matter of law all vital facts in support of the issue. Dow Chem. Co.

v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); Allman v. Butcher, 314 S.W.3d 671,

673 (Tex. App.—Dallas 2010, no pet.). If there is no evidence to support the finding,

the court of appeals then reviews the entire record to determine if the contrary

proposition is established as a matter of law. Dow Chem. Co., 46 S.W.3d at 241;

Allman, 314 S.W.3d at 673.



                                          60
      In a legal sufficiency review, the jury is not free to disregard undisputed

evidence. With undisputed evidence, the jury may draw whatever inferences they

wish as long as more than one inference is possible. City of Keller, 168 S.W.3d at

821. If the evidence allows only one inference, however, neither the jury nor the

reviewing court may disregard it. Id. at 822. The jury decides issues raised by

conflicting evidence, “but where there is evidence upon an issue and there is no

evidence to the contrary, then the jury has not the right to disregard the undisputed

evidence and decide such issue in accordance with their wishes.” Texas Dept. of

Transp. v. Guerra, 858 S.W.2d at 47 (quoting Texas & N.O.R. Co. v. Burden, 146

Tex. 109, 203 S.W.2d 522, 530 (1947)). A jury may not disregard uncontroverted

evidence. Alice Leasing Corp. v. Castillo, 53 S.W.3d at 445.

      This Court may affirm the JNOV only if there is no evidence to support the

jury’s finding or as here, the evidence establishes a contrary answer as a matter of

law. Arlington Home, Inc. v. Peak Envtl. Consultants, Inc., 361 S.W.3d 773, 779

(Tex. App.—Houston [14th Dist.] 2012, pet. denied). Thus, this Court can affirm

the district court’s award of $588,054 if the evidence establishes that number as a

matter of law.




                                         61
              1.     No evidence supports awarding zero damages for the
                     settlement with the charities.

        This Court’s first inquiry is to consider the evidence that supports the jury’s

verdict that reduced the Archers’ damages by the amount of the settlement with the

charities. See Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003).

        The Archers’ settlement with the charities reinstated them as beneficiaries of

Jack’s estate. Had there been no settlement with the charities, the charities would

have offered for probate the wills Jack signed in 2000 and 2001 that disinherited the

Archers. 6RR64-65; 11RRPlx23 at 8. With multiple wills offered for probate, the

Archers would have been forced into more costly litigation. 6RR64-65. By settling

with the charities, however, the Archers insured that Jack’s 1991 Will would be

probated and that the post-stroke wills would not be offered for probate. 11RRPlx23

at 8.

        The Archers paid the twelve charities $588,054, over and above what Jack’s

pre-stroke will gave them. 6RR34-35; 12RRPlx241. App. C. The pre-stroke will

gave the charities sixty percent of Jack’s oil and gas interests, valued at $93,522.

12RRPlx241. The Archers gave the charities Jack’s coin collection valued at

$510,028 and paid the charities’ attorney’s fees as part of the settlement. 3RR159-

61; 11RRPlx24.

        Appellants offered no evidence to assail the amount the Archers paid to settle

with the charities and offered no evidence or argument to exclude the settlement with
                                           62
the charities from the Archers’ total damages. Appellants failed to refute Appellee

Bugg’s or Haught’s explanation of the need to settle to avoid a will contest with the

charities. 3RR178-218; 4RR5-32, 51-63; 6RR59-68. The evidence was

uncontroverted. The jury cannot pick a number that was not supported by the

evidence. First State Bank v. Keilman, 851 S.W.2d at 930.

      Accordingly, no evidence supports excluding the amount of the settlement

with the charities and awarding zero damages for that portion of the Archers’

damages. The only evidence was that the Archers paid $588,054 to settle with the

charities and avoid a will contest. Again, no evidence supported the jury’s reduction

of the Archers’ total damages by approximately 58%.

             2.    The Archers proved as a matter of law that they paid
                   $588,054 to settle with the charities.

      After reviewing the evidence in support of the jury’s omission of the

settlement with the charities number, this Court must then consider all of the

evidence to determine whether the Archers proved their settlement with the charities

as a matter of law. Dow Chem. Co., 46 S.W.3d at 241; Allman, 314 S.W.3d at 673.

      Bugg testified extensively about the settlement with the charities. 3RR157-

163. The Family Settlement Agreement and the copies of checks paying attorney’s

fees to the charities further substantiated the amounts the Archers paid to the twelve

charities. 11RRPlx23, Plx24.



                                         63
      As Jack’s 1991 Will provided, twelve named charities were to split sixty-

percent of Jack’s mineral interests. 11RRPlx9 at 3-4. Bugg testified that, with the

additional wills Jack signed at Ted Anderson’s insistence, the Archer family was

disinherited entirely in favor of the charities, meaning that the charities would have

received Jack’s entire estate. 3RR156-157; 4RR33-34; 6RR64-66; 12RRPlx241.

Bugg further testified that, because the Plaintiffs knew Jack’s long-time estate plan

had been to leave the bulk of his estate to his family and that he lacked any mental

capacity to change that estate plan after his stroke, the family would have pursued a

will contest after Jack’s death. 3RR103. The family, however, chose to avoid

waiting until Jack’s death and instituted a declaratory judgment action to address the

multiple wills and multiple trusts before Jack died. 6RR63, 70-71.

      Haught also testified about the Archers’ settlement with the twelve charities.

6RR53-58; 12RRPlx241. Jack’s 1991 Will gave the charities $93,522. 6RR55;

12Plx241. App. C. In settlement with the Archers, the charities also received Jack’s

coin collection, valued at $510,028. 6RR55; 12RRPlx241. The Archers also paid

the charities’ attorney’s fees in the declaratory judgment. 6RR55-58; 11RRPlx24.

According to Haught, because Jack signed the post-stroke wills, the Archers were

forced to settle with the charities and pay them the $588,054. 6RR58; CR1470-71.

App. B.




                                         64
      All the evidence supports the opposite of the jury’s finding to omit the

charities’ settlement amount from the damages awarded. The Archers’ evidence of

the amounts paid to settle with the twelve charities was uncontroverted and

supported only one inference. A reasonable jury could not have disregarded the

undisputed evidence of $588,054 as the damages paid to settle with the charities.

Accordingly, the Archers proved the $588,054 settlement with the charities as a

matter of law. The district court correctly granted Appellants’ motion for partial

JNOV.

      Accordingly, whether based on Appellants’ waiver of Issue 5 or the correct

ruling of the district court, Appellants’ Issue 5 should be overruled and the Archers’

Cross Issue 2 sustained.

IV.   The district court properly calculated prejudgment interest. [Responsive
      to Issues 6 & 7]

      The district court calculated prejudgment interest from August 4, 2003

through the date of the Final Judgment. CR1470-71, 1461. App. B, K. Appellants

argue that the district court used an incorrect accrual date and that prejudgment

interest should have been tolled. Appellants’ first argument is waived, and their

second argument is refuted by well-established law.

      This Court reviews a prejudgment interest award, and in particular the accrual

date, under an abuse of discretion standard. Wilmer-Hutchins Indep. Sch. Dist. v.

Smiley, 97 S.W.3d 702, 707 (Tex. App.—Dallas 2003, pet. denied); Brookshire
                                         65
Grocery Co. v. Smith, 99 S.W.3d 819, 823-25 (Tex. App.—Beaumont 2003, pet.

denied).

      A.      Appellants waived their prejudgment interest accrual date
              argument.

      Without citing authority or to the record, Appellants contend that “Appellees

should not collect prejudgment interest until after filing this suit on July 26, 2007.”

Appts. Br. at 33. Because Appellants fail to cite any authority, or to the record, and

fail to offer any cogent argument, their first argument is waived. See TEX. R. APP.

P. 38.1(i).   Specifically, a party waives its challenge to the starting date for

calculation of prejudgment interest by failing to cite “authority to support its

calculation or its assertion of a different starting date.” Wilmer-Hutchins Indep. Sch.

Dist., 97 S.W.3d at 707.

      Alternatively, even considering Appellants’ waived argument, the accrual

date for a prejudgment interest calculation is clear. Prejudgment interest begins

accruing the earlier of: (1) 180 days after receipt of written notice of a claim, or (2)

the date suit was filed. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc.,

962 S.W.2d 507, 528-31, n. 9; TEX. FIN. CODE §§ 304.101; 304.104.

      After learning that Jack’s estate plan had been changed, the Archers filed suit

for tortious interference with inheritance against Ted and others in the Bexar County

Guardianship Proceeding on February 5, 2003. CR98-117. That filing put Ted on



                                          66
notice of the Archers’ claim for tortious interference with inheritance claim for

purposes of the prejudgment interest calculation.

      Without authority, Appellants argue that the Archers could not give notice of

their claim until Jack died. Appts. Br. at 33. Contrary to Appellants’ argument, the

Archers tortious interference claim, and the time to file a lawsuit on the claim, arose

long before Jack died.

      If a will disinherits a person, a will contest can only be brought after a person

dies. TEX. ESTATES CODE §§256.002 (probate of a will of a living person is void),

256.204 (will can only be contested after it is admitted to probate). The theory being

that a will can be revoked or revised until a person dies.

      The Archers, however, were disinherited in three wills and in a trust. 6RR24;

11RRPlx166, Plx171, Plx172, Plx192, Plx194. All of Jack’s assets were placed in

the Trust, and when it terminated on Jack’s death, all of the assets were to be divided

solely among the charities. 6RR153; 11RRPlx171 at 2-3. Because the Trust

instrument disinherited the Archers, the Archers had to challenge the Trust’s validity

(because of Jack’s lack of capacity to sign it) instead of waiting for Jack to die and

bring a will contest. 6RR70-71.

      The Archers discovered the Trust that disinherited them in early 2001.

3RR149; 11RRPlx171; 12RRPlx218. Tortious interference with inheritance has a

two-year statute of limitations. See Hawkins v. Walvoord, 25 S.W.3d 882, 888 (Tex.


                                          67
App.—El Paso 2000, pet. denied) (cause of action sounding in tort governed by two-

year statute of limitations).

      There was a further complicating fact. Jack’s attorneys stipulated that Jack

was incapacitated as of February 7, 2002. 11RRPlx34. After that date, Jack could

not have validly signed a new will or trust. Thus, by February 7, 2002, Jack’s estate

plan was set.

      The Archers faced two dates that started the statute of limitations on their

tortious interference with inheritance claim running: the discovery of the Trust and

the date of the stipulation of incapacity. The Archers filed suit within two years of

the earlier date—the discovery the Trust that disinherited them. CR98-117.

      The district court applied the well-established law and calculated prejudgment

interest from August 4, 2003, 180 days after the Archers filed their original lawsuit

against Ted in Bexar County for tortious interference with inheritance. Appellants

offer no legal authority or argument for abandoning the well-established

jurisprudence on accrual dates for prejudgment interest calculation. Appts. Br. at

33. Thus, even if not waived, the district court did not abuse its discretion in using

August 4, 2003 as the accrual date.

      B.     Prejudgment interest cannot be tolled.

      Contrary to Appellants’ argument, a trial court cannot toll prejudgment

interest. The Texas Supreme Court has held that “the trial court no discretion to


                                         68
lessen or increase the interest amount for delays caused by either party.” Matthews

v. DeSoto, 721 S.W.2d 286, 287 (Tex. 1986) (emphasis added).

         Appellants cite four cases in support of their argument that the trial court has

discretion to “consider periods of delay caused by the plaintiffs.” Appts. Br. at 34.

All four cases expressly relied on the since-repealed Finance Code §304.108 or its

predecessor, TEX. REV. CIV. STAT. ART. 5069-1.05, §6. Helena Chemical v. Wilkins,

18 S.W.3d 744,760 (Tex. App.—San Antonio 2000), affirmed, 47 S.W. 3d 486 (Tex.

2001); Aquila Southwest Pipeline, Inc. v. Harmony Exploration, Inc., 48 S.W.3d

225, 242 (Tex. App.—San Antonio 2001, pet. denied); Southwest Airlines v. Jaeger,

867 S.W.2d 824, 837 (Tex. App.—El Paso 1993, writ denied); and Johnson &

Higgins of Texas Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 529-32 (Tex. 1998).

         Under former Finance Code §304.108(b), a trial court could, in its discretion,

toll prejudgment interest in wrongful death, personal injury, and property damage

cases.     AMX Enters., L.L.P. v. Master Realty Corp., 283 S.W.3d 506, 511 (Tex.

App.—Fort Worth 2009, no pet.). The legislature, however, repealed §304.108(b) in

2003. Id. 11 The 2003 repeal of Finance Code §304.108 stripped trial courts of any




11
  The legislature’s action applies “in any case in which a final judgment is signed or subject to
appeal on or after the effective date of this Act.” Act of May 16, 2003, 78th Leg., R.S., ch. 204, §
6.04, 2003 TEX. GEN. LAWS 847, 862. The Act took effect on September 1, 2003, Act of June 2,
2003, 78 Leg., R.S., ch. 204, § 23.02(a), 2003 TEX. GEN. LAWS 847, 898-99.

                                                69
discretion to toll prejudgment interest during periods of delay. Id. Trial courts also

have no equitable power to toll prejudgment interest. Id.

         The repeal of the repeal of Finance Code §304.108(b) leaves the common law

in place. Pilgrim’s Pride Corp. v. Burnett, No. 12-10-00037, 2012 WL 381714, at

*14-15 (Tex. App.—Tyler Feb. 3, 2012, no pet.) (mem. op.). Under the common

law, “the trial court has no discretion to lessen or increase the interest amount [or

otherwise toll the accrual of prejudgment interest] for delays caused by either party.”

Id. (citing Matthews v. DeSoto, 721 S.W.2d at 287).

         Accordingly, the district court properly refused to toll prejudgment interest.

This Court should overrule Appellants’ Issues Six and Seven.

                                PRAYER FOR RELIEF

         For these reasons, Appellees/Cross-Appellants respectfully request that this

Court:

         - affirm the Final Judgment as to liability;

         - sustain their Cross Issue 1, and render judgment for their total attorney’s fees
         paid in the prior litigation of $2,865,928, as proved as a matter of law, in
         addition to the $588,054 awarded by the district court in post-verdict motions,
         for a total damages of $3,453,982; and

         - direct the district court (by mandate or remand) to recalculate the judgment
         in light of the new damage amount awarded on appeal.




                                             70
      Alternatively, Appellees/Cross-Appellants request that the Court affirm the

district court’s Final Judgment on liability and damages.           Appellees/Cross-

Appellants pray for all other and further relief to which they may be entitled.


                                       Respectfully submitted,

                                       IKARD GOLDEN JONES, P.C.

                                       /s/ Laurie Ratliff
                                       Laurie Ratliff
                                       State Bar No. 00784817
                                       Frank N. Ikard, Jr.
                                       State Bar No. 10386000
                                       Lauren Davis Hunt
                                       State Bar No. 24059657
                                       400 West 15th Street, Suite 975
                                       Austin, Texas 78701
                                       Telephone: (512) 472-6695
                                       Telecopier: (512) 472-3669
                                       Laurieratliff@igjlaw.com

                                       ATTORNEYS FOR APPELLEES
                                       RICHARD T. ARCHER, DAVID R.
                                       ARCHER, CAROL ARCHER BUGG,
                                       JOHN V. ARCHER, KAREN ARCHER
                                       BALL AND SHERRI ARCHER




                                         71
          CERTIFICATE OF COMPLIANCE WITH TRAP 9.4(i)(3)

       I hereby certify that this Appellees/Cross-Appellants’ Brief contains a total of
16,033 words excluding the parts exempted under TEX. R. APP. P. 9.4(i)(1), as
verified by Microsoft Word 2013. This brief is therefore in compliance with TEX.
R. APP. P. 9.4(i)(2)(B) as modified by this Court’s August 7, 2014 order that granted
Appellee/Cross-Appellant’s motion to file a combined brief with the page limits
applicable to both briefs.

      Dated: February 6, 2015

                                               /s/ Laurie Ratliff
                                               Laurie Ratliff
                                               Counsel for Appellees




                                          72
                        CERTIFICATE OF SERVICE

       In accordance with the Texas Rules of Appellate Procedure, I hereby certify
that a true and correct copy of the Appellees’ Brief, was served on the following
counsel of record on this 6th day of February 2015:

By e-service and email
Gerald D. McFarlen
THE LAW OFFICE OF GERALD D. MCFARLEN, P.C.
28 Fabra Oaks Road
Boerne, Texas 78006
gmcfarlen@mcfarlenlaw.com

Attorneys for Appellants/Cross-Appellees




                               /s/ Laurie Ratliff




                                        73
                                              APPENDIX

Tab                                        Document Description

A                                          Charge to the Jury CR646-53

B                                          Final Judgment CR1470-71

C                                          Damages calculation exhibit Plx241 12

D                                          Timeline of events Plx223

E                                          July 29, 1999 “Switch and Turn” letter from Anderson to
                                           Adami Plx151

F                                          King v. Acker, 725 S.W.2d 750 (Tex. App. —Houston [1st
                                           Dist.] 1987, no writ)

G                                          Turner v. Turner, 385 S.W.2d 230 (Tex. 1964)

H                                          Order Denying Plaintiffs’ Motion for Partial Judgment
                                           Notwithstanding the Verdict on the Jury’s Damage Finding
                                           CR1209

I                                          Defendants, T. Mark Anderson, Individually and as Co-
                                           Executor of Estate of Ted Anderson, and Christine
                                           Anderson, as Co-Executor of the Estate of Ted M.
                                           Anderson’s Motion for Partial Judgment Notwithstanding
                                           the Verdict CR1210-1218

J                                          Defendants, T. Mark Anderson, Individually and as Co-
                                           Executor of Estate of Ted Anderson, and Christine
                                           Anderson, as Co-Executor of the Estate of Ted M.
                                           Anderson’s Motion for Judgment Notwithstanding the
                                           Verdict, and in the Alternative, Amended Motion for Partial
                                           Judgment Notwithstanding the Verdict CR1264-1275

K                                          Prejudgment interest calculation CR1461

L                                          Charge Conference, 9RR1-2, 87-95, 177. Defendant’s
                                           Objections.




12
     Plx241 is found before Exhibit 222.
App. A
                                                        DC   BK13164 PG154


•




                                           Cause No. D-1-GN-07-002328

    RICHARD T. ARCHER, DAVID R.                              § IN THE DISTRICT COURT
    ARCHER, CAROL ARCHER BUGG,                               §
    JOHN V. ARCHER, KAREN ARCHER                             §
    BALL, AND SHERRI ARCHER,                                 §
           Plaintiffs                                        §
                                                             §
    v.                                                       § OF TRAVIS COUNTY, TEXAS
                                                             §
                                                             §
    T. MARK ANDERSON and CHRISTINE                           §
    ANDERSON, as co-Executors of the estate                  §
    of Ted Anderson,                                         §
            Defendants.                                      §
                                                             §
                                                             §
                                                             § 345TH JUDICIAL DISTRICT

                                             CHARGE TO THE JURY

    MEMBERS OF THE JURY:

            1.       This case is submitted to you by asking questions about the facts, which you must

    decide from the evidence admitted in this trial.

            2.       In arriving at your answers, consider only the evidence, including exhibits,

    admitted in this trial.

            3.       In considering this evidence, you are bound to follow the law set forth in this

    charge, as well as all instructions concerning jurors' conduct that you have been given.

            4.       You are to make up your own minds about the facts. You are the sole judges of

    the credibility of the witnesses and the weight to give their testimony. But on matters of law, you

    must follow all of my instructions.

            5.       Do not let bias, prejudice, or sympathy play any part in your deliberations.

            6.       Do not become a secret witness by telling other jurors about other incidents,

    experiences, or lawsuits. Do not tell other jurors about any special knowledge, information, or

    expertise that YCJifltm~~ ffie'tOis~Pe\3lHf confine your deliberat~tf?t tftre~f~~ft;g&fitted in the
      .               of Travis County, Texas                         of Travis County Texas
    tna.1                                                                             '
                              MAY 22 2013
                    At        ~:Ii{)    e          M.
                     Amalia Rodriguez-Mendoza, Cieri<
                                                                                                     1


                                                                             646
                                            DC      BK13164 PG155




        7.       This charge includes all legal instructions and definitions that are necessary to

assist you 1n reaching your verdict, so do not seek out any information in law books or

dictionaries.

