                                                                                    ACCEPTED
                                                                                03-13-00790-CV
                                                                                        8070550
                                                                     THIRD COURT OF APPEALS
                                                                                AUSTIN, TEXAS
December 8, 2015                                                          12/3/2015 11:34:59 AM
                                                                              JEFFREY D. KYLE
                                                                                         CLERK
                           No. 03-13-007 90-CV

                                                              RECEIVED IN
                      IN THE   COURT OF APPEALS         3rd COURT OF APPEALS
                                                             AUSTIN, TEXAS
                                                        12/3/2015 11:34:59 AM
                   FORTHE THIRD DISTRICT OF TEXAS           JEFFREY D. KYLE
                                                                 Clerk

                            AUSTIN, TEXAS

            T.MARK ANDERSON, AS CO-EXECUTOR OF THE
            ESTATE OF TED M. ANDERSON, AND CHRISTINE
        ANDERSON, AS CO-EXECUTOR OF THE ESTATE OF TED
                             M. ANDERSON

                                   V.

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

                       CROSS—APPELLEES’ BRIEF

                                         Scott R. Kidd
                                         State Bar No. 11385500
                                         512-330-1713
                                         scott@kidd1awaustin.com
                                         Scott V. Kidd
                                         State Bar No.   24065556
                                         512-542-9895
                                         svk@kidd1awaustin.com
                                         KIDD LAW FIRM
                                         819 West   11th Street
                                         Austin,   TX
                                                    78701
       Oral Argument Requested           512-330-1709 (fax)
                       TABLE OF CONTENTS
Table of Contents

Index of Authorities

Caption

The Archers Are Not Entitled To An Additur Of
Claimed Attorneys Fees

There Can Be No Additur Of The Amount Of The
Settlement With The Christian Charities

Conclusion                                           12

Prayer                                               13

Certificate   Of Compliance with TRAP   9.4(i) (3)   13

Certificate of Service                               14
                             INDEX OF AUTHORITIES
                                                CASES
City of Keller       v.   Wilson, 168 S.W.3d 802,
        822-823 (Tex. 2005)                                              2

Gulf, Colorado            & Santa Fe Ry. Co. v. Deen,
         158 Tex. 466, 312 S.W.2d 933, 937 (1958)                        9,   10

Gulf States Utility Co.             v.   Low, 79 S.W.3d 698,
      703 (Tex. 2002)                                                    5

Larson v. Cactus Utility                 Co.,   730 S.W.2d 640,
     641 (Tex. 1987)                                                     10

Midland Western Building, LLC v.      First Service Air
        Conditioning Contractors, Inc., 300 S.W.3d 738,
        739 (Tex. 2009)                                                  10

National Plan Administrators v. National Health Ins.
     Co., 150 S.W.3d 718, 740 (Tex. App.—Austin 2004),
     rev’d on other grounds 235 S.W.3d 695 (Tex. 2007)                   5,   8

Oyster Creek Financial Corp.           Richwood Investments,
                                                v.
       Inc.,      176 S.W.3d 307 (Tex. App.—Houston [1S‘ Dist]
       2004, pet. den.)                                                  11

Ponce v. Sandoval, 68 S.W.3d 799, 805 (Tex. App.—
     Amarillo 2001, no pet.)                                             9

Pool   v.   Ford Motor       Co.,    715 S.W.2d 629, 634 (Tex. 1986)     10

Potter      U.   GMP,   L.L.C., 141        S.W.3d 698, 703 (Tex. App.—
       San Antonio 2004,                 pet. dism’d)                    5
                        RULES
TEX.   R. CIV. P. 301

TEX.   R. CIV. P. 320           10




                                     iii
                               No. 03-13-007 90-CV


                     IN THE         COURT OF APPEALS
                FOR THE THIRD DISTRICT OF TEXAS
                                AUSTIN, TEXAS

       T.   MARK ANDERSON, AS CO-EXECUTOR OF THE
   ESTATE OF TED M. ANDERSON, AND CHRISTINE
ANDERSON, AS CO-EXECUTOR OF THE ESTATE OF TED
                                M. ANDERSON

                                           V.

