# 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 > Texas Court of Appeals, 3rd District (Austin) · February 6, 2015 URL: https://www.frixlaw.com/law-library/cases/4047703 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** February 6, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4047703 ## Opinion text ACCEPTED 03-13-00790-CV 4062436 THIRD COURT OF APPEALS AUSTIN, TEXAS 2/6/2015 4:56:11 PM JEFFREY D. KYLE CLERK No. 03-13-00790-CV IN THE COURT OF APPEALS February 6, 2015 FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN, TEXAS T. MARK ANDERSON, AS CO-EXECUTOR OF THE ESTATE OF TED M. RECEIVED IN ANDERSON, AND CHRISTINE ANDERSON, AS CO-EXECUTOR OF 3rd COURT OF APPEALS THE ESTATE OF TED M. ANDERSON AUSTIN, TEXAS 2/6/2015 4:56:11 PM JEFFREY D. KYLE Appellants/Cross-Appellees, Clerk v. RICHARD T. ARCHER, DAVID R. ARCHER, CAROL ARCHER BUGG, JOHN V. ARCHER, KAREN ARCHER BALL, AND SHERRI ARCHER Appellees/Cross-Appellants. BRIEF OF APPELLEES/CROSS-APPELLANTS Laurie Ratliff State Bar No. 00784817 Frank N. Ikard Jr. State Bar No. 10386000 Lauren Davis Hunt State Bar No. 24059657 IKARD GOLDEN JONES, P.C. 400 West 15th St., Suite 975 Austin, Texas 78701 Telephone: (512) 472-6695 Telecopier: (512) 472-3669 Laurieratliff@igjlaw.com ATTORNEYS FOR APPELLEES/CROSS-APPELLANTS Oral argument requested IDENTITY OF PARTIES AND COUNSEL I. Appellees/Cross-Appellants: Richard T. Archer David R. Archer Carol Archer Bugg John V. Archer Karen Archer Ball Sherri Archer II. Counsel for Appellees/Cross-Appellants: Laurie Ratliff Frank N. Ikard, Jr. Lauren Davis Hunt IKARD GOLDEN JONES, P.C. 400 West 15th Street, Suite 975 Austin, Texas 78701 Telephone: (512) 472-6695 Telecopier: (512) 472-3669 Laurieratliff@igjlaw.com III. Appellants/Cross-Appellees: T. Mark Anderson, as Co-Executor of the Estate of Ted M. Anderson Christine Anderson, as Co-Executor of the Estate of Ted M. Anderson IV. Counsel for Appellants/Cross-Appellees: Gerald D. McFarlen THE LAW OFFICE OF GERALD D. MCFARLEN, P.C. 28 Fabra Oaks Road Boerne, Texas 78006 Telephone: (830) 331-8554 Telecopier: (210) 568-4305 gmcfarlen@mcfarlenlaw.com i TABLE OF CONTENTS IDENTITIES OF PARTIES AND COUNSEL ......................................................... i TABLE OF CONTENTS .......................................................................................... ii TABLE OF AUTHORITIES .....................................................................................v STATEMENT OF THE CASE .............................................................................. xiii ISSUES PRESENTED........................................................................................... xiv INTRODUCTION .....................................................................................................1 STATEMENT OF FACTS ........................................................................................3 SUMMARY OF THE ARGUMENT ..................................................................... 23 ARGUMENT AND AUTHORITIES ......................................................................24 I. The Archers followed well-established Texas law when they sued Ted Anderson for tortious interference with their inheritance [Responsive to Issue 1] ...........................................................................................................24 A. Appellants’ briefing error waives Issue 1 ............................................25 B. Appellants concede Ted tortiously interfered with the Archers’ inheritance ............................................................................................26 C. Texas law recognizes a cause of action for tortious interference with inheritance ....................................................................................27 D. Legal malpractice privity rule does not apply in tortious interference with inheritance cases ......................................................28 ii II. The Archers are entitled to their attorney’s fees and litigation expenses incurred in the Bexar County litigation as damages [Responsive to Issues 2-4] ...........................................................................30 A. Texas law recognizes recovery of attorney’s fees incurred in a prior litigation as damages ............................................................... 31 B. Appellants waived their argument about segregation of attorney’s fees in the trial court and in their brief on appeal ............................... 36 C. Segregation of attorney’s fees does not apply in an attorney’s-fees-as-damages case ........................................................ 37 D. Appellants waived their sufficiency of the evidence argument .......... 40 E. The evidence is factually and legally sufficient as to the reasonableness and necessity of the Archers’ attorney’s fees ............ 41 F. The district court erred in denying the Archers’ motion for partial JNOV on the full amount of attorney’s fees proved as a matter of law [Cross Issue 1].................................................................................... 45 1. No evidence supports jury’s thirty-percent reduction in the amount of attorney’s fees the Archers paid in prior litigation... 47 2. The Archers proved the entire amount of their attorney’s fees paid in the Bexar County litigation as a matter of law ............. 51 III. The district court properly granted Appellants’ motion for partial JNOV and awarded the Archers the amount paid to settle with the charities [Responsive to Issue 5] ...............................................................................55 A. Appellants’ briefing error waives appellate review ..........................56 B. Appellants’ post-verdict motions waive appellate review ................56 C. The Archers proved the settlement with the charities amount as a matter of law [Cross Issue 2] ............................................................60 iii 1. No evidence supports awarding zero damages for the settlement with the charities ...................................................61 2. The Archers proved as a matter of law that they paid $588,054 to settle with the charities ......................................63 IV. The district court properly calculated prejudgment interest [Responsive to Issues 6 & 7] .......................................................................65 A. Appellants waived their prejudgment interest accrual date argument ...........................................................................................65 B. Prejudgment interest cannot be tolled ...............................................68 PRAYER FOR RELIEF ..........................................................................................70 CERTIFICATE OF COMPLIANCE .......................................................................72 CERTIFICATE OF SERVICE ................................................................................73 APPENDIX .................................................................................................. Tabs A-L iv TABLE OF AUTHORITIES CASES Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. National Dev. & Research Corp., 299 S.W.3d 106 (Tex. 2009)............................................................................. 31, 32 Alice Leasing Corp. v. Castillo, 53 S.W.3d 433 (Tex. App.—San Antonio 2001, pet. denied) .......................... 52, 61 Allman v. Butcher, 314 S.W.3d 671 (Tex. App.—Dallas 2010, no pet.) .................................. 52, 60, 63 Allstate Prop. & Cas. Ins. v. Gutierrez, 281 S.W.3d 535 (Tex. App.—El Paso 2008, no pet.)............................................. 57 AMX Enters., L.L.P. v. Master Realty Corp., 283 S.W.3d 506 (Tex. App.—Fort Worth 2009, no pet.) ....................................... 69 Aquila Southwest Pipeline, Inc. v. Harmony Exploration, Inc., 48 S.W. 3d 225 (Tex. App.—San Antonio 2001, pet. denied) ............................... 68 Estate of Arlitt v. Patterson, 995 S.W.2d 713 (Tex. App.—San Antonio 1999, pet. denied) disapproved on other grounds by Belt v. Oppenheimer, Blend, Harrison & Tate, 192 S.W.3d 780 (Tex. 2006)................................................................................... 34 Arlington Home, Inc. v. Peak Envtl. Consultants, Inc., 361 S.W.3d 773 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) ................. 61 B&W Supply, Inc. v. Beckman, 305 S.W.3d 10 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) ..................... 54 Barcelo v. Elliott, 923 S.W.2d 575 (Tex.1996) .................................................................................... 29 Bluestar Energy, Inc. v. Murphy, 205 S.W.3d 96 (Tex. App.—Eastland 2006, pet. denied) ................................ 58, 59 v Brandes v. Rice Trust, Inc., 966 S.W.2d 144 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) ................. 28 Brandon v. Am. Sterilizer Co., 880 S.W.2d 488 (Tex. App.—Austin 1994, no writ) ............................................. 41 Bray v. Tejas Toyota, Inc., 363 S.W.3d 777 (Tex. App.—Austin 2012, no pet.) .............................................. 58 Brookshire Grocery Co. v. Smith, 99 S.W.3d 819 (Tex. App.—Beaumont 2003, pet. denied).................................... 65 Bullock v. American Heart Ass’n, 360 S.W.3d 661 (Tex. App.—Dallas 2012, pet. denied) ............................ 25, 26, 37 Cain v. Bain, 709 S.W.2d 175 (Tex. 1986)............................................................................. 41, 42 Cantu v. Moore, 90 S.W.3d 821 (Tex. App.—San Antonio 2002, pet. denied) ................................ 49 Chandler v. Welborn, 156 Tex. 312, 294 S.W.2d 801 (1956).................................................................... 27 City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005)................................................................. 46, 47, 60, 61 City of San Antonio v. Hardee, 70 S.W.3d 207 (Tex. App.—San Antonio 2001, no pet.)....................................... 59 Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238 (Tex. 2008)................................................................................... 29 Cupples Coiled Pipe, Inc. v. Esco Supply Co., 591 S.W.2d 615 (Tex. Civ. App.—El Paso 1979, writ ref’d n.r.e) .................. 35, 36 Dalton S.S. Corp. v. W.R. Zanes & Co., 354 S.W.2d 621 (Tex. Civ. App.—Fort Worth 1962, no writ) ........................ 35, 36 vi Dow Chem. Co. v. Francis, 46 S.W.3d 237 (Tex. 2001) ............................................................. 47, 51, 52, 60, 63 First Nat’l Bank v. Fojtik, 775 S.W.2d 632 (Tex. 1989)................................................................................... 58 First State Bank v. Keilman, 851 S.W.2d 914 (Tex. App.—Austin 1993, writ denied) ........................... 49, 50, 62 Green v. Kaposta, 152 S.W.3d 839 (Tex. App.—Dallas 2005, no pet.) .............................................. 41 Gulf States Utils. v. Low, 79 S.W.3d 561 (Tex. 2002) ..................................................................................... 49 Hawkins v. Walvoord, 25 S.W.3d 882 (Tex. App.—El Paso 2000, pet. denied) ........................................ 67 Helena Chemical v. Wilkins, 18 S.W. 3d 744 (Tex. App.—San Antonio 2000), affirmed, 47 S.W. 3d 486 (Tex. 2001) .................................................................... 68 Helping Hands Home Care, Inc. v. Home Health of Tarrant County, Inc., 393 S.W.3d 492 (Tex. App—Dallas 2013, pet. denied) ......................................... 46 Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887 (Tex. 2000). .................................................................................... 59 Jansen v. Fitzpatrick, 14 S.W.3d 426 (Tex. App.—Houston [14th Dist.] 2000, no pet.).......................... 59 Johnson & Higgins of Texas Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507 (Tex. 1998)............................................................................. 66, 69 Keyes Helium Co. v. Regency Gas Servs., L.P., 393 S.W.3d 858 (Tex. App.—Dallas 2013, no pet.) ............................ 25, 26, 37, 56 King v. Acker, 725 S.W.2d 750 (Tex. App.—Houston [1st Dist.] 1987, no writ) ................... 27, 30 vii Lesikar v. Rappeport, 33 S.W.3d 282 (Tex. App.—Texarkana 2000, pet. denied) ........................ 31, 35-38 Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 57 (Tex. App.—San Antonio 2011, no pet.)........................... 25, 26, 56 Marshall v. Marshall, 547 U.S. 293 (2006) ................................................................................................ 28 Mason v. Mason, No. 07-12-00007, 1014 WL 199649 (Tex. App.—Amarillo Jan. 13, 2014, no pet. (mem. op.)....................................... 57 Massey v. Columbus State Bank, 35 S.W.3d 697 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) ......... 32, 33, 34 Matthews v. Candlewood Builders, Inc., 685 S.W.2d 649 (Tex. 1985)............................................................................. 36, 37 Matthews v. DeSoto, 721 S.W.2d 286 (Tex. 1986)................................................................................... 68 Meduna v. Holder, No. 03-06-00484-CV, 2008 WL 1911184 (Tex. App.—Austin Apr. 30, 2008, pet. denied) (mem. op.) ............................................ 28 Mills v. Jackson, 711 S.W.2d 427 (Tex. App.—Fort Worth 1986, no writ) ................................ 49, 50 Naschke v. Gulf Coast Conference, 187 S.W.3d 653 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) ................. 35 Nationwide Mut. Ins. v. Holmes, 842 S.W.2d 335 (Tex. App.—San Antonio 1992, writ denied) ............................. 32 Neill v. Yett, 746 S.W.2d 32 (Tex. App.—Austin 1988, writ denied) ................................................... 28 New Amsterdam Cas. Co. v. Texas Indus., Inc., 414 S.W.2d 914 (Tex. 1967)................................................................................... 31 viii Noell v. City of Carrollton, 431 S.W.3d 682 (Tex. App.—Dallas 2014, pet. denied) ...................... 21, 31, 35, 36 Northeast Tex. Motor Lines, Inc. v. Hodges, 138 Tex. 280, 158 S.W.2d 487 (1942).............................................................. 58, 59 Pacesetter Pools, Inc. v. Pierce Homes, Inc., 86 S.W.3d 827 (Tex. App.—Austin 2002, no pet.) ................................................ 34 Peterson v. Dan Witter Reynolds, Inc., 805 S.W.2d 541 (Tex. App.—Dallas 1991, no writ) ........................................ 35. 36 Pilgrim’s Pride Corp. v. Burnett, No. 12-10-00037-CV, 2012 WL 381714 (Tex. App.—Tyler Feb. 3, 2012, no pet.) (mem. op.) ............................................ 69 Powell v. Narried, 463 S.W.2d 43 (Tex. Civ. App.