        8.       All of the questions and answers are important.          No one should say that any

question or answer is not important.

        9.       Do not decide who you think should win and then try to answer the questions

accordingly. Simply answer the questions, and do not concern yourselves with the effect of your

answers.

        10.      Do not decide the questions by any method of chance.

        11.      Do not answer the questions by adding together each juror's figure and dividing

by the number of jurors to get an average.

        12.      Do not do any trading on your answers. That is, one juror must not agree to

answer one question a certain way if other jurors will agree to answer another question another

way.

        13.      After you retire to the jury room, you will select a presiding juror. You will then

deliberate upon your answers.

        14.      It is the duty of that presiding juror:
                a.      to preside during the deliberations and to provide order and compliance
                        with the charge;
                b.      to write, sign, and deliver to the court clerk any communication to me;
                c.      to conduct the vote and to participate in that vote; and,
                d.      to write your answers in the spaces provided.


                Do you understand the duties of the presiding juror? If you do not, please tell me
now.
        15.     The answers to the questions must be based on the decision of at least 10 of the 12

Jurors. The same 10 jurors must agree on every part of an answer, including subparts, unless

otherwise instructed. Do not agree to be bound by a vote of anything less than 10 jurors, even if it

would be a majority.
                                                                                                  2


                                                                    647
                                            DC         BK13164 PG156




        16.      If the verdict is reached by unanimous agreement, the presiding juror will sign the

verdict on the certificate page for the entire jury.

        17.      If 10 jurors agree on every answer, those 10 jurors sign the verdict. If 11 jurors

agree on every answer, those 11 jurors sign the verdict. If all 12 of you agree on every answer,

you are unanimous and only the presiding juror signs the verdict.

        18.      During your service as jurors, if you observe a violation of my instructions outside

the jury room, by either a juror or any other person, you must report that to me.

        19.      In your deliberations, any juror who observes a violation of my instructions shall

point out the violation and caution the offending juror not to violate the instructions again.

       20.       You must not discuss the case with anyone, including other members of the jury,

unless all of the jurors are present and assembled in the jury room. If anyone other than a juror

tries to talk to you about the case before you reach a verdict, tell me immediately.

       21.       When all required questions have been answered, the presiding juror has written

your answers on the charge, and the verdict has been signed, you will summon the court clerk and

be returned to court with your verdict.

       When words are used in this charge in a sense which varies from the meaning commonly

understood, you are given a proper legal definition, which you are bound to accept in place of any

other meaning.

       Answer "Yes" or "No" to all questions unless otherwise instructed. A "Yes" answer must

be based on a preponderance of the evidence unless otherwise instructed. If you do not find that a

preponderance of the evidence supports a "Yes" answer, then answer "No".

       The term "PREPONDERANCE OF THE EVIDENCE" means the greater weight and

degree of credible testimony or evidence introduced before you and admitted in this case. A

preponderance of the evidence is not measured by the number of witnesses or by the number of




                                                                                                   3


                                                                       648
                                               DC      BK13164 PG157


•




    documents admitted in evidence. For a fact to be proved by a preponderance of the evidence, you

    must find that the fact is more likely true than not.

              A fact may be established by "DIRECT EVIDENCE" or by "CIRCUMSTANTIAL

    EVIDENCE" or both. A fact is established by direct evidence when proved by documentary

    evidence or by witnesses who saw the act done or heard the words spoken. A fact is established

    by circumstantial evidence when it may be fairly and reasonably inferred from other facts

    proved.




                                                                                                 4


                                                                       649
                                             DC     BK13164 PG158


•



                                           QUESTION NO. 1

    Did Ted Anderson tortiously interfere with the Plaintiffs' inheritance from Jack Archer?

           "Tortious interference" occurs when one, who by undue influence, duress, breach of
           fiduciary duties, or other wrongful means, intentionally prevents another from receiving
           an inheritance or gift that they would otherwise have received.

           "Undue influence" means that an influence existed and was exerted, the influence
           undermined or overpowered the mind of the person executing the documents at the time
           of their execution, and the person would not have executed the documents but for the
           influence.

           "Duress" is any coercion, whether mental, physical, or otherwise, which causes another
           person to act contrary to his own free will or to submit to a situation or a condition
           against his own volition or interest.

           "Breach of fiduciary duty" occurs where influence has been acquired and abused, and
           confidence has been reposed and betrayed.

           An attorney and an attorney-in-fact owe fiduciary duties. Fiduciary duties may also arise
           out of an informal relationship, whether the relationship is a moral, social, domestic, or
           purely personal one, such as where a person that is of advanced age and in poor health
           relies on and trusts another person for support.



                  Answer "Yes" or "No."




                                                                                                   5


                                                                    650
                                              DC      BK13164 PG159


•


    If you answered "Yes" to Question No. 1, then answer the following question. Otherwise, do not
    answer the following question.


                                           QUESTION NO. 2

    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 fore seen that the event, or some similar event, might
           reasonably result therefrom. There may be more than one proximate cause.

           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:~ a?~ /5?'~                      c;:i?




                                                                                                      6


                                                                      651
                                                DC      BK13164 PG160




                                     Cause No. D-1-GN-07-002328

RICHARD T. ARCHER, DAVID R.                            § IN THE DISTRICT COURT
ARCHER, CAROL ARCHER BUGG,                             §
JOHN V. ARCHER, KAREN ARCHER                           §
BALL, AND SHERRI ARCHER,                               §
       Plaintiffs                                      §
                                                       §
v.                                                     § OF TRAVIS COUNTY, TEXAS
                                                       §
                                                       §
T. MARK ANDERSON and CHRISTINE                         §
ANDERSON, as co-Executors of the estate                §
of Ted Anderson,                                       §
        Defendants.                                    §
                                                       §
                                                       §
                                                       § 345™ JUDICIAL DISTRICT

                                               CERTIFICATE

        We, the jury have answered the above and foregoing questions as herein indicated, and herewith

return same into Court as our verdict.

        (To be signed by the presiding juror,    if unanimous:)

                                                 Presiding Juror


                                         Printed name of Presiding Juror

        (To be signed by those rendering the verdict, if not unanimous:)

Jurors' Signatures:




                                                                                                   7


                                                                        652
                                           \
      DC   BK13164 PG161


. .
 '




                DATE:       5/'l3/!3
                             I   I




                                       8


                           653
App. B
                                                       DC     BK13241 PG398
  Notice sent:    Final   Interlocutory   None
• Oisp Parties                        ~
  Dlsp code: CVD / CLS                      I~
  Redactpn=I ~                     JJJ           CAUSE NO. D-1-GN-07-002328
 Judge       '-           Clerk    Lf
         RICHARD T. ARCHER, DAVID R.             §                              IN DISTRICT COURT
         ARCHER, CAROL ARCHER BUGG,              §
         JOHN V. ARCHER, KAREN ARCHER            §
         BALL, AND SHERRI ARCHER, Plaintiffs     §
                                                 §                            345th JUDICIAL DISTRICT
         v.                                      §
                                                                                            Filed in The District Court
                                                 §                                           of Travis County, Texas
         DOUGLASS HEARNE, T. MARK                §
         ANDERSON, Individually and as co-       §
         Executor of the estate of Ted Anderson, §
         CHRISTINE ANDERSON, as co-              §
         Executor of the estate of Ted Anderson, §
         And RICHARD LESHIN, Defendants          §                            TRAVIS COUNTY TEXAS
                                                                                              I




                                                       Final Judgment

                    On May 13, 2013, the above-styled case was called to trial. Plaintiffs David R.

         Archer, Carol Archer Bugg, John V. Archer, Karen Archer Ball, and Sherri Archer

         appeared through their attorneys of record and announced ready for trial. Defendants T.

         Mark Anderson and Christine Anderson, as Co-Executors of the Estate of Ted Anderson,

         appeared through their counsel of record and announced ready for trial.

                    After the jury was impaneled and sworn, it heard the evidence and arguments of

         counsel from May 13 to May 22, 2013. In response to the Jury Charge, the jury made

         findings on May 23, 2013, that the Court received, filed, and entered of record. The

         questions submitted to the jury and the jury's findings are attached as Exhibit A and

         incorporated by reference.

                    The Court modifies the jury's damage award to reflect, as additional actual

         damages, the amount of $588,054.



         Final Judgment- page 1

                                                                              1470
                                                    DC           BK13241 PG399




         The Court renders judgment for Plaintiffs David R. Archer, Carol Archer Bugg,

John V. Archer, Karen Archer Ball, and Sherri Archer.

         Therefore, applying settlement credits, the Court orders that Plaintiffs recover

damages from Defendants in the sum of $2,564,899.90; prejudgment interest on that sum
                                               ~ ~ .ro, Sl;t, ~
at an annual rate of 5%, in the su"Riif !IJ5'A,25l2; post-judgment interest on the total sum at

an annual rate of 5%, and court costs.

         This judgment disposes of all claims and all parties and is, therefore, a final and

appealable judgment.

         The Court orders execution to issue for this judgment.

                   Signed this         /6      day of     ~                      , 2013.




AGREED TO AS TO FORM ONLY:




Laurie Ratliff
Attorneys for Plaintiffs


AGREED TO AS TO FORM ONLY:




Gerald Mcfarlen
Attorneys for Defendants



t:\archer 3 2007 tortious interference\trial\final judgment\final judgment on jury verdict & charities# july 18 2013.docx



Final Judgment - page 2

                                                                                   1471
                                               DC             BK13241 PG400




                                       419TH DISTRICT COURT

                       HEMAN MARION SWEATT TRAVIS COUNTY COURTHOUSE
                                                    P.O. BOX 1748
 ORLINDA L. NARANJO                             AUSlJN, TEXAS 78767                        DORA CANIZALES
           Judge                                                                          Officilll Court Reporter
       (512) 854-4023                               FAX: (512) 854-2224                      (512) 854-9329

    DIANA CAPUCHINO                                                                      TRENT HIGHTOWER
   Court Operations Officer                                                                 Staff Attorney
       (512) 854-4023                                                                      (512) 854-4029


                                        FAX COVER SHEET
           Date:      8/15/13

        To:         Laurie Ratliff
                    Gerald D. McFarlen

           Fnx No.:          (512) 472-3669
                             (210) 5684305

           From: Diana Capuchino, Court Operations Officer to Judge Orlinda Naranjo

           Fax No.: 512-854-2224

           Message:




           Number of Pages: 4 Including Fax Cover)

                 If there is a problem with the transmission of this facsimile, please contact the Court
           Coordinator, Diana Capuchino at 512-854-4023.




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                                                                                1472
                                         DC         BK13241 PG401




                              419™ DISTRICT COURT

                  HEMAN MARION SWEATT TRAVIS COUNTY COURTHOUSE
                                            P.O. BOX 1748
ORLINDA L. NARANJO                      AUSTIN, TEXAS 78767                DORA CANIZALES
         Judge                                                             Official Court Reporter
     (512) 854-4023                      FAX: (512) 854-2224                  (512) 854-9329

 DIANA CAPUCHINO                                                           TRENT HIGHTOWER
 Court Operations Officer                                                     Staff Attorney
    (512) 854-4023                                                           (512) 854-4029


                                FAX COVER SHEET
      I>ate:      8/15/13

      To:      Laurie Ratliff
               Gerald I>. McFarlen

      Fax No.:         (512) 472-3669
                       (210) 568-4305

      From: Diana Capuchino, Court Operations Officer to Judge Orlinda Naranjo

      Fax No.: 512-854-2224

      Message:




      Number of Pages: 4 Including Fax Cover)

            If there is a problem with the transmission of this facsimile, please contact the Court
      Coordinator, I>iana Capuchino at 512-854-4023.




                                                                    1473
                                                    DC           BK13241 PG402




                                                                                                     TRENT HIGHTOWER
ORLINDA NARANJO                                                                                         Staff Attorney
     Judge                                                                                                (512) 854-4029
      (512) 854-4023

                                                                                                      DORA CANIZALES
                                                                                                     Official Court Reporter
 DIANA CAPUCHINO                            419TH DISTRICT COURT                                          (512) 854-9329
 Court Operations Officer
      (512) 854-4023
                                  HEMAN MARION SWEATI TRAVIS COUNTY COURTHOUSE
                                                   P. 0. BOX 1748                                   STEPHANIE WILLIAMS
                                               AUSTIN, TEXAS 78767                                       Court Clerk
                                                 FAX: (512) 854-2224                                      (512) 854-5854


                                                      August 15, 2013



        Via Facsimile (512) 472-3669                                       Via Facsimile (210) 568-4305
        Laurie Ratliff                                                     Gerald D. McFarlen
        Attorney for Plaintiffs                                            Attorney for Defendants
        Ikard Golden Jones, PC                                             The Law Office of Gerald D.
        400 W. 15h St. Suite 975                                           McFarlen, PC
        Austin, Texas, 78701                                               1001 South Main
                                                                           Boerne, Texas, 78006



               Re:     Cause No. D-1-GN-07-2328; Richard T. Archer et al v. Douglass Hearne et
               al, In the 345th Judicial District Court, Travis County, Texas

          Dear Counsel:

          Enclosed is a Final Judgment in the above-referenced matter. The Final Judgment has been
          stamped and filed with the District Clerk's Office.

          If you have any questions regarding this matter, please contact our Court Operations Officer,
          Diana Capuchino, at (512) 854-4023.

                                                             Sincerely,
                                                                                        ...

                                                             Trent Hightower
                                                             Staff Attorney to Judge Orlinda L. Naranjo
                                                             4 l 91h District Court, Travis County



          Enclosures (I)
          xc: Ms. Amalia Rodriguez-Mendoza, District Clerk




                                                                                 1474
App. C
            CONTINGENCY FEE CALCULATION
"LITIGATION PROCEEDS"
    ESTATE TAX RETURN ASSETS:        $3,848,678
    RANCH VALUE:                     +$3,730,866

    TOTAL ESTATE:                    $7,579,544

    DAMAGES RECOVERED                +$229,000 (Hearne Bexar County
                                                 settlement)
                                     +$125,000 (Adami Bexar County
                                                 settlement)

                                     +$104, 104 (Hamilton Bexar
                                                  County settlement)

    DEDUCTIONS:
         PROBATE ESTATE COSTS:       -$178,040
         PAID TO CHARITIES:          -$93,522 (minerals)
                                     -$510,028 (coin collection)

    "LITIGATION PROCEEDS"       =    $7,256,058




"FEE CALCULATION"
    LITIGATION PROCEEDS              $7,256,058
         LESS:       EXPENSES        -$538,096 (paid by Ikard & Golden)
                                     -$118,454 (paid by Archers)

    AMOUNT FOR CONTINGENCY:          $6,599,508

         40%     GROSS CONTINGENCY   $2,639,803.20 [40% of6,559,508]

    CONTINGENT FEE PAYABLE           $2,639,803.20

    EXPENSES PAYABLE                 $538.096
    TOTAL DUE TO LAW FIRM            $3, 177,899
CONTINGENCY FEE AND EXPENSES DUE:                                        $3,177,899

CONTINGENCY FEE AND EXPENSES ACTUALLY PAID:                              $2,865,928

    + 16% of oil and gas interests transferred to Ikard & Golden


BREAKDOWN OF HOW FEES WERE PAID:

FEES PAID OR CREDITED BEFORE JACK'S DEATH;

    PAYMENTS OF FEES AND EXPENSES
    ON HOURLY BASIS                                                $307,823.69

    HEARNE FEES AWARDED                                            $229,000

    ADAMI FEES CREDITED AS A WARDED                                $125,000

    HAMIL TON FEES AWARDED                                         $104,104

    ARCHER RANCH                                                   $900,000

TOTAL FEES CREDITED AS PAID
BEFORE JACK ARCHER'S DEATH                                         $1,665,928.07



PAID IN CASH AFTER JACK ARCHER'S DEATH                             $1,200,000

    + 16% of estate's oil & gas interests
TOTAL PAID IN CASH                                                 $2,865,928

    +16% of estate's oil & gas interests
App. D
     Timeline                                                  Event
         12/30/1982 Archer Annual Demand Irrevocable Trust
          2/28/1991 Jack Archer's Last Will & Testament
          8/25/1998 Jack Archer's Stroke
 8/25/98-10/21/1998 ICU & Rehab hospital
          9/24/1998 1st Powers of Attorney Signed (durable & health care) appointing Ted
          12/2/1998 Ted acquires Jack's original 1991 will
           12/8/1998 Ted hires Lesh in to draft Archer limited partnership
            2/3/1999 Letter to Dick and Jean
          2/15/1999 Ted meets with Dr. May to discuss Dick
          3/30/1999 Dr. May letter to Dick
           4/8/1999 Ted letter to Jack re: selling ranch
          6/11/1999 Codicil to Jack's will adding 2 new co-executor
          6/21/1999 Ted resigns law license
          7/26/1999 Adami letter to Corpus Christi Judges
          7/29/1999 Ted's letter to Adami re: Jack "may switch and turn"
          8/20/1999 Ikard & Golden engagement letter with Dick Archer
         10/12/1999 Dr. Faulk initial evaluation
         10/18/1999 Dick Archer Application for Appointment of Temp. Guardian in Blanco Cnty
          11/4/1999 Ted and Peggy resign as Jack's attorneys-in-fact under durable PoA
11/10/99-11/19/1999 Dr. May, Dr. Faulk & Dr. Hines letters to Adami
          12/3/1999 Ted letter to Dick re: evicting Jack
         12/29/1999 Blanco County Guardianship hearing - parties agree to temporary g'ship
          2/17/2000 Kathy Viesca sends proposed order on temporary g's hip
           3/1        Doug Hearne hired as Jack's attorney
          3/1         Ted fires Jack's attorneys Viesca, Adami, Lesh in and Mayne
          3/19/2000 Jack executes new will
    3/28/00-4/19/00 Jack admitted to pscyh unit of MS&T hospital
          4/25/2000 Hearne withdraws consent to 12/29/99 Agreement
          4/25/2000 Dr. May interviews Jack re: "testamentary capacity"
          4/26/2000 Dr. Hines examines Jack
          4/26/2000 Jack executes new will, trust, etc. - disinheriting family
            5/1/2000 Jack executes document transfering oil and gas
            5/9/2000 David Archer & Carol Bugg file Bexar County G'ship Application
          5/13/2000 Jack executes 2d financial PoA to Ted; new g's hip directive; healtchare PoA
    6/15/00-6/30/00 Jack admitted to pscyh unit of MS&T hospital
          6/20/2000 Dr. Faulk letter re: Jack has no need for a guardian
           7/3/2000 Assignment, Bill of Sale to Trust
          9/16/2000 Dr. Lichtenstein's 1st report
          1/23/2001 Hearing - Jack examined by Judge in chambers
    1/31/01 - 2/8/01 Jack admitted to MS&T hospital
            2/1/2001 Pam Rucker appointed temporary guardian of Jack's person
            2/5/2001 J.R. Hamilton appointed temporary guardian of Jack's estate
           5/16/2001 Jack signs amended trust, new will, new guardianship directed
                                                                                                   ......····. <    :::c               .        >
           6/25/2001 Dr. Lichtenstein's 2d report
           6/27/2001 Dr. Faulk letter: Jack is incapacitated                                       ~···.
                                                                                                   "'
                                                                                                                   . .     \
                                                                                                                               ;   I•
                                                                                                                                           .·;·<
           7/15/2001 Jack's deposition                                                             tft:,[                          1
                                                                                                                                               ··



         12/31/2002 Robert Mcintyre appointed guardian of Jack's estate                            ~-·.,m·· . ... ;
                                                                                                   Z:+i;t-0        ·•.                 ·<

          7/21/2003 Agreement w. Pam Rucker - David & Carol become guardian of Jack's person       i((><     ~1···
                                                                                                       ·w··· ..• "·
                                                                                                   ..:..!·.······••;
                                                                                                   .
                                                                                                   a;;
                                                                                                     . .. ·
                                                                                                                 .
                                                                                                                   . •.                    •   .
                                                                                                              .saiqqei             •
4/17 /20061Jack dies
App. E
             Mr. A. G. Adami, Jr.
             P. o. Box 331
             Alice, Texas 78333
             Dear Buster:
             The letter to the judges was excellent and I started to fax them
             the enclosed letter from Dr. Hines; but it was so weak that I
             didn't think it would be of much help to them.
             The thing that I had called you about was in talking to Jack he was
             coming around to the position that he was about ready consider
             putting his property into some sort of foundation for the benefit
             of his favorite charities, concerning which I believe I sent a list
             to you.
             He may switch and turn but I hope that we can continue to encourage
•   ~.   I
             him in this direction and since Richard helped me with the limited
             partnership for the ranch Jack might feel comfortable with
             suggestions from Richard.
             I   don't know the size of Jack's estate but over and over the
             $2,000,000.00 for the ranch, in the limited partnership, probably
             there is at least another million or so hanging around. I will just
             wait to hear from you after you have talked to Jack and thought
             about this.
             Best regards.
                                                 Sincerely,


                                                 Ted M. Anderson
             TMA/bdm




                                                                   TMA 1532




                                                                           PLF 025385
App. F
                                                                                                             Page 1


725 S.W.2d 750
(Cite as: 725 S.W.2d 750)


                                                            fered with inheritance of others was supported by
                                                            finding that she received property pursuant to power
                                                            of attorney which decedent had not in fact signed.

