Affirmed in Part and Reversed and Rendered in Part and Opinion filed
January 17, 2013.
In The
Fourteenth Court of Appeals
NO. 14-10-00555-CV
SOON PHAT, L.P., INDIVIDUALLY AND D/B/A CHARLESTON COURT
APARTMENTS, YIN SOON CHOI, MEI LIAN CHOI AND DERSING, INC.,
Appellants
V.
JUVENAL ALVARADO AND FELICIANO ALVARDO, Appellees
On Appeal from the 334th District Court
Harris County, Texas
Trial Court Cause No. 2007-13757
NO. 14-10-00603-CV
JUVENAL ALVARADO AND FELICIANO ALVARADO, Appellants
V.
ROBERT GROCE DILL, INDIVIDUALLY AND D/B/A ARROW TOWING,
SAMUEL LEE THOMPSON, BROCK KEITH DION, MESHA BOYLES A/K/A
MESHA KYOMI STEWART, SOON PHAT, L.P. INDIVIDUALLY AND D/B/A
CHARLESTON COURT APARTMENTS, YIN SOON CHOI, MEI LIAN CHOI,
AND DERSING, INC., Appellees
On Appeal from the 334th District Court
Harris County, Texas
Trial Court Cause No. 2007-13757
NO. 14-11-00033-CV
ROBERT GROCE DILL, INDIVIDUALLY AND D/B/A ARROW TOWING,
SAMUEL LEE THOMPSON AND BROCK KEITH DION, Appellants
V.
JUVENAL ALVARADO AND FELICIANO ALVARDO, Appellees
On Appeal from the 334th District Court
Harris County, Texas
Trial Court Cause No. 2007-13757
OPINION
This consolidated matter encompasses three appeals, multiple parties, and a
multitude of appellate issues in connection with a fight that occurred during an
attempt to tow a pickup truck from an apartment complex parking lot. We affirm
the trial court’s judgment in part, and reverse and render in part.
OVERVIEW
Wrecker driver Brock Keith Dion and his helper, Samuel Lee Thompson,
attempted to tow Feliciano Alvarado’s pickup truck from the Charleston Court
Apartments parking lot on August 28, 2005. Feliciano and his brother, Juvenal
Alvarado, fought with Dion and Thompson during the attempt.
Juvenal lived with his wife and children at Charleston Court. Feliciano was
visiting Juvenal when Dion and Thompson attempted to tow Feliciano’s pickup
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truck.
Juvenal was arrested after the fight and charged with a felony, aggravated
assault with a deadly weapon. After Juvenal spent seven months in jail, the case
against him was re-filed as a misdemeanor criminal mischief charge. Two days
after the misdemeanor charge was filed, the initial felony charge was dismissed.
Juvenal then agreed to a plea bargain on the misdemeanor charge and was released
from jail on March 24, 2006.
Juvenal and Feliciano subsequently filed a civil suit asserting various tort
claims. The litigation spawned by the 2005 fight in the Charleston Court parking
lot involves nearly a dozen individuals and entities.
Arrow Towing owned the wrecker and had a contract to tow improperly
parked vehicles from the Charleston Court parking lot. Arrow’s sole owner is
Robert Groce Dill.
Charleston Court Apartments is owned by Soon Phat, L.P. In turn, Soon
Phat, L.P. has four partners: Yin Soon Choi, Mei Lian Choi, Paul Seto, and Sue Oi.
These partners also are officers of Dersing Inc., a separate entity that wrote checks
to Charleston Court employees. Mei Lian Choi worked as Charleston Court’s
office manager.
Mesha Boyles was a security guard at Charleston Court and was on duty at
the time of the fight.
Juvenal and Feliciano sued Dion; Thompson; Dill, individually and d/b/a
Arrow Towing; Soon Phat, L.P., individually and d/b/a Charleston Court
Apartments; Yin Soon Choi; Mei Lian Choi; Dersing, Inc.; and Boyles. Juvenal
and Feliciano asserted multiple causes of action including assault, false
imprisonment, negligent hiring and retention, and malicious prosecution. The
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claims were tried to a jury in 2010.
The jury returned a unanimous verdict in favor of Juvenal and Feliciano on
all claims submitted in the jury charge. The trial court granted the defendants’
motion to disregard the jury’s findings as to liability and damages for malicious
prosecution; it signed a final judgment awarding damages in favor of Juvenal and
Feliciano on their remaining claims. All parties appealed from the trial court’s
final judgment except Boyles.1
In cause number 14-10-00555-CV, Soon Phat, L.P., individually and d/b/a
Charleston Court Apartments, Yin Soon Choi, Mei Lian Choi, and Dersing, Inc.
(collectively, the “Charleston Court Appellants”) appeal the trial court’s judgment
raising 14 issues; Juvenal and Feliciano Alvarado raise one cross-point. In cause
number 14-10-00603-CV, Juvenal and Feliciano Alvarado appeal the trial court’s
judgment raising four issues; the Charleston Court Appellants raise one cross-
point. In cause number 14-11-00033-CV, Dion, Thompson, and Dill, individually
and d/b/a Arrow Towing, appeal the trial court’s judgment raising three issues;
Juvenal and Feliciano Alvarado raise one cross-point. All three appeals were
consolidated.
FACTUAL BACKGROUND
The parties vigorously dispute many facts surrounding the fight. The jury
saw a video recorded by four cameras mounted inside the tow truck, which
captured some of what happened.
Juvenal and his wife hosted a birthday party for their daughter at their
Charleston Court apartment on August 28, 2005, attended by about 30 friends and
1
Boyles, “although duly cited to appear and answer, failed to answer or appear at trial
and wholly made default.” No notice of appeal was filed on behalf of Boyles. At oral argument,
the Charleston Court Appellants’ counsel disclaimed representation of Boyles on appeal.
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family members. Feliciano arrived in the evening to attend the party.
Feliciano parked his pickup truck in a handicapped parking spot in the
apartment parking lot. Shortly thereafter, an Arrow Towing wrecker towed
Feliciano’s truck and took it to a nearby impound. Juvenal, Feliciano, Juvenal’s
son-in-law Juan Pinera, and a friend rode in Juvenal’s truck to the impound to
retrieve Feliciano’s truck. Pinera drove Feliciano’s truck back to Charleston
Court; Feliciano rode back with Juvenal in Juvenal’s truck.
No parking spaces were available when they arrived back at Charleston
Court. Dion and Thompson already were at Charleston Court because security
guard Boyles had asked for a wrecker to come to the property. Feliciano testified
that Pinera was still sitting in Feliciano’s truck with the engine running when Dion
backed up his wrecker to hook onto Feliciano’s truck. Feliciano and Juvenal
exited Juvenal’s truck and walked toward the wrecker to talk to Dion. Feliciano
testified that the wrecker was lifting Feliciano’s truck, so Feliciano yelled at Pinera
to drive off with the truck to prevent Dion from towing it. Pinera and Feliciano
testified that Pinera managed to drive off with Feliciano’s truck.
Dion testified that he could not remember whether he hooked up Feliciano’s
truck. However, Dion denied that anyone was sitting in Feliciano’s truck and
stated that he never would hook up a vehicle with its engine running and a person
inside.
Feliciano testified that, after Pinera drove off with his truck, he went to Dion
to question him about why he wanted to tow his truck. He testified that he was not
angry when he went to talk to Dion; another party guest, Javier Cardenas, testified
that Feliciano was “mad,” and Pinera testified that Feliciano and Juvenal both were
angry because Feliciano’s truck had been towed. Feliciano stated that he did not
argue with Dion and never put his hands on him or pushed him.
5
According to Feliciano, Thompson immediately pepper-sprayed his face and
chest and then hit him in the head. Feliciano’s friend, Moises de la Torre, testified
that Thompson hit Feliciano in the head with a flashlight Boyles had given
Thompson. Feliciano testified that Juvenal’s daughter pulled him away; washed
his face because he could not see and was bleeding; and took him up to the
apartment until an ambulance arrived. Feliciano stated that he received 14 staples
on his head and could not work for one week because of his head injury.
Juvenal testified that when Pinera drove off in Feliciano’s truck, Juvenal
parked his truck and Feliciano walked over to Dion to show him paperwork
demonstrating that Feliciano’s truck already had been towed once that evening.
According to Juvenal, Thompson then “came up” to Feliciano and struck him with
a flashlight on the head. Juvenal testified that he wanted to take Feliciano up to his
apartment because Feliciano could not see anything, but Thompson also struck
Juvenal on the forehead with a flashlight and he started bleeding. Juvenal stated
that he was afraid and wanted to drive away in his truck. He tried to back up in his
truck but instead put the truck into neutral; he did not know what happened, but the
“truck went into the wrecker.”
Juvenal testified that after his pickup truck “went into the wrecker,” he heard
Thompson hit and break the truck’s passenger window with a flashlight. Juvenal
testified that Thompson got into his truck and beat him, breaking his nose; during
the struggle, Thompson broke the pickup truck’s gear shift. According to Juvenal,
Thompson dragged Juvenal out of his truck to a nearby dumpster and sat on him
until the police arrived; Juvenal denied trying to run away. Juvenal denied
touching Dion or Thompson that night. He also denied that his truck struck or
touched the wrecker. However, Cardenas testified that Juvenal “slammed” into the
wrecker with his pickup truck.
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Dion testified that he did not remember the confrontation with Feliciano
specifically, but he did remember that Feliciano was angry when he approached
him. According to Dion, Feliciano either pushed or hit him; Dion pepper-sprayed
Feliciano in response. Dion testified that he saw Juvenal’s pickup truck coming at
him as he was walking back to the wrecker. According to Dion, Juvenal’s pickup
truck hit the driver’s side door of the wrecker after Dion jumped in the driver’s seat
and closed the door. Dion then jumped out of the wrecker’s window onto the hood
of Juvenal’s truck and kicked the truck’s windshield.
Dion testified that he saw Thompson and Juvenal struggling inside Juvenal’s
pickup truck. He testified that Thompson kicked Juvenal to the ground because
Juvenal tried to run away, and kept Juvenal on the ground until the police arrived.
Dion testified that police officers responding to the incident initially “leaned”
toward arresting Dion and Thompson, but then decided against doing so after
watching a video of the incident captured by the wrecker’s cameras.
Thompson testified that he was checking for parking stickers on vehicles
parked in the Charleston Court parking lot when he heard a “commotion” and
walked back the wrecker. Thompson did not hear what Dion, Feliciano and
Juvenal talked about when they first approached Dion. According to Thompson,
Feliciano was hitting, pushing, and shoving Dion; Thompson tried to defuse the
situation by getting between Dion and the brothers. Thompson acknowledged
pushing or hitting “somebody;” he stated that Dion pepper-sprayed Feliciano and
Feliciano ran away. Thompson denied hitting Feliciano with a flashlight and
denied that Boyles had given him a flashlight; Thompson stated that Feliciano
might have hit his head when he tried to run away after being pepper-sprayed.
Thompson testified that Juvenal backed up his pickup truck and drove it into
the wrecker. Thompson testified that he was afraid Dion had been pinned between
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the truck and the wrecker because could not see Dion when he heard the truck hit
the wrecker. Thompson stated that he broke the passenger window to enter
Juvenal’s truck because Juvenal had locked the doors; he fought with Juvenal over
the gear shift because Juvenal continued pushing on the gas pedal. According to
Thompson, Juvenal tried running away but Thompson caught up with him, kicked
him, and then sat on him until the police arrived.
