### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

ON MOTION F OR REHEARING

NO. 03-11-00669- CV

Tom Bennett and Jame s B. Bon ham Corp., Appellants

v. Larry Wayne G rant, Appellee

F ROM TH E DISTRI CT COURT O F SAN SAB A COUNTY , 33RD J UDICIAL DI STRICT NO. 808 6, H ONO RAB LE GUILF ORD L. JO NES II I, J UDGE P RESIDING

O P I N I O N

We withdraw the opinion dated Aug ust 13, 2014, and the supplemental opinion and judgme nt dated September 26, 2014, and substitut e the following opinion and judgme nt in thei r place . We deny

the Appellants’ motion for r ehea ring

. This suit arise s fr o m a now infamous feud betwee n neig hboring cattle ranc hers in
San Saba, the details of which have b ee n thoroug hly rela y ed in prior opinions of this Court and the Texas Suprem e C o u rt

. S ee Benne tt v. Rey nolds , 242 S.W .3d 866 (Tex. App.—Austin 2007),
rev’ d & remande d in part by 315 S. W

. 3 d 8 6 7 (Tex

. 2010) ( Benne tt I ). The feud betwee n cattle

ranc hers Thomas O. Be nnett and Randy Rey nolds ha s many turbulent twists and turns, see id ., but the gist of t he dis pute and subject of pr ior appe als involved alleg ations that thirteen head of cattlebelong ing to Rey nolds had wande red onto B ennett’s ranc h, and that instead of returning them in a neig hborly

fashion, B ennett orde red his ranc h hand—L arr y Gra nt—to round up t he cattle and sell them at auc tion. Grant testified that he raised c oncer ns with Benne tt that the cattle did not be long
to him, but Be nnett ignor ed his conce rns. Worried that he could be implicated in cattle theft, Gra nt 1 purcha sed a di s p osable came ra and took sever al photos of the cattle loaded on Be nnett’s trailer prior to t he sale . Wit hin two months of the sale, Gra nt left his employ

ment with Be nnett but kept the sec ret photos stashed a way in a box in his home where they wer e see mingly forg otten and lef

t undisturbed for almost a y ear . Rey nolds, howeve r, eventual l y l ea rn ed o f the s ecr et phot os afte r a chanc e encounte r with Gra nt’s brother- in-law and demande d that Gra nt turn the photos over to the authorities. What happens next is hotly disputed and the subject of litigation betwee n Be nnett and his former r anch ha

nd, Gra nt, which g ave r ise to this appeal. After Rey nolds attempted to obtain the photos, Gra nt testified that he was distressed

an d b ega n drinking beer and smoking marijuana to relieve tension. He then made a series of phone calls to Be nnett and Benne tt’s friend and employ ee, Don “Ex” Roge rs. Grant testified t hat the purpose of the calls was to inform Be nnett of the pictures and g ive him an opportunity to “make it r ight” with Re y

nolds. Be nnett and Roge rs’ version, howeve r, depicts Gra nt a s calling to tr

y and sell the phot o gra phs to Be nnett. Gra nt acknow ledg ed he had some discussion with Roge rs about selling the photos to Be nnett but testified that they only “joked about it.” I t w as no joke, howeve r, when Gra nt turned the photos over to law enfor ceme nt about a month afte r these con v er s at i o ns and trig g ere d an extraordinary s er i es of events. First, Be nnett was indicted for cattle theft based

The fa cts rec ited here in are taken f rom the re cord on a

ppeal. 1 2in par t o n Grant’s testimony and photos. Although ultimately acquitted of the criminal char g es,

Be nnett and his cattle company , the J ames B. Bonha m Corporation, wer e found liable for conver sion i n a civil suit broug ht by Rey nolds resulting in a judgme nt of $5,327.11 in actua l damag es. T h e
actua l damag es, howeve r, paled in compar ison to the combined exemplary damag es of $1.25
milli on awa

rded amidst alleg ations th at Be n n et t had willfully sold his neig hbor’s cattle to settle

a score in a long- standing feud and then attem p ted to cover his actions by —among other alleg ations—threate ning and bribing witnesses, tampering with the photogr aphs Gra nt had taken to alter the imag es of the brands on the cattle to look like h i s o wn b ra n d, and even attempting to
reg ister his neig hbor’s brand as his own with the district cler k of San Saba County

. Such alleg ations and such a larg e exemplary damag es awa rd are extraordinary by themselves, but it is only half of the 2 story and less than half of the total liability adjudg ed ag ainst Be nnett and the Bonha m Corporation from these events.

The other half is the subject of this ap p ea l

— a $2.28 milli on judgme nt awa rded to Gra nt for a succe ssful malicious prosec ution claim broug ht ag ain s t Be nnett and the Bonha m Corporation. This claim arose from Benne tt’s admitted, y et ul timately unsucce ssful, campa ign to have Gra nt imprisoned afte r he turned the photos over to authorities. I n this appea l, Be nnett and the Bonha

m Corporation (collec tive l y , Appellants) contest the judgme nt in Gra nt’s malicious
prosec ution suit, contending : (1) leg ally insufficient evidenc e supported the malicious prosec ution

c la im ; ( 2 ) le g a ll y a

n d fac tually insufficient evidenc e supported the $10,703 awa rded in compe n s a

to r y

I ndeed, the Texas Supreme Court found the exemplary damag es violated due proce ss and 2 rema nded the c ase f

or re mitti tur. See Benne tt I , 315 S.W .3d at 883. 3damag es; (3) leg ally insufficient evidenc e supported the jury ’s finding s allowing for the imposit ion

of exemplary damag es over the statutory cap; and (4) the total $2 milli on exemplary damag es awa rd ($1 milli on ag ainst Be nnett and $1 milli on ag ainst the Bonha m Corporation) violated due proce ss. I ndividually , the Bonha

m Corpor ation raises sever al arg uments challeng ing its liability in the suit, and Be nnett challeng es a $269,644.50 sanction. We conclude that the awa rd of exemplary damag es failed to c omport with due proce ss require ments and re quired re mitti tur, but otherwise uphold the trial court’ s judgme nt.

MALICIOUS P ROSECUTIO N

A. Background F acts

On the evening of October 4, 2001, telephone rec ords confirm that Gr ant called and spoke wit h Be n n et t fo r thirteen minutes, but the topic of conver sation that evening is hotly disputed by the parties. As previously discussed, Gra nt testified that he called to inform Be nnett about the pictures and to g ive him an opportunity to “make it rig ht” with Rey nolds. Be nnett, howeve r, testified that Gra nt called to try and sell the photos to him for $5,000. What is undisputed, howeve r, is that Be nnett waited near ly two y ear s t o re p ort his alleg ations ag ainst Gra nt to the authorities. I ndeed, B ennett testified that it was not until after his cr iminal trial that he dec ided to
repor t the incident to authorities and acknow ledg ed at trial that his s o l e “g oal” in repor ting the in c id e n t w a s to p u t “ G r a

n t in p r is o n . . . f

o r w h a t h e ’ s d o n e to me . ” I

n f u r th e r a n c e o f h is g o a l, B e nn e tt testified he met with law enfor ceme nt authorities in four separ ate counties i n an at tempt to g et Gra nt indicted for attempted blac kmail. After a uthorities in San Saba C ounty , L lano C ounty , and

4Co le ma

n Co u n ty r e f u s e d to p r o s e c u

te G r a n t, B e nn e tt me t w it

h th e d is tr ic t a

tt o r n e y in N a v a r r o Co u n ty and re quested he prosec ute the ca se.

Acc ording to the district attorney ’s testimony , the following events then transpire d. After his init ial meeting with Be nnett, the district attorney believed tha t if an attempted bla ckmail had occur red, i t was a fede ral offe nse and ref err ed the matter to the fede ral authorities. Unhappy with this outcom e, Be nnett ag ain approa ched the district attorney but this time with a new theory —reque s t i ng that Gra

nt be prosec uted for attempted theft. The district attorney informed
Be nnett he could not bring char g es for misdemeanor attemp t ed t h ef t b ecause it was barre d by the
t wo -y ea r statute of limit ations. Undeter red, Be nnett then provided the district attorney with new information, alleg ing—f

or the first time—that Gra nt had attempted to extort money from him a second time w ithin the limit ations period. The district attorney testified that he was “skeptica l” of this new evidenc e beca

use it “appe are d that there was may be some tailoring of the fac ts g oing on to fit the statute.” I ndeed, in his sworn te stimony in this case , Be nnett made no mention of a second attempted blackmail by Gra nt. Rather, he unequivoca lly testified that all the fac tual acc usations
ag ainst Gra

nt occur red in a single evening on October 4, 2011. The district attorney further testified that, based on his conver sations with Be nnett about the case , he formed t h e i m p ression that
Be nnett’s motive for prosec uting Gra nt was to g ain an advanta g e in civil litigation arising from the

c a s e . B e in g “ s u s p ic io u s ” o f B e n n e tt ’ s n e w e v id e n c e , th e d is tr ic t a tt o r n e y d e c id e d to “ d ig in h is h e e ls ” and re fused to prose cute.

Stil l undeter

red, Be nnett met with a

n attorney who testified that he had repr esente d the Bonha

m Corpor ation for over twenty y ear s and that Be nnett direc ted him to resea rch a nd draf t

5a leg al brief advoca ting that Gra

nt’s alleg ed actions const i t u t ed a criminal offe nse that should be
prosec uted. The district attorney testified that it was this brief or another meeting with Be nnett that finally was the “ca

taly st” that prompted him to bring the case to the g rand jury

. He further testified that it wa s “ra

re” for him to bring misdemeanor case s to the g rand jury beca use he himself had the authority to bring misdemeanor char g es without g rand jury involvement. But, in this case , he finally
y ielded to Be nnett’s demands beca use he did not want to appea r “dra conian” in his ref

usal to bring char g es. The district attorney may have been finally persua ded to prese nt the case , but the g rand jury was not as pe rsuade d and re fused to indict Gra nt.
Fr ustrated t h at t h e g rand jury had not indicted Gra nt, Be nnett testified he ag ain
met with the same attorney who this t i m e advis ed him to g et a specia l prosec utor appointed in
Nava rro County to bring the case befor e the g rand jury a second time. After the attorney explained
to him the proce dure for appointing a specia l prosec utor, Be nnett testified he had the attorney draf t

a petition alleg ing the district attorney had a conflict of int er es t an d accusing him of taking no action in the case

. The pe tition further soug ht the appointment of Robert Dunn—a local attorney 3

an d neig hbor of Be nnett’s—as a specia l prosec utor for the case . Be nnett, who resided and ran a cattle ranc h in N avar

ro County , testified that he then led the eff ort to circ ulate and obtain over 250 signa tures from Nava

rro County residents for the petition seeking the appoint ment of Dunn as specia l prosec utor for the case . Be nnett testified that others helped with the petition but that “it was mostly me . . . I think I done most of it.” The district attorney , who was now seeking ree lection

The petiti on alleg ed the dis t ri ct attorney had a conflict of interest in the case because he 3 had pre viously

worke d for the district a ttorney ’s offic e in L lano County

. 6in a hotly contested rac e, testified that he was unawa re that Be nnett was leading this campa ign throug hout the county

until Benne tt showed up at his office for a final mee ting. Benne tt, with the

s i gn ed p etitions in hand, then acc used the district attorney of being partial and unfair when h e
prese nted Gra

nt’s case to the g rand jury and dema

nded that Dunn be appointed spec ial prosec utor in the case . Fe eling that Be nnett’s p eti tion campa ign “wa sn’t helping ” his chanc es of ree lection, the district attorney testified that he ag ree d to the appointment of Dunn as s pecia l prosec utor in the ca se. 4 Ultimately , Be nnett was succe ssful in his g oal of g etting Grant indicted, as the specia l prosec utor prese nted the case for a s ec o n d t i m e to the g rand jury —more than four y ear s afte r the phone call betwee n Gra nt and Be nnett occur

red—but this time obtained indictments for the felony offe nses of tampering with a witness and attempted bribery

. The specia l prosec utor testified that in deciding whether to prese nt the case to the gra n d j u ry , h e interviewe d both Be nnett and Roge rs but exercised independe nt discretion in ultimately deter mining whether there was sufficie nt evidenc e to prosec ute the case . He testified further that he relied on evidenc e other than Be nnett’s and Roge rs’ statements in his decision to prosec ute. When asked, howeve r, whether Be nnett’s and Roge rs’ stateme nts were “ver y materia l to [hi s] decision t o proce ed to the gra nd jury ,” the spe cial
prosec utor acknow le d g e d th a t th e s ta te me nts wer e “def

initely ” very materia l to his decision. Fur ther, he acknow ledg ed testify ing during his deposition that he “would not have prese nted” the case to the

L ater that y ear , the district attorney lost his ree lection. Almost immediately afte r starting 4 private practice , Be nnett came to the former di strict attorney ’s office and reta ined h i m as co u n sel for himself a

nd the B onham Corpora tion in two separate lawsuits.

7g rand jury if he had be lieved B ennett “w as making untrue stateme nts.” He a lso testified that if he

believed there had been a “tailoring of the fac ts” by Be nnett—as the Nava rro County district attorney believed—tha t it wo u l d have aff ecte d his decision to g o to the g rand jury

. Gra nt maintained 5 throug hout trial that both men had lied to the authorities a bout the alleg ed blac kmail.
Fur ther, some of the evidenc e Be nnett pre s en t ed t o the specia l prosec utor appea rs from the rec ord t o have differ ed from the i nitial evidenc e presented to the d i s t ri ct att orney . First, there is no evidenc e in the rec ord that Be nnett repor ted to the specia l prosec utor two in ci d en t s o f alleg ed extorti on occur

ring on differ ent dates—a s he had to the district attorney

. Rather, the specia l
prosec utor testified only as to the alleg ed m i s co n d uct occur ring during phone conver sations on October 4, 2011, and the indictment alleg ed only one count—not two—of the char g ed offe nses. Second, Benne tt added a new detail to his alleg ations, contendingfor the f irst time that Gra

nt had

s p ec i fi ca l l y asked him to pay $5,000 for the pictures. I n a previous written statement to th e authorities, Be nnett did not alleg e a specifie d amount in his extorti on claims. The Nava rro County district a ttorney also did not rec all Be nnett telling him this detail, and it would have be en mater ial to how he prese nted the case to the g rand jury beca use the a mount of money at issue incre ased the deg ree of the offe nse. See Tex. Penal Code § 31.03(e) (value of proper ty involved in theft dictates 6
classifica tion of offe nse). Finally , the specia l prosec utor additional l y testified that in deciding to

The Nava rro County district attorney testified that he had informed the specia l prosec utor 5 of his belief that there had been some tailoring of the fac ts by Be nnett. The specia l prosec utor denied this, testify ing tha t “no one ha d told [ him] ” of a ny manipulation of the fa cts by Be nnett. I ntere stingly , the district attorney testified that the amount at issue incre ased the deg ree of 6 the offe nse from a misdemeanor to a felony

. The statute of limit ations for felony theft is five y ear s, rathe r than the two y ear statute o f limit ations for misdemeanor theft. See Tex. Code Crim. Proc. arts. 12.01(4) (A), 12.02. 8prosec ute the case , he relied—in part—on a t ra n s cr ipt from Be nnett purportedly transcr ibing

secr etly -tape d “conve rsations” with Gra nt that substantiated Be nnett’s claim that Gra nt had soug ht $5,000 from him. I f this transcr ipt wa s also g iven to the district a ttorney , he made no ref

ere nce to it in his testimony

.

