NUMBER 13-10-00300-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ALAMO COUNTRY CLUB OWNERS ASSOCIATION,

MELVIN STAPLES, INDIVIDUALLY AND AS 

ALAMO COUNTRY CLUB OWNERS ASSOCIATION

BOARD MEMBER, Appellants,

v.

JAMES SHELTON, Appellee.

On appeal from the 389th District Court

of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Benavides

Memorandum Opinion by Chief Justice Valdez

By seven issues, consisting of 21 sub-issues, appellants, Alamo Country Club 

Owners Association (ACCOA) and Melvin Staples, appeal from a final judgment in favor 

of appellee, James Shelton. We reverse and render in part and affirm in part.
2

I. BACKGROUND

In 1995, Shelton and his wife Cheryl purchased Lot #260 located at 332 Diana 

Drive in Alamo, Texas.

1

 Lot #260 is located in Alamo Country Club (ACC), an “over-55” 

community. The Declaration of Covenants, Conditions, and Restrictions of Record 

states that every person who acquires title, legal or equitable, to any lot in the 

subdivision shall thereby become a member of ACCOA. Membership entitles owners to 

use the amenities at ACC, which include a championship golf course, driving range, 

putting green, lighted tennis courts, heated swimming pool, clubhouse and pro shop, 

shuffleboard, picnic areas, and bicycle and jogging trails. If a member leases a 

residence in ACC, the lessee is entitled to use the amenities. Under such

circumstances, “[t]he member relinquishes all rights to use the various facilities for the 

duration of the rental period.”

In February 1998, Shelton signed a warranty deed, conveying lot #260 to Dale 

Winter for $93,000. The deed states that it “does not include the voting rights or the 

common ground rights or values. These rights and values will be retained by James E. 

Shelton.” Mrs. Shelton did not sign the deed, but she was aware of it. Winter began 

paying property taxes in 1998, but did not live on the property. The Sheltons continued 

to live in the home, and they continued to pay the ACC assessments. Winter continued 

to reside in his home in McAllen.

In late 2003, a member of ACCOA discovered Shelton’s deed to Winter. ACCOA 

manager Sandra Moravitz and ACCOA president Melvin Staples were informed of the 

discovery and consulted with ACCOA’s attorney, Mark Walker, about the deed. Walker 

 

1

The Sheltons also owned a home on Kiwi Street in McAllen, Texas, the deed to which is in the 

name of Cheryl Shelton only. Their daughter and son-in-law use the home as their residence. The 

Sheltons’ driver’s licenses gave the Kiwi street address as their residence. 
3

believed that ownership had changed. Walker did not believe Shelton’s reservation in 

the deed was valid.

On February 10, 2004, Moravitz wrote Winter, stating that she had learned he 

was the legal owner of Lot #260 and he must provide proof of being over age 55. In 

order to find out Shelton’s status, she enclosed a renter’s form to verify a lease. The 

letter was sent to Winter at his McAllen residence. Winter called Shelton about the 

letter, but the Sheltons took no action in response. 

In April 2004, Moravitz wrote a follow-up letter to Winter, asking again for the 

same information. Again, the letter was sent to Winter at his McAllen residence. Winter 

did not respond.

In June 2004, the Sheltons went on a long vacation to Colorado, and Winter 

moved into their house in the ACC. At this time, Winter provided proof of his age and 

began paying the monthly assessment, but he gave no information about Shelton or the 

renter’s forms. Staples and Moravitz heard rumors from members that the Sheltons had 

moved out, but Shelton was still playing golf at the ACC golf course. 

On October 8, 2004, Winter sent Staples a letter stating that he was the resident 

at lot #260, he had executed a power of attorney in favor of Shelton, and “[a]s everyone 

knows James Shelton and Cheryl Shelton have been residents in Alamo Country club 

for the past 10+ years.”

On October 11, 2004, Walker delivered a letter to Winter at his office and left a 

copy for Shelton at the Kiwi street address. The letter advised Winter and Shelton that: 

(1) Shelton has no rights as a member or owner under the power of attorney or under

the reservation in the deed; (2) Winter was the only resident at Lot #260; (3) Shelton 
4

had failed to fill out forms showing how or why he resided there; (4) Winter had refused 

to confirm Shelton was a guest; and (5) it no longer appeared that Shelton owned a 

home or resided at ACC. Walker asked that Winter or Shelton provide proof that 

Shelton resided there or was a guest. Otherwise, Shelton would be allowed to play golf 

only as a guest upon payment of the fees and only when accompanied by a member. If 

he did not do so and attempted to play golf, the police would be called and he would be 

reported as a trespasser.

On the morning of October 12, 2004, Shelton went to the ACC pro shop, 

identified himself to the clerk, informed her that he lived at Lot #260, and stated that he 

was there to play golf. Staples appeared and attempted to give Shelton a second copy 

of Walker’s letter, which Shelton refused to accept. Shelton told Staples he would abide 

by the rules and was going to play golf. Staples asked Shelton to discuss the matter, 

but he refused and left for the tee. Staples asked Charles Wilmoth, another ACC 

member, to sponsor Shelton as a guest, but Wilmoth refused.

Staples then asked Moravitz to call the police because he thought Shelton was a 

trespasser. Shelton told Staples he did not care if he called the police and offered 

Staples his cell phone to make the call.

Officer Jose Rodriguez of the Alamo Police Department responded to the call. 

Staples and Moravitz pointed out Shelton as a trespasser. They informed Officer 

Rodriguez that Shelton had been warned by Walker’s letter not to be there, had refused 

to accept a second copy of the letter, had caused problems for years, and now refused 

to leave. Moravitz told Officer Rodriguez that Shelton was not an ACC owner and had 
5

no right to be there. Staples told Officer Rodriguez that they wanted Shelton removed 

from the golf course.

Officer Rodriguez asked Shelton to leave the golf course, but Shelton refused. 

Officer Rodriguez asked again, and again, Shelton refused. Then, Officer Rodriguez 

told Shelton that charges would be filed if he did not leave and he would be taken to the 

police station. Shelton refused to leave. At this point, Officer Rodriguez asked Staples 

to sign a complaint form to press charges, which he did, and Shelton was then arrested 

and escorted off the golf course to Officer Rodriguez’s police cruiser. Shelton was 

transported to the police station, where he was booked for trespass and put into a 

holding cell. Shelton was released that afternoon. Later that day, the police called 

Moravitz to advise that this was a civil matter and that the police would not do anything 

without a temporary restraining order. A few days later, the police investigator 

suspended the case “due to insufficient probable cause.” 

On October 14, 2004, ACCOA sued Shelton for declaratory and injunctive relief 

and for damages for trespass, quantum meruit, unjust enrichment, and fraud. On 

October 26, 2004, Winter signed a deed conveying Lot #260 to himself and Shelton. 

On November 8, 2004, Shelton countersued ACCOA for breach of contract and 

declaratory relief. ACCOA’s claims were nonsuited in August 2008. Shelton later sued 

Staples as a third-party defendant and asserted claims against ACCOA and Staples 

(“appellants”) for false imprisonment and malicious prosecution.

A jury trial was held, and a verdict was reached in favor of Shelton on his claims 

against appellants for breach of contract, false imprisonment, and malicious 

prosecution. The jury awarded Shelton $500 on his breach of contract claim and 
6

attorney’s fees in the amount of $95,000. On his claims for false imprisonment and 

malicious prosecution, the jury awarded Shelton $200,000 for physical pain and mental 

anguish, $1,500 for disfigurement, and $1,950 for medical care expenses. In addition, 

the jury awarded Shelton punitive damages in the amount of $600,000. The trial court 

reduced the punitive damages award to $201,500. This appeal ensued.

II. MALICIOUS PROSECUTION

In their first issue, which consists of six sub-issues, appellants argue the 

following: (1) question 3 of the jury charge failed to properly submit the elements of 

malicious prosecution; (2) the evidence is insufficient to support a finding of malicious 

prosecution; and (3) Shelton’s claim for malicious prosecution is barred by the statute of 

limitations.

A. Jury Charge Error

In their first sub-issue, appellants argue that the jury charge failed to instruct the 

jury on the correct meaning of “procure” or “initiate” a criminal proceeding.

1. Applicable Law

It is fundamental to our system of justice that parties have the right to be judged 

by a jury properly instructed in the law. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 

388 (Tex. 2000). Accordingly, the trial court is required to submit such instructions and 

definitions as shall be proper to enable the jury to render a verdict. See TEX. R. CIV. P.

277. “An instruction is proper if it (1) assists the jury, (2) accurately states the law, and 

(3) finds support in the pleadings and evidence.” Union Pac. R.R. Co. v. Williams, 85 

S.W.3d 162, 166 (Tex. 2002) (citing TEX. R. CIV. P. 278).
7

A plaintiff in a malicious criminal prosecution claim must establish seven 

elements: (1) the commencement of a criminal prosecution against the plaintiff; (2)

causation (initiation or procurement) of the action by the defendant; (3) termination of 

the prosecution in the plaintiff’s favor; (4) the plaintiff’s innocence; (5) the absence of 

probable cause for the proceedings; (6) malice in filing the charge; and (7) damage to 

the plaintiff. Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 2007).

2. Standard of Review

When the content of a trial court’s definition is challenged as legally incorrect, our 

standard of review is de novo. See Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 221 

(Tex. 2010) (citing St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 525 (Tex. 2002)).

3. Discussion

In sub-issue one, which is composed of four sub-parts, appellants argue that the 

trial court erred by submitting a jury charge that failed to: (a) instruct the jury that a 

prosecution is “initiated” by filing a formal charge with law enforcement authorities; (b) 

instruct the jury that a prosecution is “procured” by intentionally providing information to 

the police officer that they knew was false; (c) instruct the jury that a person does not 

“procure” a criminal prosecution if the decision was left to the discretion of another; and 

(d) properly define what it means to “initiate” or “procure” a prosecution.

With regard to sub-part (a), Shelton points out that the jury question on malicious 

prosecution was submitted verbatim from the Texas Pattern Jury Charge, which is 

based on the seven elements for malicious prosecution articulated in Richey. See

Richey, 952 S.W.2d at 517. According to Shelton, it was not necessary for the jury 

charge to define “initiate,” as the Texas Supreme Court explained in Lieck, because “it 
8

would be demonstrated by evidence that defendant filed formal charges against 

plaintiff.” Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 293 (Tex. 1994).

Based on Lieck, we conclude that the trial court did not commit error by failing to 

define “initiate,” because the evidence demonstrated that appellants “signed a complaint

form and provided an affidavit” and that “[t]hey filed charges and they signed a 

complaint” against Shelton. See id. Accordingly, sub-part (a) is overruled.

With regard to sub-part (b), Shelton contends that appellants waived any 

complaint about the alleged failure to provide a definition for “procure” by failing to 

submit a substantially correct definition or instruction. The rules of civil procedure state, 

“Failure to submit a definition or instruction shall not be deemed a ground for reversal of 

the judgment unless a substantially correct definition or instruction has been requested 

in writing and tendered by the party complaining of the judgment.” TEX. R. CIV. P. 278.

Appellants concede that the definition for “procure” that they tendered to the trial 

court did not track the definition set forth in Lieck. See Lieck, 881 S.W.2d at 293. 

However, appellants argue that Shelton has failed to “identify any important deviation.” 