Officer Syed Bukhari of the Houston Police Department testified that he
arrived at the scene to relieve officers Caldwell and Villarreal, who had been
dispatched to the scene to conduct an investigation. Bukhari testified that Caldwell
and Villarreal already had interviewed Feliciano, Juvenal, Dion, Thompson,
Boyles and several other witnesses, and had completed their investigation when he
arrived. Caldwell and Villarreal informed Bukhari that they had contacted
Assistant District Attorney Baker about the incident, and that Baker already had
accepted charges against Juvenal for aggravated assault with a deadly weapon.
Bukhari testified that he conducted his own investigation, interviewed everyone at
the scene again except for Juvenal and Feliciano, who had been taken to the
hospital, and completed his police report.
As part of the investigation, Bukhari stated that he reviewed the wrecker
cameras’ video recordings at the scene; the recordings clearly showed that
Juvenal’s truck rammed into the wrecker on the driver’s side door, which caused
the camera to shake. Bukhari concluded that “aggravated assault charges were
correct.” Bukhari testified that he saw all four angles on the video he reviewed at
the scene. In contrast to the video Bukhari viewed at the scene, the video shown at
trial was not a continuous video that showed all angles. Rather, it was a stop-frame
video of inferior quality that showed a partial recording from two camera angles.
Dill testified that he believed his wrecker cameras recorded the entire
8
incident, but his employee was unsuccessful in downloading the recording after the
incident. Dill claimed that he turned the “entire machine over to the District
Attorney’s Office to let them try to retrieve it.”
Assistant District Attorney Ian Frazier McNeil, who later was assigned to
handle Juvenal’s aggravated assault with a deadly weapon charge, testified that the
video was extracted at the District Attorney’s office from the laptop of Dill’s
employee, Stacey Holland. McNeil also testified that he decided to re-file the
felony case against Juvenal as a misdemeanor case after he investigated the case
further because he believed there was sufficient evidence to go forward with a
misdemeanor case. McNeil stated that he did not dismiss the case against Juvenal
outright because he “felt it was more properly classified as a misdemeanor.”
McNeil testified that Juvenal agreed to a plea bargain on the misdemeanor case.
PROCEDURAL BACKGROUND
The claims were tried to a jury from January 5, 2010 through January 15,
2010. The jury answered all 34 questions in the jury charge favorably for the
Alvarados. Because resolution of this case turns in part on how the jury charge
questions were formulated, we provide an overview of the questions and the jury’s
answers.
In Questions 1 through 6, the jury found that Dion and Thompson
committed assault against Feliciano and Juvenal; Dion, Thompson, and Boyles
assisted or encouraged the assault on Feliciano and Juvenal; and Dion, Thompson,
Boyles were part of a conspiracy to commit assault on Feliciano and Juvenal. In
Questions 7 through 9, the jury found that Thompson falsely imprisoned Juvenal;
Dion and Boyles assisted and encouraged the false imprisonment of Juvenal; and
Dion and Boyles were part of a conspiracy to falsely imprison Juvenal.
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In Questions 10 through 12, the jury found that Dion, Thompson, Boyles,
and Dill maliciously prosecuted Juvenal; Dion, Thompson, Boyles, and Dill
assisted and encouraged the malicious prosecution of Juvenal; and Dion,
Thompson, Boyles, and Dill were part of a conspiracy to maliciously prosecute
Juvenal.
In Question 13, the jury found that Dill and Soon Phat, L.P. engaged in a
joint enterprise.
In Questions 13A and 13B, the jury answered “no” to questions asking
whether Dion and Thompson were justified in their use of force against Juvenal
and Feliciano.
The jury awarded actual damages for assault in Questions 14 and 15; for
false imprisonment in Question 16; and for malicious prosecution in Question 17.
In Questions 18 through 23, the jury assessed exemplary damages in favor of
Juvenal and Feliciano against Dion, Thompson, and Boyles in connection with the
claims for assault, false imprisonment, and malicious prosecution. In Question 24,
the jury assessed exemplary damages in favor of Juvenal against Dill in connection
with the malicious prosecution claim.
In Question 25, the jury found that Dill was negligent in hiring, training,
supervising, or retaining Thompson. In Question 26, the jury found that Soon
Phat, L.P. was negligent in hiring, training, supervising, or retaining Boyles.
In Questions 27 and 28, the jury found by clear and convincing evidence that
the harm Juvenal and Feliciano suffered in this case resulted from Dill’s gross
negligence. In Questions 29 and 30, the jury found by clear and convincing
evidence that the harm Juvenal and Feliciano suffered in this case resulted from
Soon Phat, L.P.’s gross negligence.
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In Questions 31 and 32, the jury found that Thompson committed an
aggravated assault on Juvenal and Feliciano. In Question 33, the jury found that, at
the time Thompson committed the aggravated assault on Juvenal and Feliciano, (1)
Thompson was “unfit” and Dill acted maliciously in employing or retaining him;
or (2) Dill ratified or approved Thompson’s aggravated assault. In Question 34,
the jury found that, at the time Thompson committed the aggravated assault on
Juvenal and Feliciano (1) Boyles was “unfit” and Soon Phat, L.P. acted
maliciously in employing or retaining Boyles; (2) Boyles was employed in a
managerial capacity and was acting in the scope of employment; or (3) Soon Phat,
L.P. ratified or approved Boyles’ actions.
The Charleston Court Appellants filed a combined motion for judgment
notwithstanding the verdict, motion to disregard jury findings, and motion for new
trial on March 4, 2010. Dion, Thompson, and Dill also filed a combined motion
for judgment notwithstanding the verdict, motion to disregard jury findings, and
motion for new trial on April 9, 2010.
The trial court held a hearing on the defendants’ respective motions on April
30, 2010. Upon the trial court’s request, the parties submitted letter briefs
addressing whether Juvenal is “entitled to sustain an action against the Defendants
for malicious [] prosecution of the felony charge of aggravated assault
notwithstanding the fact that [Juvenal] ultimately pled guilty to a misdemeanor
charge of criminal mischief” after the assistant district attorney dismissed the
aggravated assault charge against Juvenal. This argument was raised by the
Alvarados at the hearing.
After considering the parties’ motions, responses, and letter briefs, the trial
court signed an order on June 8, 2010 “specifically” granting “both motions to
disregard and for judgment notwithstanding the verdict as to Plaintiff’s claims for
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malicious prosecution and all damages arising from those claims.” The trial
court’s order also stated that the “parties agree that this matter presents a question
of first impression and, having considered the law and the policy underlying a
claim for malicious prosecution, the Court concludes that Plaintiff’s malicious
prosecution claims are foreclosed as a matter of law.”
The trial court signed a final judgment assigning liability in light of the
jury’s verdict and the court’s June 8 order. Accordingly, with regard to Feliciano’s
assault claim, the trial court ordered that (1) Dill, Thompson, Dion, Soon Phat,
L.P., and Boyles, jointly and severally, pay Feliciano $86,920 in actual damages;
(2) Thompson pay $10,000, Dion pay $7,500, and Boyles pay $5,000 in exemplary
damages to Feliciano; (3) Dill, Thompson, Dion, Soon Phat, L.P., and Boyles,
jointly and severally, pay Feliciano pre-judgment interest at a rate of five percent
on the sum of $61,920; (4) Dill, Thompson, Dion, Soon Phat, L.P., and Boyles,
jointly and severally, pay Feliciano post-judgment interest at a rate of five percent
on the sum of $86,920; and (5) Feliciano recover post-judgment interest at a rate of
five percent from Thompson on the sum of $10,000, from Dion on the sum of
$7,500, and from Boyles on the sum of $5,000.
The trial court also ordered that Juvenal recover from (1) Dill, Thompson,
Dion, Soon Phat, L.P., and Boyles, jointly and severally, $67,000 in actual
damages for assault and $1,000 in actual damages for false imprisonment; (2)
Thompson $10,000, Dion $7,500, and Boyles $5,000 in exemplary damages; (3)
Dill, Thompson, Dion, Soon Phat, L.P., and Boyles, jointly and severally, pre-
judgment interest at a rate of five percent on the sum of $52,000 for assault and on
the sum of $1,000 for false imprisonment; (4) Dill, Thompson, Dion, Soon Phat,
L.P., and Boyles, jointly and severally, post-judgment interest at a rate of five
percent on the sum of $67,000 for assault and on the sum of $1,000 for false
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imprisonment; and (5) post-judgment interest at a rate of five percent from
Thompson on the sum of $10,000, from Dion on the sum of $7,500, and from
Boyles on the sum of $5,000.
STANDARDS OF REVIEW
A jury finding can be disregarded under Texas Rule of Civil Procedure 301
when it has no support in the evidence, or when the issue is immaterial. C. & R.
Transp., Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex. 1966). A jury finding is
immaterial when (1) it should not have been submitted; or (2) although properly
submitted, it has been rendered immaterial by other findings. Id.; see also Spencer
v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994) (same); City of
Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex. 1995) (“A jury question is
considered immaterial when its answer can be found elsewhere in the verdict, or
when its answer cannot alter the effect of the verdict.”).
Legal insufficiency challenges may be sustained only when the record
discloses one of the following situations: (a) 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 establishes
conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d
802, 810 (Tex. 2005) (citing Robert W. Calvert, “No Evidence” and “Insufficient
Evidence” Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960)).
We must consider evidence in the light most favorable to the verdict and
indulge every reasonable inference that would support it. City of Keller, 168
S.W.3d at 822. If the evidence allows only one inference, neither jurors nor the
reviewing court may disregard that evidence. Id. “The traditional scope of review
does not disregard contrary evidence in every no evidence review if there is no
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favorable evidence (situation (a) above), or if contrary evidence renders supporting
evidence incompetent (situation (b) above) or conclusively establishes the opposite
(situation (d) above).” Id. at 810-11. If the evidence at trial would enable
reasonable and fair-minded people to differ in their conclusions, then jurors must
be allowed to do so. Id. at 822. Accordingly, the ultimate test for legal sufficiency
always must focus on whether the evidence would enable reasonable and fair-
minded jurors to reach the verdict under review. Id. at 827. Legal sufficiency
review in the proper light must credit favorable evidence if reasonable jurors could
do so, and must disregard contrary evidence unless reasonable jurors could not do
so. Id. The reviewing court cannot substitute its judgment for that of the trier of
fact if the evidence falls within this zone of reasonable disagreement. Id. at 822.
When the parties have not objected at trial to the substance of the law set
forth in the jury charge, we review sufficiency of the evidence in light of legal
standards contained in the unobjected-to charge. See, e.g., Osterberg v. Peca, 12
S.W.3d 31, 55 (Tex. 2000) (“[I]t is the court’s charge, not some other unidentified
law, that measures the sufficiency of the evidence when the opposing party fails to
object to the charge.”).
In reviewing factual sufficiency, we must consider and weigh all the
evidence. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.
2003). We can set aside a verdict only if the evidence is so weak or if the finding
is so against the great weight and preponderance of the evidence that it is clearly
wrong and manifestly unjust. Id.
ISSUES PRESENTED
I. Issues Raised by the Alvarados in No. 14-10-00603-CV
In their first three issues, the Alvarados argue that the trial court erred by
14
disregarding the jury findings as to Juvenal’s malicious prosecution claim and all
damages arising from that claim. The Alvarados assert in their fourth issue that the
trial court erroneously excluded evidence that Boyles carried a firearm without
authorization because this evidence was necessary for the submission of a jury
question requesting punitive damages against Soon Phat, L.P.