—El Paso 1971, writ ref’d n.r.e.) ......................... 38 Rendleman v. Clarke, 909 S.W.2d 56(Tex. App.—Houston [14th Dist.] 1995, writ dism’d as moot) 40, 41 Rice v. Gregory, 780 S.W.2d 384 (Tex. App.—Texarkana 1989, writ denied)............................ 36-38 Rogers v. Texas Bd. of Architectural Examiners, 390 S.W.3d 377 (Tex. App.—Austin, no pet.) ....................................................... 29 In re Estate of Russell, 311 S.W.3d 528 (Tex. App.—El Paso 2009, no pet.)............................................. 28 Smith v. East, 411 S.W.3d 519 (Tex. App.—Austin 2013, pet. denied) ....................................... 58 Smith v. Patrick W.Y. Tam Trust, 235 S.W.3d 819 (Tex. App.—Dallas 2007), rev’d on other grounds, 296 S.W.3d 545 (Tex. 2009)............................................................................. 50, 51 ix Southwest Airlines v. Jaeger, 867 S.W. 2d 824 (Tex. App.—El Paso 1993, writ denied) .................................... 69 Standard Fire Ins. v. Stephenson, 963 S.W.2d 81 (Tex. App.—Beaumont 1997, no pet.) .................................... 32, 33 Sunbeam Envtl. Servs., Inc. v. Texas Workers’ Comp. Ins. Facility, 71 S.W.3d 846 (Tex. App.—Austin 2002, no pet.) ................................................ 26 Tana Oil & Gas Corp. v. McCall, 104 S.W.3d 80 (Tex. 2003) ............................................................................... 35, 36 Texas Beef Cattle Co. v. Green, 883 S.W.2d 415 (Tex. App.—Beaumont 1994), rev’d on other grounds, 921 S.W.2d 203 (Tex. 1996)............................................................................. 33, 38 Texas Dept. of Transp. v. Guerra, 858 S.W.2d 44 (Tex. App.—Houston [14th Dist.] 1993, writ denied) ........... 47, 61 Texas & N.O.R. Co. v. Burden, 146 Tex. 109, 203 S.W.2d 522 (1947).............................................................. 47, 61 Tiller v. McLure, 121 S.W.3d 709 (Tex. 2003)................................................................................... 61 Turner v. Turner, 385 S.W.2d 230 (Tex. 1964)............................................................................. 32, 37 In re Estate of Valdez, 406 S.W.3d 228 (Tex. App.—San Antonio 2013, pet. denied) .............................. 28 Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897 (Tex. 2004)................................................................. 41, 42, 46, 47 Wein v. Sherman, No. 03-10-00499-CV, 2013 WL 4516013 (Tex. App.—Austin August 23, 1013, no pet.) ................................................ 35, 36 Wilmer-Hutchins Indep. Sch. Dist. v. Smiley, 97 S.W.3d 702 (Tex. App.—Dallas 2003, pet. denied) .................................... 65, 66 x Wilson v. Texas Parks & Wildlife Dept., 853 S.W.2d 825 (Tex. App.—Austin 1993), rev’d on other grounds, 886 S.W.2d 259 (Tex. 1994)................................................................................... 26 Woollett v. Matyastik, 23 S.W.3d 48 (Tex. App.—Austin 2000, pet. denied) ........................................... 49 STATUTES AND RULES TEX. ESTATES CODE § 54.001(a) ............................................................................. 29 TEX. ESTATES CODE § 256.002 ......................................................................... 66, 67 TEX. ESTATES CODE § 256.204 ............................................................................... 67 TEX. FIN. CODE §304.101 ........................................................................................ 66 TEX. FIN. CODE §304.104 ........................................................................................ 66 TEX. FIN. CODE §304.108(b) ................................................................................... 69 TEX. R. APP. P. 9.4(i)(1) .......................................................................................... 72 TEX. R. APP. P. 9.4(i)(2)(B)..................................................................................... 72 Tex. R. App. P. 33.1(a)(A)...................................................................................... 57 TEX. R. APP. P. 38.1(i)............................................................... 25, 37, 41, 56, 65, 66 TEX. R. APP. P. 38.2(b) ............................................................................................ 60 TEX. R. APP. P. 38.3 ................................................................................................ 26 TEX. R. CIV. P. 324(c) ............................................................................................. 60 xi OTHER AUTHORITIES RESTATEMENT (SECOND) OF TORTS §774B (1979) ................................................. 27 RESTATEMENT (SECOND) OF TORTS §914 (1979) .................................................... 32 RESTATEMENT (SECOND) OF TORTS §914(2) (1979) ............................................... 32 xii STATEMENT OF THE CASE Nature of the case: This is a tortious interference with inheritance case. Appellees/Cross-Appellants Richard T. Archer, David R. Archer, Carol Archer Bugg, John V. Archer, Karen Archer Ball, and Sherri Archer sued Ted M. Anderson and others for their actions that caused Appellees’ uncle, John R. “Jack” Archer, to sign numerous estate planning documents that disinherited the Archers. Jack signed all of the disinheriting estate planning documents after a stroke that rendered him mentally incapacitated. Ted died during the litigation, and the co-executors of his estate substituted as defendants. Trial court disposition: After a week and a half trial, the jury returned a verdict finding that Ted had tortiously interfered with the Archers’ inheritance and awarded $2,006,150 in damages. CR646- 53; App. A. The district court implicitly granted Appellants’ motion for partial JNOV and awarded the Archers an additional $588,054 in undisputed damages in the Final Judgment. CR1470-71; App. B. The district court, however, denied the Archers’ motion for partial JNOV that sought the full amount of their damages that were established as a matter of law. CR1209; App. H. Relief sought: The Archers request that this Court affirm the Final Judgment on liability. By cross-issue, the Archers request that the Court modify and render judgment on the total damages the Archers proved as a matter of law. Alternatively, the Archers seek affirmance of the Final Judgment on liability and damages. xiii ISSUES PRESENTED 1. Does Texas jurisprudence recognize a cause of action for tortious interference with inheritance? [Responsive to Issue 1] 2. Did the district court properly admit evidence of, and award as damages, the Archers’ attorney’s fees and litigation expenses incurred in prior litigation? [Responsive to Issues 2, 3, and 4] 3. Did the district court properly award the Archers additional damages that were conceded by Appellants in post-verdict motions? [Responsive to Issue 5] 4. Did the district court properly exercise its discretion in its pre-judgment interest calculation? [Responsive to Appellants’ Issues 6 and 7] Appellees/Cross-Appellants’ Cross-issues: 1. Did the district court err in denying the Archers’ motion for partial JNOV when the Archers established the entire amount of their attorney’s fees incurred in prior litigation as a matter of law? 2. Did the district court properly grant Appellants’ motion for partial JNOV and award the Archers $588,054 as additional damages? xiv TO THE HONORABLE THIRD COURT OF APPEALS: Appellees/Cross-Appellants Richard T. Archer, David R. Archer, Carol Archer Bugg, John V. Archer, Karen Archer Ball, and Sherri Archer (“the Archers”) file their Appellees/Cross-Appellants’ Brief requesting that the Court affirm the district court’s Final Judgment on liability. By cross-issue, the Archers request that the Court modify and render judgment awarding them their the total damages proved as a matter of law. Alternatively, the Archers seek affirmance of the Final Judgment on liability and damages INTRODUCTION In this tortious interference with inheritance rights case, the Archers seek to recover the attorney’s fees and other monies they were forced to pay in litigation involving their uncle, Jack Archer. Jack’s life-long estate plan left the bulk of his more than $7.5 million estate to his nearest relatives, the Archers. Ted Anderson, however, had other plans for Jack’s estate. Shortly after Jack suffered a catastrophic stroke that rendered Jack mentally incapacitated, Ted Anderson obtained a power of attorney from Jack and assembled and instructed a team of attorneys to rewrite and cause Jack to sign three new wills, two trusts, and numerous property assignments. The new estate planning documents not only disinherited the Archers and left Jack’s entire estate to charities, but also made a will contest virtually impossible. Ted and his cohorts forced the Archers into costly and protracted legal wranglings in a guardianship proceeding and related lawsuits that lasted more than 5 years and cost the Archers more than $3.4 million to reverse. In the end, the Archers successfully reinstated Jack’s original estate plan and inherited Jack’s estate. Having successfully restored their inheritance from their uncle, the Archers brought the underlying tortious interference with inheritance lawsuit to recover the more than $3.4 million in attorney’s fees and other monies paid in the guardianship litigation as damages. After an eight-day trial, the jury found that Ted tortiously interfered with the Archers’ inheritance and awarded $2,006,100 in damages. In post-verdict motions, Appellants conceded that the Archers proved more damages than the jury awarded. As a result, the district court’s Final Judgment awarded $588,054, as conceded by Appellants, in addition to the jury’s verdict. The district court, however, did not grant the Archers’ post-verdict motion seeking all of the damages they proved as a matter of law. The Archers seek an affirmance of the Final Judgment on liability and by cross-issue seek a modification and rendition of judgment on the total amount of damages that were proved as a matter of law. Alternatively, the Archers seek affirmance of the Final Judgment on liability and damages. 2 STATEMENT OF FACTS The Archer Family. John R. “Jack” Archer lived in Corpus Christi, but spent considerable amounts of time on his 1000-acre ranch in Blanco County. 3RR84-85. Jack was very successful in the oil and gas business and amassed an estate worth more than $7.5 million. 3RR78, 88; 11RRPlx28, Plx29; 12RRPlx241.1 In addition to his home in Corpus and his ranch, Jack owned a house in Ireland, an airplane, a large coin collection, a collection of valuable jewels, and bank accounts located all over the world. 3RR85-86, 172-73. Jack was married four times, but was single when he died. 3RR78-79. He had no children. 3RR78-79. Jack’s nearest relatives were his only brother, Richard T. Archer, and Richard’s six children: Michael, John, David, Carol, Sherri, and Karen. 2 The Archer family was close-knit. For more than twenty years before Jack’s stroke, Jack and Richard’s family spent the majority of holidays together either at Jack’s ranch, at his home in Corpus, or at Richard’s home in Tyler. 3RR77-78, 83- 84; 4RR70. Jack remained close to the Archer children’s mother, Joanne, even after she and Richard divorced. 3RR84; 4RR70. 1 Plaintiffs’ Exhibit 241 is not in numerical order in the Reporter’s Record. App. C. It is found before Plx222. 2 Richard died while this lawsuit was pending. 3 The Archer children were also very close to their Uncle Jack. 3RR83-84. Jack considered the Archer children as “part his children.” 4RR71. Similarly, the Archer children saw their Uncle Jack as a second father. 3RR88. Each Archer child had particular activities they enjoyed doing with Uncle Jack. 3RR83-84. The Archer children always knew that Jack wanted the ranch to stay in the family. 3RR103. Appellant Ted Anderson admitted that Jack “really liked his nieces and nephews.” 7RR60. Jack and Richard established a trust for the Archer children, known as the “ADI Trust.” 3RR89-90, 94-95; 11RRPlx3. Richard was the trustee of the ADI Trust and the Archer children were the beneficiaries. 3RR89, 95. The Archer children did not receive regular distributions from the trust. 3RR89. Instead, the trust was used for significant expenses such as college tuition or down payments on houses when the Archer children became adults. 3RR89-90.3 Jack’s life-long estate plan: Jack’s fondness for his brother and his nieces and nephews was reflected in his estate planning. In his 1991 Last Will and Testament, Jack left the bulk of his estate, including his ranch, to Richard and Richard’s six children, five of whom are Appellees/Cross-Appellants in this case.4 3 Attached as Appendix D is a timeline of Events. 12RRPlx233. App. D. 4 Michael Archer is not a party to this case. 3RR74-75. 4 3RR99-100, 101; 11RRPlx9 at 2-3 (“1991 Will”). Jack’s 1991 Will also designated twelve charities to split sixty percent of his mineral interests. 3RR100-01; 11RRPlx9 at 9. The 1991 Will named Richard as executor. 11RRPlx9 at 4. Jack also named Richard as primary beneficiary of his life insurance policies and bank accounts. 3RR92-93; 11RRPlx2, Plx4-6, Plx8. Jack’s stroke. On August 25, 1998, at the age of 71, Jack suffered a debilitating, large right hemisphere stroke, leaving him physically impaired and mentally incapacitated. 4RR148; 11RRPlx39 at PLF089274, Plx88. Medical experts described the stroke as “very severe,” “very significant,” and one that left Jack “very impaired.” 4RR148, 159, 227. After his stroke, Jack remained in the hospital for three weeks and then went to a rehab hospital before returning to his home. 3RR108; 11RRPlx39. Following Jack’s stroke, Richard and the Archer children went to Corpus Christi to assist with Jack’s care. 3RR105-06. Richard went to Corpus Christi to care for Jack seventeen times from the date of his stroke until the early summer of 1999. 7RR85; 11RRPlx10. Richard had Jack’s house modified, obtained a van to transport him, and found caregivers for Jack. 3RR106, 110, 111; 7RR85; 11RRPlx11. The Archer children also went to Corpus Christi to help in the months after Jack’s stroke. 3RR106, 110. 5 Ted Anderson initiates process to disinherit the Archers. Within weeks after Jack’s stroke, Ted Anderson began a series of actions that caused Jack to sign new estate planning documents that disinherited the Archers. First, on September 24, 1998, while Jack was still in the rehab hospital after his stroke, Ted, who was an attorney, drafted and caused Jack to sign two powers of attorney. 6RR103; 7RR52, 64; 11RRPlx139, Plx140, Plx148. The durable power of attorney designated Ted as Jack’s attorney-in-fact with very broad powers. 