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
2

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

O P I N I O N

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 
3

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 
4

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 

 

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.
5

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.
6

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. 
7

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 
8

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 
9

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.
10

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. 
11

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 
12

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 
13

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 
14

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 
15

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 
16

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 
17

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 crosspoints below.
18

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.
19

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 
20

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 
21

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 
22

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 
23

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. 
24

“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’ posttrial 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 
25

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 
26

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.
27

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 
28

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.
29

(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.
30

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 
31

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; 
32

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 
33

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 negligententrustment 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, 
34

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 279,8the 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 
35

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.
36

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
37

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. 
38

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.
39

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.
40

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 
41

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.
42

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 
43

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 
44

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 
45

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 
46

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. 
47

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 
48

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 
49

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, 
50

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 
51

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 postjudgment 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.