II. Issues Raised by Charleston Court in No. 14-10-00555-CV
In their first, third, fifth, sixth, eighth, and twelfth issues, the Charleston
Court Appellants argue that the trial court erred by awarding damages jointly and
severally against Soon Phat, L.P. on the Alvarados’ assault and false imprisonment
claims because (1) Soon Phat, L.P. was not mentioned in any questions addressing
Juvenal and Feliciano’s assaults and Juvenal’s false imprisonment; (2) the jury did
not find Soon Phat, L.P. vicariously liable for Boyles’ actions relating to the
assaults and false imprisonment; (3) the jury charge was defective and did not
allow the jury to apportion responsibility among the plaintiffs and defendants as
required by Section 33.003 of the Texas Civil Practice and Remedies Code; (4) the
Alvarados’ pleadings at trial did not assert any basis to hold Soon Phat, L.P.
vicariously liable for the actions of Thompson and Dion; and (5) there was
insufficient evidence to prove any element of a joint enterprise and support
vicarious liability of Soon Phat, L.P.
In their second, fourth, eleventh, and thirteenth issues, the Charleston Court
Appellants argue that the exemplary damages awards against Boyles are improper
because (1) there was no jury finding of fraud, malice, or gross negligence
attributable to Boyles; (2) there is insufficient evidence that Boyles acted
fraudulently, maliciously, or was grossly negligent; and (3) “a court may not award
exemplary damages against a defendant because of the criminal act of another.”
In their seventh and ninth issues, the Charleston Court Appellants argue that
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the evidence is legally and factually insufficient to support a damages award
against Boyles for the assault of Juvenal and Feliciano and the false imprisonment
of Juvenal. In their tenth issue, the Charleston Court Appellants claim that
submission of Questions 2, 3, 5, 6, 8 and 9 constituted an impermissible comment
on the evidence requiring reversal. In their fourteenth issue, the Charleston Court
Appellants assert that the evidence is legally and factually insufficient to support
the jury’s “no” answers to Questions 13A and 13B, which asked whether
Thompson and Dion were justified in using force against the Alvarados.
III. Issues Raised by Dion, Thompson, and Dill in No. 14-11-00033-CV
In their first and third issues, Dion, Thompson, and Dill “adopt the
arguments and authorities presented by” the Charleston Court Appellants in their
brief, They further argue that the trial court erroneously awarded Feliciano
damages for assault and Juvenal damages for assault and false imprisonment “from
all defendants, jointly and severally,” because (1) the jury charge did not require
the jury to assign a numerical percentage of fault as required by Section 33.013 of
the Civil Practice and Remedies Code; and (2) there is no evidence that Dill was
individually or vicariously liable for the assaults or the false imprisonment.
In their second issue, Dion, Thompson, and Dill argue that the trial court
erroneously entered an exemplary damages award against Thompson and Dion in
favor of Feliciano because (1) the jury charge was defective; (2) there is no
evidence of Dill, Dion and Thompson’s net worth; and (3) alternatively, there is
legally insufficient evidence that Thompson and Dion “acted with the requisite
intent — i.e., with fraud, malice, or gross negligence.”
ANALYSIS
We begin by addressing the issues raised by Juvenal and Feliciano. We then
16
address the issues raised by the Charleston Court Appellants. Finally, we address
the issues raised by Dion, Thompson, and Dill.2
I. Juvenal and Feliciano Alvarado
A. Malicious Prosecution
The Alvarados argue that the trial court erred by disregarding the jury
findings as to Juvenal’s malicious prosecution claim and all damages arising from
that claim because Juvenal proved each element of the malicious prosecution claim
as a matter of law. The Charleston Court Appellants contend that the trial court
properly disregarded these jury findings in light of Juvenal’s subsequent plea
bargain in connection with a misdemeanor criminal mischief charge arising from
the same circumstances that gave rise to the initial felony charge of aggravated
assault with a deadly weapon. Dill, Dion and Thompson adopt the Charleston
Court Appellants’ briefing with respect to the malicious prosecution claim.
“Malicious prosecution actions involve a delicate balance between society’s
interest in the efficient enforcement of the criminal law and the individual’s
interest in freedom from unjustifiable and oppressive criminal prosecution.”
Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997); see also
Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 290-91 (Tex. 1994). To
prevail on a malicious prosecution claim, a plaintiff must establish (1) the
commencement of a criminal prosecution against the plaintiff; (2) causation
(initiation or procurement) of the action by the defendant; (3) termination of the
2
The Alvarados also raise cross points in which they contend that the Charleston Court
Appellants, Dill, Dion, and Thompson waived their respective appeals by moving for entry of
judgment without qualification in conformity with the jury’s verdict. The Charleston Court
Appellants raise a cross point contending that the trial court erred in failing to rule on the
Alvarados’ request to file a fifth amended petition adding new claims. We discuss these cross-
points below.
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prosecution in the plaintiff’s favor; (4) the plaintiff’s innocence; (5) the absence of
probable cause for the proceedings; (6) malice in filing the charge; and (7) damage
to the plaintiff. Id.; Davis v. Prosperity Bank, 383 S.W.3d 795, 802 (Tex. App.—
Houston [14th Dist.] 2012, no pet.).
The parties do not dispute that a criminal prosecution for a felony charge of
aggravated assault with a deadly weapon was commenced against Juvenal. The
dispositive issue here focuses on whether the prosecution terminated in Juvenal’s
favor given that (1) Juvenal initially was charged with a felony in district court on
August 29, 2005; (2) the prosecutor filed a criminal information on March 22,
2006 under a new cause number in county criminal court charging Juvenal with
criminal mischief, a misdemeanor; (3) the prosecutor filed an unconditional motion
to dismiss the felony aggravated assault with a deadly weapon charge in district
court on March 24, 2006; and (4) Juvenal subsequently pled guilty to the
misdemeanor in exchange for the prosecutor’s recommendation of three days in
jail with credit for two, no fine, and no restitution.
The Alvarados stress that the time served in Juvenal’s plea bargain related
only to the misdemeanor offense because the felony charge had been dismissed
before the plea bargain agreement was made. They also contend that criminal
mischief is not a lesser included offense of aggravated assault with a deadly
weapon. Additionally, they emphasize that Dion was the complainant in the
aggravated assault case because Juvenal was charged with unlawfully,
intentionally, and knowingly threatening Dion with imminent bodily injury by
using his pickup truck as a deadly weapon. In contrast, Dill was the complainant
in the criminal mischief case based upon damage of more than $500 but less than
$1,500 to Dill’s tow truck caused when Juvenal hit the tow truck with his pickup
truck.
18
Termination of a prosecution in the plaintiff’s favor does not require “a
termination on the merits, e.g., a verdict of ‘not guilty,’ as a necessary element of a
cause of action for malicious prosecution.” Davis v. City of San Antonio, 752
S.W.2d 518, 523 (Tex. 1988). “Even when the termination is indecisive as to the
accused’s guilt, it is nevertheless favorable if the prosecution cannot be revived.”
Id. In keeping with this precept, courts hold that “a prosecution has been
terminated in the accused’s favor where the prosecutor has dismissed the charges”
and no additional charges have been filed. Izen v. Catalina, 256 F.3d 324, 328 (5th
Cir. 2001); see also Thrift v. Hubbard, 974 S.W.2d 70, 78 (Tex. App.—San
Antonio 1998, pet. denied); Leal v. Am. Nat’l Ins. Co., 928 S.W.2d 592, 597 (Tex.
App.—Corpus Christi 1996, writ denied).
In this case, however, the prosecutor did not simply dismiss the felony
charge. Instead, he filed an additional misdemeanor charge arising out of the same
incident before dismissing the felony charge. McNeil testified that he decided to
file a misdemeanor case after he investigated further because he believed there was
sufficient evidence to go forward with a misdemeanor case. McNeil did not
dismiss the case against Juvenal outright because he “felt it was more properly
classified as a misdemeanor.” McNeil testified that the filing of misdemeanor
charges against Juvenal “wasn’t intended to be” a finding of innocence.
Juvenal’s subsequent plea bargain with respect to misdemeanor charges
arising from the same incident brings this case within the rule that “a dismissal of a
prosecution brought about by the procurement or compromise of the person therein
accused is not such an end of the prosecution as will warrant an action of damages
for malicious prosecution.” Sullivan v. O’Brien, 85 S.W.2d 1106, 1115 (Tex. Civ.
App.—San Antonio 1935, writ ref’d); see also Martinez v. English, 267 S.W.3d
521, 528 (Tex. App.—Austin 2008, pet. denied); Ellis v. Sinton Sav. Ass’n, 455
19
S.W.2d 834, 842 (Tex. Civ. App.—Corpus Christi 1970, writ ref’d n.r.e.);
Restatement (Second) of Torts § 660(a) (1977); cf. Bertuca v. Martinez, No. 04-04-
00926-CV, 2006 WL 397904, *3 (Tex. App.—San Antonio Feb. 22, 2006, no pet.)
(dismissal of case based on prosecutor’s determination that “sufficient
punishment” already had been administered to malicious prosecution plaintiff was
not a termination in plaintiff’s favor). We believe this resolution strikes an
appropriate balance among the competing interests implicated in a malicious
prosecution claim and recognizes that “‘[h]aving bought peace the accused may
not thereafter assert that the proceedings have terminated in his favor.’” Martinez,
267 S.W.3d at 528 (quoting Restatement (Second) of Torts § 660 cmt. c (1977)).
In light of Juvenal’s plea agreement, we conclude that the malicious
prosecution claim was foreclosed as a matter of law because the prosecution did
not terminate in Juvenal’s favor. The trial court did not err by granting the motions
for judgment notwithstanding the verdict and to disregard immaterial jury findings
as to Juvenal’s malicious prosecution claim. Accordingly, we overrule the
Alvarados’ first issue.
B. Assisting and Encouraging
The Alvarados contend that the trial court erred by disregarding “Jury
Question 11, in which the jury found that Dion, Thompson, Boyles and Dill
assisted or encouraged each other in the malicious prosecution of Juvenal” because
there is sufficient evidence to support the jury’s finding. The Alvarados argue that
“[w]hen a defendant gives assistance or encouragement to a person committing a
tort, and the assistance or encouragement is a substantial factor in causing the tort,
the defendant is considered a tortfeasor and is responsible for the consequences of
the tort.”
Jury Question 11 was predicated on a “yes” answer to Question 10 and
20
asked the jury, “Did any of the following persons [Dion, Thompson, Boyles, Dill]
assist or encourage the malicious prosecution of Juvenal Alvarado that you found
in answer to Question 10?” The jury was instructed that to ‘“assist or encourage’
an action” requires that “[t]he primary actor committed a wrongful act.”
As stated in the jury charge and acknowledged by the Alvarados in their
brief, to “assist or encourage” requires that a tort — malicious prosecution — was
committed. Without a “primary actor” committing the tort of malicious
prosecution, liability for assisting and encouraging a malicious prosecution cannot
be imposed. As we have discussed in connection with issue one, a malicious
prosecution claim is foreclosed here as a matter of law in light of the plea
agreement. Therefore, Dion, Thompson, Boyles, or Dill could not have assisted or
encouraged the malicious prosecution of Juvenal. The trial court did not err by
disregarding Question 11 and granting the motions for judgment notwithstanding
the verdict and to disregard jury findings. Accordingly, we overrule the
Alvarados’ second issue.