11RRPlx139. The medical power of attorney gave Ted the power to make medical decisions for Jack. 6RR109, 111; 11RRPlx140. Ted later claimed to never have needed the durable power of attorney. According to Ted, “I really haven’t had to use it. Jack signed everything we needed signed.” 7RR55; 11RRPlx112 at 25. Ted, however, regularly used the medical power of attorney to communicate with Jack’s doctors. 11RRPlx53, Plx54, Plx67. On the day Jack signed the powers of attorney, Jack had reported to the health care providers that he had been working at this ranch in Blanco all day and that he had not spent the night in the hospital. 6RR104; 11RRPlx43 at PLF083957. Neither of Jack’s statements was true. Medical evidence also showed that, soon after he signed the powers of attorney, Jack expressed confusion about the documents he had signed. 4RR201-202; 11RRPlx43 at PLF083938. 6 One of the Archers’ medical experts opined, that based on the severity of his stroke as reflected in the medical records dated September 24, 1998, Jack did not have capacity. 4RR200. Further, Appellee Carol Archer Bugg visited her uncle while he was in the rehab hospital and observed that Jack was not in any condition to make decisions on his own. 3RR110. In December 1998, Ted obtained the original of Jack’s 1991 Will from the attorney who drafted it. 6RR111-12; 11RRPlx141. Ted then made his first attempt to disinherit the Archers. In early 1999, Ted tried to get Jack to place 600 acres of his ranch in a charitable remainder trust. 6RR122-24; 11RRPlx145. Putting Jack’s ranch into a charitable remainder trust would have disinherited the Archers. 6RR132. Jack, however, managed to communicate to Ted that he did not want to sell the ranch. 11RRPlx145. Ted also began alienating the Archer family from Jack. By early 1999, the Archers’ access to Jack was being limited. 3RR127. In February 1999, Jack purportedly typed and signed a letter to Richard asking Richard not to visit him. 11RRPlx51. Jack, however, never told Richard not to visit. 7RR82-83. Expert testimony indicated the signature on the letter was not Jack’s and, moreover that, after his stroke, Jack could not have been able to type. 4RR203-04; 11RRPlx44. The Archers’ phone calls to Jack were not returned. 3RR129. They received no information on his medical condition during the spring of 1999. Id. The Archers 7 also discovered that the caregivers Richard hired had been fired. 7RR85. By the end of the summer of 1999, the Archer family did not know where Jack was living. 3RR136. The Archers even hired a private investigator to locate Jack, but to no avail. 3RR137. Meanwhile, Ted continued his scheming. Ted hired two estate planning attorneys, Buster Adami and Richard Leshin, to assist him in changing Jack’s estate plan. 6RR110-11, 127; 11RRPlx142, Plx143, Plx146. In June 1999, Adami prepared a codicil to Jack’s 1991 Will that added J.R. Hamilton and T. Mark Anderson along with Richard as co-executors of Jack’s estate. 11RRPlx147. The codicil required the three co-executors to act jointly or by majority. Id. In July 1999, anticipating that the Archers might file a guardianship proceeding, Adami wrote the Nueces County judges informing them that Jack was managing his affairs through Ted and encouraging them to not grant an ex parte guardianship. 11RRPlx150. As detailed below, at Ted’s direction, Leshin prepared the post-stroke wills and trusts that disinherited the Archers. 6RR120. Ted’s efforts to disinherit the Archers by having Jack sell his ranch to charities continued. This time, however, Ted enlisted his recently hired estate planning attorneys, Leshin and Adami, to pressure Jack to sell. 6RR128-32; 11RRPlx151; App. E. In July 1999, Ted wrote Adami about getting Jack to put his ranch in a foundation for the benefit of the charities. 11RRPlx151. Ted wrote, “[h]e [Jack] 8 may switch and turn but I hope that we can continue to encourage him in this direction and since Richard [Leshin] helped me with the limited partnership for the ranch Jack might feel comfortable with suggestions from Richard [Leshin].” 11RRPlx 151. Ted’s letter goes on to speculate about the size of Jack’s estate being at $3 million. Ted surrendered his law license in June 1999. 11RRPlx148. He resigned as Jack’s attorney-in-fact in November 1999. 11RRPlx153. Neither event, however, limited Ted’s actions. The Archers seek legal advice: Concerned for Jack’s well-being when they could not locate Jack or find out his condition, the Archers sought legal advice. 3RR132-33. In October 1999, the law firm of Ikard & Golden filed an application for temporary guardian in Blanco County and got Richard appointed as temporary guardian of Jack’s person and estate. 3RR140; 11RRPlx14-16. Richard made it clear, however, that he did not want serve as permanent guardian of Jack’s estate; rather, he wanted a third party as permanent guardian. 7RR86-87; 11RRPlx20. On December 29, 1999, a hearing was held on the Archers’ temporary guardianship application in Blanco County. 11RRPlx155. Attorneys from four law firms, including Adami and Leshin, along with a court-appointed attorney ad litem, represented Jack at the hearing. 11RRPlx155 at 3. In response to the Archers’ request for Jack to testify regarding his wishes, all five of Jack’s attorneys agreed on 9 the record that Jack needed a guardian of his person and his estate. 6RR139-40; 11RRPlx155 at 15-23. The agreement for a temporary guardianship meant that all of Jack’s attorneys agreed that Jack lacked the mental and physical capabilities to care for himself and to manage his own affairs. 6RR140-42; 11RRPlx160. Seemingly, the matter was resolved. Ted continued his plan to disinherit the Archers. Despite the agreement for a temporary guardian, and despite his resignation as Jack’s attorney-in-fact under the power of attorney, Ted continued to seek to change Jack’s estate plan. 6RR135. In early January 2000, Ted sought Leshin’s advice on Jack’s estate planning, and in particular, on how to avoid a future guardianship. 11RRPlx154, Plx157. Leshin advised that any estate planning would have to wait until Jack was no longer subject of a guardianship proceeding. 6RR143; 11RRPlx157. Leshin also advised Ted on a scheme that “will make a contest of the disposition of [Jack’s] assets more difficult.” 11RRPlx157. According to Leshin, if the temporary guardianship over Jack were dismissed, Jack’s assets could be transferred to a revocable trust to avoid a future guardianship and court supervision. 6RR136-37; 11RRPlx154. Jack was not copied on any of Leshin’s estate planning letters. 11RRPlx154, Plx157. To effectuate the estate plan Leshin concocted, on March 16, 2000, Ted fired all of the attorneys who represented Jack in the Blanco County guardianship who 10 had agreed Jack needed a guardian. 6RR149-50; 11RRPlx162. Ted hired a trial attorney, Doug Hearne, Sr., who repudiated the agreement that Jack needed a temporary guardianship. 6RR159; 12RRPlx216, Plx217. March 2000 Will. On the same day he fired Jack’s attorneys, Ted sent Jack’s 1991 Will to Leshin. 6RR74; 11RRPlx163. On March 19, 2000, Jack signed the March 2000 Will that Leshin drafted that left all of Jack’s assets to charities, entirely disinheriting the Archers. 6RR151; 11RRPlx166. The March 2000 Will contemplated that a trust would be established to hold Jack’s assets, but that, if the trust were not set up before Jack died, all of his assets would go to the charities. 11RRPlx166 at 1. Jack did not read the will before signing it; Leshin read it to him at the will signing. 7RR30. April 2000 Will. Soon after Jack signed the March 2000 Will, Ted directed Leshin to prepare another will and a trust. 7RR32-33; 11RRPlx170. On April 26, 2000, Jack signed the April 2000 Will, the Jack Archer Trust Indenture (“Trust”), and several property assignments that transferred all of Jack’s assets into the Trust. 6RR153-54; 11RRPlx171-76. The Trust was to terminate on Jack’s death and its assets to be distributed among that the twelve named charities. 11RRPlx171 at 2-3. Ted, who was no longer licensed to practice law, explained the Trust and had Jack sign the Trust before Leshin arrived at the will signing. 11RRPlx177. According to Leshin, one of the purposes of the April 2000 Will was to make a will contest even 11 more difficult for the Archers, by increasing the number of wills to challenge. 7RR39; 11RRPlx177. For the March 2000 Will, the April 2000 Will, and the Trust, Leshin received all of his instruction for the document’s terms from Ted. 7RR27-28, 32, 36-38, 41- 42; 11RRPlx165, Plx167. Leshin never talked to Jack about the documents until the signings. Id. Ted decided when Jack would sign documents and was present for every signing. 6RR95-96, 156; 7RR43; 11RRPlx167. Although he represented Jack for three years, Leshin never had a phone conversation with Jack or had any written correspondence with him. 7RR26-27. Leshin’s file and billing records confirmed that his only communications on Jack’s matter were with Ted. 6RR113-14, 118-20, 135; 11RRPlx142, Plx144, Plx149, Plx152, Plx158, Plx161, Plx169, Plx182, Plx184-87, Plx191, Plx195, Plx196. On the occasions when Leshin met with Jack, Ted was always present. 7RR26. Although Ted was Leshin’s source of information on Jack, Leshin did not know that Jack had had a stroke. 7RR20. Leshin made no assessment of Jack’s capacity when Jack signed the estate planning documents. 6RR158; 7RR37. Instead, Leshin relied solely on Ted’s representations regarding Jack’s capacity. 7RR21, 37. Contrary to Leshin’s testimony that Ted orchestrated all of Jack’s post-stroke wills, and that the records showed that Ted’s name was “all over everything,” Ted 12 contended that he had nothing to do with the wills. 6RR71-73, 61; 7RR63. When pressed in his deposition about his involvement, Ted refused to answer the questions. 7RR67-68. In May 2000, Jack signed a new durable power of attorney and medical power of attorney naming Ted as attorney-in-fact and specifically disqualified the Archer family from serving. 6RR159-60; 11RRPlx179, Plx180. Jack’s medical condition around the 2000 will signings. Jack signed the March 2000 Will on March 19, 2000, and the April 2000 Will and Trust on April 26, 2000. 11RRPlx166, Plx171-76. Jack was admitted to an inpatient psychiatric hospital from March 28 through April 19, 2000. 7RR33; 11RRPlx71-74. The psychiatric hospital notes described Jack’s symptoms as “delusional paranoia” and being “oriented to person only.” 11RRPlx73 at PLF069710, Plx74 at PLF069715. While in the psychiatric hospital, Jack reported (incorrectly) that the year was 1928, that he was in his thirties, that his parents were still living, and that he was in Ohio. 11RRPlx71 at PLF038490. The psychiatric hospital notes are replete with entries describing Jack as confused, disoriented, and having delusional and suicidal thoughts. 11RRPlx71 at PLF038490, PLF038492, PLF038493, PLF038494. One of Jack’s doctors, Dr. Still, opined that Jack was incapacitated in May 2000. 7RR88- 89. 13 Jack was again admitted to a psychiatric hospital in June 2000. 11RRPlx81, 82. The records are filled with statements that Jack was suffering from paranoia, confusion, disorientation, and having delusional thoughts. 11RRPlx82 at PLF064633, PLF 064634, PLF064637, PLF064638. Leshin testified that he did not know that Jack was admitted to a psychiatric hospital for delusions and paranoia only nine days after signing the March 2000 Will. 7RR31, 35-36. Further, when Jack signed the new estate planning documents in March and April of 2000, Jack had had no contact with his family and was only around Ted Anderson and Pam Rucker, a former girlfriend. 3RR153-54. Bexar County Guardianship and related litigation. By repudiating the Blanco County temporary guardianship, Ted forced the Archers to file a new guardianship proceeding. 11RRPlx18. In May 2000, David Archer and Carol Archer Bugg filed the Bexar County guardianship proceeding, seeking an independent person as guardian of Jack’s estate and person. 3RR144-46; 11RRPlx18. Jack’s attorneys contested the guardianship, contending Jack was competent and did not need a guardianship. 3RR147. While the Bexar County guardianship was pending, the Archers discovered for the first time, that they had been disinherited and that the several people had taken money from Jack since his stroke. 6RR23; 11RRPlx21, 12RRPlx218. In 14 particular, the Archers learned that the attorneys Ted hired were being paid from Jack’s assets without court approval. 7RR106; 11RRPlx21. Medical evidence detailed impact of Jack’s stroke. During the guardianship proceeding, the Archers also learned about the extent of Jack’s medical condition. In addition to the psychiatric hospital records, Jack’s medical records chronicled the severe impact that his August 1998 stroke had on his mental capacity. One of Jack’s treating physicians, Dr. Faulk, wrote in November 1999 that Jack was “obviously unable to control his estate in his current condition, and will require assistance in having his wishes carried through.” 11RRPlx68. A court-appointed doctor, Dr. Lichtenstein, who examined Jack in September 2000, reported that Jack’s stroke rendered him mentally and physically incapacitated and in need of a guardian. 11RRPlx88. Dr. Lichtenstein examined Jack again in June 2001 and reaffirmed his earlier opinion. 11RRPlx104. Dr. Still testified that in May 2001 Jack was not able to speak. 7RR91. Dr. Faulk, opined in June 2001 that Jack was “incapacitated to handle any of his affairs” “by any standard medical or legal.” 11RRPlx105. Jack’s in-chambers interview with the Bexar County probate judge in January 2001 and his July 2001 deposition further demonstrated Jack’s severely diminished capacity. 4RR220-21; 11RRPlx27, 11RRPlx93 at 61-86. The Archers’ medical expert witnesses, Dr. Richard Coons and Dr. William Dailey, both opined that Jack was incapacitated and in need of a guardian from the 15 date of his stroke in August 1998 onward. 4RR200, 248-49; 5RR109-10; 11RRPlx105. Dr. Dailey testified that Jack’s lack of mental capacity would have been obvious to lay people who came in contact with Jack. 4RR276. Probate court appoints temporary guardians. The probate court appointed Pam Rucker, Jack’s former girlfriend, as temporary guardian of his person. 11RRPlx189. As temporary guardian, Pam refused to allow the Archers to visit Jack and forced the family to seek court-ordered visitation to see their uncle. 3RR151; 7RR120-21. The probate court appointed J.R. Hamilton as temporary guardian of Jack’s estate. 11RRPlx190. Hamilton’s April 2001 accounting listed Jack as having no assets, and that all of his assets were held in trust. 