Juvenal Alvarado and Feliciano Alvarado v. Robert Groce Dill, Individually and d/b/a Arrow Towing, Samuel Lee Thompson, Brock Keith Dion, Soon Phat, L.P., Individually and d/b/a Charleston Court Apart

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 14th District Court of Appeals » 2013 » Juvenal Alvarado and Feliciano Alvarado v. Robert Groce Dill, Individually and d/b/a Arrow Towing, Samuel Lee Thompson, Brock Keith Dion, Soon Phat, L.P., Individually and d/b/a Charleston Court Apart

State: Texas

Court: Texas Northern District Court

Docket No: 14-10-00603-CV

Case Date: 01/17/2013

Plaintiff: Juvenal Alvarado and Feliciano Alvarado

Defendant: Robert Groce Dill, Individually and d/b/a Arrow Towing, Samuel Lee Thompson, Brock Keith Dion, Soon

Preview: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.
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The

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 crosspoint. 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
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.
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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
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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. 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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This argument was raised by the

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, prejudgment 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 fairminded 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
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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
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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

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 crosspoints below. 17

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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.
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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
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S.W.2d 834, 842 (Tex. Civ. App.--Corpus Christi 1970, writ ref'd n.r.e.); Restatement (Second) of Torts

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