C. Conspiracy
The Alvarados contend that the trial court erred by disregarding “Question
12, in which the jury found that Dion, Thompson, Boyles and Dill conspired to
prosecute Juvenal” because there is sufficient evidence to support the jury’s
finding.
Jury Question 12 was predicated on a “yes” answer to Question 10 and
asked the jury, “Were any of the following persons [Dion, Thompson, Boyles,
Dill] part of a conspiracy to maliciously prosecute Juvenal Alvarado that you
found in answer to Question 10?” The jury was instructed: “To be a part of a
conspiracy, a person and another person or persons must have had knowledge of,
agreed to, and intended a common objective or course of action that resulted in the
21
malicious prosecution of Juvenal Alvarado.”
Based on the jury charge, to be a part of a conspiracy to malicious
prosecution, the course of action taken must have resulted in the tort of malicious
prosecution. Further, “conspiracy, generally defined as a combination of two or
more persons to accomplish an unlawful purpose, or to accomplish a lawful
purpose by unlawful means, might be called a derivative tort” because the
“defendant’s liability for conspiracy depends on participation in some underlying
tort for which the plaintiff seeks to hold at least one of the named defendants
liable.” Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996). The underlying tort
is malicious prosecution. We already have concluded that a malicious prosecution
claim is foreclosed as a matter of law in this case; without an underlying tort for
malicious prosecution, there is no claim for conspiracy. See id.; Hong Kong Dev.,
Inc. v. Nguyen, 229 S.W.3d 415, 448 (Tex. App.—Houston [1st Dist.] 2007, no
pet.) (op. on reh’g). Therefore, Dion, Thompson, Boyles, or Dill could not have
been “part of a conspiracy” to malicious prosecution of Juvenal. The trial court did
not err by disregarding Question 12 and granting the motions for judgment
notwithstanding the verdict and to disregard jury findings. Accordingly, we
overrule the Alvarados’ third issue.
D. Exclusion of Evidence
The Alvarados assert that the trial court erred by excluding evidence that
“Boyles was routinely armed on the premises of the Charleston Court Apartments,
that she threatened the residents with her weapon, that on the night in question she
gave Thompson her flashlight and her gun, but that the gun flew out of
Thompson’s hand, and that she pointed the gun at the residents in a threatening
manner as she fled to her apartment to hide the weapon when the police arrived.”
They contend this evidence was admissible and pertinent to the submission of a
22
jury question seeking punitive damages against Soon Phat, L.P. Based on this
complaint, the Alvarados request a new trial limited solely to the issue of punitive
damages.
We reject this contention and the Alvarados’ appellate complaint without
regard to the claimed admissibility of this evidence because this court cannot
remand for a new trial solely on punitive damages. See Nowzaradan v. Ryans, 347
S.W.3d 734, 739 (Tex. App.—Houston [14th Dist.] 2011, no pet.). “In 2000, the
supreme court held that in order to achieve proportionality between actual and
punitive damage awards, ‘under Moriel, a jury must decide the amount of punitive
damages based on the totality of the evidence from the liability phase as well as the
punitive damages stage.’” Id. (quoting Sw. Ref. Co. v. Bernal, 22 S.W.3d 425, 433
(Tex. 2000)); see also Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 30 (Tex. 1994).
“It would be impossible to give effect to this language and remand only for a new
trial regarding punitive damages.” Nowzaradan, 347 S.W.3d at 739.
Accordingly, we overrule the Alvarados’ fourth issue.3
II. The Charleston Court Appellants
A. No Waiver of Right to Appeal
As a threshold matter, we address the Alvarados’ cross-point urging this
court to dismiss the Charleston Court Appellants’ appeal because they
3
The Charleston Court Appellants argue that the trial court abused its discretion by “not
ruling on the Alvarados’ motion for leave to file their trial amendment to their petition alleging
new causes of action, and by submitting questions to the jury that were not supported by the
pleadings.” The fifth amended petition “substituted joint enterprise as a theory of vicarious
liability in place of joint venture” and “reframed Appellants’ cause of action for assault as
‘aggravated assault.’” Because the Charleston Court Appellants raise the trial amendment issue
in its brief in cause number 14-10-00555-CV, we will consider this issue below in section II of
our analysis.
23
“unreservedly invited the trial to enter the judgment it entered.” Relying on First
Nat’l Bank of Beeville v. Fojtik, 775 S.W.2d 632, 633 (Tex. 1998) (per curiam), the
Alvarados contend that the Charleston Court Appellants waived an appeal because
the “request to the trial court that it enter judgment [wa]s unqualified.”
The Texas Supreme Court recognized in Fojtik that there must be “a method
by which a party who desires to initiate the appellate process may move the trial
court to render judgment without being bound by its terms.” Id. at 633. The court
held that the following statement was a proper reservation of a party’s right to
appeal: “While Plaintiffs disagree with the findings of the jury and feel there is a
fatal defect which will support a new trial, in the event the Court is not inclined to
grant a new trial prior to the entry of judgment, Plaintiffs pray the Court enter the
following judgment. Plaintiffs agree only as to the form of the judgment but
disagree and should not be construed as concurring with the content and result.”
Id.
Following Fojtik, we reject the Alvarados’ assertion that the Charleston
Court Appellants did not “express any disagreement with the content or result of
the judgment [it] asked the trial court to enter.” The response to the Alvarados’
motion for entry of an amended judgment states as follows: “Although Defendants
contend Plaintiffs are not entitled to any award, as outlined in Defendants’ post-
trial motions, they now file this response to Plaintiffs[’] motion requesting the
entry of the proposed amended Final Judgment . . . . Defendants ask this court to
enter the attached proposed amended Final Judgment, incorporating the notations
and changes this Court made.” The attached proposed judgment stated that it was
“Approved As To Form Only.” We conclude that the Charleston Court Appellants
sufficiently reserved their right to appeal the trial court judgment. We deny the
Alvarados’ motion to dismiss the Charleston Court Appellants’ appeal and
24
overrule the Alvarados’ cross-point.
B. Soon Phat, L.P.’s Joint and Several Liability for Actual Damages
The final judgment assigns joint and several liability to Soon Phat, L.P. as
the owner of the Charleston Court Apartments for actual damages awarded to
Feliciano and Juvenal in connection with their assault claims, and for actual
damages awarded to Juvenal in connection with his false imprisonment claim.
The jury found that Dion and Thompson assaulted Juvenal and Feliciano,
and that Thompson falsely imprisoned Juvenal. The jury also found that Dion,
Thompson, and Boyles assisted or encouraged the assaults, and conspired to
commit the assaults. The jury further found that Dion and Boyles assisted or
encouraged the false imprisonment of Juvenal, and conspired to commit false
imprisonment.
On appeal, the Charleston Court Appellants challenge Soon Phat, L.P.’s
joint and several liability for actual damages on these claims under the trial court’s
final judgment. The Charleston Court Appellants stress that the jury answered
“yes” to Questions 1-9 addressing whether Dion, Thompson, and Boyles engaged
in tortious conduct, assisted or encouraged such conduct, or conspired to commit
such conduct. These questions did not ask whether Soon Phat, L.P. itself
committed this conduct.
The Charleston Court Appellants contend there is no legal basis for
imposing joint and several liability upon Soon Phat, L.P. arising from the
individual tortious conduct of Dion, Thompson, or Boyles. These appellants also
contend the jury charge was “fatally defective” because no proportionate
responsibility question was submitted under Chapter 33 of the Civil Practices and
Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 33.001 et seq. (Vernon
25
2008 & Supp. 2012). But the Charleston Court Appellants neither objected to the
omission of a proportionate responsibility question from the jury charge nor
tendered a proposed proportionate responsibility question for submission.
Therefore, the analysis on appeal does not focus on whether the trial court
committed charge error by omitting a submission under Chapter 33 or whether
such an omission necessitates a new trial. Instead, the appellate analysis focuses
on whether the evidence viewed in light of the charge as submitted provides a
route by which Soon Phat, L.P. can be held jointly and severally liable in the final
judgment for the individual tortious conduct of Boyles, Dion, or Thompson.4
The Charleston Court Appellants contend that joint and several liability
under the final judgment must rest on vicarious liability. Broadly speaking,
vicarious liability principles impute liability arising from the conduct of an active
tortfeasor to another party based upon a relationship between them. See, e.g.,
Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 481 (Tex. 2005) (citing Wingfoot
Enters., v. Alvarado, 111 S.W.3d 134, 146 (Tex. 2003)); see also St. Joseph Hosp.
v. Wolff, 94 S.W.3d 513, 540 (Tex. 2002) (plurality) (“The common law has long
recognized that liability for one person’s fault may be imputed to another who is
himself entirely without fault solely because of the relationship between them.”).
4
At the charge conference, counsel for the Charleston Court Appellants objected on no
evidence grounds to Questions 2, 3, 5, 6, 8, 9, 10, 11, 12, 13, 23, 26, 29, 30, and 34. Counsel for
the Charleston Court Appellants further objected that submission of questions for which there is
no evidentiary support constituted a “comment on the weight of the evidence;” that Questions 2,
3, 5, 6, 11 and 12 were duplicative; that Question 10’s definition of “probable cause” was
erroneous; that Question 13 was not supported by pleadings; that Questions 22 and 23 were
improperly predicated; and that Questions 31, 32, and 34 erroneously referenced a criminal
offense of “aggravated assault” in a civil case. The trial court modified the predicating
instructions for Questions 22 and 23 in response to the Charleston Court Appellants’ objections
to those questions, and with the Alvarados’ agreement; otherwise, the trial court overruled the
Charleston Court Appellants’ objections listed above. Additionally, counsel for the Charleston
Court Appellants objected as follows: “To the extent an agency relationship has to be found by
the finder of fact as to any issue they have requested and it is not submitted by them, I object to
their failure to submit it.” The trial court did not make an express ruling on this latter objection.
26
Vicarious liability can arise under common law principles and by statute. See, e.g.,
Garza, 161 S.W.3d at 481.
The Alvarados contend that Soon Phat, L.P. is directly liable based upon its
own conduct, and vicariously liable based upon conduct by other defendants with
whom Soon Phat, L.P. has relationships. The Alvarados’ arguments on appeal and
the jury charge indicate that the effort to impose liability upon Soon Phat, L.P.
rests at least in part on one particular form of vicarious liability — the doctrine of
respondeat superior. This doctrine “holds the master liable for the torts of his
servant committed in the course of his employment” and is “essentially a policy
doctrine . . . .” Newspapers, Inc. v. Love, 380 S.W.2d 582, 589 (Tex. 1964).
“[E]xcept for acts personally directed by the principal, the liability of the master is
founded upon the contractual arrangement with the servant, either expressed or
implied which vests in him the right to control the details of the work.” Id.; see
also Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 375 (Tex. 1984)
(employer and employee were jointly and severally liable for tort committed by
employee in the course and scope of his employment). “The theories of vicarious
and joint and several liability are judicially created vehicles for enforcing remedies
for wrongs committed.” Dutcher v. Owens, 647 S.W.2d 948, 950-51 (Tex. 1983).
“Justified on public policy grounds, they represent a deliberate allocation of risk.”
Id.; see also Wolff, 94 S.W.3d at 541.
