Opinion issued April 20, 2023.

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-17-00316-CV

———————————

WESLEY GILBREATH, JR., STACEY GILBREATH POWELL, ELLIOT 

GILBREATH, AND MARK RITTER; SIGNAD, LTD., SIGNAD GP, LLC, 

BEN NEVIS WEST, LTD., CULCREUCH WEST, LLC, BIG SIGNS & 

LEASING #1, LTD., BIG SIGNS & LEASING #2, LTD., BIG SIGNS & 

LEASING #3, LTD., BIG SIGNS & LEASING #4, LTD., BIG SIGNS & 

LEASING #5, LTD., AND BIG SIGNS & LEASING #6, LTD., BIG EASTEX 

#1, LTD., REALTY ACQUISITIONS & HOLDINGS, LLC, AND BIG 

LEASING, LLC

Appellants

V.

LISA R. GILBREATH HORAN, INDIVIDUALLY AND AS TRUSTEE OF 

THE LISA GILBREATH HORAN 2001 IRREVOCABLE TRUST, Appellee

On Appeal from the 80th District Court

Harris County, Texas

Trial Court Case No. 2013-74857
2

OPINION ON REHEARING

Appellee Lisa Gilbreath Horan, Individually and as Trustee of the Lisa 

Gilbreath Horan 2001 Irrevocable Trust, filed a motion for rehearing and a motion 

for en banc reconsideration of our July 14, 2022 opinion and judgment.1 Appellants 

SignAd, Ltd., SignAd GP, LLC, Ben Nevis West, Ltd., Culcreuch West, LLC, Big 

Signs & Leasing #1, Ltd., Big Signs & Leasing #2, Ltd., Big Signs & Leasing #3, 

Ltd., Big Signs & Leasing #4, Ltd., Big Signs & Leasing #5, Ltd., Big Signs & 

Leasing #6, Ltd., Big Leasing, LLC, Big Eastex #1, Ltd., and Realty Acquisitions & 

Holdings, LLC also filed a motion for rehearing.2 We deny the motions for 

rehearing, withdraw our opinion and judgment of July 14, 2022, and issue this 

opinion and judgment in their stead. Our disposition remains the same. 

We dismiss the motion for en banc reconsideration as moot.3

1 See TEX. R. APP. P. 49.1, 49.5.

2 Appellants Wesley Gilbreath, Jr., Stacey Gilbreath Powell, Elliot Gilbreath, and 

Mark Ritter also filed a motion for rehearing of our July 14, 2022 opinion and 

judgment. We issued an order on October 20, 2022 denying their motion for 

rehearing.

3 Because we issue a new opinion, the motion for en banc reconsideration is moot. 

In re Wagner, 560 S.W.3d 311, 312 (Tex. App.—Houston [1st Dist.] 2018, orig. 

proceeding) (“Because we issue a new opinion in connection with the denial of 

rehearing, the motion for en banc reconsideration is rendered moot.”); see also

Poland v. Ott, 278 S.W.3d 39, 41 (Tex. App.—Houston [1st Dist.] 2008, pet.

denied) (stating motion for en banc reconsideration rendered moot by withdrawal 

and reissuance of opinion and judgment); Brookshire Bros., Inc. v. Smith, 176

S.W.3d 30, 41 n.4 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (supp. op. on 

reh’g) (noting that motion for en banc reconsideration rendered moot when motion 

for rehearing granted and new opinion and judgment issue).
3

Wesley Gilbreath, Jr., Stacey Gilbreath Powell, Elliot Gilbreath, and Mark 

Ritter (collectively, “Individual Appellants”) and SignAd, Ltd., SignAd GP, LLC, 

Ben Nevis West, Ltd., Culcreuch West, LLC, Big Signs & Leasing #1, Ltd., Big 

Signs & Leasing #2, Ltd., Big Signs & Leasing #3, Ltd., Big Signs & Leasing #4, 

Ltd., Big Signs & Leasing #5, Ltd., Big Signs & Leasing #6, Ltd., Big Leasing, LLC, 

Big Eastex #1, Ltd., and Realty Acquisitions & Holdings, LLC (collectively, 

“Company Appellants”) appeal the trial court’s amended final judgment rendered 

against them on a jury verdict following a four-week trial. The Individual and 

Company Appellants collectively raise 25 issues (many with multiple sub-parts) 

challenging the judgment rendered against them on a host of claims including 

malicious prosecution, defamation, breach of fiduciary duty, and others. 

We affirm in part, reverse in part, and remand in part.

Background

In 1964, Wesley Gilbreath, Sr. (“Wes, Sr.”), the patriarch of the Gilbreath 

family, founded an advertising company focused on constructing, owning, and 

leasing billboards in prime locations throughout Texas and parts of Louisiana. 

Although the company was at first a sole proprietorship, it was later incorporated in 

1966 as SignAd, Inc., and then converted into a limited partnership known as 

SignAd, Ltd. In August 2000, SignAd GP, LLC, a Texas limited liability company, 
4

was formed in connection with this corporate conversion to act as the general partner 

of SignAd, Ltd. 

Over the years, Wes, Sr. transferred his original ownership interests in the 

business in equal parts to his children—Lisa Gilbreath Horan (“Lisa”), Wesley

Gilbreath, Jr. (“Wes, Jr.”), Elliott Gilbreath (“Lee”), Stacey Gilbreath Powell 

(“Stacey”), and Brett Gilbreath (“Brett”)—through nearly identical irrevocable 

trusts. Although he also initially transferred an equal interest in the business to his 

daughter Sheree Gilbreath (“Sheree”), he repurchased Sheree’s interest and placed 

the proceeds in a trust for her benefit after she was diagnosed with paranoid 

schizophrenia in her twenties.4 Wes, Sr. then sold that interest to a separate trust he 

established for the benefit of his grandchildren (“Grandchildren’s Trust”). Wes, Jr., 

Lee, Brett, and Mark Ritter (“Mark”) served as trustees of the Grandchildren’s Trust. 

Lisa’s daughter, Noelle, has a one-fourteenth interest in the Grandchildren’s Trust. 

The Gilbreath family business consists of nine Texas limited partnerships, 

each with a general partner organized as a Texas limited liability company. The 

limited partnerships are: SignAd, Ltd., Big Signs & Leasing #1 to #6, Ltd. (six 

numbered partnerships), Big Eastex #1, Ltd., and Ben Nevis West, Ltd. (collectively, 

4 Sheree, who is no longer able to care for herself, lives in a mental health facility. 

Wes, Jr. is the trustee of Sheree’s trust. 
5

“Limited Partnerships”).5 The general partners are: SignAd GP, LLC (general 

partner for SignAd, Ltd.), Culcreach West, LLC (general partner for Ben Nevis 

West, Ltd.), Realty Acquisitions & Holdings, LLC (general partner for Big Eastex 

#1, Ltd.), and Big Leasing, LLC (general partner for the Big Signs & Leasing 

partnerships) (collectively, “General Partners”). The General Partners are managed 

by their respective Board of Managers consisting of Wes, Jr., Lee, Lisa, and Stacey, 

each serving a lifetime appointment.6 The parties refer to the Limited Partnerships 

and General Partners collectively in their briefs as “SignAd Outdoor,” “SignAd 

Outdoor Advertising,” or the “SignAd Enterprise.” For purposes of this opinion, we 

refer to the entities together as “SignAd Outdoor.” 

The Grandchildren’s Trust and Lisa, Wes, Jr., Stacey, Lee, and Brett, as 

trustees of their respective irrevocable trusts, are each limited partners in the Limited 

Partnerships, with each owning an equal one-sixth interest in the partnerships. The

Limited Partnerships are all taxed as S-Corporations, meaning the limited partners—

Wes, Jr., Lee, Stacey, Lisa, Brett, and the Grandchildren’s Trust—are taxed directly 

for the partnerships’ income. Each year, SignAd, Ltd. distributes profits to the 

5 According to the Individual Appellants, Big Signs & Leasing #1 to #6, Ltd. 

construct billboard signs and Big Eastex #1, Ltd. and Ben Nevis West, Ltd. both 

hold real estate interests. 

6 Brett and Wes, Sr. formerly served on the Board of Managers as well.
6

limited partners in equal shares at an amount determined in advance by SignAd GP, 

LLC’s Board of Managers. 

Wes, Sr. expected all his children to be involved with the family business, 

even at a young age.

7

 Wes, Jr. started helping his father at what was then SignAd, 

Inc. when he was ten years old. After he attended college, Wes, Jr. returned to the 

family business and by the age of 25, he was the president of the company in 1984 

or 1985. Wes, Jr. became the President of SignAd GP, LLC in 2000, when the entity 

was created, and he has served in that role ever since. Other siblings also served as 

corporate officers for the Company Appellants, including Lee, who served as 

SignAd GP, LLC’s accountant and controller from the early 1980s until he retired 

in 2000, and Brett, who served as the Vice President of real estate until 2011.

Unfortunately, the siblings did not always work well together. Wes, Jr. and 

Brett had a contentious working relationship that Lisa described as “very strained.” 

In 2004, Brett, who had been the Vice President of real estate, resigned because of 

his conflicts with Wes, Jr. According to Brett, Wes, Jr. “likes to be really involved 

with every single employee,” and had been giving orders to employees who should 

otherwise have been reporting to Brett on real estate matters. 

7 According to Wes, Jr., the sons generally started in labor-intensive roles, such as 

construction and billboard maintenance, while the daughters performed more 

clerical duties. Many of Wes, Sr.’s fourteen grandchildren also worked at SignAd 

Outdoor over the years, as well as other extended family members. 
7

Lisa hired a corporate psychologist, Dr. George Dempsey (“Dr. Dempsey”), 

to consult with the board members, privately and collectively, to mediate their 

conflicts and develop a more efficient and positive working environment. With Dr. 

Dempsey’s help, Wes, Jr. and Brett were able to resolve some of their disagreements 

and establish some ground rules that led Brett to return to the company as the Vice 

President of real estate. The brothers’ working relationship, however, began to 

deteriorate again and, after a major dispute over a real estate issue in 2011, Brett 

decided to resign from the company. Wes, Jr. accused Brett of stealing business 

away from the Company Appellants and fired Brett before he could resign. Brett,

who was out of town in August 2011 handling a real estate issue for work, learned 

that he had been fired when Lisa called him and told him that someone was cleaning 

out his office. 

According to Lisa, Wes, Jr. locked Brett out of the building, and at first 

refused to return some of Brett’s belongings. Lisa disagreed with Wes, Jr.’s 

treatment of Brett and when she tried to intervene to help her younger brother, 

“things got very volatile.” Wes, Jr. not only threatened to fire any employee who 

talked to Brett but followed through with the threat and fired one of the sales 
8

managers who had spoken with Brett. Although he eventually recovered his 

belongings, Brett was never allowed back in the business office.8

Although Brett resigned from the Board of Managers of SignAd GP, LLC9in 

September 2011, he remained on the Board of Managers for the real estate entities 

until he resigned from those boards in February 2014. According to Lisa, Wes, Sr. 

was “devastated” after Brett resigned from SignAd GP, LLC’s Board of Managers. 

After Wes, Sr.’s health began to fail in 2012, he, too, resigned from the board. Lisa 

explained the negative impact these developments had with respect to her place in 

the company:

And as a general rule my father and Brett and I usually agreed and voted 

on a lot of issues together, and then it was just me. And so I was aligned 

against Wes, Jr., Lee and Stacey. So I kind of lost my voice somewhat. 

According to Lisa, 

[B]eginning in about 2010, the real estate meetings had become more 

abbreviated and they were not discussing specific land purchases and 

land sales and allowing me to vote on them or letting me know what 

was going on; and it just seemed kind of strange the lack of information 

that I was getting in the real estate board meetings. So I started asking 

more questions and I was met with hostility and anger and, you know, 

controlling by my brothers; and so I then started asking each meeting 

for an internal audit, which is a normal course of business, to have a 

company audited voluntarily internally to make sure that the books and 

8 Brett met with Lisa and Lee in September 2011 and informed them that he was 

going to resign from SignAd GP, LLC’s board and build his own sign company. 

9

In his letter of resignation, Brett stated that he was resigning from SignAd, Ltd.’s 

Board of Managers. At the time, however, Brett was serving on SignAd GP, LLC’s 

Board of Managers. SignAd, Ltd. does not have a Board of Managers.
9

records and everything is being run properly. And then I was met with 

more hostility and more controlling behavior. 

The tension between Lisa and the remaining board members continued to escalate 

and became progressively worse after Brett and Wes, Sr. resigned from SignAd GP, 

LLC’s Board of Managers in 2011 and 2012, respectively. 

Wes, Sr. died on January 13, 2013. Within days, Lisa began asking questions 

about her father’s will, the Grandchildren’s Trust, and the business overall. For 

example, in a January 24, 2013 email to Wes, Jr., Lee, and Brett, Lisa expressed 

concerns that SignAd Outdoor had been paying for personal and nonbusiness 

expenses, and stated, “I would like to curtail effective immediately any nonbusiness 

related expenditures.” Lisa was concerned particularly about what she considered 

to be excessive payments to her stepmother and stepsiblings. Lisa further stated, “I 

am requesting and am entitled to see a quarterly report of any expenses being paid 

for by SignAd Outdoor Advertising for nonbusiness purposes, including any 

expenses related to our stepmother and stepfamily.” According to Lisa, her 

stepmother’s children and grandchildren were “kind of getting a lot of benefits and 

expenses paid through the company that were not part of the [1989 stock purchase] 

contract.” 

Lisa also began asking questions about Wes, Sr.’s financial affairs and when 

she tried to get a copy of his will from Brett, the executor of Wes, Sr.’s estate, Brett 

told her to contact him when she was not “ill anymore.” Lisa testified that although 
10

she had received financial reports in the past, she had a problem getting the 

information in 2013. She also testified that when she asked for more specific 

information about some expenditures, “Wes, Jr. told me that we were going to meet 

in 30 days to start setting some controls on excessive spending.”

Lisa also began reaching out to Mark in January and February, and trying to 

obtain information about her daughter Noelle’s interests in the Grandchildren’s 

Trust. At one point, Mark told her that there was approximately $20,000 in the 

Grandchildren’s Trust. Lisa suspected that something was wrong because she had 

received “millions of dollars in earnings distributions. Her daughter’s earnings were 

significantly less . . . [she] had only gotten about $10,000 a year.” Lisa testified that 

when she asked the trustees about the apparent discrepancy, “[t]hey basically told 

me it was none of my business and that I was crazy.” 

On January 28, 2013, Lisa sent an email message to Wes, Jr., Lee, and Brett 

regarding the Grandchildren’s Trust. Lisa repeated her request for information and 

stated, “In the kindest, most loving voice I am telling you that I am putting you all 

on notice that I will hold you to the highest fiduciary responsibility regarding the 

partnerships and trusts. Dad is gone now, so no excuses that he forced you. We 

need to strictly adhere to the law.” 

On January 30, 2013, at the Board of Managers meeting for Culcreuch West, 

LLC, Lisa accused her siblings of taking “millions of dollars.” On February 1, 2013, 
11

Lisa also emailed Lee, Wes, Jr., Brett, and Mark and informed them that she believed 

they had breached their fiduciary obligations as trustees and co-trustees of the 

Grandchildren’s Trust, and she called for their immediate resignations. Lisa 

concluded her message by stating that “[f]ailure to do so [would] result in further 

investigation of the matter including your burden of proving specifically where the 

monies have been dispersed.” Nine copies of the email were sent from Lisa’s email 

account in rapid succession. According to Lisa, the duplicative messages had 

resulted from a computer glitch.

Lee responded later that morning and told Lisa that he had “no need to receive 

9 copies of the same email.” He also told Lisa that “no monies [had] been disbursed 

on [their] watch” and she had no basis for her allegations, he questioned her motives 

for making the allegations, and he demanded an apology. Lee also warned Lisa that 

“[f]urther actions along this line and others you showed at the board meetings may 

result in evaluating your fitness to serve in your various capacities––your lifetime 

appointment can be voided if it is determined that you are not ‘able to serve.’” Lee, 

who had copied Wes, Jr., Stacey, Mark, and Brett on the email, asked them to advise 

him on their feelings on the matter and what actions, if any, they believed had to be 

taken. 

That same day, Brett texted Lisa, “We are worried about you. Is everything

okay?” When Lisa reiterated her request for Brett’s resignation and expressed her 
12

concerns about the way the Grandchildren’s Trust had been handled, Brett 

responded, “Don’t isolate yourself sis, back off please. I don’t want any harm to 

come to you. Just once, listen to me.” Lisa replied, “Is someone threatening to harm 

me?” Brett responded, “No, but I’m afraid you might be ousted from the board. I 

warned you/Lee in my last meeting before resigning. You are the minority from 

here on out!! Me & Dad are out as expected, too late for changes now, so get along, 

ok?” The next day, Brett texted Lisa:

If you are called to a fitness test and fail, you will be removed off the 

BODs. At this point it may be best for everyone involved. I asked you 

to back off and again, you failed to listen to me, the one who has been 

patient and loving to you and watched you get more and more inflexible 

and hostile. Call me sis, I love you. 

Lisa testified that she felt threatened by Lee and Brett’s messages. “[T]hey 

were threatening that, in other words, if I kept on asking these questions about 

business matters and pressing that, that they were going to have me committed 

mentally and I’d be removed from the board; and so it was pretty scary.” Lisa 

testified that “the less cooperative and transparent they were, the more concerned” 

she became, and she eventually hired a forensic accountant to audit the SignAd 

Outdoor business. 

On March 1, 2013, Lisa’s attorney, Howard Reiner (“Reiner”), spoke with 

Wes, Jr. on the phone. Reiner sent a letter to Wes, Jr. five days later memorializing 

their conversation. In his March 6, 2013 letter, Reiner asked Wes, Jr., as President 
13

of SignAd GP, LLC, to “provide access to the partnership books and other records 

[of SignAd GP, LLC and SignAd Ltd.] for inspecting and copying, during business 

hours on or before March 19th.” According to the letter, Wes, Jr. had told Reiner 

that he would never provide Lisa with access to the company’s books and records. 

Wes, Jr. testified that he passed this information along to Richard Rothfelder 

(“Rothfelder”), SignAd Outdoor’s corporate lawyer. Wes, Jr. testified that he was 

concerned Lisa would not keep the company’s records confidential, “due to the fact 

primarily that Lisa had already begun contacting some vendors at that point, 

confidentiality was a huge concern for us. We didn’t want to jeopardize this 

information getting out. I didn’t know what she might do, if she might try contacting 

our land owners or customers or what might occur. So confidentiality was a 

requirement to going further.” 

Rothfelder sent a letter to Reiner and informed him that Lisa could come to 

his office to look at the books and records. According to Lisa, Rothfelder 

subsequently resigned from representing SignAd Outdoor in the matter and “so [she] 

never got anything.”

On March 4, 2013, Lisa emailed Terry Denman10 (“Terry”) and asked him to 

provide her with certain partnership documents, including stock certificates. Terry 

was the secretary of SignAd GP, LLC’s Board of Managers, and he was the President 

10 Terry Denman is Patsy Gilbreath’s nephew. Patsy Gilbreath is Wes, Sr.’s widow.
14

of Buyers Investment Group, Inc. Terry told Lisa that he did not have a problem 

giving her the documents, but that all requests had to go through Wes, Jr. 