Re g arding the transcr ipt, the specia l prosec utor testified that initially Be nnett
prese nted him with a tape rec ording of “conve rsati o n s ” b u t t h at he was unable to understand it beca use it was “aw ful g arble d.” Be nnett t h en gave him a transcr ipt purportedly transcr ibing the tape. The specia l pro s ec u t o r could not testify as to when the tape was alleg edly rec orded, but it
appea rs from his testimony that he believed the tape was a rec ording of the ac t u al t el ephone

conv er s at i ons ref

lected on Gra

nt’s telephone bill or conver sations rela ted direc tly to those phone

rec ords. He further testified that the taped c onversa tions subst antiated Benne tt’s claim t hat Grant had specific ally soug ht “$5,000” for the pictures. This transcr ipt , h o we v er , was destroy ed when
Gra nt’s rec ord was later expunged. Be sides this infor mation, the re is no additional information in the rec ord as to what was ref lected in the transcr ipt or the tape. Be nnett himself testified at trial that he had secr etly rec orded a conver sation with Gra nt and had prese nted this tape to law enfor ceme nt, but this tape rec orded only a single conver sation betwee n Gra nt and Be nnett occur

ring almost a y ear prior to Gra

nt’s alleg ed ex tortion. As such, t here is no mention on the tape of the photogr aphs or

a demand for $5,000. I ndeed, when the specia l prosec utor was prese nted with a transcr ipt of the tape Be nnett testified to prese nting to other law enfor ceme nt, the specia l prosec utor testified that he had

never seen it bef

ore, a nd it was “c ompletely

differ ent” than the transcr ipt Benne tt had g iven him.
Be nnett’s pl an to imprison Gra nt seeme d to finally b e coming to fruition when the specia l prosec utor then too k t h i s evidenc e to a second g rand jury and succe eded in obtaining two
9felony indictments, and Gra nt s u r r e n d e r e d h im s e lf to a

u thorities. But Be nnett’s long and hard- foug ht quest ended nine months later, when both of Gra nt’s indictments wer e quashed beca use the char g es had been filed past the statute of limit ations. Fur ther, the trial court g rante d Gra nt’s motion to have his arr est and indi ctments expunged f rom his rec ord as void. Upon ex punction, Gra nt—who was alre ady being sued by Be nnett for slander—a dded a counter claim ag ainst Be nnett and the Bonha m Corporation f

o r ma li c io u s c r im in a l p r o s e c u ti o n . U p o n h e a r in g th e p r e c e d in g e v id e n c e , th e ju r y f o u n d 7
th a t B e n n e tt and the Bonha

m Corpor ation had indee d maliciously prosec uted Gra

nt. They appea l, contending th e r e is in s u f

f ic ie n t e v id e n c e o f a ma li c io u s p r o s e c u ti o n . A p p e ll a n ts ’ c la im r e q

u ir e s u s to f ir s t e xp o u n d upon the law of

malicious prosec ution.

B. Malicious Pr osecution

Malicious prosec ution is an unusual tort in that it require s the court to balanc e society ’s interest in protec tin g p ri vate persons who repor t criminal conduct with the individual citizen’s interest in being pro t ec ted ag ainst unjustifiable and oppressive litigation of criminal char g es. Browning-Ferris Indus., Inc. v. Liek , 881 S.W .2d 288, 290–91 (Tex. 1994). I n that reg ard, the Texas Supreme Cour t h as instructed us that the balanc e betwee n these important interests is maintained by

strictly adher ing to the de fined elements of an action for malicious prosec ution and that even a small depar

ture from the exact prer equisites for liability may threa ten this delicate balanc e. Id

. But, “as wit h any other cause of action, if the elements of m al i cious prosec ution are
p r o v e d , li a

b il it y is e s ta b li s h e d

. ” I

d

. a t 2 9 1

. T h o s e e le me n ts a

r e : ( 1 ) th e c o mm e n c e me n t o f a c r im in a l

The jury found ag ainst Be nnett on his slander c laim, which B ennett does not a ppeal. 7 10prosec ution ag ainst the plaintiff; (2) causa tion of the action by the defe ndant; (3) termination of the

prosec ution in the plaintiff’s favor ; ( 4) the plaintiff’s innocenc e; (5) the absenc e of probable cause for the proce eding s; (6) malice in filing the char g es; and (7) damag es. Richey v. Brookshire Groce ry Co. , 952 S.W .2d 515, 517 (Tex. 1997).

Appellants do not dispute the jury ’s fin d i ng s that there was no probable cause to
p ro s ecute Gra

nt, that Gra

nt was innocent of the char g es, and that Be nnett acte d with mal i ce i n
p u r s u in g th e c h a

r g e s . Ra th e r , th e y a

r g u e o n ly th a

t th e r e is le g a ll y in s u f

f ic ie n t e v id e n c e th a

t B e nn e tt ’ s conduct cause d the commence ment of a criminal prosec ution ag ainst Gra nt. The causa tion element of malicious prosec ution require s evidenc e that a defe ndant “initiated ” o r “p rocured” a criminal
prosec ution. Lie ck , 8 8 1 S.W .2d at 292. A person initiates a criminal prosec ution if he makes a formal char g e to law en fo rc em ent authorities. Id

. Her e, there is no evidenc e in the rec ord that
Be nnett filed any formal charg es; Gra nt, there fore , relies on pro cu re m en t

. A person “proc ures” a criminal prosec ution “if his actions are enoug h to cause the prosec ution, and but for his actions the
prosec ution would not have occur red.” Id . Thus, procur ement re quires that a person’s actions be both a “nec essar

y and a sufficie nt cause of the criminal prosec ution.” Id

. Appellants arg ue there is

no evidenc e Be nnet t “p ro cured” Gra nt’s criminal prosec ution beca use the prosec utors involved
acte d with independe nt disc re tion, and their exercise of discretion was a superceding , intervening

cause of the prosec ution that destroy ed his ow n liability in br inging about the char g es. Appellants

are corr ect that g ener ally a person cannot procur e a criminal prosec ution when the decision whether
to prosec ute is left to the discretion of another beca use the independe nt ex erc ise of discretion destroy s the nece ssary causa l link betwee n the defe ndant and the prosec ution. See id

. T h er e are ,

11howeve r, two important exceptions to this rule wher e a defe ndant may still be liable for ma licious

prosec ution beca

u s e h is a c ti ons are such that it makes an intelligent exercise of discretion im p o s s ib le : ( 1 ) w h e n a d e f

e n d a n t p r o v id e s in f

o r ma ti o n w h ic h h e k

n o w s is f a ls e th a t c a u s e s a c r im in a l prosec ution,

or (2) when a defe ndant’s conduct was t h e deter mining fac tor in the prosec utor’s decision to
prosec ute. See id. at 292–94. We conclude there is leg ally sufficie nt evidenc e to support the jury ’s finding of ca

usation under both exceptions.

1. Legally suf

fi cien t e v id e nc e Be nn e t t pr o c ured Gr ant’s prosecutions by providin g fal se inf orm ation. The first exception is when a defe ndant provides information which he knows is false that cause s a criminal prosec ution. See id

. at 293. For this exception, the plaintiff must prove both that the defe ndant knowing ly furnished false information to authorities, and that but f or such false information, the prosec utor would not have decide d to prosec ute. King v. Graham , 126 S.W .3d 75,
76 (Tex. 2 0 0 3 ). T he prosec utor’s relianc e on the false information makes an intelligent exercise of discretion impossibl e and establishes the causa l link nece ssary to hold the defe ndant liable for malicious prosec ution. See id

. at 78. But, if the decision to prosec ute would have been made with or without the false information, the def en d an t d id not cause the prosec ution by supply ing false information. A single prosec ution may , howeve r, be procur ed by more than one person. Lieck , 881 S.W .2d at 292.

Appellants challeng e only the leg al s u ff i ci ency of the jury ’s finding that Be nnett
procur ed Gra

nt’s prosec ution. A party challeng ing the leg al sufficie ncy of the evidenc e supporting an adve rse f

inding on a

n issue for whic h the opposing party bear s the burden of proof will prevail

12if there is a complete absenc e of evidenc e of a vit al fact o r if the evidence offer ed to prove a vital

fac t is no more than a scintilla. See W aste Mgmt. of Tex., Inc. v. Texas Disposal Sys. Landfil l, Inc.,
No. 12-0522-CV, 2014 WL 1875637, at *8 (Tex. May 9, 2014); City of Keller v. W

ilson , 168 S.W .3d 802, 810 (Tex. 2005). More than a scintilla exis ts when t h e ev i d en ce as a whole rises to a level

e n a b li n g r e a s o n a

b le a n d f a ir

- mi n d e d p e o p le to h a

v e d if f e r e n t c o n c lu s io n s . M

e r r e ll D o w P

h a r m s
. , I n c
.

v. Havne r , 953 S.W .2d 706, 711 (Tex. 1997). I n conducting a leg al-suff iciency revie w, we consider the evidence in the l ight mos t favor able to the j udg ment, cre diting evidence that a reasonable fac t finder could have considere d favor able and disreg arding unfavor able evidenc e unless the rea sonable fac t finder could not. City of Keller , 168 S.W .3d at 807. We indulge ever y rea sonable infere nce that supports the jury ’s finding s. Id. at 822. There fore , we must uphold the jury ’s verdic t unless—afte r

v i ew i n g t h e evidenc e in the light most favor able to the jury ’s verdic t and disreg arding contra ry evidenc e unless a rea sonable jury could not—there is no more than a scintilla of evidenc e to support the finding of proc ureme nt.

Reviewing the evidenc e in the light most favor able to the jury ’s verdic t, the Nava rro County district attorney believed Be nnett’s claims wer e barr ed by limit ations and would never have broug ht this case befor e the g rand jury but for Be nnett chang ing his story to add an additional claim of ex tortion occur

ring within the limi tations period. As Gra nt testified this was a fa lse alleg ation,

we will assume—for purposes of our analy sis—that the alleg ation was false, and there is more than sufficie nt evidenc e that the false alleg ation was the but-for cause of the prosec utor prese nting the

case to the g rand jury

. Traditionally , howeve r, the tort of malicious prosec ution does not arise until
p ro ce s s is issued, an indictment is returne d, information filed, or the acc used is arr ested. S ee Restatement (Second) of Torts § 654 (1 9 7 7 ). Her e, there is no evidenc e in the rec ord that any of

13these events occur red with reg ard to this first proce eding befor e the g ran d j u ry o r that Gra nt was

awa re of or suffe red damag es from this proce eding

. Acc ording ly , the bulk of our ana ly sis must focus on the second prese ntment of th e ca s e to the g rand jury by the specia l prosec utor, which ultimately

resulted in two indictments and Gr ant’s ar rest. Viewing the evidenc e re g arding the sec ond g rand jury

proce eding in the light most favor able to the verdic t, we conclude there was more than a scintilla of evidenc e to support the jury ’s f in d in g th a t B e n n e tt p r o c u

r e d th e p r o s e c u ti o n . T h e s p e c ia l p r o s e c u to r a c k n o w le d g e d in h is te s ti mo ny that Be nnett’s statements wer e “def initely

. . . very materia l” to his decision to proce ed to the g rand jury

. He further acknowle dg ed that i f h e h ad believed Be nnett’s s tatements were untruthful, then he “would not have prese nted” the case to the g rand jury

. Assuming Be nnett’s statements wer e false, the specia l prosec utor’s testimony provides more than a scint i l l a of evidenc e that Be nnett was a

nece ssary and sufficie nt cause of the p ro s ecution. Compare King , 126 S.W .3d at 79 (holding insufficient evidence of causation wher e “[ n]ot hing in the record shows that the false information

was materia l to the decision to prosec ute”)

. Fur ther, there was additional evidenc e that the specia l
prosec utor relied on the transcr ipt that Be nnett had g iven him alleg edly transcr ibing secr etly -tape d

conver sations with Gra

nt. Fr om the rec ord, t h ere was sufficie nt evidenc e for the jury to infer that Be nnett had fabr icated this evidenc e and that it wa s a materia l c ause of the prosec ution, a s the specia l prosec utor testified t hat t he transcript substant i at ed Be nnett’s claim that Gra nt had sought $5,000 from him.

For leg al sufficie ncy revie w, we consider the evidenc e in the light most favor able to the judgme nt, cre diting evidenc e that a rea sonable fac t finder could have considere d favor able and

14d i s reg arding unfavor able evidenc e unless a rea sonable fac t finder could not. See City o f K el l er , 168 S.W .3d at 827. We note here the specia l prosec utor testified that—in addition to the information provided by Be nnett—he also relied on Gra nt’s sworn testimony from Be nnett’s prior criminal trial for cattle t h ef

t

. At that trial, the s pecia l prosec utor testified Grant purportedly admitted making a phone call to Roge rs seeking money for the pictures but alleg ed he was only “joking .” The specia l 8
prosec utor testified that in his opinion Gra nt “tried to cover himself” by alleg ing that it was a joke, and when asked whether he would have prosecute d based solely on this tes t i m o n y , he responded:

“ I t h ink so , beca

use the fac t is that he admitted making the calls.” (empha sis added)

. W h en a
prosec utor relies on evidenc e indep en d ent of the false information provided by the defendant, the defe ndant “ca

nnot be said to have cause d the prosec ution if the [false] information was immaterial
to the decision to prosec ute.” King , 126 S.W .3d at 78. The specia l prosec utor, howev er , had previously acknow ledg ed that Be nnett’s evidenc e was d ef i nitely very materia l to his decision to
prosec ute and that he would not have prese nted the case if he had thought Be nnett was providing false inf ormation. 9

The transcr ipt from Gra

nt’s sworn testimony is not in the rec ord. Gra nt advanc ed the same 8 theory of innocenc e at this tr i al

. Fo r p u rposes of the malicious prosec ution claim, the jury found Gra nt innocent of B ennett’s a lleg ations. The specia l prose cu t o r als o testified that he relied on Roge rs’ statement that Gra nt had 9 telephoned him and acknow le dg ed attempting to sell the photos to Be nnett. At trial, Be nnett testified that Roge rs “wa s in on th e ef forts to g et [Grant] char g ed.” Roge rs is descr ibed in the rec ord as Be nnett’s best friend and an employ ee of the Bonha m Corporation. At trial, Gra nt denied Roge rs’ acc usations, and the jury was fre e to disbelieve his testimony

. The Texas Supreme Court has i nstructed that “[j] ust as there may be more than one proxi mate cause of an event, a single prosec ution may be procur ed by more than one person.” Browning-Ferris Indus., Inc. v. Lieck , 881 S.W .2d 288, 292 (Tex. 1994). The fac t that Roge rs may al s o b e liable for procur ing Gra nt’s prosec ution does not neg ate B ennett’s own liability

. 15To the extent there is any conflict in the specia l prosec utor’s testimony as to the cause

of t he prosecution, causa tion is g ener ally a question of fact for the j ury , see Rodriguez v. Moe rbe , 963 S.W .2d 808, 818–19 (Tex

. Ap p . — San Antonio 1998, pet. denied) , and there is more than a scintilla of evidenc e to support the jury ’s fac t finding that Be nnett’s false information was a

nece ssary and sufficie nt cause of the prosec ution. Fur ther, t h e j u ry was entitled to resolve any conflicts in the specia l prosec utor’s testimony and could choose to believe or disbelieve all or part of his testimony

. See McG alliard v. Kuhlmann , 722 S.W .2d 694, 697 (Tex. 1986) (jury may “re solve inconsistencies in the testimony of any witness”); see also City of Keller , 168 S.W .3d at 819 (“Jurors

ar e the sole judge s of the cre dibilit y of the witnesses and the weig ht to g ive their testimony

. . . . Reviewing courts cannot impose their own opinions to the contra ry .”). Consequently , we conclude

a reas o nable jury could find that the false information provided by Be nnett was a nece ssary and sufficie nt cause of Gra

nt’s prosec ution and disreg ard any contrary ev i d en ce. After revie wing the evidenc e under the appropr iate standard, we conclude there is leg ally sufficie nt evidenc e to support the jury ’s finding that Be nnett procur ed Gra nt’s criminal prosec ution b y providing false information.