Appellants requested the following instruction: “[Appellants] did not procure a 

criminal prosecution if the decision whether to prosecute was left to the discretion of 

another, including a law enforcement official or the grand jury, unless [appellants] 

provided information which [they] knew was false.” In Lieck, the Texas Supreme Court 

explained that in cases involving a claim for malicious prosecution, procurement should 

be defined as follows:

A person procures a criminal prosecution if his actions were enough to 

cause the prosecution, and but for his actions the prosecution would not 

have occurred. A person does not procure a criminal prosecution when 

the decision whether to prosecute is left to the discretion of another, 
9

including a law enforcement official or the grand jury, unless the person 

provides information which he knows is false. A criminal prosecution may 

be procured by more than one person.

Id.

The definition proposed by appellants consisted of only one of the three 

sentences that make up the definition of procurement articulated in Lieck. Id. It is not, 

in our view, a substantially correct definition. See TEX. R. CIV. P. 278. Accordingly, subpart (b) is overruled.

With regard to sub-part (c), Shelton also contends that appellants waived any 

complaint about the alleged failure to provide a definition for “procure” by failing to 

submit a substantially correct definition or instruction. We agree. Again, we note that 

the definition proposed by appellants consisted of only one of the three sentences that 

make up the definition of procurement articulated in Lieck. See Lieck, 881 S.W.2d at 

293. One-third of a correct definition is not, in our view, a substantially correct 

definition. See TEX. R. CIV. P. 278. Accordingly, sub-part (c) is overruled.

In sub-part (d), appellants argue, in the alternative to sub-parts (a)-(c), that 

question 3 of the jury charge was defective because it did not properly define what it 

means to “initiate” or “procure” a prosecution. In overruling sub-part (a), we explained 

that, based on Lieck, the trial court did not commit error by failing to define “initiate,” 

because the evidence demonstrated that appellants “signed a complaint form and 

provided an affidavit” to press charges against Shelton. See Lieck, 881 S.W.2d at 293. 

Moreover, in overruling sub-parts (b)-(c), we explained that, in light of appellants’ failure 

to tender a substantially correct definition of “procure,” the trial court’s failure to submit a 

definition or instruction on “procure” cannot be deemed a ground for reversal of the 
10

judgment. See TEX. R. CIV. P. 278. Accordingly, sub-part (d) is overruled for the same 

reasons.

B. Sufficiency of the Evidence

In sub-issues two through six, appellants challenge the legal and factual 

sufficiency of the evidence with regard to the jury’s verdict on malicious prosecution.

1. Standard of Review

a) Legal Sufficiency 

The test for legal sufficiency is “whether the evidence at trial would enable 

reasonable and fair-minded people to reach the verdict under review.” City of Keller v. 

Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We review the evidence in the light most 

favorable to the verdict, crediting any favorable evidence if a reasonable fact-finder 

could and disregarding any contrary evidence unless a reasonable fact-finder could not. 

Id. at 821-22, 827.

b) Factual Sufficiency

When considering a factual sufficiency challenge to a jury’s verdict, courts of 

appeals must consider and weigh all of the evidence, not just that evidence which 

supports the verdict. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 

1998). A court of appeals can set aside the verdict only if it is so contrary to the 

overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Id. at 

407. When a party attacks the factual sufficiency of an adverse finding on an issue on 

which it has the burden of proof, it must demonstrate on appeal that the adverse finding 

is against the great weight and preponderance of the evidence. Dow Chem. Co. v. 

Francis, 46 S.W.3d 237, 242 (Tex. 2001).
11

2. Probable Cause

In sub-issue two, appellants argue that the evidence is insufficient to prove that 

they lacked probable cause to believe Shelton was trespassing. 

a) Applicable Law

The Texas Supreme Court has defined probable cause as “the existence of such 

facts and circumstances as would excite belief in a reasonable mind, acting on the facts 

within the knowledge of the prosecutor [complainant], that the person charged was 

guilty of the crime for which he was prosecuted.” Richey, 952 S.W.2d at 517 (citing 

Akin v. Dahl, 661 S.W.2d 917, 921 (Tex. 1983)). The probable-cause determination 

asks whether a reasonable person would believe that a crime had been committed 

given the facts as the complainant honestly and reasonably believed them to be before 

the criminal proceedings were instituted. Id. (citing Akin, 661 S.W.2d at 920-21).

“Malicious prosecution actions involve a delicate balance between society’s 

interest in the efficient enforcement of the criminal law and the individual's interest in 

freedom from unjustifiable and oppressive criminal prosecution.” Id. (citing Lieck, 881 

S.W.2d at 290-91). “Accordingly, there is an initial presumption in malicious prosecution 

actions that the defendant acted reasonably and in good faith and had probable cause 

to initiate the proceedings.” Id. (citing Ellis County State Bank v. Keever, 888 S.W.2d 

790, 794 (Tex. 1994)). “That presumption disappears once a plaintiff produces 

evidence that the motives, grounds, beliefs, and other evidence upon which the 

defendant acted did not constitute probable cause.” Id. at 518 (citing Keever, 888 

S.W.2d at 794). “The burden then shifts to the defendant to offer proof of probable 

cause.” Id. (citing Keever, 888 S.W.2d at 794). 
12

“Whether probable cause is a question of law or a mixed question of law and fact 

depends on whether the parties dispute the underlying facts.” Id. “When the facts 

underlying the defendant’s decision to prosecute are disputed, the trier of fact must 

weigh evidence and resolve conflicts to determine if probable cause exists, as a mixed 

question of law and fact.” Id. (citing Akin, 661 S.W.2d at 920). “It has long been true, 

however, that ‘when the facts are not contested, and there is no conflict in the evidence 

directed to that issue, the question of probable cause is a question of law which is to be 

decided by the court.’” Id. (quoting Ramsey v. Arrott, 64 Tex. 320, 323 (1885) (citing

Landa v. Obert, 45 Tex. 539, 543 (1876) (“what facts and circumstances amount to 

probable cause is a pure question of law”))).

b) Discussion

Appellants argue that the facts known to them supported the objective elements 

of trespass under section 30.05(a) of the Texas Penal Code, which provides:

A person commits an offense if the person enters or remains on or in 

property of another, including residential land, agricultural land, a 

recreational vehicle park, a building, or an aircraft or other vehicle, without 

effective consent and the person:

(1) had notice that the entry was forbidden; or

(2) received notice to depart but failed to do so.

TEX. PENAL CODE ANN. § 30.05(a) (West Supp. 2011).

According to appellants, the evidence showed that they knew: (1) Shelton had 

conveyed his lot to Winter who claimed to be the 100% owner; (2) owners complained 

that Shelton had moved but was still golfing on the ACC golf course; (3) Winter was 

paying the taxes and assessments; (4) Shelton and Winter gave no explanation that 
13

would authorize Shelton to use the golf course; (5) Shelton refused to discuss or explain 

why he thought he could use the facilities; (6) Shelton had been warned that if he 

appeared and could not explain his status, the police would be summoned; and (7) 

Shelton refused to comply with the officer’s requests to leave. In addition, appellants

relied on attorney Walker’s conclusion that the reservation in Shelton’s deed and the 

purported power of attorney were invalid. Appellants argue that it was “entirely 

reasonable to rely on counsel in this area.”

According to Shelton, the evidence established that appellants could not have 

reasonably and honestly believed that he was a trespasser because the evidence 

showed that they knew: (1) he had purchased a home at ACC in 1995; (2) Staples 

never personally saw Shelton move out of ACC; (3) Staples admitted that he knew 

Shelton was living at ACC; (4) Staples knew that Mrs. Shelton had not conveyed away 

her interest in the property at ACC, and that as an owner, Mrs. Shelton and her spouse, 

Shelton, were entitled to full use of ACC amenities including the golf course; (5) Staples 

had Winter’s letter dated October 8, 2004, that said Shelton was residing at ACC as he 

had been for the prior ten years; (6) appellant Staples never spoke with Shelton about 

where he was living; (7) Staples never knocked on Shelton’s door at ACC to see if he 

was there; (8) Staples agreed based upon documents he has now seen that Shelton 

was not a trespasser on the day of arrest; (9) ACCOA Rules require that three infraction 

letters be sent before legal action is taken, and none were sent to Shelton; (10) Staples 

did not investigate where Shelton lived; and (11) Staples knew that golf was very 

important to Shelton, and that he played every day.
14

Shelton points out that a defendant’s motives, grounds, beliefs, or other 

information upon which the defendant acted will support lack of probable cause. See

Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006) (“To rebut this 

presumption, the plaintiff must produce evidence that the motives, grounds, beliefs, or 

other information upon which the defendant acted did not constitute probable cause.”). 

According to Shelton, Staples “disliked [him] from the very first day he met him in April 

2001.” “[Staples’s] very first act as president was to have Moravitz write a letter to 

Winter about Shelton’s residency status.”

Finally, Shelton notes that, to the extent appellants are attempting to rely upon 

advice of counsel as a defense, they failed to plead advice of counsel as an affirmative 

defense and it is therefore waived. Furthermore, Shelton argues, “[t]here was no jury 

instruction requested or given that advice of counsel supported lack of probable cause.” 

Moreover, Shelton argues, “Staples approved the October 11, 2004 threatening letter 

written by ACCOA’s lawyer addressed to Winter and Shelton, which stated that if 

Shelton played golf he would be reported to the police as a trespasser.” According to 

Shelton, “ACCOA’s attorney’s time records show that he did not provide any legal 

advice on ownership or perform any type of title search prior to the arrest.” Shelton 

states, “He was not asked to do either.”

Appellants disagree, arguing that “Shelton’s glaring problem is that in 2009[

2

] he, 

his wife, and Winter all believed that his deed to Winter was valid and Winter owned 

100% of the lot. If the Sheltons did not own the lot, they could not be members.” 

With respect to the contention that Staples knew Shelton was residing at ACC, 

appellants argue that mere residency did not give him a right to use the amenities. 

 

2

“2009” appears to be a typographical error, the intended year of reference being 2004.
15

According to appellants, Shelton “needed to establish some other basis, e.g., he was a 

renter, etc.” Moreover, appellants argue that Staples had reason to believe the 

Sheltons no longer resided there. The Sheltons left the house for an extended period; 

other owners told Moravitz and Staples that the Sheltons moved out when Winter 

moved in. 

With respect to the contention that because Staples knew Mrs. Shelton had not 

signed the deed to Winter and therefore knew she remained an owner, thus entitling 

Shelton to use the amenities as her spouse, appellants argue that Staples did not know 

the legal effect of her failure to sign because he knew nothing about community 

property law. According to appellants, in 2004, Staples “did not know if that meant she 

continued to legally own the lot or if the deed might be void.” 

With respect to Shelton’s contention that Staples agreed that based on 

documents Staples later saw, Shelton was not a trespasser, appellants argue that 

Shelton is incorrect. According to appellants, “[Staples] said that if Mrs. Shelton had 

retained her interest in the lot and the trial court finds the documents true, then Shelton 

was not a trespasser.” In any event, appellants argue, “[l]ater events and knowledge 

are not material to what [appellants] knew or believed in 2004; probable cause is 

determined only by the events prior to instituting any criminal proceedings.”

Finally, with respect to the advice of counsel, appellants argue that Shelton “cites 

no authority that it is an affirmative defense that must be pled or requires a jury finding.” 