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

                      CROSS—APPELLEES’ BRIEF

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

Anderson, and Christine Anderson, as Co-Executor of the Estate of Ted

M. Anderson,     file this   Cross-Appellees' Brief in response to the cross-

points raised by Richard       T.   Archer, David R. Archer, Carol Archer Bugg,

Iohn   V.   Archer, Karen Archer       Ball,   and Sherri Archer   ("the Archers”).

This brief is limited to the cross—issues raised in the Archers’ brief, and
appellants are tendering a separate reply brief to the responsive brief

filed   by the Archers.



          The Archers Are Not Entitled to An Additur of Claimed
                                           Attorneys Fees

         The Archers’       first    cross-point argues that they established their

damages        as a matter of law,         and that the jury was simply not permitted

to   award them      less   than the        maximum amount          that the Archers asked

for.    The Archers are wrong. The damage question submitted by the

court below       was the one requested by the Archers. (CR                 542, 545). The

trial   court having submitted the question they requested, the Archers

now do not like the answer they received from the jury.
        The Archers are complaining                    that the court did not grant the

motion for INOV that they                    filed after receiving this verdict.       The

standard the court must apply in determining whether a INOV would be

proper    is    stated in City of Keller         v.    Wilson,   168 S.W.3d 802, 822-823

(Tex. 2005).      A trial court properly denies a motion for directed verdict
and a motion        for   INOV      if,   looking at   all   the evidence in the light most

favorable to the fact challenged or the ﬁnding found by the jury, a
reasonable trier of fact could have formed a firm belief or conviction

that the fact or finding was true.

      The Archers   try to cast their cross-point as an attack on a jury

verdict on attorneys fees.     It is   not.    There were no jury questions

submitted which asked about attorneys              fees.   The question that was

submitted was a general question about damages. That question was as

follows:

            What sum    of money,      if   paid   now
                                              in cash, would fairly and
            reasonably compensate Plaintiffs for their damages, if any,
            proximately caused by the tortious interference?

                   "Proximate cause"           means a cause
                                                         that was a
                   substantial factor in bringing about an event, and
                   without which cause such event would not have
                   occurred. In order to be a proximate cause, the act or
                   omission complained of must be such that a person
                   using the degree of care required of him would have
                   foreseen that the event, or some similar event, might
                   reasonably result therefrom.

                  Consider the following element of damages and none
                  other:    the difference in value, if any, of the
                  inheritance actually received by Plaintiffs and the
                  value of the inheritance that Plaintiffs would have
                  received from Jack Archer had there been no
                  interference by the Defendant.

            Answer in dollars and cents, if any.

            Answer: $2,006,150.00
The Archers argued below             that one    component          of the   damages they

allegedly suffered      were the attorneys        fees they incurred as a result of

the alleged tortious interference by Ted Anderson. (RR. Vol.                   3,   pp. 176-

177). But   under their evidence the Archers sought to recover the fees

and expenses for various lawsuits: the guardianship proceeding                            in


Blanco County, the guardianship proceeding                   in   Bexar County, various

legal malpractice actions,          and   suits against guardians. (RR. Vol. 3, pp.

136-137,    144-,   154, 164).

      The Archers did         offer evidence of their fee            arrangements with

their attorneys.       (RR Vol. 3   p.   138, Vol. 6 p. 22;   P1.   Ex. 14, 22].    That fee

arrangement began as an hourly fee and then morphed                                  into a

contingent fee arrangement. (RR Vol. 3                  p.   138, 155).       The Archers

offered   some evidence      that they had paid attorneys fees and litigation

expenses under their various arrangements up to an amount of

$2,865,928.00. (Vol. 6      p. 52).       But the jury was not asked what amount

was paid under the Archers’ various             fee   agreements with their lawyers.