2. Legally suf

fi cient evidence Bennett procured Gr ant’s prosecution by other im proper conduct. The second exception in which a defe ndant may be liable for malicious prosec ution is “whe n his co nduct is the deter mining fac tor in the prosec utor’s decision to prosec ute.” See 1 0

Appellants contend this is not a rec og nized exception under Texas law. We disag ree . I n 1 0 acc ordanc e with the Restatement of Torts, the Texas Supreme Court has stated that a defe ndant may procur e a prosec ution “not only when he g ives information he knows is false to a prosec utor, but also when his conduct is the determini ng fac tor in the prosecutor’s decision to prosec ute.” BrowningFerris Indus., Inc. v. Lieck , 881 S.W .2d 288, 294 (Tex. 1994) (citing Restatement (Second) of Torts

16Lieck , 881 S.W .2d at 294. For this exception to be applicable , it must “appe ar that [t he defe ndant’s]

desire to have t h e proce eding s initiated, expressed by direc tion, reque st or pressure of any kind,

was the deter

mining fac tor in the officia l’s decision to commence the prose cu t i o n . ” Id

. (quoting
Re s ta te me n t ( Se c o n d ) T o r

ts § 6 5 3 ( 1 9 7 7 ) )

. T h e T e xa s Su p r e me Co u

r t in 1 9 9 4 a d o p te d th is e xc e p ti o n
set out in the Restatement of Torts. See id

. We note, howeve r, that the parties have not cited to, and

we have not found, any Texas case that has deter mined what ty

pe of conduct woul d constitute “proc ureme nt” under this e x ception. See Michol O’Connor, O’Connor’s Texas Ca uses of Action, ch. 19-A, at 572 (2014) (“N o Texas court has deter mined what ty

pe of conduct, other than providing false information, would constitute procur ement.”)

. After car eful revie w of the rec ord in this case ,

we conclude this is the rar e case wher e the defe ndant eng ag ed in such an intentional and sy stematic abuse of the justice sy stem that there was sufficie nt evidenc e his conduct was the deter mining fac tor in the prosec ution.

As there are no examples under Texas case law, we will draw upon the Restatement it s e lf f o r g u id a n c e . T h e Re s ta

te me n t p r o v id e s th e f

o ll o w in g e xa

mp le a s il lu s tr a

ti o n o f th is e xc e p ti o n :

A g oes to B, a district attorney and informs him that C h as co mmitt ed a battery upon A. A is a political boss to whom B owes his elec tion. A demands that B prosec ute C. The battery is one that has cr eate d no public disturbance and is there fore an o ffe nse for which a public prosec utor would not ordinarily instit ute proce eding s. I n compliance with A ’s demand, B files an infor mation a g ainst C. A has proc ured the instit ution of the proce eding

.

§ 653 (1977)) ; see also T u r n er v. Roadway Express, Inc ., 911 S.W .2d 224, 226 (Tex. App.

— For t Worth 1995, writ denied) (r ec og nizi ng Texas Supreme Court’s holding in Lieck that malicious prosec ution may occur when either a person g ives false information to authorities or when a person’ s conduct wa s determining fac tor in decision to prosec ute). 17Restatement (Second) Torts § 653 (1977). I n the example, the defe ndant procur ed the prosec ution

by exerting improper pressure on the district attorney to bring char g es that ordinarily would not have been filed. Simi larly , in this case , there is leg ally sufficie nt evidenc e in the rec ord that Gra nt would not have be en prosec uted but f or Be nnett’s acknow ledg ed and sy stematic ca mpaig n to improperly influence the proce eding s. First, the Nava rro County district attorney tes t i fi ed emphatica lly that althoug h he had the authority to file an informati o n ch arging Gra nt with misdemeanor attempted theft, he “dug in his heels” and steadfa stly ref used to press char g es ag ainst Gr an t beca use of the
statute of limit ati o ns and beca use he believed Be nnett had been tailoring the fac ts to cre ate a char g eable offe nse. Only afte r immense pre ssure fr om Be nnett and some altering of the fa cts, did the d i s t ri ct attorney finally y ield and ag ree to bring the misdemeanor case befor e the g rand jury

. He testified, howeve r, that ordinarily he would not have presen t ed t h i s m isdemeanor case to the
gra nd jury but only did so beca use of Be nnett’s uncea sing demands. L ike the example in th e Restatem en t , this proce eding befor e the g rand jury would never have occur red but for Be nnett exerting such pressure on the district attorney that his desire to have the proce eding commence d was the deter mining fa ctor in the district attorne y ’s dec ision to prosecute. After the g rand jury ref

used to indict, Be nnett—undeter red in his go al o f having
Gra nt imprisoned—then org anized and led an extraordinary petition campa ign to put in place a hand-pic ked specia l prosec uto r t o i n d i ct Gra nt. At a time when the district attorney was fac ing a heavily -conte sted elec tion, Be nnett then came to the district attorney ’s o ffice with the petitions d e ma n d in g th e a

p p o in tm e n t o f h is s p e c ia l p r o s e c u to r to th e c a s e . F e e li n g B e nn e tt ’ s p e ti ti o n c a mp a ig n “wa sn’t helping ” his chanc es of ree lection, the district attorney ag ain y ielded to Be nnett’s demands.
Her e, like the example in the Restatement, Gra nt’s second prosec ution was a proce eding that would
18have never occur red but for Be nnett’s exertion of u ntoward pressure on the district attorney

. Undoubtedly , there is more than a scintilla of evidenc e that Be nnett’s acknow ledg ed and sy stematic
campa ign to impro p e r ly in f lu e n c e ju d ic ial proce eding s was the deter mining fac tor in the prosec ution.
Acc ording ly , we conclude there is leg ally sufficie nt evidenc e that Be nnett procur ed
Gra nt’s prosec ution by either providing false information to au t h o ri t ies or by eng ag ing in such a
sy stematic and untoward campa ign to influence judicial proce eding s that his co n duct was the deter mining fa ctor in the prose cution.

CORP ORATE LIAB ILITY Having found sufficie nt evidenc e of Be nnett’s liability in this s u it, we next addre ss Bo n h am’s liability

. Wit h reg ard to Bonha m, the jury made sever al alterna te finding s imputing corpor ate liability on Bonha m for the malicious prosec ution. First, under the malicious
prosec ution question, the jury found that both Be nnett and Bonha m—throug h an ag ent—had maliciously prosec uted Gra nt. Second, the jury found that Be nnett was actin g i n his capa city as

a vice- principal of Bonham wh en he maliciously prosec uted Gra nt. Finally , the jury found that Bonha m was responsible for Be nnett’s conduct under a “re verse -pierci n g” theory of liability

. I n
two individual issues, Bonha m contests its liability , arg uing: (1) that it was improperly joined as a party to the suit and (2) ther e is no evidenc e to support the jury ’s finding s of cor porate liability

.

A. Joind er

I n its first individual issue, Bonha m contends that it was improperly joined as a party
to this suit. A trial court is g iven a g rea t deal of discretion in matters of joinder, and its decision on

19s u c h p r o c e d u r a l is s u e s w il l n o t b e d is tu

r b e d o n a p p e a l a b s e n t a n a b u s e o f d is c r e ti o n . V

a r m e v
. G o r d o n , 881 S.W .2d 877, 882 (Tex. App.—Houston [14t h Dist.] 1994, writ denied)

. A trial court abuses its discretion when it has acte d in an unrea sonable or arbitra ry manner , or when it acts without ref ere nce
to any g uiding principle. Coburn v. Moreland , 433 S.W .3d 809, 823 (Tex. App.—Austin 2014, no pet.). A trial court’s decision on the matter of the joinder of an additional party is “g ener ally based

on prac tical considerations with a view to fair, order ly and timely prosec ution and disposal of pending litiga t i o n .” Fireman’s Fund Ins. Co. v. McD aniel , 327 S.W .2d 358, 373 (Tex. Civ. App.—B eaumont 1959, no wr it).

Bonha m’s misjoi n d er cl aim nece ssitates a brief revie w of this case ’s proce dural history

. This suit was originally i n i t iated by Be nnett—the pl aintiff in this suit—filing an orig inal petition suing Gra

nt for slander. I n his orig inal answe r, Gra n t as s erte d a counter claim ag ainst
Be nnett for intentional infliction of emotional dis t re ss. L ater , in an amende d pleading , Gra nt added Bonha

m as an additional counter -def endant t o h i s i ntentional infliction of emotional distress claim

. Up o n reque st of t he trial court, Grant t hen filed a mot ion seeking leave to include Bonha m in the suit. Gra

nt’s motion for leave soug ht to add Bonha m as a party to the suit on the
g rounds that Bonha

m was Be nnett’s alter eg o, and his claims of intentional inf liction of emotional distress ag ainst both Be nnett and Bon ham “arose from the s ame transaction, occurre nce, or series of transac tions or occur

renc es . . . and the questions of law and fac t in this case are common to both [ Be n n ett and Bonha

m] .” After a hear ing, the trial court g rante d the motion without stat i n g t h e
g r o u n d s f o r th e jo in d e r a

n d o r d e r e d G r a

n t to s e r v e B o nh a m w it h p r o c e s s . A f

te r b e in g s e r

v e d , B o nh a

m

answe red as a party to the suit without further objection. L ater , afte r Bonha m had enter ed an

20appea

ranc e in the suit, Gra

nt ag ain amende d his pleading s to add—af ter his indic t m en t s wer e expunged—a

n additional counter claim ag ainst Be nnett and Bonha m for malicious pro s ecution. Bonha m answer ed the malicious prose cution claim without objection.
On appea l, howeve r, Bonha m contends it was improperly joined in the lawsuit under Texas Rule of Civil Procedur e 38. See Tex. R. Civ. P. 38. Rule 38 provides that a defe ndant may bring in a third party

to a suit if tha t pe rson is or may be liable to him or the plaintiff for all or part of t he plainti ff’ s claim aga inst him. Id

. A t hird-par ty acti o n u n der Rule 38 is not an independent

cause of action but is deriva tive of the plaintiff’s claim. Id .; see I n re Sev en-O

Corp ., 289 S.W .3d 384, 390 (Tex. App.—Waco 2009, orig

. proce eding [m and. denied]). Her e, we ag ree with Bonha m that Gra nt’s claim asser

ting an independe nt cause of action ag ainst i t fo r intentional infliction of emotional distress was not a third-par ty claim as contemplated by Rule 38. Gra nt did not asser

t—as Rule 38 require s—that Bonha m was liable for all or p ar t o f Be n n ett’s slander claim ag ainst him. Rather, Gra

nt soug ht to join Bonha

m as an additional party to his counter claim seeking aff irmative relief for intentional infliction of emotional distress.
We cannot, howeve r, conclude that Bonha m has proven the trial court abused its discretion by allowing the joinder beca use our rules of civil proce dure otherwise permit the joinder of a non- party

to a previously filed counterclaim. Texas Rule of C ivil P roce dure 97 pr ovides that addit i o n al p er sons—other t han thos e made parties to the original action—may be made parties to
a counte rcla im in accor dance with the provisions of Rule 39 (“Joinder of Persons Ne eded f or Jus t Adjudication” ) an d Ru l e 40 (“Per missive J oinder of Parties”)

. See Tex. R. Civ. P. 39, 40, 97(f) ; see also Tex. R. C iv. P. 37 (“Be fore a case is called to trial, additional parties necessa ry or prope r

21parties to the suit, may be broug ht in, either by the plaintiff or the defe ndant upon such terms as the

court may presc ribe.” ). Thus, non-par ties must be joined as additional defe ndants to a counter claim if in their absenc e complete relief cannot be aff orded am o n g t h e p ar t ies. See Tex. R. Civ. P. 39, 97(f)

. I n addition, the trial court has the discretion to permit the joinder of additional defe ndants to

a counter claim under the permissive joinder provisions of Rule 40. See Tex. R. Civ. P

. 4 0 (“ Al l
persons may be joined in one action as defe ndants if there is asser ted ag ainst them jointly , sever ally ,

or in the alterna tive any rig ht to relief in respe ct of or arising out of the same transac tion, occur renc e,

or series of transac tions or occur renc es and if any question of law or fac t common to all of them will arise in the action”) , 97(f) (per sons other than those made parties to the orig inal action may be made parties to a c ounterc laim in accor dance with the provisions of Rule 40). 1 1

Fur ther, we n o t e t hat once Bonha m enter ed an appea

ranc e in this suit, Gra

nt was entitled to asser

t his additional counter claim ag ain s t Bo n ham for malicious prosec ution without further service of process. See Tex. R. C iv. P. 97(b), 124. Under these circumstance s, we cannot conclude —nor has Bonha m proven—tha t the trial court abused its discretion by permitting the joinder. See Varme , 881 S.W .2d at 883 (“We emphasize that the trial court is g iven g rea t discretion over joinder

questions.”). Ac cording ly , we ove rrule B onham’s joinder a rg uments. 1 2

On rehear ing, the Appellants contend they had no notice that Gra n t was seeking to join 1 1 Bonha m under permissive venue. Gra nt’s motion for leave soug ht to add Bonha m as a party to his counter claim and tra cked the lang uag e of the permissive joinder r ule. See Tex. R. C iv. P. 40. B o n h a m h in ts in it s b r i e f t

h a t “ G r a n t ’ s c l a i m s a g a in s t th e Co r

p o r a ti o n w e r e th in ly v e il e d

— y e t 1 2 u lt im a te ly s u c c e s s f

u l— e f f o r ts to a v o id li mi ta

ti o n s . ” T h e s ta

tu te o f li mi ta

ti o n s is s u e w a s n o t s u

b mi tt e d in the jury char g e, and Bonha m does not asser

t in an issue on appea l that the evidenc e conclusively proves Gra

nt’s claims wer e barr ed by limit ations. Nor does Bonha m appea l any ruling it soug ht with sufficie nt specific ity to make the trial court awa re of its limit ations complaint. We need not addre ss the merits of the limitations issue. 22B. Corporat e Liabil ity
I n its second individu al i s s u e, Bo n h am contends there is no evidenc e to support the jury ’s findin g o f corporate liability