             Court of Appeals of Texas,
                Houston (1st Dist.).                        [2] Torts 379       295


           Lorraine KING, Appellant,                        379 Torts
                      v.                                        379III Tortious Interference
Kendra K. ACKER & Kimberly Jackson, Appellees.                     379III(C) Wills, Inheritances, Trusts and Gifts
                                                                      379k295 k. Evidence. Most Cited Cases
                                                               (Formerly 379k27)
                No. 01–86–0227–CV.
                    Jan. 22, 1987.
                                                                 Finding that decedent's widow acted with malice
                                                            in tortiously interfering with inheritance of others was
     Widow appealed from order of the Probate Court
                                                            supported by evidence that decedent had not executed
No. 3, Harris County, Jim Scanlan, J., entered in favor
                                                            power of attorney which widow attempted to use to
of children and mother of decedent in action for tor-
                                                            obtain property.
tious interference with inheritance. The Court of Ap-
peals, Sam Bass, J., held that: (1) cause of action for
tortious interference with inheritance exists under         [3] Conspiracy 91         19
Texas law; (2) findings of tortious interference and
conspiracy was supported by the evidence; (3) award         91 Conspiracy
of exemplary damages was supported; but (4) plain-             91I Civil Liability
tiffs could not recover fees paid to handwriting ex-               91I(B) Actions
perts, as those were litigation expenses.                            91k19 k. Evidence. Most Cited Cases


    Affirmed as reformed.                                        Finding that decedent's widow conspired with
                                                            others to tortiously interfere with inheritance rights
                   West Headnotes                           under will was supported by evidence that decedent
                                                            had not signed purported power of attorney or will and
                                                            that widow's attorney had participated in the com-
[1] Torts 379      289
                                                            plained of transactions.

379 Torts
                                                            [4] Equity 150       55
    379III Tortious Interference
       379III(C) Wills, Inheritances, Trusts and Gifts
          379k289 k. In General. Most Cited Cases           150 Equity
   (Formerly 379k27)                                           150I Jurisdiction, Principles, and Maxims
                                                                  150I(C) Principles and Maxims of Equity
                                                                      150k55 k. Equity Suffers No Right to Be
    Finding that decedent's widow tortiously inter-
                                                            Without a Remedy. Most Cited Cases




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                                                                                                                Page 2


725 S.W.2d 750
(Cite as: 725 S.W.2d 750)

                                                                writing experts, as those were litigation expenses.
     Law affords remedy for every invasion of legal
right and, under maxim “where there is a right, there is        [8] Damages 115        91.5(1)
a remedy,” equity will not suffer right to be without
remedy.                                                         115 Damages
                                                                    115V Exemplary Damages
[5] Torts 379       289                                                115k91.5 Grounds for Exemplary Damages
                                                                          115k91.5(1) k. In General. Most Cited
379 Torts                                                       Cases
    379III Tortious Interference                                   (Formerly 115k91(3), 115k91(1))
       379III(C) Wills, Inheritances, Trusts and Gifts
          379k289 k. In General. Most Cited Cases                    Upon showing in tort action that defendant acted
   (Formerly 379k11)                                            willfully, maliciously, fraudulently, or with great
                                                                negligence, there may be recovery of exemplary
     Cause of action exists under Texas law for tor-            damages in addition to compensatory damages.
tious interference with inheritance rights.
                                                                [9] Conspiracy 91        6
[6] Damages 115           103
                                                                91 Conspiracy
115 Damages                                                         91I Civil Liability
   115VI Measure of Damages                                              91I(A) Acts Constituting Conspiracy and Li-
      115VI(B) Injuries to Property                             ability Therefor
         115k103 k. Mode of Estimating Damages in                          91k1 Nature and Elements in General
General. Most Cited Cases                                                      91k6 k. Damage Caused. Most Cited
                                                                Cases
                                                                   (Formerly 91k1)
     In awarding damages for tortious interference
with inheritance rights, jury could award amount
representing commission paid by temporary adminis-                  Gist of civil conspiracy is wrong that injures an-
trator to redeem stock which would allegedly not have           other and not conspiracy itself.
needed to be redeemed absent the tortious interfer-
ence.                                                           [10] Conspiracy 91           19


[7] Costs 102       187                                         91 Conspiracy
                                                                   91I Civil Liability
102 Costs                                                              91I(B) Actions
   102VII Amount, Rate, and Items                                        91k19 k. Evidence. Most Cited Cases
      102k183 Witnesses' Fees
          102k187 k. Experts. Most Cited Cases                        Proof of conspiracy can be made by circumstan-
                                                                tial evidence.
    Plaintiffs in action for tortious interference with
inheritance rights could not recover cost of hand-              [11] Damages 115         15




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                                                                                                           Page 3


725 S.W.2d 750
(Cite as: 725 S.W.2d 750)


115 Damages                                                 [14] Damages 115        94.5
    115III Grounds and Subjects of Compensatory
Damages                                                     115 Damages
        115III(A) Direct or Remote, Contingent, or              115V Exemplary Damages
Prospective Consequences or Losses                                 115k94 Measure and Amount of Exemplary
          115III(A)1 In General                             Damages
              115k15 k. Nature and Theory of Com-                    115k94.5 k. Costs of Litigation. Most Cited
pensation. Most Cited Cases                                 Cases
                                                               (Formerly 115k94)
   It is purpose of law, in awarding compensatory
damages, to repair wrong that has been done.                     Although attorney fees do not ordinarily consti-
                                                            tute element of actual damages, jury may consider
[12] Damages 115        151                                 those fees in fixing amount of exemplary damages.


115 Damages                                                 [15] Courts 106       472.4(4)
   115VIII Pleading
      115k151 k. Grounds for Exemplary Damages.             106 Courts
Most Cited Cases                                                106VII Concurrent and Conflicting Jurisdiction
                                                                    106VII(A) Courts of Same State
     Complaint which alleged that tortious conduct                     106VII(A)1 In General
resulting in interference with inheritance rights and                     106k472 Exclusive or Concurrent Ju-
specified costs was willfully, unlawfully, and mali-        risdiction
ciously done adequately pled claim for legal damages                        106k472.4 Probate Courts
sufficient to support award of punitive damages.                               106k472.4(2) Decedents' Estates,
                                                            Administration of
[13] Damages 115        94.10(1)                                                   106k472.4(4) k. Claims and
                                                            Proceedings Against Estates and Representatives.
                                                            Most Cited Cases
115 Damages
    115V Exemplary Damages
       115k94 Measure and Amount of Exemplary                    Probate court has concurrent, if not exclusive,
Damages                                                     jurisdiction in actions by or against personal repre-
         115k94.10 Amount Awarded in Particular             sentative. V.A.T.S. Probate Code § 5A(b).
Cases
             115k94.10(1) k. In General. Most Cited         *751 William H. Scott, Jr., Houston, for appellant.
Cases
   (Formerly 115k94)                                        William E. Wylie, William E. Wylie, P.C., Tyler, for
                                                            appellees.
     Award of $76,096.82 in punitive damages in ac-
tion for tortious interference with inheritance was         Before SAM BASS, COHEN and DUNN, JJ.
supported by evidence that plaintiffs incurred attorney
fees in that amount.




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                                                                                                            Page 4


725 S.W.2d 750
(Cite as: 725 S.W.2d 750)

                     OPINION                                judgment was entered admitting King's will dated
SAM BASS, Justice.                                          June 13, 1977, to probate and appointed appellees as
    This is an appeal from a jury trial that found the      co-independent administratrices.
appellant maliciously conspired to tortiously interfere
with the inheritance of appellees. Damages awarded              Lucille Lacy, a documents examiner, was paid
were $28,275.00 actual and $76,096.82 exemplary.            $8,275 in connection with examining the 1982 will.

    We reform and affirm.                                        William E. Wylie, a board certified attorney in
                                                            estate planning and probate law, was paid $76,096.82
     Fred T. King, Jr. (“King”) had two children, ap-       in legal fees and expenses.
pellees Dahse and Jackson, born to his first wife,
Louise King. Appellant, Lorraine King, later married             Appellees, Dahse, Jackson, and Aline L. King,
King. King and Lorraine had separated many times            King's mother, brought suit against appellant, Mercu-
and had filed for divorce on one occasion.                  rio, Nancy Miller and Frank L. Saye, who witnessed
                                                            the 1982 will. The cause of action against Mercurio,
     In January 1982, King was admitted to a hospital       Miller, and Saye was severed.
with a severe headache. Dr. Posey saw King on Jan-
uary 4, 1982. King was stable, mentally alert, and had           Appellees' suit complained that if the 1982 will
full comprehension. On January 5, 1982, King had            and the power of attorney had not been forged and
surgery for an aneurysm near his brain. Six days later,     filed for probate, there would have been no reason to
he became lethargic. On January 13, 1982, some              have a temporary administrator appointed and the
neurological signs showed some deterioration of his         $20,000 statutory commission for the sale of the stock
*752 brain. King lapsed into a coma and passed away         by the temporary administrator would not have been
on February 4, 1982.                                        paid.

     On January 18, 1982, while King was in a coma,             The findings of the jury were that:
Mercurio, appellant's attorney, and appellant at-
tempted to assign 500 shares of Petro-Chem Technical
                                                              1. King did not sign the power of attorney;
Services stock from King to appellant, using a power
of attorney purportedly signed by King on January 4,
                                                              2. Appellant tortiously interfered with the inher-
1982. Later, this stock was redeemed for $400,000 by
                                                              itance of appellees with malice;
a temporary administrator of the estate. The power of
attorney was found by the jury not to have been signed
by King.                                                      3. Appellees suffered actual damages in the amount
                                                              of $28,275;
     In February 1982, Mercurio, attorney for appel-
lant at that time, filed a purported will of King dated       4. Appellant conspired to tortiously interfere with
January 4, 1982, for probate. Previously, Brad Wright         appellees' inheritance; and
was appointed temporary administrator of King's
estate pending a will contest. This will of January 4,        5. Exemplary damages in the amount of $76,096.82
1982, was found by the jury not to have been signed           were awarded against appellant.
by King. Based upon the jury's findings, a final




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                                                                                                               Page 5


725 S.W.2d 750
(Cite as: 725 S.W.2d 750)

     The court entered judgment for $104,371.82 plus        ney. The testimony shows that appellant used the 1982
interest of 10% per annum.                                  power of attorney to enter a safe deposit box to look
                                                            for the 1982 will. Appellant, under the alleged au-
    Appellant appeals upon 23 points of error, 12 of        thority granted by the power of attorney, signed de-
which rely upon no evidence, insufficiency of evi-          ceased's name to assign 500 shares of stock of Pet-
dence, or against the great weight of the evidence.         ro-Chem Technical Services to herself while the de-
                                                            ceased was in a coma.
     In deciding “insufficiency of evidence” points of
error, this Court is required to look at all of the evi-         [1] Because the jury found that King did not sign
dence but may find error only if the evidence sup-          the power of attorney, there is sufficient evidence to
porting the contested finding is so weak or the evi-        support the jury's findings that appellant tortiously
dence to the contrary is so overwhelming that the           interfered with the inheritance of appellees to receive
finding should be set aside and a new trial ordered.        property under the 1977 will.
Dixon v. Van Waters & Rogers, 674 S.W.2d 479
(Tex.App.—Fort Worth 1984, writ ref'd n.r.e.).                  Appellant's first three points of error are over-
                                                            ruled.
     In deciding “no evidence” points of error, this
Court will consider only that evidence and inferences            [2] In points of error 5, 6, and 7, appellant con-
from the evidence that tend to support the jury's           tends that there is no evidence, insufficient evidence,
findings, and will disregard all evidence and infer-        and that the evidence is so contrary to the over-
ences to the contrary. Shell Oil Co. v. Waxler, 652         whelming weight and preponderance of the evidence
S.W.2d 454 (Tex.App.—Houston [1st Dist.] 1983,              that it will not support issue 4, which found that ap-
writ ref'd n.r.e.). A “no evidence” point is properly       pellant acted with malice in tortiously interfering with
sustained only if there is a complete absence of evi-       appellees.
dence, or no more than a scintilla of evidence to
support the contested finding. Tower View, Inc. v.               The jury obviously did not believe appellant's
Hopkins, 679 S.W.2d 632 (Tex.App.—San Antonio               proffered testimony that King had executed the power
1984, writ ref'd n.r.e.).                                   of attorney. Thus, the evidence is sufficient to support
                                                            the finding of issue 4, that appellant acted with ill will,
     Appellant complains in points of error 1, 2, and 3,    spite, and evil motive in transferring the stock and
that there is no evidence, insufficient evidence, and       causing injury by tortiously interfering with appellees.
that the evidence is so contrary to the overwhelming
weight and preponderance of the evidence that it will           Appellant's points of error 5, 6, and 7 are over-
not support the answer to issue 2, which found that         ruled.
appellant had tortiously interfered with the inheritance
of appellees to receive property under the 1977 will.
                                                                 [3] In points of error 9, 10, and 11, appellant
                                                            contends that there is no evidence, insufficient evi-
    Appellant testified that King called Mercurio to        dence, and that the evidence is so contrary to the
write the 1982 will and the power of attorney; how-         overwhelming weight and preponderance of the evi-
ever, the record reveals conflicting testimony from         dence to support issue 5, which found that appellant
Mercurio and Miller, his secretary, concerning the          conspired with one or more persons to tortiously in-
time *753 she was called to type the power of attor-        terfere with the inheritance of appellees.




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                                                                                                               Page 6


725 S.W.2d 750
(Cite as: 725 S.W.2d 750)

                                                               mitting the 1982 will and in using the power of at-
     Mercurio testified that he was present when the           torney to transfer 500 shares of stock to herself. Ap-
1982 will and the power of attorney were executed,             pellees claimed recovery from appellant and her
and that he, with the power of attorney, began the             co-conspirators for: their tortious and fraudulent
process to transfer the 500 shares of Petro-Chem               conduct; malicious action toward appellees; the 1982
Technical Services stock to appellant. Miller and Saye         forged will and power of attorney; and those docu-
testified that they observed the execution of the 1982         ments' use. All of these acts caused damage to appel-
will. Miller stated that she typed the 1982 will and           lees for which they are entitled to seek compensation.
power of attorney.                                             Appellees also prayed for exemplary damages based
                                                               on appellant's conduct.
     The record is full of inconsistencies between the
testimony of appellant and that of the other alleged                *754 Although Texas has never addressed this
conspirators' testimony. A significant conflict exists in      exact issue, such a cause of action for damages lies in
their answers to what, if anything, Mercurio said after        other states for interference where there is an expected
the signing of the 1982 will. Miller testified at trial that   inheritance. Annot., 22 A.L.R. 4th 1234, § 3 (1983).
Mercurio read the self-proving affidavit; however, in          The Supreme Judicial Court in Maine, for example,
her previous deposition, she answered that Mercurio            held that a person's opportunity to receive a benefit as
said nothing. Saye testified that Mercurio did not ask         a prospective legatee will be protected from tortious
him any questions after he signed the 1982 will.               interference and that such a cause of action may be
                                                               maintained even before the testator's death. Harmon v.
                                                               Harmon, 404 A.2d 1020 (Me.1979).
     Because of the conflicts and inconsistencies in the
testimony of the witnesses to the preparation and
execution of the 1982 will, the evidence is sufficient to          Courts in other jurisdictions have held that a
support issue 5, that appellant and one or more persons        cause of action exists where the actor interfered with
conspired to tortiously interfere with appellees' inher-       the inheritance by independent tortious conduct.
itance. It was the prerogative of the jury to accept or        McGregor v. McGregor, 101 F.Supp. 848
reject the testimony. See Royal v. Cameron, 382                (D.Colo.1951), aff'd, 201 F.2d 528 (Cir.1953); Allen v.
S.W.2d 335, 339 (Tex.Civ.App.—Tyler 1964, writ                 Leybourne, 190 So.2d 825 (Fla.1966).
ref'd n.r.e.).
                                                                   The Restatement (Second) of Torts, sec. 774B
    Appellant's points of error 9, 10, and 11 are              (1979) provides:
overruled.
                                                                 One who by fraud, duress or other tortious means
     In point of error 4, appellant contends that the            intentionally prevents another from receiving from a
answer to issue 2, which found that appellant did                third person an inheritance or gift that he would
tortiously interfere with the inheritance of appellees, is       otherwise have received is subject to liability to the
not supported by sufficient pleadings upon which a               other for loss of the inheritance or gift.
recovery may be had.
                                                                   The commentary to this section provides in part:
     Paragraphs I and III of plaintiff's second amended          Thus the rule stated here applies when a testator has
original petition sought recovery for damages from               been induced by tortious means to make his first
appellant for her tortious conduct and fraud in sub-             will or not to make it; and it applies also when he




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                                                                                                            Page 7


725 S.W.2d 750
(Cite as: 725 S.W.2d 750)

  has been induced to change or remake it. It applies       Texas does recognize a tortious interference with
  also when a will is forged, altered or suppressed.        inheritance rights. See Pope v. Garrett, 204 S.W.2d
  [Emphasis added.]                                         867, 871 (Tex.Civ.App.—Galveston 1947), rev'd on
                                                            other grounds, 211 S.W.2d 559 (Tex.1948). We hold
     The Restatement (Second) of Torts, sec. 774A           that a cause of action for tortious interference with
(1977), provides that one who is liable to another for      inheritance rights exists in Texas.
tortious interference with a contract or a prospective
contractual relation is liable for:                             Appellant's fourth point of error is overruled.


  (a) the pecuniary loss of the benefit of the contract          In points of error 13, 14, and 15, appellant con-
  of the prospective relation;                              tends that there is no evidence, insufficient evidence,
                                                            and that the evidence is so contrary to the over-
  (b) consequential losses for which the interference       whelming weight and preponderance of the evidence
  is the legal cause; and                                   to support issue 3, which found that actual damages
                                                            were sustained by appellees in the amount of $28,275.
  (c) emotional distress or actual harm to reputation,
  if they are reasonably to be expected to result from           The record shows that Lacy and Green each re-
  the interference.                                         ceived $8,275 and $1,250, respectively, as handwrit-
                                                            ing experts. Also, supporting the actual damage award
                                                            is the $20,000 commission (i.e. 5% of $400,000) re-
    The commentary further provides for recovery of
                                                            ceived by the temporary administrator from the re-
punitive damages as well.
                                                            demption of 500 shares of Petro-Chem Technical
                                                            Services stock, which the appellant received by the
    [4] It is well understood that the law affords a
                                                            use of the forged power of attorney.
remedy for every invasion of a legal right. Under the
maxim “where there is a right, there is a remedy,”
                                                                 *755 [6] We hold that the trial court properly
equity will not suffer a right to be without a remedy.
                                                            permitted the jury to consider the $20,000 commission
Chandler v. Welborn, 156 Tex. 312, 319, 294 S.W.2d
                                                            in computing appellees' actual damages. This expense
801, 807 (1956).
                                                            would not have been incurred but for appellant's ma-
                                                            licious and tortious interference.
     It is well settled in Texas that “[a]ny intentional
invasion of, or interference with, property, property
                                                                 [7] The appellees, however, cannot recover the
rights, personal rights or personal liberties causing
                                                            cost of the handwriting experts. These are litigation
injury without just cause or excuse is an actionable
                                                            expenses and are not recoverable. See City of Houston
tort.” Cooper v. Steen, 318 S.W.2d 750, 757
                                                            v. Biggers, 380 S.W.2d 700 (Tex.Civ.App.—Houston
(Tex.Civ.App.—Dallas 1958, no writ) (citing 86
                                                            1964, writ ref'd n.r.e.).
C.J.S. Torts, § 40).