Appellants point out that the evidence was admitted without objection. Appellants argue 

that Shelton is incorrect in asserting that Walker did not advise appellants about 

ownership. According to appellants, Walker prepared a memorandum for Staples and 
16

Moravitz in January 2004, advising them about the deed. Furthermore, before the 

arrest, Walker obtained Shelton’s deed to Winter and the address on Shelton’s driver’s 

license, which was the Kiwi Street address in McAllen. In Walker’s opinion, the deed 

transferred ownership from Shelton to Winter and Shelton was therefore trespassing.

It is clear from the foregoing that the jury was presented with sharply conflicting 

evidence and arguments on the issue of appellants’ probable cause for believing 

Shelton was committing criminal trespass by playing golf on the ACC golf course on the 

morning of October 12, 2004. The probable-cause determination required the jury to 

decide (1) the facts that appellants could have “honestly and reasonably believed” to be 

true before they called the police and (2) whether, given those facts, a reasonable 

person would believe that a crime had been committed. See Richey, 952 S.W.2d at 

517. These facts were hotly disputed at trial. Therefore, the jury was required to weigh 

the evidence and resolve conflicts to make the probable-cause determination. See id. 

at 518. We are reminded that “[j]urors are the sole judges of the credibility of the 

witnesses and the weight to give their testimony.” City of Keller, 168 S.W.3d at 819. 

“They may choose to believe one witness and disbelieve another.” Id. “Reviewing 

courts cannot impose their own opinions to the contrary.” Id.

Under the circumstances of this case, given that the jury was presented with 

evidence and testimony that sharply conflicted in virtually every material respect, we 

conclude that the test for legal sufficiency is met because “the evidence at trial would 

enable reasonable and fair-minded people to reach the verdict under review.” See

Keller, 168 S.W.3d at 827. Specifically, reasonable and fair-minded people could have 

concluded from the evidence that appellants did not honestly, or did not reasonably, 
17

believe that Shelton was committing criminal trespass before they called the police. We 

further conclude that the test for factual sufficiency is met because the verdict is not

contrary to the overwhelming weight of the evidence such that it is clearly wrong and 

unjust. See Ellis, 971 S.W.2d at 406-07.

Accordingly, sub-issue two is overruled. 

3. Initiation of Criminal Prosecution

In their third sub-issue, appellants argue that the evidence is legally and factually 

insufficient to prove that a criminal prosecution was initiated against Shelton. According 

to appellants, prosecution of a misdemeanor offense, such as the offense in this case,

begins with the filing of a sworn complaint in justice court or municipal court. See TEX.

CODE CRIM. PROC. ANN. art. 45.018 (West 2006) (“Complaint”); id. art. 45.019 (West 

2006) (“Requisites of Complaint”). In relevant part, the Texas Code of Criminal 

Procedure defines a “complaint” to mean “a sworn allegation charging the accused with 

the commission of an offense.” See id. art. 45.018. A complaint must be sworn to 

before an “officer authorized to administer oaths.” Id. art. 45.019(d). Appellants argue 

that a criminal prosecution against Shelton was never initiated because the complaint 

that Staples signed and delivered to Officer Rodriguez was not sworn to and was never 

filed in justice court or municipal court. Thus, according to appellants, no criminal 

prosecution of Shelton was ever “initiated.”

The Texas Supreme Court’s decision in Lieck, which drew extensively from the 

relevant portions of the Restatement (Second) of Torts, is instructive, if not controlling,

for purposes of our analysis with respect to the elements of malicious prosecution. In 
18

Lieck, the Texas Supreme Court cited with approval the following formulation found in 

the Restatement:

A private person who initiates or procures the institution of criminal 

proceedings against another who is not guilty of the offense charged is 

subject to liability if (a) he initiates or procures the proceedings without

probable cause and primarily for a purpose other than that of bringing an 

offender to justice; and (b) the proceedings have terminated in favor of the 

accused.

Lieck, 881 S.W.2d at 292 (citing RESTATEMENT (SECOND) OF TORTS § 653). 

Section 654 of the Restatement (Second) of Torts defines the term “criminal 

proceedings” and explains when “criminal proceedings are instituted” for purposes of 

malicious prosecution:

(1) The term “criminal proceedings” includes any proceeding in which a 

government seeks to prosecute a person for an offense and to impose 

upon him a penalty of a criminal character.

(2) Criminal proceedings are instituted when

(a) process is issued for the purpose of bringing the person 

accused of a criminal offense before an official or tribunal whose 

function is to determine whether he is guilty of the offense charged, 

or whether he shall be held for later determination of his guilt or 

innocence; or

(b) without the issuance of process an indictment is returned or an 

information filed against him; or

(c) he is lawfully arrested on a criminal charge.

RESTATEMENT (SECOND) OF TORTS § 654 (2012).

Although appellants argue that Shelton’s arrest is insufficient to initiate a criminal 

proceeding, this is not the position taken in the Restatement (Second) of Torts, as 

comment e to section 654 clarifies:

Even without the issuance of any process, or indictment or information, 

criminal proceedings may be instituted by lawful and valid arrest of the 
19

accused on a criminal charge. If the arrest is not a valid one, an action for 

malicious prosecution will not lie unless some further step is taken, such 

as bringing the accused before a magistrate for determination whether he 

is to be held. If there is nothing more than the false arrest and the 

accused is released without any further proceeding, his remedy is an 

action for false imprisonment. If the arrest is valid and lawful, false 

imprisonment will not lie. But the arrest is then an initial step in a criminal 

proceeding; and if it is made or instigated without probable cause, the 

remedy is by an action for malicious prosecution.

Id. § 654, comment e.

The parties agree that, at the time of Shelton’s arrest, Officer Rodriguez told 

Shelton that he was taking him to the police station because “they filed charges and 

they signed a complaint.” See Lieck, 881 S.W.2d at 292 (“A person initiates a criminal 

prosecution if he makes a formal charge to law enforcement authorities.”); All Am. Tel., 

Inc. v. USLD Communs., Inc., 291 S.W.3d 518, 533 (Tex. App.—Fort Worth 2009, pet. 

denied) (“A defendant initiates a prosecution when it files formal charges against the 

plaintiff.”). 

The specific information given to Officer Rodriguez was that Shelton was 

trespassing on the golf course and that appellants wanted him removed. Based on this 

information, Officer Rodriguez believed Shelton was committing an offense in his 

presence, prompting him to lawfully arrest Shelton without a warrant. See TEX. CODE 

CRIM. PROC. ANN. art. 14.01(b) (West 2005). This constitutes the initiation of a criminal 

proceeding, as explained in the illustration given in the Restatement (Second) of Torts:

A, maliciously and without probable cause, informs a police officer that B 

has committed a felony. Acting on this information, the officer makes a 

valid arrest of B. He then discovers that B is innocent and releases him 

without any further steps to prosecute him. A is subject to liability to B for 

malicious prosecution.

RESTATEMENT (SECOND) OF TORTS § 654, comment e, Illustration 1 (2012).
20

We conclude that the test for legal sufficiency is met because “the evidence at 

trial would enable reasonable and fair-minded people to reach the verdict under review.” 

See Keller, 168 S.W.3d at 827. Specifically, reasonable and fair-minded people could 

have concluded from the evidence that appellants initiated a criminal prosecution of 

Shelton. We further conclude that the test for factual sufficiency is met because the 

verdict is not contrary to the overwhelming weight of the evidence such that it is clearly 

wrong and unjust. See Ellis, 971 S.W.2d at 406-07.

Accordingly, appellants’ third sub-issue is overruled.

4. Procurement of Prosecution

In sub-issue four, appellants argue that the evidence is insufficient to prove 

appellants procured prosecution of Shelton. According to appellants, assuming there 

was a prosecution, they could not have procured it because “the person procures the 

prosecution by providing information he knows to be false; negligence or failing to 

provide all information is insufficient.”

In Lieck, the Texas Supreme Court compared the “initiation” and “procurement” 

elements of a claim for malicious prosecution to the element of causation for other torts, 

concluding that the approach taken by the Restatement (Second) of Torts was 

preferable to traditional principles of common law causation:

The RESTATEMENT concepts of initiation and procurement are better 

suited to malicious prosecution cases than the more general idea of 

causation. In such cases in the future, the jury should be asked, not 

whether the defendant “caused” criminal proceedings, but whether he 

either “initiated” or “procured” them, depending on the nature of the case.

See Lieck, 881 S.W.2d at 293. In this passage, the Court suggests that the relevant 

inquiry is disjunctive, rather than conjunctive: whether the defendant either initiated or 
21

procured criminal proceedings. Id. This is the approach of the Restatement (Second) 

of Torts, which provides in relevant part: “A private person who initiates or procures the 

institution of criminal proceedings against another who is not guilty of the offense 

charged is subject to liability . . . .” RESTATEMENT (SECOND) OF TORTS § 653. 

In deciding appellants’ third sub-issue, we concluded that the evidence was 

legally and factually sufficient to support the jury’s finding that appellants initiated a 

criminal proceeding against Shelton. Therefore, it is unnecessary to address 

appellants’ contention that the evidence was legally and factually insufficient to prove 

that appellants procured criminal proceedings. See TEX. R. APP. P. 47.1. Accordingly, 

appellants’ fourth sub-issue is overruled.

5. Malice

In their fifth sub-issue, appellants argue that the evidence is legally and factually 

insufficient to prove appellants acted with malice. According to appellants, “Here, the 

only actor was Staples and there is no evidence he acted with ill will, evil motive, or 

gross indifference to the rights of others so as to amount to a willful or wanton act.” 

Appellants argue that Staples “consulted counsel about Shelton’s status several times

over a period of months . . . [and] [t]he advice of counsel is evidence of lack of malice.” 

Furthermore, according to appellants, “Staples did not ask the officer to arrest Shelton; 

he submitted a statement only after Shelton demanded it and the officer requested it.” 

Appellants argue that there is no evidence of malice because they “did everything 

possible to avoid a confrontation.” 

“Malice may be established by either direct or circumstantial evidence.” Thrift v. 

Hubbard, 974 S.W.2d 70, 80 (Tex. App.—San Antonio 1998, pet. denied). “Malice has 
22

been defined as ill will or evil motive, or such gross indifference or reckless disregard for 

the rights of others as to amount to a knowing, unreasonable, wanton, and willful act.” 

Luce v. Interstate Adjusters, Inc., 26 S.W.3d 561, 566 (Tex. App.—Dallas 2000, no pet.) 

(citing Ellis, 870 S.W.2d at 69). “To establish malice, it is not necessary to prove that 

the defendant acted with personal spite or ill will; it is sufficient to show the defendant 

committed wrongful acts in reckless disregard of another's rights and with indifference 

as to whether the party would be injured.” Id. “This element of malice may be inferred 

from a lack of probable cause.” Id. (citing Fisher v. Beach, 671 S.W.2d 63, 67 (Tex. 

App.—Dallas 1984, no writ)). “However, lack of probable cause may not be inferred 

from a finding of malice.” Id. at 566 n. 2. 