“The typical respondeat superior claim involves an allegation of negligence
on the part of the employee” occurring within the course and scope of the
employee’s employment. Buck v. Blum, 130 S.W.3d 285, 288 (Tex. App.—
Houston [14th Dist.] 2004, no pet.). “It is not ordinarily within the scope of a
servant’s authority to commit an assault on a third person.” Tex. & Pac. Ry. Co. v.
Hagenloh, 151 Tex. 191, 247 S.W.2d 236, 239 (1952). However, an assault can be
27
considered to be “in the course and scope of employment when the nature of the
employment necessitated the use of force (such as the duty to guard property) so
that the use of force may be in furtherance of the employer’s business even if more
force than necessary is applied.” Buck, 130 S.W.3d at 289 n.2 (citing Hagenloh,
247 S.W.2d at 239); see also Durand v. Moore, 879 S.W.2d 196, 199 (Tex. App.—
Houston [14th Dist.] 1994, no writ) (“When an employee commits an assault, it is
for the trier of fact to determine whether the employee ceased to act as an
employee and acted instead upon his own responsibility.”); Tierra Drilling Corp.
v. Detmar, 666 S.W.2d 661, 662-63 (Tex. App.—Corpus Christi 1984, no writ) (no
evidence supported finding that employee was acting within the course of his
employment, in pursuit of his duties, or in the furtherance of Tierra’s business
when he assaulted co-worker).5
As submitted, the jury charge provided three routes by which the conduct of
Dion, Thompson and Boyles potentially could give rise to tort liability on the part
of Soon Phat, L.P.
The first route is Question 34, which states as follows:
QUESTION 34
At the time of the aggravated assault found by you in answer to
Question 31 or 32 was Mesha Boyles:
5
The jury charge does not contain a question asking whether the assault by Dion and
Thompson was committed while they were in the course and scope of their employment with
Dill. Nor did the charge ask whether Boyles was in the course and scope of her employment with
Soon Phat, L.P. when she conspired with Dion and Thompson to commit the assault and assisted
them in doing so. Similarly the charge did not contain a question asking whether the false
imprisonment by Thompson occurred while he was in the course and scope of his employment
with Dill. Nor did the charge contain a question asking whether Boyles was in the course and
scope of her employment with Soon Phat, L.P. when she conspired to commit false
imprisonment and assisted in falsely imprisoning Juvenal. The only references to “course and
scope of employment” appear in Questions 29, 30, and 34.
28
(1) unfit and did Soon Phat, L.P. d/b/a Charleston Court Apartments
act with malice in employing or retaining her?
OR
(2) employed in a managerial capacity and was acting in the scope of
the employment;
OR
(3) did Soon Phat, L.P. d/b/a Charleston Court Apartments ratify or
approve the act.
“Malice” means a specific intent to by the defendant to cause
substantial injury or harm to the claimant.
Answer “Yes” or “No”
Answer: Yes
The predicating instruction directed the jury not to answer Question 34 unless it
first answered “yes” to Questions 31 or 32, which asked whether Thompson
committed an aggravated assault against Juvenal and Feliciano. In turn, Question
31 was predicated on a “yes” answer to Juvenal’s assault claim submitted in
Question 1, and Question 32 was predicated a “yes” answer to Feliciano’s assault
claim submitted in Question 4. Question 34 also was predicated on “yes” answers
to Questions 2, 3, 5, 6, 8, 9, 10, 11 or 12.6 The Alvarados contend that security
guard Boyles’ individual liability for assisting or encouraging Dion and Thompson
in committing assault, and for conspiring with them to do so, is attributed to Soon
Phat, L.P. in light of the jury’s “yes” answer to Question 34.
The second route is Question 26, which states as follows:
QUESTION 26
Did the negligence if any, of Soon Phat, L.P. in hiring, training,
supervising, or retaining Mesha Boyles proximately cause the
6
Because Questions 31 and 32 addressed only aggravated assault, these questions and
Question 34 are not referable to Juvenal’s claim for false imprisonment submitted against
Thompson in Question 7.
29
occurrence in question?
An employer has a nondelegable and absolute duty to exercise
ordinary care to select careful and competent employees. An
employer is negligent if the employer hires an incompetent or unfit
employee whom the employer knows, or by the exercise of reasonable
care should know, was incompetent or unfit.
Answer “Yes” or “No” with respect to the following:
Juvenal Alvarado Yes
Feliciano Alvarado Yes
The Alvarados argue that Boyles’ individual liability for assisting or encouraging
in the commission of assault and false imprisonment, and for conspiring to commit
these torts, is attributed to Soon Phat, L.P. in light of the jury’s “yes” answers to
Question 26.
The third route is Question 13, which states as follows:
QUESTION 13
On the occasion in question were Robert Groce Dill d/b/a
Arrow Towing Company and Soon Phat, L.P. d/b/a Charleston Court
Apartments engaged in a joint enterprise?
A “joint enterprise” exists if the persons concerned have (1) an
agreement, either express or implied, with respect to the enterprise or
endeavor; (2) a common purpose; (3) a common business or pecuniary
interest; and (4) an equal right to a voice in the direction of the
enterprise, which gives an equal right of control.
Answer “Yes” or “No”
Answer: Yes
The Alvarados contend that Dill is liable for the individual tortious conduct of
wrecker driver Dion and helper Thompson. For purposes of addressing the
Charleston Court Appellants’ challenges to the final judgment, we assume this is
true. In turn, according to the Alvarados, the existence of a joint enterprise
between Dill and Soon Phat, L.P. means that Dill’s liability for the individual
30
conduct of Dion and Thompson also is attributed to Soon Phat, L.P.
With this backdrop, we examine the Charleston Court Appellants’
challenges to the trial court’s final judgment making Soon Phat, L.P. jointly and
severally liable for the actual damages awarded to Feliciano and Juvenal in
connection with claims for assault and false imprisonment.
1. Soon Phat, L.P.’s liability for assault
The Charleston Court Appellants contend that Soon Phat, L.P. cannot
properly be subjected to joint and several liability for the assault damages awarded
to Feliciano and Juvenal. We address this contention in light of the three potential
routes to recovery against Soon Phat, L.P. provided under the jury charge.
a. Question 34
The Charleston Court Appellants contend that Question 34 cannot serve as a
basis for joint and several liability because the jury’s “yes” answer to this question
is immaterial, and because the answer is not supported by legally sufficient
evidence. We agree that Question 34 does not provide a vehicle for imposing joint
and several liability on Soon Phat, L.P. based on respondeat superior or other
theories of liability when the sufficiency of the evidence is examined in light of the
charge as given.
There is no evidence of “malice” as defined in Question 34(1). This
question asks whether, at the time Thompson committed aggravated assault upon
the Alvarados, Boyles was unfit and Soon Phat, L.P. acted with malice in
employing or retaining Boyles. Malice is defined in the jury charge as “a specific
intent to [sic] by the defendant to cause substantial injury or harm to the claimant.”
The Alvarados do not point to any evidence and we have found no evidence in the
record that Soon Phat, L.P. had any intent to cause harm or injury to the Alvarados;
31
therefore, there is no evidence Soon Phat, L.P. acted with malice.
Question 34(2) requires a finding that Boyles was employed in a managerial
capacity and acted in the scope of the employment at the time Thompson
committed the aggravated assaults. Boyles was employed as a security guard to
patrol the apartment complex at night and “call 911” in the event of an emergency.
This is no evidence that Boyles was employed in a “managerial capacity” as
required under Question 34(2). See U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118,
138 (Tex. 2012) (no evidence was proffered to establish that individual acted in a
“managerial capacity” in absence of evidence that individual was a company
officer; had authority to employ, direct, and discharge company employees; or
managed a department or division of company).
Question 34(3) asks whether Soon Phat, L.P. ratified or approved “the act.”
Regardless of whether “the act” refers to assault, aggravated assault, aiding and
abetting, or conspiracy, there is no evidence in the record that Soon Phat, L.P.
ratified or approved any act. The Alvarados do not point to any evidence that
could support a finding of ratification or approval with respect to Soon Phat, L.P.
Accordingly, Question 34 cannot serve as a basis to subject Soon Phat, L.P.
to joint and several liability for the assault damages awarded to the Alvarados.
Further, in light of this resolution, we need not address the Charleston Court
Appellants’ complaint that Question 34 and the references to aggravated assault
were not supported by the Alvarados’ pleadings.
b. Question 26
The Charleston Court Appellants argue that “[t]here is no basis in the jury’s
verdict for an award of damages for assault from Charleston Court.” They further
argue that (1) “there was no finding by the jury that Charleston Court committed
32
the assault;” (2) “any liability attributable to Charleston Court must be vicarious;”
and (3) “there was no question submitted to the jury as to whether Boyles was the
agent of Charleston Court.” In response, the Alvarados point to the negligent
hiring submission in Question 26 as a basis for joint and several liability based on
direct liability. We conclude that Question 26 cannot bear the weight that the
Alvarados would have it carry.
Question 26 submits a negligent hiring claim. A claim of negligent hiring,
supervision, or retention is not dependent upon a finding that the employee was
acting in the course and scope of his employment when the tortious act occurred.
Wrenn v. G.A.T.X. Logistics, Inc., 73 S.W.3d 489, 496 (Tex. App.—Fort Worth
2002, no pet.); Verinakis v. Med. Profiles, Inc., 987 S.W.2d 90, 97 (Tex. App.—
Houston [14th Dist.] 1998, pet. denied). An employer who negligently hires,
retains, or supervises an incompetent or unfit individual may be directly liable to a
third party whose injury was proximately caused by the employee’s negligent or
intentional act. Wrenn, 73 S.W.3d at 496; Verinakis, 987 S.W.2d at 97. A
negligent hiring claim is based on an employer’s direct negligence rather than the
employer’s vicarious liability for the torts of its employees. Wrenn, 73 S.W.3d at
496; Verinakis, 987 S.W.2d at 97.
The Texas Supreme Court has not “ruled definitively on the existence,
elements, and scope” of negligent retention, supervision, training, and hiring
claims. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804 n.27 (Tex. 2010).
The supreme court has stated as follows: “In a negligent-hiring or negligent-
entrustment claim, a plaintiff must show that the risk that caused the entrustment or
hiring to be negligent also proximately caused plaintiff’s injuries.” TXI Transp.
Co. v. Hughes, 306 S.W.3d 230, 240 (Tex. 2010) (citing Fifth Club, Inc. v.
Ramirez, 196 S.W.3d 788, 796 (Tex. 2006), Doe v. Boys Clubs of Greater Dallas,
33
Inc., 907 S.W.2d 472, 477 (Tex. 1995), and Schneider v. Esperanza Transmission
Co., 744 S.W.2d 595, 596-97 (Tex. 1987)).
The jury answered “yes” to Question 26 asking whether Soon Phat, L.P.’s
negligence in hiring, training, supervising, or retaining Boyles proximately caused
“the occurrence in question.” It is unclear whether “the occurrence in question”
refers to the towing, the assaults, the false imprisonment, the conspiracy or some
combination of events and actions. In any event, Question 26 does not ask if Soon
Phat, L.P.’s negligent hiring proximately caused the Alvarados’ injuries.7 There
also was no damage question submitted in connection with Question 26. A direct
liability theory predicated on negligent hiring, training, supervising, or retention —
for which the jury found proximate cause of an unspecified “occurrence” rather
than the Alvarados’ injuries, and for which the jury was not asked to find damages
or determine proportionate responsibility — does not support the trial court’s final
judgment making Soon Phat, L.P. jointly and severally liable for damages from
assaults committed by others. Cf. Lovelace v. Sabine Consol., Inc., 733 S.W.2d
648, 655 (Tex. App.—Houston [14th Dist.] 1987, writ denied) (judgment awarding
punitive damages could not be affirmed in absence of separate finding of actual
damages in tort).