                                                                 Appellant's points of error 13, 14, and 15 are
     [5] Texas seems to recognize a cause of action for
                                                            overruled as to the $20,000 commission paid, but are
tortious interference. See Tippett v. Hart, 497 S.W.2d
                                                            sustained as to the $8,275 paid for the handwriting
606 (Tex.Civ.App.—Amarillo 1973, writ ref'd n.r.e.);
                                                            experts.
Cooper, 318 S.W.2d 750. Appellant's counsel, in oral
argument, conceded that prior Texas cases imply that




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                                                                                                              Page 8


725 S.W.2d 750
(Cite as: 725 S.W.2d 750)

     In point of error 8, the appellant complains that      1983, writ ref'd n.r.e.).
issue 4, which found that appellant acted with malice
in tortiously interfering with appellees, is not sup-            The pleadings in paragraph IX through XVI in
ported by sufficient pleadings upon which a recovery        appellees' second amended original petition, which
may be had.                                                 alleged civil conspiracy, tortious interference, and
                                                            damages, was legally sufficient to support issue 5.
     Appellees, in paragraph IV of their second             Appellant's twelfth point of error is overruled.
amended original petition, pled that the conduct of
appellant and her alleged co-conspirators was “will-             In point of error 16, appellant claims that issue 3,
fully, intentionally, unlawfully and maliciously            which found that actual damages were sustained by
done....” and that as a result of such pleadings, the       appellees in the amount of $28,275, is not supported
appellees were entitled to exemplary damages. See           by sufficient pleadings upon which recovery may be
Tippett v. Hart 497 S.W.2d 606, 611–612                     had.
(Tex.Civ.App.—Amarillo 1973, writ ref'd n.r.e.).
                                                                 Paragraphs XIV, XV, and XVI of appellees'
     [8] On a showing in a tort action that a defendant     second amended original petition sought recovery for
acted willfully, maliciously, fraudulently, or with         the actual damages resulting from the costs incurred in
gross negligence, there may be a recovery of exem-          the payment of a temporary administrator's commis-
plary damages, in addition to compensatory damages.         sion, which would not have been required to be paid
National Bank of Commerce v. May, 583 S.W.2d 685,           except for the tortious conduct of appellant and her
691 (Tex.Civ.App.—Eastland 1979, writ ref'd n.r.e.);        co-conspirators. Paragraph XIV sues for attorney's
see also 28 Tex.Jur.3d Damages § 172 (1983).                fees and costs as a result of the forged will and forged
                                                            power of attorney. Paragraph XV sues for adminis-
    Appellant's eighth point of error is overruled.         trator's fees as a result of the forged will and forged
                                                            power of attorney. Paragraph XVI sues for loss in-
    In point of error 12, appellant claims that issue 5,    come from the shares of the Petro-Chem Technical
which found that appellant conspired with one or more       Services, and stock as a result of the forged will and
persons to tortiously interfere with the inheritance of     forged power of attorney. There are sufficient plead-
appellees, is not supported by sufficient pleadings         ings upon which recovery was made.
upon which a recovery could be had.
                                                                Appellant's sixteenth point of error is overruled.
     [9][10] A civil conspiracy is a separate actionable
tort and has been defined by the Texas Supreme Court             In points of error 17 and 18, appellants contend
“as a combination by two or more persons to accom-          that the court committed a material error in instructing
plish an unlawful purpose or to accomplish a lawful         the jury regarding issue 3. They allege that the jury
purpose by unlawful means.” Schlumberger Well               was erroneously permitted to consider the cost *756 of
Surveying Corp. v. Nortex Oil & Gas Corp., 435              appointing the temporary administrator and the ex-
S.W.2d 854, 856 (Tex.1968). The gist of a civil con-        pert's testimony when these damages should be con-
spiracy is the wrong that injures another, and not the      sidered only for a willful tort. Additionally, in point of
conspiracy itself. Id. Proof of the conspiracy can be       error 19, the appellant contends that the court com-
made by circumstantial evidence. Id. at 858; see also       mitted a material error in instructing the jury regarding
Carr v. Hunt, 651 S.W.2d 875 (Tex.Civ.App.—Dallas           issue 3 that they could consider consequential loss,




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                                                                                                             Page 9


725 S.W.2d 750
(Cite as: 725 S.W.2d 750)

alleging that the proof is absolutely void of any con-      damages, including the cost of appointing a temporary
sequential loss by plaintiffs, and inclusion of any such    administrator for the purpose of redeeming the illegal
portion in the instruction represents a comment by the      transfer of the 500 shares of stock.
trial court on the weight of the evidence.
                                                                 The trial court was incorrect, however, in in-
     The testimony of Wright, the temporary admin-          structing the jury that the cost of obtaining expert
istrator, was that he received a commission equal to        testimony, regarding the genuineness of the deceased's
five percent of the $400,000 redemption price paid for      signature, could be considered. However, this error is
the Petro-Chem Technical Services stock, because the        not fatal in view of our holding upon points of error
stock had been taken from the bank with the forged          13, 14, and 15, and that the appellant has not been
power of attorney by the appellant or her attorney.         prejudiced by the instruction. Appellant's points of
Thus, but for the tortious acts of appellant in the         error 17, 18, and 19 are overruled.
forged 1982 will and the forged power of attorney, no
such commission would have been paid to a temporary               In point of error 20, appellant complains that the
administrator, and the deceased's estate would not          trial court committed a material error in instructing the
have been depleted by the $20,000 commission.               jury to answer issue 6, regarding exemplary damages,
                                                            because there were no pleadings or proof of any legal
     [11] The appellant is liable for both the actual and   damages, which is necessary for an award of punitive
exemplary damages for the consequential losses for          damages.
which her tortious interference caused. Restatement
(Second) of Torts § 774A (1977). It is the purpose of            [12] Paragraph XVII of appellees' second
the law, in awarding compensatory (i.e. actual) dam-        amended original petition alleged that appellant's
ages, to repair the wrong that has been done. 28            tortious conduct was “willfully, unlawfully and mali-
Tex.Jr.3d Damages § 6 (1983). Each suit for damages         ciously done,” and the elements necessary to support
should be determined on its own facts and a reasona-        the award by the jury of exemplary damages were
ble measure of recovery applied as the facts dictate.       pled. Actual damages were proved, as discussed
                                                            above. The record reflects that the forged will and
     The commission paid to the temporary adminis-          forged power of attorney required the appellees to pay
trator in this case is analogous to the expenses paid a     out a large sum of money for administrator's fees and
receiver. In Texas, the expenses of a receivership must     attorney's fees.
come from the party whose wrongful act brought
about the appointment of the receiver. Theatres of              Appellant's twentieth point of error is overruled.
America, Inc. v. State, 577 S.W.2d 542
(Tex.Civ.App.—Tyler 1979, no writ). The $20,000
                                                                  In point of error 21, the appellant claims that the
commission was directly caused by the unneeded
                                                            trial court erred in entering judgment on issue 6 for
appointment of the temporary administrator and was a
                                                            punitive damages in the sum of $76,096.82, because
part of the consequential damages resulting from the
                                                            there was no pleading or proof as to actual damages.
tortious conduct of appellant.

                                                                [13] As previously discussed, there is sufficient
     Thus, the trial court correctly instructed the jury,
                                                            evidence in the record to support the actual damage
in connection with issue 3, that in determining actual
                                                            award of $20,000. The pleadings, as previously dis-
damages, the jury could consider consequential
                                                            cussed and set forth, was sufficient upon each element




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                                                                                                            Page 10


725 S.W.2d 750
(Cite as: 725 S.W.2d 750)

of this cause of action. As set forth in point of error 22   Probate Court No. 3 of Harris County was without
below, there was proof of the *757 payment of attor-         jurisdiction to hear and determine this cause.
ney's fees, which may be considered in awarding
exemplary damages. Thus, the $76,096.82 in exem-                 [15] In 1985, Section 5A(b) of the Texas Probate
plary damages, which was the exact amount of the             Code was amended by adding the following as the last
attorney's fees incurred by appellees, is upheld.            sentence thereof:

    Appellant's point of error 21 is overruled.                In actions by or against a personal representative,
                                                               the statutory probate courts have concurrent juris-
     Appellant's twenty-second point of error contends         diction with the district courts. Acts 1985, 69th
that the trial court committed a material error in in-         Leg., p. 6429, ch. 875 § 1, eff. Aug. 25, 1985.
structing the jury that they might find, in determining        [Emphasis added.]
punitive damages, that exemplary damages may in-
clude reasonable compensation for inconvenience and               The legislature stated that the Act would apply “to
expense, such as attorney's fees, because attorney's         all cases filed under Section 5A(b), Texas Probate
fees are not a proper element of actual or exemplary         Code, on or after January 1, 1973. ” [Emphasis add-
damages.                                                     ed.] Acts 1985, ch. 875, § 2, 1985 Tex.Gen.Laws,
                                                             6429. The 1985 amendment to Section 5A(b) of the
     [14] Although attorney's fees ordinarily do not         Texas Probate Code allows the probate court to have
constitute an element of actual damages (and were not        concurrent jurisdiction, if it did not previously have
so considered in this case), the jury may consider such      exclusive jurisdiction. Therefore, since this cause of
fees in fixing the amount of exemplary damages.              action was brought by the personal representatives of
Hofer v. Lavender, 679 S.W.2d 470 (Tex.1984); Pan            the deceased's estate, jurisdiction was proper. First
American Petroleum Corp. v. Hardy, 370 S.W.2d 904            State Bank v. Bishop, 685 S.W.2d 732
(Tex.Civ.App.—Waco 1963, writ ref'd n.r.e.); Allison         (Tex.App.—Houston [1st Dist.] 1985, no writ).
v. Simmons, 306 S.W.2d 206 (Tex.Civ.App.—Waco
1957, writ ref'd n.r.e.); see also 28 Tex.Jur.3d Dam-            Appellant's last point of error is overruled.
ages § 181. The Hofer court cited Allison, 306 S.W.2d
206, for the proposition “that exemplary damages
                                                                 The judgment is reformed by reducing the actual
[exist] as an example for the good of the public and to
                                                             damage award to $20,000. In all other respects, the
compensate for inconvenience and attorney's fees.”
                                                             judgment is affirmed.
679 S.W.2d at 474.

                                                             Tex.App.–Hous. [1 Dist.],1987.
    Thus, the trial court correctly instructed the jury,
                                                             King v. Acker
regarding issue 6, that exemplary damages may in-
                                                             725 S.W.2d 750
clude reasonable compensation for inconvenience and
expenses, such as attorney's fees.
                                                             END OF DOCUMENT

     Appellant's twenty-second point of error is over-
ruled.


    In appellant's last point of error, she contends that




                             © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
                                                                                 Date of Printing: Feb 06, 2015


                                                KEYCITE


 King v. Acker, 725 S.W.2d 750 (Tex.App.-Hous. (1 Dist.), Jan 22, 1987) (NO. 01-86-0227-CV)
                                                  History

                                               Direct History



=>         1 King v. Acker, 725 S.W.2d 750 (Tex.App.-Hous. (1 Dist.) Jan 22, 1987) (NO. 01-86-0227-CV)



                                    Negative Citing References (U.S.A.)

Declined to Follow by
           2 Estate of Hollywood v. First Nat. Bank of Palmerton, 859 A.2d 472, 54 UCC Rep.Serv.2d 343, 2004
             PA Super 321 (Pa.Super. Aug 19, 2004) (NO. 2071 EDA 2003), reargument denied (Oct 27, 2004)
Distinguished by
           3 Zeigler v. Fisher-Price, Inc., 261 F.Supp.2d 1047, Prod.Liab.Rep. (CCH) P 16,618 (N.D.Iowa May 08,
             2003) (NO. C01-3089-PAZ)




                                © 2015 Thomson Reuters. All rights reserved.
App. G
                                                                                                             Page 1


385 S.W.2d 230
(Cite as: 385 S.W.2d 230)



                                                                 The alienation of affections of plaintiff's husband
                                                            caused by conduct of married defendant, who was not
                                                            aided or abetted by her husband, was a tort against
             Supreme Court of Texas.
                                                            plaintiff and defendant's husband was not individually
    Mozelle Corley TURNER et vir, Petitioners,
                                                            liable for the torts of his wife but the community estate
                      v.
                                                            of defendant and her husband would be liable.
    Genevieve J. TURNER et al., Respondents.
                                                            Vernon's Ann.Civ.St. art. 4613.

                    No. A-9803.
                   Nov. 25, 1964.                           [2] Husband and Wife 205           205(2)
           Rehearing Denied Jan. 13, 1965.
                                                            205 Husband and Wife
      Suit for alienation of affections. The 133rd Dis-        205VI Actions
trict Court, Harris County, Wilmer B. Hunt, J., entered            205k205 Rights of Action Between Husband
judgment against defendant wife and for defendant           and Wife
husband who was awarded attorney's fee against his                   205k205(2) k. Rights of action in general.
wife and she appealed. The Waco Court of Civil Ap-          Most Cited Cases
peals of the Tenth Supreme Judicial District, 369
S.W.2d 675, affirmed, and she brought error. The                 Husband had no right of action against his wife
Supreme Court, Griffin, J., held that defendant in          for her wrongful conduct against him as result of her
alienation of affection suit wherein jury found that her    alienating the affections of another married man.
then husband had not induced plaintiff to file suit and
had not aided plaintiff in prosecution thereof could not    [3] Husband and Wife 205           205(2)
recover from his former wife, active defendant in suit,
for his attorney's fee.                                     205 Husband and Wife
                                                               205VI Actions
    Affirmed in part and reversed in part.                         205k205 Rights of Action Between Husband
                                                            and Wife
    Smith, J., dissented.                                            205k205(2) k. Rights of action in general.
                                                            Most Cited Cases
                   West Headnotes
                                                                 Husband cannot sue his wife for damages result-
                                                            ing from torts of wife committed against him.
[1] Husband and Wife 205          268(9)


205 Husband and Wife                                        [4] Divorce 134        1357
   205VII Community Property
      205k268 Community and Separate Debts                  134 Divorce
        205k268(9) k. Torts. Most Cited Cases                   134VI Operation and Effect of Divorce, and




                            © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
                                                                                                              Page 2


385 S.W.2d 230
(Cite as: 385 S.W.2d 230)

Rights of Divorced Persons                                    defense of alienation of affections suit in which de-
       134k1356 Rights and Liabilities in General             fendant wife had been found to have alienated the
          134k1357 k. In general. Most Cited Cases            affections of another unaided by her then husband who
   (Formerly 134k313.1, 134k313)                              was also made a defendant.


     Defendant husband in alienation of affections            [7] Divorce 134       1357
suit, wherein jury had found that he had not induced
plaintiff to file suit against his former wife and had not    134 Divorce
aided plaintiff in prosecution thereof, could not re-             134VI Operation and Effect of Divorce, and
cover from his former wife, the active defendant in           Rights of Divorced Persons
suit, for his attorney's fee.                                        134k1356 Rights and Liabilities in General
                                                                        134k1357 k. In general. Most Cited Cases
[5] Damages 115         72                                       (Formerly 134k313.1, 134k313)


115 Damages                                                   Indemnity 208         65
     115III Grounds and Subjects of Compensatory
Damages                                                       208 Indemnity
        115III(D) Expenses of Litigation                          208III Indemnification by Operation of Law
           115k70 Attorney Fees, Costs, and Expenses                 208k63 Particular Cases and Issues
of Litigation                                                            208k65 k. Torts, in general. Most Cited
               115k72 k. Litigation between person            Cases
injured and wrongdoer. Most Cited Cases                          (Formerly 208k13.2(4.1), 208k13.2(4), 208k13(2))

     Unless provided by statute or contract between               Husband could not recover from former wife for
parties, attorney's fees incurred by party to litigation      her tort in alienating affections of another man and
are not recoverable against his adversary either in an        could not claim indemnity from her for expenses in-
action in tort or by suit upon a contract.                    curred in defending alienation of affections suit
                                                              brought against both.
[6] Divorce 134        1133
                                                              [8] Attorney and Client 45        21
134 Divorce
    134V Spousal Support, Allowances, and Disposi-            45 Attorney and Client
tion of Property                                                 45I The Office of Attorney
        134V(H) Counsel Fees, Costs, and Expenses                    45I(B) Privileges, Disabilities, and Liabilities
           134k1133 k. Stipulations and agreements.                    45k20 Representing Adverse Interests
Most Cited Cases                                                            45k21 k. Interests of former clients.
   (Formerly 205k279(1))                                      Most Cited Cases

    Under divorce settlement provision stating that                An attorney after accepting and enjoying confi-
any liability for pending alienation of affections suit       dence of one client, though afterwards discharged by
was not affected by property settlement agreement,            client without cause, cannot in general, with propriety,
wife was not liable for husband's attorney's fees for




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                                                                                                            Page 3


385 S.W.2d 230
(Cite as: 385 S.W.2d 230)

accept employment by opposite party in same case.               30V Presentation and Reservation in Lower Court
                                                            of Grounds of Review
[9] Attorney and Client 45         21.10                           30V(B) Objections and Motions, and Rulings
                                                            Thereon
                                                                      30k207 k. Arguments and conduct of
45 Attorney and Client
                                                            counsel. Most Cited Cases
    45I The Office of Attorney
        45I(B) Privileges, Disabilities, and Liabilities
          45k20 Representing Adverse Interests                   Argument which could be properly cured by ob-
               45k21.10 k. Disclosure, waiver, or           jection by opposing counsel and by instructions is not
consent. Most Cited Cases                                   reversible error in absence of such objection, and
   (Formerly 45k21)                                         unless argument is incurable, litigant will not be per-
                                                            mitted to complain for first time of improper argument
                                                            in motion for new trial.
     Former wife being sued, along with former hus-
band, for alienation of affections had, by her failure to
timely file a motion to disqualify attorney representing    [12] Appeal and Error 30         207
her husband, also a defendant in case, and by securing
a continuance of cause prior to filing a motion to          30 Appeal and Error
disqualify such attorney, waived any complaint she              30V Presentation and Reservation in Lower Court
might have had relative to propriety of attorney, who       of Grounds of Review
at one time had represented both the husband and                   30V(B) Objections and Motions, and Rulings
wife, in representing husband.                              Thereon
                                                                      30k207 k. Arguments and conduct of
[10] Appeal and Error 30          925(3)                    counsel. Most Cited Cases


30 Appeal and Error                                              Party could not complain, for first time on appeal,
   30XVI Review                                             regarding argument of attorney to which no objection
       30XVI(G) Presumptions                                was made at the time, where argument was clearly of
          30k925 Conduct of Trial or Hearing, and           type that any harm that may have been done could
Rulings in General                                          have been corrected by timely objection and by giving
              30k925(3) k. Arguments of counsel.            of instructions to jury to disregard argument.
Most Cited Cases
                                                            [13] Appeal and Error 30         1043(6)
     Supreme Court must presume that trial judge, on
proper objections being made, had he considered             30 Appeal and Error
attorney's argument unfair or vicious would have                30XVI Review
sustained objections and given appropriate instruc-                 30XVI(J) Harmless Error
tions to the jury to disregard the same.                              30XVI(J)6 Interlocutory and Preliminary
                                                            Proceedings
[11] Appeal and Error 30          207                                    30k1043 Interlocutory Proceedings
                                                                            30k1043(6) k. Discovery and deposi-
                                                            tions. Most Cited Cases
30 Appeal and Error




                            © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
                                                                                                             Page 4


385 S.W.2d 230
(Cite as: 385 S.W.2d 230)

     On record as a whole, there was not such error in
admitting deposition testimony regarding hearsay and        [16] Limitation of Actions 241         55(4)
deponent's conclusion as amounted to such a denial of
right as was reasonably calculated to cause and
                                                            241 Limitation of Actions
probably did cause rendition of improper judgment in
                                                                241II Computation of Period of Limitation
alienation of affections suit.
                                                                   241II(A) Accrual of Right of Action or De-
                                                            fense
[14] Jury 230      136(3)                                             241k55 Torts
                                                                         241k55(4) k. Injuries to person. Most
230 Jury                                                    Cited Cases
     230V Competency of Jurors, Challenges, and
Objections                                                       Period of limitation for alienation of affections
        230k134 Peremptory Challenges                       suit began to run from time of loss of consortium and
           230k136 Number                                   not from time that person whose affections have been
               230k136(3) k. As affected by joinder of      alienated felt a lessening of his affections for his
parties or actions. Most Cited Cases                        spouse.