In Guernsey Community Federal Credit Union v. Gonzalez, 539 S.W.2d 896 

(Tex. Civ. App.—El Paso 1976, writ ref’d n.r.e.), the El Paso Court of Appeals adopted 

Dean Prosser’s approach to malice in the context of malicious prosecution:

The defendant’s improper purpose usually is proved by circumstantial 

evidence. The plaintiff must establish malice in addition to the absence of 

probable cause; but, since there can be no legitimate purpose in a 

prosecution unless there is an honest belief in the guilt of the accused, it is 

generally agreed that the lack of probable cause may give rise to an

inference of malice, sufficient to carry the question to the jury.

Id. at 900 (citing Prosser, LAW OF TORTS, 4th ed., at 848-849); see also Digby v. Texas 

Bank, 943 S.W.2d 914, 922 (Tex. App.—El Paso 1997, writ denied).

We begin by noting that Staples admitted that, from the very first day he met 

Shelton in April 2001, he did not like him. The evidence presented to the jury at trial 

established that Staples was not the only actor, however, as appellants argue on 

appeal. Rather, both Staples and Moravitz participated in the conduct that initiated a 

criminal proceeding against Shelton. Staples and Moravitz pointed out Shelton as a 
23

trespasser. They informed Officer Rodriguez that Shelton had been warned by 

Walker’s letter not to be there, had refused to accept a second copy of the letter, had 

caused problems for years, and had refused to leave. Moravitz told Officer Rodriguez 

that Shelton was not an owner and had no right to be there. Staples told Officer 

Rodriguez that they wanted Shelton removed from the golf course.

Appellants knew Shelton was continuing to assert a right to use the golf course 

under the reservation clause in his deed to Winter, but they did not disclose this material 

information to Officer Rodriguez. See Forbes v. Lanzl, 9 S.W.3d 895, 899 (Tex. App.—

Austin 2000, pet. denied) (“[A] failure to fully and fairly disclose all material information 

or knowingly providing false information . . . are relevant to the issue[] of malice . . . in a 

malicious prosecution claim.”). Moreover, although Winter’s letter advised that “[a]s 

everyone knows James Shelton and Cheryl Shelton have been residents in Alamo 

Country club for the past 10+ years,” appellants did not inform Officer Rodriguez that 

Shelton resided at ACC or that they were confused or uncertain about whether Shelton 

resided at ACC. See id.

Finally, in deciding appellant’s second sub-issue, we concluded that the evidence 

was legally and factually sufficient to support the jury’s finding that appellants lacked 

probable cause. See Luce, 26 S.W.3d at 566 (“This element of malice may be inferred 

from a lack of probable cause.”); Gonzalez, 539 S.W.2d at (“it is generally agreed that 

the lack of probable cause may give rise to an inference of malice”).

Based on the evidence of personal animosity of Staples toward Shelton, 

appellants’ failure to disclose material information to Officer Rodriguez, and the absence 

of probable cause, we conclude that the test for legal sufficiency is met because “the 
24

evidence at trial would enable reasonable and fair-minded people to reach the verdict 

under review.” See Keller, 168 S.W.3d at 827. Specifically, reasonable and fair-minded 

people could have concluded from the evidence that appellants acted with malice when 

they initiated a criminal prosecution of Shelton. We further conclude that the test for 

factual sufficiency is met because the verdict is not contrary to the overwhelming weight 

of the evidence such that it is clearly wrong and unjust. See Ellis, 971 S.W.2d at 406-

07.

Accordingly, appellant’s fifth sub-issue is overruled.

6. Statute of Limitations

In their sixth sub-issue, appellants argue that the evidence established as a 

matter of law that Shelton’s claim for malicious prosecution was barred by the statute of 

limitations.

Limitations is an affirmative defense, see TEX. R. CIV. P. 94, and appellants 

therefore had the burden to “plead, prove, and secure findings to sustain [their] plea of 

limitations.” Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988). At 

trial, appellants did not request that the trial court submit their limitations defense to the 

jury, and they did not object to the trial court’s failure to submit the limitations issue. 

See Ogu v. C.I.A. Servs., No. 01-09-01025-CV, 2011 Tex. App. LEXIS 1979, at *16 n.4 

(Tex. App.—Houston [1st Dist.] Mar. 17, 2011, no pet.) (mem. op.) (“[T]he statute of 

limitations is an affirmative defense that must be pleaded and tried in the trial court or it 

is waived; it may not be raised for the first time after trial.”) (citing Hollingsworth v. 

Hollingsworth, 274 S.W.3d 811, 814-15 (Tex. App.—Dallas 2008, no pet.) (holding that 

limitations defense is waived when first raised in motion for new trial)). Accordingly, 
25

appellants waived the limitations defense. See Pitts & Collard, L.L.P. v. Schechter, 01-

08-00969-CV, 2011 Tex. App. LEXIS 10214, at *52 (Tex. App.—Houston [1st Dist.] 

Dec. 29, 2011, no pet.) (mem. op. on reh’g) (“No issue on limitations was submitted to 

the jury, and [defendant] did not object to this omission or request that a question on 

limitations be submitted. He has therefore waived his limitations defense.”) (citing 

Roberts v. Holmes, 412 S.W.2d 947, 949 (Tex. Civ. App.—Eastland 1966, no writ) 

(holding that appellants waived limitations defense by failing to request jury question or 

object to trial court’s failure to submit limitations issue)). Accordingly, appellants’ sixth 

sub-issue is overruled.

We have considered each of the six sub-issues fairly included in appellants’ first 

issue and have overruled each. Accordingly, appellants’ first issue is overruled. 

III. FALSE IMPRISONMENT

In appellants’ second issue, which consists of two sub-issues, they argue that (1) 

question 2 failed to properly submit the elements of false imprisonment and (2) Shelton 

failed to prove its elements.

A. Jury Charge Error

In their first sub-issue, appellants argue that the jury question failed to instruct the 

jury that appellants must direct the officer to arrest or knowingly provide false 

information.

1. Applicable Law

“The essential elements of a cause of action for false imprisonment are: (1) willful 

detention; (2) without consent; and (3) without authority of law.” See Sears, Roebuck & 

Co. v. Castillo, 693 S.W.2d 374, 375 (Tex. 1985).
26

2. Standard of Review

When the content of a trial court’s definition is challenged as legally incorrect, our 

standard of review is de novo. See Crump, 330 S.W.3d at 221.

3. Discussion

The charge instructed the jury that “‘[f]alsely imprison’ means to willfully detain 

another without legal justification, against his consent, whether such detention be 

affected by violence, by threat, or by any other means that restrains a person from 

moving from one place to another.” The instruction, which tracks the Texas Pattern 

Jury Charge, includes the essential elements of the offense, as articulated by the Texas 

Supreme Court in Castillo. Castillo, 693 S.W.2d at 375. Accordingly, appellants’ first 

sub-issue is overruled.

B. Sufficiency of the Evidence

In their second and third sub-issues, appellants argue that the evidence is legally 

and factually insufficient to prove that they (1) lacked probable cause; and (2) instigated 

Shelton’s arrest.

1. Applicable Law

“Although a private citizen may be liable for directing an arrest that results in a 

false imprisonment, the law will not generally permit inferring such direction simply from 

a report of crime made to the authorities.” Wal-Mart Stores, Inc. v. Rodriguez, 92 

S.W.3d 502, 510 (Tex. 2002). “Such an inference is justified when a party provides 

information in its report that it knows is false.” Id.
27

2. Discussion – Probable Cause

In the second sub-issue to their second issue, appellants challenge the legal and 

factual sufficiency of the evidence to prove lack of probable cause by incorporating by 

reference the arguments they made in support of the second sub-issue to their first 

issue, which we have overruled based our conclusion that the evidence is legally and 

factually sufficient to support the jury’s finding that appellants lacked probable cause to 

believe that Shelton was committing criminal trespass by playing golf at the ACC golf 

course on the morning of October 12, 2004. For the same reasons given in our 

discussion of appellants’ second sub-issue to their first issue, we overrule appellants’

second sub-issue to their second issue. See TEX. R. APP. P. 47.1.

3. Discussion – Instigation of Arrest

In the third sub-issue to their second issue, appellants challenge the legal and 

factual sufficiency of the evidence to prove that appellants instigated Shelton’s arrest. 

Appellants argue that they did not detain Shelton; it was Officer Rodriguez who detained 

him. According to appellants, there is no evidence that they requested that Officer 

Rodriguez arrest Shelton. Appellants argue that their identification of Shelton as the 

perpetrator of an offense was not sufficient to instigate his arrest.

“In Texas, . . . liability for false imprisonment extends beyond those who willfully 

participate in detaining the complaining party to those who request or direct the 

detention.” Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 507 (Tex. 2002). “False 

imprisonment’s first element may thus be satisfied by conduct that is intended to cause 

one to be detained, and in fact causes the detention, even when the actor does not 
28

participate in the detention.” Id. The Texas Supreme Court has “sometimes referred to 

this causation standard as ‘instigation’ of the false imprisonment.” Id.

“When the alleged detention results from an unlawful arrest, to prove instigation a 

plaintiff must show that the defendant clearly directed or requested the arrest.” Id. “As 

the Restatement explains, ‘in the case of an arrest, [instigation] is the equivalent, in 

words or conduct, of ‘Officer, arrest that man!’’” Id. (quoting Restatement (Second) of 

Torts § 45A, cmt. c). “To hold a third party liable for instigating the detention, then, ‘the 

act of arrest [must be] made by the officer, not of his or her own volition, but to carry out 

the request of the defendant.’” Id. (quoting 32 AM. JUR. 2D False Imprisonment § 41 

(1995)).

The uncontroverted evidence is that appellants summoned the police to the ACC 

golf course and identified Shelton as a criminal trespasser to Officer Rodriguez for the 

purpose of having Shelton arrested and removed from the golf course, which is what 

subsequently happened. At trial, Officer Rodriguez testified that he had no discretion to 

refuse to arrest Shelton once Staples’s signed the criminal complaint alleging Shelton 

was a trespasser. In a written statement made after the detention and arrest, Staples 

confirmed the sequence of events and appellants’ role in instigating Shelton’s arrest, 

stating, “When [Shelton] refused my request to leave and not play golf, we called the 

police and had him arrested.” 

We conclude that the test for legal sufficiency is met because “the evidence at 

trial would enable reasonable and fair-minded people to reach the verdict under review.” 

See Keller, 168 S.W.3d at 827. Specifically, reasonable and fair-minded people could 

have concluded from the evidence that appellants instigated Shelton’s arrest. We 
29

further conclude that the test for factual sufficiency is met because the verdict is not

contrary to the overwhelming weight of the evidence such that it is clearly wrong and 

unjust. See Ellis, 971 S.W.2d at 406-07. Accordingly, appellants’ third sub-issue is 

overruled.

We have considered the three sub-issues fairly included in appellants’ second 

issue and have overruled each. Accordingly, appellants’ second issue is overruled.

IV. MALICE

In their third issue, which consists of two sub-issues, appellants argue that there 

is no evidence or insufficient evidence to support an award of exemplary damages.

A. Applicable Law

Chapter 41 of the Texas Civil Practice and Remedies Code permits exemplary 

damages where the plaintiff proves by clear and convincing evidence that harm resulted 

from “malice.” See TEX. CIV. PRAC. & REM. CODE ANN. § 41.003(a)(2) (West Supp. 

2011). “‘Malice’ means a specific intent by the defendant to cause substantial injury or 

harm to the claimant.” Id. § 41.001(7) (West 2008). Malice may be proven by direct or 

circumstantial evidence. See Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 

1998).