12RRPlx218. The accounting gave the Archers their first indication that they had been disinherited. 3RR149; 12RRPlx218. May 2001 Will. While the Bexar County guardianship proceeding was pending, Ted had Jack sign another will and an amendment to the Trust. 11RRPlx192, Plx194. The May 2001 Will and the trust amendment removed Hamilton as executor and successor trustee, and replaced him with Ted’s son, T. Mark Anderson. 6RR160-61; 11RRPlx192, Plx194. Jack signed another guardianship directive that disqualified the Archer family from serving as guardian. 11RRPlx193. 16 Archers change their attorney’s fees agreement. After learning that they had been disinherited, the Archers changed their attorney’s fee arrangement with their law firm from hourly to a contingent fee in November 2001. 6RR22. The contingency fee was based on getting the Archers reinstated as beneficiaries. It reinstated, the law firm would receive a percentage of the value of Jack’s estate, including monies brought into Jack’s guardianship estate through lawsuits against Ted and the attorneys he had hired. 6RR23-26; 11RRPlx22 at 2-3. Lawsuits filed in the Bexar County guardianship. The Archers filed several lawsuits within the guardianship to challenge the validity of the Trust and to try to recover the hundreds of thousands of dollars that had been taken from Jack since his stroke. 3RR154-55; 4RR38-39. Lawsuit over the validity of the Trust and settlement with the charities. The existence of competing wills – one leaving Jack’s estate to the Archers and three wills and a trust leaving Jack’s entire estate to the charities – set the stage for a will contest. 6RR64-65, 68-69. Rather than pursue a costly, contentious will contest, the Archers filed a declaratory judgment action to determine the validity of the Trusts while Jack was still alive. 3RR157-58; 6RR70-71; 11RRPlx23. Contrary to Appellants’ assertion, the Archers did not “sue the Christian Charities.” Appts. Br. at 14. As named beneficiaries in the Trust, the charities were necessary parties to the declaratory judgment action. 6RR62-63. 17 Lawsuits against parties who had wrongfully taken money from Jack: The Archers filed three lawsuits against individuals who had taken advantage of Jack after his stroke. These lawsuits were filed in November 2001 by Appellee Sherri Archer Loveday, derivatively on Jack and his guardianship estate’s behalf, against the following defendants 3RR154-55; 4RR38-39; 7RR121-22: 1) Hearne Sr., Leshin, Adami, and Anderson for legal malpractice 12RRDx12; 2) Ted Anderson and Pam Rucker for breach of fiduciary duty and for intentional infliction of emotional distress 12RRDx13; and 3) J.R. Hamilton, as temporary guardian of Jack’s estate, and the bond company for breach of duty by failing to obtain court approval of expenses and for paying expenses from Jack’s trust 7RR117-18, 123; 12RRDx14. Lawsuit for tortious interference with inheritance. The Archers also filed a lawsuit for tortious interference with inheritance against Ted, Hearne Sr., and Leshin in February 2003. CR98-117. The probate court abated the lawsuit until after Jack died because generally, a tortious interference with inheritance claim does not ripen until death. 6RR15-17. Contrary to Appellants’ characterization, the Archers were very successful in the Bexar County guardianship and related litigation. Appts. Br. at 10. First, as a result of the lawsuit against Pam Rucker, she resigned as guardian, and the probate court appointed Appellee Carol Archer Bugg as Jack’s permanent guardian of the person.; 3RR164-6; 7RR123-24; 11RRPlx25. The Archers also got J.R. Hamilton 18 removed as temporary guardian of Jack’s estate. 7RR117-18, 120. The probate court granted the Archers’ request for an independent guardian of the estate and appointed Robert McIntyre as guardian of Jack’s estate. 3RR166; 7RR102-03; 12RRPlx240. Second, by challenging the validity of the post-stroke Trust and settling with the charities, the Archers nullified the estate-planning documents that Ted, and others working with Ted, had Jack sign that disinherited the family. 7RR102-03. The Archers and the charities reached a settlement before Jack died and thus, avoided a will contest. 4RR35-36; 11RRPlx23. The charities agreed to not file Jack’s post-stroke wills for probate, leaving Jack’s 1991 Will in place. 11RRPlx23 at 9-13. The Archers had to give much more to the charities than Jack’s 1991 will left to the charities. The Archers paid the twelve designated charities $588,054 over and above what Jack’s 1991 Will left them. 3RR159-61; 11RRPlx24, Plx30, 12RRPlx2415. Finally, the lawsuits filed against Hearne Sr., Adami, and Hamilton resulted in hundreds of thousands of dollars being returned to Jack’s guardianship estate in settlements with. 6RR60-62; 12RRPlx241. 5 Plaintiffs’ Exhibit 241 is not in numerical order in the Reporter’s Record. App. C. It is found before Plx222. 19 Remainder of Jack’s life. As a result of the Archers’ efforts, Jack returned to living on his ranch, near his brother Richard. 7RR102-03. Carol remained his guardian for the rest of his life. 3RR166-68. Jack was never put in a psychiatric hospital after Carol became his guardian. 3RR168. After the Archers moved Jack back to his ranch, Jack never heard from Ted. 3RR169. Jack died on April 17, 2006. 3RR170; 11RRPlx28. Jack’s 1991 Will was probated and the Archers received the inheritance Jack intended for them to have. 3RR174; 11RRPlx27, Plx36. Regaining their inheritance, however, came at a significant monetary cost. The Travis County case. In the underlying lawsuit here, the Archers sought the difference between what they actually received from Jack’s estate and what they would have received had Ted not tortiously interfered. CR654-710. The Archers sought as damages the amount paid to get themselves reinstated as beneficiaries: 1) their attorney’s fees paid in the Bexar County litigation of $2,865,928 and 2) the amount paid to settle with the charities of $588,054, for a total of $3,453,982. 6RR79; 7RR102-03; 12RRPlx241. App. C. The Archers originally brought the tortious interference lawsuit in the Bexar County guardianship. Once Jack died, the Bexar County probate court lost jurisdiction over the tortious interference lawsuit and dismissed it. 6RR15-16. The 20 Archers then refiled in Travis County based on defendant Doug Hearne Sr.’s residence in Travis County. 6RR15-17; CR5-25. Ted died on March 28, 2006, while this lawsuit was pending. T. Mark Anderson and Christine Anderson, the Co-Executors of Ted M. Anderson’s Estate, substituted as defendants. May 2013 trial. After settlements with Leshin and Hearne Sr.’s estate, the Archers proceeded to trial on May 13, 2013 against T. Mark Anderson and Christine Anderson, as co-executors of Ted’s estate. On May 23, the jury returned its verdict and found that Ted tortiously interfered with the Archers’ inheritance. Appellants do not dispute this finding on appeal. The jury awarded damages as follows: Plaintiff’s Uncontroverted Evidence of Jury’s Damage Award Damages Attorney’s fees & Attorney’s fees & $2,865,928 – 30% litigation expenses $2,865,928 litigation expenses = $2,006,150 Settlement with charities Settlement with + $588,054 charities $0 $3,453,982 $2,006,150 CR1470-71; 6RR42, 56-58, 11RRPlx24; 12RRPlx241. App. B, C. Post-verdict motions. The Archers filed a motion for partial JNOV, seeking the $588,054 paid to the charities and the full amount of their attorney’s fees paid in the prior litigation. CR749-1197; 1140-96; 1198-1208. The district court denied the Archers’ motion on July 17, 2013. CR1209; App. H. 21 Appellants also filed motions for partial JNOV, conceding that the Archers proved the settlement with the charities of $588,054. CR1210-1218, 1264-1275; App. I, J. The district court implicitly granted Appellants’ motion for JNOV, and signed a Final Judgment that awarded the Archers $588,054 in addition to the $2,006,150. CR1470-1471; App. B. Applying settlement credits and prejudgment interest, the district court’s Final Judgment awarded the Archers $2,564,899.90 plus interest. CR1470-1471; 1461; App. B, K. Appellants filed their notice of appeal. CR 1507-1509. The Archer Family filed their notice of appeal to raise their cross-issues, seeking the full amount of their damages proved as a matter of law. CR1510-1512. Appellants filed no supersedeas bond. 22 SUMMARY OF THE ARGUMENT Appellants raise four primary issues on appeal. Appellants have waived in the district court or in their brief on appeal at least some part of their argument under each issue. The jury found that Ted tortiously interfered with the Archers’ inheritance. That fact finding is not challenged on appeal. Instead, Appellants contend that Ted’s tortious conduct is not actionable. Contrary to Appellants’ argument, Texas law has long recognized a cause of action for tortious interference with inheritance when a person by fraud, duress, or other tortious means prevents another person from receiving an inheritance from a third party that she would otherwise have received. The district court correctly awarded the Archers their attorney’s fees incurred in prior litigation as a result of Ted’s tortious conduct as damages. As Texas Supreme Court precedent holds, attorney’s fees and litigation expenses incurred in prior litigation with a third party are recoverable as actual damages. In addition to their attorney’s fees, the district court properly awarded an additional $588,054 to jury’s verdict of $2,006,150. Appellants conceded in their post-verdict motions that the Archers established the $588,054 as the amount paid to settle with the charities. Finally, the district court properly calculated prejudgment interest. Well- established law prohibits tolling of prejudgment interest as argued by Appellants. 23 By cross issue, the Archers seek the entire amount of their attorney’s fees paid in the prior litigation that were proved as a matter of law. Appellants offered no evidence or expert witness to controvert the Archers’ attorney’s fees evidence. For these reasons and those set out below, the district court correctly signed a final judgment on liability. The Archers request modification and rendition of judgment on their full damages proved as a matter of law. Alternatively, the Archers request the Court affirm the Final Judgment on liability and damages. ARGUMENT AND AUTHORITIES I. The Archers followed well-established Texas law when they sued Ted Anderson for tortious interference with their inheritance. [Responsive to Issue 1] Appellants do not challenge, and thus concede, that Ted tortiously interfered with the Archers’ inheritance. Appellants urge this Court to conclude, however, that there is no cause of action for tortious interference with inheritance. Appellants’ briefing error waives this Court’s review. Even considering Appellants’ waived argument, Texas law has long recognize tortious interference with inheritance as a cause of action.6 6 Appellants only filed a general denial. CR62-65. Appellants raised the affirmative defense of whether tortious interference with inheritance is a recognized cause of action for the first time in their amended motion for partial JNOV filed July 25, 2013, more than two months after the verdict. CR1264-1275. App. J. 24 A. Appellants’ briefing error waives Issue 1. According to Appellants, 1) Texas law does not recognize a cause of action for tortious interference with inheritance, and 2) if the tort exists, it does not apply to attorneys. Appellants have waived both arguments. In support of their first argument, Appellants cite no authority for their contention that tortious interference with inheritance does not exist. TEX. R. APP. P. 38.1(i). Their only authorities cited—King v. Acker and Meduna v. Holder— demonstrate that the tort does exist. Appellants make no argument to distinguish these and other controlling authority. Appts. Br. at 21. Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 57, 81 (Tex. App.—San Antonio 2011, no pet.). Thus, this argument is waived. In their second argument that tortious interference with inheritance does not apply to attorneys, Appellants rely on evidence from the appellate record, but do not cite to any place in the over 9,000-page record. (The Clerk’s Record is 2917 pages and the Reporter’s Record is 6311 pages). Appts. Br. at 21-23. Accordingly, Appellants have waived Issue 1. See TEX. R. APP. P. 38.1(i) (brief must contain a clear and concise argument with appropriate citation to authorities and to the record). The failure to provide substantive analysis or cite authority waives the complaint. Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d at 81. This Court has no duty 25 to review a voluminous record without guidance from an appellant to determine if an issue raised constitutes reversible error. Keyes Helium Co. v. Regency Gas Servs., L.P., 393 S.W.3d 858, 861 (Tex. App.—Dallas 2013, no pet.); Bullock v. American Heart Ass’n, 360 S.W.3d 661, 665 (Tex. App.—Dallas 2012, pet. denied) (appellate court has no duty or right to perform an independent review of the record and applicable law to determine whether there was error). Accordingly, this Court should overrule Issue One. Alternatively, if this Court considers Issue 1, both of Appellants’ arguments fail. B. Appellants concede Ted tortiously interfered with the Archers’ inheritance. The jury found that Ted Anderson tortiously interfered with the Archers’ inheritance from Jack Archer. CR646-53, 650. App. A. Appellants do not challenge the jury’s liability finding. Appts. Br. at 21-23.7 Unchallenged jury findings are binding on appeal. Wilson v. Texas Parks & Wildlife Dept., 853 S.W.2d 825, 832 (Tex. App.—Austin 1993), rev’d on other grounds, 886 S.W.2d 259 (Tex. 1994); Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d at 81. Thus, Issue 1 is a legal question answered by well-established law in Texas that requires no review of the evidence. 7 Appellants further cannot raise sufficiency in their Reply Brief. TEX. R. APP. P. 38.3; Sunbeam Envtl. Servs., Inc. v. Texas Workers’ Comp. Ins. Facility, 71 S.W.3d 846, 851 (Tex. App.—Austin 2002, no pet.). 26 C. Texas law recognizes a cause of action for tortious interference with inheritance. Appellants fail to cite a single case to support their argument that the tortious interference with inheritance does not exist. Appts. Br. at 21-23. Tortious interference with inheritance was first recognized in King v. Acker, 725 S.W.2d 750, 754 (Tex. App.