On March 4, 2013, Lee emailed a list of proposed agenda items for SignAd 

GP, LLC’s March 20, 2013 board meeting to Wes, Jr., Stacey, Lisa, Mark, and Terry. 

On March 7, 2013, Reiner sent letters to Wes, Jr., Terry, Mark, and Billy Collins11

requesting access to the partnership books and records of other companies, including 

Realty Acquisitions & Holdings, LLC, Big Eastex #1, Ltd., Culcreuch West, LLC, 

Ben Nevis West, Ltd., Buyers Investment Group, Inc., and Hang’em High, Ltd.12

On March 8, 2013, Lisa emailed Lee a list of six topics that she wanted 

discussed at the upcoming SignAd GP, LLC board meeting. Lee responded to her 

later that day and informed her that some of her items were operational and not 

appropriate topics for board meetings and that a lot of her concerns would be covered 

during the “Old Business” agenda item. On March 19, 2013, Lee sent an email 

message to Wes, Jr. and Stacey and copied Lisa, Terry, Dr. Dempsey, and Mark. 

Lee asked Wes, Jr. and Stacey if they agreed with his responses to Lisa’s requests 

11 Billy Collins was president of Culcreuch West, LLC, one of SignAd Outdoor’s real 

estate companies. 

12 Buyers Investment Group, Inc.—the former General Partner of Big Signs & Leasing 

#1 to #6, Ltd., Big Eastex #1, Ltd., and Hang’em High, Ltd.—was voluntarily 

dissolved in April 2013. Hang’em High, Ltd. was voluntarily dissolved in May 

2013.
15

and stated that if they agreed with him, the final agenda would be the one he had 

originally submitted. Lee further stated:

Also please note that I was not aware of the legal proceedings going on 

internally against our companies at the time of my response. And 

[Lisa’s] response to me, and I quote, was “My atty and cpa have advised 

me that the days of secrecy and back room dealing a[r]e over,” with no 

comments either on topic 1 or 7 (or any others). Mark did bring to my 

attention since then that the Executive Committee had been tasked by 

the Board in a previous meeting with monitoring free bills. Terry . . . 

can you put together a summary of any such similar motions that we 

tend to make and immediately forget about? Thanks.

Wes, Jr. testified that Lisa changed almost immediately after their father’s 

death and he was extremely concerned about Lisa’s behavior. According to Wes, 

Jr., “Lisa was just bombarding all of us, anybody, regarding money, where is the 

money kind of thing; and it was just—nothing was making sense. Accusatory 

toward all of us about stealing her inheritance. There was all—there was just so 

many claims going on.”

Wes, Jr. testified that his mother, Ruth, who had been diagnosed with manic 

depression and paranoid schizophrenia when he was a toddler, would become “angry 

and volatile” and “somewhat combative” and even “physically aggressive” at times. 

According to Wes, Jr., there were “a couple of times where I had to physically 

restrain her and just wrap her up in a bear hug to help try to calm her.” His mother 

would also “talk to herself occasionally and hallucinate and would get somewhat 

paranoid at times.” According to Wes, Jr., his parents divorced in the mid-1970s 
16

and he and his siblings were left with the responsibility of caring for their mentally 

ill mother. The bulk of the responsibility, however, was carried by Wes, Jr., who 

eventually had his mother involuntarily committed. Wes, Jr. testified that Lisa 

exhibited similar symptoms after their father died in January 2013: 

[T]here had been issues going back for quite a while, for years; but it 

really took off upon dad’s passing. It really elevated to a totally out-ofcontrol Lisa. Prior that, Lisa was—you could usually bring her back 

down. At that point there was no bringing her back. It was beyond help.

According to Wes, Jr., Lisa’s symptoms became worse over time, and she was 

exhibiting her “worst behavior so far” at the SignAd GP, LLC March 21, 2013 board 

meeting. 

Lisa’s other siblings echoed similar sentiments. Stacey testified that Lisa 

became increasingly paranoid and erratic after their father’s death. According to 

Stacey, Lisa’s troubling behavior became “more and more and more prevalent” and 

her condition “deteriorated rapidly” during this time. Stacey testified that Lisa’s 

behavior during the SignAd GP, LLC board meeting was “definitely” comparable to 

their mother’s and sister’s behavior. 

A. March 21, 2013 Board of Managers Meeting

The Board of Managers for SignAd GP, LLC met on March 21, 2013. Lee, 

Wes, Jr., Lisa, Stacey, Mark, Terry, and Dr. Dempsey attended the meeting. Lisa 

was accompanied to the meeting by Officer Stevens, an off-duty Houston Police 

Department officer. Lisa testified that she brought Officer Stevens with her to the 
17

meeting to ensure her safety because she felt threatened by her brothers. Lisa 

testified she felt threatened by Wes, Jr., in part because he had a history of bullying 

her. She also testified that during one of the board meetings, Wes, Jr. had talked 

about his extensive gun collection and she believed Wes, Jr. was trying to frighten 

her indirectly. 

During the board meeting, there were several outbursts requiring several 

breaks, including at least one when Wes, Jr. accused Lisa of being mentally ill. 

According to Lisa, the situation quickly escalated. Lisa testified that, “Stacey, who 

was sitting next to me, stood up and started screaming at me over my head, like that 

she hates me and just totally irate screaming at me.” When the meeting resumed, 

Wes, Jr., Lee, and Stacey all voted (over Lisa’s dissent) to reduce the number of 

board meetings from six to one meeting per year. Lisa testified that Wes, Jr., Lee, 

and Stacey reduced the number of meetings because they did not want to keep her 

informed about SignAd Outdoor’s financial affairs and they wanted to push her out 

of the family business. 

According to Lisa, Wes, Jr., Lee, and Stacey also reestablished a defunct 

executive committee that had not met since Brett, one of the committee members, 

resigned in 2011. Wes, Jr. and Lee served on the committee and Brett had served 

on the committee until he resigned in 2011. During the March 2013 meeting, Wes, 

Jr., Lee, and Stacey, in their capacity as SignAd GP, LLC’s managers, voted to 
18

appoint Stacey to fill Brett’s former position and serve on the committee along with 

Wes, Jr. and Lee. As a result of Stacey’s appointment, Lisa was the only board 

member excluded from the committee.

Stacey testified that when Lisa arrived at the March 2013 board meeting, she 

was “very tense, agitated, [and] looking for a fight.” According to Stacey, Lisa 

became increasingly angry and argumentative during the meeting. Lisa would get 

very angry, yell at all the board members, and call the members names each time 

one of her motions failed during the meeting. Stacey testified that Lisa was 

repetitive, argumentative and “wasn’t really paying attention to what was even being 

discussed in the meeting.” Stacey testified that this behavior was not normal for 

Lisa. 

Stacey also testified that Lisa’s behavior during the meeting was “definitely” 

comparable to their mother’s and sister’s behavior. When asked if she believed that 

Lisa posed a danger to herself in March 2013, Stacey testified that she believed that 

Lisa “could have been” and she felt it was a “possibility.” When asked if she 

believed that Lisa posed a danger to others, Stacey answered, “Possibly.” 

Wes, Jr. testified that Lisa’s behavior at the meeting “was by far the worst [he 

had] seen” and it made him “[e]xtremely concerned.” He testified that:

She was extremely volatile and manic. Her eyes were just not normal, 

kind of glazed over with anger. Threatening, you know, similar threats 

that she had made. And claims of theft; and some were claims that just 

elevated to a whole ‘nother level, even for Lisa.
19

Mark also observed that Lisa was “very agitated,” it was “more than just being 

upset,” and it was “scary” because he had never seen her act that way.

Although Lisa left after the board meeting ended, Officer Stevens stayed 

behind at the request of the remaining board members. Wes, Jr. testified that right 

after the board meeting, Officer Stevens told him she was an expert in mental health 

issues, and she advised him that Lisa was mentally ill and that they needed to “take

precautions.” According to Wes, Jr., he was alarmed about Officer Steven’s 

statements because although he knew this information, “hearing it from a 

professional who’d seen it and dealt with it was totally an eye opener for me.” Wes, 

Jr. testified that he took Officer Steven’s statements as a warning about Lisa’s mental 

health and that she posed a potential security risk to him, his family, and SignAd 

Outdoor employees. Wes, Jr. testified that Officer Steven’s statements prompted 

him “to go to the next step” and talk to his siblings about the need “to really take 

Lisa seriously” and “do what [they can do] to get her help.” After the board meeting, 

Wes, Jr., Lee, and Stacey talked about their concerns for Lisa and her well-being. 

Officer Stevens testified that she spoke to Wes, Jr. after the board meeting and 

told him she worked in the Houston Police Department’s threat management unit. 

Officer Stevens denied telling Wes, Jr. that she had background or expertise in 

mental health and could recognize someone with mental health issues. She also 

denied telling Wes, Jr. that he had a “potential problem” and needed “to take 
20

precautions.” Officer Stevens testified that she did not think it was reasonable for 

Wes, Jr. to consider their conversation as “a warning not only about Lisa’s mental 

health but about also potential security for [Wes, Jr.], his family, and his coworkers.”

B. Lisa’s Involuntary Commitment 

Several days after the March board meeting, and with Lee’s and Stacey’s 

blessing, Wes, Jr. filed an “Application for Temporary Mental Health Services” 

(“Commitment Application”) on March 25, 2013, in which he swore that Lisa was 

mentally ill, likely to cause serious physical harm to herself and others, suffered from 

abnormal mental, emotional, or physical distress, and presented a substantial risk of 

serious physical harm if not immediately restrained. Wes, Jr. was already familiar 

with the involuntary commitment process because he had filed applications to have 

his mother and older sister, Sheree, committed years before. 

In the required affidavit that accompanied the Commitment Application, Wes, 

Jr. averred that Lisa had “made threats and claims that myself, my accountant, my 

employees, brothers and sister had stolen millions of dollars from her.” He also 

averred that Lisa had hired an off-duty police officer to accompany her to a board 

meeting to “protect her from myself and others.” According to Wes, Jr., the officer 

told him that Lisa was mentally ill, and she gave him her card because he might 

“need her to help or testify to Lisa’s illness.” Although Wes, Jr. further averred that 
21

Lisa was “very volatile and threatening toward[s] [himself] and others,” Wes, Jr., 

did not describe the nature or content of any alleged threats. 

On March 26, 2013, based on Wes, Jr.’s Commitment Application and 

supporting affidavit, the probate court issued an Emergency Apprehension and 

Detention Warrant for Lisa. That afternoon, two Harris County Constables arrived 

at Lisa’s home, took her into custody, and brought her to the Harris County

Psychiatric Center (“HCPC”) for an involuntary psychiatric examination. 

At the HCPC, Lisa was housed in a small cell-like room with a woman who 

talked to imaginary people and repeatedly threatened to kill Lisa. Lisa testified that 

she constantly feared the woman would attack her. In the common area of the 

facility, a deranged man was running around and screaming in a frightening manner. 

Lisa testified the experience horrified her, not only because she feared she would be 

assaulted or killed by a mental patient, but also because she feared she would be 

locked away in a mental hospital for weeks, with no independence, as her mother 

had been. According to Lisa: 

These were my partners in business, my siblings that I trusted 1,000 

percent and our father had just died. And I really felt like, you know, 

my life as it had been was going to change and they were going to throw 

me in the State hospital at Rusk or something like they had done to my 

mother; and it was very scary. And I have this wonderful daughter who 

is my whole world. And it’s like they plotted this whole thing just 

because of money. 
22

The evening of her arrival at the HCPC, Lisa was taken to an examination 

room where Dr. Crispa Aeschbach Jachmann (“Dr. Jachmann”) physically examined 

Lisa, including collecting blood and urine samples, and asked her questions. Lisa 

testified that the interview lasted only ten or fifteen minutes, but other evidence 

suggests it might have been longer. According to Lisa, Dr. Jachmann told her that 

she had been talking to Wes, Jr. and he had informed her that Lisa had been mentally 

ill her entire life and was “threatening everybody.”13 

After examining Lisa, Dr. Jachmann signed a one-page Certificate of Medical 

Examination form stating that Lisa was mentally ill and a danger to herself and 

others. Dr. Jachmann initially diagnosed Lisa with a psychotic disorder not 

otherwise specified. The next day, however, Lisa was released from the facility with 

no restrictions, medications, or any recommended follow-ups. The HCPC 

multidisciplinary discharge document specifies that at discharge, Lisa was “Normal, 

not ill at all,” there had been “[n]o change” in her condition since she was admitted 

the day before, and that she had been “[a]dmitted for family dispute possibly inn 

[sic] appropriately.” 

13 Wes, Jr. denied speaking to Dr. Jachmann and claimed he had never even heard of 

her until trial. Dr. Jachmann did not testify at trial.
23

C. Safety Meeting and Comments to Employees 

Wes, Jr. testified that he locked Lisa out of the SignAd Outdoor building 

before the March board meeting and warned employees not to speak with her. He 

explained that he did not want his employees to speak with Lisa or “cross her path” 

because he wanted to protect the employees’ safety. 

After Lisa was released from the HCPC, Wes, Jr. called an early morning 

safety meeting at SignAd Outdoor’s offices. At least five of SignAd Outdoor’s staff 

attended the meeting. During the meeting, Wes, Jr. reminded everyone to keep the 

doors locked and advised them to be aware of their surroundings. 

SignAd Outdoor’s sales and marketing director, Stacey Laycock (“Laycock”), 

attended the meeting. When she asked Wes, Jr. afterward what had prompted the 

meeting, he explained to her that “they were having issues with [Lisa], that he was 

concerned that she was ill and that he just was trying to [take] precautions.” Laycock 

did not ask Wes, Jr. what he meant when he stated Lisa was ill. Laycock’s 

understanding of Wes, Jr.’s comments about Lisa being ill was only that Lisa was 

struggling because their dad had just died. Laycock was left with the understanding 

that Wes, Jr. did not want Lisa in the building, but not because Lisa was a physical 

threat to anyone. 

When asked if she could “recall whether or not [she was] aware in March of 

2013 about any commitment proceedings involving” Lisa, Laycock replied, “I 
24

recall—I think that’s been discussed, yes.” When asked if Wes, Jr. or anyone else 

at SignAd Outdoor made her aware that an attempt had been made to have Lisa 

involuntarily committed, Laycock testified: 

I know that there was a meeting about safety just to make sure that the 

doors were kept secured. I know that Wes was upset because he felt 

that his sister was ill, and that he was upset, I mean, tearful when he 

and I talked about just safety in general and that he had to have that 

meeting at all to secure the building for everyone’s safety.

Laycock testified she did not recall whether her conversation with Wes, Jr. occurred 

before or after Wes, Jr. had Lisa committed, but she assumed that it occurred 

afterward because she “did not know anything prior to” the commitment.

On another occasion, Mark thought he saw Lisa’s car in SignAd Outdoor’s 

parking lot, and he told a small group of two or three people, including Terry, to “be 

careful” because Lisa was outside. According to Mark, one employee checked to 

see if the office door was locked while the others returned to their offices. Mark 

denied telling the group that they were in danger; “I just said be careful . . . That 

she’s here.” When asked what he meant by his remarks, Mark replied, “Just to be 

careful, make sure the doors are locked. We knew that [Lisa] wasn’t to be in the 

building. And sometimes the doors aren’t locked, the roll-up doors could be open.” 

When asked if he meant to convey to employees that Lisa “is not welcome at 

SignAd” when he told them “to be careful,” Mark replied, “I think they already knew 

that.” Mark also testified, “I wanted to make sure that if it was her that we took 
25

whatever measures to remain safe and secure in the building so that no one would 

be injured or who knows what might happen.”

Mark testified that prior to Wes, Sr.’s death, he had never observed any 

employees of SignAd Outdoor be fearful of Lisa. He had also never seen Lisa be 

anything but respectful to employees before the March board meeting. According 

to Mark, Lisa seemed to get along well with everyone at SignAd Outdoor. Lisa’s 

behavior at the March 2013 board meeting was the only basis for Mark’s concern 

that Lisa posed a threat to employees. According to Mark, “[i]t would be too 

disruptive to the business” if Lisa were allowed in SignAd Outdoor’s offices. “Well, 

had you seen how she carried on at the last meetings, I mean, there is just no way of 

making sure that everyone would be safe. It’s just too––it’s just not a good idea I 

don’t believe in, in the current situation.” Mark added that when he asked Lisa why 

she brought an off-duty police officer with her to the board meeting, Lisa told him 

that “she didn’t feel safe.” When asked if he perceived Lisa’s statement that she did 

not feel safe “as a threat that she might harm somebody within SignAd,” Mark 

replied, “You never know.” Mark stated he was not sure if Lisa would harm anyone: 

But I felt like she––I didn’t know what she was capable of. Well, she 

was very agitated. And I have known her for a long time and I’ve never 

seen her act the way that she did . . . . And it was scary. It was more 

than just being upset. That’s why I said before I thought well, gee, I 

wonder if she’s taking something. It just didn’t quite seem like her.
26

When asked if he feared Lisa “was going to come on the premises and hurt an 

employee not Wes, Jr,” Mark replied, “It’s possible, yes.”

D. Accounting Firm and Audit of the Company Appellants

On March 27, 2013, the day Lisa was released from the HCPC, Lisa hired new 

lawyers at Strasburger & Price, and she met with and retained a forensic accountant, 

Sheila Enriquez (“Enriquez”). Lisa hired Enriquez to conduct a forensic audit of 

SignAd, Ltd. and its related entities, Ben Nevis West, Ltd., Big Eastex #1 Ltd., 

Realty Acquisitions and Holdings, LLC, Hang ’Em High, Ltd., Buyers Investment 

Group, Inc., Big Signs & Leasing #1–#6 Ltd., and Big Leasing, LLC. Lisa requested 

the audit because she had noticed “red flags” that were causing her concern, 

including personal expenses being run through the company, excessive charges to 

company credit cards, and significant giveaways of billboard space, all without 

explanation. 