B. Standard of Review

In reviewing the legal sufficiency of evidence to support a finding that must be 

proved by clear and convincing evidence, an appellate court must “look at all the 

evidence in the light most favorable to the finding to determine whether a reasonable 

trier of fact could have formed a firm belief or conviction that its finding was true.” Sw. 

Bell Tel. Co. v. Garza, 164 S.W.3d 607, 609 (Tex. 2004) (citing In re J.F.C., 96 S.W.3d 
30

256, 266 (Tex. 2002)); see also Bennett v. Reynolds, 315 S.W.3d 867, 872 n.1 (Tex. 

2010). 

C. Specific Intent to Cause Substantial Harm

In their first sub-issue, appellants argue that Shelton failed to prove that 

appellants acted with specific intent to cause Shelton substantial harm. Specific intent 

means that the actor desires to cause the consequences of his act, or he believes the 

consequences are substantially certain to result from it. In re Estate of Russell, 311 

S.W.3d 528, 535 (Tex. App.—El Paso 2009, no pet.) (citing Reed Tool Co. v. Copelin, 

689 S.W.2d 404, 406 (Tex. 1985)). 

According to appellants, Shelton failed to prove specific intent because there is 

no evidence that they anticipated that Shelton’s arrest for criminal trespass would cause 

substantial harm. At most, appellants argue, they intended for Shelton to suffer “a brief 

detention and some financial burden,” but not substantial harm. The evidence at trial, 

however, established that appellants acted with the desire to cause Shelton to be 

arrested, jailed, prosecuted, and fined for the crime of criminal trespass. The jury found 

that appellants acted without probable cause. The jury also found that Shelton (1) 

suffered physical pain and mental anguish, for which it awarded $200,000; (2) suffered 

disfigurement, for which it awarded $1,500; and (3) required medical care, for which it 

awarded $1,980. Assuming the foregoing is substantial harm, the question is whether 

the evidence is sufficient to establish that appellants acted with specific intent to cause 

Shelton to suffer substantial harm. We conclude that it is not.

In cases involving punitive damages, “evidence contrary to a verdict cannot be 

disregarded.” See City of Keller, 168 S.W.3d at 817. “This is not to say a reviewing 
31

court may credit a losing party’s explanations or excuses if jurors could disregard them.” 

Id. at 818. “But a reviewing court cannot review whether jurors could reasonably 

disregard a losing party’s explanations or excuses without considering what they were.” 

Id. 

In this case, appellants argue that the evidence negated the possibility that they 

acted with specific intent to cause substantial harm. We agree.

First, appellants point to the fact that, before they summoned police to the ACC 

golf course to arrest Shelton, they and their counsel, Walker, corresponded with Shelton 

in writing, seeking clarification from Shelton regarding his status with respect to 

ownership, residence, and use of the ACC amenities. Appellants note that Shelton 

could have, but did not, provide them with clarification on those issues. 

Second, before calling the police to report Shelton as a criminal trespasser, 

appellants gave Shelton written notice, advising him of their conclusion that he was no 

longer a member of ACC and therefore had no right to use the golf course or other 

amenities of ACC. In their written notice, appellants informed Shelton of the legal and 

factual grounds for their conclusion. Appellants warned Shelton that if he returned to 

the ACC golf course, he would be reported as a trespasser. Again, Shelton could have, 

but did not, attempt to dispute the assertions made by appellants in their written notice, 

except by proceeding to play golf on the ACC golf course. 

Third, on the day of his arrest, Shelton refused Staples’ request to discuss the 

matter, proceeding instead to play golf. Appellants did not immediately call the police, 

as they warned Shelton in their letter, but instead sought to have other members who 
32

were present sponsor Shelton as a guest. Only after that attempt failed did appellants 

resort to calling the police. 

Fourth, before the police were called, appellants warned Shelton they were going 

to call the police. Shelton told Staples he did not care if the police were called and even 

offered Staples his cell phone to make the call. 

Fifth, when Officer Rodriguez arrived, Shelton told the officer, “Please, do give 

them their show.” He told the officer to arrest him if he had a warrant. Officer 

Rodriguez asked Shelton to leave the golf course, but Shelton refused. Officer 

Rodriguez testified that he would not have arrested Shelton if he had left the golf 

course. Officer Rodriguez also testified that he might not have arrested Shelton if he 

had explained his right to be there. 

In our discussion of the first sub-issue in appellant’s first issue, we concluded that 

the evidence is legally and factually sufficient to support the jury’s finding that appellants 

acted without probable cause. Subsequently, in deciding the fifth sub-issue in 

appellant’s first issue, we noted that, for purposes of malicious prosecution, “malice may 

be inferred from a lack of probable cause.” See Luce, 26 S.W.3d at 566. This, 

however, does not hold true for establishing malice for purposes of exemplary 

damages. As we previously noted, in the former context, “Malice has been defined as ill 

will or evil motive, or such gross indifference or reckless disregard for the rights of 

others as to amount to a knowing, unreasonable, wanton, and willful act.” Id. In the 

context of exemplary damages, however, malice means “a specific intent by the 

defendant to cause substantial injury or harm to the claimant.” See TEX. CIV. PRAC. &

REM. CODE ANN. § 41.001(7). Moreover, in the context of exemplary damages, malice 
33

must be proven by clear and convincing evidence, not merely by a preponderance of 

the evidence. Sw. Bell Tel. Co., 164 S.W.3d at 609. 

Applying these standards, we conclude that the foregoing evidence tends to 

prove that appellants acted with the intent to enforce what they believed to be their 

valid, albeit tenuous, authority to exclude Shelton from the ACC golf course, which they 

based on the limited facts known to them, the advice they received from counsel, and 

their interpretation of the deed to Winter and the declaration, articles, bylaws, and rules 

and regulations for the ACCOA. The jury disbelieved and rejected appellants’ assertion 

of probable cause in having Shelton arrested for criminal trespass based on the 

foregoing, and we will not disturb its finding in that regard; however, we are compelled 

to conclude that the evidence is not legally sufficient to prove that appellants acted with 

specific intent to cause substantial harm under the much more demanding definition and 

standard of proof required to establish malice in the context of exemplary damages. 

Accordingly, appellants’ first sub-issue is sustained. 

D. Suffered Substantial Harm

In their second sub-issue, appellants argue that the evidence is insufficient to 

prove Shelton suffered substantial harm. Given our disposition of appellants’ first subissue, there is no need to address the merits of appellants’ second sub-issue. See TEX.

R. APP. P. 47.1. Accordingly, we dismiss appellants’ second sub-issue as moot.

V. BREACH OF CONTRACT

In their fourth issue, which consists of four sub-issues, appellants argue that (1) 

question 1 failed to properly submit Shelton’s claim for breach of contract and (2) the 

evidence is insufficient to prove breach of contract. 
34

A. Jury Charge Error

In their first sub-issue, appellants argue that the trial court erred in submitting 

Shelton’s claim for breach of contract to the jury in broad form.

1. Applicable Law

“[W]hen a trial court submits a single broad-form liability question incorporating 

multiple theories of liability, the error is harmful and a new trial is required when the 

appellate court cannot determine whether the jury based its verdict on an improperly 

submitted invalid theory.” Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex. 

2000). “[W]hen a jury bases a finding of liability on a single broad-form question that 

commingles invalid theories of liability with valid theories, the appellate court is often 

unable to determine the effect of this error.” Id. “It is essential that the theories 

submitted be authorized and supported by the law governing the case. If they are not, 

the appellate court must, at a minimum, be able to determine whether properly 

submitted theories constituted the basis of the jury’s verdict.” Id.

2. Standard of Review

We review a challenge to the trial court’s jury charge under an abuse of 

discretion standard. Tex. Dep't of Hum. Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 

1990); Moss v. Waste Mgmt. of Tex., Inc., 305 S.W.3d 76, 81 (Tex. App.—Houston [1st 

Dist.] 2009, pet. denied) (citing European Crossroads’ Shopping Ctr., Ltd. v. Criswell, 

910 S.W.2d 45, 54 (Tex. App.—Dallas 1995, writ denied)). A trial court abuses its 

discretion when it acts in an arbitrary or unreasonable manner, or if it acts without 

reference to any guiding rules or principles. Tex. Dep’t of Hum. Servs., 802 S.W.2d at 

649; Moss, 305 S.W.3d at 81. A trial court has wide discretion in submitting instructions 
35

and jury questions. Moss, 305 S.W.3d at 81 (citing Howell Crude Oil Co. v. Donna Ref. 

Partners, Ltd., 928 S.W.2d 100, 110 (Tex. App.—Houston [14th Dist.] 1996, writ 

denied)).

3. Discussion

Question 1 of the jury charge asked, “Did ALAMO COUNTRY CLUB fail to 

comply with the terms of the agreement?” The jury was given the following instruction 

with respect to the agreement:

The Agreement between James Shelton and the Alamo Country Club 

consists of the Declarations of Record Phase III, Lots 252 through 641, 

First Amendment to the Covenants, Conditions, and Restrictions 

Applicable to Alamo Country Club Subdivision, City of Alamo, Hidalgo 

County, Texas, the deeds, the Articles of Incorporation and the Articles of 

Amendment to the Articles of Incorporation of Alamo Country Club 

Owners Association.

A trial court errs by submitting to the jury theories of liability that are not legally 

viable, e.g., liability theories that have not been pled, are not supported by the legally 

sufficient evidence, or are not supported by operative law. See TEX. R. CIV. P. 277 

(requiring that the trial court submit issues that are raised by the pleadings and the 

evidence); Casteel, 22 S.W. 3d at 390 (stating that Rule 277 implicitly mandates that the 

jury be able to base its verdict on legally valid questions and instructions); see also 

Romero v. KPH Consol., Inc., 166 S.W.3d 212, 215 (Tex. 2003) (“[B]road-form 

submission cannot be used to put before the jury issues that have no basis in the law or 

the evidence.”). Thus, although Rule 277 of the Texas Rules of Civil Procedure 

requires the trial court to submit broad-form questions whenever feasible, submission of 

broad-form liability question may be infeasible when the trial court is uncertain about 

whether particular theories of liability should be submitted. TEX. R. CIV. P. 277; Casteel, 
36

22 S.W.3d at 390. In that circumstance, judicial economy may favor separate 

submission of liability theories to prevent the need to re-try the cause of action if the trial 

court reaches an incorrect decision with regard to which theories of liability should be 

submitted to the jury. Casteel, 22 S.W.3d at 390.

Here, Shelton alleged three breaches: (1) ACCOA hired attorneys and sued 

Shelton without approval by the membership or the Board; (2) ACCOA failed to give 

Shelton three written warnings before calling the police; and (3) ACCOA prevented him 

from using ACC amenities. Appellants argue that broad-form submission prevents them 

from showing that the jury based their “yes” answer on an invalid or unproven theory.

Although Shelton’s live pleading alleged three ways in which appellants breached 

their agreement with him, our review of the record shows that the jury was asked to 

consider only one of the three as a basis for awarding damages. Specifically, the jury 

was asked to decide whether appellants breached their agreement with Shelton by 

preventing him from using the ACC golf course. This is clear from the charge, which 

asked the jury to decide whether there was a breach of the agreement and, if so, to 

decide what sum of money would fairly and reasonably compensate Shelton for “loss of 

use of property.” 