—Houston [1st Dist.] 1987, no writ). App. F. There, King’s second wife forged a power of attorney and a will, while King was in a coma and then attempted to transfer $400,000 in stock from King to herself. Id. 751-52. A jury found that the second wife tortiously interfered with children’s and first wife’s inheritance. Id. at 752. On appeal, the court held “that a cause of action for tortious interference with inheritance rights exists in Texas.” Id. at 754. The Houston First Court of Appeals in part relied on the Restatement of Torts which states that, One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift. Id. (citing RESTATEMENT (SECOND) OF TORTS §774B (1979)). The court also recognized that in equity, “the law affords a remedy for every invasion of a legal right.” King v. Acker, 725 S.W.2d at 754 (citing Chandler v. Welborn, 156 Tex. 312, 319, 294 S.W.2d 801, 807 (1956)) (“where there is a right, there is a remedy”). 27 In the twenty-eight years since King v. Acker, neither the Texas Supreme Court, nor any court of appeals, has found that tortious interference with inheritance is not a valid cause of action. This Court has twice recognized the tort. In Neill v. Yett, this Court acknowledged the holding in King v. Acker, but did not comment substantively on the tort because the cause of action was barred by limitations. 746 S.W.2d 32, 35 (Tex. App.—Austin 1988, writ denied). In Meduna v. Holder, this Court set out the jury instruction for a tortious interference claim. No. 03-06-00484-CV, 2008 WL 1911184 at *2 (Tex. App.—Austin Apr. 30, 2008, pet. denied) (mem. op.) (trial court submitted issue on whether party had “tortiously interfered with Ruth's inheritance- ‘by undue influence, fraud, or other wrongful means, intentionally prevent[ing] another from receiving an inheritance or gift that she would otherwise have received.’”). Other courts of appeals have likewise recognized tortious interference with inheritance. In re Estate of Valdez, 406 S.W.3d 228, 233 (Tex. App.—San Antonio 2013, pet. denied); In re Estate of Russell, 311 S.W.3d 528, 535 (Tex. App.—El Paso 2009, no pet.); Brandes v. Rice Trust, Inc., 966 S.W.2d 144, 149-50 (Tex. App.—Houston [14th Dist.] 1998, pet. denied). The United States Supreme Court has also concluded that Texas law recognizes tortious interference with inheritance. Marshall v. Marshall, 547 U.S. 293, 313 (2006). 28 Finally, the Texas Estates Code confirms the existence of tortious interference with inheritance. Estates Code § 54.001 provides that “the filing or contesting in probate court of a pleading relating to a decedent’s estate does not constitute tortious interference with inheritance of the estate.” TEX. ESTATES CODE § 54.001(a) (former Probate Code §10C). Section 54.001(a) permits a party to assert a will contest without the proponents of the challenged will accusing the contestants of tortious interference with inheritance. Section 54.001(a) would be meaningless if tortious interference with inheritance was not a viable, recognized cause of action in Texas. See Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex. 2008) (Court must not interpret a statute in a manner that renders any part of the statute meaningless or superfluous); Rogers v. Texas Bd. of Architectural Examiners, 390 S.W.3d 377, 387 (Tex. App.—Austin, no pet.) (same). D. Legal malpractice privity rule does not apply in tortious interference with inheritance cases. In their second argument, Appellants contend that a tortious interference with inheritance claim cannot be brought against an attorney. Appts. Br. at 21-23. Appellants rely on a single case, Barcelo v. Elliott, that has no application here. In Barcelo v. Elliott, the Texas Supreme Court held in a legal malpractice case that an attorney drafting a will or a trust owes no duty of care to the beneficiaries. Barcelo v. Elliott, 923 S.W.2d 575, 579 (Tex. 1996). The rule in Barcelo applies 29 when 1) an attorney who 2) drafted a will or trust 3) is being sued for legal malpractice. None of these facts is present here. First, when the Archers sued Ted, he was no longer an attorney. He had resigned his license to practice law four years before the Archers brought their tortious interference lawsuit. 11RRPlx148. Second, Ted did not draft the wills or trusts at issue. 6RR164-65. It was undisputed that Leshin prepared the post-stroke wills and trusts that Jack signed. 11RRPlx167, Plx177. Third, the Archers did not sue Ted for legal malpractice; they sued Ted for tortious interference with inheritance. CR98-117, 654-719. Finally, tortious interference with inheritance is not based on the existence of a duty. See King v. Acker, 725 S.W.2d at 752-54 (duty is not an element of tortious interference with inheritance). Accordingly, because tortious interference with inheritance is long- recognized in Texas jurisprudence, this Court should overrule Issue 1. II. The Archers are entitled to their attorney’s fees and litigation expenses incurred in the Bexar County litigation as damages. [Responsive to Issues 2-4] Appellants raise three arguments to the district court’s award of attorney’s fees and expenses paid by the Archers in prior litigation as damages: 1) attorney’s fees cannot be recovered as damages, (Appts. Br. at 23-27); 2) the Archers had a duty to segregate attorney’s fees and failed to meet their burden, (Appts. Br. at 27- 30 29); and 3) the evidence is legally and factually insufficient to show the reasonableness and necessity of the Archers’ attorney’s fees, (Appts. Br. at 29-31). As set out below, well-established Texas law refutes Appellants’ first argument. Appellants have waived their second and third arguments. A. Texas jurisprudence recognizes recovery of attorney’s fees incurred in prior litigation as damages. Because of Ted’s tortious conduct in having Jack change his estate plan and disinherit the Archers, the Archers had to hire attorneys and pursue litigation to reinstate their uncle’s original estate plan set out in Jack’s 1991 Will. The Archers put on undisputed evidence that they incurred $2,865,928 in attorney’s fees and litigation expenses in the Bexar County guardianship litigation to get themselves reinstated as Jack intended. 6RR42, 52-53; 12RRPlx241. App. C. Texas law allows the Archers to recover those attorney’s fees and litigation expenses incurred in prior litigation with a third party as actual damages. Lesikar v. Rappeport, 33 S.W.3d 282, 306 (Tex. App.—Texarkana 2000, pet. denied). Texas follows the “American Rule” that attorney’s fees are only recoverable if provided by contract or by statute. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. National Dev. & Research Corp., 299 S.W.3d 106, 120-23 (Tex. 2009); New Amsterdam Cas. Co. v. Texas Indus., Inc., 414 S.W.2d 914, 915 (Tex. 1967). The American Rule does not apply, however, where a party is seeking attorney’s fees incurred in a prior case that were caused by a third party. Akin, Gump, 299 S.W.3d 31 at 120; Noell v. City of Carrollton, 431 S.W.3d 682,715-16 (Tex. App.—Dallas 2014, pet. denied). Attorney’s fees may be recoverable, however, under equitable principles. Nationwide Mut. Ins. v. Holmes, 842 S.W.2d 335, 341 (Tex. App.—San Antonio 1992, writ denied). The Texas Supreme Court in Turner v. Turner addressed an equitable exception to the general rule called the “tort of another exception.” 385 S.W.2d 230, 233 (Tex. 1964). App. G. Under the “tort of another exception,” One who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover reasonable compensation for loss of time, attorney fees and other expenditures thereby suffered or incurred in the earlier action. RESTATEMENT (SECOND) OF TORTS §914 (1979); see also Turner, 385 S.W.2d at 234. Under Turner, a plaintiff can recover attorney’s fees as damages if: 1) the plaintiff was involved in litigation with a third party (the “first suit”); 2) the plaintiff incurred reasonable and necessary attorney’s fees in good faith during the litigation; 3) the litigation was the natural and proximate consequence of defendant’s tortious conduct; and 4) the plaintiff sought recovery of attorney’s fees from defendant in a later suit (the “second suit”). See Turner, 385 S.W.2d at 234; see also RESTATEMENT (SECOND) OF TORTS § 914(2) (1979); Standard Fire Ins. v. Stephenson, 963 S.W.2d 81, 90 (Tex. App.—Beaumont 1997, no pet.); Massey v. Columbus State Bank, 35 S.W.3d 697 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). 32 Applying the rule in Turner, the Archers were involved in litigation with third parties [the “first suit” is the declaratory judgment action involving the charities in the Bexar County guardianship] (11RRPlx23); the Archers incurred reasonable and necessary attorney’s fees in good faith during the litigation [through a contingency fee contract] (12RRPlx241); the prior litigation was a natural and proximate consequence of Ted’s tortious conduct in interfering with Jack’s estate plan and causing Jack to disinherit the Archers entirely in favor of the charities (3RR76-78); and the Archers sought recovery of the attorney’s fees and other monies they were forced to pay in the prior litigation from Ted in a later lawsuit [the “second suit” is the underlying lawsuit] (CR654-719). Numerous cases have cited the rule in Turner and awarded attorney’s fees as damages. In Standard Fire Ins. v. Stephenson, a surviving spouse sued her deceased husband’s workers’ compensation carrier for bad faith following the husband’s work-related death. The wife prevailed in the bad faith case (the second suit) and was awarded as damages her attorney’s fees paid to pursue the workers’ compensation claim (the first suit). 963 S.W.2d at 90 (citing Texas Beef Cattle Co. v. Green, 883 S.W.2d 415, 430 (Tex. App.—Beaumont 1994), rev’d on other grounds, 921 S.W.2d 203 (Tex. 1996). In Massey v. Columbus State Bank, the plaintiff incurred over $100,000 in attorney’s fees in defending false and defamatory complaints lodged by the 33 defendant (the first suit.) Citing Turner, the court of appeals concluded that “as a result of these wrongful acts, the Bank was forced to spend $104,000 responding to and defending against all of these complaints and grievances. The trial court properly allowed these attorney’s fees as an element of actual damages.” (in the second suit). 35 S.W.3d at 702. In Arlitt v. Patterson, following a six-year will contest, the family sued their attorneys for negligence in connection with the attorney’s estate-planning services. Citing Turner, the court of appeals recognized that “contractual or statutory authorization is not necessary to recover attorney’s fees and costs as damages.” 995 S.W.2d 713, 721 (Tex. App.—San Antonio 199, pet. denied), disapproved on other grounds by, Belt v. Oppenheimer, Blend, Harrison & Tate, 192 S.W.3d 780 (Tex. 2006). The court reversed a summary judgment denying the attorney’s fees. Other cases recite the rule, but conclude the party requesting attorney’s fees as damages failed to meet one of the requirements. This Court, citing Lesikar and Massey, recognized that, in equity, attorney’s fees may be awarded as damages. Pacesetter Pools, Inc. v. Pierce Homes, Inc., 86 S.W.3d 827, 833-34 (Tex. App.— Austin 2002, no pet.). The Court, however, concluded that equitable principles did not apply where one tortfeasor sought to recover its attorney’s fees from another tortfeasor. Because attorney’s fees as damages must involve an innocent party, the attorney’s fees were denied. Id. 34 In Lesikar v. Rappeport, the defendants breached fiduciary duties owed to the plaintiff by wrongfully transferring oil and gas leases to themselves. Lesikar, 33 S.W.3d at 306. The defendants’ conduct forced plaintiff to incur attorney’s fees to contest the transfers. The court of appeals set out the standard for recovering attorney’s fees as damages because of the wrongful act of a defendant that forces a plaintiff to incur attorney’s fees. Id. Plaintiff was ultimately not awarded fees because she failed to put on evidence of the reasonableness and necessity of her attorney’s fees. Id. at 307. Appellants cited cases miss the mark. Their cases do not meet the elements to recover attorney’s fees as damages: Wein v. Sherman involved an attempt to attorney’s fees in a “first suit” and not in a “second suit.” No. 03-10-00499-CV, 2013 WL 4516013 at *__ (Tex. App.—Austin August 23, 1013, no pet.); Tana Oil & Gas Corp. v. McCall, 104 S.W.3d 80, 81-83 (Tex. 2003) involved an attorney seeking to recover attorney’s fees for defending himself; Naschke v. Gulf Coast Conference, 187 S.W.3d 653, 655 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) involved an incorrect charge in an attorney’s fees as damages case; Peterson v. Dan Witter Reynolds, Inc., 805 S.W.2d 541, 549 (Tex. App.—Dallas 1991, no writ) has been rejected by later Dallas cases, Noell v. City of Carrollton, 431 S.W.2d 682, 715-16 (Tex. App.—Dallas 2013, pet denied); and Cupples Coiled Pipe, Inc. v. Esco Supply Co., 591 S.W.2d 615, 619 (Tex. Civ. App.—El Paso 1979, writ ref’d 35 n.r.e.) and Dalton S.S. Corp. v. W.R. Zanes & Co., 354 S.W.2d 621, 624 (Tex. Civ. App.—Fort Worth 1962, no writ) both requested attorney’s fees in a “first suit” and did not involve a “second suit.” Accordingly, under Turner and the other cases set out above, the Archers are entitled to recover their attorney’s fees as damages from earlier litigation in Bexar County caused by Ted’s undisputed tortious conduct. B. Appellants waived their argument about segregation of attorney’s fees. Assuming segregation is an issue in an attorney’s fees as damages case, which the Archers dispute, Appellants waived any argument about the segregation of attorney’s fees. Appellants objected to the Archers’ attorney’s fees evidence solely on the ground that the Archers could not recover attorney’s fees as damages. 6RR13-17. Appellants made no objection to the evidence on the basis of segregation. Id. Further, Appellants made no objection to the damage question in the charge based on segregation or on any other basis. 9RR94-95; App. L. To preserve error on the failure to segregate attorney’s fees, the challenging party must either object to the attorney’s fees evidence on the basis of the failure to segregate or object to the charge, pointing out the failure to segregate attorney’s fees; otherwise, the issue is waived. Lesikar v. Rappeport, 33 S.W.3d at 306; Rice v. 36 Gregory, 780 S.W.2d 384, 389 (Tex. App.