The jury was asked for the amount of money that would compensate the

Archers for the damages proximatebz caused by Ted Anderson's alleged

interference.       (CR 646, 651)
         The jury generally has broad             discretion to   award damages within

the range of evidence presented at trial. Gulf States                 Utility Ca.   V.   Low, 79

S.W.3d 561, 566 (Tex. 2002). The jury's ﬁndings                     may   not be set aside

merely because          its   reasoning in arriving at the amount of damages                     is


unclear.       Potter   v.    GMP,   L.L.C.,   141 S.W.3d 698, 703        (Tex.   App.—~San

Antonio 2004,       pet. dism’d).       When the trial evidence supports a range of
awards, as opposed to two distinct options, an award within that range

is    an appropriate exercise of the             jury's discretion,   and the reviewing

court    is   not permitted to speculate on          how the      jury actually arrived at

its   award. National Plan Administrators              v.   National Health   Ins. Co.,         150

S.W.3d 718, 740 (Tex. App.—Austin 2004) rev’d on other grounds, 235

S.W.3d 695 (Tex. 2007).

         The evidence of the Archers’ claimed damages consisted primarily

of the testimony of Carol Bugg,                Mary Haught, and Frank       lkard, exhibits

related to the services provided to the Archers by those lawyers, the

expenses related to those services, and exhibits related to the

settlements with various persons sued by the Archers over the years.

(RR Vol. 3     pp. 136-138, 144, 154, 164; Vol. 6 pp. 15, 22, 30, 31, 43;                 Pl.   Ex.

203, 204, 205, 206, 207, 208, 210, 211, 212). The Archers also offered

evidence about their settlement with the Christian Charities.
           Haught and lkard testiﬁed      in   summary fashion about the Various

lawsuits they filed and actions they took in representation of the

Archers. Those lawyers also testiﬁed about the agreements                 made with
the Archers, including the morphing of their hourly fee into a contingent

fee,   the acquisition of an interest in the Archer Ranch, and the sale of

that interest to the Archers. Notably, the Archers also introduced into

evidence billing records reflecting detailed descriptions of work by the

lawyers on each of the two guardianships, the malpractice cases against

the various lawyers, the suits against the guardians and others.               (Pl.   Ex.


210). While        Haught and Ikard      testified as to the alleged   amount   of the

contingent fee under their agreement with the Archers, the jury had

before     it   the lawyers’ time records and could decide that certain of the

charges were not caused by of the alleged tortious actions of Ted

Anderson. As an example, the jury could reasonably have determined

that the initial guardianship proceedings             were not the     result of the

alleged tortious interference by Ted Anderson and have eliminated the

legal fees associated        with that entire proceeding from            its   damage

calculation.       The jury could have reasonably determined that the            legal

fees for the entire Bexar County guardianship proceeding, or              some    part

of   it,   were not the      result of    Ted Anderson's alleged        interference.
Likewise, the jury could have determined that the legal malpractice

actions, in   whole or     in part,    were unrelated       to the alleged tortious

interference. Additionally, the        damage question was not merely about

the damages that resulted from the alleged interference,                     it   was   a

question that asked for the damages proximately caused by the alleged

interference. Proximate cause         by its deﬁnition requires foreseeability of

the    harm and damages           sought.    The jury could have reasonably

determined that the only         legal fees that   were proximately caused by the

alleged interference       were those incurred           in getting the Christian


Charities to agree to settle. Eliminating          some of these claimed attorneys

fees   from the damage      calculation, as the jury could reasonably              have

done, will reduce the amount that the jury could award as damages to

an amount below that awarded by the jury              in its verdict,   even when the

amount      of the claimed $588,054.00 settlement with the Christian

Charities is included.