During closing arguments, counsel for Shelton told the jury the following:

Question number one is the question concerning the contract. Did Alamo 

Country Club fail to comply with the terms of agreement? That is, did they 

fail to give him the benefits of membership? Did they fail to treat him as a 

member? Did they breach their agreement with him? And I submit to you 

the evidence is uncontroverted, that, yes, they breached their agreement 

to him. Yes, they did not let him play golf. And yes, they did not let him 

use the common areas. And yes, these were all violations. . . . So I will 

submit to you the [answer] to question . . . number one is yes.

Counsel for appellants told the jury the following:
37

Let’s start with question one . . . . This is the one that asks about whether 

we failed to comply with an agreement with Mr. Shelton. We didn’t even 

know what Mr. Shelton’s status was. That’s what this was all about, trying 

to find out was he an owner? Was he a renter? Was he a guest? Was 

he a resident? What are they claiming?

And let me just make one brief comment about this business about being 

a resident and the residence rule. There is a document in evidence that 

they referred to throughout the case as the residence rule. That document 

does not say a thing about what a resident can do. It has a definition of a 

resident, but nowhere does it say a resident can play golf or do anything 

else. I encourage you to look for that document because it does not say a 

resident can play golf. 

You heard from our witnesses that under some circumstances someone 

can come in and register as a resident and they can use the facilities but 

Mr. Shelton would never do that. And, in fact, this question you’ve got it’s 

tailor made for Mr. Shelton. Because Mr. Shelton concealed material facts 

from Alamo Country Club. Mr. Shelton had knowledge of those facts. 

Alamo Country Club did not have knowledge of those facts. 

That’s why we are in this situation. Because Mr. Shelton has reasons why 

he thinks he’s entitled to play golf but he won’t share them with anyone. 

And just before he is arrested when there is one last chance and [Staples] 

comes up to him and says, sir, have you seen our letter? Can we sit down 

and talk about this? Mr. Shelton says, no, I’m going to go play golf. 

Having seen the letter knowing that means the police are going to be 

called he still says, no, I’m going to go play golf.

. . . 

Now, let’s get to the questions that talk about money. The first one asked 

you for an amount for loss of use of the property. This has to do with 

those few weeks that Mr. Shelton was not allowed to use the golf course 

at Alamo Country Club. 

From the foregoing it is clear that the only theory the jury was asked to decide 

was whether appellants breached their agreement with Shelton by preventing him from 

using the ACC facilities and specifically the golf course. The award of damages on 

Shelton’s breach of contract claim in the amount of $500 was based on “loss use of 

property,” which is consistent with only one theory of breach of contract being submitted 
38

to the jury. Therefore, the trial court did not submit Shelton’s breach of contract claim to 

the jury in broad form, as appellants argue. Accordingly, appellants’ first sub-issue is 

overruled.

B. Sufficiency of the Evidence

1. Approval of Suit Against Shelton

In their second sub-issue, appellants argue that the evidence is insufficient to 

establish breach of contract because the Declarations and Articles did not require either 

the membership or board to approve filing suit or hiring the attorneys. In relevant part, 

Shelton’s live petition alleged the following:

[Shelton] would show that ACC brought this lawsuit without a majority vote 

of its membership in support of a lawsuit or majority vote of its board of 

directors in violation of its Articles of Incorporation and amendments, and 

its Bylaws and amendments, and [Shelton] sues for resulting damages, 

including, but not limited to loss of use of Alamo Country Club facilities, 

wrongful arrest damages, and attorney’s fees, and for enforcement of the 

Articles of Incorporation and amendments.

[Shelton] references ACC’s Article 2(c) which states:

To make and perform contracts of every kind for any lawful 

purpose within limits as to amount, determined by a majority 

of the members of the corporation, with any person, firm, 

association, corporation, municipality, state, government, or 

municipal or political subdivision.

There was no membership vote to hire or contract with attorney(s) to 

represent ACC to sue [Shelton]. There was no membership vote to sue 

[Shelton]. There was no board of directors vote to sue [Shelton].

As set forth above in our discussion of appellants’ first sub-issue, we have 

concluded that this theory of liability, though alleged in Shelton’s live pleading, was 

ultimately not submitted to the jury. The jury’s award of damages on Shelton’s breach 

of contract claim was for “loss use of property,” not for failure to secure approval for the 
39

lawsuit against Shelton by a vote of the board or by a vote of the membership. 

Accordingly, appellants’ second sub-issue is overruled.

2. Three Written Warnings

In their third sub-issue, appellants argue that the evidence is legally and factually 

insufficient to support the jury’s verdict on Shelton’s claim for breach of contract 

because the Declarations and Articles did not require ACCOA to give Shelton three 

written notices of violations before calling the police.

In relevant part, Shelton’s live petition alleged the following:

ACC’s rules and regulations set forth a specific procedure it must follow 

when it comes to enforcing the restrictions and conditions of ACC. This 

procedure includes the application of penalties for violations of ACC’s 

governing rules and regulations. Specifically, the rules and regulations 

outline a three-step process in applying penalities. These are:

1. VIOLATION, 1st OFFENSE

Violator will be advised by the manager, in writing, of the 

infraction.

2. VIOLATION, 2nd OFFENSE

Violator will be advised, in writing, by the manager and 

violator will be suspended from use of all amenities for a 

period of two weeks from date of written advisement. In 

addition, the violator’s name will be posted on the club 

bulletin board and published in the Chatterbox.

3. VIOLATION, 3rd OFFENSE

Violator will be advised, in writing, by the manager and 

violator will be suspended from use of all amenities for 30 

days from the date of written advisement. In addition, the 

violator’s name be posted on the club bulletin board and 

published in the Chatterbox, with possible legal action to 

follow.

ACC did not follow its own three-step process and instead had [Shelton] 

arrested and filed suit against him to enjoin him from using Alamo Country 

Club facilities.
40

Again, as set forth above in our discussion of appellants’ first sub-issue, we have 

concluded that this theory of liability, though alleged in Shelton’s live pleading, was 

ultimately not submitted to the jury. The jury’s award of damages on Shelton’s breach 

of contract claim was for “loss use of property,” not for failure to give Shelton three 

written warnings before calling the police or filing suit. Accordingly, appellants’ third 

sub-issue is overruled.

3. Use of ACC Amenities

In their fourth sub-issue, appellants argue that the evidence is legally and 

factually insufficient to support the jury’s finding of breach of contract because the 

declarations and articles of incorporation do not give owners the right to use any of the 

common areas of the ACC, such as the golf course. At trial, the uncontroverted 

evidence established that the ACC amenities, such as the golf course, are owned and 

maintained by ACCOA for the benefit of ACCOA members. There was also 

uncontroverted evidence that defined ACCOA members to include all persons who 

acquire title, legal or equitable, to any lot in the subdivision. Finally, the uncontroverted 

evidence established that Shelton and his wife acquired title to lot #260 in 1995, 

whereby they became ACCOA members with the right to use ACC amenities. 

At trial, appellants maintained that Shelton was divested of his status as an

ACCOA member in February 1998, when he signed a warranty deed, purporting to 

convey lot #260 to Winter for $93,000. Although Shelton included a reservation in the 

deed stating that the conveyance did “not include the voting rights or the common 

ground rights or values,” appellants argued that the reservation was invalid and void. 

Appellants also argued that, although Shelton’s wife did not sign the deed, the 
41

conveyance was nonetheless valid at least as to Shelton’s one-half interest in the 

community property, thus stripping Shelton of his membership in the ACCOA even 

though his wife remained a member.

Shelton took the position that the deed was void and of no effect because he and 

his wife acquired lot #260 together, as husband and wife, and the property was 

therefore acquired as community property, which could only be conveyed by a deed 

signed by both spouses. In support of this, he offered expert testimony from attorney 

John King. Additionally, an expert report from King evaluating the validity of the deed 

from Shelton to Winter was admitted into evidence. In the report, King opined, in 

relevant part, as follows:

Mr. Shelton’s attempted conveyance to Mr. Winter under Dalton would 

have been invalid as an illegal partition of community property. See 

Dalton v. Jackson, 691 S.W.2d 765, 768 (Tex. App.—Austin 1985, no writ) 

(one spouse may not convey to a third party, so as to effectuate a partition 

by creating a tenancy-in-common between the remaining spouse and the 

third party); see also Tex. Fam. Code Ann. § 3.102(c) (Vernon 2005).

Under Vallone, one spouse cannot alone convey or encumber joint 

management community property unless spouses have otherwise agreed. 

Vallone v. Miller, 663 S.W.2d 97, 99 (Tex. App.—Houston [14th Dist.] 

1983, writ ref’d n.r.e.). No power of attorney in writing or other agreement 

has been provided to me showing that Mrs. Shelton agreed to the 

attempted conveyance.

Standard 14.60 of the Texas Title Examination Standards states that if 

property is acquired during marriage by a deed naming both spouses as 

grantees, an examiner may not give effect to a subsequent conveyance of 

the property unless (1) it is joined by both spouses or (2) it was made by 

the husband before January 1, 1968, and did not convey homestead 

property.

The pleadings I have reviewed indicated that Mr. Shelton was arrested on 

Alamo Country Club premises on October 12, 2004 while playing golf. It is 

my opinion that Mr. Shelton had a legal right to be on the premises of the 

Alamo Country Club at the time of his arrest for criminal trespass.
42

We agree with the conclusions reached in King’s report. Appellants argue that 

the deed to Winter was valid at least as to Shelton’s interest in the property, thus 

creating a tenancy-in-common between Winter and Shelton’s wife. The Austin Court of 

Appeals rejected that position in its decision in Dalton, where the court held that “one 

spouse may not convey his or her interest in joint community property to a third party, 

so as to effectuate a partition by creating a tenancy-in-common between the remaining 

spouse and the third party.” Dalton v. Don J. Jackson, Inc., 691 S.W.2d 765, 768 (Tex. 

App.—Austin 1985, no writ). We reach the same conclusion, noting that this result 

preserves the character of the property, which was acquired by Shelton and his wife as 

community property. See Carter v. Carter, 736 S.W.2d 775, 780 (Tex. App.—Houston 

[14th Dist.] 1987, no writ) (“The separate or community nature of property is determined 

by the time and circumstances of its acquisition.”). 

Although appellants are correct in noting that a spouse may change community 

property into separate property, we have recognized this only when a spouse gifts or

conveys his interest in community property to his spouse as her separate property. 

Pankhurst v. Weitinger & Tucker, 850 S.W.2d 726, 730 (Tex. App.—Corpus Christi 

1993, writ denied) (“A gift by the husband to the wife of his interest in community 

property would become the separate property of the donee [spouse].”) (citing Hilley v. 

Hilley, 342 S.W.2d 565, 568 (Tex. 1961)). That is not what took place in this case, as

the conveyance at issue purported to be from one spouse to a third party, not from one 

spouse to another. 

Finally, appellants cite Vallone v. Miller, 663 S.W.2d 97, 99 (Tex. App.—Houston 

[14th Dist.] 1983, writ ref’d n.r.e.) in support of their contention that “other courts have 
43

concluded a spouse may convey his undivided half interest to a third party without the 

spouse’s consent, resulting in a co-tenancy.” We conclude that Vallone does not 

support their position.