Even if damage findings were to be deemed in support of the trial court’s
judgment under Texas Rule of Civil Procedure 279,8 the trial court’s judgment
7
The Texas Pattern Jury Charges discuss potential problems with the use of the word
occurrence rather than injury in 51.1, 61.1, 66.1 and 71.1, in connection with other causes of
action and the proportionate responsibility statute. The Texas Pattern Jury Charges also discuss
this issue in connection with 4.1, the general negligence issue. There is no PJC question for
negligent hiring.
8
Rule 279 provides: “When a ground of recovery or defense consists of more than one
element, if one or more of such elements necessary to sustain such ground of recovery or
defense, and necessarily referable thereto, are submitted to and found by the jury, and one or
more of such elements are omitted from the charge, without request or objection, and there is
34
imposing joint and several liability on Soon Phat, L.P. nonetheless could not be
affirmed on the basis of the jury’s “yes” answer to Question 26. Such deemed
findings would not serve as a basis for joint and several liability. Any damages in
connection with negligent hiring would be attributed to Soon Phat, L.P. as direct
liability based on upon its own negligent conduct — not based upon a relationship
between Soon Phat, L.P. and Boyles that allows Boyles’ tortious conduct and the
consequences thereof to be attributed to Soon Phat, L.P. by way of joint and
several liability. See Wrenn, 73 S.W.3d at 496; Verinakis, 987 S.W.2d at 97.
Therefore, Question 26 does not provide a permissible route to the joint and
several damages assigned against Soon Phat, L.P. in the trial court’s final
judgment.9
c. Question 13
The jury’s finding in Question 13 that Dill d/b/a Arrow Towing and Soon
Phat, L.P. were engaged in a joint enterprise cannot serve as basis for vicarious
liability on the part of Soon Phat, L.P.
The supreme court has stated that “‘the theory of joint enterprise is to make
each party thereto the agent of the other and thereby to hold each responsible for
the negligent act of the other.’” Tex. Dept. of Transp. v. Able, 35 S.W.3d 608, 613
(Tex. 2000) (quoting Shoemaker v. Estate of Whistler, 513 S.W.2d 10, 14 (Tex.
factually sufficient evidence to support a finding thereon, the trial court, at the request of either
party, may after notice and hearing and at any time before the judgment is rendered, make and
file written findings on such omitted element or elements in support of the judgment. If no such
written findings are made, such omitted element or elements shall be deemed found by the court
in such manner as to support the judgment.” Tex. R. Civ. P. 279; cf. Lovelace, 733 S.W.2d at
655 (“An appellant cannot be held accountable for the failure of an appellee to secure separate
jury findings upon which an accurate judgment could be based.”)
9
Because Question 26’s negligence submission does not support joint and several
liability as to Soon Phat, L.P., we do not address Questions 29 and 30; these were gross
negligence submissions predicated on “yes” answers to Question 26.
35
1974)); cf. Sereau v. Exxonmobil Corp., 274 S.W.3d 206, 218 n.9 (Tex. App.—
Houston [14th Dist.] 2008, no pet.) (“For the purposes of this appeal, we will
assume, without deciding, that the theory of joint enterprise extends beyond
negligence claims to include . . . fraud and contract allegations.”).
The only negligence question submitted against Soon Phat, L.P. is Question
26 predicated on negligent hiring. For the reasons discussed above, the jury’s
“yes” answer to Question 26 cannot support the trial court’s judgment making
Soon Phat, L.P. jointly and severally liable for the Alvarados’ damages. The same
obstacles arise in connection with Question 25, the negligent hiring question
addressing Dill; that question is worded in identical fashion to Question 26. Like
Question 26, the jury’s “yes” answer to Question 25 also cannot support the
judgment as signed. No other negligence questions were submitted in the jury
charge as to any defendant. Therefore, a “yes” answer to Question 13 addressing
joint enterprise is not effective to make Soon Phat, L.P. responsible for Dill’s
negligence as found in Question 25 or to make Dill responsible for Soon Phat,
L.P.’s negligence as found in Question 26.
Absent viable negligence claims that would support the trial court’s
judgment, assigning joint and several liability to Soon Phat, L.P. in the final
judgment based on the “yes” answer to Question 13 would require a significant
extension of joint enterprise principles under Texas law by stacking vicarious
liability upon vicarious liability. The Alvarados ask this court to endorse the
following stacking procedure: Dion and Thompson are liable because they
assaulted Juvenal and Feliciano, and because they conspired and assisted in the
assaults; Boyles is vicariously liable for the conduct of Dion and Thompson
because she conspired with them to commit the assaults and assisted in the
assaults; Soon Phat, L.P. is vicariously liable for Boyles’ vicarious liability as her
36
employer; and Dill is vicariously liable for Soon Phat, L.P.’s vicarious liability by
virtue of the joint enterprise. By similar reasoning, Dion and Thompson are
directly liable for the assaults and vicariously liable as conspirators and persons
who assisted in the assaults; Dill is vicariously liable for the conduct of Dion and
Thompson; and Soon Phat, L.P. is vicariously liable for Dill’s vicarious liability by
virtue of the joint enterprise.
The outer limits of joint enterprise liability are far from settled under Texas
law. See, e.g., Wolff, 94 S.W.3d at 530. But wherever those limits are located, the
multiple layers of vicarious liability posited by the Alvarados are too attenuated to
serve as a viable basis for the trial court’s judgment based on the jury’s “yes”
answer to joint enterprise in Question 13.
2. Soon Phat, L.P.’s liability for false imprisonment
In its third and fifth issues, the Charleston Court Appellants assert that Soon
Phat, L.P. cannot properly be held jointly and severally liable for the false
imprisonment damages awarded to Juvenal. We again address this assertion in
light of the three potential routes of recovery against Soon Phat, L.P. provided
under the jury charge.
Question 34 is immaterial for purposes of making Soon Phat, L.P. jointly
and severally liable for damages awarded for false imprisonment because Question
34 addresses only assaultive conduct.
For the same reasons we discussed above, Question 26 cannot serve as the
basis for making Soon Phat, L.P. jointly and severally liable for damages awarded
to Juvenal for false imprisonment. A negligent hiring claim is based on an
employer’s direct liability; it is not based on the employer’s vicarious liability for
the torts of its employees. Wrenn, 73 S.W.3d at 496; Verinakis, 987 S.W.2d at 97.
37
And any deemed finding of causation and damages for negligent hiring would not
serve as a basis for vicarious liability, which is a separate basis of liability.
Finally, the jury’s finding in Question 13 that Dill and Soon Phat, L.P. were
engaged in a joint enterprise does not provide a vehicle for imposing joint and
several liability on Soon Phat, L.P. for the false imprisonment damages awarded to
Juvenal because joint enterprise liability is foreclosed as a matter of law.
Accordingly, we sustain issues one, three, and five as to Soon Phat, L.P’s
joint and several liability under the final judgment for damages awarded for assault
and false imprisonment. The Alvarados take nothing on their assault and false
imprisonment claims as to Soon Phat, L.P.10
C. Damages as to Boyles
The Charleston Court Appellants ask this court to delete from the trial
court’s final judgment the exemplary damage awards against Boyles for the assault
of Feliciano and Juvenal and the false imprisonment of Juvenal. The Charleston
Court Appellants also contend that any exemplary damage awards against Boyles
must be deleted from the trial court’s judgment because there is no evidence or
insufficient evidence that Boyles acted fraudulently or maliciously or was grossly
negligent in this case. The Charleston Court Appellants further contend that “[a]s
a matter of law, Boyles’ liability for exemplary damages for the assault should not
have been submitted to the jury” because “a court may not award exemplary
damages against a defendant because of the criminal act of another.”
The Charleston Court Appellants lack standing to raise these issues on
10
Because we have concluded that Soon Phat, L.P. is not jointly and severally liable for
damages awarded in the final judgment for assault and false imprisonment, we need not address
the Charleston Court Appellants’ argument in issues seven and nine that actual damages for
assault and false imprisonment improperly were awarded against Boyles individually.
38
appeal. “Texas courts have long held that appealing parties may not complain of
errors that do not injuriously affect them or that merely affect the rights of others.”
Tex. Workers’ Comp. Ins. Fund v. Mandlbauer, 988 S.W.2d 750, 752 (Tex. 1999);
see also Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 150 (Tex. 1982).
Boyles did not appeal the trial court’s judgment; and the Charleston Court
Appellants’ counsel stated during oral argument that he did not represent Boyles
on appeal. The exemplary damages were not awarded jointly and severally against
Boyles and Soon Phat, L.P. or any other defendant. Boyles alone is liable for the
exemplary damages awards in this case. Therefore, the Charleston Court
Appellants are not adversely affected by the exemplary damages awards against
Boyles individually.
Because the Charleston Court Appellants lack standing to complain on
appeal about the exemplary damages awards against Boyles, we do not address the
merits of their second, fourth, eleventh, and thirteenth issues. Accordingly, we
overrule these issues.11
III. Dill, Thompson, and Dion
These appellants challenge the imposition of joint and several liability on
Dill for assault and false imprisonment; they also challenge the imposition of
punitive damages as to Dion and Thompson.
A. No Waiver of Right to Appeal
The Alvarados ask this court in a cross-point to dismiss the appeal of Dion,
Thompson, and Dill. The Alvarados contend that Dion, Thompson, and Dill are
“estopped from attacking” the trial court’s judgment because Dion, Thompson, and
11
In light of the resolution of issues discussed above, we do not address the Charleston
Court Appellants’ remaining issues and cross point asserted on appeal.
39
Dill, “along with Charleston Court, [] asked the trial court to enter the judgment at
issue.” Again relying on Fojtik, 775 S.W.2d at 633, the Alvarados contend that
Dion, Thompson, and Dill waived their right to appeal the trial court’s judgment
because they “unreservedly invited the trial court to enter the judgment it entered.”
The Alvarados incorrectly assert that Dion, Thompson, and Dill “along with
Charleston Court” asked the trial court to enter the judgment at issue. Dion,
Thompson, and Dill neither filed a motion for entry of judgment nor joined in the
Charleston Court Appellants’ request to enter a judgment. Dion, Thompson, and
Dill did not waive their right to appeal the trial court’s judgment. We overrule the
Alvarados’ cross-point and deny the Alvarados’ motion to dismiss Dion’s,
Thompson’s, and Dill’s appeal.
B. Dill’s Joint and Several Liability for Actual Damages
Dill challenges the final judgment’s imposition of joint and several liability
for actual damages arising from the Alvarados’ claims for assault and false
imprisonment. He argues there is no legal basis for imposing joint and several
liability on him because of the individual tortious conduct of Dion, Thompson, or
Boyles.
