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Anderson v. Archer

Court of Appeals of Texas, Third District, Austin

November 21, 2019

T. Mark Anderson and Christine Anderson, Co-Executors of the Estate of Ted Anderson David B. Archer, Carol Archer Bugg, John V. Archer, Karen Archer Ball, and Sherri Archer Appellants//Cross-Appellants,
v.
David B. Archer, Carol Archer Bugg, John V. Archer, Karen Archer Ball, and Sherri Archer T. Mark Anderson and Christine Anderson, Co-Executors of the Estate of Ted Anderson Appellees//Cross-Appellees,

          FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-07-002328 THE HONORABLE ORLINDA NARANJO, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Kelly and Smith

          MEMORANDUM OPINION

          Edward Smith, Justice

         This is a dispute over fees and costs incurred in a post-judgment receivership. Following reversal of the judgment in the underlying tort case, the district court dissolved the receivership and issued an order requiring each side to pay approximately half of the fees and costs associated with it. We will affirm the district court's order.

         BACKGROUND [1]

         These cross-appeals arise out of a longstanding dispute between the heirs of John R. Archer and Ted Anderson. The parties are David B. Archer, Carol Archer Bugg, John V. Archer, Karen Archer Ball, and Sherri Archer (the Archers), and T. Mark Anderson and Christine Anderson, co-executors of the estate of Ted Anderson (the Andersons). In 2007, the Archers sued Ted Anderson's estate for tortious interference with inheritance rights. A jury found for the Archers, and the district court rendered judgment awarding the Archers over two million dollars in damages. Both parties appealed.

         While the appeals were pending, the Andersons moved to supersede the judgment. The district court concluded the Andersons failed to disclose over a million dollars in estate assets and denied the motion. Shortly afterward, the district court signed a turnover order and appointed a receiver to sell the estate's assets to satisfy the judgment. See Tex. Civ. Prac. & Rem. Code § 31.002(b) (authorizing courts to grant turnover relief and appoint receiver on judgment creditor's motion). The receiver's fees and expenses were payable out of the estate as court costs, and the Andersons would bear all other expenses associated with the receivership. Additionally, the district court awarded the Archers $173, 338.96 in attorney's fees. See id. § 31.002(e) ("The judgment creditor is entitled to recover reasonable costs, including attorney's fees.").

         While the underlying tort case was on appeal, the district court:

- granted the Archers' motion to sanction T. Mark Anderson (Mark). Mark was ordered to pay $5, 000 in attorney's fees and be personally responsible for 50% of all future receivership costs;
- modified the turnover order and ordered Mark to pay the Archers an additional $39, 922.75 in attorney's fees; and
- issued monthly orders approving the receiver's requests for fees and expenses, which totaled $58, 697.64. Each order required Mark to pay half the sum and the estate the remainder.

         Meanwhile, this Court reversed and rendered judgment that the Archers take nothing on their tort claim, Anderson v. Archer, 490 S.W.3d 175, 176 (Tex. App.-Austin 2016), and the Texas Supreme Court affirmed, Archer v. Anderson, 556 S.W.3d 228, 230 (Tex. 2018). The Texas Supreme Court's mandate issued in October 2018. Two months later, the Andersons wrote to the district clerk asking her to issue a new bill of cost taxing all fees and costs related to the receivership against the Archers. In response, the Archers filed a "Motion to Determine Costs of Court" asking the district court to confirm that the Andersons are responsible for all costs associated with the receivership, including the attorney's fees award.[2] The Andersons filed a motion to dissolve the receivership.

         After considering both motions at an evidentiary hearing, the district court granted the Andersons' motion to dissolve the receivership and discharged the receiver. In a separate order issued a few days later, the district court granted the Archers' motion to determine costs in part and denied it in part. The court found that, of the monies requested by the Andersons, $274, 039.81 were "cost[s] of court associated with the receivership" and ordered each side to be responsible for half, i.e., $137, 020. Both sides appeal from this order.

         DISCUSSION

         The Andersons contend the district court erred by ordering the Archers to pay less than the entire disputed sum. In a cross-appeal, the Archers argue that the district court erred to the extent it required them to pay any of the costs associated with the receivership.

         Court Costs

         A receiver's fees and expenses "are considered court costs and are governed by rules regarding the award of costs." Hill v. Hill, 460 S.W.3d 751, 767 (Tex. App.-Dallas 2015, pet. denied). Those rules provide that the trial court is responsible for adjudicating which party or parties will pay costs. Diggs v. VSM Fin., L.L.C., 482 S.W.3d 672, 674 (Tex. App.-Houston [1st Dist.] 2015, no pet.). Once the trial court has made its decision, the clerk has a ministerial duty to tax costs. Campbell v. Wilder, 487 S.W.3d 146, 152 (Tex. 2016).

         Generally, the prevailing party is entitled to recover from its adversary all costs incurred in the suit. See Tex. R. Civ. P. 131. However, the trial court may order otherwise "for good cause, to be stated on the record." See id. R. 141. The rules of appellate procedure contain similar provisions for the court of appeals and the Texas Supreme Court. The judgment of the court of appeals "should award to the prevailing party costs incurred by that party related to the appeal," but "[t]he court of appeals may tax costs otherwise as required by law or for good cause." Tex.R.App.P. 43.4. The appellate court clerk then taxes those costs against "the party or parties against whom costs have been adjudged." See id. R. 51.1(a). The Texas Supreme Court follows essentially the same procedure. See id. R. 60.4 (providing that Supreme Court's "judgment will award to the prevailing party the costs incurred by that party in the ...


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