T. Mark Anderson, as Co-Executor of the Estate of Ted Anderson, and Christine Anderson, as Co-Executor of the Estate of Ted Anderson//Cross-Appellants, David R. Archer, Carol Archer Bugg, John v. Archer, Karen Archer Ball, and Sherri Archer v. Richard T. Archer, David R. Archer, Carol Archer Bugg, John v. Archer, Karen Archer Ball, and Sherri Archer//Cross-Appellees, T. Mark Anderson, Co-Executor of the Estate of Ted Anderson, and Christine Anderson, as Co-Executor
This text of T. Mark Anderson, as Co-Executor of the Estate of Ted Anderson, and Christine Anderson, as Co-Executor of the Estate of Ted Anderson//Cross-Appellants, David R. Archer, Carol Archer Bugg, John v. Archer, Karen Archer Ball, and Sherri Archer v. Richard T. Archer, David R. Archer, Carol Archer Bugg, John v. Archer, Karen Archer Ball, and Sherri Archer//Cross-Appellees, T. Mark Anderson, Co-Executor of the Estate of Ted Anderson, and Christine Anderson, as Co-Executor (T. Mark Anderson, as Co-Executor of the Estate of Ted Anderson, and Christine Anderson, as Co-Executor of the Estate of Ted Anderson//Cross-Appellants, David R. Archer, Carol Archer Bugg, John v. Archer, Karen Archer Ball, and Sherri Archer v. Richard T. Archer, David R. Archer, Carol Archer Bugg, John v. Archer, Karen Archer Ball, and Sherri Archer//Cross-Appellees, T. Mark Anderson, Co-Executor of the Estate of Ted Anderson, and Christine Anderson, as Co-Executor) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
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
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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
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
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
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.
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."
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?
651 DC BK13164 PG160
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:
652 \ DC BK13164 PG161
. . '
DATE: 5/'l3/!3 I I
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
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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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
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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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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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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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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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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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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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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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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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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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)
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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
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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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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
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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.
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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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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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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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*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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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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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-
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 11
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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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
Turner v. Turner, 385 S.W.2d 230 (Tex., Nov 25, 1964) (NO. A-9803) 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)
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)
© 2015 Thomson Reuters. All rights reserved. App. H DC BK13199 PG840 Notice sent: Finai Interlocutory None Disp Parties: / Dlsp code: CVD / CLS __,,./'------- Redact PRf: / 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 >< (.)
§ ·- ::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.
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
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.).
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
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
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;
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),
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.
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
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
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
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:
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
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
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.
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
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
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
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,
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,
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
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,
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
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.
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
C. Plaintiffs evidence is legally insufficient to show reasonableness and
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).
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
(2) the likelihood ... that the acceptance of the particular employment will preclude other
(3) the fee customarily charged in the locality for similar legal services;
(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;
(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
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
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.
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
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
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
13 _____________________________________________
14 JURY TRIAL 15 VOLUME 9 OF 12 VOLUMES 16 _____________________________________________
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
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
Related
Cite This Page — Counsel Stack
T. Mark Anderson, as Co-Executor of the Estate of Ted Anderson, and Christine Anderson, as Co-Executor of the Estate of Ted Anderson//Cross-Appellants, David R. Archer, Carol Archer Bugg, John v. Archer, Karen Archer Ball, and Sherri Archer v. Richard T. Archer, David R. Archer, Carol Archer Bugg, John v. Archer, Karen Archer Ball, and Sherri Archer//Cross-Appellees, T. Mark Anderson, Co-Executor of the Estate of Ted Anderson, and Christine Anderson, as Co-Executor, Counsel Stack Legal Research, https://law.counselstack.com/opinion/t-mark-anderson-as-co-executor-of-the-estate-of-ted-anderson-and-texapp-2015.