Enriquez identified the records she needed to conduct her audit and worked 

with Lisa and Strasburger & Price who made the requests for the accounting

documents. The parties entered into a confidentiality agreement and SignAd 

Outdoor began producing some information to Lisa’s attorneys in June 2013. Wes, 

Jr. testified that Lisa violated the Confidentiality Agreement. 
27

E. The Lawsuit

On December 13, 2013, Lisa sued Wes, Jr., Lee, Stacey, Mark, the Limited 

Partnerships, the General Partners, and others for violating her right to access and 

copy the books and records of the company and for an accounting, oppression, 

breach of fiduciary duty, unjust enrichment, defamation, false imprisonment, and 

conspiracy. She sought to recover damages, injunctive relief, and a buyout of her 

interests in SignAd Outdoor. Lisa later amended her pleadings to include claims for 

breach of contract, declaratory judgment, breach of fiduciary duty (both direct and 

derivative), statutory oppression, defamation, malicious prosecution, conspiracy, 

dissolution, and constructive trust. The Individual and Company Appellants asserted 

counterclaims against Lisa, including claims for equitable or judicial expulsion of 

Lisa’s interest from the Limited Partnerships.14 

The case was tried to a jury. After a four-week trial on several claims, the 

trial court submitted a seventy-six-page jury charge with a total of sixty 

interrogatories to the jury.15 The jury returned a unanimous verdict finding that 

(1) Wes, Jr. had maliciously prosecuted the involuntary commitment proceeding 

against Lisa, (2) Lee and Stacey had conspired in the malicious prosecution of Lisa, 

and (3) Wes, Jr. and Mark had defamed Lisa. The jury further found that (4) Wes, 

14 See TEX. BUS. ORGS. CODE § 152.501(b)(5)(C) (judicial decree of expulsion).

15 The last two interrogatories are misnumbered. 
28

Jr. had breached his fiduciary duties to SignAd, Ltd., (5) SignAd GP, LLC, Wes, Jr., 

Lee, Stacey, and Mark had breached their fiduciary duties to SignAd, Ltd., (6) Wes, 

Jr., Lee, and Stacey had breached their fiduciary duties to SignAd GP, LLC, (7) the 

General Partners had improperly denied Lisa access to the books and records of the 

company, and (8) the governing persons of the Limited Partnerships and two of the 

General Partners had engaged in oppressive conduct. The jury also found that 

(9) Brett, Lee, and Mark were in a relationship of trust and confidence with Lisa; 

and (10) Lee had breached his fiduciary duties to Lisa. Finally, the jury found that 

(11) Lisa had engaged in conduct relating to the partnership business of the Limited 

Partnerships “that [made] it not reasonably practicable to carry on the business in 

partnership” with her; and (12) Wes, Jr., Stacey, Lee, SignAd GP, LLC, Culcreuch 

West, LLC, Realty Acquisitions & Holdings, LLC, and Big Leasing, LCC had not 

engaged in such conduct.

The jury awarded Lisa actual damages on her claims for malicious 

prosecution, defamation, and breach of fiduciary duty. The jury also awarded her 

punitive damages on her claims for malicious prosecution and defamation. By 

agreement, the parties tried all issues relating to attorney’s fees to the bench through 

written submissions.

On November 17, 2016, the trial court signed a final judgment based on the 

jury verdict and its own findings on attorney’s fees and in equity. The trial court 
29

reduced the punitive damage award against Wes, Jr. for malicious prosecution to 

comply with the applicable statutory cap but otherwise awarded judgment in favor 

of Lisa for the actual and punitive damages found by the jury. The final judgment 

also awarded Lisa declaratory relief, injunctive relief, the appointment of a 

rehabilitative receiver, and attorney’s fees. Two months later, based on a timely 

filed post-judgment motion, the trial court signed an amended final judgment to 

clarify its original judgment and to correct mistakes, omissions, and clerical errors 

in the original judgment (“Amended Final Judgment”). 

The Individual and Company Appellants assert a litany of issues on appeal. 

To the extent the parties’ issues overlap, we address those issues collectively. Unless 

otherwise stated, we address the remaining issues separately. 

Discussion

The Individual and Company Appellants both challenge Lisa’s standing to 

bring derivative claims on behalf of SignAd GP, LLC. Because standing is a 

necessary component of subject matter jurisdiction, we address that issue first.

Standing

The Individual and Company Appellants argue that all relief granted in the 

Amended Final Judgment based on the derivative claim Lisa asserted on behalf of 

SignAd GP, LLC for breach of fiduciary duty against Wes, Jr., Lee, and Stacey 

should be reversed. They argue Lisa has no ownership interest in SignAd GP, LLC, 
30

and thus she lacks standing to bring derivative claims on its behalf. With respect to 

this claim, the jury found that Wes, Jr., Lee, and Stacey breached their fiduciary 

duties to SignAd GP, LLC by (a) failing to maintain internal controls on employee 

fringe benefits and (b) selling company vehicles for less than fair market value. The 

jury awarded a total of $501,193 in damages for this claim. The Amended Final 

Judgment awarded Lisa one-sixth of the damage award under Section 153.405 of the 

Texas Business Organizations Code (“TBOC”).

Standing is a constitutional prerequisite to maintaining suit. Sneed v. Webre, 

465 S.W.3d 169, 179–80 (Tex. 2015); Tex. Ass’n of Bus. v. Tex. Air Control Bd.,

852 S.W.2d 440, 443–44 (Tex. 1993). Generally, unless standing is conferred by 

statute, “a plaintiff must demonstrate that he or she possesses an interest in a conflict 

distinct from that of the general public, such that the defendant’s actions have caused 

the plaintiff some particular injury.” Sneed, 465 S.W.3d at 180 (quoting Williams v.

Lara, 52 S.W.3d 171, 178–79 (Tex. 2001)). “The issue of standing focuses on 

whether a party has a sufficient relationship with the lawsuit so as to have a 

justiciable interest in its outcome.” Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 

845, 848 (Tex. 2005) (citation omitted). “The general test for standing in Texas 

requires that there ‘(a) shall be a real controversy between the parties, which (b) will 

be actually determined by the judicial declaration sought.’” Tex. Ass’n of Bus., 852 

S.W.2d at 446 (quoting Bd. of Water Eng’rs v. City of San Antonio, 283 S.W.2d 722, 
31

724 (Tex. 1955)). A party’s lack of standing deprives a court of subject matter 

jurisdiction and renders any trial court action void. Phillips v. Phillips, 244 S.W.3d 

433, 434–35 (Tex. App.—Houston [1st. Dist.] 2007, no pet.).

Lisa acknowledges that she does not have an ownership interest in SignAd 

GP, LLC. Indeed, SignAd GP, LLC is “a single member limited liability company 

owned by [Stacey Gilbreath] Powell.” Despite her lack of an ownership interest in 

SignAd GP, LLC, Lisa argues she has standing to file suit on its behalf because she 

is a beneficial owner of one-sixth of the entire “SignAd Enterprise,” of which 

SignAd GP, LLC is a part, and she is also a permanent member of SignAd GP, LLC’s 

Board of Managers.16 Lisa’s argument hinges on her theory that the SignAd entities, 

all of which undisputedly are distinct and separate legal entities, constitute a single 

“integrated business.” Lisa’s argument is unavailing.

Lisa never pleaded an enterprise theory or obtained findings that would allow 

us to disregard the fact that SignAd GP, LLC, on whose behalf Lisa sued, and 

SignAd, Ltd., the entity in which Lisa has an ownership interest, are two separate 

entities. See Docudata Records Mgmt. Servs., Inc. v. Wieser, 966 S.W.2d 192, 197 

(Tex. App.—Houston [1st Dist.] 1998, pet. denied) (stating that under Texas law, 

“the separate identity of corporations will be observed by the courts, even in 

instances where one may dominate or control the other, or may even treat it as a 

16 Lisa has a one-sixth ownership interest in the Limited Partnerships.
32

mere department, instrumentality or agency of the other”) (quoting Pulaski Bank &

Trust Co. v. Tex. Am. Bank, N.A., 759 S.W.2d 723, 731 (Tex. App.—Dallas 1988, 

writ denied)). 

Moreover, the TBOC, which sets forth the parameters for derivative 

proceedings for limited liability companies, states that a “member” of a closely held 

limited liability company may bring a derivative suit on behalf of the LLC, and 

further identifies when such derivative actions are permitted. See TEX. BUS. ORGS.

CODE §§ 101.452, .463. Under the TBOC, Lisa’s status as a board member of 

SignAd GP, LLC does not confer standing on her to bring a derivative suit on behalf 

of the entity. Stacey, as the single member of SignAd GP, LLC, is the person who 

has standing to assert a derivative claim on behalf of the LLC; Lisa does not.

Lisa argues that because Section 101.463 of the TBOC does not state that 

derivative standing is strictly limited to owner-members of an LLC, she can establish 

standing. Without argument or explanation, she then cites to Neff v. Brady, 527 

S.W.3d 511 (Tex. App.—Houston [1st Dist.] 2017, no pet.) adding a parenthetical

stating that double-derivative standing17 is recognized where the “plaintiff is a 

17 A double-derivative suit is based upon the “injury suffered indirectly by the parent 

corporation, in which the shareholder does have an interest, as a result of injury to 

the subsidiary.” Neff v. Brady, 527 S.W.3d 511, 522 (Tex. App.—Houston [1st 

Dist.] 2017, no pet.) (quoting In re Bear Stearns Cos., Inc. Secs., Derivative, &

ERISA Litig., 763 F.Supp.2d 423, 538 (S.D.N.Y. 2011)); see Webre v. Sneed, 358 

S.W.3d 322, 334 (Tex. App.—Houston [1st Dist.] 2011), aff’d, 465 S.W.3d 169 

(Tex. 2015). A double derivate suit is a “vehicle for bringing a derivate suit across 
33

beneficial owner of the entity harmed by [the] breach of fiduciary duty to an 

affiliate.” To the extent Lisa argues Neff supports her argument that she has standing 

to assert a claim on behalf of SignAd GP, LLC, we reject her argument. 

Neff analyzes standing under the laws of Bermuda and Switzerland and does 

not address whether Lisa, as a non-member of an LLC, can assert a derivative claim 

on behalf of SignAd GP, LLC. Furthermore, Neff confirms that when, as here, 

standing has been conferred through statute, “the statute itself serves as the proper 

framework for the analysis.” Id. at 522. The “proper analysis is to determine 

whether the claimant falls within the category of claimants upon whom the 

Legislature conferred standing.” Nephrology Leaders & Assocs. v. Am. Renal

Assocs. LLC, 573 S.W.3d 912, 916 (Tex. App.—Houston [1st Dist.] 2019, no pet.) 

(holding that “courts must determine whether a particular plaintiff has established 

that he has been injured or wronged within the parameters of the statutory 

language”); see also In re Sullivan, 157 S.W.3d 911, 915 (Tex. App.—Houston [14th 

Dist.] 2005, orig. proceeding) (“[T]he judge-made criteria regarding standing do not 

apply when the Texas Legislature has conferred standing through a statute.”); 

Everett v. TK-Taito, L.L.C., 178 S.W.3d 844, 851 (Tex. App.—Fort Worth 2005, no 

pet.) (“When standing has been statutorily conferred, the statute itself serves as the 

a second degree of separation.” Neff, 527 S.W.3d at 534 (citation omitted). 

“Typically, this takes the form of a suit brough by shareholders of a parent company 

to assert the rights of a subsidiary.” Id. 
34

proper framework for a standing analysis.”). Because Lisa is not a member of 

SignAd GP, LLC, she does not “fall within the category of claimants upon whom 

the Legislature [has] conferred standing” under the TBOC. See Nephrology

Leaders, 573 S.W.3d at 916; TEX. BUS. ORGS. CODE § 101.463.18 

We sustain the Individual and Company Appellants’ challenge to Lisa’s 

standing, reverse the trial court’s judgment with respect to Lisa’s derivative claim 

filed on behalf of SignAd GP, LLC, and render judgment dismissing the claim for 

lack of subject matter jurisdiction.19

18 Lisa contends that even if she lacks standing to sue on behalf of SignAd GP, LLC, 

the Individual and Company Appellants’ argument “only raises an immaterial defect 

in form of the jury question, which mistakenly (but harmlessly) presented the issue 

to the jury in terms of a fiduciary obligation to SignAd GP instead of to SignAd, 

Ltd.” We reject Lisa’s characterization of the argument. SignAd, Ltd. and SignAd 

GP, LLC are distinct legal entities and any duties Wes, Jr., Lee, and Stacey may 

owe to SignAd, Ltd. are not necessarily the same as any duties they may owe to 

SignAd GP, LLC. See generally Docudata Records Mgmt. Servs., Inc. v. Wieser, 

966 S.W.2d 192, 197 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (stating 

that under Texas law, “the separate identity of corporations will be observed by the 

courts”). Jury Questions 30 through 33 asked the jury to determine whether Wes, 

Jr., Lee, and Stacey failed to comply with a duty they owed to SignAd GP, LLC, not 

SignAd, Ltd. We cannot simply ignore the question and substitute another entity 

for SignAd GP, LLC as Lisa suggests. The question presented is one of standing, 

and as explained, Lisa does not have standing to bring a derivative claim on behalf 

of SignAd GP, LLC. 

19 The Company Appellants also argue the trial court abused its discretion by allowing 

Sheila Enriquez, Lisa’s expert, to testify regarding the amount of damages 

associated with this claim. Because we have concluded Lisa did not have standing 

to bring the derivative claim in the first place, we do not need to address the 

Company Appellants’ challenges to the evidence supporting damages for the claim. 

Similarly, because we have determined that Lisa lacked standing to assert this 

derivative claim, we need not address the Individual Appellants’ argument that the 
35

Sufficiency of the Evidence

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). When conducting a legal sufficiency 

review, “view the evidence in the light favorable to the verdict, crediting favorable 

evidence if reasonable jurors could, and disregarding contrary evidence unless 

reasonable jurors could not.” Id. at 807; see also Kroger Texas Ltd. P’ship v. Suberu, 

216 S.W.3d 788, 793 (Tex. 2006). So long as the evidence falls within the zone of 

reasonable disagreement, we may not substitute our judgment for that of the 

factfinder. City of Keller, 168 S.W.3d at 822. Jurors are the sole judges of the 

credibility of the witnesses and the weight to give their testimony and may choose 

to believe one witness and to disbelieve another. Id. at 819.

A challenge to the legal sufficiency of the evidence by a party who did not 

have the burden of proof on that issue will be sustained if, among other things, the 

evidence offered to prove a vital fact is no more than a scintilla or the evidence

conclusively establishes the opposite of a vital fact. Id. at 810; see also Kroger Texas 

Ltd., 216 S.W.3d at 793. Evidence does not exceed a scintilla if it is so weak as to 

do no more than create a mere surmise or suspicion that the fact exists. Kroger Texas 

award of “damages to SignAd, Ltd.” based on the jury’s answer to Jury Question 33 

is erroneous because it does not conform to the verdict.
36

Ltd., 216 S.W.3d at 793 (quoting Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 

(Tex. 2004)).

A party attacking the legal sufficiency of an adverse finding on an issue on 

which the party had the burden of proof must demonstrate that the evidence

conclusively establishes all vital facts in support of the issue. Dow Chem. Co. v. 

Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam). A matter is conclusively

established only if reasonable people could not differ as to the conclusions to be 

drawn from the evidence. See City of Keller, 168 S.W.3d at 816. If the evidence

shows there was a conflict, then the elements were not conclusively established. See

Hathaway v. Gen. Mills, Inc., 711 S.W.2d 227, 229 (Tex. 1986).

Individual Appellants’ Issues

A. Malicious Prosecution

The jury found that (1) Wes, Jr. maliciously prosecuted Lisa by commencing 

an involuntary commitment proceeding against her, (2) Lisa suffered $500,000 in 

mental anguish damages, (3) Lee and Stacey conspired to maliciously prosecute 

Lisa, (4) the harm to Lisa resulted from malice, and (5) Lisa should recover $875,000 

in exemplary damages from Wes, Jr. (reduced to $500,000 in the Amended Final 

Judgment), $500,000 from Lee, and $500,000 from Stacey. In their first and second 

issues, the Individual Appellants argue that the judgment for Lisa on her malicious 

prosecution claim should be reversed because (1) Lisa did not meet her burden to 
37

establish that Wes, Jr. lacked probable cause to file the Commitment Application in 

which he swore that Lisa was mentally ill and posed an imminent danger of harm to 

herself and others, (2) alternatively, the trial court abused its discretion by excluding 

evidence of Lisa’s mental health history,20 (3) the actual and punitive damages 

awarded to Lisa for malicious prosecution should be eliminated or remitted because 

the awards are excessive, and (4) the actual and punitive damages awarded against 

Lee and Stacey should be reversed because there is insufficient evidence of malice.21

1. Applicable Law

“To prevail in a suit alleging malicious prosecution of a civil claim, the 

plaintiff must establish: (1) the institution or continuation of civil proceedings 

against the plaintiff; (2) by or at the insistence of the defendant; (3) malice in the 

commencement of the proceeding; (4) lack of probable cause for the proceeding; (5) 

termination of the proceeding in plaintiff’s favor; and (6) special damages.” 

Airgas-Sw., Inc. v. IWS Gas & Supply of Tex., Ltd., 390 S.W.3d 472, 478 (Tex. 

App.—Houston [1st Dist.] 2012, pet. denied) (quoting Tex. Beef Cattle Co. v. Green, 

921 S.W.2d 203, 207 (Tex. 1996)).

20 The Individual Appellants argue that the court’s evidentiary errors not only explain 

the insupportable verdict, but also the excessive damage awards.

21 The Individual Appellants do not appear to challenge the jury’s findings that (1) 

Wes, Jr. acted with malice when he initiated the involuntary commitment 

proceeding against Lisa (Jury Questions 1 and 4) and (2) Lee and Stacey were part 

of a conspiracy to maliciously prosecute Lisa (Jury Question 3).
38

The law presumes that a defendant acted reasonably and had probable cause 

to initiate the proceeding at issue in a malicious prosecution case. See Kroger Texas 

Ltd., 216 S.W.3d at 794; Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 

(Tex. 1997). Therefore, the plaintiff bears the initial burden of disproving the 

existence of probable cause. Kroger Texas Ltd., 216 S.W.3d at 794–95; Richey, 952 

S.W.2d at 518. To rebut the presumption, the plaintiff must produce evidence that 

the motives, grounds, beliefs, or other information upon which the defendant acted 

did not constitute probable cause. Richey, 952 S.W.2d at 518. If the plaintiff rebuts 

that presumption, the defendant is then required to carry the burden of proving the 

existence of probable cause. Akin v. Dahl, 661 S.W.2d 917, 920 (Tex. 1983).

Probable cause in a malicious prosecution claim is evaluated from the 

perspective of the person who initiated the proceeding at the time the proceeding 

commenced. See Akin, 661 S.W.2d at 920; see generally Pettit v. Maxwell, 509 

S.W.3d 542, 547 (Tex. App.—El Paso 2016, no pet.). Thus, “[i]t is the events prior

to the institution of the proceedings which must be examined, and only those events,

to determine if the defendants had probable cause to act.” Akin, 661 S.W.2d at 920. 

“Events subsequent to the action of confinement and legal proceedings may tend to 

show whether the action of the [defendant] turned out to be correct or incorrect, but 

[they are] not material to the beliefs and motives at the time the proceedings were 

instituted.” Id. Generally, whether probable cause existed is a question of law to be 
39

decided by the trial court. See Richey, 952 S.W.2d at 518. If, however, the 

underlying facts are in dispute, as in this case, this presents a mixed question of law 

and fact for the jury. Id.; Akin, 661 S.W.2d at 920. 

The civil proceeding on which Lisa premised her malicious prosecution claim 

is the involuntary commitment proceedings Wes, Jr. commenced against her when 

he filed the Commitment Application under Chapter 573 of the Texas Health and 

Safety Code. A Commitment Application, which is referred to by the Health and 

Safety Code as an “application for emergency detention,” must state:

(1) that the applicant has reason to believe and does believe that 

the person evidences mental illness;

(2) that the applicant has reason to believe and does believe that 

the person evidences a substantial risk of serious harm to 

himself or others;

(3) a specific description of the risk of harm;

(4) that the applicant has reason to believe and does believe that 

the risk of harm is imminent unless the person is 

immediately restrained;

(5) that the applicant’s beliefs are derived from specific recent 

behavior, overt acts, attempts, or threats; 

(6) a detailed description of the specific behavior, acts, 

attempts, or threats; and

(7) a detailed description of the applicant’s relationship to the 

person whose detention is sought.