In Vallone, which was an appeal from a take-nothing judgment on appellant’s suit 

seeking specific performance of a contract to convey real property, the court was 

presented with “a completed written agreement to convey property [that] had been 

executed by appellant as purchaser and appellee [husband] as seller.” Id. at 97-98. 

The court noted that in the blank for the name of the “sellers” were the names of both 

the husband and his wife, but only the husband signed the agreement. Id. at 98. The 

husband and wife “contended that the property was joint management community 

property which could not be conveyed or encumbered by one spouse alone; and 

asserted the contract was incomplete on its face and it had no force or effect because 

[the wife’s] signature did not appear on the document.” Id. After a jury found “that the 

property was joint management community property, the trial judge entered [a take 

nothing] judgment in favor of [husband and wife].” Id. 

On appeal, the court noted that “[i]t is clear that a husband has the right to 

convey his one-half interest in non-homestead joint management community property 

without the signature of his wife on the conveyance.” Id. Then, the court explained:

The earnest money contract is incomplete on its face and is not capable of 

being enforced by specific performance. While both husband and wife are 

named as sellers only the husband’s signature appears on the contract. 

The description of the property to be sold is not in terms of the husband’s 

“undivided one-half interest” or other words to indicate that only [the 

husband’s] interest was involved. From the terms of the document it is 

evident the parties intended that the agreement would be effective only 

upon execution by both [husband] and [wife] as sellers. Once there was 

the proper execution, the contract was to involve the interests of both 

[husband and wife].
44

Id. 

Similarly, in this case, the deed to Winter was not stated in terms of Shelton’s 

“undivided one-half interest” or other words to indicate that only Shelton’s interest was 

involved. On the contrary, from the terms of the deed, it appears that the conveyance 

purported to involve the interests of both Shelton and his wife, though only Shelton’s 

signature appears on the document.

In Vallone, the court was faced with the same question presented in this case:

“whether the signature of one spouse was binding upon both husband and wife.” Id. at 

99. The court noted that “[o]ne spouse cannot alone convey or encumber joint 

management community property unless the spouses have otherwise agreed.” Id. The 

court concluded “[w]ithout a ‘power of attorney in writing or other agreement’ to the 

contrary, [the husband] had no authority to contract to dispose of the entire joint 

management community property without his wife joining in the contract.” Id. We reach 

the same conclusion. There was no evidence offered at trial of a power of attorney or 

other written agreement between Shelton and his wife authorizing Shelton to dispose of 

lot #260 to Winter, as set forth in the deed. Accordingly, we conclude that the deed was 

void.

The evidence was legally and factually sufficient to establish that, at all relevant 

times, Shelton and his wife were members of the ACCOA, had the right to use ACC 

amenities, including the ACC golf course, and that appellants deprived Shelton of his 

right to use the ACC amenities by having him arrested on the golf course for criminal 

trespass. Accordingly, appellants’ fourth sub-issue is overruled.
45

We have considered the four sub-issues fairly included in appellants’ fourth issue 

and have overruled each. Accordingly, appellants’ fourth issue is overruled.

VI. ATTORNEY’S FEES

In their fifth issue, which consists of three sub-issues, appellants argue that there 

is no evidence or insufficient evidence to support the jury’s award of $95,000 for 

reasonable and necessary attorney’s fees.

A. Conclusory Opinion Testimony

In their first sub-issue, appellants argue that the evidence is legally and factually 

insufficient to support an award of attorney’s fees in the amount of $95,000 because the 

only evidence is the testimony by Shelton’s attorney, Katie Klein, who gave a 

conclusory opinion on the total fee for the entire case and the client ledger for Shelton’s 

file, which did not document who worked on the file or what they did. 

Klein testified that she was licensed 31 years ago and is board certified in civil 

trial law and family law. Her resume was admitted into evidence. Two other lawyers in 

Klein’s firm also represented Shelton in this matter. They have been practicing for close 

to 20 years and over 25 years, respectively. Klein charged Shelton a contractual hourly 

rate of $150, which, Klein testified, is below her normal rate of $325. According to Klein, 

anything in the $300 hourly range would be reasonable in the community. Klein 

charged Shelton an hourly rate of $60 for legal assistants. According to Klein, a 

reasonable hourly rate for legal assistants in Hidalgo County is between $50 and $85. 

Klein testified that she had performed legal work for Shelton in this matter for five 

years leading up to trial. Her firm defended Shelton against ACCOA’s claims and 
46

prosecuted his claims against appellants for breach of contract, malicious prosecution, 

false imprisonment, intentional infliction of emotional distress, and civil conspiracy. 

Klein’s client ledger for Shelton was admitted into evidence. It showed the total 

hours worked by the attorneys and legal assistants. For the period through December 

13, 2009, the ledger showed that total fees were $87,313.64, of which $68,533.84 had 

been paid. Unbilled fees were $18,799.80. Klein estimated that attorney’s fees for trial 

would be $3,000 per day. That brought the total to approximately $100,000 through 

verdict. 

According to Klein, “All of the facts having to do with the breach of the covenants 

and having to do with the contract claims have the same facts that have to do with the 

tort claims.” In Klein’s opinion, “to prove one you have to prove them all.” According to 

Klein, this was also true of the defense of the claims brought by ACCOA: “his defense 

is that he had a contractual right to be where he was and to do what he was doing.” On 

cross examination, Klein testified that she did not believe it was possible to segregate 

the tort claims and the claim for attorneys’ fees relating to breach of contract. According 

to Klein, they are inextricably intertwined and cannot be separated. She testified, “I 

believe that they cannot be separated because they’re all the same issues of his right to 

be there [on the golf course], his being a resident, his being arrested, and his being 

mistreated by the country club. I don’t think you can separate them.” Klein was later recalled as a witness, and she testified that, after reviewing invoices for Shelton’s case, 

she had determined that approximately 5% of the fees were related solely to the tort 

claims.
47

Appellants did not offer any evidence to controvert Klein’s testimony or the client

ledger.

1. Applicable Law

Generally, the party seeking to recover attorney’s fees carries the burden of 

proof. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991). “A reasonable 

fee is one that is not excessive or extreme, but rather moderate or fair.” Garcia v. 

Gomez, 319 S.W.3d 638, 642 (Tex. 2010). The reasonableness of attorney’s fees is 

ordinarily left to the fact-finder, and a reviewing court may not substitute its judgment for 

the jury’s. Barker v. Eckman, 213 S.W.3d 306, 314 (Tex. 2006).

2. Discussion

Appellants argue that the evidence is legally and factually insufficient to support 

the jury’s award of attorney’s fees in the amount of $95,000 because Klein’s testimony 

was conclusory. Specifically, appellants complain that Klein “did not describe any 

specific tasks, when they were done, who did them, or how they supported the contract 

claim.”

“An attorney’s testimony about the reasonableness of his or her own fees is not 

like other expert witness testimony.” Garcia v. Gomez, 319 S.W.3d 638, 641 (Tex. 

2010). “Although rooted in the attorney’s experience and expertise, it also consists of 

the attorney’s personal knowledge about the underlying work and its particular value to 

the client.” Id. According to the Texas Supreme Court, “The testimony is similar to that 

of a property owner whose personal knowledge qualifies him to give an opinion about 

his own property’s value.” Id. (citing State v. Cent. Expressway Sign Assocs., 302 

S.W.3d 866, 874 (Tex. 2009); Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 566 (Tex. 
48

2002)). “The attorney’s testimony is not objectionable as merely conclusory because 

the opposing party, or that party’s attorney, likewise has some knowledge of the time 

and effort involved and if the matter is truly in dispute, may effectively question the 

attorney regarding the reasonableness of his fee.” Id. “[W]here the testimony of an 

interested witness is not contradicted by any other witness, or attendant circumstances, 

and the same is clear, direct and positive, and free from contradiction, inaccuracies, and 

circumstances tending to cast suspicion thereon, it is taken as true, as a matter of law.” 

Id. at 642.

In this case, the award of attorney’s fees was not based merely on a conclusory 

statement that a $95,000 fee was reasonable, as appellants suggest. The evidence 

established an hourly rate of $150, which went uncontested as a reasonable hourly rate 

for the attorneys representing Shelton based on their professional experience, 

qualifications, and reputations in the community. The 35-page client ledger established 

the number of hours worked on Shelton’s case and when those hours were worked. 

There was no dispute as to the authenticity of the ledger as a business record or to the 

accuracy of the information it contained. Thus, the ledger provided a non-conclusory 

and reliable basis for establishing the amount of time the attorneys spent working on 

Shelton’s case.

To the extent that appellants contend that Shelton was required to put on specific 

evidence concerning each individual task performed by his attorneys during the course

of their 5-year representation, as well as testimony to establish exactly why each 

individual task was reasonable and necessary, their contention is made without 

appropriate citation to supporting authority. See TEX. R. APP. P. 38.1(i). There was no 
49

dispute at trial about the actual number of hours Shelton’s attorneys spent performing 

necessary services or the reasonableness of the hourly rate charged. See Ford Motor 

Co. v. Garcia, 363 S.W.3d 573, 580 (Tex. 2012) (“[A] reasonable hourly rate multiplied 

by the number of hours spent performing necessary services within the guardian ad 

litem’s role yields a reasonable fee.”). The only contested issue was whether it was 

possible to segregate the services rendered to establish the total number of hours spent 

performing services relating solely to Shelton’s tort claims. Klein testified that it was 

5%. We note that in their third sub-issue, appellants have made a separate challenge 

to the sufficiency of the evidence on the issue of segregation of attorney’s fees. 

Accordingly, we will address that contention in connection with appellants’ third subissue.

We conclude that the test for legal sufficiency is met because “the evidence at 

trial would enable reasonable and fair-minded people to reach the verdict under review.” 

See Keller, 168 S.W.3d at 827. Specifically, reasonable and fair-minded people could 

have concluded from the evidence that $95,000 was a reasonable amount for attorney’s 

fees. We further conclude that the test for factual sufficiency is met because the verdict 

is not contrary to the overwhelming weight of the evidence such that it is clearly wrong 

and unjust. See Ellis, 971 S.W.2d at 406-07. Accordingly, appellants’ first sub-issue is 

overruled.

B. Per Se Unreasonable

In their second sub-issue, appellants argue that under any rational standard, 

$95,000 is not a reasonable fee to collect $500. Appellants argue that “[t]he jury must 
50

consider the amount involved and the result obtained; the degree of success on the 

contract claim is the most critical factor on what fee is reasonable.” 

In this case, the jury charge asked the jury to decide what amount would be “a 

reasonable fee for the necessary services of [Shelton’s] attorneys in this case.” The 

jury was instructed “to consider attorney’s fees necessary for James Shelton’s claim for 

breach of agreement only and not attorney’s fees incurred in connection with any other 

claims.” The jury was not instructed that it “must consider the amount involved and the 

result obtained,” as appellants argue. Nor was the jury instructed that “the degree of 

success on the contract claim is the most critical factor on what fee is reasonable,” as 

appellants contend. Moreover, appellants did not object to this portion of the charge or 

request that the jury be given either of those instructions. 