—Texarkana 1989, writ denied); see also Matthews v. Candlewood Builders, Inc., 685 S.W.2d 649, 650 (Tex. 1985). Appellants also waived their segregation argument on appeal. Appts. Br. at 28-29. Appellants’ argument purports to refer to the record, but contains no record citations. Instead, it states “(RR )” and “(CR )” with no page references. This is waiver. TEX. R. APP. P. 38.1(i). This Court has no duty to review a voluminous record without guidance from an appellant to determine if an issue raised constitutes reversible error. Keyes Helium Co. v. Regency Gas Servs., L.P., 393 S.W.3d at 861. Bullock v. American Heart Ass’n, 360 S.W.3d at 665 (appellate court has no duty or right to perform an independent review of the record and applicable law to determine whether there was error). This is particularly true given that the record in this appeal is over 9,000 pages. C. Segregation of attorney’s fees does not apply in an attorney’s fees as damages case. Alternatively, even considering Appellants’ waived argument, segregation of attorney’s fees has no application here. Segregation is based on some attorney’s fees being recoverable (by contract or by statute) and some attorney’s fees being not recoverable. Attorney’s fees as damages, on the other hand, are based on a plaintiff being involved in litigation with a third party because of defendant’s tortious conduct and incurring attorney’s fees. See Turner, 385 S.W.2d at 234. Further, the Archers 37 did not seek their attorney’s fees in this case. They only sought as damages their attorney’s fees incurred in the prior litigation. When recovering attorney’s fees as damages from a prior lawsuit, the only issue is whether the attorney’s fees were reasonable and necessary. Lesikar v. Rappeport, 33 S.W.3d at 306; Powell v. Narried, 463 S.W.2d 43, 46 (Tex. Civ. App.—El Paso 1971, writ ref’d n.r.e.); see also Texas Beef Cattle Co. v. Green, 883 S.W.2d at 430 (recovery of attorney’s fees as damages does not require segregation when there are multiple parties involved). In an attorney’s fees as damages case, courts do not address whether the underlying lawsuit involved a claim for attorney’s fees under a contract or by statute. Rice v. Gregory, 780 S.W.2d at 389; Lesikar, 33 S.W.3d at 306. None of Appellants’ cited authorities on segregation were attorney’s fees as damages cases. Appts. Br. at 27-28. Appellants’ waived argument on segregation is refuted by the record. First, the Archers’ witness on attorney’s fees testified that the Archers’ attorney’s fees could not have been segregated because of the substantial overlap in the guardianship proceeding and related lawsuits. 6RR63-64. All of the legal work was intertwined. 6RR29; 12RRPlx211, Plx212. The Archers’ ability to settle with the charities was based on the legal work performed in Jack’s contested guardianship proceeding, during which the Archers developed their proof that Jack lacked mental capacity when he signed the post-stroke wills and trusts. 38 The core issue in all of the litigation was Jack’s mental capacity when the various documents were signed and Ted’s taking advantage of Jack’s lack of capacity. Second, Appellants’ contention that some of the lawsuits the Archers pursued in the Bexar County guardianship did not involve Ted and thus supports segregation of fees, is also refuted by the record. As record reflects, Ted was the source for all of the litigation that the Archers were forced to pursue involving their uncle. Ted’s tortious conduct in having Jack change his estate plan pitted the Archers against the charities in what would have been a will contest. 6RR64-65; 11RRPlx23. Ted’s tortious conduct caused Jack to sign three post-stroke wills and two trusts that disinherited the Archers in favor of the charities. 11RRPlx166, Plx171, Plx172, Plx192, Plx194. There would have been no dispute had Ted not gotten Jack to change his 1991 Will. Ted’s tortious conduct in having Jack sign the new wills and trusts also precipitated the other lawsuits that the Archers filed derivatively on Jack and his estate’s behalf. The other litigation the Archer family pursed was a direct result of being disinherited. Ted hired and directed the attorneys (Leshin, Adami, and Hearne Sr.) and Hamilton, all of whom were sued and paid settlements in the Bexar County lawsuits. 6RR71-72; 11RRPlx119, Plx122, Plx142, Plx143, Plx146, Plx151, Plx154, Plx155, Plx157, Plx165, Plx167, Plx170, Plx172, Plx179, Plx183; 12RRPlx227, Plx241. App. C. 39 Ted wired $400,000 from Jack’s bank account to Hearne Sr. to pay all of the attorney’s fees. 6RR74. These fees were eventually reimbursed to Jack’s estate as a result of the Archers’ lawsuit. 6RR60-62. Ted instructed Leshin to put J.R. Hamilton in as trustee of Jack’s Trust. 6RR71-72. Hamilton also settled and paid money back to Jack. That is, without Ted wanting to change Jack’s estate plan, Leshin, Hearne, Sr., Adami, or J.R. Hamilton would not have been involved. As Appellee Carol Archer Bugg testified, but for Ted’s conduct, her family would not have been in years of litigation and been forced to pay millions in attorney’s fees and settlement money simply to obtain what their Uncle Jack had always intended. 3RR176-178. Appellants offered no evidence on the issue of segregation. Every lawsuit the Archers were forced to pursue in the Bexar County guardianship was directly tied to Ted, and without Ted’s tortious conduct, the Archers would not have been forced to pursue. Accordingly, there is no basis to segregate attorney’s fees on the basis that Ted was not involved. D. Appellants waive their sufficiency of the evidence argument. Appellants argue that the evidence was legally and factually insufficient to show the reasonableness and necessity of the Archers’ attorney’s fees. Appts. Br. at 29-31. Appellants’ argument consists of two conclusory statements without citation to the record. A sufficiency of the evidence point must cite to the record or the issue 40 is waived. Rendleman v. Clarke, 909 S.W.2d 56, 58-59 (Tex. App.—Houston [14th Dist.] 1995, writ dism’d as moot) (sufficiency point waived by failure to refer to reporter’s record). This Court has no duty to perform an independent review of the record and applicable law to determine whether there was error. Green v. Kaposta, 152 S.W.3d 839, 841 (Tex. App.—Dallas 2005, no pet.); Brandon v. Am. Sterilizer Co., 880 S.W.2d 488, 493-94 (Tex. App.—Austin 1994, no writ). Accordingly, Appellants waive their sufficiency argument. TEX. R. APP. P. 38.1(i). E. The evidence is factually and legally sufficient as to the reasonableness and necessity of the Archers’ attorney’s fees. In the event the Court considers Appellants’ waived argument, the evidence is legally and factually sufficient to show reasonableness and necessity of the Archers’ attorney’s fees. Appellants do not attack the sufficiency of the evidence on the amount of the attorney’s fees paid by the Archers or the amount of damages the jury found. Appts. Br. at 29-31. Instead, Appellants attack only the evidentiary foundation of the reasonableness and necessity of the Archers’ attorney’s fees. This Court reviews a factual sufficiency point by considering all of the evidence to determine if there is some evidence supporting the finding, and then determines whether the finding is so weak or against the overwhelming weight of the evidence as to be manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). This Court can sustain a legal sufficiency challenge only if: “(a) there is a 41 complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.” Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 903 (Tex. 2004). The evidence here is both legally and factually sufficient to support the Archers’ attorney’s fees as being reasonable and necessary. After the Archers presented extensive testimony on the amount of attorney’s fees paid for the Bexar County litigation, (see infra II.F. at 51) Frank Ikard, one of the attorneys who represented the Archers throughout the Bexar County litigation, provided expert testimony as to the reasonableness and necessity for the attorney’s fees. 7RR94- 139. Ikard testified that he had practiced law for more than 40 years and in the fiduciary litigation area for more than 20 years. 7RR108. Ikard explained the nature of the problems and issues in the case from the outset, as well as the strategies and work pursued on the Archers’ behalf. 7RR96-97, 110-25. Ikard went through the Texas Disciplinary Rules 1.04(b) to support the reasonableness and necessity of the attorney’s fees. 7RR110-25. Ikard explained that the fee arrangement was originally hourly but then changed to a contingent fee. 7RR106-07. Ikard’s firm represented the Archers for close to a decade. 7RR110. 42 Ikard testified about the number of hours spent on the case and the expenses incurred. 7RR110. Ikard explained the novelty and complexity of the issues, beginning with the difficulty in trying to serve Jack in the original guardianship proceeding because he was being moved from location to location to avoid service. 7RR110-11; 11RRPlx17. A further complicating and novel factor was that Jack had five attorneys agreeing in court that he needed a guardian. 7RR112-13. While the attorneys tried to memorialize the agreement, Ted fired the attorneys and hired another one to repudiate the agreement calling for a guardian. Id. This imposed additional expense and difficulty and forced the Archers to refile the guardianship. 7RR112, 114-15. According to Ikard, it was novel and unusual to have someone in Jack’s position in an agreed guardianship and, when the guardianship agreement was repudiated, to have Jack put all of his assets in trust with Jack as trustee. 7RR112- 13. Another complicating factor in the case was the court-appointed temporary guardian of the estate, J.R. Hamilton, who eventually was removed because he failed to file statutory reports on the ward’s estate. 7RR117-18. After Hamilton, there were a series of temporary guardians. 7RR120. Another unusual matter was that the court-appointed temporary guardian of Jack’s person refused to allow the Archers to visit him. 7RR120-21. This forced the Archers to seek court-ordered visitation. 7RR121. Another complicating factor was that Hearne Sr. obtained $400,000 from 43 Jack’s bank account through Ted and used the money to pay the attorneys representing Jack, without court approval. 7RR121-22. Hearne Sr. was eventually ordered to repay this money. Id. Further, Ikard testified to the successes obtained by his firm’s representation of the Archers. 7RR110-25. Ikard testified to the amount involved and the results obtained. 7RR95. In particular, the Archers were reunited with their uncle, the post- stroke wills were set aside, Bugg became Jack’s guardian, and an independent third party became the guardian of Jack’s estate. 7RR102-03. The Archers were also successful in recovering monies that had been wrongfully taken from Jack. 7RR105, 122-24. Finally, Ikard testified that the attorney’s fees incurred and paid by the Archers were both reasonable and necessary. 7RR110-26; 125-26. Ikard also testified that the forty-percent contingency fee was usual and customary in Travis County for the kind of legal worked performed on the Archers’ behalf. 7RR125-26. Appellants made no attempt to attack Ikard’s credentials, credibility, or his opinions on the reasonableness of and necessity for the attorney’s fees the Archers paid. 7RR126-39. Further, Ikard’s expert opinion was uncontroverted. Appellants offered no witness or other evidence on the issue of the attorney’s fees that the Archers paid in the prior litigation. 44 Accordingly, the evidence was both legally and factually sufficient to support the reasonableness and necessity for the Archers’ attorney’s fees and litigation expenses paid in the prior litigation. Thus, this Court can affirm the damage award in the Final Judgment. As set out below, the Archers seek additional damages. This Court should overrule Issues 2, 3 and 4. F. The district court erred in denying the Archers’ motion for partial JNOV on the full amount of attorney’s fees proved as a matter of law. [Cross Issue 1] By cross-issue, the Archers seek the full amount of their attorney’s fees paid in the prior litigation as damages that were proved as a matter of law, but which were not awarded by the district court. The Archers seek the entire amount of attorney’s fees paid in the prior litigation of $2,865,928, along with the $588,054 awarded by the district court in post-verdict motions. CR1461. App. K. The Archers’ damage model: The following damage discussion relates to the arguments under II.F. and III.C. See infra III.C at 60. The Archers put on uncontroverted evidence of their total damages of $3,453,982. This amount consisted of the settlement with the charities of $588,054 and the $2,865,928 in attorney’s fees paid. The jury’s damage award reduced the Archers’ attorney’s fees damages by thirty percent and (as addressed in III. C. below) entirely omitted the $588,054 paid to settle with the charities. By making these two deductions, the resulting damages in the verdict are $2,006,150: 45 Plaintiff’s Uncontroverted Evidence of Jury’s Damage Award Damages Attorney’s fees & Attorney’s fees & $2,865,928 – 30% litigation expenses $2,865,928 litigation expenses = $2,006,150 Settlement with Settlement with charities + $588,054 charities $0 $3,453,982 $2,006,150 CR1470-71; 6RR42, 56-58, 11RRPlx24; 12RRPlx241. App. B, C. Because their damages evidence was uncontroverted, the Archers filed a motion for partial JNOV and sought the entire amount of their attorney’s fees and the settlement with the charities. After a hearing, on July 17, 2013, the district court denied the Archers’ motion for partial JNOV. 8 CR1209; App. H. This Court reviews a district court’s ruling on a motion for JNOV under a legal sufficiency standard. Helping Hands Home Care, Inc. v. Home Health of Tarrant County, Inc., 393 S.W.3d 492, 515 (Tex. App—Dallas 2013, pet. denied); City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). To sustain a legal sufficiency challenge, this Court must find: “(a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence 8 The Archers also requested a partial directed verdict on damages and objected to the charge on this basis. 9RR73-76, 93-94. 46 conclusively establishes the opposite of the vital fact.” Volkswagen of America, Inc. v. Ramirez, 159 S.W.3d at 903. In reviewing a matter of law challenge, this Court first examines the record for evidence that supports the finding, while ignoring contrary evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). If there is no evidence to support the finding, this Court then examines the entire record to determine if the contrary proposition is established as a matter of law. Id. In a legal sufficiency review, the jury is not free to disregard undisputed evidence. With undisputed evidence, the jury may draw whatever inferences they wish as long as more than one inference is possible. City of Keller, 168 S.W.3d at 821. If the evidence allows only one inference, neither the jury nor the reviewing court may disregard it. Id. at 822. The jury decides issues raised by conflicting evidence, “but where there is evidence upon an issue and there is no evidence to the contrary, then the jury has not the right to disregard the undisputed evidence and decide such issue in accordance with their wishes.” Texas Dept. of Transp. v. Guerra, 858 S.W.2d 44, 47 (Tex. App.