Dill also complains of the absence of a proportionate responsibility
submission under Chapter 33 of the Civil Practice and Remedies Code. But Dill,
like the Charleston Court Appellants, did not object on this basis during the charge
conference or tender a requested submission under Chapter 33. Once again, the
issue here is not whether the jury charge is erroneous due to the omission of a
proportionate responsibility question; instead, the issue is whether the charge as
submitted provides a means by which Dill can be held jointly and severally liable
40
for the individual tortious conduct of Dion, Thompson, or Boyles.12
We consider the same three routes to liability identified above in our
analysis of Soon Phat L.P.’s liability. As to Dill, this analysis focuses on Question
33, Question 25, and Question 13.
The first route is Question 33, which states as follows:
QUESTION 33
At the time of the aggravated assault found by you in answer to
Question 31 or 32 was Samuel Lee Thompson:
1) unfit and did Robert Groce Dill d/b/a Arrow Towing Company act
with malice in employing or retaining him?
OR
(2) did Robert Groce Dill d/b/a Arrow Towing Company ratify or
approve the act.
“Malice” means a specific intent to [sic] by the defendant to
cause substantial injury or harm to the claimant.
Answer “Yes” or “No”
Answer: Yes
The predicating instruction directed the jury not to answer Question 33 unless it
first answered “yes” to Questions 31 or 32, which asked whether Thompson
committed aggravated assault against Juvenal and Feliciano. In turn, Question 31
was predicated on a “yes” answer to Juvenal’s assault claim in Question 1, and
Question 32 was predicated on a “yes” answer to Feliciano’s assault claim
12
At the charge conference, counsel for Dill, Dion, and Thompson objected on no
evidence grounds to Questions 8, 9, 10, 11, 12, 18, 19, 20, 21, 24, 27, 28, and 33. Counsel for
these appellants further objected on grounds that the submission of questions for which there was
no evidentiary support constituted a “comment on the weight of the evidence;” that Questions 1,
2, 6, 7, 31 and 32 were duplicative; that Questions 31 and 32 erroneously referenced a criminal
offense of “aggravated assault” in a civil case; and that “I don’t think there’s a proper predicate
for exemplary damages” in relation to Questions 18 and 19. The trial court overruled these
objections.
41
submitted in Question 4. The Alvarados argue that Thompson and Dion’s
individual liability for the assault of Juvenal and Feliciano and for the false
imprisonment of Juvenal is attributed to Dill in light of the jury’s “yes” answer to
Question 33.
The second route is Question 25. In wording identical to Question 26
quoted above, Question 25 asks whether the “negligence, if any, of Robert Groce
Dill, in hiring, training, supervising, or retaining Samuel Lee Thompson
proximately cause[d] the occurrence in question . . . .” The Alvarados argue that
Dion’s and Thompson’s individual liability for the commission of assault and false
imprisonment is attributed to Dill in light of the affirmative finding in Question 25.
The third route is Question 13, the joint enterprise question quoted above.
The Alvarados contend that Dill is “liable for Boyles’ conduct as well as for that of
Thompson and Dion, with whom Boyles is jointly and severally liable” because
under “the theory of joint enterprise, each party involved in an enterprise is
considered an agent of the other and becomes liable for the negligent acts of the
other.”
1. Dill’s liability for assault
Dill contends that he cannot properly be subjected to joint and several
liability for the assault damages awarded to Feliciano and Juvenal. Considering
the evidence and the three potential routes to recovery against Dill provided under
the jury charge, we conclude that Question 33 serves as a basis for Dill’s joint and
several liability.
The evidence in this case was disputed as to whether Dion and Thompson
were Dill’s employees, or whether they were independent contractors. Dill
testified that Dion and Thompson were not his employees but were contract
42
laborers. However, Dill also testified that Thompson was a “fit employee” who
did his job and “absolutely” followed instructions. Dill further testified that Dion
provides great customer service and “has been an exemplary employee the entire
time he’s been with [Dill].” This is legally sufficient evidence of employee status.
There also is legally sufficient evidence of ratification and approval under
Question 33. With regard to ratification and approval, Dill testified that he
approved of Thompson’s conduct. He was asked at trial by the Alvarados’
counsel: “Sir, my question is, do you approve of everything that Sam Thompson
did that night?” Dill answered “Yes.” Dill also acknowledged that he never
reprimanded Thompson for his conduct. This evidence establishes a valid legal
basis for holding Dill jointly and severally liable based upon the conduct of Dion
and Thompson. See Household Credit Servs., Inc. v. Driscol, 989 S.W.2d 72, 87
(Tex. App.—El Paso 1998, pet. denied) (creditor was jointly and severally liable
for damages arising from torts committed against debtor by collection agency
based on creditor’s ratification of collection agency’s conduct); Gulf Oil Corp. v.
Williams, 642 S.W.2d 270, 272 (Tex. App.—Texarkana 1982, no writ) (service
station owner was jointly and severally liable for damages arising from injury to
customer who was shot by security guard, a borrowed employee, based on owner’s
ratification of guard’s conduct); Moore’s Inc., v. Garcia, 604 S.W.2d 261, 267
(Tex. App.—Corpus Christi 1980, writ ref’d n.r.e.) (store owner was jointly and
severally liable for damages arising from false imprisonment and assault of a
customer by an off-duty police officer employed as a store security guard based on
ratification of guard’s conduct).
Therefore, the final judgment properly holds Dill jointly and severally liable
for the assault damages awarded in favor of Juvenal and Feliciano based on the
jury’s finding in Question 34, and we need not address the other possible routes to
43
Dill’s joint and several liability for assault. Accordingly, we overrule the first
issue.
2. Dill’s liability for false imprisonment
Dill asserts that he cannot properly be held jointly and severally liable for
the false imprisonment damages awarded to Juvenal. We address this assertion in
light of the evidence and the three potential routes of recovery against Dill
provided under the jury charge.
Question 33 is immaterial for purposes of making Dill jointly and severally
liable for damages awarded for false imprisonment because Question 33 addresses
only assaultive conduct. Thus, Question 33 does not provide a vehicle for
imposing joint and several liability on Dill for damages awarded for false
imprisonment.
Question 25 also does not provide a vehicle for making Dill jointly and
severally liable for damages awarded to Juvenal for false imprisonment. As we
have stated already in our analysis of Soon Phat, L.P.’s liability, a negligent hiring
claim is based on an employer’s direct liability rather than the employer’s
vicarious liability for the torts of its employees. Wrenn, 73 S.W.3d at 496;
Verinakis, 987 S.W.2d at 97. Question 25 tracks Question 26 in that it references
proximate cause of an unspecified “occurrence in question” rather than Juvenal’s
injuries; and, like Question 26, there is no separate damage question by which the
jury was asked to find the damage caused by Dill’s negligent hiring. For the
reasons discussed above in connection with Soon Phat L.P., the negligent hiring
question submitted in Question 25 cannot provide a basis for making Dill jointly
and severally liable for the false imprisonment damages awarded to Juvenal.
Lastly, the jury’s finding in Question 13 that Dill and Soon Phat, L.P. were
44
engaged in a joint enterprise cannot provide a basis for imposing joint and several
liability on Dill for the false imprisonment damages awarded to Juvenal. As we
have stated in our analysis above, joint enterprise liability is foreclosed as a matter
of law.
Accordingly, we sustain issue three as to Dill’s joint and several liability
under the final judgment for damages awarded for false imprisonment.
C. Liability of Dion and Thompson
1. Liability for actual damages
Dion, Thompson, and Dill incorporate by reference the arguments asserted
by the Charleston Court Appellants concerning whether Dion and Thompson were
justified in their use of force against the Alvarados as addressed in Questions 13A
and 13B. They do not otherwise challenge on appeal the legal and evidentiary
bases for liability and actual damages for assault and false imprisonment as to Dion
and Thompson as determined by the jury’s answers to Questions 1-9.
Question 13A asked whether Dion was “justified in his use of force against
the Plaintiffs.” Question 13B asked whether Thompson was “justified in his use of
force against the Plaintiffs.” The jury answered “no” to Questions 13A and 13B.
Both questions contained the following instruction:
A person is justified in his use of force against another if he is
acting in self-defense. He is acting in self-defense if he reasonably
believed that force was immediately necessary to protect himself
against the other’s use or attempted use of unlawful force. A person is
justified in using force to protect a third person if, under the
circumstances, the defendant would have been justified in using force
to protect himself, and he reasonably believed that his intervention
was immediately necessary to protect the third person.
The use of force against another is not justified in response to
verbal provocation alone, or if the actor provoked the other’s use or
45
attempted use of unlawful force, unless the actor abandons the
encounter, or clearly communicates to the other his intent to do so
reasonably believing he cannot safely abandon the encounter, and the
other nevertheless continues or attempts to use unlawful force against
the actor.
Questions 13A and 13B were predicated on “yes” answers in response to Question
1. In turn, Question 1 asked if Dion and Thompson committed an assault against
Juvenal.
Dion and Thompson claim that they were justified in their use of force
against the Alvarados and that the jury’s “No” answers to Questions 13A and 13B
were not supported by legally or factually sufficient evidence because Dion and
Thompson “were justified in their use of force” and the evidence conclusively
established the defense of justification. They claim that the Alvarados did not
present any evidence to contradict (1) Bukhari’s testimony that “in his opinion
based on his experience as a police officer, Thompson and Dion’s actions were
justified;” (2) Thompson’s testimony that he was fearful for Dion and that his
actions were “for the purpose of saving [Dion]” because he did not know if Dion
was injured; and (3) Dion’s testimony that he “was in fear for his personal safety
during the confrontation.”
Bukhari testified that, if Dion and Thompson assaulted Juvenal, they acted in
self-defense because Juvenal had tried to “ram” his truck into them. However,
Bukhari never interviewed Juvenal or Feliciano to hear their side of the story and
determine whether Juvenal had been attacked by Dion and Thompson first.
Juvenal testified that Feliciano approached Dion to show him towing papers,
and that Thompson “came up” to Feliciano and struck him with a flashlight in the
head. Juvenal attempted to take Feliciano to the apartment after Thompson had hit
Feliciano; however, Thompson also hit Juvenal on the head with a flashlight.
46
Juvenal stated that he never touched Dion or Thompson; he also stated that both
Dion and Thompson hit him, and that he “was full of blood from the blows they
hit.” He stated that he was afraid Dion and Thompson would beat him more, so he
retreated to his truck and wanted to drive away, but he could not see and was not
“conscious of [him]self anymore.”
Juvenal testified that Thompson came to his truck, hit him hard, and broke
his nose. Juvenal stated that he did not “try to run over” Dion; he never fought
with Thompson over the gear shift or tried to put his truck in drive; he never
rammed Dion’s tow truck; his truck never touched the tow truck; and he did not
know how his truck moved. Juvenal also testified that he never tried to run away
but that Thompson and Dion dragged him out of his truck.
Juvenal’s neighbor, Moises de la Torre, confirmed that Thompson first hit
Feliciano with the flashlight and then hit Juvenal with the flashlight.
Examining the sufficiency of the evidence in light of the charge submitted,
there is legally and factually sufficient evidence to support the jury’s “No” answers
to Questions 13A and 13B asking whether Dion and Thompson were justified in
their use of force; we also conclude that the record does not support the assertion
that justification was proven as a matter of law.
2. Liability for punitive damages
Dion, Thompson, and Dill argue that the exemplary damage awards in favor
of Feliciano against Dion and Thompson are improper because “the jury question
failed to properly apportion liability.” They argue that “[i]n order to hold a
defendant jointly and severally liable, the jury must have attributed greater than
50% o[f] responsibility to that defendant with respect to the cause of action, or that
defendant must have acted in concert with another person to engage in certain
47
criminal conduct” as required by Section 33.013(b).