       We do not know, and are not permitted to speculate, as to how the
jury arrived at   its   answer   to the   damage    question.   The jury's answer       is


within the range of possible verdicts, and             is   therefore supported by

evidence.    The trial court properly denied the Archers’ motion for INOV.
  There Can Be No Additur Of The Amount Of The Settlement With
                     The Christian Charities

         The Archers asked the           trial   court to add $588,054.00 to the

amount     of the jury's verdict by      way of a motion for judgment NOV. The
trial   court purported to overrule the Archers’ motion for judgment NOV,

but then essentially granted            it   by adding $588,054.00 to the                jury's

verdict in   its   judgment. [CR 1209, 1470).

         The Archer's treat the claim for the amount of the settlement with

the Christian Charities as      if it   were something separate and apart from

the damages awarded in the jury's verdict, but                   it is   not.    The damage

question submitted to the jury was a broad submission of damages

without any separate blanks for the elements of those damages, and no

direction to the jury as to the specific elements that                   it   was   to consider

other than the difference in inheritance that the plaintiffs would have

received absent the alleged interference.                   That    is    the form of the

question that the Archers requested.                 The court      is    not permitted to

speculate as to        how   the jury arrived at          its   answer        to the   damage

question. National Plan Administrators,              150 S.W.3d     at 740. Accordingly,

neither this court nor the         trial     court   is   entitled to speculate as to

whether the         jury's   answer to the damage question included the
$588,054.00 that the Archers subsequently claimed had been omitted

by the jury. The answer given by the jury is within the range of possible

damage        verdicts under the evidence in the case. Simply adding

$588,054.00 to the verdict found by the jury would be, and was,

improper.

         What   the Archers asked of the                  trial court,    and are asking of this

court,   is   for the court to engage in "additur."                          The Rules of         Civil


Procedure do not provide for "additur" by courts to increase the amount

found as damages by the jury in response to properly submitted damage

questions. Ponce        V.   Sandoval, 68 S.W.3d 799, 805 (Tex. App.—Amaril1o

2001, no pet).         A     trial   court   is    limited in the actions         it   may   take in

regard to a jury ﬁnding on damages.                      If   a jury finding has no support in

the evidence, the finding            may be        disregarded. See TEX. R. CIV.             P.   301;

Gulﬁ Colorado     & Santa Fe Ry.         Co.      v.   Deen, 158 Tex. 466, 312 S.W.2d 933,

937 (1958).      If   the evidence      was conclusive                as to the matter so that     no

question remained to be resolved by the jury and a directed verdict

would have been proper, then the finding may also be disregarded. TEX.

R. CIV. P.    301; Deerz, 312 S.W.2d at 937.                     If   legally sufficient evidence

supports a finding of damages, but the jury's damage finding                                        is


manifestly too small or too large, a new trial                        may be granted, but that is
all   that   may be done by the        trial   court TEX.     R. CIV. P. 320; Deen,         312

S.W.2d at 937. No court is free to simply substitute                 its   judgment for that

of the jury, or to reweigh the evidence, set aside a jury finding, and                  make

a different ﬁnding merely because the court feels a different result                          is


more    reasonable. See Larson          V.   Cactus   Utility C0.,   730 S.W.2d 640,        64-1


(Tex. 1987); Pool       V.   Ford Motor Company, 715 S.W.2d 629, 634 (Tex.

1986).

        The Archers assert          that the Andersons did not controvert their

evidence of attorneys         fees.     In the present case, Carol            Bugg and the

lawyer-witnesses called by the Archers were cross-examined about the

various suits that had been filed and the actions that had been taken.