—Houston [14th Dist.] 1993, writ denied) (quoting Texas & N.O.R. Co. v. Burden, 146 Tex. 109, 203 S.W.2d 522, 530 (1947)). 1. No evidence supports the jury’s thirty-percent reduction of the attorney’s fees the Archers paid in prior litigation. The jury reduced the Archers attorney’s fees paid in the Bexar County litigation of $2,865,928 by 30%. CR646-653, 651. App. A. This Court’s first 47 inquiry is to consider the evidence that supports the jury’s verdict that reduced the Archers’ attorney’s fees paid in prior litigation. The jury was asked the following question for damages with the following instruction: What sum of money, if paid now in cash, would fairly and reasonably compensate Plaintiffs for their damages, if any, proximately caused by the tortious interference? Consider the following element of damages and none other: the difference in value, if any, of the inheritance actually received by Plaintiffs and the value of the inheritance that Plaintiffs would have received from Jack Archer had there been no interference by the Defendant. CR646-653, 651.9 The Archers presented uncontroverted evidence that the amount of attorney’s fees and litigation expenses that they paid as a result of the Bexar County litigation was $2,865,928. 6RR42, 52-53, 57; 12RRPlx241. App. C. The Archers further presented expert testimony as to the reasonableness and necessity of those attorney’s fees. See supra II.E. at 41. In response to the Archers’ evidence, Appellants had the burden to put on contradictory expert evidence. Appellants failed to do so. Instead, Appellants’ evidence and entire case went to one issue—Jack’s mental status when he signed 9 This question also contained a definition of “proximate cause.” CR646-653, 651. App. A. 48 multiple wills and trusts after his debilitating stroke. None of Appellants’ witnesses or documentary evidence addressed the Archers’ attorney’s fees. Appellants offered no expert witness on attorney’s fees. Expert testimony is required to support an award of attorney’s fees. Woollett v. Matyastik, 23 S.W.3d 48, 52 (Tex. App.—Austin 2000, pet. denied); Cantu v. Moore, 90 S.W.3d 821, 826 (Tex. App.—San Antonio 2002, pet. denied). Appellants had to present expert testimony that the Archers’ attorney’s fees in the prior litigation were not reasonable and necessary. Without expert testimony that the Archers’ fees were not reasonable and necessary, Appellants have no basis to attack the amount of the attorney’s fees. Appellants offered no evidence to create a range of damages. See Gulf States Utils. v. Low, 79 S.W.3d 561, 566 (Tex. 2002) (jury can award damages within the range of evidence presented at trial). Appellants offered no evidence to support a thirty-percent reduction in the Archers’ attorney’s fees paid or to set up a range of damages. Appellants did not adduce any evidence on cross-examination of the Archers’ witnesses to support the jury’s reduction of attorney’s fees paid in the prior litigation. 3RR178-218; 4RR5-32, 51-63; 6RR59-68. Appellants also offered no evidence to support the jury’s reduction of the Archers’ total damages by approximately 58% ($3,453,982 total damages x 58% = $2,003,309.56). Further, the jury is not free to arrive at a damages number on their own that is not supported by the evidence or to “pull figures out of a hat.” First State Bank v. 49 Keilman, 851 S.W.2d 914, 930-31 (Tex. App.—Austin 1993, writ denied); Mills v. Jackson, 711 S.W.2d 427, 434 (Tex. App.—Fort Worth 1986, no writ). In particular, with uncontradicted evidence of attorney’s fees, the jury is not free to pick a number. Smith v. Patrick W.Y. Tam Trust, 235 S.W.3d 819, 828-29 (Tex. App.—Dallas 2007), rev’d on other grounds, 296 S.W.3d 545 (Tex. 2009). In Smith, the Trust sued the Smiths as guarantors on a lease when the lessee defaulted, and sought actual damages of $200,000 and $47,438.75 in attorney’s fees. 235 S.W.3d at 828-29. The jury awarded $65,000 in damages and no attorney’s fees. Id. at 822. The trial court rendered judgment on the damages amount and awarded $7,500 in attorney’s fees. The Dallas Court of Appeals vacated the $7,500 attorney’s fees award and rendered judgment for the Trust’s $47,438.75 in attorney’s fees. Id. at 829. The Dallas Court of Appeals rejected the Smiths’ argument that the jury was entitled to disregard the uncontroverted evidence and award no attorney’s fees. In response to the Trust’s uncontroverted evidence of its attorney’s fees, the Smiths failed to present evidence that the attorney’s fees were not necessary or that the Trust’s attorney’s legal work had no value. Id. Accordingly, the court of appeals concluded there was “no evidence to support the jury’s finding of no attorney’s fees.” Id. The court of appeals rendered judgment for $47,438.75 in attorney’s fees. 50 The court of appeals noted that the Smiths had ample opportunity to question or challenge the Trust’s attorney’s fees evidence. Id. at 828. The Smiths, however, did not challenge the amount of the fees charged, the nature of the services provided, or whether the amount reflected the nature and complexity of the case. Id. The Texas Supreme Court reversed, but only on the remedy awarded by the court of appeals. Smith, 296 S.W.3d at 548. The supreme court recognized the same problem as the court of appeals: “no evidence supported the jury’s refusal to award any attorney’s fees (as the court of appeals correctly noted).” Id. The supreme court, however, concluded that the remedy had to be a remand to consider the amount of attorney’s fees in light of the reduction in actual damages. Id. Applying the reasoning in Smith, the jury was not free to disregard the Archers’ uncontradicted evidence that they paid $2,865,928 in attorney’s fees and litigation expenses in the prior litigation and arbitrarily pick another number with no evidentiary basis. Thus, no evidence supports the jury’s 30% reduction of attorney’s fees that the Archers paid in the earlier litigation in Bexar County by apportioning liability. 2. The Archers proved the entire amount of their attorney’s fees paid in the Bexar County litigation as a matter of law. After reviewing the evidence in support of the jury’s verdict, this Court must then consider all of the evidence to determine whether the Archers established their 51 damages as a matter of law. Dow Chem. Co., 46 S.W.3d at 241; Allman, 314 S.W.3d at 673. The Archers’ attorney’s fees paid in the prior litigation was uncontroverted. A jury may not disregard uncontroverted evidence. Alice Leasing Corp. v. Castillo, 53 S.W.3d 433, 445 (Tex. App.—San Antonio 2001, pet. denied). Three witnesses testified about the amount of attorney’s fees paid by the Archers. First, Bugg testified about the contentiousness of the litigation from its inception until its conclusion. 3RR140-147, 151-155, 157-164. According to Bugg, when the Archers could no longer pursue the litigation on an hourly basis, they converted to a contingency fee. 3RR155-156. Mary Haught, one of the Archers’ former attorneys, provided a detailed explanation of the attorney’s fees and litigation expenses that the Archers paid to be reinstated as beneficiaries under Jack’s will. 6RR26-53. Haught explained that the Archers converted from an hourly fee arrangement to a contingency fee after learning of the disinheritance. 6RR22-26. The contingency fee was based on getting the Archers reinstated as beneficiaries and then the law firm received a percentage of the value of Jack’s estate, including monies brought into Jack’s guardianship estate through lawsuits against Ted and the attorneys he had hired. 3RR155-56; 6RR23-26; 11RRPlx22 at 2-3. The law firm further agreed to sue the various people who had taken money from Jack and receive a percentage of any of that recovery. 52 6RR23-26. When the contingency fee contract was entered, the Archers knew they had been disinherited. 6RR24. Haught then explained the contingency fee calculation. 12RRPlx241. App. C. 10 The calculation began with calculating the total value of Jack’s estate. Using the estate tax return that valued Jack’s estate at $3,848,678 and an agreed upon value for Jack’s ranch of $3,730,866, the total estate value of Jack’s estate was $7,579.544. 6RR26-29; 12RRPlx202, Plx241. Monies received as a result of the Bexar County guardianship lawsuits were added to the total estate value. 6RR29-32; 12RRPlx203 (Adami settlement), Plx204(Hearne Sr. settlement), Plx205, Plx206, Plx207 (Hamilton settlement), Plx241. Because the calculation is based on money that was actually received by the Archer Family, monies that the Archers had to pay to probate Jack’s will and the monies paid to settle with the charities were subtracted. 6RR32-35; 12RRPlx241. This left $7,256,058 as “litigation proceeds.” The firm’s expenses of $538,096 and the fees paid the Archers of $118,454 were subtracted. 6RR36-39, 39-40; 12RRPlx209, Plx241. This calculation left $6,599,508 as the amount to which the contingency fee percentage was applied. 6RR40; 12RRPlx241. The firm’s forty-percent contingency fee was $2,639,803.20 10 Plaintiffs’ Exhibit 241 is not in numerical order in the Reporter’s Record. App. C. It is found before Plx222. 53 plus expenses of $538,096, which came to a total fee due the law firm of $3,177,899. 6RR40-41; 12RRPlx241. App. C. The Archers and the law firm negotiated the total fee down to $2,865,928. 6RR42,52-53; 12RRPlx241. At the end of the day, the Archers paid $2,865,928 in attorney’s fees to Ikard & Golden. 6RR53; 12RRPlx 241. Haught went on to explain how the firm was paid as set out on Plx241 page 2. 6RR29-32, 40-53. Finally, as set out above, and incorporated here by reference to avoid repetition, Frank Ikard testified as the reasonable and necessity of the $2,865,928 in attorney’s fees paid by the Archers. See supra II.E. at 41. Through the testimony of Bugg, Haught, and Ikard, and the exhibits during their respective testimony, the Archers proved as a matter of law the amount of the attorney’s fees the Archers paid in the prior litigation: $2,865,928. The evidence supports only one inference. Appellants had every opportunity to challenge the Archers’ evidence on the attorney’s fees portion of damages. The Archers’ evidence of damages was not called into question on cross-examination and was never controverted. “Clear, direct, and uncontroverted evidence of attorney’s fees is taken as true as a matter of law, especially when the opposing party has the means and opportunity to disprove the testimony.” B&W Supply, Inc. v. Beckman, 305 S.W.3d 10, 20-21 (Tex. App.— 54 Houston [1st Dist.] 2009, pet. denied). Appellants do not challenge the amount of attorney’s fees paid on appeal. A reasonable juror could have disregarded the undisputed evidence of $2,865,928 as the amount the Archers paid in attorney’s fees. Accordingly, the district court erred in denying the Archers’ motion for partial JNOV. Thus, in addition to seeking an affirmance of the Final Judgment of liability, the Archers request that the Court sustain their Cross Issue 1 and render judgment that the district court should have rendered on their total attorney’s fees paid in the prior litigation and proved as a matter of law of $2,865,928, in addition to the $588,054 that the district court awarded post-verdict. In the alternative, based on the legal and factual sufficiency of the evidence of attorney’s fees discussed above, the Archers request that this Court affirm the Final Judgment on liability and damages. III. The district court properly granted Appellants’ motion for partial JNOV and awarded the Archers the amount paid to settle with the charities. [Responsive to Issue 5] Appellants complain of the district court’s award of an additional $588,054 in damages to settle with the charities. As set out above in the damage model chart, the jury’s award omitted the $588,054 that the Archers paid to settle with the charities. Supra II.F. at 45-46. Appellants have waived this issue. Even considering 55 the waived issue, the district court correctly modified the jury’s damage award and awarded the Archers’ additional damages. A. Appellants’ briefing error waives appellate review. In Issue 5, Appellants cite no authority, make no cites to record, and offer no cogent arguments. Appts. Br. at 31-32. See TEX. R. APP. P. 38.1(i) (brief must contain a clear and concise argument with appropriate citation to authorities and to the record). The failure to provide substantive analysis or cite authority waives the complaint. Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 75. Further, this Court has no duty to review a voluminous record without guidance from an appellant to determine if an issue raised constitutes reversible error. Keyes Helium Co. v. Regency Gas Servs., L.P., 393 S.W.3d at 861. Accordingly, Issue 5 is waived. B. Appellants’ post-verdict motions waive appellate review. Appellants’ post-verdict motions, which unqualifiedly urged the district court to award the Archers the additional damages of $588,054, waive this Court’s review. In their motion for partial JNOV, Appellants agreed without reservation that the Archers proved their settlement with the charities cost them $588,054 and that the district court should revise the Jury’s Verdict: For the reasons given above, Defendants respectfully urge the Court to grant their Motion for Partial Judgment Notwithstanding the Verdict, and modify the jury’s finding on damages to reflect the only element properly proved, that is, $588,054.00, the amount paid by Plaintiffs in settlement with the charities in the prior litigation . . . . . 56 CR1210-18, 1217 (emphasis added); App. I After the district court heard and denied the Archers’ motion for partial JNOV on July 17, 2013 (CR1209), and after the Archers pointed out that Appellants had conceded the Archers were entitled to the $588,054 in additional damages on July 18, (CR1235-51), Appellants filed an amended motion for partial JNOV on July 25, but still affirmatively acknowledged that the Archers proved the settlement with the charities number: In the alternative [if the district court concluded tortious interference with inheritance is a valid cause of action], Defendants urge the Court to grant their Motion for Partial Judgment Notwithstanding the Verdict, and reduce the jury’s finding on damages to $588,054.00, the amount paid by Plaintiffs in settlement with the charities in the prior litigation .... CR1264, 1273 (emphasis added); App. J When district court signed the Final Judgment, only Appellants’ amended motion for JNOV remained pending (along with both parties’ briefs in support of a prejudgment interest calculation). CR1276, 1278-1469, 1252, 1260. Accordingly, the district court implicitly granted Appellants’ amended motion for JNOV when the court signed the Final Judgment and added $588,054 to the jury’s $2,006,150. CR1470-71; see TEX. R. APP. P. 33.1(a)(A); Allstate Prop. & Cas. Ins. v. Gutierrez, 281 S.W.3d 535, 539 (Tex. App.