. Corporations can act only throug h human ag ents, and when “ac tions are taken by a vice- principa l of a corpor ation, those acts may be deeme d to be the acts of the corpor ation itself.” See G TE Sw., Inc. v. Bruc e , 998 S.W .2d 605, 618 (Tex. 1999); see also Qwest Int’l Commc’ns, Inc. v. AT& T Corp. , 167 S.W .3d 324, 326 (Tex. 2005) (cor poration is liable for exemplary damag es if it acts with malice throug h the actions of a v i ce -p ri ncipal). A
corpor ation, howeve r, cannot be liable for damag es “if th e v i ce -p rincipal’s misconduct occur red while he was acting in a persona l capa city unrela ted to his authority as a corpor ate vice- principal.”
Benne tt I , 315 S. W

. 3 d at 8 8 4

. A vice- principal of a corpor ation is a person who “re prese nts the
corpor ation in its corpor ate capa city , and includes persons who have authority to employ , direc t, and discharg e serva

nts of the master, and those to whom a master has confide d the manag ement of the whole or a

division of his busi ness.” Id . at 883. Reg a r d in g B e n n e tt ’ s r e la

ti o n s h ip w it

h B o nham, the Texas Supreme Court in Benne tt I conclude d that Be nnett was “indisputably a vice- principal of the Bonha m Corporation, he was most l i k ely the only vice- principal and the only person whose conduct and decisions could subj ec t t h e
corpor ation to exemplary damag es.” Id. at 884. I n this case, similar evide nce w as pre sented that, althoug h Bonha

m was putatively owned by Be nnett’s daug hters, the daug hters had no control over the corpor ation and rec eived no profi ts , a n d B e nnett himself exclusively controlled and profited from Bonha m. Be nnett testified that he did not own a home or a vehicle and did not have a bank acc ount b u t l i v ed rent-f

ree in a home owned by Bonha m, drove Bonham vehicles, and “did whatever [ he]

23wanted to with the corpor ation bank acc ount.” On this rec ord, Bonha m conce des that Be nnett was indisputably a v i ce -principa l of Bonha m. I nstead, Bonha

m arg ues only that there is insufficient evidenc e to suppor

t the jury ’s finding that Be nnett was acting in his capa city as a vice- principal of Bonha m when he ma liciously

prosec uted Gra

nt.
I n its brief, Bonha

m attempts to distingui s h t h i s case from Benne tt I , in which the
Texas Supreme Court found t here was “ample evidence” that Be nnett was acting in h i s co rp o ra t e
capa city when he conver

ted Rey nolds’ cattle using “cor

porate authority over corpor ate employ ees,

on corpor ate land, [and] using corpor ate equipment.” Id

. at 885. Bonha m arg ues in its brief that in
contra st to Benne tt I

, “the instant case does not involve the use of corpor ate proper ty or the exercise of corpor ate privileg es to acc omplish the underly ing tort.” We conclude , howeve r, that in this case there is, ag ain, more tha

n ample evide nce to impar t corpora te liability

on Bonha

m. Reviewing the rec ord, Be nnett’s malicious prosec ution of Gra nt involved sever al

course s of conduct that implicate Bonha m. First, Be nnett contac ted an attorney who had an ong oing attorney -client rela

tionship with Bonha

m and direc ted him to rese arc h whether Gra nt’s alleg ed actions constituted a criminal offe nse. The attorney then draf ted a brief based on his leg al rese arc h advocating that Gra

nt be char g ed with attempted t heft. The brief was sent to the Nava rro district attorney and descr ibed as a “c at al y s t ” i n t he district attorney ’s decision to bring the case befor e a
g rand jury

. This same attorney was a lso pivotal in l ater advising Be nnett to seek the appointment of a specia l prosec utor to the case and then draf ted the petition acc using the Nava rro County district attorney of bias. The attorney testified at trial that he had an ong oing at t o rn ey -client rela tionship

24with Bonha m since 1982. When asked whether he had ever done any persona l work for Be nnett, the attorney answe red: “I don’t reme mber ever doing any thing for Mr. Be nnett except a will one time.”
Be nnett’ s ma li c io u s p r o s e c u ti o n o f G r a n t w a s f u r th e r a c c omplished by trave ling many miles in a Bonha

m vehicle to meet with officia ls in four differ ent counties to have Gra nt prosec uted.
Be nnett testified at trial that he did not own a vehicle and ackn o wledg ed that he used Bonha m vehicles to acc omplish this phase of the malicious prosec ution. When asked whether he ever used Bonha m’s v eh i cles for persona l use, Be nnett responde d “I don’t have much persona l business.”
Be nnett’s lack of personal b u s i n es s was further exemplified when he testified that he direc ted a Bonha m em p l oy ee to ty

pe a transcr ipt of his alleg ed secr etly -tape d conver sation with Gra nt. He then testified that he prese nted this ty ped transcr ipt to law enfor ceme nt in his attempts to prosec ute G r a n t. T h e e mp lo y e e w h o ty

p e d th e tr a n s c r ip t s e r v e d a s B o nh a

m’ s c o r p o r a te r e p r e s e n ta

ti v e a t tr ia l. ” 13 Viewing the fore g oing evidenc e in the light most favor able to the jury ’s verdic t, we conclude there is more than a scintilla of evidenc e to support t he jury ’s finding that Be nnett was acting in his capac ity

as a vic e-pr incipal of B onham when he maliciously prosec uted Gra

nt. We 1 4

overr ule B onham’s individual issues on appea l.

We also n o t e t h at the Nava rro County district attorney testified that he had formed the 1 3 impression that Be nnett was attempting to prosec ute Gra nt in order to influence civil litigation arising from this case . The jury further hear d testimony that Gra nt was the “star witness” in the Rey nolds’ civil suit ag ainst both Bonha m and Be nnett, which eventually resulted in a $1 milli on punitive damag es aw ard a g ainst Bonham.

The jury alterna tively found that Bonha m was liable for Be nnett’s malicious prosec ution 1 4 of Gra nt based on a g ency and reverse -pierc ing theories. We do not addre ss Bonha m’s challeng es to these finding s, as we have alre ady conclude d there was sufficie nt evidenc e to impart corpor ate liability on Bonha

m as a vice -principa l. 25DAMA GES After finding Be nnett and the Bonha m Corpora t i o n maliciously prosec uted Gra nt, the jury found Gra

nt was entitled to t h e fo l l o wing damag es: $5,000 in mental ang uish damag es; $60,000 in attorney s’ fee s incurre d defe nding the malicious pros ecution; $1 milli on in punitive damag es awa

rded ag ainst Be nnett; and another $1 milli on in punitive damag es awa rded ag ainst the Bonha m Corporation. The trial court’s final judgme nt reduc ed the awa rd of compensa tory damag es
to $10,703 but awa

rded Gra nt, in acc ordanc e with the jury ’s verdic t, $2 milli on in punitive damag es. Appe llants challeng e the entire awa rd. We will beg in by revie wing the compensa tory damag es

awa rded to Gra

nt, which are comprised of $5,000 for mental ang uish damag es and $ 5 ,703 in attorney s’ fe es.

A. Mental Anguish

Appellants first contend there is no evidenc e to support the trial court’s awa rd of $5,000 in mental ang uish damag es. Although Gra nt was indicted and arr ested as a result of their malicious prosec ution, Appellants challenge t he mental ang uish damag es contending there is insufficient evidenc e Gr an t suffe red the “hig h deg ree of mental pain and distress nece ssary for
compensa ble mental ang uish.” To support an awa rd of mental ang uish damag es, there must be both evidenc e of the exis tence of compensa ble mental ang uish damages and evidenc e to justify the
amount awa

rded. Hancoc k v. V

a r i ya m , 4 00 S.W .3d 59, 68 (Tex. 2013). Mental anguish is only
compensa ble if it cause s a “substantial disruption in daily routine” or “a high deg ree of mental pain and distress.” Id. ; Parkway Co. v. W oodruff , 901 S.W .2d 434, 444 (Tex. 1995).

26Regar d i n g Gra nt’s mental ang uish damag es, Gra nt testified that—long befor e his in d ic tm e n t—

h e “ k n e w B e n n e tt w o u ld c o me a f te r [h im ]” f

o r tu r n in g h is p h o to s o v e r to th e a u th o r it ie s . Fe arf ul “for [hi s] life and [hi s] family ,” Gra nt testified he moved four times in an eff ort to keep his family safe from Be nnett. Eac h time he would move, howeve r, Gra nt te stified that Be nnett would show up at depositions with his tape rec order and pencil in hand to rec ord Gra nt’s new addre ss. At

one such deposition taken prior to his indictment, Gra nt testified that he hear d Be nnett avow that “he would see me g o to the penitentiary .” He further testified that he was awa re of other instances when
Be nnett “had seen that people went to prison” and believed Be nnett was “fully capa ble of seeing that [he] went to prison.” After h ea ri n g Be n n ett ’s testimony that it was his g oal to put him in prison,
Gra nt testified he was fea

rful to leave home and would lock himself in his house to protec t his fa m i l y . When Gra

nt was finally indicted, his lawy er informed him he had been char g ed wi t h a felony and wa s fac ing pr ison tim e. Gra nt a nd his mother then drove the three and half hours from
Co le ma n , T e xa s , w

h e r e h e li v e d , to Co r s ic a

n a , T e xa s , w h e r e h e h a d b e e n in d ic te d

. G r a n t s u r r e n d e r e d himself to the authorities in Corsicana and was rele ased th at d ay o n a s u rety bond posted by his mother. For the next nine months, the char g es rema ined pending ag ainst Gra nt. Gra nt testified that he worrie d how his family would be taken car e of if he went to prison and that he was afr aid to leave his f amily alone. He further

testified that as a

result of wor

ry ing a bout what B ennett wa s g oing to do, “I would have bad heada ches, wea k stomach, couldn’t eat, couldn’t sleep.” Gra nt a dditionally testified that the experience aff ecte d his mental state as he went from being “a happy -go -l ucky ”
person to fee ling like a “complete ly differ ent person” who strug g led with self-e steem and distanced himself from friends and family

. Gra nt’s siste r co n fi rmed that she noticed a chang e in Gra nt’s demea nor, testify ing that her brother “just closed himself and sequester ed himself from ever y one.”
27Ba sed on the fore g oing, we conclude there is sufficie nt evidenc e to support the jury ’s

f in d in g th a t G r a n t s u f f e r e d th e d e g

r e e o f me n ta l p a in a

n d d is tr e s s th a

t w il l s u p p o r t a n a w a r d o f me n ta l
ang uish damag es and that the awa rd of $5,000 was well within the rang e supported by the evidenc e.

B. Attor neys’ F ees

When a defe ndant has cause d attorney s’ fee s to be incurre d in defe nse of a criminal char g e which was maliciously prosec uted, attorney s’ fee s in defe nding the prior criminal char g e are

rec overa ble in the malicious prosec ution suit as damag es
. See IBP, Inc. v. Klumpe , 101 S.W .3d 461,
478 (Tex. App.

—

A ma r il lo 2001, pet. denied)

. Her e, Gra nt was char g ed with two felonies: attempted b r ib e r y a n d ta mp e r in g w it

h a w it n e s s . I n h is p le a d in g s a

n d a t tr ia l, h o w e v e r , G r a

n t s u e d f o r ma li c io u s
prosec ution ba sed on the attempted bribery char g e only

. Wit h reg ard to r ecove ring attorney s’ fee s for the malicious prosec ution as damag es, Gr an t ’s att orney testified at trial that Gra nt incurre d $6,003.19 in attorne y s ’ fee s for defe nding ag ainst both char g es, but that 95% of the work—or $5,703—would have been n ec es s ary for defe nding the attempted bribery char g e alone. The jury , howeve r, found Gra

nt incurre d $60,000 in rea sonable and nece ssary attorney s’ fee s defe nding
ag ainst the malicious prosec ution. The trial court, in acc ordanc e with Gra nt’s voluntary remittitur, reduc ed this amount to $5,703 to confor m to the evidenc e at trial. Appellants never theless contend there is insufficient evidenc e to support the amount of a ttorney s’ fe es aw arde d as dama g es.

Appellants do not challeng e the rea sonablene ss of the fee s. Rather, they arg ue only that a “rea sonable fact-f

inder could not have .

. . all o ca t ed 95 perc ent of the fees i ncurr ed on both char g es solely to attempted bribery .” We disa g ree . Submit ting to the jury an attorney ’s testimony

conce rning the perc entag e of hours rela ting to specific claims—eve n a perc entag e a high as 95%—is

28sufficie nt to satisfy a party ’s burden to seg reg ate its attorney s’ fee s. See Tony Gullo Motors I, L.P.

v. Chapa , 212 S.W .3d 299, 3 1 4 (T ex . 2 006) (“a n opinion would have suffice d stating that, for example, 95 perc ent of their draf ting t i m e wo u l d h ave been nece ssary even if there had been no [non-recove rable ] cl ai m”). Fur ther, to the extent attorney s’ fee s “would have been incurre d on a

rec overa ble claim alone, they are not disallowed simply beca use they do double service ” with a

non-re cover able claim. See id

. at 313. Gra nt’s indictments wer e based on the same fac ts and he

asser ted the same defe nse of limitations to bot h char g es. His attorne y testified that the leg al work perf ormed for both char g es was essentially the same, as he draf ted the same motions, conducte d the

same discovery , and attended the same hear ings and meeting s for both char g es. As such, the attorney testified “that 95% of the work that was require d on those two char g es would’ve been nece ssary on just the attempted bribery char g e itself alone.

. . . I would have done the same work on the attempted bribery char g e even if there hadn’t been the attempted tampering with a witness char g e.” As there

was sufficie nt evidenc e that Gra nt would have incurre d $5,703 in attorney s’ fee s on the bribery char g e alone, we conclude there is sufficie nt evid en ce to support the damag es awa rd. Finding sufficie nt evidenc e to support the award of ac t ual damage s, we overrule Appellants’ second issue
on appea l.