(RR Vol.     3 pp. 188-190, 191-196; Vol.         4 pp.   24, 28, 57-60; Vol. 6 pp. 59-

62, 65-66, 127).        As the Supreme Court of Texas noted                      in   Midland

Western Building, LLC         v.   First Service Air Conditioning Contractors, Inc.,

300 S.W.3d 738, 739                (Tex. 2009),   an attorneys fee award               is   not

supported by uncontradicted testimony                 when the testifying lawyer has
admitted some potentially adverse facts on cross-examination. Cross-

examination      is   the offering of controverting evidence.                   There were

admissions by Carol Bugg and the testifying lawyer-witnesses that some

of the lawsuits filed by       them had nothing         to   do with Ted Anderson. In


                                                                                             10
addition, the suits against the guardians                were described, and evidence

was introduced about            the attorneys’           work and charges         for that

representation.        The time records        for the lawyers’ representation in the

guardianship proceedings, the legal malpractice cases, and the cases

against the guardians       were introduced by the Archers.           (Pl.   Ex. 210).   The

jury   was asked to determine the damages that were proximately caused

by the alleged tortious        interference.        The jury had an obligation            to

determine which of those           suits       and charges were the          result of the

alleged tortious interference by         Ted Anderson and which were              not,   and

which were reasonably foreseeable and which were                     not.    The jury was

well within    its    rights to reject   all   of the attorneys fee claims that the

Archers had not proved were proximately caused by Ted Anderson's

alleged tortious interference.           The    jury's   answer   to the single    damage

question probably already included the $588,054.00 that the Archers

wanted the     trial   court to simply add to the jury's considered verdict.

But the amount of those damages was disputed, the verdict is within the

range of the evidence on damages, and no damage figure was

established as a matter of law.                For a disputed amount of damages,

neither the   trial   court nor this court has the authority to employ additur.

Oyster Creek Financial Corp.        v.   Richwood Investments,        Inc.,   176 S.W.3d


                                                                                          11
307    (Tex.   App.—-Houston         [15‘   Dist]   2004, pet. den.). Accordingly, this

court must overrule the Archers’ second cross-point.




                                            Conclusion

        The Archers’ cross-points assume that the jury only awarded

them a part of their attorneys            fees   and none of the cost of the settlement

with the Christian Charities, but that assumption                  is   not only baseless,   it


is   improper. The damage submission that the Archers requested, and

which the      trial   court gave,   is   a broad, general     damage submission. The

Archers’ evidence on attorneys fees                 was not    clear, direct, positive,   and

free   from contradiction. The jury was not asked to find a reasonable

attorneys fee for the       work done by the Archers’             attorneys; the jury     was

asked to find the damages that proximately resulted from Ted

Anderson’s alleged tortious interference.                    The jury could reasonably

decide that Various of the actions taken by those lawyers were not the

result of   Ted Anderson’s alleged            interference,    and have only awarded a

significantly    lower amount than the Archers sought. The court cannot

assume that the jury did not include the $588,054.00 settlement with

the Christian Charities in the damages                 it   awarded. While the Archers

may not like the verdict as to damages, the amount awarded by the jury

                                                                                             12
is   within the range of Values in the evid ence. Accordingly, the Archers

cross-points   must be overruled.



                                    PRAYER
        Wherefore, the Andersons pray that the court overrule the

Archers’ cross—points.

                                             KIDD LAW FIRM
                                             819 West 11th Street
                                             Austin, TX 78701
                                             512-330-1709     (fax)




                                             Scott R. Kidd
                                             State Bar No.   11385500
                                             512-330-1713
                                             scott@kiddlawaustin.com
                                             Scott V. Kidd
                                             State Bar No. 24065556
                                             512-542-9895
                                             svk@kiddlawaustin.com

              Certificate of   Compliance with   TRAP 9.4(i)(3)
     This brief contains a total of 2502 Words excluding the parts
exempted under TRAP 9.4(i)(1), as veriﬁed by Microsoft Word for
Mac. This brief is therefore in compliance with TRAP 9.4(i)(2)(B).




                                                                        13
                             Certiﬁcate of Service

      A copy of this brief has been served on Laurie    Ratliff, 400 W. 15th
Street, Suite 975, Austin,   TX 78701, by   email and fax   on the 3rd day of
December, 2015.                                                       _


                                             §co§ R. Kidd




                                                                          14