TEX. HEALTH & SAFETY CODE § 573.011(b).
40

2. Analysis

In their first issue, the Individual Appellants argue Lisa failed to establish a 

lack of probable cause and thus they are entitled to judgment as a matter of law. The 

jury was not asked to determine whether Stacey or Lee maliciously prosecuted Lisa 

by attempting to have her committed. Instead, the jury was asked whether Wes, Jr. 

maliciously prosecuted Lisa and whether Lee and Stacey conspired with Wes, Jr. to 

maliciously prosecute her. Accordingly, we understand the Individual Appellants’ 

argument as a challenge to the sufficiency of the evidence supporting the jury’s 

finding that Wes, Jr. initiated an involuntary commitment proceeding against Lisa 

“with a lack of probable cause for the proceeding.”

Conspiracy is not an independent tort; it is a means to impose liability on Lee 

and Stacey. See Agar Corp., Inc. v. Electro Circuits Int’l, LLC, 580 S.W.3d 136, 

142 (Tex. 2019). Therefore, if the evidence is legally insufficient to support the 

malicious prosecution claim against Wes, Jr., then we must also reverse the claim 

against Lee and Stacey for conspiracy to commit malicious prosecution.22

22 The jury was not asked to determine whether Stacey or Lee acted without probable 

cause. Instead, the jury was asked whether each was “part of a civil conspiracy to 

maliciously prosecute Lisa.” The jury was instructed that to “be part of a 

conspiracy,” Stacey or Lee “must have had knowledge of, agreed to, and intended 

a common objective or course of action that resulted in the damages to Lisa Horan.” 

They were further instructed that “[o]ne or more persons involved in the conspiracy 

must have performed some act or acts to further the conspiracy.” The jury 

separately answered “yes” as to Lee and Stacey. 
41

The jury was instructed that to find Wes, Jr. committed malicious prosecution, 

“you must find that” (1) “an involuntary commitment proceeding was instituted 

against Lisa,” (2) “by or at the insistence” of Wes, Jr., and (3) “with a lack of 

probable cause for the proceeding.”23 Probable cause was defined in the jury charge 

as:

[T]he existence of such facts and circumstances as would excite belief 

in a reasonable mind, acting on the facts or circumstances within his 

knowledge at the time the proceeding was commenced, that the 

commencement of the proceeding was proper. 

Under the Health and Safety Code, the commencement of an involuntary 

commitment proceeding against Lisa would have been proper only if, among other 

things, Wes, Jr. had reason to believe and did believe that Lisa (1) “evidence[d] 

mental illness,” (2) “evidence[d] a substantial risk of serious harm to [her]self or 

others,” and (3) “the risk of harm [was] imminent unless [Lisa was] immediately 

restrained.” TEX. HEALTH & SAFETY CODE § 573.011(b)(1)–(2), (4). The law 

presumes Wes, Jr. acted reasonably and had probable cause to initiate the 

involuntary commitment proceeding against Lisa. See Richey, 952 S.W.2d at 518. 

To overcome the presumption, Lisa had to produce evidence that Wes, Jr. filed the 

Commitment Application based on motives, grounds, beliefs, or evidence that did 

not support a reasonable belief that the commencement of the proceeding was 

23 The jury also had to find that the proceeding was instituted with malice, the 

proceeding terminated in Lisa’s favor, and Lisa suffered special damages. 
42

proper, i.e., a lack of probable cause. See Kroger Texas Ltd., 216 S.W.3d at 794. In 

the absence of such evidence, the evidence is legally insufficient to support a finding 

of lack of probable cause and, thus, Wes, Jr. is entitled to judgment as a matter of 

law on Lisa’s malicious prosecution claim. See id. at 795.

Although disputed, Lisa presented some evidence that Wes, Jr. was motivated 

to have her involuntarily committed because he wanted to remove her from the 

Board of Managers of the General Partnerships. The record reflects that Lisa, Wes, 

Jr., and the other siblings on the Company Appellants’ Boards of Managers had been 

fighting for years over the management of the company after Wes, Jr. became 

president of what is now SignAd GP, LLC. By the mid-2000s, the animosity among 

the siblings, especially Wes, Jr. and Brett, had risen to the point where Lisa felt it 

necessary to hire a corporate psychologist, Dr. Dempsey, to help them mediate their 

disagreements and run their board meetings more effectively. Some of the siblings’ 

disputes, however, proved too difficult to overcome.

In 2011, Wes, Jr. accused Brett of stealing business away from the company, 

fired Brett, locked him out of the company building, and at first refused to return 

some of his belongings. This prompted Brett to resign from SignAd GP, LLC’s24

Board of Managers. According to Lisa, Brett had been one of her closest allies on 

24 In his letter of resignation, Brett stated he was resigning from SignAd, Ltd.’s board. 

At the time, however, Brett was serving on SignAd GP, LLC’s Board of Managers. 

SignAd, Ltd. does not have a board. 
43

the board. The other was her father, who resigned in 2012 because of his failing 

health. Lisa testified that once her father and Brett were gone, it was just her against 

Wes, Jr., Lee, and Stacey. 

After their father died in January 2013, Lisa became concerned that Wes, Jr. 

and the other trustees had breached their fiduciary duties to the Grandchildren’s 

Trust, and she insisted on their resignations. Lisa explained that the repetitive emails 

she had sent to her siblings on this topic had resulted from a computer malfunction. 

She was also concerned about the way Wes, Jr. and others had been handling the 

Company Appellants’ financial affairs and insisted on access to the companies’ 

books and records. Rather than responding to Lisa’s concerns or providing her with 

the information she requested, Wes, Jr. told Lisa’s attorney that he would never 

provide Lisa with access to the company’s books and records, and her brothers, Lee 

and Brett, told Lisa to stop asking questions or else she could be removed from the 

Board of Managers. Lisa, however, continued to ask questions about the 

Grandchildren’s Trust and the business, and she demanded documents that Wes, Jr. 

refused to provide. Like their brother Brett, Wes, Jr. locked Lisa out of the 

company’s office and told employees not to communicate with her.

By most accounts, the siblings’ conflict came to a head during the March 2013 

board meeting for SignAd GP, LLC. It is undisputed that Lisa became angry when 

Wes, Jr. and others expressed concern about her mental state at the board meeting. 
44

Although Wes, Jr. testified that Lisa appeared “volatile,” it is also undisputed that 

Lisa never became violent or threatened physical violence against herself or anyone 

else at the meeting. Terry Denman, who was present at the meeting, testified that 

Lisa was argumentative and figuratively “looking for a fight,” but he “never thought 

of Lisa as being physically a threat.” There was also testimony that other board 

members, including Stacey, were also angry and yelled at Lisa during the meeting. 

According to Terry, “[t]here [were] a lot of hard feelings expressed.”

Lisa, who had been a board member for almost thirty years, testified she was 

justifiably angry during the board meeting because Wes, Jr. and the other board 

members refused to answer her questions about the Grandchildren’s Trust and the 

company’s financial affairs, voted against almost all her motions, voted over her 

objection to meet only once a year instead of four to five times a year, and they called 

her crazy. Lisa explained that she had to repeat herself at the meeting because the 

other board members refused to answer her questions. Lisa also testified that she 

brought Officer Stephens to the March 2013 board meeting because of the “hostility 

that [she] was feeling and experiencing from [her] brothers,” as well as their 

“aggressive attitude and controlling behavior.” According to Lisa, based on her 

brothers’ threats and emails suggesting that her “fitness to serve” or lack thereof may 

result in her removal from the board, she was concerned they would have her 

“committed mentally and . . . removed from the board.” 
45

Four days after the Board of Managers’ meeting, during which no further 

incidents or further interactions between Lisa and her siblings took place, Wes, Jr. 

filed an application to have Lisa involuntarily committed on the basis she was 

mentally ill and likely to cause serious harm to herself or others. In the affidavit 

Wes, Jr. filed in support of the Commitment Application, which was the sole basis 

on which Lisa was committed, Wes, Jr. averred that “Lisa [had] made threats and 

claims that myself, my accountant, my employees, brothers and sister had stolen 

millions of dollars from her.” He also asserted that Lisa was not only “very repetitive 

and asks the same questions over and over,” but she was also “very volatile and 

threatening toward[s] myself and others.” He further averred that Lisa was “fixated 

on the fact that I somehow have taken all of her money” and she was making 

repeated calls to law enforcement. 

Wes, Jr. also testified at trial that Lisa was causing problems for “SignAd”25

during this time by harassing employees and contacting the company’s accountants, 

bankers, insurance companies, and vendors without proper authority. According to 

Wes, Jr., Lisa contacted “SignAd’s” insurance company, and she may have filed a 

claim on “SignAd’s” behalf, even though she was not authorized to do so. He 

testified Lisa also contacted “SignAd’s” bank which posed a problem for the 

25 The company is referred to as “SignAd” in Wes, Jr.’s testimony and it is not clear 

if he is referring to SignAd GP, LLC, SignAd, Ltd., or all of the Limited Partnerships 

and General Partners, collectively. 
46

company and harmed its relationship with the bank because, according to Wes, Jr., 

“I’ve spent . . . a long time establishing some stability with the bank to be able to 

borrow money and have a credit line with them.” Wes, Jr. was concerned that Lisa’s 

conduct would have a negative impact on “SignAd’s” line of credit at the bank 

because her involvement suggested possible instability and insecurity within the 

company. Wes, Jr. also testified that Lisa had contacted the Texas Department of 

Transportation and “they warned us that she had contacted them; and we were able 

to, you know, explain to the best of our ability.” 

When asked which employees Lisa had been harassing and threatening, Wes, 

Jr. identified Terry Denman and Stacey Laycock. According to Wes, Jr., Lisa had 

sent Terry emails that were “somewhat insistent and threatening” before the March 

2013 board meeting. She had also demanded that Terry show her copies of her stock 

certificates. Wes, Jr. admitted, however, that Lisa “can have the stock certificate 

any time she wants. It’s how you go about requesting it.” According to Wes, Jr., 

Lisa was “being a little bit abrasive” and unnecessarily “forceful” in her emails to 

Terry. Terry, however, testified that he “never thought of Lisa as being physically 

a threat.” Lisa’s emails to Terry were admitted into evidence. 

Wes, Jr. also testified that Lisa had been calling Laycock with lists of leads 

Wes, Jr. considered useless. Wes, Jr. complained that Lisa was wasting the 

company’s time because they “would have to dedicate time and effort and it cost the 
47

company money to respond to” Lisa’s requests. According to Wes, Jr., Laycock 

wanted to know how to respond to Lisa’s suggestions. He acknowledged that 

Laycock never suggested she was scared or felt threatened by Lisa. Laycock 

testified she was unaware Wes, Jr. had identified Lisa’s phone calls to her as one of 

the reasons he thought Lisa was threatening employees in March 2013. Laycock 

confirmed that Lisa never threatened her or made her fear for her physical safety. 

Wes, Jr. testified that Lisa also “made it impossible to have an effective board 

meeting” and she was “definitely one of the reasons” why the board began meeting 

less often. He testified:

Q Assuming [Lisa is] not going to change, do you ever see yourself 

getting along with Lisa as a member of the Board of Managers?

A No.

. . .

Q And so soon if you cannot vote Lisa off as a member of the Board 

of Managers and you cannot get along with her, how do you 

propose to get rid of her?

A I don’t know. I wish I had the answer to that.

Wes, Jr. denied, however, that his decision to initiate commitment proceedings 

against Lisa was “motivated at all by wanting to kick [Lisa] off the board or out of 

the company.” According to Wes, Jr., he was “just concerned for my sister’s 

welfare. I want my sister back. I’m tired of seeing her like this. You know, I’m 

tired of us having to deal with this.” 
48

Based on the evidence presented, the jury reasonably could have concluded 

that Wes, Jr. initiated the involuntary commitment proceedings against Lisa in 

March 2013 because he believed Lisa was a disruptive presence who posed a threat 

to the wellbeing of the company, and he needed to prove that Lisa was unfit to serve 

to remove her from the Board of Managers. Thus, the record contains some evidence 

supporting a finding that Wes, Jr. possessed a private motive to harm Lisa and 

therefore acted on something other than a reasonable and honest belief that Lisa was 

mentally ill and posed a substantial risk of imminent harm to herself or others unless 

she was immediately restrained. See Tranum v. Broadway, 283 S.W.3d 403, 415–

16 (Tex. App.—Waco 2008, pet. denied) (holding there was some evidence 

defendant did not have probable cause to bring theft charges against former business 

partner, when defendant did not pursue criminal charges until after former business 

partner sued defendant for slander and there was evidence defendant had pursued 

theft charge against another prior business partner under similar circumstances); cf. 

Kroger Texas Ltd., 216 S.W.3d at 795 (holding plaintiff did not rebut presumption 

of probable cause and noting that plaintiff did not introduce “evidence of, for 

example, prior bad relations . . . or any private motivation to harm her”).

To the extent Wes, Jr. and others testified that Lisa was behaving abnormally, 

exhibiting signs of mental illness before her commitment, such as delusions, or 

behaving in a threatening manner, it was the jury’s responsibility to resolve these 
49

conflicts. See City of Keller, 168 S.W.3d at 819. As the sole judge of the witnesses’ 

credibility and the weight to be given to their testimony, it was the jury’s province 

to determine what the underlying facts were at the time Wes, Jr. initiated the 

commitment proceedings and whether the commitment was proper. Id. Based on 

the conflicting testimony, the jury reasonably could have credited Lisa’s evidence 

over the evidence presented by Wes, Jr. See id. (stating jurors are sole judges of 

credibility of witnesses and weight to give their testimony).

Similarly, although Wes, Jr. averred in his Commitment Application affidavit 

that Lisa was “very volatile and threatening toward[s] myself and others,” Wes, Jr. 

did not identify any specific threats of violence or anything else that would indicate 

Lisa posed a risk of substantial harm to herself or anyone else, much less that the 

risk of harm “is imminent unless [Lisa] is immediately restrained.” TEX. HEALTH &

SAFETY CODE § 573.011(b)(2)–(6). The fact that Wes, Jr. did not initiate 

commitment proceedings against Lisa until four days after the March 2013 board 

meeting further supports the jury’s conclusion that Wes, Jr. did not have probable 

cause to believe Lisa posed a substantial risk of imminent harm to herself or others. 

See City of Keller, 168 S.W.3d at 819 (stating jury is sole judge of witnesses’ 

credibility and weight to be given their testimony and is responsible for resolving 

any evidentiary conflicts).
50

Viewing the evidence and inferences in the light most favorable to the jury’s 

finding, we conclude there is more than a scintilla of evidence supporting the jury’s 

finding that Wes, Jr. lacked probable cause to initiate involuntary commitment 

proceedings against Lisa based on the facts and circumstances known to Wes, Jr. 

when he filed the Commitment Application on March 25, 2013. See Kroger Texas 

Ltd., 216 S.W.3d at 793; City of Keller, 168 S.W.3d at 827.

To the extent Wes, Jr. attacks the jury’s finding that he did not meet his burden 

to prove he acted with probable cause once Lisa rebutted the presumption of 

probable cause, this argument is also unavailing. A party attacking the legal 

sufficiency of an adverse finding on an issue on which the party had the burden of

proof must demonstrate that the evidence conclusively establishes all vital facts in 

support of the issue. Dow Chem. Co., 46 S.W.3d at 241. A matter is conclusively

established only if reasonable people could not differ as to the conclusions to be 

drawn from the evidence. See City of Keller, 168 S.W.3d at 816. 

Wes, Jr. argues that probable cause was established as a matter of law based 

on Dr. Jachmann’s sworn certificate of medical examination where Dr. Jachmann

stated Lisa was mentally ill and an imminent danger to herself and others when she 

was first committed. Wes, Jr.’s reliance on Dr. Jachmann’s certificate is misplaced. 

The sworn certificate was executed after Wes, Jr. began the commitment 

proceedings against Lisa by filing the Commitment Application for emergency 
51

detention. Because Dr. Jachmann’s sworn certificate was not created until after 

Wes, Jr. initiated the commitment proceeding, it is “not material to [Wes, Jr.’s] 

beliefs and motives at the time the proceeding[] [was] instituted,” and therefore, the 

sworn certificate does not establish the existence of probable cause as a matter of 

law. See Akin, 661 S.W.2d at 920 (“Just as his eventual adjudication as sane and his 

subsequent release was not evidence of a lack of probable cause, the initial 

determination of a lack of competency made shortly after his confinement was not 

evidence of probable cause.”); see also Pettit, 509 S.W.3d at 549 (stating erroneous 

admission of subsequently discovered information was harmless because evidence 

is immaterial to defendant’s state of mind for purposes of establishing probable 

cause in malicious prosecution case). 

As previously discussed, there is also conflicting evidence regarding the facts 

and circumstances underlying Wes, Jr.’s decision to initiate involuntary commitment 

proceedings against Lisa. It was the jury’s province to resolve these conflicts, assess 

the credibility of the witnesses, and determine how much weight, if any, to accord 

their testimony. See City of Keller, 168 S.W.3d at 819. Given the record before us, 

we cannot say that the evidence conclusively establishes the existence of probable 

cause. See Hathaway, 711 S.W.2d at 229 (stating element is not conclusively

established when evidence is conflicting).

We overrule the Individual Appellants’ first issue.
52

B. Exclusion of Evidence of Lisa’s Mental Instability

The Individual and Company Appellants argue the trial court abused its 

discretion by excluding evidence of Lisa’s past mental instability. 

1. Standard of Review and Applicable Law

A trial court’s exclusion of evidence is reviewed for abuse of discretion. JBS 

Carriers, Inc. v. Washington, 564 S.W.3d 830, 836 (Tex. 2018). On appeal, the 

court must uphold the evidentiary ruling if there are any grounds to support it, even 

if those grounds were not asserted or cited in the trial court as the basis for the ruling. 

K.J. v. USA Water Polo, Inc., 383 S.W.3d 593, 610 (Tex. App.—Houston [14th 

Dist.] 2012, pet. denied).

Relevant evidence is presumed to be admissible. TEX.R.EVID. 402. Evidence 

is relevant if “(a) it has any tendency to make a fact more or less probable than it 

would be without the evidence; and (b) the fact is of consequence in determining the 

action.” TEX. R. EVID. 401. Pursuant to Rule 403, relevant evidence may be 

excluded “if its probative value is substantially outweighed by a danger of one or 

more of the following: unfair prejudice, confusing the issues, misleading the jury, 

undue delay, or needlessly presenting cumulative evidence.” TEX. R. EVID. 403. 

Even if a trial court abuses its discretion by excluding evidence, the error is 

not reversible unless it “probably caused the rendition of an improper judgment.” 

TEX. R. APP. P. 44.1(a)(1). In making this determination, we “evaluate the entire 
53

case from voir dire to closing argument, considering the evidence, strengths and 

weaknesses of the case, and the verdict.” Serv. Corp. Int’l v. Guerra, 348 S.W.3d 

221, 236 (Tex. 2011); see also State v. Cent. Expressway Sign Assocs., 302 S.W.3d 

866, 870 (Tex. 2009) (stating standard does not require complaining party “to prove 

that ‘but for’ the exclusion of evidence, a different judgment would necessarily have 

resulted”). “The role that the excluded evidence played in the context of the trial is 

important.” Cent. Expressway Sign Assocs., 302 S.W.3d at 870. If the excluded

evidence was crucial to a key issue, the error is likely harmful. Id. In other words, 

when assessing harm, we are required to assess whether the excluded evidence is 

controlling on a material issue in the case and would not have been cumulative of 

other evidence in the case. See Manon v. Solis, 142 S.W.3d 380, 393 (Tex. App.—

Houston [14th Dist.] 2004, pet. denied) (citing Tex. Dep’t of Transp. v. Able, 35 

S.W.3d 608, 617 (Tex. 2000)).