C. Exem plary Dam ages Cap

The Texas Civil Practice and Remedies C o d e l i m its the maxi mum amount of exemplary damag es a trial court can awa rd. See Tex. Civ. Prac. & Rem. Code § 41.008(b). The cap, ho we v er, does not apply when a plaintiff seeks rec overy of exemplary damag es based on cer tain felony crimi nal conduct enumer ated under the statute, i.e., cap- busting conduct. Id

. § 41.008(c)

.
29One such felony cap- busting exception

— d ef i n ed under Penal Code § 32.46—is when a person, with th e intent to defr aud or harm any person, by dece ption cause s another to sign or execute
any document aff

ecting the pecunia

ry interest of any person in the amount of $ 1 , 5 00 or more. Id

. § 41.008(c) (11); see also Tex. Penal C ode § 32.46. Her e, the jury made a cap- busting finding that the Appellants, with the i ntent t o harm Grant, caused another by dece ption to sign or execute his criminal indictment for attempted bribery , and the indictment aff ecte d Gra nt’s pecunia

ry interest in the amount of $1,500 or more. Appellants contend there is leg ally insufficient evidenc e to support this finding beca

use: (1) an indictment is not a document af fe cti ng the pecunia

ry interest of any person; and ( 2) there is no evidence Be nnett cause d any one to sig n the indictment.

1. Docum ent Aff

ect ing Pe cuniary Interest Appellants first contend that indictments—as a matter of law—ar e not documents that aff ect a defe ndant’s pec uniary

interest, and the ref

ore G rant c annot qualify

for the cap- busting exception. We are not per s u aded by Appellants’ arg ument. The term “pec uniary interest” is not define d by the statute; there fore , courts have define d the term using its common meaning of having a “fina ncial stake” in a matter. See Briones v. State , 76 S.W .3d 591, 595 (Tex. App.—Corpus Christi 2002, no pet.); Goldstein v. State , 803 S.W .2d 777, 791 (Tex. App.—Dallas 1991, pet. ref ’d). Theref o re, the narr ow question prese nted is whether there is leg ally sufficie nt evidenc e of Gra nt having a fina

ncial stake in the g rand jury ’s indictment. Appellants contend that Gra nt had no financ ial stake beca use indictments as a whole

are excluded from the class of documents t hat affec t pecunia ry i n t er est s beca

use—unlike a “bank draf t, a promissory note, [or] a deed” —no monetary interest “flow[s] direc tly from the document.”

30The statute, howeve r, does not require the complainant to have a pecunia ry interest in the document itself. See Lewis v. State , No. 05-09-00299- CR, 2010 WL 4400515, at *4 (Tex. App.—Dallas Nov. 8, 2010, pet. ref’d) (not desig nated for publ ication). Rather, it require s only t h at t h e ex ecution of the document affect the pecunia ry interest of any person. See Tex. Penal Code § 32.46. Fur ther, a complainant is not require d under the statute to prove actua l pecunia ry loss. See Smith v. State , 681
S.W .2d 71, 75–76 (Tex. App.—Houston [14t h Dist.] 1983), aff’d , 722 S.W .2d 408 (Tex. Crim. App. 1986) (off

ense complete when person cause s another to execute document wi t h intent to defr aud

or harm; there is no require ment to prove resulting harm). There fore , when a person purpo s el y

uses dece ption to cause a court officia l to execute a document, the executed document may aff ect pecunia

ry interests if it subjects a pe rson to potential financ ial liability

. See F isher v. State , 803 S.W .2d 828, 830 (Tex. App.—Dallas 1991, p et

. re f’d) (sec uring issuance of citation throug h dece ption af

fe ct ed pecunia

ry interests as citation made defe ndant in suit potentially liable for monetary damag es); W

oodley v. State , No. 08-00-00470- CR, 2003 WL 550298, at * 6 (Tex

. App.—El Paso 2003, pet. ref ’d) (mem. op.) (sec uring trial court’s execution of ag ree d judgme nt that had been altere d to add new defe ndant and incre ase amount of awa rd aff ecte d pecunia

ry interests as defe ndants fac ed potential liability under a ltered judg ment). Viewing the evidenc e in the light most fa vorable to the jury ’s finding , we conclude there is more than a scintilla of evidenc e that Gra nt’s pecunia

ry or financ ial interests wer e aff ecte d by the indictment, which—on its fac e—re quired him to find a means to post a $10,000 bond or fac e immediate and indefinite imprisonment. He then was require d to obtain leg al counsel to quash the indictment, incurring an additional $5,703 in attorney s’ fee s. Fur ther, if convicted of the offe nse of

31attempted bribery , Gra nt fac ed further potent i al liability as t he offense carr ied a monetary penalty of up to $10,000. See Tex. Pena l Code §§ 12.34; 15.01; 36.02. Thus, we conclude there is le g ally sufficie nt evidenc e Gra

nt ha d a financ ial stake in the indictment, a s the execution of the document

cause d him both im mediate f inancial liability

and potential fina

ncial liability

in the future.

2. Causation Appellants next contend that Be nnett cannot be the leg al cause of Gra nt’s indictment beca use (1 ) t h e causa l link betwee n Be nnett’s actions and the indictment is too attenuate d to satisfy causa tion require ments under the Penal Code ; and (2) it is impossibl e to prove causa tion beca use “g rand jury proc ee d i ng s are secr et, so there is no way of knowing which evidenc e
persua ded the g rand jury to indict.” Criminal liability is predic ated on but-for causa tion b u t also require s consideration of the fore seea bility of the in

jur ious conseque nces of the defe ndant’s conduct.
W illiams v. State , 235 S.W .3d 742, 764–65 (Tex. Crim. App. 2007). Appel lants, rely ing on the
Texas Court of C riminal Appea ls’ discussion of causation in W illiams v. Stat e , arg ue the chain of

causa tion linking Be nnett to the indictment is too attenuated to impose criminal re sponsibili ty . I n W illiams , the Court found that a mother who left her two daug hters in a room with a lit candle under another adult’s supervision was not criminally responsible for the children’ s burning deaths beca use it was not rea sonably fore seea ble: (1) that the other adult would forg et to blow the candle out befor e falling aslee p; (2) that a sheet or clothing would then fall on the burning cand l e; an d (3) that the other adult would not be able to g et children out of the house afte r the fire started. Id

. I n this excerpt from their brief, Appellants arg ue the following is the but-for cau s al ch ai n l inking Be nnett to Gra nt’s indictment in this case :
32• If Be nnett had not aske d for a specia l prosecutor , and

• If Be nnett had not g iven the prose cutor the f acts he had g ather ed, and

• If the prosec utor had not broug ht the case to the g rand jury , and possibly ,

• If the prosec utor had not pre sented those f acts, a nd, possibly ,

• If the g rand jury

had not re lied on those fac ts, and

• If the prosec utor had not rec ommended an indictmen t o r t h e g rand jury had not disreg arde d the prosec utor’s re commendation, and

• If at least nine of

the g rand juror s had not voted to issue the indictment,

• Then Gr ant neve r would have been indicte d.
Appellants then arg ue this c ausal chain is similar to W illiams beca

use it “is too disc onnecte d from th e p u ta ti v e c a u s e to s u p p o r t a n y f in d in g ” o f c a

u s a ti o n . Wh a t A p p e ll a n ts f a il to a c c o u

n t f o r , h o w e v e r , is that the Court in W

illiams found that causa l link insufficient beca use the even t s l ea d ing to the children’ s deaths wer e “ not reasonably foreseeable .” Id

. at 765 (empha sis added)

. The fac ts of this case are much di ffe rent. The e vidence in this case ref lects t hat Bennett set out on a course of conduct to have Gra

nt indicted and was succe ssful i n t h at endea vor. I ndeed, Appellants do not
contest the jury ’s finding that Be nnett intended to harm Gra nt by causing the g rand jury to sign his indictment. I t is rea sonably fore seea ble that if Be nnett intended to put Gra nt in prison, then provided evidenc e that a rea sonable juror could infer was fabr icated or manipulated, and then led a campa ign
to have a specia l prosec utor appointed in the case —all of which is more than adequately supported by the rec ord—the end result of these eff orts would be Gra

nt’s indictment. I t is abundantly appar ent that Gra nt’s indictment was the natura l, probable and fore seea ble conseque nce of Be nnett’s actions.

33Appellants next contend that “Gr ant could not have sustained his burden to prove

causa tion beca

use it is impossibl e to show that Be nnett’s conduct was nece ssary for the indictment to issue [ g iven that] gra

nd jury proce eding s are secr et.” F irst, as we have already discussed, t here

was sufficie nt evidenc e that but for Be nnett’s ag g ressive and untoward eff orts to improperly influence the criminal justice sy stem, the case would have never been put befor e the gra n d j u ry , not once, but twice . Fur

ther, B ennett does not dispute the jury ’s finding that he used de ception to

cause the g rand jury to execute the indictment. Dec eption is define d, as “cr eating or confirming by words or conduct a false imp re s s i o n o f l aw or fac t that is likely to aff ect the judgme nt of another i n t he transac tion, and that the actor does not believe is true.” Tex. Penal Code §§ 31.01(1)( A), 32.46(d)( 1). Here, t h e s p ecia l prosec utor testified candidly that he had the following evidenc e from Be nnett—at the time he prese nted the indictments—from whic h the jury found Be nnett used dece ption to crea

te a f alse impression that wa s likely to affe ct the judg ment of anothe r: Be nnett’s
statements that Gra

nt had called try ing to sell him incriminating photos for $5,000 and a transcr ipt
f r o m B e n n e tt

— w h ic h th e ju

r y could have found was fra udulent—purportedly transcr ibing a secr etly

taped c onversa tion with Grant that substantiated Be nnett’s claim that Gra nt ha d soug ht $5,000 for the photos. The rec ord further ref l ects that Be nnett testified at the g rand jury proce eding but that
Gra nt was not prese nt. I n exact acc o rdanc e with Be nnett’s evidenc e, the g rand jury ’s indictment char g es that Gra

nt “with the specific intent to commit the offe nse of bribery , called [Bennett], with the purpose of

soliciting a br ibe of $5,000.” Under the Penal Code, “a person is criminally responsible if the result would not have occur

red but for his co n duct, opera ting either alone or concur rently with another cause ,

34unless the concur rent cause was clea

rly sufficie nt to produce the result and the conduct of the actor clea rly insufficient.” Tex. Penal Code § 6.04. Her e, Appellants do not challeng e the jury ’s finding that Be nnett used dece ption to indict Gra nt, and the alleg ations in the indictment identically mirror the evidenc e provided by Be nnett. Under this rec ord, viewed in the light most favor able to the jury ’s finding of causa tion, ther e is more than a scintilla of evidenc e in the rec ord that Be nnett’s conduct alone was sufficie nt to have cause d the indictment and to incur cr i m i n al re sponsibili ty

. See id

. Having found sufficie nt evidenc e to support the jury ’s cap- busting finding , we overr ule Appellants’ third issue on appea l.

D. Constitutionali ty of Exem plary Dam ages

Ap p el l an ts lastly attack the awa rd of exemplary damag es, contending the dual $1 milli on exemplary d amage s awa rds ag ainst Be nnett and the Bonha m Corporation violate their fede ral substantive due proce ss rig h t s . W h i le state law g overns the amount proper ly awa rded as exemplary damag es, that amount is al s o s u b ject to an ultimate fede ral constitutional chec k for exorbitancy

. Tony Gullo Motors I, 212 S.W .3d at 307. This is beca use the Due Process Clause of the Four teenth Amendment prohibits a state from imposing a “g rossly excessive” punishment on a tortfea sor. BMW of N. Am., Inc. v. Gore , 517 U.S. 559, 562 (1996). But punitive d amag es “may
proper ly be imposed to further a State’s leg itimate interests in punishing u n l aw ful conduct and d eter ring its repe tition,” and “States nece ssarily have considera ble flexibi lity in deter

min i n g t h e level of punitive damag es that they will allow in differ ent classes of case s and in any particula r case .” Id

. at 568. “Only when an awa rd can be cate g orized as g rossly excessive in rela tion to these interests does it enter the zone of arbitra riness that violates” due proce ss. Id

.

35I n this case , the State has a leg i t i mate interest in both punishing individuals who

purposely manipulate the leg al sy stem to imprison innocent persons and in de terring its re petition.
We must there fore deter

mine whether the punitive damag es awa rd in this case was g rossly excessive in rela tion to these interests. See id

. I n deter mining whether an awa

rd is excessive, the United States Supreme Court has i dentified three “guide posts” by which we must assess the constitutionalit y of the punitive damag es aw ard:

1. the deg ree of re prehe nsibili ty of the de fenda

nt’s misconduct;
2. the disparity betwee n the actua l or potential harm suffe red by the plaintiff and the punitive damag es aw ard; a nd
3. the differ ence betwee n the punitive damag es awa rded by the jury and the civil penalties a

uthorized or imposed in compara ble ca ses.

S ta te F a r m M u t. A u to

. I n s
. Co

. v
. Ca m

p b e ll , 5 3 8 U

. S. 4 0 8 , 4 1 8 ( 2 0 0 3 ) ; s e e a ls o B e n n e tt I , 3 1 5 S. W. 3 d
at 8 73. Whether a punitive damag es awa rd passes constitutional muster under this standard is a question of law that we revie w de novo. Bunton v. Bentley , 153 S.W .3d 50, 54 (Tex. 2004).

1. Repre hensib ility of Bennett’s M iscondu ct The first g uidepost , the deg ree of repr ehensibility of the defe ndant’s misconduct,
f o c u s e s o n th e “ e n o r

mi ty ” o f th e mi s c o n d

u c t a n d is “ th e mo s t im

p o r ta n t in d ic iu m o f th e r e a s o n a

b le n e s s of a punitive damag es awa rd. ” B MW of N. Am. , 517 U.S. at 575. Puniti ve damag es are not
compensa tion f

or injury ; r ather , they opera te as private fines intended to punish the de fenda nt and to deter future wrong doing. Cooper Indus., Inc . v. Leatherman Tool Grp., Inc

. , 532 U.S.424, 432 ( 2 0 0 1 )

. E xe mp la

r y d a ma g e s s h o u ld th e r e f

o r e r e f le c t th e “ e n o r

mi ty o f [t h e ] o f f e n s e . ” B M W o f N. A m
. ,
36517 U.S. at 575. I n evalua ting the enormity of a person’ s misconduct, we consider five nonexclusive

fac tors— whether :

1. The ha

rm inflicted wa s phy sical ra ther than e conomic;
2. The tortious conduct showed an indiffer ence to or rec kless disreg ard for the health or sa fety

of others;
3. The tar g et of the c onduct had f inancial vulner ability ; 4. The c onduct involved re peate d actions, not just an isolated incident; and
5. The harm resulted from intentional malice, tricker y , or dece it, as opposed to mere acc ident.