     Where there was a common ground of liability           [17] Judgment 228         208
against both husband and wife sued for wife's conduct
in allegedly alienating affections of plaintiff's hus-
                                                            228 Judgment
band, fact that defendant husband and wife might have
                                                               228VI On Trial of Issues
actions against the others as to extent of their own
                                                                   228VI(A) Rendition, Form, and Requisites in
liability would not entitle each to six peremptory
                                                            General
challenges as against plaintiff's cause of action, and
                                                                      228k208 k. Relief as between coparties.
court properly granted six peremptory challenges to
                                                            Most Cited Cases
both husband and wife.

                                                                Judgment which had effectively disposed of de-
[15] Husband and Wife 205         333(7)
                                                            fendant's request for judgment against codefendant
                                                            was sufficient even though it did not in so many words
205 Husband and Wife                                        dispose of defendant's cross action against her code-
    205X Enticing and Alienating                            fendant.
        205k333 Evidence
          205k333(7) k. Admissibility of evidence of
                                                            *231 Fred W. Moore and Lew W. Harpold, Fred C.
financial condition or earning capacity. Most Cited
                                                            Brigman, Jr. and Brigman, Martin & Smith, Houston,
Cases
                                                            for respondent Genevieve J. Turner.

     Where defendant wife in alienation of affections
                                                            *232 Fred Parks and Ruby Sondock, Houston, for
suit had pleaded property settlement between her and
                                                            responent J. F. Corley.
her husband showing that she was a wealthy woman
and all the parties, including herself, had testified
                                                            GRIFFIN, Justice.
without objection as to her wealth, there was no error
                                                               This is an alienation of affections suit brought in a
permitting evidence to be introduced as to her wealth.




                            © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
                                                                                                                Page 5


385 S.W.2d 230
(Cite as: 385 S.W.2d 230)

district court of Harris County, Texas, by respondent
Genevieve J. Turner, against Mozelle Corley and                  Pat Corley answers that in view of the jury find-
husband, Pat Corley, as defendants. The original peti-      ings that he did not induce the plaintiff to file this suit,
tion was filed June 6, 1960.                                and that he did not aid the plaintiff in the prosecution
                                                            of the suit, he is an innocent party to the suit and is
     The cause was tried to a jury in May, 1962, and on     entitled to be indemnified by Mozelle, the active de-
the answer of the jury to special issues, the trial court   fendant. Therefore, he is entitled to recover his attor-
entered judgment in favor of Genevieve Turner               ney's fees.
against Mozelle Corley Turner for $150,000.00 actual
damages, plus $29,000.00 exemplary damages and in               We sustain the assignment of the petitioner,
favor of respondent Pat Corley against his former           Mozelle Corley Turner, that she cannot be charged
wife, Mozelle Corley Turner, for $30,000.00 as at-          with attorney's fees in this suit.
torney's fees. Petitioner appealed to the Court of Civil
Appeals, which affirmed the trial court's judg-
                                                                 [1] The alienation of the affections of Harry A.
ment. 369 S.W.2d 675.
                                                            Turner, caused by the conduct of Mozelle Corley
                                                            Turner, is a tort against plaintiff Genevieve J. Turner.
     Mozelle and Pat Corley had been married some           Pat Corley is not individually liable for the torts of his
eighteen years when they permanently separated De-          wife not aided and abetted by him. The community
cember 30, 1959. Genevieve J. Turner and Harry A.           estate of Mozelle and Pat Corley would be liable. Art.
Turner were married in 1938 and were divorced Au-           4613, Vernon's Ann.Civ.St.
gust 2, 1960. The Corleys were divorced March 27,
1961. Mozelle Corley and Harry Turner married April
                                                                 [2] Pat Corley had no right of action against
7, 1961.
                                                            Mozelle Corley Turner for her wrongful conduct
                                                            against him, resulting in the alienation of the affec-
    Until the filing of the alienation of affections suit   tions of Harry A. Turner from the plaintiff.
in June, 1960, or a few months prior thereto, the
Turners and Corleys were very close friends. They
                                                                  [3][4] That the husband cannot sue his wife for
took trips together and spent a great deal of time to-
                                                            damages resulting from the torts of his wife committed
gether.
                                                            against him was settled by the case of Nickerson and
                                                            Matson v. Nickerson, 65 Tex. 281, 1886. It is true that
     The Court of Civil Appeals has set out in its          this was a case where the wife was seeking recovery
opinion a full statement of the facts of this unfortunate   against the husband for a tort committed by the hus-
litigation between former friends and we will not           band and a third party against the wife. Nickerson and
restate the facts.                                          his wife had been divorced after the commission of the
                                                            tort, but prior to the trial of the wife's suit. The court
     Mozelle Corley Turner and her present husband,         said:
Harry Turner, as petitioners herein, complain of the
action of the trial court-affirmed by the Court of Civil         ‘The tort inflicted upon the wife by the husband
Appeals-in awarding to Pat Corley a judgment for            and another, gave no right of action to the wife against
$30,000.00 as reasonable attorney's fees, because it is     the husband.’ *233 Again:
contended this suit is not one in which attorney's fees
may be awarded to Pat Corley.
                                                                ‘Whatever cause of action the wife had, accrued




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385 S.W.2d 230
(Cite as: 385 S.W.2d 230)

when the acts of which she complains were commit-            property applied to the payment of this judgment by
ted; and the fact of divorce subsequently granted, can       virtue of the separation agreement, he should be in-
not make that a cause of action which was not so at the      demnified by Mozelle. He claims that having the right
time the facts transpired.’                                  to indemnity from Mozelle, this right should include
                                                             the right to his attorney's fees for defending Genevieve
     The Nickerson case had been followed by many            Turner's suit against him for damages by virtue of the
cases, and an examination of Shepard's Texas Cita-           alienation of Harry Turner's affections. The settlement
tions discloses that the rules of law laid down as           agreement between Mozelle and Pat Corley specifi-
quoted above have never been questioned. See also            cally provided, ‘Any liability for the alienation of
Gowin v. Gowin, Tex.Civ.App., 264 S.W. 529, 1924,            affections suit now pending against First Party and
affirmed Tex.Civ.App., 292 S.W. 211, 1927; Latiolais         Second Party is expressly not assumed by either of the
v. Latiolais, 361 S.W.2d 252, 253, Tex.Civ.App.1962,         parties hereto, and the satisfaction of any judgment
writ ref., n. r. e.; 30 Tex.Jur.2d, p. 234, s 145.           which might be incurred by reason thereof shall be left
                                                             open and unaffected by this property settlement
                                                             agreement.’
     [5] The general rule of law in this state is that,
unless provided for by statute or by contract between
the parties, attorney's fees incurred by a party to liti-         By virtue of this provision, we hold the separation
gation are not recoverable against his adversary either      agreement has no application to our problem herein,
in an action in tort or by suit upon a contract. Van         and does not afford any basis for recovery or denial of
Zandt v. Ft. Worth Press, 359 S.W.2d 893, 896(5),            attorney's fees.
Tex.Sup.1962; Perry v. Leuttich, 132 Tex. 159, 121
S.W.2d 332, 333 (2-4), 1938; Wm. Cameron & Co. v.                  Pat Corley cites some cases where attorney's fees
American Surety Co. of New York, 55 S.W.2d 1032,             have been allowed in suits for indemnity. These cases
1035(3), Tex.Com.App., 1932; Sherrick v. Wyland,             are not in point here. None of them involve suits be-
14 Tex.Civ.App. 299, 37 S.W. 345, 1896.                      tween husband and wife, or a former husband and wife
                                                             for wrongs arising during the existence of the marriage
     All parties to this litigation agree that there is no   relationship. Also, these cited cases are suits upon
legislative enactment permitting recovery of attorney's      indemnity bonds or suits by one joint tortfeasor to
fees in cases of this character.                             collect indemnity because of the payment of a joint
                                                             judgment against the parties to these suits. Pat Corley
                                                             and Mozelle Corley were not joint tort-feasors in this
     [6] Mozelle Corley Turner claims that the prop-
                                                             cause, and it was so stipulated by the parties to this
erty settlement agreement between her and Pat Corley
                                                             suit.
in the divorce suit prevents any recovery by Pat
against her of his attorney's fees. Pat answers that this
is not a correct construction of such settlement                  [7] Pat Corley could not recover against Mozelle
agreement and a re sume of the terms of the agree-           Corley for her tort, therefore he cannot claim indem-
ment, relied on herein, is that (1) each party to the        nity from Mozelle for the expenses incurred by him in
agreement shall be liable for his respective attorney's      defending Genevieve J. Turner's suit against both
fees, (2) that any obligation incurred by either party       parties.
after February 1, 1961, would be the separate obliga-
tion of the party incurring the same. Pat claims that if         *234 Pat Corley quotes from Sec. 914, Vol. 4,
he is forced to have his share of the community              Restatement of the Law: Torts, as follows:




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385 S.W.2d 230
(Cite as: 385 S.W.2d 230)

                                                              it is shown such section does not cover our case.
     ‘A person who through the tort of another has
been required to act in the protection of his interests by        That part of the judgment of both courts below
bringing or defending an action against a third person        which permits recovery by Pat Corley from Mozelle
is entitled to recover compensation for the reasonably        Corley Turner of any attorney's fees is reversed and
necessary loss of time, attorney's fees and other ex-         Pat Corley shall recover no attorney's fees herein.
penditures thereby suffered or incurred.’
                                                                   We now come to the contention of Mozelle Cor-
     The comment under this Sec. 914 refers to Re-            ley Turner that the trial court committed error in not
statement of Restitution, Sections 86-102, for the rule       sustaining her motion to enjoin Pat Corley's attorney,
applicable to cases such as the one we have here.             Fred Parks, Esquire, from appearing as counsel in this
Under Sec. 96 of Restitution it is stated that, ‘The          case because he was disqualified by virtue of having in
restatement of this subject does not deal with rights         the beginning of the litigation represented Pat and
dependent upon special relationships, such as husband         Mozelle Corley.
and wife and parent and child * * *.’
                                                                   As to any harm resulting to Mozelle by virtue of
     There is a very exhaustive annotation in 45              Mr. Parks representing Pat in this litigation, we have
A.L.R.2d 1184 et seq. as to recovery of attorney's fees       given Mozelle relief in our reversal and rendition of
which a plaintiff is obligated to pay in a litigation of      Pat's judgment for attorney's fees. This relief was all
his claim.                                                    the relief she sought against Pat.


      It is there stated that the general rule is that such        Mozelle seeks to reverse Genevieve's judgment
attorney's fees are not recoverable in the absence of         against her for the alienation of Harry Turner's affec-
some statutory or contract provision permitting their         tions on several points of error, one of which is based
recovery, but that there are exceptions and modifica-         on the disqualification of Mr. Parks to represent Pat.
tions to this general rule. One exception is that where a     Mozelle claims that Mr. Parks brought out in his
plaintiff has been involved in litigation with a third        questions to her confidential information which he had
party as a result of the tortious act of another, plaintiff   gained by virtue of having been her attorney at the
may recover in a separate suit for his reasonable and         beginning of the litigation.
necessary expenses of the prior litigation. In order that
such recovery may be had there are certain requisites             In this litigation Genevieve was plaintiff, and as
prescribed, the first of which is that the present plain-     such sued both Mozelle and Pat. They were
tiff (Pat Corley in his cross-action) must have incurred      co-defendants. Mr. Parks never was the attorney of
attorney's fees in the prosecution or the defense of a        Genevieve, and Genevieve in no way relied on Mr.
prior action. Another, the litigation must have in-           Parks as her attorney. At all times she had her own
volved a third party and not against the defendant            counsel to represent her.
(Mozelle Corley) in the present action. These requi-
sites are not met by the cross-action of Pat Corley
                                                                  A short re sume of this litigation and the plead-
against Mozelle for his attorney's fees.
                                                              ings filed therein will be helpful in disposing of the
                                                              question of Mr. Parks' disqualification as it affects
   This annotation discusses Sec. 914 of Restate-             Genevieve's judgment against Mozelle.
ment of the Law: Torts, relied upon by Pat Corley and




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385 S.W.2d 230
(Cite as: 385 S.W.2d 230)

     *235 Pet Corley and his then wife, Mozelle,
permanently separated December 30, 1959. Efforts                A demand that this cause be tried by a jury was
were made by mutual friends to effect a reconciliation,     made and the cause placed on the jury docket. In
but these efforts were unsuccessful.                        Harris County, Texas, there is a time lag of from fif-
                                                            teen months to two years between the placing of the
     In January of 1960, plaintiff herein, Genevieve J.     case on the jury docket and it reaching a trial.
Turner, then married to Harry A. Turner, wrote a letter
to Pat Corley demanding damages from Pat and                     In the meantime, depositions of all parties were
Mozelle by virtue of Mozelle's actions and conduct          taken, various motions were made by all parties,
having alienated the affections of Harry A. Turner.         hearings were had on various preliminary matters, etc.
Upon receipt of the letter, Pat Corley employed Fred        etc.
Parks, Esq., an attorney at the Houston, Texas bar, to
represent both him and his then wife, Mozelle, in this
                                                                 November 8, 1961, Mozelle filed her second
suit. No settlement was reached of Genevieve's claim
                                                            amended answer and for the first time filed a
for damages and she filed this suit against Pat and
                                                            cross-action against Genevieve and Pat, alleging they
Mozelle, June 3, 1960. In her original petition she
                                                            had conspired to bring this suit, and asked for recovery
alleged that the acts and conduct of Mozelle had al-
                                                            of damages against both Pat and Genevieve, jointly
ienated the affections of her husband, Harry A.
                                                            and severally, resulting from the conspiracy. Also, in
Turner, and had resulted in a breaking up of Gene-
                                                            this answer, showing the conspiracy, Mozelle made
vieve's home and the filing of a divorce action be-
                                                            allegations that Pat's counsel was antagonistic, acted
tween Genevieve and Harry. In this suit Genevieve
                                                            adversely to her, hindered her in her proper defense,
sought recovery of actual and exemplary damages
                                                            and that actions on the part of Pat's counsel showed the
against Mozelle, but sought recovery against Pat only
                                                            existence of the conspiracy between Genevieve and
to the extent of the community estate of Pat and
                                                            Pat, but filed no motion to disqualify attorney Parks.
Mozelle. To this suit attorney Parks filed an answer on
                                                            December 4, 1961, Pat Corley represented by attorney
behalf of both Pat and Mozelle.
                                                            Parks, filed an answer to Mozelle's cross-action
                                                            against him, seeking only his costs and general relief.
     No reconciliation having been effected between
Pat and Mozelle, Mozelle employed her present
                                                                Various pleadings were filed by all parties and
counsel to file a divorce suit between her and Pat. This
                                                            December 29, 1961, Mozelle for the first time by her
divorce suit was filed about September 1, 1960. Sep-
                                                            cross-action against Pat, asked for indemnity against
tember 16, 1960, Mozelle notified Pat and attorney
                                                            Pat to the extent of any judgment which Genevieve
Parks and the court that she had discharged Parks as
                                                            might recover against her, or in the alternative for
her attorney effective September 1, 1960, and had
                                                            contribution by Pat of one-half of such judgment. She
employed her present counsel to represent her inter-
                                                            continued her charge of conspiracy.
ests in both the divorce suit and the alienation of af-
fections suit.
                                                                  January 5, 1962, the trial court set the case for
                                                            trial before a jury March 12, 1962.
     Genevieve and Harry were divorced August 2,
1960. Thereafter, Genevieve on October 25, 1960,
                                                                 March 1, 1962, Mozelle filed a motion for con-
filed her first amended petition herein, and again lim-
                                                            tinuance of the trial of the case until May, 1962.
ited her prayer for recovery against Pat, as she had
                                                            March 20, 1962, Mozelle recast her pleadings and
done in her original petition.




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385 S.W.2d 230
(Cite as: 385 S.W.2d 230)

again plead a conspiracy between Pat and his counsel        $35,000.00 as a recoverable attorney's fee.
and *236 Genevieve, and asked for recovery against
Pat as theretofore plead.                                        May 21, 1962, on the call of the case for trial
                                                            Mozelle renewed her motion for disqualification of
    March 21, 1962, the trial court continued the case      Pat's counsel, attorney Parks, and the court overruled
and made a preferential setting for trial on May 21,        the same. The case then proceeded to trial, with the
1962.                                                       results set out in the first part of this opinion.