2. Analysis—Individual Appellants

The Individual Appellants argue that the excluded evidence detailing Lisa’s 

past mental instability was admissible to establish Wes, Jr.’s state of mind. They 

argue the evidence contextualized his observations and supported his reasonable 

belief that Lisa was mentally ill and posed a substantial risk of serious harm to herself 

or others when he initiated the involuntary commitment proceeding. 
54

The Individual Appellants argue the trial court abused its discretion by 

excluding Wes, Jr.’s testimony that Lisa physically assaulted him with a desk drawer 

in 1992 after he discovered entries in her day planner indicating to him that she might 

be delusional, and he confronted her about his concerns. Wes, Jr. would have 

testified that, 21 years earlier, Lisa had noted in her calendar that she had lunch plans 

with President Reagan and dinner plans with the King of Spain.26

The trial court also excluded evidence that Lisa had been claiming for years 

that the mafia was harassing her. Wes, Jr. would have testified that Lisa told him 

and Stacey in the early to mid-1990s that the mafia was harassing her, and that Lisa 

had told Stacey in the 1980s that the mafia had bugged an apartment they shared in 

Tulsa, Oklahoma.27 Wes, Jr. also would have testified that he had expressed his 

concerns to Lisa “[m]ultiple times over the last several years” over Lisa’s “fixation 

with the Mafia.” Stacey would have offered similar testimony about Lisa’s concerns 

about the mafia. 

26 Lisa disputes Wes, Jr.’s version of events and explains in her sur-reply that: “Wes 

Jr. probably read in Lisa’s day planner that she had an appointment involving King 

of Prussia, which is a shopping mall in Philadelphia, Pennsylvania. Lisa owned a 

fashion design business called Diamondi, Inc. in the King of Prussia mall at that 

time. And Wes Jr. may have read in Lisa’s day planner that Lisa, who was a member 

of the Republican National Committee Inner Circle at that time, planned to attend a 

political luncheon where a former U.S. President was scheduled to speak. Indeed, 

the Gilbreath family has been involved in Republican politics for many years. Wes 

Gilbreath, Sr. even ran for the U.S. Senate in 1988.”

27 The trial court also excluded similar testimony from Stacey. 
55

Brett would have testified at trial about text messages he and Lisa exchanged 

in May 2012 that made him concerned about Lisa’s mental health. Lisa wrote to 

Brett 

I have had so many problems with the Mafia. I don’t want them trying 

to take our company. Thus, I don’t want an outsider coming in. 

Understand? They finally have quit bothering me for the most part, and 

I’m not referring to Lou. It has been a really tough battle.

Brett replied, “Don’t share that with family.” Brett also would have testified that 

based on this text exchange, he was worried Lisa was experiencing “a major setback 

of mental illness” and he “was just real concerned over her.” According to Brett, he 

was aware Lisa had told other family members that she was being harassed by the 

mafia. “This had been a recurring thing over the years, and that’s concerning to me.” 

Brett also had other “personal experiences with Lisa that caused [him] a significant 

concern about her mental condition.” Brett would have testified that, in 2012, he 

was worried Lisa “might not be able to pass the fitness test and she might be having 

a breakdown that could be more serious than some of the episodes she had before.” 

“I was very worried about her being overstressed and that she could be having a 

breakdown.” 

The trial court also excluded testimony that a physician and family therapist 

believed Lisa was suffering from a mental illness in 2011. Specifically, the trial 

court excluded excerpts from John Horan’s deposition, Lisa’s ex-husband (“John”), 

in which he testified he had received telephone calls from two doctors who were 
56

concerned because Lisa had taken Noelle, their daughter, to the emergency room 

several times over a two-week period, even though there was nothing apparently 

wrong with Noelle. John testified that one of the doctors told him she believed Lisa 

was suffering from Munchausen syndrome by proxy. 

John mentioned the repeated emergency room visits when he and Lisa 

attended family counseling in 2011. The family therapist told John she did not think 

Lisa suffered from Munchausen by proxy. Rather, she believed Lisa suffered from 

Borderline Personality Disorder and/or Histrionic Personality Disorder and that 

Lisa’s behavior “was part of histrionic, where Lisa was doing it to be the center of 

attention.” Wes, Jr. would have testified that John told him about the family 

therapist’s comments and he was concerned by them because he understood them 

“to be a medical diagnosis finding that Lisa suffered from a mental illness.” 

Brett and Stacey had also spoken to Lisa about these events, and they would 

have provided similar testimony regarding their concerns about Lisa’s behavior. 

Brett would have testified that he became very concerned about Lisa and her 

daughter, Noelle, in 2011 after speaking with Lisa’s then husband, John. At that 

time, Brett called Lisa about John’s allegations 

My topic of concern was Lisa had taken Noelle to the hospital 

approximately ten times in a two-week period, and we were really 

concerned that nothing was wrong with Noelle and that Noelle might 

begin thinking something was wrong with her. 
57

According to Brett, Lisa did not deny or try to explain John’s allegations and her 

silence on the matter caused Brett further concern. Brett believed Lisa was behaving 

irrationally and he asked her to stop. 

Wes, Jr. would also have testified that Lisa filed several criminal complaints 

against him after she was released from the HCPC, none of which were successful. 

She had also told a Houston Police Department officer in 2014 that she believed 

Wes, Jr. and her ex-husband, John, were trying to intimidate her by deliberately 

placing nails in her driveway. Lisa claimed that one of the tires on her car had been 

punctured by two nails and she found several similar nails in her driveway and there 

was no obvious explanation for them being in her driveway. She also suspected that 

Wes, Jr. and John had been trying to intimate Frank Shepard, a Gilbreath relative 

who had assisted Lisa with one of the criminal complaints she had initiated against 

Wes, Jr. for wrongful psychiatric commitment, because one of the tires on Frank’s 

wife’s car blew out while she was driving down the highway a week later.

There is no evidence that Stacey, John, or Brett––the three witnesses who 

would have testified about these events––told Wes, Jr. about the repeated medical 

visits or concerns that Lisa had Munchausen by Proxy Syndrome before he initiated 

the commitment proceedings against Lisa.

28

 Brett testified that he never told anyone 

28 Notably, the record also reflects that Wes, Jr. did not believe Lisa posed a substantial 

risk of harm to Noelle when he filed the Commitment Application in March 2013. 
58

about the 2012 text message or the two-week period in 2011. Because probable 

cause in a malicious prosecution claim is evaluated from the perspective of the 

person who initiated the proceeding at the time the proceeding commenced,

information possessed by others, but unknown to Wes, Jr., is not relevant to 

determine whether Wes, Jr. acted with probable cause when he initiated the civil 

commitment proceeding against Lisa. See generally Akin, 661 S.W.2d at 921 (“It is 

proper for the trier of fact to consider all evidence which the prosecutor of the action 

knew or should have known relative to the condition of the plaintiff and upon which 

evidence the prosecutor based or should have based his action.”).

Similarly, evidence of claims or statements Lisa made after the commitment 

proceeding is not relevant to determine whether Wes, Jr. had probable cause when 

he filed the Commitment Application in March 2013. See TEX. R. EVID. 401; Akin,

661 S.W.2d at 920 (stating that “it is the events prior to the institution of the

proceedings which must be examined, and only those events, to determine if the

defendants had probable cause to act,” and that subsequent events “are not material 

to the beliefs and motives at the time the proceedings were instituted”); see also

Pettit, 509 S.W.3d at 548–49 (stating subsequently discovered information is 

immaterial to defendant’s state of mind for purposes of establishing probable cause). 

Specifically, Wes, Jr. testified that it was not necessary for him to check on Noelle’s 

welfare after Lisa was released from HCPC because he “never expected her to harm 

Noelle.” 
59

Evidence that Lisa physically assaulted Wes, Jr. on one occasion in 1992, after 

he told her he was worried she was mentally unstable is of little probative value with 

respect to whether, 21-years later in March 2013, Lisa posed a substantial and 

imminent risk of serious harm to Wes, Jr., or anyone else, unless she was 

immediately restrained. See TEX. HEALTH & SAFETY CODE § 573.011(b)(1)–(2), (4). 

The same is true with respect to the testimony about Lisa’s behavior in the 1980’s 

and 1990’s. 

While the excluded evidence could have provided additional detail regarding 

Wes, Jr.’s claims of Lisa’s past mental instability, the exclusion of this evidence was 

not crucial with respect to whether Wes, Jr. had probable cause years or decades 

later in March 2013, to initiate commitment proceedings against Lisa. We further 

note that the record includes other evidence that, if the jury believed, could have 

supported Wes, Jr.’s argument that he had probable cause. For example, there is 

evidence Wes, Jr. and other family members had concerns about Lisa’s mental health 

for decades, the symptoms of mental illness Lisa allegedly exhibited in the weeks 

leading up to the involuntary commitment proceeding, including her behavior during 

the March 21, 2013 board meeting, and Wes, Jr.’s past experiences with his mother 

and sister Sheree that informed his opinions about the state of Lisa’s mental health 

and the threat she allegedly posed to herself or others as a result of her alleged mental 

illness. There is also evidence in the record that Lisa was diagnosed with a mental 
60

illness in March 2013—the HCPC records reflect that Dr. Jachmann diagnosed Lisa 

with “Psychotic Disorder NOS” when she was admitted to the psychiatric facility.

Given the state of the entire record and the testimony about Lisa’s siblings’ 

past concerns about her mental health, and the comparisons they drew between their 

mother’s conduct and Lisa’s behavior during the weeks before she was involuntarily 

committed by Wes, Jr., we cannot say that the exclusion of additional evidence of 

Lisa’s mental health, especially evidence from the 1980’s and 1990’s, “probably 

caused the rendition of an improper judgment” with respect to the malicious 

prosecution claim. Cent. Expressway Sign Assocs., 302 S.W.3d at 870; see also TEX.

R. APP. P. 44.1(a)(1).

We overrule the Individual Appellants’ second issue.

3. Analysis—Company Appellants

In their sixth issue, the Company Appellants argue the trial court abused its 

discretion by excluding the same evidence because Lisa’s mental capacity was 

directly relevant to whether her requests for books and records from the General 

Partners were made for a “proper purpose,” and whether the Company Appellants’ 

actions in requiring a confidentiality agreement, among other restrictions, before 

providing the requested records was “just and reasonable.” As previously discussed, 

Lisa’s siblings testified that she had a long history of mental instability, and that her 

mental health declined dramatically after their father died in January 2013. They 
61

also drew comparisons between their mother’s conduct when she was not taking her 

psychiatric medication and Lisa’s behavior during the weeks before she was 

involuntarily committed.

Therefore, even if the trial court erred by excluding additional evidence about 

Lisa’s mental health, as the Company Appellants argue, the exclusion of this 

evidence was harmless considering the wealth of similar testimony addressing the 

same issue. See Manon, 142 S.W.3d at 393 (citing Able, 35 S.W.3d at 617); see also

TEX. R. APP. P. 44.1(a)(1).

We overrule the Company Appellants’ sixth issue.

C. Actual and Exemplary Damages for Malicious Prosecution

The Individual Appellants argue that the actual and exemplary damage awards 

for malicious prosecution should be eliminated or remitted29 because the awards 

against Wes, Jr., Lee, and Stacey are excessive and there is insufficient evidence of 

malice with respect to Lee and Stacey. (Jury Questions 4 to 7). 

1. Amount of Actual Damages 

The Individual Appellants challenge the award of actual damages for Lisa’s 

malicious prosecution claim in a mere two paragraphs. They argue

29 The remedy for an excessive verdict is to order a remittitur, and remittitur is only 

available should we conclude a damage award rests on factually insufficient 

evidence. Torrington Co. v. Stutzman, 46 S.W.3d 829, 851 (Tex. 2000). Neither 

Lisa nor the Individual Appellants suggest an amount of remittitur, should this Court 

determine that remittitur is appropriate.
62

When “it is evident that the jury’s award is the result of passion, 

prejudice or other improper motive, or is so excessive as to shock an 

appellate court’s sense of justice, . . . the verdict should be overturned.” 

Dayton Hudson Corp. v. Altus, 715 S.W.2d 670, 674 (Tex. App.—

Houston [1st Dist.] 1986, writ ref’d n.r.e.).

Here, the legislature has established a maximum recovery of mentalanguish damages in a health-care case at $500,000. TEX. CIV. PRAC. 

& REM. CODE § 74.301(c). Lisa proved no economic loss at all. So, 

the jury’s award is identical to the maximum someone could recover in 

a medical-malpractice case for the death of a child, lacking economic 

losses. To say her one-day commitment deserves to be compensated at 

that level insults all the Texas plaintiffs suffering truly egregious and 

irreplaceable losses. The $500,000 mental-anguish award should be 

vacated, or, alternatively, should be remitted to a small fraction of the 

current amount.

Lisa argues that the Individual Appellants have waived this argument based 

on inadequate briefing. The Individual Appellants respond that:

. . . it is difficult to cite to evidence about damages when the evidence 

does not exist in the record. While no one would be happy with a oneday commitment, no one should expect $500,000 in actual damages for 

it, especially when—according to the records of the admitting and 

discharging physicians—it helped. The discharging doctor noted that, 

following commitment, Lisa was “very much improved. RR6:92, 

RR25C:934. The award is patently excessive and represents a jury 

motivated by passion, most likely due to the erroneous exclusion of the 

relevant evidence about probable cause. 

This is the sum of the Individual Appellants’ argument on this issue. They do 

not identify the standard of review, cite to the record, or offer any meaningful 

analysis of the issue. While the Individual Appellants arguably have waived their 

issue, we nonetheless address the merits of the argument as presented by the 

Individual Appellants. 
63

(a) Standard of Review and Applicable Law 

A claim that an award of actual damages is excessive is a factual-sufficiency 

complaint. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex. 1998). When 

conducting a factual sufficiency review, we consider and weigh all the evidence in 

a neutral light and will set aside the finding only if it is “so contrary to the 

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

Id. at 407. The jury is the sole judge of the witnesses’ credibility, and a reviewing 

court may not impose its own opinion to the contrary. See id. When presented with 

conflicting testimony, the fact finder may believe one witness and disbelieve others, 

and it may resolve inconsistencies in the testimony of any witness. McGalliard v. 

Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986); see also Mar. Overseas Corp., 971 

S.W.2d at 407 (stating “the court of appeals may not pass upon the witnesses’

credibility or substitute its judgment for that of the jury, even if the evidence would 

clearly support a different result”). “Only in those cases where it is evident that the 

[jury’s] award for damages is the result of passion, prejudice, or other improper 

motive or [is] so excessive as to shock” an appellate court’s sense of justice will the 

jury’s verdict be overturned. Moore’s, Inc. v. Garcia, 604 S.W.2d 261, 266 (Tex. 

App.—Corpus Christi 1980, writ ref’d n.r.e.).

“There is no certain measure of damages for the varying degrees of harm 

incurred by a person who has been maliciously prosecuted or falsely imprisoned.” 
64

Dayton Hudson Corp. v. Altus, 715 S.W.2d 670, 674 (Tex. App.—Houston [1st 

Dist.] 1986, writ ref’d n.r.e.). “The measure of damages usually rests in the 

composite judgment and conscience of the jury.” Id. Mental anguish is a “relatively 

high degree of mental pain and distress” that is “more than mere disappointment, 

anger, resentment or embarrassment, although it may include all of these.” Parkway

Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995) (quoting Trevino v. Sw. Bell Tel.

Co., 582 S.W.2d 582, 584 (Tex. Civ. App.—Corpus Christi 1979, no writ)). “Even 

when an occurrence is of the type for which mental anguish damages are 

recoverable, evidence of the nature, duration, and severity of the mental anguish is 

required.” Serv. Corp. Int’l, 348 S.W.3d at 231.

“The process of awarding damages for amorphous, discretionary injuries such 

as mental anguish or pain and suffering is inherently difficult because the alleged 

injury is a subjective, unliquidated, nonpecuniary loss.” Figueroa v. Davis, 318 

S.W.3d 53, 62 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (quoting HCRA of 

Tex., Inc. v. Johnston, 178 S.W.3d 861, 871 (Tex. App.—Fort Worth 2005, no pet.)). 

“Once the existence of some pain, mental anguish and disfigurement has been 

established, there is no objective way to measure the adequacy of the amount 

awarded as compensation, which is generally left to the discretion of the fact finder.” 

Figueroa, 318 S.W.3d at 62 (quoting Pentes Design, Inc. v. Perez, 840 S.W.2d 75, 

80 (Tex. App.—Corpus Christi 1992, writ denied)). The fact finder’s discretion in 
65

this regard is necessary, in part, because “[i]ndividuals experience mental anguish in 

myriad ways, so each case is unique.” Anderson v. Durant, 550 S.W.3d 605, 619 

(Tex. 2018). 

(b) Analysis

The jury found that Lisa sustained $500,000 in past mental anguish damages 

based on her malicious prosecution claim, and the judgment awards that amount 

against Wes, Jr., Lee, and Stacey, jointly and severally. The Individual Appellants 

do not challenge the sufficiency of the evidence supporting the jury’s award of 

damages against Wes, Jr. based on Lisa’s past mental anguish. They only challenge 

the excessiveness of the award.

The Individual Appellants argue that the award of $500,000 for past mental 

anguish based on “a one-day commitment” is “patently excessive” and “represents 

a jury motivated by passion, most likely due to the erroneous exclusion of the 

relevant evidence about probable cause.”30 See Dayton Hudson Corp., 715 S.W.2d 

at 674 (stating that when “it is evident that the jury’s award is the result of passion, 

prejudice or other improper motive, or is so excessive as to shock an appellate court’s 

sense of justice, . . . the verdict should be overturned”). They also argue that the 

verdict’s size alone establishes prejudice and passion, especially when compared to 

30 As previously discussed, we hold the trial court did not abuse its discretion by 

excluding the additional evidence of Lisa’s alleged mental instability. 
66

medical malpractice cases involving the death of a child because Chapter 74 of the 

Civil Practice and Remedies Code caps the recovery of non-economic damages in 

such cases at $500,000. 

We have already held that the trial court did not abuse its discretion by 

excluding the evidence to which the Individual Appellants refer. And as it concerns 

the damages cap under Chapter 74, the cap reflects a legislative public policy 

decision, not a jury’s evaluation of an amount that “would fairly and reasonably 

compensate” someone for their injury. See Saenz v. Fid. Guar. Ins. Underwriters, 

925 S.W.2d 607, 614 (Tex. 1996) (requiring evidence that amount of mental anguish 

damages awarded to be fair and reasonable compensation). This is particularly 

significant given that “[i]ndividuals experience mental anguish in myriad ways, so 

each case is unique.” Anderson, 550 S.W.3d at 619.