S t a t e Farm Mut. Auto. Ins. , 538 U.S. at 419. One of these repr ehensibility fac tors alone “m ay
not be sufficie nt to s u s t ai n a p u n i tive damag es awa rd; and the absenc e of all of them rende rs any

awa rd suspec t.” Id

.

a. Harm resulted from intent ional m alice, trickery

or dece it.
A p p e ll a n ts c o n c e d e t

h e r e i s e v i d e n c e th a

t G r a n t’ s in d ic tm e n t r e s u lt e d f

r o m “ in te n ti o n a l malice, tricker

y , or dece it” but arg ue that none of the other fac to rs weigh in favor of punitive damag es. We ce rtainly

ag ree with Appellants that the fifth re prehe nsibili ty fac tor weig hs in favor of punitive damag es. The jury hear d evidenc e that Be nnett’s g oal was to put Gra nt in prison to settle

a persona l vendetta and to infl u ence pending civil litigation, and that he set out on a campa ign of leg al thugg ery

—including alleg ations of ly ing, tailoring evidenc e, and even outrig ht f abric ation of evidenc e—to ensure that Gra nt was impriso n ed

. W hen Be nnett could not win at this g ame, the

37rec ord ref

lects he decide d to chang e the play ing field by ex erting political pressure on a district attorney to appoint his own hand-picke d specia l prosecutor to the case

. F u r t h e r , w h e n c o n s i d e r in g e xe mp la

r y d a ma g e s , w e ma

y e xa mi n e B e nn e tt ’ s mi s c o n d

u c t bey ond the m alicious prosec ution itself when it “demonstra tes the deliberatene ss and culpability ” of his actions and bear s “a nexus to the specific harm suffe re d ” b y Gra nt. Benne tt I

, 315 S.W .3d
at 875. Her e, Be nnett’s eff orts to manipulate the leg al sy stem to imprison Gra nt wer e part of a larg er esca

pade desig ned to thwa

rt justice and abuse the court sy stem. We conclude the following alleg ations of m alfe asanc e may proper ly inform t he reprehe nsibili ty analy sis, as t hey demons trate the delibera teness, culpability , and motive behind Be nnett’s actions and rela te back to the underly ing malicious prosec ution: Urging Grant to Lie and Attempting to B ribe Him

. Gra nt te stified that, prior to turning his photos over to the authorities, Be nnett visited his home and urg ed him to lie about what he had seen. Gra nt’s sister testified that Be nnett then attempted to of fer Gra nt a lucra tive job unde r the g uise of helping his family afte r a car acc ident. She testified Be nnett offe red that if Gra nt “ca n come and help him for a couple of day s, he had a job that he can g et $4,000 for

. . . a couple of day s of work.” When Gra

nt had worke d for Be nnett the previous y ear , his salary was $1,100 a month. At the time Be nnett offe red this money , Gra nt was posed to be the star witness testify ing ag ainst Be nnett in his criminal trial for

cattle thef

t and in Rey

nolds’ civil suit. Threatening Grant

. When money was not enoug h to persua de Gra nt, there was evidenc e at trial that Be nnett then tried a new tactic to silence Gra nt. Gra nt’s sister testified that Be nnett called her more t han 15 times try ing to obtain Gra nt’s new contact i n fo rm at i o n. Fr ustrated that Be nnett would not stop calling , the sister provided Be nnett with her husband’s ce l l p h one number and said it was Gra

nt’s number. Be nnett testified that he then asked Roge rs to call the number. Shortly there afte r, Roge rs called the number and rea ched Gra nt’s brother- in-law. Be lieving he was speaking to Gra nt, Roge rs then—ac cording to the brother- in-law—de manded that Gra nt turn over the pictures and threa tened “if he didn’t g et the pictures, that he had a jake- leg lawy er that would obtain them” and “that he was g oing to take care of [Grant] one way or the other .” The brother-in-la w t estified that he re lay ed these threa ts to Grant.
Liti gation Against Grant

. Be ing unsucce ssful in silencing Gra nt, Be nnett then filed this suit alleg ing Gra

nt had slandere d him by say ing that he had stolen Rey nolds’ cattle and soug ht $50,000

38in damag es. The jury found ag ainst Be nnett on his slander claim, finding that Gra nt’s statement that Be nnett had stolen from Rey nolds was substantially true. I n addition to this suit, Be nnett filed—the d ay afte r Gra

nt’s criminal rec ord was expunged—a second civil lawsuit ag ainst Gra nt an d o t h er s alleg ing they had conspired to have him indicted for cattle theft. Be nnett soug ht $2 milli on dollars in compensatory

damag es, in addition to puniti ve dama g es, in that suit. 1 5 Pressuring Grant’s Attorney to Resign

. During the course of this litigation, Be nnett filed two g rieva nces ag ainst Gra

nt’s attorney that wer e dismiss ed as not alleg ing profe ssional misconduct. I n addition to the g rieva

nces, Be nnett sued Gra

nt’s lawy er, contending he had conspired with Gra nt and others to have him indicted for cattle theft. The attorney testified that afte r he was sued by Be nnett for $2 milli on, he was “ang ry ” and “sca red” and decide d to no longe r repr esent Gra nt in this suit beca use “he couldn’t do as g ood a job as somebody that wasn’t be ing sue d themselves.” Tampering W

ith Evidenc e . At trial, there wer e alleg ations that one of the photos Gra nt had taken depicted Rey

nolds’ brand on the sold cattle. There wer e further alleg ations that Be nnett had doctore d this p h o t o d u ri n g his criminal trial to chang e the incriminating imag e of his neig hbor’s brand and conce al his theft. I n addition, the San Saba District and C o u n t y C l erk testified that Be nnett attempted to reg ister R ey nolds’ brand as hi s o wn . Fi nally , during the course of this trial, Be nnett—outside the prese nce of the jury and without permission from the trial court—a ltered an e xh ib it d e p ic ti n g a h a

n d

- d r a w n d ia g r a m o f Re y n o ld s ’ b r a n d

. We c o n c lu d e th e s e c o v e r - u p e f f o r ts s h o w culpability and delibera teness and soug ht to extend and exacer b at e h ar m to Gra nt by discrediting him as a witness and bolster ing B ennett’s c laims in his civil lawsuits ag ainst Grant. 1 6

b. Harm inflicted was not m erely an economi c inju ry and showed a reckle ss disregard for Grant’s health and safety . Reg arding the first and second repr ehensibility fa ct ors, Appellants arg ue Gra nt suffe red a purely economic inju ry an d this is not a case involving phy sical harm war ranting a
g rea ter awa

rd of exemplary damag es, and that his actions do not s h o w an indiffer ence to or

Gra nt, Rey nolds, and Miller obtained a favor able summary ju d g me n t a nd sanctions ag ainst 1 5 Be nnett, Bonha

m, and their attorney in that suit, which is curr ently pending on appea l befor e this Court in Benne tt, Bonham & Paris v. Rey nolds , No. 03-12-00568. An awa rd of punitive damag es for some of these actions has alre ady been awa rded ag ainst 1 6 Be nnett in Benne tt I

. See Benne tt I

, 315 S.W .3d at 876. I n that suit, howeve r, he was punished for how his actions aff

ecte d Rey nolds. I n this suit, the awa rd of punitive damag es is to punish Be nnett for how the se ac tions affe cted Gr ant. See id

. 39rec kless disreg ard for Gra nt’s health or safe ty

. We disag ree . Malicious prosec ution is not a purely economic injury ; rathe r, the Res t at em en t rec og nizes that a plaintiff may rec over for the phy sical harm cause d by rea son of his arr est. See Restatement (Second) of Torts § 671 (1977). Her e, Be nnett d i d not intend to inflict a mere financ ial injury on Gra nt; rathe r, he succe eded in having Gra n t ’s
actua l person seized, held in captivity , and stripped of persona l liberties. Appellants further contend that: “B ennett’s mere desire that Gra nt serve prison time does not equate to indiffer ence or rec kless disreg ard for Gra

nt’s health or safe ty

. . . . At best, this fac tor is neutra l an d t h er efor e car ries no weig ht in the repr ehensibility analy sis.” We are confide nt that if Be nnett himself or any p erson

wer e arr ested and faci n g a prison sentenc e in Texas, he would not view his health and safe ty
neutra lly aff

ecte d. See also id

. (maliciously prosec uted plaintiff may rec ov er fo r impairment to health sustained f

rom arr est).

c. Target of the conduct had finan cial vulnerabili ty

. Re g a r d in g th e th ir d r e p r e h e n s ib il it y f a c tor , we note that Be nnett’s actions wer e furthe r
repr ehensible beca

use Be nnett was awa

re that Gra

nt and his family wer e financ ially vulnera ble.
Gra nt testified he first met B ennett bec ause he wa s desper ate f or work, a

nd Be nnett ag ree d to hire him as a han d

. Du ri n g t he time Gra nt worke d for Be nnett, the Bonha m Corporation paid him a salary of $1,100 for a full month of work and allowe d h i m t o l i v e i n a trailer on the proper ty

. A salary of $13,200 a y ear , even when the housing allowanc e i s co n s i d ere d, was hovering on the fede ral pove rty

line. Fur

ther, Grant’s financial si tuation worsene d when his wife and baby wer e 1 7

Pursuant to fede ral poverty g uidelines in 2001, a person with two depende nts was poverty

1 7 stricken if his annual income was less than $14,630. See h tt p ://aspe .hhs.g ov/poverty

/01poverty .htm. 40in a major traff ic accident sho rt l y af

t er Gra nt turned his photos over to the authoriti es. Gra nt and others testified that both his wife and baby wer e hospitaliz ed afte r the acc ident , that his wife had been perma

nently injured, and that Gra nt had to take a signific ant amount of time off from work to stay home and car e for her. The rec ord ref lects that Be nnett was fully awa re of the car acc ident and perha ps attempted to use the situation to take advanta g e of Gra nt’s financ ial vulnera

bility by offe ring him an extremely lucra tive job im m ed i at el y afte r the acc ident under the g uise of helping Gra nt’s family

. Amidst this backdr op of financ ial vulnera bility , Be nnett then beg an his quest to have Gra nt imprisoned and ultimately indicted. Fur ther, Gra nt’s indictment car

ried a prison sentenc e of two to
ten y ear s’ imprisonment. See Tex. Penal Code §§ 12.34, 15.01, 36.02. Undoubt ed l y , Be nnett’s actions threatened to fina ncially ruin Gra nt and his family

. I n sum, we conclude four of the five repr ehensibility fac tors are prese nt in this case and weig h i n fa v o r o f punitive damag es: (1) the harm to Gra nt resulted from intentional malice, tricker y , or dece it; (2) Be nnett’s malicious prosec ution of Gra nt was not mere ly an economic injury but re s u l t ed i n a seizure of Gra nt’s person and loss of phy sical liberties; (3) Be nnett’s tortious conduct showed an indiffer ence to and rec kless disreg ard for Gra nt’s health and safe ty ; (4) and his actions threa tened to f

inancially ruin Gra

nt. Thus, all but one of the repr ehensibility fac tors weig h in favor of

exemplary

damag es. 1 8

T h e r e ma in in g r e p r e h e n s ib il it y f a c to r is w h e th e r th e d e f

e n d a n t’ s c o n d u c t in v o lv e d r e p e a

te d 1 8 a c ti o n s , n o t ju s t a

n is o la te d in c id e n t. F o r p u

r p o s e s o f th e r e p r e h e n s ib il it y a n a ly s is , th e T e xa s Su

p r e me Court has found that this fac tor ref ers to rec idivism and not a course of conduct resulting in a single injury

. See Benne tt I

, 315 S.W .3d at 878 n.55. Her e, Gra nt alleg es Be nnett eng ag ed in a course of conduct resulting in a single injury —his indictment for attempted bribery

. There is no evidenc e in the rec ord that Be nnett had eng ag ed in other acts of malicious prosec ution demonstrating rec idivism

. 412. Ratio Between Exem plary and Com pensatory Dam ages The second and p erha

ps most commonly cited indicium of an excessive punitive damag es awa

rd is the ratio betwee n the punitive damag es awa rded and the actua l or potential harm inflicted on the plaintiff. See BMW of N. Am. , 517 U.S. at 580. I n analy zing this ratio, “the proper inquiry is ‘ whether

there is a rea sonable re lationship between the punitive damag es aw ard and the harm likely to result from the defe ndant’s conduct as well as the harm that actua lly has occur red.’ ” Id. at 581 (quoting TXO Prod. Corp. v. Alliance Res. Corp ., 509 U.S. 443, 460 (1993) (empha sis in orig inal)). Thus, we are to examine the differ ence betwee n the punitive damag es awa rd and the harm
actua lly suffe red and the harm “that would have ensued if the tortious plan had succe eded.” See id .;

see also TXO Prod ., 5 0 9 U.S

. at 460. Whil e there is not “a mathematica l brig ht line betwee n the constitut i o n ally acc eptable and constitutionally unacc eptable [award of exemplary damag es] that would fit ever

y case ,” see Pacific Mut. Life Ins. Co. v. Haslip , 499 U.S. 1, 18 (1991), we have been instructed that “fe w awards excee ding a single -dig it ratio . . . will satisfy due process” and that an “aw ard of more tha

n four times the a mount of compensator y damag es m ig

h t b e c lo s e to th e li n e o f

c o n s ti tu ti o n a l im p r o p r ie ty

. ” S

ta te F a r m M u t. A u to

. I n s
. , 5 3 8 U

. S. a

t 4 2 5

. Appellants contend that there is no meaning ful distinction betwee n this case and the larg e punitive damag es awa rd the Texas Supreme Court overturne d in Benne tt I , in which the Court found that the ratio of $5,327.11 in actua l damag es compar ed to the $250,000 in exemplary damag es

awa rded ag ainst Be nnett—a ratio of 47:1—and the $1 milli on exemplary damag es awa rded ag ainst Bonha m—a ra tio of 188:1—violated due proc ess. See B ennett I , 315 S.W .3d at 869. As the U.S. Supreme Court has rec og nized, howeve r, “a jury imposing a punitive damag es awa rd must make a

42qualitative assessment based on a host of fac ts and circ umstances unique to the particula r case befor e it. Be cause no two case s are truly identical, meaning ful compar isons of such awa rds are difficult to make.” TXO Prod. , 509 U.S. at 458. Whil e this case and Benne tt I share some nucleus of opera tive fac ts, the prese nt case is distinguishable and there fore must be examined on its own fac ts. I n Benne tt
I , the jury found Be nnett conver ted thirteen of his neig hbor’s cattle and assessed actua l damag es at the marke t value of the cattle, $5,327.11. Benne tt I , 315 S.W .3d at 871. Whil e the Court found that
Be nnett ’s m al feasance in attempting to cover -up his initial conver sion showed heig htened
repr ehensibility , it concluded:

At h eart, though, this is an economic- injury , actua l-harm case seeking rec overy for t h e conver sion of thirteen head of cattle. Rey nolds alleg es a broade r “cr iminal esca

pade” that aimed to ruin him, but the theore tical possibili ties of g rea ter harm strike as mar ginally rele vant at best in assessing exemplary damag es, absent proof of the likelihood of such har ms.