     April 14, 1962, Pat filed his second amended                [8] We recognize the rule that an attorney, after
answer to both Genevieve's suit and Mozelle's suit,         accepting employment and enjoying the confidence of
and by cross-action asked for indemnity against             one client, though afterwards discharged by his client
Mozelle for any sums he might be required to pay out        without cause, cannot in general, with propriety, ac-
of the part of the community estate of him and              cept an employment by the opposite party in the same
Mozelle which was set aside to him in the property          case. Myers v. Crockett, 14 Tex. 257 (1855, no writ
settlement between them which was approved in the           history); Crye v. O'Neal & Allday, 135 S.W. 253
judgment divorcing Pat and Mozelle on March 27,             (Tex.Civ.App., 1911, no writ history); Lamb v. Isley,
1961.                                                       114 S.W.2d 673 (Tex.Civ.App., 1938, no writ histo-
                                                            ry).
     April 16, 1962, Mozelle filed her fourth amended
original answer in which, among other things, she                [9] Without deciding the question of Mr. Parks'
alleged collusion between Pat and Genevieve to bring        disqualification to represent Pat Corley in this suit and
this alienation of affections suit and asked for relief     its effect on Genevieve's judgment, we hold that
against Pat for any judgment Genevieve might recover        Mozelle, by her failure to timely file a motion to dis-
against her.                                                qualify Mr. Parks and by securing a continuance of the
                                                            cause prior to filing a motion to disqualify Mr. Parks,
     April 23, 1962, Mozelle for the first time filed a     has waived any complaint she may have had on this
motion to disqualify Pat's attorney, Parks, on the          ground.
ground of his having represented her in 1960. The trial
court set this motion for hearing on May 2, 1962, and            Mozelle cites certain instances in which she
after a lengthy hearing, overruled Mozelle's motion to      claims that Pat's attorney, in his cross-examination of
disqualify attorney Parks.                                  her, developed very damaging testimony. We have
                                                            carefully examined the statement of facts, and find no
    May 12, 1962, Mozelle filed her fifth amended           objections lodged by Mozelle to the questions and
answer in substance the same as her fourth amended          answers on the ground of Mr. Parks' disqualification
answer and again alleged collusion between Pat and          or that the answers would divulge confidential infor-
Genevieve and sought recovery against Pat.                  mation obtained by Mr. Parks when he was repre-
                                                            senting Mozelle and Pat.
    May 18, 1962, Pat filed his third amended answer
to Genevieve's and Mozelle's suits against him and               Also, we find that such questions by Mr. Parks
asked for indemnity or in the alternative contribution      did not elicit any information or evidence not placed in
against Mozelle for any amounts he might be forced to       the record by either Genevieve's or Mozelle's attor-
pay Genevieve. He also asked for costs and for              neys. Mozelle cannot be heard to complain of the




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385 S.W.2d 230
(Cite as: 385 S.W.2d 230)

cross-examination under such circumstances.                 sustained objections and given appropriate instruc-
                                                            tions to the jury to disregard the same.
    There is nothing in the record to support a reversal
of Genevieve's judgment agaisnt Mozelle on the                   [11][12] Argument which could be properly
ground that the court failed to disqualify Mr. Parks to     cured by objection by opposing counsel and instruc-
represent Pat.                                              tion by the trial judge is not reversible error in the
                                                            absence of such objection. Unless the argument is
     *237 Mozelle cites the cases as Barreda Corp. v.       incurable, a litigant will not be permitted to lie in wait,
Ballenger, 116 S.W.2d 442, Tex.Civ.App., 1938, writ         taking a chance on a favorable verdict, and, being
dismissed; Cochran v. Cochran, 333 S.W.2d 635,              disappointed, complain for the first time of improper
Tex.Civ.App.1960, writ refused n. r. e.; Lamb v. Isley,     argument in a motion for new trial. See Wade v. Texas
114 S.W.2d 673, Tex.Civ.App., 1938, no writ history;        Emp. Ins. Ass'n, 150 Tex. 557, 244 S.W.2d 197
Bryant v. Lewis et al., 27 S.W.2d 604, Tex.Civ.App.,        (1951). See also Younger Bros. Inc. v. Myers, 159
1930, writ dismissed; and certain canons of the State       Tex. 585, 324 S.W.2d 546 (3, 4) (1959); Texas Emp.
Bar Act, as authority for the reversal of Genevieve's       Inc. Ass'n v. Haywood, 153 Tex. 242, 266 S.W.2d
judgment. In none of these cases was a third party          856(1).
involved. In each of these cases, the attorney sought to
be disqualified from representing one of the parties            Petitioner Mozelle Corley assigns error to the
had theretofore been the attorney representing the          admission of certain testimony given by deposition
party moving for the disqualification, but who now          and on the stand, by the late Col. Joe Ed Winfree.
represented his present client in a suit against a former
client.                                                         Parts of Col. Winfree's deposition were intro-
                                                            duced by counsel for Mozelle. Objections were made
    None of these cases are in point on Mozelle's at-       by Genevieve's counsel to the deposition. After
tempt to reverse Genevieve's judgment against her on        Mozelle's counsel had finished with her offer, attorney
her allegations that Mr. Parks was disqualified to          Parks offered certain other parts of the deposition.
represent Pat.
                                                                 On an objection that the answers to certain ques-
   We therefore overrule this point of error urged by       tions were hearsay, the trial court sustained the ob-
Mozelle.                                                    jection and instructed the jury:


    Mozelle makes complaint of attorney Parks' ar-              ‘Ladies and Gentlemen of the jury, you will not
gument in the submission of the cause. Mozelle made         consider as evidence in this case anything that Mr.
no objection to the argument at the time it was made.       Winfree said in this deposition about his knowledge
                                                            about what somebody else did.’
     [10] The argument was clearly of the type that any
harm it may have done could have been corrected by               At the end of offer by all parties of Col. Winfree's
timely objection and request for instructions by the        deposition, and just prior to the time he was called to
court and the giving of such instructions to the jury to    the stand by Mozelle's counsel, the court again in-
disregard such argument. We must presume that the           structed the jury:
trial judge, on proper objection being made, had he
considered the argument unfair or vicious would have            ‘Ladies and Gentlemen of the jury, in this depo-




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385 S.W.2d 230
(Cite as: 385 S.W.2d 230)

sition of Mr. Winfree you all were permitted to hear           and if any deficit remained, then, and only then, was
what he was told about, what Mrs. Corley had told Mr.          recovery sought against Pat's interest in the commu-
Corley and what Mrs. Turner had told Mr. Turner, and           nity. As far as the plaintiff Genevieve was concerned,
what Mr. Corley had told Mrs. Corley and what Mr.              there was a common ground of liability against both
Turner had told Mrs. Turner.                                   defendants and the issues between plaintiff and each
                                                               defendant were the same. fees as against Mozelle
     ‘Now, you will not consider the statements, you           Corley have actions against the other as to the extent
will not consider Mr. Winfree's recitations of what he         of their own liability would not entitle each to six
was told on that hearsay testimony as proof of the truth       peremptory challenges as against plaintiff's cause of
of these conversations between*238 Mr. and Mrs.                action. Hargrave v. Vaughn, 82 Tex. 347, 18 S.W.
Corley and Mr. and Mrs. Turner.’                               695 (1891); Wolf v. Perryman, 82 Tex. 112, 17 S.W.
                                                               772 (1891); Retail Credit Co. v. Hyman, 316 S.W.2d
                                                               769(1-4), Tex.Civ.App.1958, writ refused.
    Mozelle makes no complaint of any testimony
given by Col. Winfree in person in open court.
                                                                    The trial court offered to permit Mozelle and her
                                                               attorney to be with Pat and his counsel while both
     As to the complaints of what Col. Winfree testi-
                                                               parties were making their challenges to the jury. Pat
fied in his deposition that he told the parties to this suit
                                                               and his counsel agreed to this procedure, but Mozelle
as to his conclusions about their conduct, we have
                                                               and her counsel would not agree.
examined the five large volumes of the statement of
facts, and find that the various parties in their testi-
mony gave similar testimony without objection.                      Mozelle argues that there was jury misconduct
                                                               requiring a reversal of Genevieve's judgment. Upon
                                                               the hearing of the motion for new trial, it developed
     [13] Looking at the record as a whole, we do not
                                                               that the alleged misconduct complained of had been
find such error in admitting Col. Winfree's deposition
                                                               promptly corrected by the foreman of the jury imme-
testimony as to hearsay and the Colonel's conclusions
                                                               diately upon its happening, and no further mention
as amounted to such a denial of the right of the peti-
                                                               was made of the matters. Also, the evidence sustained
tioner as was reasonably calculated to cause and that
                                                               the trial court's finding that the jury did not arrive at
probably did cause the rendition of an improper
                                                               their answers to the amount of damages by means of a
judgment in the case.
                                                               quotient verdict.

    We therefore overrule this assignment of error.
                                                                    [15] Mozelle complains that the trial court erred
                                                               in permitting evidence to be introduced as to her
     [14] Mozelle also seeks to reverse Genevieve's
                                                               wealth. Mozelle had pleaded the property settlement
judgment against her on the ground that the trial court
                                                               between her and Pat. This showed that Mozelle was a
refused to grant six peremptory challenges to Mozelle
                                                               wealthy woman. All parties, including Mozelle, tes-
rather than only six to both Pat and Mozelle.
                                                               tified, without objection, as to her wealth. Also,
                                                               Genevieve, as a part of her cause of action, had
    The suit against Mozelle brought by Genevieve              pleaded that Mozelle had used her greater wealth as a
also included Pat as a defendant, but the recovery             means of alienating Harry's affections. This being
sought against Pat was limited to his part of the              true, no error is shown. Cramer v. Cramer, 106
community property which had belonged to Pat and               Wash. 681, 180 P. 915 (1919); Baltzly v. Gruenig, 127
Mozelle. Recovery was first sought against Mozelle             Neb. 520, 256 N.W. 4 (1934); 27 Am.Jur. 167; 42




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385 S.W.2d 230
(Cite as: 385 S.W.2d 230)

C.J.S. Husband and Wife s 688, p. 341, and authorities           In all other respects the judgment of the Court of
cited in each text.                                          Civil Appeals is affirmed.


     Mozelle urges error in the action of the trial court    SMITH, Justice (dissenting).
and Court of Civil Appeals in holding that the                    I disagree with the holding that Pat Corley is not
two-year statute, and alternatively the four-year stat-      entitled to a recovery of his attorney's fees as afainst
ute of limitations did not bar this action. The separa-      Mozelle Corley Turner.
tion of Genevieve and Harry Turner occurred*239
December 30, 1959, when Harry for the first time told        TEX. 1965.
Genevieve that he no longer loved her, but loved             Turner v. Turner
Mozelle and wanted a divorce so he could marry               385 S.W.2d 230
Mozelle. This suit was filed in June, 1960.
                                                             END OF DOCUMENT
     [16] The period of limitation begins to run from
the time of the loss of consortium and not from the
time that Harry Turner felt a lessening of his affection
for Genevieve. 27 Am.Jur. p. 140; Smith v. Smith, 225
S.W.2d 1001(5-12), Tex.Civ.App., no writ history.
See also, Collier v. Perry, 149 S.W.2d 292
Tex.Civ.App., dismissed correct judgment; 173
A.L.R. 776 et seq. and authorities there cited.


     Mozelle has assignments as to certain paragraphs
of the court's charge. We have carefully examined the
charge, and do not find it subject to the objections
urged. These assignments are overruled.


     [17] Mozelle claims the judgment entered is not a
final judgment, because it does not in so many words
dispose of her cross-action against Pat. The judgment
sets out a recovery for Pat of his attorney's fees against
Mozelle, and also specifically denies Mozelle's mo-
tion for judgment non obstante veredicto. In this mo-
tion Mozelle had requested judgment over against Pat,
and a denial of this relief effectively disposes of this
issue. This assignment is overruled.


     The judgment of the Court of Civil Appeals in so
far as it allows Pat to recover an attorney's fee from
Mozelle is reversed and judgment here rendered that
Pat take nothing against Mozelle as to this item.




                             © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
                                                                                 Date of Printing: Feb 06, 2015


                                                KEYCITE


 Turner v. Turner, 385 S.W.2d 230 (Tex., Nov 25, 1964) (NO. A-9803)
                                                  History

                                               Direct History



           1 Turner v. Turner, 369 S.W.2d 675 (Tex.Civ.App.-Waco Jun 20, 1963) (NO. 4107), writ granted (Jan
             15, 1964)
                              Judgment Affirmed in Part, Reversed in Part by
=>         2 Turner v. Turner, 385 S.W.2d 230 (Tex. Nov 25, 1964) (NO. A-9803)



                                    Negative Citing References (U.S.A.)

Overruling Recognized by
           3 Commissioners Court of Dallas County v. Buster, 2003 WL 22810455 (Tex.App.-El Paso Nov 25,
             2003) (NO. 08-02-00048-CV), review denied (May 07, 2004)     HN: 9 (S.W.2d)
           4 Aspen Technology, Inc. v. M3 Technology, Inc., 569 Fed.Appx. 259, 2014 Copr.L.Dec. P 30,611 (5th
             Cir.(Tex.) May 29, 2014) (NO. 12-20388, 13-20268) HN: 5 (S.W.2d)
Distinguished by
           5 Chaffin v. Transamerica Ins. Co., 731 S.W.2d 728 (Tex.App.-Hous. (14 Dist.) May 28, 1987) (NO.
             C14-86-393-CV), writ refused n.r.e. (Sep 16, 1987)    HN: 7 (S.W.2d)
           6 Industrial Acc. Bd. of State of Tex. v. Spears, 790 S.W.2d 55 (Tex.App.-San Antonio Apr 25, 1990)
             (NO. 04-90-00007-CV), motion to file mandamus granted (Jun 13, 1990)         HN: 9 (S.W.2d)




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App. H
                                                       DC       BK13199 PG840
Notice sent:    Finai   Interlocutory   None
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Judge_lJ~  T. _         C-ler-k-Af1+---        CAUSE NO. D-1-GN-07-002328

         RICHARD T. ARCHER, DAVID R.             §                                 IN DISTRICT COURT
         ARCHER, CAROL ARCHER BUGG,              §
         JOHN V. ARCHER, KAREN ARCHER            §                                                        ~       (/)
         BALL, AND SHERRI ARCHER, Plaintiffs     §                                                        ::s ro
                                                                                                          0 ><
                                                                                                          (.) <lJ
                                                 §                              345th JUDICIAL DISTRICT   ,,_, 1-
                                                                                                          (.)
                                                                                                          ,_: '.':>;--
         v.                                      §                                                        .,_"' .s;:... -
                                                                                                           CJ) c

                                                 §                                                        ·- ::s
                                                                                                          Co
                                                                                                          cu(.)
         DOUGLASS HEARNE, T. MARK                §                                                        .c (/)
                                                                                                          I-·-
         ANDERSON, Individually and as co-       §                                                         c: >
                                                                                                          ·- ~
                                                                                                          "Cl-
         Executor of the estate of Ted Anderson, §                                                        cu-
                                                                                                          :::o
         CHRISTINE ANDERSO.N, as co-             §                                                        LL

         Executor of the estate of Ted Anderson, §
         And RICHARD LESHIN, Defendants          §                              TRAVIS COUNTY, TEXAS

                        btV\41()/J
          Order ~Plaintiffs' Motion for Partial Judgment Notwithstanding the
                        Verdict on the Jury's Damage Finding

                    On the      11      day of June 2013, came on for hearing, Plaintiffs' Motion/or Partial

         Judgment Notwithstanding the Verdict on the Jury's Damage Finding.                            Having

         considered the motion, the trial evidence, response if any, and arguments of counsel, the

         Court is of the opinion that the motion is well-taken and should in all things be

        tiPatkt l'I EEJ.      I) lVli u{ · Q)
                   IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED that Plaintiffs'

         Motion for Partial Judgment Notwithstanding the Verdict on the Jury's Damage Finding

         is6Mti'fED.            ~                .

                  -   ©)
                  ~··~~



                                                                                1209
App. I
                                                                                         Filed
                                                                                         13July17 A9:16
                                                                                         Amalia Rodriguez-Mendoza
                                                                                         District Clerk
                                                                                         Travis District
                                                                                         D-1-GN-07-002328
                                    CAUSE NO. l-GN-07-002328

Richard T. Archer, David                       §              IN THE DISTRICT COURT
B. Archer, Carol Archer                        §
Bugg, John V. Archer,                          §
Karen Archer Ball, and                         §
Sherri Archer,                                 §
                      Plain tiffs              §
                                               §
v.                                             §              345th JUDICIAL DISTRICT
                                               §
Douglass Hearne, T. Mark Anderson,             §
Individually and as co-executor                §
of Estate of Ted Anderson, Christine           §
Anderson, as co-executor of the                §
Estate of Ted M. Anderson; and                 §
Richard Leshin,                                §              TRAVIS COUNTY, TEXAS
                      Defendants

DEFENDANTS, T. MARK ANDERSON, INDIVIDUALLY AND AS CO-EXECUTOR OF
 ESTATE OF TED ANDERSON, AND CHRISTINE ANDERSON, AS CO-EXECUTOR
 OF THE ESTATE OF TED. M ANDERSON'S MOTION FOR PARTIAL JUDGMENT
                  NOTWITHSTANDING THE VERDICT


TO THE HONORABLE JUDGE OF THE COURT:

       Defendants, T. Mark Anderson, Individually and as co-executor of the Estate of Ted

Anderson, and Christine Anderson, as co-executor of the Estate of Ted M. Anderson file this their

Motion for Partial Judgment Not Withstanding the Verdict, respectfully showing the Court the

following:

                           PROCEDURAL AND FACT SUMMARY

       This case was submitted to the jury on two issues, liability for tortious interference with

inheritance, and damages. The jury found for Plaintiffs on liability and in the single blank under the

question on damages wrote in the amount of $2,006,150.

       Plaintiffs evidence on damages consisted of their claim for $588,054 which testimony




                                                                                                         1210
indicated was the amount paid by Plaintiffs to certain charities to secure a settlement with those

charities to avoid a will contest, and their claim for $2,865,928 in attorneys' fees and expenses paid

in all the prior litigation in the guardianship proceedings which included the litigation with the

charities. Defendants asserted from the outset that Plaintiffs have no viable claim for recovery of

attorneys' fees as damages in this action, sought to exclude testimony on such damages, objected to

such testimony and sought a partial directed verdict on the issue. Because Defendants assert that

Texas law does not permit the recovery of attorneys' fees as damages in a tort case like this one, and

in the alternative, Defendants assert Plaintiffs' evidence is legally insufficient to support the jury's

award of attorneys' fees as part of the Plaintiffs' damages, Defendants bring this motion.

                               ARGUMENT AND AUTHORITIES

        1. Standard for granting a partial judgment notwithstanding the verdict.

        A partial judgment notwithstanding the verdict is proper if a directed verdict would have

been proper. TEX. R. Crv. P. 301. If, as a matter oflaw, the claimant's evidence does not

describe a cause of action recognized in Texas, the court may grant a motion for partial summary

judgment. Further the court may disregard any jury finding on a question that has no support in

the evidence. Id


      2. Texas has not adopted the "tort of another" exception to the general rule on
recovery of attorneys' fees as damages.

        In Turner v. Turner, the case relied upon by Plaintiffs, the supreme court discussed,

without expressly adopting, that exception to the general rule that attorney's fees are not

available as actual damages. Turner v. Turner, 385 S.W. 2d. 230, 234 (Tex. 1965). In Turner,

the court that the claimant did not meet the criteria of the theory upon which he was

                                                   2



                                                                                                           1211
expressly relying, and therefore denied his claim for attorneys' fees, without any comment

on whether the theory was valid. Id. In 2009, the Texas Supreme Court clarified its earlier

opinion in Turner by stating, "... we need not and do not address whether the ['tort of

another'] exception set out in section 914(2) of the Second Restatement should be adopted

as Texas law. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat' l Dev. and Research Corp., 299

S.W.3d 106, 119 (Tex. 2009).

        Texas intermediate appellate courts are divided on whether section 914(2) is the law

in Texas. Compare Naschke v. Gulf Coast Conference, 187 S.W.3d 653, 655 (Tex.App.-Houston

[14th Dist.] 2006, pet. denied) (declining to adopt tort of another exception in section 914(2));

Peterson v. Dean Witter Reynolds, Inc., 805 S.W.2d 541, 549 (Tex.App.-Dallas 1991, no writ);

Cupples Coiled Pipe, Inc. v. Esco Supply Co., 591S.W.2d615, 619 (Tex.Civ.App.-El Paso 1979,

writ ref'd n.r.e.); Dalton Steamship Corp. v. WR. Zanes & Co., 354 S.W.2d 621, 624

(Tex.Civ.App.-Fort Worth 1962, no writ), with Lesikar v. Rappeport, 33 S.W.3d 282, 306 (Tex.

App .-Texarkana 2000, pet. denied) (adopted tort of another exception under Restatement

section 914(2)); Estate ofArlitt v. Paterson, 995 S.W.2d 713, 721 (Tex.App.-San Antonio 1999,

pet. denied), overruled on other grounds, Belt v. Oppenheimer, Blend, Harrison & Tate, Inc.,

192 S.W.3d 780 (Tex.2006); Standard Fire Ins. Co. v. Stephenson, 963 S.W.2d 81, 90-91

(Tex.App.-Beaumont 1997, no pet.); Baja Energy, Inc. v. Ball, 669 S.W.2d 836, 839 (Tex.App.-

Eastland 1984, no writ); Powell v. Narried, 463 S.W.2d 43, 46 (Tex.Civ.App.-El Paso 1971,

writ ref'd n.r.e.).




                                               3



                                                                                                    1212
       As the 14th District Court of Appeals declared in declining to adopt an equitable

exception to the general rule against recovery of attorneys' fees from prior litigation with

others as damages, "Because we are bound to follow the existing laws of the State, we are

not at liberty to adopt a theory of recovery that has not been enacted by the Legislature or

adopted by the Texas Supreme Court."              Naschke, 187 S.W.3d at 655.    Defendants

respectfully assert that the clearest and strongest authority is that the "tort of another"

exception, embodied in Restatement of Torts§ 914(2) (1979), the Legislature or the Supreme

is not the law of the State of Texas. For that reason alone, Plaintiffs' Motion for Partial

Judgment NOV must fail.