The Individual Appellants also argue that “[w]hile no one would be happy 

with a one-day commitment, no one should expect $500,000 in actual damages for 

it, especially when—according to the records of the admitting and discharging 

physicians—it helped.” They argue the HCPC’s multidisciplinary discharge 

document noted that following commitment, Lisa was “very much improved.” The 

same document, however, also indicates that Lisa was “Normal, not ill at all” when 

she was discharged, there had been “[n]o change” in her condition since she was 
67

admitted the day before, and that she had been admitted for a “family dispute 

possibly [in]appropriately.” 

Lisa also presented evidence that without any prior notice or knowledge of 

the filed Commitment Application, she was removed from her home by law 

enforcement officers and taken in the back of a patrol car to a psychiatric facility 

where she was involuntarily confined for twenty-four hours. Lisa did not have an 

opportunity to contest Wes, Jr.’s affidavit and Commitment Application. At the 

HCPC, Lisa was subjected to invasive physical and mental examinations, and 

surrounded by what she perceived were dangerous people, including a delusional 

roommate who repeatedly threatened to kill her, and a deranged man who ran around 

the common area, screaming in a frightening manner. In addition to being in 

constant fear that she would be assaulted or killed by another patient while she was 

at the HCPC, Lisa testified she had no privacy, she was constantly monitored, and 

she was questioned repeatedly by medical staff. Lisa also knew that her mother had 

been confined for weeks at a time and sent to the state psychiatric hospital when 

Wes, Jr. had her involuntarily committed and Lisa feared the same would happen to 

her. She testified she was terrified of losing her independence and being separated 

from her daughter, Noelle. 

Lisa also testified about her emotional state while she was in the HCPC: “I 

really felt like, you know, my life . . . was going to change and they were going to 
68

throw me in the State hospital at Rusk or something like they had done to my mother; 

and it was very scary. And I have this wonderful daughter who is my whole world. 

And it’s like they plotted this whole thing just because of money.” Lisa further 

testified she “was heartbroken [and] physically ill from the betrayal of [her] own 

siblings” after “dealing with things like” her father’s death and the attempted 

commitment. She explained she did not seek counseling because she was afraid her 

siblings would use that information against her in their effort to prove she had a 

mental illness. Lisa testified she was still scared because Wes, Jr. was still trying to 

obtain a guardianship over her because his attempt to have her committed was 

unsuccessful. 

The jury had the benefit of observing Lisa as she testified about her experience 

and could assess her emotional demeanor; this afforded some insight into the 

severity of the mental anguish Lisa suffered in the past as a result of the jury’s 

finding that she had been maliciously prosecuted by her brother and business partner. 

See Plasencia v. Burton, 440 S.W.3d 139, 149 (Tex. App.—Houston [14th Dist.]

2013, no pet.) (holding there was factually sufficient evidence supporting award of 

mental anguish damages based on witness testimony and noting fact finder had 

opportunity to observe witness testifying and “assess his emotional demeanor” and 

this gave fact finder “some insight into the mental anguish” witness had suffered). 

As we held, there is sufficient evidence supporting the jury’s finding that Lisa’s 
69

brother, Wes, Jr., lacked probable cause to initiate commitment proceedings against 

her. 

Although Lisa’s daughter, Noelle, testified that Lisa was “normal” after her 

release from the HCPC, it was the jury’s responsibility to resolve any conflicts in 

the evidence and to pass on the weight or credibility of the witnesses’ testimony. 

See Dayton Hudson Corp., 715 S.W.2d at 674 (stating “it is not the prerogative of 

the appellate court to substitute its own judgment for that of the jury, even if that 

court might have awarded a lesser sum as a fact finder”). We note that the Individual 

Appellants have not identified any specific evidence of jury prejudice or bias, only 

speculation. 

Considering Lisa’s testimony regarding the conditions of her confinement and 

the impact that her brother Wes, Jr.’s decision to have her involuntarily committed 

to a psychiatric facility had on her, we cannot conclude it is evident the jury’s award 

was the result of passion, prejudice or other improper motive or is so excessive as to 

shock the conscience of the court. See id. (overruling defendant’s claim that damage 

award for malicious prosecution was excessive and finding that although damages 

awarded were larger than usual awards in false imprisonment and malicious 

prosecution suits, there was sufficient evidence to support jury’s findings and court’s 

judgment). 
70

After considering and weighing all the evidence in a neutral light, we cannot 

say that the evidence supporting the jury’s award of past mental anguish damages is 

so weak or so contrary to the overwhelming weight of all the evidence as to make 

the award excessive. See Mar. Overseas Corp., 971 S.W.2d at 406. 

We overrule the Individual Appellants’ factual sufficiency challenge to the 

award of past mental anguish damages based on Lisa’s malicious prosecution claim.

2. Actual Damages Against Lee and Stacey

In one sentence at the end of the section of their brief challenging the 

sufficiency of the evidence supporting the jury’s finding that Lee and Stacey acted 

with malice for purposes of awarding exemplary damages, the Individual Appellants 

add the following conclusory sentence concerning actual damages: “And, because 

malice is required for actual damages, too, that award also should be eliminated. See 

Kroger Texas Ltd. P’ship v. Suberu, 216 S.W.3d 788, 792 (Tex. 2006).” 

Texas Rule of Appellate Procedure 38.1(i) requires an appellant’s brief to 

contain a clear and concise argument with appropriate citations to authorities and the 

record. See TEX. R. APP. P. 38.1(i). The failure to provide a substantive and 

meaningful analysis applying the law to the facts waives a complaint on appeal. See

Encinas v. Jackson, 553 S.W.3d 723, 728 (Tex. App.—El Paso 2018, no pet.) 

(holding appellant waived argument by “provid[ing] no citation to authority, nor 

appl[ying] applicable law to the facts of the case in support of her second issue”); 
71

Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 57, 75 (Tex. App.—San 

Antonio 2011, no pet.) (“A failure to provide substantive analysis of an issue waives 

the complaint.”); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. 

App.—Houston [14th Dist.] 2005, no pet.) (“[P]arties asserting error on appeal still 

must put forth some specific argument and analysis showing that the record and the 

law supports their contentions.”). “An appellate court has no duty—or even right—

to perform an independent review of the record and applicable law to determine 

whether there was error.” Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El 

Paso 2007, no pet.). “Were we to do so, . . . we would be abandoning our role as 

neutral adjudicators and become an advocate for that party.” Id.

Although the Individual Appellants provide record citations in the preceding 

paragraphs discussing malice with respect to exemplary damages and a lone legal 

citation citing the elements of a malicious prosecution claim, there is no meaningful 

analysis with respect to the sufficiency of the evidence supporting the award of 

actual damages against Lee and Stacey based on Lisa’s malicious prosecution claim. 

Their arguments and analysis with respect to exemplary damages are inapplicable 

because, as the Individual Appellants fail to acknowledge, the “malice” element for 

a malicious prosecution claim is not the same as a predicate finding of “malice” to 

establish liability for exemplary damages. 
72

Malice, for purposes of a malicious prosecution claim, is defined as “ill will, 

evil motive, gross indifference, or reckless disregard of the rights of others.” 

Hernandez v. Mendoza, 406 S.W.3d 351, 357 (Tex. App.—El Paso 2013, no pet.); 

French v. French, 385 S.W.3d 61, 69 (Tex. App.—Waco 2012, pet. denied). For 

purposes of exemplary damages, however, “malice” is defined as “a specific intent 

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

PRAC. & REM. CODE § 41.001(7). Although a plaintiff must present clear and 

convincing proof of malice to recover exemplary damages, the standard of proof for 

a malicious prosecution claim is the preponderance of the evidence. See Ellis Cnty.

State Bank v. Keever, 888 S.W.2d 790, 793 (Tex. 1994) (holding malicious 

prosecution claim must be proven by preponderance of evidence); Soon Phat, L.P.

v. Alvarado, 396 S.W.3d 78, 109 (Tex. App—Houston [14th Dist.] 2013, pet. 

denied) (holding exemplary damages must be proven by clear and convincing 

evidence). Thus, to the extent the Individual Appellants attempt to challenge the 

awards of actual damages for malicious prosecution against Lee and Stacey on the 

basis that there is no evidence Lee and Stacey acted with malice, that argument is 

waived. See TEX. R. APP. P. 38.1(i). 

We note that even if waiver were not an issue, the Individual Appellants would 

not prevail on this issue. The jury found Wes, Jr. maliciously prosecuted Lisa and 

that Wes, Jr., Lee, and Stacey conspired to maliciously prosecute Lisa. Once a civil 
73

conspiracy is established, each conspirator is responsible for all acts done by any of 

the conspirators in furtherance of the conspiracy. Greenberg Traurig of N.Y., P.C. 

v. Moody, 161 S.W.3d 56, 90 (Tex. App.—Houston [14th Dist.] 2004, no pet.) 

(citing Akin, 661 S.W.2d at 921). A finding of civil conspiracy further imposes joint 

and several liability on all conspirators for actual damages resulting from acts in 

furtherance of the conspiracy. Carroll v. Timmers Chevrolet, Inc., 592 S.W.2d 922, 

925 (Tex. 1979). “[C]ivil conspiracy ‘came to be used to extend liability in tort . . . 

beyond the active wrongdoer to those who have merely planned, assisted, or 

encouraged his acts.’” Helping Hands Home Care, Inc. v. Home Health of Tarrant 

Cnty., Inc., 393 S.W.3d 492, 506 (Tex. App.—Dallas 2013, pet. denied) (quoting 

Carroll, 592 S.W.2d at 925–26)).

As previously discussed, there is legally sufficient evidence supporting the 

jury’s finding that Wes, Jr. maliciously prosecuted Lisa and the Individual 

Appellants are not challenging the jury’s conspiracy findings. Because the jury 

found Lee and Stacey conspired with Wes, Jr. to maliciously prosecute Lisa, Lee 

and Stacey are jointly and severally liable for actual damages resulting from acts in 

furtherance of the conspiracy. See Helping Hands, 393 S.W.3d at 511 (stating “the 

effect of the unchallenged conspiracy finding is to make Delzell and Grice 

responsible for any unlawful act committed by Delzell, Duckworth, or Grice”).
74

We overrule the Individual Appellants’ challenge to the awards of actual 

damages against Lee and Stacey based on insufficiency of the evidence.

3. Exemplary Damages Awards Against Lee and Stacey

The jury found that Lisa should recover $875,000 in exemplary damages from 

Wes, Jr. (reduced to $500,000 in the Amended Final Judgment), $500,000 from Lee, 

and $500,000 from Stacey for her malicious prosecution claim. The Individual 

Appellants argue (1) there is legally insufficient evidence that Lee and Stacey acted 

with malice, and thus the award of exemplary damages against Lee and Stacey must 

be reversed, and (2) the awards of exemplary damages against Wes, Jr., Lee, and 

Stacey are excessive.31

(a) Evidence of Malice

For an exemplary damage award, “we conduct a legal sufficiency review 

under the ‘clear and convincing’ evidence standard.” Soon Phat, L.P., 396 S.W.3d 

at 109. We examine all 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. Id. We assume the fact finder resolved any 

disputed facts in favor of its finding if a reasonable fact finder could have done so

and we disregard all evidence that a reasonable fact finder could have disbelieved. 

31 The Individual Appellants do not challenge the jury’s finding that Wes, Jr. acted 

with malice when he initiated the involuntary commitment proceeding against Lisa 

(Jury Questions 1 and 4).
75

Diamond Shamrock Ref. Co., L.P. v. Hall, 168 S.W.3d 164, 170 (Tex. 2005) (citing

In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)); see also Jang Won Cho v. Kun Sik

Kim, 572 S.W.3d 783, 809 (Tex. App.—Houston [14th Dist.] 2019, no pet.).

Exemplary damages may be awarded “only if the claimant proves by clear 

and convincing evidence that the harm with respect to which the claimant seeks 

recovery of exemplary damages results from: (1) fraud; (2) malice; or (3) gross 

negligence.” TEX.CIV. PRAC.&REM.CODE § 41.003(a). “‘Malice’ means a specific 

intent by the defendant to cause substantial injury or harm to the claimant.” Id. 

§ 41.001(7). “‘Clear and convincing’ means the measure or degree of proof that will 

produce in the mind of the trier of fact a firm belief or conviction as to the truth of 

the allegations sought to be established.” Id. § 41.001(2). “Specific intent means 

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

consequences are substantially certain to result from it.” Tri-County Elec. Coop.,

Inc. v. GTE Sw. Inc., 490 S.W.3d 530, 556 (Tex. App.—Fort Worth 2016, no pet.) 

(citing Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex. 1985)).

Lisa argues there is sufficient evidence supporting the jury’s findings that Lee 

and Stacey acted with malice because they accused her of being mentally ill at the 

March 2013 board meeting even though she was not ill, and they “fanned her anger 

and alarm about the Grandchildren’s Trust by refusing to answer questions, refusing 
76

to provide books and records (even in response to written demands from her 

attorney), and making threats to remove her from the board.” 

During the March 2013 meeting, there were several angry outbursts requiring 

several breaks, including at least one when Wes, Jr. accused Lisa of being mentally 

ill. Lisa testified, “Stacey, who was sitting next to me, stood up and started 

screaming at me over my head, like that she hates me and just totally irate screaming 

at me.” When the meeting resumed, Wes, Jr., Lee, and Stacey all voted (over Lisa’s 

dissent) to reduce the number of board meetings from six to one meeting per year. 

Lisa testified that her siblings dramatically reduced the number of meetings because 

they did not want to keep her informed about SignAd Outdoor’s financial affairs and 

they wanted to push her out of the family business. Wes, Jr., Lee, and Stacey, in 

their capacity as SignAd GP, LLC’s managers, also voted to appoint Stacey to fill 

Brett’s former position on SignAd GP, LLC’s Executive Committee and serve on 

the committee along with Wes, Jr. and Lee. Lisa contends that by doing so, Wes, 

Jr., Lee, and Stacey effectively reestablished the defunct committee which had not 

met since Brett resigned in 2011, and as a result of Stacey’s appointment, Lisa was 

the only board member excluded from the committee.

After the highly contentious board meeting, Lee and Stacey conferred with 

Wes, Jr. about Lisa and, four days later, Wes, Jr. filed the Commitment Application 

with Lee’s and Stacey’s approval. Prior to initiating the commitment proceeding, 
77

both Lee and Wes, Jr. had threatened to have Lisa declared “unfit” to serve and 

removed from the Board of Managers. Lisa argues her siblings’ actions in having 

her committed were in retaliation “for questioning their actions and making request 

for books and records, and an intentional effort to silence and intimidate Lisa and 

remove her from the board of managers.”

While there was evidence Wes, Jr., Lee, and Stacey were concerned about 

Lisa’s disruptive behavior, they could not identify any potential imminent danger 

justifying the need for emergency involuntary commitment. Indeed, Wes, Jr. waited 

four days after the March 2013 board meeting before filing the Commitment 

Application. Similarly, although Lee and Stacey testified that they had concerns 

about Lisa’s mental health after their father died, the record also reflects that neither 

Lee nor Stacey reached out to Lisa or otherwise acted on their concerns before they 

agreed to have Lisa involuntarily committed and confined to a mental health 

facility.32 Lisa testified that after she was released, none of her siblings called her to 

see how she was doing or how the process had gone. 

Lisa testified that although she and Lee had a good relationship, their 

relationship soured after she accused him of stealing from the Grandchildren’s Trust 

and demanded that he resign as trustee in February 2013. Lee was noticeably upset 

32 Wes, Jr. testified that Lee agreed with him that Lisa needed to be involuntarily 

committed. Lee testified that he agreed with Wes, Jr. and Stacey that “something 

needed to be done” with regard to Lisa.
78

by Lisa’s allegations that he and the other trustees had breached their fiduciary 

obligations to the Grandchildren’s Trust. Lee told Lisa that she had no basis for her 

allegations, he questioned her motives for making the allegations, and he demanded 

an apology. Lee also told Lisa that “[f]urther actions along this line and others you 

showed at the board meetings may result in evaluating your fitness to serve in your 

various capacities––your lifetime appointment can be voided if it is determined that 

you are not ‘able to serve.’” Lisa testified that she understood Lee was threatening 

to have her removed from the board.

Based on the record before us, we conclude that a reasonable jury could have 

disregarded Lee’s and Stacey’s testimony that they were only trying to help Lisa 

when they agreed to have her involuntarily committed and resolved any disputed 

facts in favor of its findings that Lee and Stacey acted with malice. See Jang Won

Cho, 572 S.W.3d at 810–11. Reviewing all the evidence in the light most favorable 

to the jury’s findings, disregarding evidence the jury could have disregarded, and 

deferring to the jury’s resolution of disputed facts, we conclude that a reasonable 

trier of fact could have formed a firm belief or conviction that Lee and Stacey acted 

with malice. See Soon Phat, L.P., 396 S.W.3d at 109; Jang Won Cho, 572 S.W.3d 

at 810–11. We thus hold that the jury’s findings of malice with respect to Lee and 

Stacey are supported by legally sufficient evidence and we overrule the Individual 

Appellants’ challenge to the exemplary damage awards against Lee and Stacey.
79

(b) Excessiveness of the Exemplary Damage Awards

The Individual Appellants challenge the award of exemplary damages against 

Wes, Jr., Lee, and Stacey for Lisa’s malicious prosecution claim in a mere two 

paragraphs. They assert that:

[w]hen reviewing a finding of exemplary damages, courts should 

consider three guideposts:

(1) the degree of reprehensibility of the misconduct; (2) 

the disparity between the exemplary-damages award and 

the actual harm suffered by the plaintiff or the harm likely 

to result; and (3) the difference between the exemplary 

damages awarded and the civil or criminal penalties that 

could be imposed for comparable conduct.

Bennett v. Grant, 525 S.W.3d 642, 650 (Tex. 2017). Here, given the 

substantial evidence—admitted and improperly excluded—that Lisa’s 

commitment was justified, the family member’s actions to have her 

committed were not highly reprehensible. There was a considerable 

disparity between the exemplary damages of $1.5 million and the actual 

harm proved from the one-night commitment. And there was no 

evidence or argument advanced regarding comparable civil or criminal 

penalties.

Given the paucity of proof of malice, the identical awards of $500,000 

each against Wes, Lee, and Stacey are excessive. Further, if the award 

of actual damages is vacated or substantially reduced, the punitive 

damages should disappear or be reduced, too. 

The Individual Appellants do not identify the appropriate standard of review, state 

whether they are challenging the legal or factual sufficiency of the evidence or 

provide any record citations.
80

Although the Individual Appellants cite to Bennett v. Grant, 525 S.W.3d 642 

(Tex. 2017) (“Bennett II”) and identify the three guideposts courts consider when 

evaluating the excessiveness of an exemplary damage award, this is only part of the 

analysis. Although courts consider several non-exclusive factors when evaluating 

the first guidepost––the degree of reprehensibility of a defendant’s misconduct––the 

Individual Appellants do not reference these factors or make any attempt to apply 

them in this case. See Bennett II, 525 S.W.3d at 650. Nor do they brief the issue 

separately with respect to Wes, Jr., Lee, and Stacey. See TEX. CIV. PRAC. & REM.