—El Paso 2008, no pet.) (final judgment implicitly denied motion for leave to amend pleadings); Mason v. Mason, No. 07-12-00007, 57 2014 WL 199649 at *6 (Tex. App.—Amarillo Jan. 13, 2014, no pet. (mem. op.) (final judgment implicitly granted post-verdict request for pre-judgment interest). Applying settlement credits and prejudgment interest, the Final Judgment awarded the Archers $2,564,899.90 plus post-judgment interest. CR1235, 1461, 1470-71. App. B, K. For several reasons, Appellants’ post-verdict motions waive this Court’s review of the district court’s award of the $588,054 in damages. First, Appellants failed to preserve their complaint in the trial court. In both motions for partial JNOV, Appellants requested, without qualification, the district court to award $588,054 to the Archers. CR1217, 1273. App. I, J. Appellants never preserved the argument they now raise on appeal. CR 1210-18, 1264-75; see First Nat’l Bank v. Fojtik, 775 S.W.2d 632, 633 (Tex. 1989); Smith v. East, 411 S.W.3d 519, 528-29 (Tex. App.—Austin 2013, pet. denied) (to preserve right to complain about judgment, motion must state its disagreement with the content and result of the judgment); Bray v. Tejas Toyota, Inc., 363 S.W.3d 777, 787 (Tex. App.—Austin 2012, no pet.) (same). Appellants never stated in their motions for JNOV, as required by this Court in Smith and Bray, that they specifically reserved the right to complain on appeal about the $588,054 in damages. Accordingly, the failure to comply with the rule in Fojtik/Smith/Bray results in waiver of Issue 5. 58 Second, Appellants invited the alleged error of which they now complain. A party may not invite error by asking “something of a court and then complain that the court committed error in giving it to him.” Northeast Tex. Motor Lines, Inc. v. Hodges, 138 Tex. 280, 158 S.W.2d 487, 488 (1942); Bluestar Energy, Inc. v. Murphy, 205 S.W.3d 96, 101 (Tex. App.—Eastland 2006, pet. denied). Appellants unqualifiedly requested the district court to award the Archers $588,054, and the district court did precisely what Appellants requested. Thus, the invited error doctrine bars this Court’s review of Issue 5. Finally, Appellants judicially admitted the $588,054 in damages. A judicial admission is a clear, deliberate, and unequivocal statement that “occurs when an assertion of fact is conclusively established in live pleadings, making the introduction of other pleadings or evidence unnecessary.” Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000). A judicial admission bars the party from disputing the admitted fact. Id. The judicial admission doctrine applies not only to pleadings, but also to post- trial filings and even statements made in an appellate brief. Jansen v. Fitzpatrick, 14 S.W.3d 426, 431 (Tex. App.—Houston [14th Dist.] 2000, no pet); City of San Antonio v. Hardee, 70 S.W.3d 207, 212 (Tex. App.—San Antonio 2001, no pet.). 59 Appellants’ statement in their motions for partial JNOV of the “amount paid,” and “properly proved” damages of $588,054 are judicial admissions. CR1217, 1273. App. I, J. Accordingly, Appellants waive appellate review of Issue 5. C. The Archers proved the settlement with the charities amount as a matter of law. [Cross Issue 2] Alternatively, even considering Appellants’ waived Issue 5, the district court properly granted Appellants’ JNOV and awarded the Archers the settlement with the charities amount. In the event this Court sustains Issue 5 and reverses the district court’s award of $588,054, and to avoid rendition of judgment on the verdict, the Archers bring a cross issue on the amount of damages paid to settle with the charities. See TEX. R. APP. P. 38.2(b); TEX. R. CIV. P. 324(c). This Court reviews a JNOV under a legal sufficiency standard. When a party challenges the legal sufficiency of the evidence supporting an adverse finding on an issue on which the party had the burden of proof, it must show that the evidence establishes as a matter of law all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); Allman v. Butcher, 314 S.W.3d 671, 673 (Tex. App.—Dallas 2010, no pet.). If there is no evidence to support the finding, the court of appeals then reviews the entire record to determine if the contrary proposition is established as a matter of law. Dow Chem. Co., 46 S.W.3d at 241; Allman, 314 S.W.3d at 673. 60 In a legal sufficiency review, the jury is not free to disregard undisputed evidence. With undisputed evidence, the jury may draw whatever inferences they wish as long as more than one inference is possible. City of Keller, 168 S.W.3d at 821. If the evidence allows only one inference, however, neither the jury nor the reviewing court may disregard it. Id. at 822. The jury decides issues raised by conflicting evidence, “but where there is evidence upon an issue and there is no evidence to the contrary, then the jury has not the right to disregard the undisputed evidence and decide such issue in accordance with their wishes.” Texas Dept. of Transp. v. Guerra, 858 S.W.2d at 47 (quoting Texas & N.O.R. Co. v. Burden, 146 Tex. 109, 203 S.W.2d 522, 530 (1947)). A jury may not disregard uncontroverted evidence. Alice Leasing Corp. v. Castillo, 53 S.W.3d at 445. This Court may affirm the JNOV only if there is no evidence to support the jury’s finding or as here, the evidence establishes a contrary answer as a matter of law. Arlington Home, Inc. v. Peak Envtl. Consultants, Inc., 361 S.W.3d 773, 779 (Tex. App.—Houston [14th Dist.] 2012, pet. denied). Thus, this Court can affirm the district court’s award of $588,054 if the evidence establishes that number as a matter of law. 61 1. No evidence supports awarding zero damages for the settlement with the charities. This Court’s first inquiry is to consider the evidence that supports the jury’s verdict that reduced the Archers’ damages by the amount of the settlement with the charities. See Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003). The Archers’ settlement with the charities reinstated them as beneficiaries of Jack’s estate. Had there been no settlement with the charities, the charities would have offered for probate the wills Jack signed in 2000 and 2001 that disinherited the Archers. 6RR64-65; 11RRPlx23 at 8. With multiple wills offered for probate, the Archers would have been forced into more costly litigation. 6RR64-65. By settling with the charities, however, the Archers insured that Jack’s 1991 Will would be probated and that the post-stroke wills would not be offered for probate. 11RRPlx23 at 8. The Archers paid the twelve charities $588,054, over and above what Jack’s pre-stroke will gave them. 6RR34-35; 12RRPlx241. App. C. The pre-stroke will gave the charities sixty percent of Jack’s oil and gas interests, valued at $93,522. 12RRPlx241. The Archers gave the charities Jack’s coin collection valued at $510,028 and paid the charities’ attorney’s fees as part of the settlement. 3RR159- 61; 11RRPlx24. Appellants offered no evidence to assail the amount the Archers paid to settle with the charities and offered no evidence or argument to exclude the settlement with 62 the charities from the Archers’ total damages. Appellants failed to refute Appellee Bugg’s or Haught’s explanation of the need to settle to avoid a will contest with the charities. 3RR178-218; 4RR5-32, 51-63; 6RR59-68. The evidence was uncontroverted. The jury cannot pick a number that was not supported by the evidence. First State Bank v. Keilman, 851 S.W.2d at 930. Accordingly, no evidence supports excluding the amount of the settlement with the charities and awarding zero damages for that portion of the Archers’ damages. The only evidence was that the Archers paid $588,054 to settle with the charities and avoid a will contest. Again, no evidence supported the jury’s reduction of the Archers’ total damages by approximately 58%. 2. The Archers proved as a matter of law that they paid $588,054 to settle with the charities. After reviewing the evidence in support of the jury’s omission of the settlement with the charities number, this Court must then consider all of the evidence to determine whether the Archers proved their settlement with the charities as a matter of law. Dow Chem. Co., 46 S.W.3d at 241; Allman, 314 S.W.3d at 673. Bugg testified extensively about the settlement with the charities. 3RR157- 163. The Family Settlement Agreement and the copies of checks paying attorney’s fees to the charities further substantiated the amounts the Archers paid to the twelve charities. 11RRPlx23, Plx24. 63 As Jack’s 1991 Will provided, twelve named charities were to split sixty- percent of Jack’s mineral interests. 11RRPlx9 at 3-4. Bugg testified that, with the additional wills Jack signed at Ted Anderson’s insistence, the Archer family was disinherited entirely in favor of the charities, meaning that the charities would have received Jack’s entire estate. 3RR156-157; 4RR33-34; 6RR64-66; 12RRPlx241. Bugg further testified that, because the Plaintiffs knew Jack’s long-time estate plan had been to leave the bulk of his estate to his family and that he lacked any mental capacity to change that estate plan after his stroke, the family would have pursued a will contest after Jack’s death. 3RR103. The family, however, chose to avoid waiting until Jack’s death and instituted a declaratory judgment action to address the multiple wills and multiple trusts before Jack died. 6RR63, 70-71. Haught also testified about the Archers’ settlement with the twelve charities. 6RR53-58; 12RRPlx241. Jack’s 1991 Will gave the charities $93,522. 6RR55; 12Plx241. App. C. In settlement with the Archers, the charities also received Jack’s coin collection, valued at $510,028. 6RR55; 12RRPlx241. The Archers also paid the charities’ attorney’s fees in the declaratory judgment. 6RR55-58; 11RRPlx24. According to Haught, because Jack signed the post-stroke wills, the Archers were forced to settle with the charities and pay them the $588,054. 6RR58; CR1470-71. App. B. 64 All the evidence supports the opposite of the jury’s finding to omit the charities’ settlement amount from the damages awarded. The Archers’ evidence of the amounts paid to settle with the twelve charities was uncontroverted and supported only one inference. A reasonable jury could not have disregarded the undisputed evidence of $588,054 as the damages paid to settle with the charities. Accordingly, the Archers proved the $588,054 settlement with the charities as a matter of law. The district court correctly granted Appellants’ motion for partial JNOV. Accordingly, whether based on Appellants’ waiver of Issue 5 or the correct ruling of the district court, Appellants’ Issue 5 should be overruled and the Archers’ Cross Issue 2 sustained. IV. The district court properly calculated prejudgment interest. [Responsive to Issues 6 & 7] The district court calculated prejudgment interest from August 4, 2003 through the date of the Final Judgment. CR1470-71, 1461. App. B, K. Appellants argue that the district court used an incorrect accrual date and that prejudgment interest should have been tolled. Appellants’ first argument is waived, and their second argument is refuted by well-established law. This Court reviews a prejudgment interest award, and in particular the accrual date, under an abuse of discretion standard. Wilmer-Hutchins Indep. Sch. Dist. v. Smiley, 97 S.W.3d 702, 707 (Tex. App.—Dallas 2003, pet. denied); Brookshire 65 Grocery Co. v. Smith, 99 S.W.3d 819, 823-25 (Tex. App.—Beaumont 2003, pet. denied). A. Appellants waived their prejudgment interest accrual date argument. Without citing authority or to the record, Appellants contend that “Appellees should not collect prejudgment interest until after filing this suit on July 26, 2007.” Appts. Br. at 33. Because Appellants fail to cite any authority, or to the record, and fail to offer any cogent argument, their first argument is waived. See TEX. R. APP. P. 38.1(i). Specifically, a party waives its challenge to the starting date for calculation of prejudgment interest by failing to cite “authority to support its calculation or its assertion of a different starting date.” Wilmer-Hutchins Indep. Sch. Dist., 97 S.W.3d at 707. Alternatively, even considering Appellants’ waived argument, the accrual date for a prejudgment interest calculation is clear. Prejudgment interest begins accruing the earlier of: (1) 180 days after receipt of written notice of a claim, or (2) the date suit was filed. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 528-31, n. 9; TEX. FIN. CODE §§ 304.101; 304.104. After learning that Jack’s estate plan had been changed, the Archers filed suit for tortious interference with inheritance against Ted and others in the Bexar County Guardianship Proceeding on February 5, 2003. CR98-117. That filing put Ted on 66 notice of the Archers’ claim for tortious interference with inheritance claim for purposes of the prejudgment interest calculation. Without authority, Appellants argue that the Archers could not give notice of their claim until Jack died. Appts. Br. at 33. Contrary to Appellants’ argument, the Archers tortious interference claim, and the time to file a lawsuit on the claim, arose long before Jack died. If a will disinherits a person, a will contest can only be brought after a person dies. TEX. ESTATES CODE §§256.002 (probate of a will of a living person is void), 256.204 (will can only be contested after it is admitted to probate). The theory being that a will can be revoked or revised until a person dies. The Archers, however, were disinherited in three wills and in a trust. 6RR24; 11RRPlx166, Plx171, Plx172, Plx192, Plx194. All of Jack’s assets were placed in the Trust, and when it terminated on Jack’s death, all of the assets were to be divided solely among the charities. 6RR153; 11RRPlx171 at 2-3. Because the Trust instrument disinherited the Archers, the Archers had to challenge the Trust’s validity (because of Jack’s lack of capacity to sign it) instead of waiting for Jack to die and bring a will contest. 6RR70-71. The Archers discovered the Trust that disinherited them in early 2001. 3RR149; 11RRPlx171; 12RRPlx218. T [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4047703. Public record. Not legal advice.