      3. Plaintiffs did not discharge their burden of proof for recovery of attorneys' fees
as damages.

       Even is the Court determines that attorneys' fees are an available element of

damages, which Defendants deny, Plaintiffs failed to meet their burden of proof.


              A. Plaintiffs had a duty to segregate recoverable from non-recoverable fees.

       The Texas Supreme Court has repeatedly held that "a prevailing party must

segregate recoverable from unrecoverable attorney's fees in all cases." Varner v. Cardenas,

218 S.W.3d 68, 69 (Tex. 2007) (per curiam); A.G. Edwards & Sons, Inc. v. Beyer, 235 S.W.3d

704, 710 (Tex. 2007); Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313-14 (Tex. 2006);

Stewart Title Guar. Co. v. Aiello, 941 S.W.2d 68, 73 (Tex. 1997); Stewart Title Guar. Co. v.

Sterling, 822 S.W.2d 1, 10 (Tex. 1991); Matthews v. Candlewood Builders, Inc., 685 S.W.2d 649,

650 (Tex. 1985).   An attorney may segregate either by (1) proving time spent on a


                                              4




                                                                                                 1213
recoverable claim and excluding time spent on a non-recoverable claim, or (2) subtracting a

percentage of the time from the total time expended on the case to account time spent on

the unrecoverable claim. Tony Gullo Motors I, L.P. at 314.



       Plaintiffs argue they are exempt from the need to segregate because of the

recognized exception for so called inextricably intertwined legal services. Defendants

assert Plaintiffs do not qualify for the exception in this case. The Texas Supreme Court has

held that when discrete legal services advance both a recoverable and unrecoverable claim,

and the claims are so intertwined that it is impossible to determine which part of the

attorney's work is attributable to a non-recoverable claim, no segregation is required. Id at

313-14. But where attorney's fees "relate solely to a claim for which ... fees are

unrecoverable, a claimant must segregate recoverable from unrecoverable fees." Id. The

Supreme Court explained that a common set of underlying facts is insufficient to make all

claims arising therefrom 'inseparable' and all legal fees recoverable. Id.

              B. Plaintiffs failed as a matter of law to meet their burden to segregate.

       In our case, Plaintiffs' evidence showed they brought claims against a number of

individuals in the guardianship action which had nothing to do with their claim of tortious

interference with inheritance rights against Ted Anderson. For example, they spent a great

deal of time in pursuit of legal malpractice claims against many defendants, for which the

probate court and the court of appeals ruled they had no standing. Also, Plaintiffs sought

damages on behalf of Jack Archer's estate for alleged negligence by Mr. J. R. Hamilton, the


                                              5



                                                                                                1214
temporary guardian of his estate. In addition, they pursued and settled claims for the

estate against Mr. Doug Hearne for his handling of funds in his law firm's trust accounts

which they claimed should have administered by the guardian of the estate. They sued Mr.

Buster Adame, another attorney for Jack Archer; and they sued Ms. Pamela Rucker, the

temporary guardian of the person of Jack Archer. None of these claims involved Mr.

Anderson.     Plaintiffs presented no evidence of, and did not seek jury findings of a

conspiracy between Mr. Anderson and any other persons they pursued in the probate

court.

               C. Plaintiffs evidence is legally insufficient to show reasonableness and

necessity.

         Plaintiffs had the burden to prove the attorneys fees sought were reasonable and

necessary. Stewart Title Guaranty Company v. Sterling, 822 S.W.2d 1, 10 (Tex. 1992). Texas

follows the lodestar method for awarding attorneys' fees. El Apple I, Ltd. v. Olivas, 370

S.W.3d 757, 760 (Tex.2012). This method is required in cases involving contingent fee

contracts. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818-19 (Tex. 1997). In

Arthur Andersen, a DTPA case, the Texas Supreme Court made clear that a party seeking

attorneys' fees must do more than present a contingent fee contract and make conclusory

statements regarding the reasonableness and necessity of the fees. Factors that a factfinder

should consider when determining the reasonableness of a fee include:

(1) the time and labor required, the novelty and difficulty of the questions involved, and

the skill required to perform the legal service properly;


                                              6




                                                                                                 1215
(2) the likelihood ... that the acceptance of the particular employment will preclude other

employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services;

and

(8) whether the fee is fixed or contingent on results obtained or uncertainty of collection

before the legal services have been rendered. Id. at 818, citing Tex. Disciplinary R. Prof.

Conduct 1.04, reprinted in Tex. Gov't Code, tit. 2, subtit. Gapp. (State Bar Rules, art. X, § 9);

see also Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex.1990); cf General

Motors Corp. v. Bloyed, 916 S.W.2d 949, 960-961 (Tex.1996) (discussing the relative strengths

and weaknesses of the contingent fee and lodestar methods of awarding attorneys fees in

the context of a court-approved class action settlement). "In other words, the plaintiff

cannot simply ask the jury to award a percentage of the recovery as a fee because without

evidence of the factors identified in Disciplinary Rule 1.04, the jury has no meaningful way

to determine if the fees were in fact reasonable and necessary." Id.

       Here, Plaintiffs failed to put on sufficient evidence of all the factors listed above.

There is no evidence at all in the record regarding the matters covered in numbers (1), (2),




                                                7



                                                                                                    1216
(3), (5), (7) and (8). As a result, Plaintiffs are not entitled to an award of attorneys' fees as

part of their damages.


                                       CONCLUSION

       For the reasons given above, Defendants respectfully urge the Court to grant their

Motion for Partial Judgment Notwithstanding the Verdict, and modify the jury's finding on

damages to reflect the only element properly proved, that is, $588,054.00, the amount paid

by Plaintiffs in settlement with the charities in the prior litigation, and grant Defendants

any further relief to which they may show themselves justly entitled.

                                                    Respectfully submitted,


                                                    THE LAW OFFICE OF GERALD D.
                                                    MCFARLEN, PC
                                                    1001 South Main # 2
                                                    Boerne, TX 78006
                                                    Phone: (830) 331-8554
                                                    Fax: (210) 568-4305


                                                    BY: Ce..y~ D. /VlU:CLVluv
                                                           GERALD D. McF ARLEN
                                                           State Bar No. 13604500

                                                    ATTORNEYS FOR DEFENDANTS,
                                                    T. MARK ANDERSON, INDIVIDUALLY
                                                    AND AS CO-EXECUTOR OF THE ESTATE
                                                    OF TED ANDERSON, AND CHRISTINE
                                                    ANDERSON, AS CO-EXECUTOR OF THE
                                                    ESTATE OF TED M. ANDERSON




                                                8




                                                                                                    1217
                                CERTIFICATE OF SERVICE


       I do hereby certify that on the 16th of July, 2013, a true and correct copy of Defendants'
Designation of Testifying Experts was furnished to all counsel of record in accordance with the
Texas Rules of Civil Procedure.

       Frank N. IKard, Jr.
       Laurie Ratliff
       Lauren Davis
       IKARD GOLDEN JONES, P.C.
       400 West 15th Street, Suite 975
       Austin, Texas 78701-1646
       ATTORNEYS FOR PLAINTIFFS




                                            Ce.y~ D.      /VlU:CLVluv
                                            GERALD D. McF ARLEN




                                                9




                                                                                                    1218
App. J
                                                                                         Filed
                                                                                         13 July25 A10:28
                                                                                         Amalia Rodriguez-Mendoza
                                                                                         District Clerk
                                                                                         Travis District
                                                                                         D-1-GN-07-002328
                                    CAUSE NO. l-GN-07-002328

Richard T. Archer, David                       §              IN THE DISTRICT COURT
B. Archer, Carol Archer                        §
Bugg, John V. Archer,                          §
Karen Archer Ball, and                         §
Sherri Archer,                                 §
                      Plain tiffs              §
                                               §
v.                                             §              345th JUDICIAL DISTRICT
                                               §
Douglass Hearne, T. Mark Anderson,             §
Individually and as co-executor                §
of Estate of Ted Anderson, Christine           §
Anderson, as co-executor of the                §
Estate of Ted M. Anderson; and                 §
Richard Leshin,                                §              TRAVIS COUNTY, TEXAS
                      Defendants

DEFENDANTS, T. MARK ANDERSON, INDIVIDUALLY AND AS CO-EXECUTOR OF
 ESTATE OF TED ANDERSON, AND CHRISTINE ANDERSON, AS CO-EXECUTOR
     OF THE ESTATE OF TED. M ANDERSON'S MOTION FOR JUDGMENT
 NOTWITHSTANDING THE VERDICT, AND IN THE ALTERNATIVE, AMENDED
   MOTION FOR PARTIAL JUDGMENT NOTWITHSTANDING THE VERDICT


TO THE HONORABLE JUDGE OF THE COURT:

       Defendants, T. Mark Anderson, Individually and as co-executor of the Estate of Ted

Anderson, and Christine Anderson, as co-executor of the Estate of Ted M. Anderson file this their

Motion for Judgment Notwithstanding the Verdict, and in the alternative, Amended Motion for

Partial Judgment Not Withstanding the Verdict, respectfully showing the Court the following:

                           PROCEDURAL AND FACT SUMMARY

       This case was submitted to the jury on two issues, liability for tortious interference with

inheritance, and damages. The jury found for Plaintiffs on liability and in the single blank under the

question on damages wrote in the amount of $2,006,150.

       Plaintiffs' alleged damages consisted of their claim for $588,054 which testimony indicated




                                                                                                         1264
was the amount paid by Plaintiffs to certain charities to secure a settlement with those charities to

avoid a will contest, and their claim for $2,865,928 in attorneys' fees and expenses paid in all the

prior litigation in the guardianship proceedings which included the litigation with the charities.

Defendants assert that Texas law does not recognize a cause of action for tortious interference with

inheritance, as it has never been adopted by the Legislature or the Texas Supreme Court. In the

alternative, and without waiving their right to challenge the legal basis for Plaintiffs' cause of action,

Defendants would show that Plaintiffs have no viable claim for recovery of attorneys' fees as

damages in this action.

  STANDARD FOR GRANTING MOTIONS FOR JUDGMENT NOTWITHSTANDING
                          THE VERDICT


        1.. If a plaintiff asserts a claim based on a cause of action which is not recognized in

Texas, the trial court is authorized to grant a summary judgment against the plaintiff as to such a

claim. Helena Labs. v. Snyder, 886 S.W.2d 767, 768-69 (Tex. 1994) (affirming summary

judgment against plaintiff who asserted a cause of action for negligent interference with family

relationship), the court may grant a motion for summary judgment. The standard is the same for

a motion for judgment notwithstanding the verdict. A judgment notwithstanding the verdict is

proper if a directed verdict would have been proper. Tex. R. Civ. P. 301. Further the court may

disregard any jury finding on a question that has no support in the evidence. Id


                               ARGUMENT AND AUTHORITIES

                       Motion for Judgment Notwithstanding the Verdict

       2. As a matter of law, Texas does not recognize tortious interference with
inheritance as a cognizable cause of action.


                                                    2



                                                                                                             1265
      It is respectfully submitted that the Supreme Court of Texas not only has thus far

failed to recognize a cause of action for tortious interference with inheritance rights,

but that it never will. . Neither the Texas Supreme Court nor the Texas Legislature has

adopted RESTATEMENT (SECOND) OF TORTS §77 4B (1979). Plaintiffs' only authorities for

the submission of this cause are cases decided by intermediate courts of appeals and

not considered by the Supreme Court. See Kjng v. Acker, 725 S.W 2d 750 (Tex App.-

Houston [1st Dist.] 1987, no writ; and Meduna v. Holder, No. 03-06-00484-CV, 2008 WL

2 (Tex. App.-Austin April 30, 2008, pet. denied), the latter case not reported in

Southwest Reporter.

      Even if the Supreme Court of Texas were to deem it advisable to permit plaintiffs

to sue certain classes or types of defendants for tortious interference with inheritance,

it would not do so as to attorneys at law. Texas has a bright line privity rule with

respect to claims which can be asserted against an attorney who, like this Defendant,

has prepared trusts or wills for a client. In Barcelo v. EJHott, 923 S.W.2d 575 (Tex.

1996), the Supreme Court of Texas extensively analyzed the public policy

considerations involved in permitting persons who were intended beneficiaries under a

will or trust to file a negligence claims against the attorney who represented the

testator or settlor in drafting the will or trust. Our Supreme Court held that:

      "In sum, we are unable to craft a bright-line rule that allows a lawsuit to proceed

where alleged malpractice causes a will or trust to fail in a manner that casts no real



                                            3



                                                                                            1266
doubt on the testator's intentions, while inhibiting actions in other situations. We

believe the greater good is served by preserving a bright-line privity rule that denies a

cause of action to all beneficiaries whom the attorney did not represent This will

ensure that attorneys may in all causes zealously represent their clients without the

threat of suit from third parties compromising that representation." Id at 579

(emphasis added).

       While the evidence showed that Ted Anderson and Jack Archer had been friends

for over 35 years, and that Mr. Anderson did not request or receive any compensation

or benefits for assisting his friend Mr. Archer after his stroke, Plaintiffs repeatedly

characterized him as acting in the capacity of an attorney at laws, and presented an

expert to criticize his conduct under the standard of care of attorneys at law. Under the

circumstances, Mr. Anderson should be accorded the protections of the rule laid down

in Barcelo.

    3. Texas has not adopted the "tort of another" exception to the general rule on
   recovery of attorneys' fees as damages.

       In the event the Court is persuaded that Plaintiffs have pleaded and proved a cause

of action recognized in Texas law, which Defendants deny, in the alternative, and without

waiving their rights to appeal either the viability of Plaintiffs legal theories of this case, or

the method of its submission to the jury, Defendants would respectfully show the court

that a significant portion of the damages found by the jury is fatally flawed and lacks




                                               4




                                                                                                    1267
support in the law. Plaintiffs are not entitled to claim their attorneys fees and expenses

from the Bexar County Probate Court as damages in this case.

       In Turner v. Turner, the case relied upon by Plaintiffs, the supreme court discussed,

without expressly adopting, that exception to the general rule that attorney's fees are not

available as actual damages. Turner v. Turner, 385 S.W. 2d. 230, 234 (Tex. 1965). In Turner,

the court that the claimant did not meet the criteria of the theory upon which he was

expressly relying, and therefore denied his claim for attorneys' fees, without any comment

on whether the theory was valid. Id. In 2009, the Texas Supreme Court clarified its earlier

opinion in Turner by stating, "... we need not and do not address whether the ['tort of

another'] exception set out in section 914(2) of the Second Restatement should be adopted

as Texas law. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat' l Dev. and Research Corp., 299

S.W.3d 106, 119 (Tex. 2009).

       Texas intermediate appellate courts are divided on whether section 914(2) is the law

in Texas. Compare Naschke v. Gulf Coast Conference, 187 S.W.3d 653, 655 (Tex.App.-Houston

[14th Dist.] 2006, pet. denied) (declining to adopt tort of another exception in section 914(2));

Peterson v. Dean Witter Reynolds, Inc., 805 S.W.2d 541, 549 (Tex.App.-Dallas 1991, no writ);

Cupples Coiled Pipe, Inc. v. Esco Supply Co., 591S.W.2d615, 619 (Tex.Civ.App.-El Paso 1979,

writ ref'd n.r.e.); Dalton Steamship Corp. v. WR. Zanes & Co., 354 S.W.2d 621, 624

(Tex.Civ.App.-Fort Worth 1962, no writ), with Lesikar v. Rappeport, 33 S.W.3d 282, 306 (Tex.

App .-Texarkana 2000, pet. denied) (adopted tort of another exception under Restatement

section 914(2)); Estate ofArlitt v. Paterson, 995 S.W.2d 713, 721 (Tex.App.-San Antonio 1999,


                                               5



                                                                                                    1268
pet. denied), overruled on other grounds, Belt v. Oppenheimer, Blend, Harrison & Tate, Inc.,

192 S.W.3d 780 (Tex.2006); Standard Fire Ins. Co. v. Stephenson, 963 S.W.2d 81, 90-91

(Tex.App.-Beaumont 1997, no pet.); Baja Energy, Inc. v. Ball, 669 S.W.2d 836, 839 (Tex.App.-

Eastland 1984, no writ); Powell v. Narried, 463 S.W.2d 43, 46 (Tex.Civ.App.-El Paso 1971,

writ ref'd n.r.e.).

        As the 14th District Court of Appeals declared in declining to adopt an equitable

exception to the general rule against recovery of attorneys' fees from prior litigation with

others as damages, "Because we are bound to follow the existing laws of the State, we are

not at liberty to adopt a theory of recovery that has not been enacted by the Legislature or

adopted by the Texas Supreme Court."              Naschke, 187 S.W.3d at 655.   Defendants

respectfully assert that the clearest and strongest authority is that the "tort of another"

exception, embodied in Restatement of Torts§ 914(2) (1979), the Legislature or the Supreme

is not the law of the State of Texas. For that reason alone, Plaintiffs' Motion for Partial

Judgment NOV must fail.

      4. Plaintiffs did not discharge their burden of proof for recovery of attorneys' fees
as damages.

        Even is the Court determines that attorneys' fees are an available element of

damages, which Defendants deny, Plaintiffs failed to meet their burden of proof.


                A. Plaintiffs had a duty to segregate recoverable from non-recoverable fees.

        The Texas Supreme Court has repeatedly held that "a prevailing party must

segregate recoverable from unrecoverable attorney's fees in all cases." Varner v. Cardenas,


                                              6




                                                                                               1269
218 S.W.3d 68, 69 (Tex. 2007) (per curiam); A.G. Edwards & Sons, Inc. v. Beyer, 235 S.W.3d

704, 710 (Tex. 2007); Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313-14 (Tex. 2006);

Stewart Title Guar. Co. v. Aiello, 941 S.W.2d 68, 73 (Tex. 1997); Stewart Title Guar. Co. v.

Sterling, 822 S.W.2d 1, 10 (Tex. 1991); Matthews v. Candlewood Builders, Inc., 685 S.W.2d 649,

650 (Tex. 1985).   An attorney may segregate either by (1) proving time spent on a

recoverable claim and excluding time spent on a non-recoverable claim, or (2) subtracting a

percentage of the time from the total time expended on the case to account time spent on

the unrecoverable claim. Tony Gullo Motors I, L.P. at 314.



       Plaintiffs argue they are exempt from the need to segregate because of the

recognized exception for so called inextricably intertwined legal services. Defendants

assert Plaintiffs do not qualify for the exception in this case. The Texas Supreme Court has

held that when discrete legal services advance both a recoverable and unrecoverable claim,

and the claims are so intertwined that it is impossible to determine which part of the

attorney's work is attributable to a non-recoverable claim, no segregation is required. Id at

313-14. But where attorney's fees "relate solely to a claim for which ... fees are

unrecoverable, a claimant must segregate recoverable from unrecoverable fees." Id. The

Supreme Court explained that a common set of underlying facts is insufficient to make all

claims arising therefrom 'inseparable' and all legal fees recoverable. Id.

              B. Plaintiffs failed as a matter of law to meet their burden to segregate.




                                              7



                                                                                                 1270
         In our case, Plaintiffs' evidence showed they brought claims against a number of

individuals in the guardianship action which had nothing to do with their claim of tortious

interference with inheritance rights against Ted Anderson. For example, they spent a great

deal of time in pursuit of legal malpractice claims against many defendants, for which the

probate court and the court of appeals ruled they had no standing. Also, Plaintiffs sought

damages on behalf of Jack Archer's estate for alleged negligence by Mr. J. R. Hamilton, the

temporary guardian of his estate. In addition, they pursued and settled claims for the

estate against Mr. Doug Hearne for his handling of funds in his law firm's trust accounts

which they claimed should have administered by the guardian of the estate. They sued Mr.

Buster Adame, another attorney for Jack Archer; and they sued Ms. Pamela Rucker, the

temporary guardian of the person of Jack Archer. None of these claims involved Mr.

Anderson.     Plaintiffs presented no evidence of, and did not seek jury findings of a

conspiracy between Mr. Anderson and any other persons they pursued in the probate

court.