CODE § 41.006 (requiring awards of exemplary damages to be specific as to each 

defendant in cases with multiple defendants); Horizon Health Corp. v. Acadia 

Healthcare Co., Inc., 520 S.W.3d 848, 879 (Tex. 2017) (holding “determining the 

basis for a constitutionally permissible amount of exemplary damages, courts must 

consider the harm each defendant actually caused and assess the punishment based 

on that harm because this approach most closely matches the punishment to each 

defendant’s misconduct”). The closest the Individual Appellants come to doing so 

is when they state that “[g]iven the paucity of proof of malice, the identical awards 

of $500,000 each against Wes, Lee, and Stacey are excessive.” 

Although the Individual Appellants arguably waived their complaint due to 

inadequate briefing, we reach the merits of the argument as presented. See TEX. R.
81

APP. P. 38.1(i) (requiring appellant’s brief to contain clear and concise argument 

with appropriate citations to authorities and record).

(i) Standard of Review and Applicable Law 

The exemplary damage awards against Wes, Jr., Lee, and Stacey were 

premised on findings of malice. The jury charge defined malice as “a specific intent 

. . . to cause substantial injury or harm” to Lisa. The jury was asked, “Do you find 

by clear and convincing evidence that the harm to Lisa Horan resulted from malice 

with respect to the individuals below?” The jury answered “Yes” separately for 

Wes, Jr., Lee, and Stacey. Based on these findings, the jury was asked to determine 

the amount of exemplary damages to be assessed separately against Wes, Jr., Stacey, 

and Lee. The jury awarded Lisa $500,000 in exemplary damages separately against 

Lee and Stacey, and $875,000 in exemplary damages against Wes, Jr. See TEX. CIV.

PRAC.&REM.CODE § 41.006 (requiring awards of exemplary damages to be specific 

as to each defendant in cases with multiple defendants). The trial court reduced the 

amount of the award against Wes, Jr. to $500,000 to comply with the applicable 

statutory cap under Section 41.008(b) of the Texas Civil Practice and Remedies 

Code.33 See id. § 41.008(b).

Because Bennet II is the only authority the Individual Appellants rely on in 

this section of their opening brief, we will liberally construe their argument as a 

33 Lisa is not challenging the reduced award.
82

challenge to the constitutionality of the exemplary damage awards. See Bennett II, 

525 S.W.3d at 650 (analyzing whether exemplary damage award is 

unconstitutionally excessive).

Appellate courts consider three guideposts when reviewing the 

constitutionality of an exemplary damage award: (1) the degree of reprehensibility 

of the misconduct, (2) the disparity between the exemplary damage awarded and the 

actual harm suffered by the plaintiff or the harm likely to result, and (3) the 

difference between the exemplary damages awarded and the civil or criminal 

penalties that could be imposed for comparable conduct. Id. (citing State Farm Mut.

Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418 (2003)). Whether an exemplary 

damage award is unconstitutionally excessive is a question of law that we review de 

novo. See Bennett II, 525 S.W.3d at 650 (citing Bunton v. Bentley, 153 S.W.3d 50,

54 (Tex. 2004)).

The first guidepost––the degree of reprehensibility of a defendant’s 

misconduct––is the most important of these factors. Horizon Health Corp., 520 

S.W.3d at 875 (citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575 (1996)); see 

generally Bennett v. Reynolds, 315 S.W.3d 867, 874 (Tex. 2010) (Bennett I) (quoting 

State Farm, 538 U.S. at 419) (stating exemplary damages are permitted if 

wrongdoing “is so reprehensible as to warrant the imposition of further sanctions to 

achieve punishment or deterrence”). Courts consider several non-exclusive factors 
83

when evaluating the degree of reprehensibility of a defendant’s misconduct

including whether (1) the harm inflicted was physical rather than economic, (2) the 

tortious conduct showed an indifference to or reckless disregard for the health or 

safety of others, (3) the target of the conduct had financial vulnerability, (4) the 

conduct involved repeated actions, and (5) the harm resulted from intentional malice, 

trickery, or deceit. See Bennett II, 525 S.W.3d at 650. 

The Individual Appellants do not reference these factors or make any attempt 

to apply them in this case, and we will not abandon our role as a neutral adjudicator 

and make the argument for them. See Valadez, 238 S.W.3d at 845. Instead, we will 

analyze the issue as briefed. We will, however, separately evaluate the 

excessiveness of the awards against Wes, Jr., Lee, and Stacey, as required. See TEX.

CIV. PRAC. & REM. CODE § 41.006 (requiring awards of exemplary damages to be 

specific as to each defendant); Horizon Health Corp., 520 S.W.3d at 874 

(“Constitutional rights are personal in nature, and, therefore, inquiries into the 

constitutional excessiveness of an exemplary damages award must be defendantspecific.”) (citing Gore, 517 U.S. at 574). 

(ii) Wes, Jr.

For the first guidepost—the degree of reprehensibility of the misconduct—the 

Individual Appellants argue: “[G]iven the substantial evidence—admitted and 

improperly excluded—that Lisa’s commitment was justified, the family member’s 
84

actions to have her committed were not highly reprehensible.” As previously 

discussed, there is sufficient evidence supporting the jury’s finding that Wes, Jr. did 

not have probable cause to initiate civil commitment proceedings against Lisa, and, 

therefore, Lisa’s detention was unjustified. Thus, the first guidepost, as briefed, 

weighs against a finding that the award of $500,000 in exemplary damages against 

Wes, Jr. is unconstitutionally excessive. See Bennett II, 525 S.W.3d at 650.

With respect to the second guidepost––the disparity between the exemplary

damage award and the actual harm suffered by the plaintiff or the harm likely to 

result––the Individual Appellants argue: “There was a considerable disparity 

between the exemplary damages of $1.5 million and the actual harm proved from 

the one-night commitment.” The $1.5 million in exemplary damages cited by the 

Individual Appellants, however, is the total amount of exemplary damages awarded 

to Lisa in the Amended Final Judgment for all three defendants: Wes, Jr., Lee, and 

Stacey. The amount of actual damages awarded against Wes, Jr., Stacey, and Lee, 

jointly and severally ($500,000) is equal to the amount of exemplary damages the 

trial court awarded against Wes, Jr. individually ($500,000).34 As we already held, 

the jury’s award of $500,000 in actual damages for the mental anguish Lisa 

34 Although Lisa asked for $500,000 in exemplary damages against Wes, Jr., the jury 

awarded her $875,000. The trial court reduced the amount to $500,000 in 

compliance with the statutory cap under Section 41.008(b) of the Texas Civil 

Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE § 41.008(b).
85

experienced based on her wrongful involuntary commitment is supported by 

sufficient evidence. Thus, this factor also weighs against a finding that the award of 

$500,000 in exemplary damages against Wes, Jr. is unconstitutionally excessive. 

See Bennett II, 525 S.W.3d at 650.

The third guidepost identified by Bennett II is “the difference between the 

exemplary damages awarded and the civil or criminal penalties that could be 

imposed for comparable conduct.” See id. In their limited analysis of this issue, the 

Individual Appellants note that “there was no evidence or argument advanced 

regarding comparable civil or criminal penalties.” The absence of evidence on this 

issue does not weigh in favor of or against a finding that the award of $500,000 in 

exemplary damages is unconstitutionally excessive. See id. 

As briefed, two of the three Bennett II guideposts weigh against a finding that 

the award of $500,000 in exemplary damages against Wes, Jr. is unconstitutionally 

excessive, and the third factor is neutral. See id. We overrule the Individual 

Appellants’ challenges to the excessiveness of the exemplary damages award against 

Wes, Jr. See id. 

(iii) Lee 

For the first guidepost—the degree of reprehensibility of the misconduct—the 

Individual Appellants argue: “[G]iven the substantial evidence—admitted and 

improperly excluded—that Lisa’s commitment was justified, the family member’s 
86

actions to have her committed were not highly reprehensible.” As previously 

discussed, there is sufficient evidence supporting the jury’s findings that Wes, Jr. did 

not have probable cause to initiate civil commitment proceedings against Lisa and 

that Lee acted with malice when he conspired with Wes, Jr. and Stacey to have Lisa 

involuntarily committed to a mental health facility. This finding, which is supported 

by the evidence, demonstrates that Lee’s decision to have Lisa involuntarily 

committed in collaboration with Wes, Jr. and Stacey was not “justified.” The 

Individual Appellants further contend, “Given the paucity of proof of malice, the 

identical awards of $500,000 each against Wes, Lee, and Stacey are excessive.” The 

Individual Appellants appear to suggest the award of $500,000 in exemplary 

damages against Lee is excessive because it is the same amount awarded against 

Wes, Jr.35 The jury, however, apparently agreed that Wes, Jr.’s conduct was more 

egregious because it awarded Lisa $875,000 in exemplary damages against Wes, Jr. 

and only $500,000 in exemplary damages against Lee. The jury’s $875,000 award 

against Wes, Jr. exceeded the statutory cap, and thus the trial court reduced it to 

$500,000. We thus conclude that the first guidepost, as briefed, weighs against a 

35 In the section of the Individual Appellants’ brief challenging the sufficiency of the 

evidence supporting the jury’s finding that Lee and Stacey acted with malice, the 

Individual Appellants argued: “Neither Lee nor Stacey even instituted the 

commitment, so to award exemplary damages against them—and in the same 

amount awarded against Wes (the signer)—demonstrates a jury swayed by 

passions.”
87

finding that the award of $500,000 in exemplary damages against Lee is 

unconstitutionally excessive. See id.

With respect to the second guidepost––the disparity between the exemplary

damage award and the actual harm suffered by the plaintiff or the harm likely to 

result––the Individual Appellants argue: “There was a considerable disparity 

between the exemplary damages of $1.5 million and the actual harm proved from 

the one-night commitment.” As previously discussed, the $1.5 million in exemplary 

damages cited by the Individual Appellants is the total amount of exemplary 

damages awarded to Lisa in the Amended Final Judgment. The jury awarded only 

$500,000 in exemplary damages against Lee individually. The $500,000 in 

exemplary damages against Lee is equal to the amount of actual damages awarded

against Wes, Jr., Stacey, and Lee, jointly and severally ($500,000). As previously 

discussed, the jury’s award of $500,000 in actual damages for the mental anguish 

Lisa experienced based on her wrongful involuntary commitment is supported by 

sufficient evidence. Thus, the second guidepost also weighs against a finding that 

the award of $500,000 in exemplary damages against Lee is unconstitutionally 

excessive. See id.

The third guidepost identified by Bennett II is “the difference between the 

exemplary damages awarded and the civil or criminal penalties that could be 

imposed for comparable conduct.” See id. The Individual Appellants’ analysis of 
88

this issue is simply: “And there was no evidence or argument advanced regarding 

comparable civil or criminal penalties.” The absence of evidence on this issue does 

not weigh in favor of or against a finding that the award of $500,000 in exemplary 

damages is unconstitutionally excessive. See id.

As briefed, two of the three Bennett II guideposts weigh against a finding that 

the award of $500,000 in exemplary damages against Wes, Jr. is unconstitutionally 

excessive, and the third factor is neutral. We overrule the Individual Appellants’ 

challenges to the excessiveness of the exemplary damages award against Lee. See

id. 

(iv) Stacey 

With respect to the first guidepost, the Individual Appellants argument that 

“the family member’s actions to have [Lisa] committed were not highly 

reprehensible” because there is substantial evidence that Lisa’s commitment was 

“justified” is not persuasive. As previously discussed, there is sufficient evidence 

supporting the jury’s findings that Wes, Jr. did not have probable cause to initiate 

civil commitment proceedings against Lisa and that Stacey acted with malice when 

she conspired with Wes, Jr. and Lee to have Lisa involuntarily committed to a mental 

health facility. This finding, supported by the evidence, demonstrates that Stacey’s 

decision to have Lisa involuntarily committed in collaboration with her brothers was 

not “justified.” As is the case with Lee, the Individual Appellants appear to suggest 
89

the award of $500,000 in exemplary damages against Stacey is excessive because it 

is the same amount of exemplary damages awarded against Wes, Jr. The jury, 

however, apparently agreed that Wes, Jr.’s conduct was more egregious because it 

awarded Lisa $875,000 in exemplary damages against Wes, Jr. and only $500,000 

in exemplary damages against Stacey. The jury’s $875,000 award against Wes, Jr. 

exceeded the statutory cap, and therefore, the trial court reduced it to $500,000. See

TEX.CIV. PRAC.&REM.CODE § 41.008(b). Therefore, the first guidepost, as briefed, 

weighs against a finding that the award of $500,000 in exemplary damages against 

Stacey is unconstitutionally excessive. See Bennett II, 525 S.W.3d at 650.

For the second guidepost, the Individual Appellants argue: “There was a 

considerable disparity between the exemplary damages of $1.5 million and the actual 

harm proved from the one-night commitment.” As previously discussed, the $1.5 

million in exemplary damages cited by the Individual Appellants is the total amount 

of exemplary damages awarded to Lisa in the Amended Final Judgment. The jury 

awarded a third of this amount in exemplary damages against Stacey individually 

($500,000). The $500,000 in exemplary damages award against Stacey is equal to 

the amount of actual damages awarded against Wes, Jr., Stacey, and Lee, jointly and 

severally ($500,000). As previously discussed, the jury’s award to Lisa of $500,000 

in actual damages for the mental anguish she experienced based on her wrongful 

involuntary commitment is supported by sufficient evidence. Thus, we conclude 
90

that this factor also weighs against a finding that the award of $500,000 in exemplary 

damages against Stacey is unconstitutionally excessive. See id.

The Individual Appellants’ analysis of the third guidepost is simply, “And 

there was no evidence or argument advanced regarding comparable civil or criminal 

penalties.” The absence of evidence on this issue does not weigh in favor of or 

against a finding that the award of $500,000 in exemplary damages is 

unconstitutionally excessive. See id.

As briefed, two of the three Bennett II guideposts weigh against a finding that 

the award of $500,000 in exemplary damages against Stacey is unconstitutionally 

excessive, and the third factor is neutral. See id. 

We overrule the Individual Appellants’ challenges to the excessiveness of the 

exemplary damages award against Stacey. See id.

D. Defamation

The jury found that (1) Wes, Jr. and Mark defamed Lisa, (2) Lisa should 

recover $50,000 in past mental anguish damages and $500,000 in exemplary 

damages against Wes, Jr., and (3) Lisa should recover $25,000 in past mental 

anguish damages and $50,000 in exemplary damages against Mark. The Individual 

Appellants argue that the awards of actual and exemplary damages against Wes, Jr. 

and Mark should be reversed because, among other things, there is no evidence their 
91

alleged defamatory statements proximately caused Lisa to suffer any mental 

anguish.

1. Standard of Review and Applicable Law 

To prevail on a claim for defamation, a plaintiff must establish that (1) the 

defendant published a false statement of fact to a third party, (2) that was defamatory 

concerning the plaintiff, (3) with the requisite degree of fault, and (4) that 

proximately caused damages. Anderson, 550 S.W.3d at 617–18 (citing Bos v. Smith, 

556 S.W.3d 293, 307 (Tex. 2018)).36 Proximate cause encompasses both 

foreseeability and cause in fact. Anderson, 550 S.W.3d at 618 (citing Del Lago 

Partners, Inc. v. Smith, 307 S.W.3d 762, 774 (Tex. 2010)). A defendant’s action is 

the cause in fact of damages if it was “a substantial factor in causing the injury and 

without which the injury would not have occurred.” Anderson, 550 S.W.3d at 618 

(quoting Bos, 556 S.W.3d at 307). “[A] jury may not reasonably infer an ultimate

36 There are two types of defamation: defamation per se and defamation per quod. If 

a statement is defamatory per se, no independent proof of damage to the plaintiff’s 

reputation or mental anguish is required because such statements are “so obviously 

hurtful to a plaintiff’s reputation that the jury may presume general damages, 

including for loss of reputation and mental anguish.” Hancock v. Variyam, 400 

S.W.3d 59, 63–64 (Tex. 2013); see also Bentley v. Bunton, 94 S.W.3d 561, 604 

(Tex. 2003). All other allegedly defamatory statements, i.e., statements that are 

defamatory per quod, require proof that the defamatory statements proximately 

caused all the damages sought, including damages for mental anguish, and the 

amount of these damages. See Exxon Mobil Corp. v. Hines, 252 S.W.3d 496, 501, 

504–05 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). Lisa does not dispute 

that Wes, Jr.’s and Mark’s allegedly defamatory statements constitute defamation 

per quod or challenge the jury’s finding that Wes, Jr.’s statements were not 

defamatory per se. 
92

fact from ‘meager circumstantial evidence which could give rise to any number of

inferences, none more probable than another.’” Hancock v. Variyam, 400 S.W.3d 

59, 70–71 (Tex. 2013) (quoting Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 

392 (Tex. 1997)); see also Burbage v. Burbage, 447 S.W.3d 249, 262 (Tex. 2014).

2. Actual Damages for Defamation

The jury found that Wes, Jr. published statements to SignAd Outdoor 

employees that Lisa was “mentally ill” and “physically dangerous,” and that $50,000 

would compensate Lisa for the past mental anguish she suffered as a proximate cause 

of these statements ($25,000 for each statement). The jury also found that Mark 

published “[s]tatements to [SignAd Outdoor] employees that Lisa was at the 

building and to be careful,” and that $25,000 would compensate Lisa for the past 

mental anguish she suffered as a proximate cause of Mark’s statements.37

The record reflects that the testimony Lisa gave about her mental and 

emotional state supporting the award of past mental anguish damages was limited to 

her father’s death and her involuntary commitment. Lisa points to her testimony 

that she was “heartbroken” and “physically ill from the betrayal of [her] own 

siblings” as evidence that the defamatory statements caused her to suffer mental 

37 The jury was asked what sum of money would compensate Lisa for her injuries “that 

were proximately caused by” Wes, Jr.’s and Mark’s alleged defamatory statements. 

The jury awarded Lisa $0 damages for past and future injury to her reputation and 

future mental anguish with respect to her defamation claims against Wes, Jr. and 

Mark. Lisa does not appeal these findings.
93

anguish. But the record reflects that this statement was in direct response to a 

question about her emotional state after “dealing with things like” her father’s death 

and the attempted commitment proceeding: 

Q. In January of 2013 after your father’s death, and then after the 

failed commitment, what was your emotional state in dealing 

with things like that? What was your emotional state?

A. I mean, I was heartbroken. And you know, I was physically ill 

from the betrayal of my own siblings. But you know, just like 

all of us, we all have to deal with tragedies and you just have to 

put one foot in front of the other and take care of what you have 

to take care of.

Similarly, Lisa’s testimony that she was afraid Wes, Jr. would try to impose a 

guardianship over her or lock her away in a mental hospital for weeks, as her mother 

had been, is also related to the involuntary commitment proceeding. Nothing in the 

record reveals a causal connection between Lisa’s emotional state and the alleged 

defamatory statements Wes, Jr. and Mark made after the March 2013 involuntary 

commitment. See Exxon Mobil Corp. v. Hines, 252 S.W.3d 496, 505–06 (Tex. 

App.—Houston [14th Dist.] 2008, pet. denied) (holding there was legally 

insufficient evidence supporting award of noneconomic damages because plaintiffs’ 

testimony regarding mental anguish and reputational damages related to issues other 

than alleged defamatory statements).