Our mandate is to review the sufficiency of the evidence based on the charge 

actually submitted. Barker v. Eckman, 213 S.W.3d 306, 313 (Tex. 2006) (citing WalMart Stores, Inc. v. Sturges, 52 S.W.3d 711, 715 (Tex. 2001) (“[A]n appellate court is to 

review the evidence according to the jury charge given and the jury findings in response 

to that charge.”)). We have already reviewed sufficiency of the evidence in connection 

with appellants’ first sub-issue and concluded that it was both legally and factually 

sufficient to support the award of $95,000 in attorney’s fees. Appellants’ second subissue presents nothing further for the Court to review. Accordingly, appellants’ second 

sub-issue is overruled.
51

C. Segregation

In their third sub-issue, appellants argue that the evidence is legally and factually 

insufficient to support the jury’s award of attorney’s fees because Shelton failed to prove 

what services advanced both the contract and tort claims. 

“[T]he need to segregate fees is a question of law.” Tony Gullo Motors I, L.P. v. 

Chapa, 212 S.W.3d 299, 312 (Tex. 2006). The courts of appeals have generally 

(though not always) applied a de novo standard of review. Id. Nonetheless, “it may 

often be impossible to state as a matter of law the extent to which certain claims can or 

cannot be segregated; the issue is more a mixed question of law and fact for the jury.” 

Id. 

As noted above, Klein initially testified that the services could not be segregated 

and then later testified that she had determined that 5% of the services were related 

solely to the tort claims. This is precisely the type of testimony courts have required in 

other cases involving similar issues. See Flagship Hotel, Ltd. v. City of Galveston, 117 

S.W.3d 552, 566 n.7 (Tex. App.—Texarkana 2003, pet. denied) (“Flagship argues that 

the segregation standard is difficult to meet. We disagree and note that segregated 

attorney’s fees can be established with evidence of unsegregated attorney’s fees and a 

rough percent of the amount attributable to the breach of contract claim.”); see also

Tony Gullo Motors, 212 S.W.3d at 314 (“Here, Chapa’s attorneys did not have to keep 

separate time records when they drafted the fraud, contract, or DTPA paragraphs of her 

petition; an opinion would have sufficed stating that, for example, 95 percent of their 

drafting time would have been necessary even if there had been no fraud claim.”); 

Stewart Title Guar. Co. v. Aiello, 941 S.W.2d 68, 73 (Tex. 1997) (noting that claimant’s 
52

attorney "testified that approximately twenty-percent of his time and fifteen-percent of 

his paralegal’s time concerned issues predating the agreed judgment”); Med. Specialist 

Group, P.A. v. Radiology Assocs., L.L.P., 171 S.W.3d 727, 738 (Tex. App.—Corpus 

Christi 2005, pet. denied) (“In his affidavit, Radiology Associates’ counsel. . . testified 

that his fees for the defense of the case totaled $460,087.00, and approximately forty 

percent of these fees were directly related to Saratoga’s antitrust claims.”). Appellants’ 

third sub-issue is overruled.

We have considered the three sub-issues fairly included in appellants’ fifth issue 

and have overruled each. Accordingly, appellants’ fifth issue is overruled.

VII. ACTUAL DAMAGES

In their sixth issue, which consists of three sub-issues, appellants argue that 

there is insufficient evidence to support the jury’s award of actual damages.

A. Damages for Breach of Contract

In their first sub-issue, appellants argue that the evidence is insufficient to 

establish that Shelton suffered $500 loss of use damages from any breach of contract.

The jury heard uncontroverted evidence that Shelton was barred from using ACC 

amenities from October 12, 2004 through November 8, 2004. Shelton testified that he 

regularly played golf at ACC and would play three rounds per day. There was testimony 

that the fee for a non-member to play on the ACC golf course as a guest was $8. From 

this evidence, the jury could have found that Shelton was deprived of using the golf 

course for 27 days, the lost use of the golf course was worth $24 per day, and Shelton’s 

total loss was $648 for the entire period. On this record, the jury’s award of $500 for 
53

Shelton’s lost use of the facilities is just compensation for which the evidence is legally 

and factually sufficient. See Qaddura v. Indo-European Foods, Inc., 141 S.W.3d 882, 

888 (Tex. App.—Dallas 2004, pet. denied) (“The universal rule for measuring damages 

for the breach of a contract is just compensation for the loss or damage actually 

sustained.”). Accordingly, appellants’ first sub-issue is overruled.

B. Damages for Pain, Suffering, Mental Anguish

In their second sub-issue, appellants argue that the evidence is insufficient to 

establish that malicious prosecution or false imprisonment caused Shelton pain, 

suffering, and mental anguish to support a jury award of $200,000. 

Mental anguish damages cannot be awarded without either “direct evidence of 

the nature, duration, or severity of [plaintiff’s] anguish, thus establishing a substantial 

disruption in the plaintiff's daily routine,” or other evidence of “a high degree of mental 

pain and distress” that is “more than mere worry, anxiety, vexation, embarrassment, or 

anger.” Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995). Compensation 

can only be for mental anguish that causes “substantial disruption in daily routine” or “a 

high degree of mental pain and distress.” Saenz v. Fidelity & Guar. Ins. Underwriters, 

925 S.W.2d 607, 614 (Tex. 1996). Courts should “closely scrutinize” awards of mental 

anguish damages. Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 54 (Tex. 1997). 

There must also be evidence that the amount of mental anguish damages awarded is 

fair and reasonable, and the appellate court must perform a “meaningful evidentiary 

review” of the amount found. Saenz, 925 S.W.2d at 614.

In Saenz, which appellants cite in support of their argument, the Texas Supreme 

Court held that the plaintiff’s testimony—“I worried about that lot”—was an insufficient 
54

basis for awarding mental anguish damages because it did not establish a “substantial 

disruption in daily routine” or “a high degree of mental pain and distress.” Id. In this 

case, in contrast, there was direct evidence of the nature, duration, and severity of 

Shelton’s mental anguish, establishing that there was a substantial disruption in his 

daily routine. As noted above, Shelton is an avid golfer, who played up to three times a 

day on the ACC golf course prior to his arrest. He testified that he enjoyed playing golf 

and did it for the exercise. The arrest struck at the core of Shelton’s day-to-day routine, 

affecting his lifestyle and his means of maintaining physical health and emotional wellbeing. 

Shelton testified that “it is by far the most stressful event that ever took place in 

my life, and I thought that I always worked under high stress circumstances for every 

employment job I had.” Being handcuffed was a “big emotional” event. He was publicly 

humiliated by being arrested in front of 15 of his neighbors. He felt hurt. He felt that he 

had been placed in jeopardy and his pulse went up and he had difficulty calming down. 

According to his wife, Shelton remained in a state of disbelief after his release from jail. 

He did not sleep well at night. He would wake up clenching his jaw. The back of his 

mouth hurt from grinding his teeth. Clumps of his hair started falling out. He lost 

approximately 20% of his hair following the arrest. He attributed the teeth-grinding and 

hair loss to stress caused by the arrest.

Appellants argue that expert testimony is necessary to establish that Shelton’s 

emotional distress caused his teeth-grinding and hair loss; however, other courts have 

permitted lay testimony on similar issues and we are not persuaded that this is an area 

reserved exclusively for expert witness testimony. See, e.g., Toles v. Toles, 45 S.W.3d 
55

252, 263 (Tex. App.—Dallas 2001, pet. denied) (“According to Wife, she suffered from 

an ulcer, and Husband's treatment of her caused her great emotional distress, caused 

her to feel worthless and ashamed, and caused her to grind her teeth so hard that some 

are cracked.”).

Shelton’s social life and family life were also disrupted. He believed he “had 

better just lay back from this and just be quiet.” He quit attending board meetings. He 

completely withdrew from activities at ACC other than playing golf. He quit playing in 

the men’s golf league. He quit attending social dinners at ACC. Shelton’s wife testified 

that they were no longer welcome at ACC, which affected both of them. 

Shelton also testified that the arrest itself was physically painful. He felt 

discomfort when his hands were handcuffed. According to Shelton, the handcuffs were 

put on very tightly and he suffered bruising around the wrists that lasted six weeks.

We conclude that this is evidence of mental pain and distress that was more than 

mere worry, anxiety, vexation, embarrassment, or anger. See Goodman v. Page, 984

S.W.2d 299, 306-07 (Tex. App.—Fort Worth 1998, pet. denied) (holding that testimony 

regarding stomach problems, harm to reputation, public and private humiliation, being 

devastated, feeling betrayed, and subjection to derogatory comments constituted high 

degree of mental pain and distress); see also Latham v. Castillo, 972 S.W.2d 66, 70 

(Tex. 1998) (plaintiffs’ testimony that conduct “made me throw up . . . sick, nervous, 

mad,” “hurt me a lot,” and “my heart was broken. I was devastated, I felt physically ill” 

held “some evidence that conduct caused a high degree of mental pain and distress”).

Accordingly, appellants’ second sub-issue is overruled.
56

C. Damages for Disfigurement

In their third sub-issue, appellants argue that the evidence is insufficient to 

establish that Shelton suffered any disfigurement and the award of damages in the 

amount of $1,500 for disfigurement was excessive. According to appellants, the hair 

loss and dental problems suffered by Shelton are simply not disfiguration. As 

appellants note in their brief, the Texas Supreme Court has observed that 

“[d]isfigurement has been defined as that which impairs or injures the beauty, symmetry, 

or appearance of a person or thing; that which renders unsightly, misshapen or 

imperfect, or deforms in some manner.” Goldman v. Torres, 341 S.W.2d 154, 160 (Tex. 

1960). As Shelton points out, this Court has previously upheld a $500,000 award for 

disfigurement caused by the loss of two front teeth. See Pentes Design, Inc. v. Perez, 

840 S.W.2d 75, 81 (Tex. App.—Corpus Christi 1992, writ denied). We disagree with 

appellants’ assertion that the hair loss and dental problems suffered by Shelton are 

categorically outside the scope of a legally-compensable injury. The jury’s award of 

$1,500 in damages was “within the discretion of the fact finder.” See id. at 80. The 

amount of damages is “not excessive.” See id. at 81. We conclude that the evidence is 

legally and factually sufficient to support the award. Accordingly, appellants’ third subissue is overruled.

We have considered the three sub-issues fairly included in appellants’ sixth issue 

and have overruled each. Accordingly, appellants’ sixth issue is overruled.

VIII. PUNITIVE DAMAGES

In their seventh issue, appellants argue that the jury’s award of punitive damages 

is excessive and violates due process. As set forth above in our discussion of 
57

appellants’ third issue, we have concluded that the evidence is legally insufficient to 

support an award of exemplary damages based on the jury’s finding of malice. 

Accordingly, it is unnecessary to decide appellants’ seventh issue pertaining to the size 

of the award. See TEX. R. APP. P. 47.1.

IX. CROSS-ISSUE

In his cross-issue, Shelton argues that the trial court erred in modifying its 

February 23, 2010 judgment and entering its May 24, 2010 modified final judgment in 

reducing the $500,000 award in punitive damages against ACCOA to $201,500 to 

conform to the punitive damages cap. Having sustained appellants’ third issue 

challenging the sufficiency of the evidence to support the jury’s finding of malice, the 

only basis for its award of exemplary damages, we vacate the award in its entirety and 

overrule Shelton’s cross issue.

X. CONCLUSION

We reverse the trial court’s award of $201,500 in exemplary damages, render 

judgment that Shelton take nothing by way of his claim for exemplary damages, and 

affirm the remainder of the judgment.

____________________

ROGELIO VALDEZ

Chief Justice

Delivered and filed the 

31st day of August, 2012.