               C. Plaintiffs evidence is legally insufficient to show reasonableness and

necessity.

         Plaintiffs had the burden to prove the attorneys fees sought were reasonable and

necessary. Stewart Title Guaranty Company v. Sterling, 822 S.W.2d 1, 10 (Tex. 1992). Texas

follows the lodestar method for awarding attorneys' fees. El Apple I, Ltd. v. Olivas, 370

S.W.3d 757, 760 (Tex.2012). This method is required in cases involving contingent fee

contracts. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818-19 (Tex. 1997).


                                             8




                                                                                              1271
In Arthur Andersen, a DTPA case, the Texas Supreme Court made clear that a party

seeking attorneys' fees must do more than present a contingent fee contract and make

conclusory statements regarding the reasonableness and necessity of the fees. Factors that

a factfinder should consider when determining the reasonableness of a fee include:

(1) the time and labor required, the novelty and difficulty of the questions involved, and

the skill required to perform the legal service properly;

(2) the likelihood ... that the acceptance of the particular employment will preclude other

employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services;

and

(8) whether the fee is fixed or contingent on results obtained or uncertainty of collection

before the legal services have been rendered. Id. at 818, citing Tex. Disciplinary R. Prof.

Conduct 1.04, reprinted in Tex. Gov't Code, tit. 2, subtit. Gapp. (State Bar Rules, art. X, § 9);

see also Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex.1990); cf General

Motors Corp. v. Bloyed, 916 S.W.2d 949, 960-961 (Tex.1996) (discussing the relative strengths

and weaknesses of the contingent fee and lodestar methods of awarding attorneys fees in

the context of a court-approved class action settlement). "In other words, the plaintiff


                                                9




                                                                                                    1272
cannot simply ask the jury to award a percentage of the recovery as a fee because without

evidence of the factors identified in Disciplinary Rule 1.04, the jury has no meaningful way

to determine if the fees were in fact reasonable and necessary." Id.

       Here, Plaintiffs failed to put on sufficient evidence of all the factors listed above.

There is no evidence at all in the record regarding the matters covered in numbers (1), (2),

(3), (5), (7) and (8). As a result, Plaintiffs are not entitled to an award of attorneys' fees as

part of their damages.


                                       CONCLUSION

       For the reasons given above, Defendants respectfully urge the Court to grant their

Motion for Judgment Notwithstanding the Verdict, and enter a Judgment that Plaintiffs

take nothing by their suit against these Defendants, and that costs be taxed against

Plaintiffs; In the alternative, Defendants urge the Court to grant their Motion for Partial

Judgment Notwithstanding the Verdict, and reduce the jury's finding on damages to

$588,054.00, the amount paid by Plaintiffs in settlement with the charities in the prior

litigation, and grant Defendants any further relief to which they may show themselves

justly entitled.

                                                    Respectfully submitted,




                                               10



                                                                                                    1273
     THE LAW OFFICE OF GERALD D.
     MCFARLEN, PC
     1001 South Main # 2
     Boerne, TX 78006
     Phone: (830) 331-8554
     Fax: (210) 568-4305


     BY: Ce..y~ D. /VlvfCl-Vluv
           GERALD D. McF ARLEN
           State Bar No. 13604500

     ATTORNEYS FOR DEFENDANTS,
     T. MARK ANDERSON, INDIVIDUALLY
     AND AS CO-EXECUTOR OF THE ESTATE
     OF TED ANDERSON, AND CHRISTINE
     ANDERSON, AS CO-EXECUTOR OF THE
     ESTATE OF TED M. ANDERSON




11



                                        1274
                                CERTIFICATE OF SERVICE


       I do hereby certify that on the 25th of July, 2013, a true and correct copy of Defendants'
Designation of Testifying Experts was furnished to all counsel of record in accordance with the
Texas Rules of Civil Procedure.

       Frank N. Ikard, Jr.
       Laurie Ratliff
       Lauren Davis
       IKARD GOLDEN JONES, P.C.
       400 West 15th Street, Suite 975
       Austin, Texas 78701-1646
       ATTORNEYS FOR PLAINTIFFS




                                            Ce.y~ D.      /VlvfCl-Vluv
                                            GERALD D. McF ARLEN




                                               12



                                                                                                    1275
App. K
 Prejudgment interest calculation - Verdict as modified by settlement
 with charities damages:
Actual damages:                            $2,594,204                      $2,006,150 + $588,054

Interest Calculation:                      $2,594,204
                                                x5%
                                           $129,710.20                     Interest per year
                                                   /365
                                              $355.37                      Interest per day

Prejudgment accrual date: 180 days after suit was filed on Feb. 5, 2003 is Aug. 4,
                              2003

Prejudgment interest period: August 4, 2003 - July 25, 2013

From August 4, 2003 -June 17, 2011 (date of first settlement)

                     2875 days of interest:
                     Total prejudgment interest
                     when first settlement rec'd                                     $1,021,688.75

                     Less settlement amount:                                          - $637,500
                     Interest as of June 17, 2011                                     $384,188.75

From June 18, 2011-Dec28, 2012 (date of second settlement)

                    560 days of interest                                            + $199,007.20
                    Total prejudgment interest
                    when second settlement rec'd:                                     $583,195.95
                    Less settlement amount                                          - $612,500
                                                                                     <$29,304.05>
Reduction in actual damages:
            $2,594,204 - $29,304.05 = $2,564,899.95

Dec 29, 2012 - July 25, 2013 (day before judgment signed)
            209 days of interest: $2,564,899.95 x 5%, /365                                         =   $351.36 interest per
                                                                                                                     day
                                 Total prejudgment interest:                                            $73,433.44



t:\archer 3 2007 tortious   interference\trial~nov\prejudgment   int calc on verdict & charities july 262013.docx

                                                                                                                              1461
App. L
                                                                         1
                         03-13-00790-CV

 1
                           REPORTER'S RECORD
 2                      VOLUME 9 OF 12 VOLUMES        FILED IN
                                                3rd COURT OF APPEALS
                TRIAL COURT CAUSE NO. D-1-GN-07-002328
                                                     AUSTIN, TEXAS
 3
     RICHARD T. ARCHER, DAVID   ) IN THE          5/29/2014
                                            DISTRICT   COURT3:37:23 PM
 4   B. ARCHER, CAROL ARCHER    )                   JEFFREY D. KYLE
     BUGG, JOHN V. ARCHER,      )                         Clerk
 5   KAREN ARCHER BALL, AND     )
     SHERRI ARCHER              )
 6                              )
     vs.                        ) TRAVIS COUNTY, TEXAS
 7                              )
     DOUGLASS HEARNE, T. MARK )
 8   ANDERSON, INDIVIDUALLY AND )
     AS CO-EXECUTOR OF THE      )
 9   ESTATE OF TED ANDERSON,    )
     CHRISTINE ANDERSON, AS     )
10   CO-EXECUTOR OF THE ESTATE )
     OF TED M. ANDERSON         ) 345TH JUDICIAL DISTRICT
11

12

13        _____________________________________________

14                             JURY TRIAL
15                      VOLUME 9 OF 12 VOLUMES
16        _____________________________________________

17

18

19       On the 22nd day of May, 2013, the following

20   proceedings came on to be held in the above-titled and
21   numbered cause before the Honorable Orlinda Naranjo,

22   Judge Presiding, held in Austin, Travis County, Texas.
23       Proceedings reported by computerized stenotype
24   machine.

25
                                             2




 1                         APPEARANCES
 2   Laurie Ratliff
     State Bar No. 00784817
 3   Lauren Davis
     State Bar No. 24059657
 4   Ikard & Golden PC
     400 West 15th Street
 5   Suite 975
     Austin, Texas 78701
 6   Telephone: 512-472-4601
     E-mail: Laurieratliff@iglaw.com.
 7   COUNSEL FOR PLAINTIFFS
 8

 9
     Gerald D. McFarlen
10   State Bar No. 13604500
     The Law Office of Gerald McFarlen, PC
11   1001 South Main #2
     Boerne, Texas 78006
12   Telephone: 830-331-8554
     E-mail: vwheeler@ktanda.com
13   COUNSEL FOR DEFENDANTS

14

15

16

17

18

19

20

21

22

23

24

25
                     Mark Anderson - May 22, 2013                87
                   Cross-Examination by Ms. Ratliff



 1                  THE COURT:     Okay.

 2                  MS. RATLIFF:     I didn't want to e-file

 3   something that wasn't allowed to be filed.

 4                  THE COURT:     All right.   Anything else?

 5                  MS. RATLIFF:     No, Your Honor.

 6                  THE COURT:     All right.   Let's talk about

 7   the charge.

 8                  (Informal Charge Conference.)

 9                  MR. McFARLEN:     I believe the evidence in

10   this case is that at all times when he was acting as his

11   attorney -- in fact, when he -- from everything they did

12   in regard to supervising paying his bills or helping

13   somebody on board to take care of his oil and gas and

14   including hiring attorneys to assist him and represent

15   him in resisting the guardianship that he was acting

16   either as a friend or as his attorney, in fact, pursuant

17   to his power of attorney, and not because they had an

18   existing attorney-client relationships.

19                  THE COURT:     Well, and that's -- and for

20   the plaintiff, it would seem to me we have to look at,

21   you know, the one factor is, of course, is the length of

22   the relationship is one factor that the courts look at,

23   you know.

24                  If you look at the places, they had a long

25   relationship and they included an attorney
                      Mark Anderson - May 22, 2013               88
                    Cross-Examination by Ms. Ratliff



 1   relationship -- attorney-client relationship.

 2                    Your position is that at the time in

 3   question, you know, when they are saying that he used

 4   undue influence, it would have been at the time that he

 5   changed his will, he disinherited.

 6                    MR. McFARLEN:   He certainly wasn't an

 7   attorney.

 8                    THE COURT:   That's what I am saying.

 9                    MR. McFARLEN:   My position actually on --

10   including breach of fiduciary duty is the state of the

11   evidence is that, you know, it's -- that the actual

12   breach testified to is the exact, same evidence.         Again,

13   it goes to undue; influence.

14                    Essentially, there are witnesses saying --

15   aside from -- when you said -- two things.        And he said,

16   breach his fiduciary duty by taking the power of

17   attorney, because I don't think that that's within the

18   standard of care for a lawyer to take a power of

19   attorney from a client -- in this case, his former

20   client.     I think that's not very credible.

21                    But he -- part of his assumption or one of

22   his assumptions, part of his basis for that opinion is

23   that Mr. Archer, he accepted the assumption, the

24   testimony of plaintiffs' expert medical witnesses, that

25   Mr. Archer never had capacity after he suffered the
                   Mark Anderson - May 22, 2013                 89
                 Cross-Examination by Ms. Ratliff



 1   stroke.

 2                 And I think -- that evidence is, of

 3   course, very much in dispute.

 4                 So other than that, which is is that --

 5   and that, in and of itself, cannot possibly be a

 6   proximate cause of Mr. Archer changing his will.

 7                 There really -- it looks to me like they

 8   are just seeking a second bite at the same apple and an

 9   opportunity to use the same bite that they got of the

10   expert witness about breach of fiduciary duty.

11                 Because the only other testimony -- the

12   rest of his testimony regarding breach of fiduciary duty

13   had to do with his assertion that my client was

14   orchestrating a change of the will and that that -- you

15   know, that that -- those actions, which the Court is

16   already submitting it is undue influence, also amounted

17   to a breach of fiduciary duty.

18                 THE COURT:   We have.

19                 I have struggled with submitting and I am

20   concerned about submitting it this way just as a result

21   of -- you know, depending on what the jury does.     And

22   then if it goes up on appeal, how we can correct it

23   without having to retry it all over again.

24                 That's my concern about all of this.

25                 MR. McFARLEN:     I understand.
                      Mark Anderson - May 22, 2013                90
                    Cross-Examination by Ms. Ratliff



 1                    MS. RATLIFF:     On the breach of fiduciary

 2   duty question, I mean, that definition, I mean,

 3   throughout this time, Ted Anderson, Jack Archer had a

 4   fiduciary relationship.     Whether it was under

 5   attorney-client or power of attorney, or just an

 6   informal relationship.     And that's something that

 7   Mr. Boyce went into detail about, the three different

 8   kinds of -- whether you have your law license or whether

 9   you don't or whether you have power of attorney.

10                    At the time he drafted the power of

11   attorney, Ted was an attorney, a licensed attorney at

12   that point.     It's inescapable to me how he can say, I

13   drafted a document and I took it over there and had

14   somebody sign it, that I don't have an attorney-client

15   relationships right there.

16                    Also, how many medical records do we see

17   where it says Ted Anderson, attorney, Ted Anderson,

18   attorney.     Even when he was not licensed.     All those

19   hospital admittance, Pam Rucker, Ted Anderson.        How did

20   they list him as?     Attorney.

21                    He was very loose with that and how he got

22   represented.     To me, it is his duty when he is no longer

23   not a licensed attorney, he should have said, "Don't

24   call me that anymore."

25                    But the evidence is replete that he was an
                     Mark Anderson - May 22, 2013                     91
                   Cross-Examination by Ms. Ratliff



 1   attorney and that they had that relationship.        To

 2   support --

 3                    THE COURT:     Just because he's an attorney

 4   doesn't mean he is his attorney, I mean, but --

 5                    MS. RATLIFF:     But why would you list him

 6   that way?

 7                    THE COURT:     You know, a judge -- but they

 8   still call me judge in the State of California.           I'm

 9   still a judge.     It doesn't mean I can go over there and

10   be a judge.

11                    MS. RATLIFF:     I think it's a little

12   different when you are talking about attorney-client

13   relationships.

14                    THE COURT:     And I understand that.     But

15   that -- for our purposes here, though, the only reason I

16   was saying that is we've got an attorney and an

17   attorney, in fact, of fiduciary duties.

18                    And so that was why I was asking, was

19   there any dispute that he was either an attorney or an

20   attorney in fact.     And see, that's why I was asking

21   Mr. McFarlen that point.

22                    MS. RATLIFF:     Or had a close relationship.

23   And that's the second part of that because you have an

24   informal relationship with somebody just, you know, my

25   daughter and I, my husband and I.        That would be an
                      Mark Anderson - May 22, 2013              92
                    Cross-Examination by Ms. Ratliff



 1   informal relationship that would rise to the level of

 2   some fiduciary -- maybe not my husband, but -- that's a

 3   bad example.

 4                   But it was clear that he was in such a --

 5   in a mental state that he was and everybody has

 6   testified they were close friends and they relied on

 7   each other.    I mean, that's right there, your informal

 8   relationship to support -- I mean, a fiduciary duty.

 9                   Your Honor, I hear your comment about how

10   you submit this.     But, you know, every case that I read

11   on tortuous interference, and there are actually a lot

12   of them, they all list those -- I mean, fraud, duress.

13                   THE COURT:     I realize that.

14                   MS. RATLIFF:     It's very broad.   The courts

15   of appeals continue to say that.       That's what they mean.

16   They mean for it to be submitted that way.

17                   And the Austin court of appeal in Medina

18   actually quoted a little bit of what was in that charge.

19   I realize that was in Blanco County.       But, I mean,

20   that -- they put it all together.       They didn't try to,

21   you know, cut that apart.

22                   THE COURT:     Well, I was just concerned for

23   purposes of an appeal.       And if the court of appeals

24   thinks I was incorrect in submitting it at all, then we

25   have to retry the whole case.
                     Mark Anderson - May 22, 2013                   93
                   Cross-Examination by Ms. Ratliff



 1                    Unless we have them answer yes or no to

 2   undue influence -- no, that's not going to work either.

 3                    MS. RATLIFF:     I think -- I thought about

 4   that, too.    Castillo.   It doesn't raise Castillo because

 5   it is one cause of action.        It is tortuous interference

 6   with inheritance.     Period.

 7                    We don't have three different causes of

 8   action.   It's one.    To me, those have to be defined.        It

 9   means X, Y, Z.     You have to tell them what Y,X and Z

10   mean.

11                    THE COURT:     Okay.   For our purposes here,

12   we've got the charge of the Court.         And let's go into

13   formal charge conference.        I am going to submit it as

14   set out on the proposed charge.

15                    Who is going to assert any objections on

16   behalf of the plaintiff?

17             OBJECTIONS TO JURY CHARGE BY MS. RATLIFF
18                    MS. RATLIFF:     Your Honor -- are we on the

19   record?

20                    THE COURT:     Yes.

21                    MS. RATLIFF:     Plaintiffs -- and this is

22   only for purposes of preserving what we raised in our

23   partial instructed verdict.

24                    We would submit an objection to Question 2

25   only that it doesn't need to be in the charge because
               Objections to Jury Charge by Ms. Ratliff           94
                             May 22, 2013



 1   there is no evidence for the jury to address a damage

 2   question when it has been uncontroverted as we set out

 3   earlier in our motion for partial instructed verdict.

 4                   We have no objection to the form.     It's

 5   been submitted in Question No. 2.

 6                   THE COURT:   Okay.   Objection overruled.

 7             OBJECTIONS TO THE CHARGE BY MR. McFARLEN

 8                   MR. McFARLEN:   Yes, Your Honor.

 9   Defendants would object to the Court's charge on the

10   following grounds.

11                   Number one, that we would object to the

12   failure to include the issue on testamentary capacity.

13                   We will -- defendants object to the

14   wording of the definition of "tortuous interference,"

15   one, because it includes -- well, it includes duress.

16                   And actually because it includes undue

17   influence, which has not been held to be an independent

18   tort for which compensatory damages are awarded as

19   opposed to supporting the initiation of a will.

20                   We also object to it for including "breach

21   of fiduciary duty."

22                   And, further, defendants object to the --

23   including a definition of "undue influence" for the same

24   reason.

25                   I'm going to object also to the inclusion
              Objections to the Charge by Mr. McFarlen             95
                            May 22, 2013



 1   of the definition of "duress" for the reason that there

 2   is absolutely no evidence of coercion, mental, physical

 3   or otherwise, no evidence of duress to support the

 4   inclusion of that element.

 5                    And we would further object to inclusion

 6   of a definition of "breach of fiduciary duty" because

 7   the breaches for which there is alleged evidence are the

 8   same as for undue influence.           So it constitutes a second

 9   bite at the apple.

10                    Those are all our objections, Your Honor.

11                    THE COURT:     Okay.     The objections will be

12   overruled.     Okay.

13                    Counsel, you've got the questions that I'm

14   submitting to the jury.       And let's just try to save a

15   tree or at least a branch, so I am not making any

16   changes other than taking the word "draft" out and the

17   typo.   And I think there was a typo.

18                    What was the typo?

19                    MR. HIGHTOWER:        It said, "tortuously

20   interfered."

21                    THE COURT:     Oh, okay.

22                    MS. RATLIFF:     Actually, is it going to be

23   changed with the "I"?

24                    THE COURT:     Yes.

25                    MS. RATLIFF:     We actually got a board made
                             Jury Trial                    177
                            May 22, 2013



 1   STATE OF TEXAS     )
                        )
 2   COUNTY OF TRAVIS   )

 3       I, Dora M. Canizales, Official Court Reporter in and
 4   for the 419th District Court of Travis, State of Texas,
 5   do hereby certify that the above and foregoing contains

 6   a true and correct transcription of all portions of
 7   evidence and other proceedings requested in writing by
 8   counsel for the parties to be included in this volume of

 9   the Reporter's Record in the above-styled and numbered
10   cause, all of which occurred in open court or in

11   chambers and were reported by me.
12       I further certify that this Reporter's Record of the
13   proceedings truly and correctly reflects the exhibits,

14   if any, offered by the respective parties.
15       I further certify that the total cost for the
16   preparation of this Reporter's Record is $          and

17   was paid/will be paid by                              .
18       WITNESS MY HAND on this the 2nd day of May, 2014.
19                              /s:/Dora M. Canizales
                                Dora M. Canizales, CSR #5360
20                              Official Court Reporter
                                419th District Court
21                              Travis County, Texas
                                1000 Guadalupe, Room 325
22                              Austin, Texas 78701
                                Telephone: 512-854-9329
23                              Expiration: 12/31/2015
24

25