Dion, Thompson, and Dill did not object at the charge conference to the
absence of a proportionate responsibility question; therefore, we do not address
Dion, Thompson, and Dill’s contention that submission of such a question was a
prerequisite for an exemplary damages award. Additionally, the jury answered
“yes” as to Dion and Thompson in response to Question 2, which asked whether
Dion and Thompson assisted or encouraged the assault upon Juvenal. The jury
answered the same in response to Question 3, which asked whether Dion and
Thompson conspired to commit the assault upon Juvenal; in response to Question
5, which asked whether Dion and Thompson assisted or encouraged the assault
upon Feliciano; and in response to Question 6, which asked whether Dion and
Thompson conspired to commit the assault upon Feliciano.
Dion, Thompson, and Dill also argue that the exemplary damages awards are
improper because “there is no evidence regarding the net worth of Defendants Dill,
Dion, and Thompson, and without that type of evidence, the jury cannot apply the
relevant factors.”
We note that the trial court’s final judgment does not order Dill to pay
Feliciano exemplary damages; therefore, Dill’s net worth is irrelevant and the
exemplary damages award cannot be improper because there is no evidence of his
net worth.
Evidence of a defendant’s net worth is relevant in determining the amount of
punitive damages because “the amount of punitive damages necessary to punish
and deter wrongful conduct depends on the financial strength of the defendant.
‘That which could be an enormous penalty to one may be but a mere annoyance to
another.’” Moriel, 879 S.W.2d at 29 (quoting Lunsford v. Morris, 746 S .W.2d
471, 472 (Tex.1988), overruled on other grounds by Walker v. Packer, 827 S.W.2d
48
833, 842 (Tex.1992)). Nothing in Chapter 41 of the Texas Civil Practice and
Remedies Code, Moriel, or other Texas case law indicates that evidence of a
defendant’s net worth is a necessary element for a plaintiff to recover any punitive
damages. Rangel v. Robinson, No. 01-01-00318-CV, 2007 WL 625042, at *6
(Tex. App.—Houston [1st Dist.] March 01, 2007, pet. denied); Durban v.
Guajardo, 79 S.W.3d 198, 210-11 (Tex. App.—Dallas 2002, no pet.). Instead, it
is a relevant issue — as relevant to the defendant to prove low net worth as it is to
the plaintiff to prove the defendant’s high net worth. Rangel, 2007 WL 625042, at
*6; Durban, 79 S.W.3d at 210-11.
The Alvaradaos were not required to introduce evidence of Dion’s and
Thompson’s net worth in order to recover exemplary damages. See Rangel, 2007
WL 625042, at *7; see also In re Jacobs, 300 S.W.3d 35, 50, n.8 (Tex. App.—
Houston [14th Dist.] 2009, orig. proceeding [mand. dismissed]) (recognizing that
the “jury may still decide on the amount of punitive damages without considering
evidence of the defendant’s net worth”). Therefore, we reject Dion’s, Thompson’s,
and Dill’s argument that the exemplary damage awards against Dion and
Thompson is improper because there is no evidence of their net worth.
Finally, Dion, Thompson, and Dill argue that there is legally insufficient
evidence that Dion and Thompson “acted with the requisite intent — i.e., with
fraud, malice, or gross negligence — to merit any award of punitive damages
under section 41.003(a) of the Texas Civil Practice and Remedies Code” for the
assault of Feliciano.
Generally, exemplary damages may be awarded only if the claimant proves
by clear and convincing evidence that the harm at issue results from (1) fraud; (2)
malice; or (3) gross negligence. See Tex. Civ. Prac. & Rem. Code Ann. §
41.003(a) (Vernon Supp. 2012). In reviewing an award for exemplary damages,
49
we conduct a legal sufficiency review under the “clear and convincing” evidence
standard. Waldrip, 380 S.W.3d at 137. “‘Clear and convincing’ means the
measure or degree of proof that will produce in the mind of the trier of fact a firm
belief or conviction as to the truth of the allegations sought to be established.”
Tex. Civ. Prac. & Rem. Code Ann. § 41.001(2) (Vernon 2008); Waldrip, 380
S.W.3d at 137. Thus, we look at all the evidence in the light most favorable to the
finding to determine whether a reasonable trier of fact could have formed a firm
belief or conviction that its finding was true. Columbia Med. Ctr. of Las Colinas,
Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex. 2008).
Fraud in this context “means fraud other than constructive fraud.” See Tex.
Civ. Prac. & Rem. Code Ann. § 41.001(6) (Vernon 2008).
Malice is defined in this context as “specific intent by the defendant to cause
substantial injury or harm to the claimant.” See id. § 41.001(7). Specific intent
means that the actor desires to cause the consequences of his act, or that he
believes the consequences are substantially certain to result from it. Seber v. Union
Pac. R.R. Co., 350 S.W.3d 640, 654 (Tex. App.—Houston [14th Dist.] 2011, no
pet.) (citing Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex. 1985)). Malice
may be proven by direct or circumstantial evidence. Id.
Gross negligence consists of both objective and subjective elements.
Waldrip, 380 S.W.3d at 137. Thus, “[p]laintiffs must prove by clear and
convincing evidence that 1) when viewed objectively from the defendant’s
standpoint at the time of the event, the act or omission involved an extreme degree
of risk, considering the probability and magnitude of the potential harm to others
and 2) the defendant had actual, subjective awareness of the risk involved, but
nevertheless proceeded with conscious indifference to the rights, safety, or welfare
of others.” Id.; see Tex. Civ. Prac. & Rem. Code § 41.001(11). “Under the
50
objective component, ‘extreme risk’ is not a remote possibility or even a high
probability of minor harm, but rather the likelihood of the plaintiff’s serious
injury.” Waldrip, 380 S.W.3d at 137. “The subjective prong, in turn, requires that
the defendant knew about the risk, but that the defendant’s acts or omissions
demonstrated indifference to the consequences of its acts.” Id. at 137-38.
The charge submitted in this case does not contain a question asking the jury
to determine whether the Alvarados proved by clear and convincing evidence that
Feliciano’s harm resulted from fraud, malice, or gross negligence. The parties do
not complain on appeal about the absence of such a submission; the parties
challenge only the legal sufficiency of evidence to establish fraud, malice, or gross
negligence. In light of the jury’s exemplary damages awards against Dion and
Thompson for the assault of Feliciano, a finding by clear and convincing evidence
that the harm to Feliciano resulted from fraud, malice, or gross negligence is
deemed under Texas Rule of Civil Procedure 279 if it is supported by evidence.
See Tex. R. Civ. P. 279.
The evidence supports a finding that Dion and Thompson acted with malice
in this case.
One of Juvenal’s party guests, Irene Cardenas, testified that after Dion
attempted to tow Feliciano’s truck, Feliciano approached Dion to ask him why he
wanted to tow his truck. Feliciano never touched Dion or Thompson. Irene
testified that Dion and Thompson got on top of Feliciano and pepper sprayed him.
At first, Thompson beat Feliciano; then, both Dion and Thompson beat Feliciano.
Feliciano was bleeding.
Moises de la Torre, testified that Dion and Thompson pepper sprayed
Feliciano. Moises testified that he saw Boyles give a 20-inch flashlight to
Thompson, and Thompson hit Feliciano on the forehead with that flashlight;
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Feliciano was bleeding. Moises testified that Thompson sprayed Feliciano after he
was hit with the flashlight and was bleeding. Moises later saw Thompson also
strike Juvenal with the same flashlight.
Juvenal testified that Feliciano approached Dion to show him papers
indicating that Feliciano’s truck had already been towed once that evening.
Juvenal stated that Thompson just “came up” to Feliciano and struck him with a
flashlight in the head. Juvenal testified that “he was going to get [Feliciano] to
take him to the apartment . . . because he couldn’t see anything” but Thompson
struck Juvenal on the forehead with the flashlight. Juvenal stated he was bleeding
“a lot,” “was blind,” “wasn’t conscious of [him]self anymore,” and retreated to his
truck because he was afraid.
Another party guest, Javier Cardenas, testified that Feliciano approached
Dion after Dion attempted to tow Feliciano’s truck. Cardenas testified that,
although Feliciano never touched Dion, Thompson and Dion pepper sprayed
Feliciano and Dion hit Feliciano in the head with a flashlight; Feliciano was
“bleeding a lot” and he was “getting beat up.”
Feliciano testified that when he approached Dion to ask him why he wanted
to tow his truck, Dion told Feliciano to “get out of here, son of a bitch.” Feliciano
testified that Thompson and Dion then pepper sprayed him, and Thompson hit him
in the head with a flashlight. Feliciano stated that he experienced “intolerable”
burning after being pepper-sprayed on his head and chest, and some of his chest
skin peeled off. He stated that it felt like “a thunder bolt” when he was hit with the
flashlight and it “just knocked [him] out.” Feliciano testified that he “felt” Dion
and Thompson “coming at” him, “spraying” him and “hitting” him.
The video that captured part of the scene that night showed Dion holding a
large flashlight behind his back and, a few instances later, showed Boyles holding
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a large flashlight in her hands; the jury was free to conclude that the flashlight
Dion held behind his back was the same large flashlight Boyles carried.
Feliciano’s injury was substantial, requiring him to go to the hospital and
receive 14 staples on his head. Feliciano could not work for one week, and he
continues to have vision problem. A photo of Feliciano showing the staples on his
head was introduced into evidence. The jury also heard that Feliciano continues to
have a “cut” the size of his finger on his head as a result of his injury. There is
evidence that both Dion and Thompson hit Feliciano in the head with a 20-inch
flashlight Boyles had given to Thompson. Thompson acknowledged that the 20-
inch flashlight Boyles was seen carrying in the video could be a deadly weapon. A
person can reasonably anticipate that a severe injury is substantially certain to
result from a strike with a 20-inch flashlight.
Based on the record before us, we conclude that there was at least legally
sufficient evidence to support a finding that Feliciano’s harm resulted from Dion’s
and Thompson’s malice because the evidence allowed the jury to form a firm
belief that Dion and Thompson specifically intended to cause substantial injury to
Feliciano. Accordingly, we overrule the second issue.
CONCLUSION
We overrule the Alvarados’ issues in Cause No. 14-10-00603-CV; sustain
the Charleston Court Appellants first, third, and fifth issues in Cause No. 14-10-
00555-CV as to Soon Phat, L.P.’s joint and several liability under the final
judgment for damages awarded for assault and false imprisonment; and sustain
Dill’s, Dion’s, and Thompson’s third issue in Cause No. 14-11-00033-CV as to
Dill’s joint and several liability under the final judgment for damages awarded for
false imprisonment. We overrule the Alvarados’ cross points seeking dismissal of
the appeals brought by the Charleston Court Appellants, Dill, Dion, and
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Thompson, and deny the accompanying motion to dismiss. We reverse the trial
court judgment’s awards of (1) actual damages, pre-judgment interest, and post-
judgment interest for assault and false imprisonment against Soon Phat, L.P., and
(2) actual damages, pre-judgment interest, and post-judgment interest for false
imprisonment against Dill; we render judgment that the Alvarados take nothing in
that regard. We affirm the trial court judgment in all other respects.
/s/ William J. Boyce
Justice
Panel consists of Justices Boyce, Christopher and Jamison.
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