Id . at 877.
I n striking contra st, Be nnett in this case did n ot mere ly steal cattle; rathe r, he attempted to deprive a man of two to ten y ear s of his liberty

. See Tex. Penal Code §§ 12.34, 15.01,
3 6

. 0 2 (s en t encing for offe nse of attempted bribery ). Whil e Appellants attempt to equate theft of cattle to the theft of y ear s from a man’s li fe, there is no compar ison betwee n the two ac ts. This is ref lected in the repr ehensibility analy sis, in which we conclude d that four of the five repr ehensibility fac tors wer e prese nt in this ca s e. I n contrast, in Benne tt I , the Texas Supreme Court found that
Be n n ett inflicted a purely economic injury on his neig hbor by stealing his cattle and there fore only one of the repr ehensibility fac tors—the harm resulted from intentional mal i ce, tricker y , or dece it—was prese nt. See B ennett I , 315 S.W .3d at 877.

43Fur ther, and perha

ps mo st important for our discussion, the Texas Supreme Court found that Benne tt I was an actua l-harm case only —meaning that bey ond the actua l ha rm suffe red by Rey nolds from the theft of his cattle, there was only marg inal evidenc e o f an y other potential h arm fac ed by Rey

nolds or any one else as a result of Be nnett’s conver sion. Id

. Theref o re , i n Benne tt I , potential harm was not rele vant in the Court’s ratio analy sis. See id

. But in this case , the evidenc e of potential harm is not marg inal or specula tive; rathe r, the rec ord conclusively shows that
Gra nt would have been imprisoned for two to ten y ear s if Be nnett had su cce eded in his illicit scheme

. See Tex. Penal Code §§ 12.34, 15.01, 36.02. I n analy zing the exemplary damag es ratio in a potential-har

m case , the U.S. Supreme Court has unequivoca lly instructed us that “[i] t is appropr iate
to consider the mag nitude of the potential harm that the defe ndant’s conduct would have cause d to it s in te n d e d v ic ti m if the wrong f u l p la n h a d s u c c e e d e d

. ” TX

O P r o d

. , 5 0 9 U

. S. a

t 4 6 0 ( e mp h a s is in orig inal) (holding drama tic disparity betwee n $19,000 compensa tory damag es aw ard c ompare d to $ 1 0 m i l l i o n exemplary damag es awa rd did not violate due proce ss “in light of the [m illions ]
p o te n ti a ll y a

t s ta k e ” if th e d e f

e n d a n t “ h a d s u c c e e d e d in it s il li c it s c h e me ” )

. T h u s , U

. S. Su

p r e me Co u

r t
prec edent require s us to compar e the exemplary damag es awa rded in this case to both “the harm that has actua lly occur

red” and the potential h ar m t h at Grant would have sustained if Be nnett’s
“wr ong ful plan h ad succe eded.” See id .; see also BMW of N. Am. , 517 U.S. at 581 (“the proper inquiry is whether there is a rea sonable rela tionship betwee n the punitive damag es awa rd and the harm likely to result from the defe ndant’s conduct as well as the harm that actua lly has occur red” ). Appellants stress in their brief the d i s p ar i t y betwee n the dual $1 milli on punitive damag es awa

rded in thi s c a s e c o mpa

red to the $10,703 compensa tory damag es awa rd. That disparity

44lessen s , howeve r, when we consider the potential prison sentenc e fac ed by Gra nt. Although it is difficult to place a monetar y value on the loss a person experience s from losing y ear s of his life to

an err oneous prison sentenc e, the State compensa tes persons who have been wrong fully convicted
to the tune of $ 8 0 , 0 0 0 for eac h y ear of wrong ful imprisonment plus lifetime annuity pay ments. See Tex. Civ. Prac. & Rem. Code §§ 10 3

. 0 5 2 (L ump-Sum Compensation), 103.053 (Annuity Compensation). Thus, if Gra nt ha d been wrong fully imprisoned for the minimum sentenc e of two
y ear s’ imprisonment, he would have been en t i t l ed at a bare minimum to a lump-sum pay ment of $ 1 6 0 , 0 0 0. And, on the high end of the spectrum, he would have been entitled to a lum p -s u m

1 9
pay ment of $800,000 for serving the maxi mum t en -y ea r sentenc e, plus potential lifetime annuity
pay men t s which could potentially push the final awa rd t o over $1 milli on. Although there is no 2 0
way to prec isely put a dollar value on the potential harm in this case , the State’s restitution pay ments ref lect t h e value the L eg islature has place d on a y ear of life lost to wrong ful imprisonment and provide a g uidepost for the pote ntial damag es in this case.
Ba sed on this analy sis, we conclude the potential damag es in this case can be prudently and rati o n al l y valued at a minimum of $160,000. This is the minimum amount Gra nt would have rec eived f

rom the S tate if he had been wrong fully convicted of attempted bribery and

serve d the minimum sentenc e available

. When combined with the actua l damag es, the total actua l

Annuity pay

ments would not be g in until the first anniver sary of this lump-sum pay ment 1 9 and would be awa

rded only if Gra

nt was still living on that date. See Tex. Civ. Prac. & Rem. Code §§ 103.151(b), 103.154( b).

The annuity pay

m en t s ar e somewhat specula tive as they are deter mined by the number 2 0 of y ear s a p er s o n survives afte r rele ase from prison. See id

. § 103.154(b). Unlike the lump-sum compensa tion, the annuity pay ments do not transfe r upon death to the person’ s estate. See id

. §§ 103.151(a) , 103.154(b). 45and potential dama g es for this case would there fore be at lea st $170,703. Using these fig ures, the ratio b et we en t h e actua l and potential harm compar ed to the dual $1 milli on exemplary damag es

awa rds would be over 5:1 for both Be nnett and Bonha m. See BMW of

N. Am. , 517 U.S. at 581 (“the
proper inquiry is whether there is a rea sonable rela tionship betwee n the punitive damag es awa rd and the harm likely to result from the defe ndant’s conduct as well as the harm that actua lly h as

occur red” ). We note that—even with car eful consideration of both the actua l and potential damag es in this case —this ratio likely exceeds constitutional limit s. See State Farm Mut. Auto. Ins. , 538 U.S.
at 425 (“a war d of more than four times the amount of compensa tory damag es might be close to the line of constitutional impropriety ”). As such, this g uidepost weig hs in favor of reduc ing the punitive damag es aw ard.

3. Legislative P enalties for Similar M iscondu ct The final g uidepost compar es the exemplary damag es with leg islatively authorized civil penalties in compar able case s. This fac tor fortifies the notion that leg islatures make policy and

are well positioned to define and deter undesired behavior

. Benne tt I , 315 S.W .3d at 880. Her e, we
note there is no compar ab l e civil penalty for Be nnett’s conduct. We may , howeve r, also look to criminal penalties that could be imposed, as “the exis tence of a criminal penalty does have bear ing

on the seriousness with which a State views the wrong ful action.” State Farm Mut. Auto. Ins. , 538 U.S. at 428. When used to deter mine the dol lar amount of an exemplary damag es aw ard, thoug h, the U. S

. Supreme Court has cautioned us that criminal penalties have “less utilit y ” than civil penalties. See id. ; see also Benne tt I , 315 S.W .3d at 881. I n this case , we c onclude c riminal

46penalties have some rele vance to our discussion, as they demonstrate that Be nnett had fair notice that

his conduct could subjec t him to t he following punishment:

• Tamper ing With or Fa brica ting Phy sical Evidenc e

• 2 to 10 Year

Prison Sentence

• $10,000 fine

• Ag g rava ted Perjury Be fore Gra

nd J ury

• 2 to 10 Year

Prison Sentence

• $10,000 fine

• Ex ecution of a

Document by

Dec eption

• 180 day s to 2 y ear s in St ate Jail

• $10,000 fine

• Making a F alse Repor t to Peace O ffice r or L aw Enf orce ment Employ ee

• Up to 180 Day s in St ate Jail

• $2,000 fine

• $16,000 fine for

committing offe nse eig ht times 2 1

Thus, Be nnett had fair notice of the seriousness with which the State viewed his wrong ful conduct,

as his actions could subject him to up to $46,000 in monetary fines and four to twenty -two
y ear s’ incar cer ation. 2 2

Appellants contend in thei r b ri ef that we should—as we did on rema nd from
Benne tt I —reduc e the exemplary damag es awa rd to the compar able criminal fines. I n that case , we

Be nnett acknow ledg ed at trial that, in his eff orts to prosec ute Gra

nt, he spoke with at least 2 1 eig ht differ ent law e nforc ement off icials on separ ate oc casions. See Tex. Penal Code §§ 32.46 (execution of document by dece ption), 38.03 (ag g rava ted 2 2 perjury ), 37.09 (e vidence tampering ), 37.08 (f alse re port). 47conclude d that the criminal monetary sanction for cattle theft was compara b l e t o the civil offe nse

of conver sion a

nd provided an objective basis for se tting a c onstitut ionally permissible exemplary damag es awa

rd. Benne tt v. Rey nolds , No. 03-05-0 0 0 3 4 -C V, 2010 WL 4670270, at *5 (Tex.
A pp.—Austin Nov. 18, 2010, no pet.) (mem. op.) supplemente d , 0 3

- 0 5

- 0 0 0 3 4

- CV , 2 0 1 1 WL 1 8 2 8 7 6 ( T e x. A p p . — Au s ti n Ja n . 1 9 , 2 0 1 1 , n o p e t. )

. I

n th is c a s e , h o w e v e r , th e r e s im p ly is n o c r im in a l o f

f e n s e
compar able to the civil offe nse of malicious prosec ution. Whil e we can examine specific criminal actions Be nnett took in his ultimate eff ort to maliciously prosec ute Gra nt, none of these offe nses take into acc ount that Be nnett’s ultimate g oal was to put Grant in prison. We do, howeve r, conclude 2 3
that under this rec ord the applicable prison sentenc es and fines put Be nnett on notice that the State has a signific ant intere st in deterring this ty pe of c onduct and would pr osecute and imprison those who attempt to manipulate the c riminal justice sy stem for pe rsonal g ain.

After car eful analy sis of these three g uideposts, we concl u d e: (1) four of the five
repr ehensibility fac tors weig h in favor of puni t i v e damag es; (2) potential harm is rele vant in evalua ting the ratio to exemplary damag es, but th at ev en when we consider potential harm, the resulting ratio of 5:1 likely exceeds constit u t i o nal boundarie s; and (3) there are no compar able civil sanctions, but Be nnett was on notice that the S tate had a si g nificant int ere st in protec ting the

I n truth, for most case s the monetary criminal penalties under the Texas Penal Code have 2 3 littl e utilit y in determining the dollar va lue of a n exemplary damag es awa rd. See State Farm Mut. A u to

. I n s
. Co

. v
. Ca m

p b e ll , 5 3 8 U

. S. 4 0 8 , 4 2 8 ( 2 0 0 3 )

. T h e mo n e ta r y p e n a lt y f o r a ll f e lo n ie s in T e xa s , except for c apital fe lony offe nses which do not c arr y any monetary penalty , is a fine not to exceed $10,000. Tex. Penal Code §§ 12.31–.35. There is no varia nce in the amount of the fine to acc ount for the State’s varie d interests in preve nting and punishing various deg ree s of repr ehensible felony conduct. 48integ rity of the criminal justice sy stem and would vigor ously prosec ute, fine, and imprison persons

who eng ag ed in such be havior.

Our rema ining tas k is to deter mine—under the unique fac ts of this case and these
g uideposts—what amount of exemplary damag es would pass constitutional muster. I n this reg ard,

we have been instructed that an awa rd “four times the amount of compensa tory dam age s m i g ht be close to the line of constitutional impropriety ” and that “[p] ushi ng exemplary damag es to the absolute constitu t i o n al l i m i t in a case like this leave s no room for g rea ter punishment in case s involving death, g rievous phy sical injury , financ ial ruin, or actions that endang er a larg e seg ment of the public.” Tony Gullo Motors I , 2 1 2 S.W .3d at 308–310. Whil e we find Be nnett’s conduct abhorr ent, we rec og nize that his actions did not actua lly cause any of these enumer ated unfortunate circ umstances. We do, howeve r, also rec og nize that the State has a signific ant interest in punishing and deter ring this ty

pe of conduct an d t h at Be nnett’s actions wer e particula rly repr ehensible. Weighing these competing conce rns, we conclude that a ratio of 3:1 exemplary damag es compar ed
to the combined actua l and potential damag es passes constitutional muster. This results in an awa rd of $512,109 ag ainst eac h defe ndant (three times the actua l and potential damag es of $170,703) and reduc es the total punitive damag es awa rd from $2 milli on to $1,024,218 ($512,109 ag ainst Bonha m and $512,109 ag ainst Be nnett). This a war d rec og nizes the potential harm cause d by Be nnett and 2 4

When corpor ate liability is w arr anted based on the actions of a vice- principal, the Texas 2 4 Su p r e me Co u

r t h a s a f f ir me d th e p r o p r ie ty o f a

w a r d in g e xe mp la

r y d a ma g e s a g a in s t b o th th e in d iv id u a l vice- principal and his e mploy er. See Benne tt I , 315 S.W .3d at 869 (af

firming exemplary damag es awa rded ag ainst both individual who was corpor ate principal and corpor ation itself but r emanding beca use aw ards we re excessive under due proce ss); see also Qualicare of E. Tex., Inc . v. Runne ls , 8 6 3 S. W. 2 d 2 2 0 , 2 2 4 ( E a s tl a n d 1 9 9 3

—

n o w r it

. ) ( a

w a r d o f e xe mp la

r y d a ma g e s a g a in s t b o th e mp lo y e r and vice -principa l “is proper and does not impose a double punishment”).

49Bonha

m, their repr ehensibility , and the State’s i ntere st in punishing and deter ring , but also leave s room for g rea ter punishment for c ases with more eg reg ious injuries.

SANCTIONS
I n addition to the actual and ex emplary damag es at issue in this suit, Gra nt alleg ed
B e n n e tt ’ s s la n d e r c la im a g a in s t h im w a s f r iv o lo u s a n d b r o u g h t in b a d f

a it h f o r p u r p o s e s o f h a

r a s s me n t and soug ht sanctions. See Tex. Civ. Prac. & R em . C o d e § 1 0

. 0 0 1 ; Tex. R. Civ. P. 13. Be nnett ori gi n al l y i nitiated this suit—as discussed previously —by suing Gra

nt for slander, alleg ing that
Gra nt’s statement that Be nnett had stolen Rey nolds’ cattle was slanderous. The jury found that
Gra nt’s statement was substantially true and this findin g has not been challeng ed on appea l. The trial court g rante d the reque st for sanc tions and order ed Be nnett to pay Gra nt’s attorney s’ fee s incurre d defe nding the claim in the amount of $269,644.50, concluding that this amount adequately punished Be nnett and fairly compensa ted Gra nt for defe nding ag ainst the g roundless claim. I n his only individual issue, Benne tt contends the sanc tions award w as an a buse of discr etion.
We revie w the trial court’s imposit ion of sanction s for an abuse of discretion.
See Low v. Henry , 221 S.W .3d 609, 614 (Tex. 2007). I n revie wing the sanctions order , we revie w th e e n ti r e r e c o r d to d e te r

mi n e w h e th e r th e tr ia l c o u r t a b u s e d it s d is c r e ti o n . A m e r ic a n F lo o d R e s e a r c h , Inc. v. Jones , 192 S.W .3d 581, 583 (Tex. 2006). An appellate court may reve rse the trial court’s ruling only if the trial court acte d without ref ere nce to any g uiding rules and principles, such that its ruling was arbitra

ry or unreasonable. Low , 221 S.W .3d at 614. At the very least, this require s a showing that the trial court based its order on an incorre ct interpre tation of the law or a clea rly

e r r o n e o u s a s s e s s me n

t o f th e e v id e n c e . R o b s o n v
. G il b r e a th , 2 6 7 S. W. 3 d 4 0 1 , 4 0 5 ( T e x. A p p . — A u s ti n
502008, pet. denied)

. The trial court does not abuse its discretion if it bases its sanctions on conflicting

evidenc e and some evidenc e supports its decision. Unifund CCR Partners v. Villa , 299 S.W .3d 92, 97 (Tex. 2009).

Here, t h e t ri al court’s order did not specify the leg al basis for the sanctions, so we beg in our revie w by identify ing all the potential leg al bases for the order

. See Citi bank, N.A. v. Estes , 385 S.W .3d 671, 675 (Tex. App.—Houston [14t h Dist

. ] 2012, no pet.). Chapter 10 of the Civil Practice and Remedies Code, in pertinent part, authorizes a court to sanction a person, a party who repr esents the person, or both for signing a pleading that was broug ht for any improper purpose—including to hara ss, cause unnece ssary delay , or needle ssly incre ase the cost of litigation.
Tex. Civ. Prac. & Rem. Code §§ 10.001, 10.004; see Ma t t o x v. Gr imes Cnty. Comm’rs Court , 305 S.W .3d 375, 386 (T ex . App.—Houston [14t h Dist.] 2010, pet. denied) (“Sanc tions under chapte r 10 of the Civil Practice and Remedies Code are authorized if the evidenc e esta blishes that

. . . a p l ea d ing or motion was broug ht for an improper purpose.” ). Her e, the trial court’s order conclu d es that Be nnett filed his slander claim for at least two improper purposes—“ to punish

a witness who had testified ag ainst him in previous lawsuits” and “to subvert a separ ate trial, [ Benne tt I ].” The trial court furth er concluded that Be nnett’s refusal t o nonsuit his slander claim, “substantially incre ased the burden on this case on t he defe ndant and on the court sy stem” and “req u i re d in essenc e a re- trial of [ Benne tt I ].” As the trial court made finding s that Be nnett filed this suit fo r i m p ro per purposes specific ally prohibited by Chapter 10, we conclude the trial court could have relied on Chapter 10 as the leg al basis for the awa rd. Fur ther, Be nnett has not challeng ed

on appea l the trial co u rt ’s finding that he filed this suit ag ainst Gra nt for improper purposes.

51Gene rally , an appellant must at ta c k all independe nt bases or g rounds that fully support a complainedof ruling or judgme nt. See Britton , 95 S.W .3d at 681. As Be nnett has failed to attack this basis that supports the sanctions order , we cannot conclude the trial court’s imposit i o n of sanctions was an abuse of discretion.
I n addition, Rule 1 3 simil arly authorizes a trial court to sanction a person, a
repr esente d party , or both for signing a pleading t h at i s gro u ndless and broug ht in bad faith or to hara ss. Tex. R. Civ. P. 13. Pleading s are presumed filed in g ood faith under Rule 13, and the burden is on the moving party to demonstrate both that the opposin g p arty ’s filings: (1) are g roundless; and (2) wer e filed either in ba d faith or for the purpose of hara ssment. Id

. I n deter mining whether sancti o n s are appropr iate, the trial court must examine the fac ts available to the litigant and the circ umstances ex isting when the litigant filed the pleading

. Robson , 267 S.W .3d at 409. Fur ther, under Rule 13, the trial court is require d to state in the order the particula rs of g ood cause justify ing the sanc tions. See Tex. R. C iv. P. 13.

The trial court’s order here conclude s, consistent with a violation of Rule 13, that
Be nnett’s slander claim was “g roundless,” “par t o f a plan to hara ss and intimi date Gra nt,” and broug ht in “bad faith.” As such, we conclude that Rule 13 could have also been the leg al basis for 2 5
the t rial court’s aw ar d

. Fu rt her, the sanctions order s tates t he particulars of g ood cause justify ing sanctions under Rule 13. First, there are numerous finding s in the order t hat B ennett broug ht this

The trial court also submitt ed this question to the j u ry , which conclude d that Be nnett’s 2 5 suit was g roundless and broug ht in bad faith or for the purpose of hara ssment. Be nnett contends the trial court er re d i n s u b m i t ting the sanctions issue to the jury beca use it was a question of law. Reg ardle ss, the sanctions order indic at es t he trial court made its own finding s to support the sanctions orde r sepa

rate from the jury ’s finding s. 52suit in bad faith and for purposes of hara ssment, including finding s that: (1) Be nnett had filed this

suit to punish Gra

nt for testify ing ag ainst him in previous lawsuits; (2) Benne tt had “doctor ed” or “alter ed” evidenc e to c over up his conve rsion of Rey nolds’ cattle a

nd g ive g rounds to his basele ss slander claim ag ainst Gra

nt; (3) and that Be nnett’s true purpose in the suit was not to rec over money damag es from Gra

nt—who lacke d the financ ial resour ces to pay an awa rd—but to subvert a separ ate civil trial, Benne tt I

, and to hara ss Gra

nt. Be nnett does not challeng e the leg al sufficie ncy of any of these finding s on appea l.

Wit h reg ard to g roundlessness, Benne tt pleaded that he had instructed G rant not to sell any cattle that did not belon g t o him, and there fore , Gra nt’s alleg ation that he had stolen the cattle was slander. The trial court, howeve r, found in its order that Be nnett had conver ted Rey nolds’ cattle and then eng ag ed in a “desig n to c over up his conversion” that implied “ willfulness and bad faith, not inadver

tence or an honest mistake.” This finding states with particula rity the trial court’s
go o d ca u s e for concluding the slander claim was g roundless—as the trial court found there was

n o fa ctual basis to support Be nnett’s pleading s that Rey nolds’ cattle had been sold acc identally and there was no leg al basis for his slander cl ai m beca use substantial truth is a complete defe nse
to s l an d er . S

ee id. (g roundless means no basis in law or fac t and not war rante d by g ood faith
arg ument for chang e of exis ting law); see also Randall’s Food Mkt., Inc. v. Johnson , 891 S. W

. 2d 640, 646 (Tex. 1995) (sub stantial truth of an alleg ed defamatory statement i s complete defense to slander action). Fur

ther, while Be nnett testified in support of his alleg ations, the trial court does not abuse its discretion when there is c onflicting evidenc e that supports its decision, s ee Unifund CCR
Partners , 299 S.W .3d at 97, and Be nnett has not challeng ed the leg al sufficie ncy of this finding on

53appea l. I n addition, the trial court finds in its order that Be nnett’s dece it in cover ing up his

wrong doing by doctoring or altering evidenc e, “conf irms the g roundlessness of the slander claim” and was to “fur

ther his attempts to g ive g rounds to his basele ss hara ssment of Gra nt.” As such, we
cannot ag ree with Be nnett’s contention in his brief that the sanctions order “fa ils to state g ood cause for finding g roundlessness with the particula rity Rule 13 requires

. ” Rather, we conclude the sanctions order states wi t h particula rity the rea sons and circ umstances justify ing the trial court’s finding of g ood cause to issue sanctions under Rule 13. 2 6

Be nnett further contends the awa rd of sanctions ag ainst him individually was an abuse of discretion beca

use his lawy er s i gn ed an d filed his pleading s, and “a party should not be sanctioned for i ts attorney ’s conduct unless the party is implicated apart from ha ving entrusted it s leg al represe ntation to counsel.” See Loeffler v. L ytle Indep. Sch. Dist

. , 211 S

. W

. 3 d 3 3 1 , 349–50

On rehe aring , Be nnett co n t en d s fo r the first time that “Gr ant never noticed any formal 2 6 hear ing o n h i s request for sanctions.” See Tex. R. Civ. P. 13 (sanc tions may be imposed upon motion or upon court’s own initi at i v e, after notice and hear ing) ; Tex. Civ. Prac. & Rem. Code § 10.002–3 (same) . The re cord, how ever , shows that Be nnett’s counse l was serve d with notice of the sanctions hear ing. Moreove r, “the proper method to prese rve [Bennett’s] notice complaint was to bring the lack of adequa te notice to the att en t i o n o f the trial court at the hear ing, object to the hear ing going forwa

rd, and/or move for a continuance .” See Low v. Henry , 221 S.W .3d 609, 618 (Tex. 2007)

. Be nnett additionally complains on rehe aring that “Gr ant never filed a formal motion for sa nctions.” B ennett fa iled to raise this issue at the trial c ourt or in his appea l. Gra nt did plead for attorney s’ fee s based on Be nnett’s filing of a g roundless claim, and the trial court had submitt ed a jury question asking whether Be nnett’s slander claim was g roundless and broug ht in bad faith or for purposes of hara ssment. The jury answe red aff irmatively

. Gra

nt then moved the court to enter final judg ment sanctioning Be nnett for f iling a g roundless cla im br oug ht in bad or for purposes of hara ssment. Prior to the court’s sanctions order , Be nnett also filed a brief with the court contending that he should not be sanctioned beca use his claims wer e not g roundless nor broug ht in bad faith or for purposes of hara ssment. Thus, on the rec ord, Gra nt moved the trial court to issue sanctions and Be nnett plainly had notice of the g rounds on which Gra nt was seeking sanctions and an opportunity to respond. 54(Tex. App.—San Antonio 2006, pet. denied)

. Ag ain, we disag ree . Whil e Be nnett’s attorney s filed

and signe d his pleading s, Be nnett p ro v i ded the fac tual basis for the slander claim and authorized his attorney s to file suit based on those alleg ations. Fur ther, the trial court m ad e s ever al specific finding s that sanctionable conduct was attributable to Be nnett h i m s el f and that Be nnett had 2 7 broug ht the slander suit as r eveng e for Gra nt testify ing ag ainst him in previous suits. As such, we
cannot conclude the trial court abused its discretio n i n fi n d i ng that Be nnett was implicated in the sanctionable conduct

. C o ncluding he has failed to prove on appea l that the trial court’s awa rd of sanctions was a

rbitrar y or unre asonable , we ove rrule B ennett’s sole individual issue on appe al. 2 8

The trial court’s order provides m an y i n stance s of Be nnett persona lly implicating 2 7 himself, including one instance wher e he—outside the prese nce of the jury —altere d a hand-dr awn exhibi t depicting Rey

nolds’ brand. When confr onted about the al t er at ion, Be nnett claimed he was mere ly highlig hting the exhibi t so the jury could see it b etter, and that it was okay beca use the J udg e was in the courtroom when he made the altera tion. The trial c ourt notes in its order that “althoug h the J udg e was prese nt in the room, su ch al t er at i o n was not observe d or sanctioned by any one, the Court included.” I n addition to the sanctions expressly aut h o ri z ed by Rule 13 and Chapter 10, the trial court has the inhere nt powe r t o s an ct i on such bad faith conduct that occur s during the course of litigation. See Public Util. Comm’n v. Cofer , 754 S.W .2d 121, 124 (Tex. 1988); Eichelbe rger v. Eic helberge r , 582 S.W .2d 395, 398 (Tex. 1979).

We acknowle dg e that the a mount of attorney s’ fees awarde d as sanctions is signific ant. 2 8 Chapter 10 and R ule 13, howeve r, specify that att o rn ey s ’ fe es cause d by improper conduct are an appropr iate sanction. See Tex. Civ. Prac. & Rem. Code § 10.004(c) (3); Tex. R. Civ. P. 13. Be nnett has not raised any challeng e to the amount of the awa rd on appea l. On rehe aring , Be nnett contends he is entitled to rema

nd to allow the trial court to rec onsider the amount of the awa rd in light of the Texas Supreme Court’s rec ent opinion in Nath v. Texas Children’s Hospital

. See 446 S.W .3d 355, 372 (Tex. 2014) (holding that sanctions wer e war rante d but rema

nd wa s nece ssary to deter mine wh et h er , by litigating for over four y ear s befor e seeking sanctions, the moving party bore s o m e responsibility for the attorney s’ fee s it incurre d). I n Nath , howeve r, the sanctioned party prese rved err or by challeng ing th e ex cessivene ss of the attorney s’ fee s at the trial court and on appea l. See 446 S.W .3d at 361, 364. Her e, Be nnett did not raise the issue of excessiveness at the trial court nor on appea l. Under the se circ umstances, we cannot c onclude he is entitled to remand under Nath

. 55CONCLUSION This is an u n u sual case . Malicious prosec ution itself is an unusual tort, and it is exceptionally unique under Texas juri s p ru d en ce for a defe ndant to procur e a prosec ution by both providing false information to authorities and by eng ag ing in such other improper activities that his conduct beca

me the deter

mining fac tor in the decision to prosec ute. L ooking to th e ex em p l ary damag es awa

rd, this case is also unique beca use another exemplary damag es awa rd, in Benne tt I

, has alre ady been adjudicate d by the Texas Supreme Court and fo u n d unconstitutional. The fac ts and circ umstances of this c ase, howeve r, are vastly differ ent than those in Benne tt I and justify the imposit ion of a larg er exemplary damag es awa rd. This case dif

fe rs from Benne tt I

—and ag ain is somewhat unique under Texas jurisprudenc e—bec ause it is a potential-har m case and all but one of the five repr ehensibility fac tors are prese nt. As remitted, we are confide nt the exemplary damag es

awa rd passes constitutional must er unde r cur rent feder al s tandar ds. Acc ording ly , we refor m the 2 9
trial court' s judgme nt to awa rd Gra nt $512,109 in exemplary damag es ag ainst Be nnett and $512,109 in exemplary

damag es ag ainst Bonham. We affirm the tria l court' s judgme nt as ref ormed.

__________________________________________ Scott K. Field, Just ice
Be fore Chief J ustice Rose, Jus tices Pemberton a nd Field Reforme d and, as Ref

ormed, Af

firmed on Motion for Rehe aring Filed: Mar ch 20, 2015

I n response to our opinion issued in this appea l on Aug ust 13, 2014, Gra nt filed with the 2 9 district court a remittitur reduc ing his $2 mi l l i on exemplary damag es awa rd ag ainst Be nnett and Bonha m to an awa

rd of $512,109 a g ainst eac h defe ndant. See Tex. R. App. P . 46.3. 56