Lisa suggests that her testimony regarding the mental anguish she suffered 

because of the involuntary commitment proceeding also provides circumstantial 
94

evidence that she suffered mental anguish due to the defamatory statements, because 

the commitment proceedings and the defamatory statements “both stem from the 

false claim that she is mentally ill and physically dangerous.” Lisa’s argument is 

unavailing.

Although related, the act of having someone involuntarily committed to a 

psychiatric hospital is different than telling mutual co-workers that the person is 

mentally ill and dangerous. Moreover, to recover damages on her defamation claim, 

Lisa had to establish that the defamatory statements were a “substantial factor in 

causing [her] injury and without which [her] injury would not have occurred.” Lisa

has not directed this Court to any testimony or evidence specifically linking her 

allegations of mental anguish to Wes, Jr.’s and Mark’s defamatory statements. To 

the contrary, the record identifies other causes for Lisa’s mental anguish, including 

the involuntary commitment proceeding and her father’s death. As such, the jury 

could not have reasonably inferred that Mark’s and Wes, Jr.’s defamatory statements 

caused Lisa’s mental anguish. See Burbage, 447 S.W.3d at 262 (holding jury could 

not reasonably infer that defamation caused cancellations at funeral home “when the 

cancellations could have occurred for any number of reasons”); Exxon Mobil Corp, 

252 S.W.3d at 506 (“The fact that the evidence identifies other, distinct causes of 

the harm, prevents this evidence from supporting the conclusion that appellees were 

noneconomically harmed by publication of the two presentations.”); see generally 
95

Bos, 556 S.W.3d at 307–08 (holding defamatory statements were not substantial 

factor in causing plaintiff’s injuries because plaintiff’s testimony did not link 

damages to statements and there was “overwhelming amount of other circumstances 

impacting [plaintiff’s] reputation and mental state”).

Because there is no evidence that Wes, Jr.’s and Mark’s alleged defamatory 

statements were the proximate cause of Lisa’s past mental anguish, we sustain the 

Individual Appellants’ challenge to the jury’s award of damages against Wes,Jr. and 

Mark on Lisa’s defamation claims. We reverse the judgment in favor of Lisa and 

render judgment that Lisa taken nothing on her defamation claims against Wes, Jr. 

and Mark.

38

3. Exemplary Damages for Defamation

The jury awarded Lisa $500,000 in exemplary damages against Wes, Jr. and 

$50,000 against Mark based on their respective defamatory statements. A party may 

not recover exemplary damages unless the plaintiff also establishes actual damages. 

38 Lisa also argues there is sufficient evidence supporting the award of mental anguish 

damages because she presented evidence that her reputation was injured by Mark’s 

and Wes, Jr.’s defamatory statements. But those questions were presented 

separately to the jury who found Lisa did not suffer reputational damage. 

Specifically, the question on damages for Lisa’s defamation claim expressly 

allowed the jury to award Lisa damages for (1) “Injury to reputation sustained in the 

past,” (2) “Injury to reputation that, in reasonable probability, Lisa Horan will 

sustain in the future,” (3) “Mental anguish sustained in the past,” and (4) “Mental 

anguish that, in reasonable probability, Lisa Horan will sustain in the future.” (Jury 

Questions 52 and 58). The jury found that Lisa suffered $0 in past and future 

reputational damages, $0 in future mental anguish damages, and it awarded Lisa 

$25,000 for past mental anguish for each defamatory statement. 
96

Hancock, 400 S.W.3d at 71 (“Exemplary damages are not available unless a plaintiff 

establishes actual damages.”). Because we hold that no evidence supports the jury’s 

awards of actual damages against Wes, Jr. and Mark for defamation, we sustain the 

Individual Appellants’ challenge to the award of exemplary damages against Wes, 

Jr. and Mark for Lisa’s defamation claim.

39

E. Derivative Claim for Breach of Fiduciary Duty: Wes, Jr. and ProIce

Lisa asserted a breach of fiduciary duty claim against Wes, Jr. on behalf of 

SignAd, Ltd. asserting Wes, Jr. had engaged in certain “self-dealing transactions 

with his side business” ProIce Solutions, LLC” (“ProIce”). The jury was instructed 

that “[b]ecause Wesley Gilbreath, Jr. was President of SignAd, Ltd., he owed 

SignAd, Ltd. a fiduciary duty.” The jury found that Wes, Jr. failed to “comply with 

his fiduciary duty to SignAd, Ltd. with regard to the transactions with [ProIce].”40

Wes, Jr. argues that the trial court’s Amended Final Judgment based on the 

jury’s finding must be reversed because there is neither evidence he owed a fiduciary 

duty to SignAd, Ltd., nor a jury finding that such a fiduciary relationship existed. 

39 Because of our disposition, it is not necessary for us to address Wes, Jr.’s and Mark’s 

remaining challenges to Lisa’s defamation claims.

40 The jury awarded damages in the amount of (1) $750.00 for the “fair market value 

of services provided to [ProIce] in the past, and (2) $300/per month for the “fair 

market value of services provided to [ProIce] that, in reasonable probability, will be 

sustained in the future.” As later discussed, this finding and these awards were part 

of the basis for the trial court’s Amended Final Judgment awarding injunctive relief, 

appointing a rehabilitative receiver, and awarding attorney’s fees.
97

Wes, Jr. also contends that (1) because “there was no proof and no finding that [he]

owed a fiduciary duty to SignAd, Ltd., the jury’s finding of breach becomes 

immaterial, and cannot support a judgment against [him] for breach of fiduciary 

duty,” (2) the judgment against him should be reversed because there was no 

evidence SignAd, Ltd. sustained a loss of revenue as a result of ProIce’s use of its 

billboards, and (3) alternatively, the question presented to the jury for breach of 

fiduciary duty (Jury Question 15) is so defective it cannot support a judgment.

1. Background

SignAd GP, LLC’s Board of Managers approved a policy that allowed other

companies in which the managers had an interest, to use its vacant billboards in 

exchange for paying only administrative costs. Pursuant to the policy, Wes, Jr. 

allowed ProIce, a company in which he is a passive investor, to advertise on the 

company’s vacant billboards. ProIce was not billed for and did not pay for 

administrative costs. 

According to Wes, Jr., the omission was inadvertent. He also contends that 

ProIce’s use of the billboards was reflected on monthly billing reports, approved by 

a sales manager, and discussed at board meetings. Wes, Jr. argues there was no loss 

of revenue to SignAd, Ltd. from ProIce’s use of its billboards because there was no 

evidence ProIce ever advertised on billboards for which SignAd, Ltd. had a paying 

customer wanting to pay for the billboard. 
98

2. Applicable Law

To prevail on a claim for breach of fiduciary duty, a plaintiff must establish 

that (1) a fiduciary relationship existed between the plaintiff and the defendant, 

(2) the defendant breached its fiduciary duty, and (3) the breach resulted in injury to 

the plaintiff or benefit to the defendant. Heritage Gulf Coast Props., Ltd. v. 

Sandalwood Apartments, Inc., 416 S.W.3d 642, 650 (Tex. App.—Houston [14th 

Dist.] 2013, no pet.) (citing Lundy v. Masson, 260 S.W.3d 482, 501 (Tex. App.—

Houston [14th Dist.] 2008, pet. denied)); see also Meyer v. Cathey, 167 S.W.3d 327, 

330–31 (Tex. 2005) (discussing existence of fiduciary relationship as element of 

fiduciary duty claim). “As a general rule, the plaintiff must establish the existence 

of a duty; the burden is not on the defendant to show that it had no duty.” Humble

Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 182 (Tex. 2004).

Whether a fiduciary duty exists is a question of law. Meyer, 167 S.W.3d at

330. The existence of facts giving rise to a formal fiduciary duty, however, is a 

question for the fact finder’s determination if the facts are disputed. See Envtl. 

Procedures, Inc. v. Guidry, 282 S.W.3d 602, 627 (Tex. App.—Houston [14th Dist.] 

2009, pet. denied) (citing Brewer & Pritchard, P.C. v. Johnson, 7 S.W.3d 862, 867 

(Tex. App.—Houston [1st Dist.] 1999), aff’d, 73 S.W.3d 193 (2002)). Although the 

parties disagree as to whether Wes, Jr. owes a fiduciary duty to SignAd, Ltd., they 

do not appear to disagree about the underlying facts.
99

3. Existence of Fiduciary Duty

SignAd GP, LLC, as SignAd, Ltd.’s General Partner with “the sole and 

exclusive right” to manage SignAd, Ltd.’s business, owes fiduciary duties to 

SignAd, Ltd. and its limited partners. See Allen v. Devon Energy Holdings, LLC, 

367 S.W.3d 355, 392 (Tex. App.—Houston [1st Dist.] 2012, vacated w.r.m.) (“[A]

general partner in a limited partnership owes a fiduciary duty to the limited partners 

because of its control over the entity.”) (citing Crenshaw v. Swenson, 611 S.W.2d 

886, 890 (Tex. Civ. App.—Austin 1980, writ ref’d n.r.e.). And Wes, Jr., as an officer 

of SignAd GP, LLC, owes a fiduciary duty to SignAd GP, LLC. See Int’l Bankers 

Life Ins. v. Holloway, 368 S.W.2d 567, 576 (Tex. 1963) (stating corporate officers 

generally owe fiduciary duty as matter of law to corporate entities they serve); see 

also Saden v. Smith, 415 S.W.3d 450, 464 (Tex. App.—Houston [1st Dist.] 2013, 

pet. denied) (same).

The relevant question here is whether Wes, Jr., as an officer of SignAd GP, 

LLC, owes a fiduciary duty to SignAd, Ltd. The jury was not asked to determine 

whether Wes, Jr. owed a fiduciary duty to SignAd, Ltd. Instead, the trial court 

instructed the jury that Wes, Jr. was the President of SignAd, Ltd. and that as the 

President of that entity, he owed a fiduciary duty to SignAd, Ltd. Wes Jr., however, 
100

was not the President of SignAd, Ltd. Rather, he was President of SignAd GP, LLC, 

SignAd, Ltd.’s General Partner. The relevant jury question and instruction stated:

Did Wesley Gilbreath, Jr. comply with his fiduciary duty to SignAd, 

Ltd with respect to the transactions with ProIce Solutions, LLC?

Because Wesley Gilbreath, Jr. was President of SignAd, Ltd., he owed 

SignAd, Ltd a fiduciary duty.

Lisa argues that despite the erroneous instruction, she was not required to 

obtain a jury finding that Wes, Jr. owed a fiduciary duty to SignAd, Ltd. Relying on 

several decisions from the Fifth Circuit Court of Appeals, she claims that Wes, Jr. 

owed a fiduciary duty to SignAd, Ltd. as a matter of law based on the “control” he 

exercised over SignAd GP, LLC and SignAd, Ltd.’s daily operations.41 See FNFS, 

Ltd. v. Harwood (In re Harwood), 637 F.3d 615, 621–22 (5th Cir. 2011) (holding 

officer of general partner of limited partnership who “exercised near-complete 

control over both tiers of the entity” owed fiduciary duties to limited partnership 

under Texas law); McBeth v. Carpenter, 565 F.3d 171, 178 (5th Cir. 2009) (holding 

president of general partner who had “exclusive right to manage all contracts and 

agreements . . . relating to the [l]and” under development and controlled operations 

41 Wes, Jr. argues that Lisa waived this argument because she did not raise it in the 

trial court. Although a party cannot raise new issues on appeal, parties may 

construct new arguments on appeal in support of issues properly before court. See 

Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 763 n.4 (Tex. 2014) (stating that 

parties may construct new arguments on appeal in support of issues properly before 

court).
101

of limited partnership owed fiduciary duties to limited partnership); LSP Inv. P’ship 

v. Bennett (In re Bennett), 989 F.2d 779, 790 (5th Cir. 1993) (holding individual who 

was sole general partner of sole general partner of limited partnership owed fiduciary 

duty to limited partners because individual was only person with power or authority 

to direct affairs of second-tier general partner who had “full, exclusive and complete 

authority and discretion to manage, control and make all decisions affecting the 

purposes of the partnership and to take any action required to effectuate the purpose 

of the partnership”). 

Assuming, without deciding, that such a “control” test exists and could form 

the basis of a fiduciary duty, Lisa’s argument does not carry the day.42 The holdings

in each of the cases Lisa cites focus on the control the person alleged to owe the 

fiduciary duty exercised over the relevant limited partnership. The oldest of the 

opinions on which Lisa relies, LSP Investment Partnership v. Bennett (In re 

Bennett), 989 F.2d 779 (5th Cir. 1993), relied upon the reasoning of Crenshaw v. 

42 We have not found, and Lisa has not cited, any Texas case holding that an officer 

of a general partner of a limited partnership owes a fiduciary duty to the limited 

partnership as a matter of law. In Rainier Income Fund I, Ltd. v. Gans, 501 S.W.3d

617 (Tex. App.—Dallas 2016, pet. denied), the Dallas Court of Appeals held that

an officer of the general partner of a limited partnership did not owe a formal

fiduciary duty to the limited partnership. See id. at 624 (holding appellants failed

to establish formal fiduciary relationship between general partner’s officer, Gans,

and limited partnership because “Gans is not a partner in the partnership; he is an

officer of the general partner” and noting “appellants do not cite any case for the 

proposition that an officer of the general partner of a partnership owes a fiduciary 

duty to the partnership”).
102

Swenson, 611 S.W.2d 886 (Tex. Civ. App.—Austin 1980, writ ref’d n.r.e.) and the 

extent and degree of control exercised by the individual in that case who purportedly 

owed the fiduciary duty. See In re Bennett, 989 F.2d at 790 (“[B]ased on the holding 

in Crenshaw and the cases cited therein, we find that Bennett, as the managing 

partner of the managing partner, owed to the MG limited partners ‘the highest 

fiduciary duty recognized in the law.’”). 

In Crenshaw, the Austin Court of Appeals, relying on the law of trusts, held 

that Elizabeth Swenson, the general partner of the general partner of a limited 

partnership, owed a fiduciary duty to the limited partners. 611 S.W.2d at 891. The 

court, however, did not hold that the general partners of a general partner owe 

fiduciary duties to limited partners as a matter of law. Limiting its holding to the 

“facts of the present case,” the court held that Swenson, who was the sole general 

partner of the general partner (and who no one contested exercised complete control 

over the limited partnership), owed a fiduciary duty to the limited partners. See id.

at 890–91 (“In a limited partnership, the general partner acting in complete control 

stands in the same fiduciary capacity to the limited partners as a trustee stands to the 

beneficiaries of the trust.”).

43

 

43 The Texas Legislature has expressly rejected this analogy. TEX. BUS. ORGS. CODE 

§ 152.204(d) (“A partner, in the partner’s capacity as partner, is not a trustee and is 

not held to the standards of a trustee.”).
103

Relying on Crenshaw and other cases, the Fifth Circuit Court of Appeals in 

In re Bennett held that Bennett, who was the sole general partner of Mariner Interest 

No. 20, Ltd. (“No. 20”), the general partner of Mariner/Greenspoint, Ltd. (“MG”), 

owed a fiduciary duty to MG’s limited partners because of the degree of control 

Bennett exercised over No. 20 and MG.44 See In re Bennett, 989 F.2d at 781, 790. 

The court explained that “[u]nder the terms of the MG partnership agreement, the 

general partner, No. 20, was charged with management of the partnership and had 

full, exclusive and complete authority and discretion to manage, control and make 

all decisions affecting the purposes of the partnership,” and that “Bennett, as the sole 

general partner of No. 20, was the only individual with the power or authority to 

direct the affairs of No. 20 and MG.” Id. at 781. As such, the court held, Bennett

owed a fiduciary duty to MG’s limited partners.45 Id. at 790 In so holding, the court 

44 LSP Investment Partnership v. Bennett (In re Bennett), 989 F.2d 779 (5th Cir. 1993) 

involved an appeal from an adversary proceeding in a bankruptcy case, in “which 

the bankruptcy court entered an order granting a discharge to the Appellee, Archie 

Bennett, Jr., over the objection of the Appellants that certain of Mr. Bennett’s debts 

were not dischargeable.” The Fifth Circuit Court of Appeals had to decide whether 

“Bennett, as the managing partner of the managing partner of the limited 

partnership, owed a sufficient fiduciary duty to the limited partners to satisfy the 

strict requirements of 11 U.S.C. §523(a)(4),” which the court explained “provides 

that debts resulting from a defalcation by the debtor while acting in a fiduciary 

capacity are not dischargeable in bankruptcy.” In re Bennett, 989 F.2d at 780. 

45

 Relying on Crenshaw v. Swenson, 611 S.W.2d 886 (Tex. Civ. App.—Austin 1980, 

writ ref’d n.r.e.), the court in In re Bennett noted that it was “Swenson’s high level 

of control, over the project and the limited partners’ investments, [which] appears 

to have been critical in persuading the Crenshaw court that Ms. Swenson owed a 

fiduciary duty to the limited partners.” In re Bennett, 989 F.2d at 789 (“What this 
104

noted that under Texas law, “the issue of control has always been the critical fact 

looked to by the courts in imposing this high level of responsibility.” Id. at 789–90

(concluding that by virtue of his control, Bennett owed a fiduciary duty to MG’s 

limited partners).

Like the court in In re Bennett, the courts in In re Harwood and McBeth 

focused much of their duty analysis on the degree of control exercised by Harwood

and Carpenter over the general partnership and limited partnership in those cases, 

holding that by virtue of their control over both tiers of the relevant entities, Harwood

and Carpenter, as officers of the general partner, owed fiduciary duties to the limited 

partnerships. See In re Harwood, 637 F.3d at 62346 (stating “Harwood exercised 

near-complete control over both tiers of the entity until a few months prior to his 

termination” and board “paid little attention to the day-to-day operations of FNFS,” 

and “the other managing shareholder and chief executive officer of B&W, was not 

able to exercise meaningful oversight because he had no particular banking 

Court finds significant is the Crenshaw court’s analysis of why the managing 

partner of the managing partner in that case owed a fiduciary obligation to the 

underlying limited partners.”). 

46 In FNFS, Ltd. v. Harwood (In re Harwood), 637 F.3d 615 (5th Cir. 2011), B&W 

Finance, Co. Inc. (“B&W”) served as the sole general partner of FNFS, Ltd., a Texas 

limited partnership. Id. at 617. Harwood served as the President, Chief Operating 

Officer, and Director of B&W. Id. 
105

expertise”); McBeth, 565 F.3d at 17847 (stating that under limited partnership 

agreement “the general partner retained exclusive control and management over the 

partnership” and noting “extensive testimony” established that Carpenter, who often 

referred to himself as “the general partner,” “was ‘the man in control’ and ‘heading 

the efforts’ of the partnership” with “exclusive right to manage all contracts and 

agreements. . . relating to the [l]and”); see also Allen, 367 S.W.3d at 391 (holding 

“a general partner in a limited partnership owes a fiduciary duty to the limited 

partners because of its control over the entity”).

There is no evidence of such requisite control here. SignAd GP, LLC is a 

single-member limited liability company. Stacey is the sole member of SignAd GP, 

LLC. Lee is the Chairman of SignAd GP, LLC’s Board of Managers and its Chief 

Executive Officer. Wes, Jr. is the President of SignAd GP, LLC (not SignAd, Ltd.)

and SignAd GP, LLC’s Chief Operating Officer. Wes, Jr., Lee, Stacey, and Lisa are 

the current members of SignAd GP, LLC’s Board of Managers.

SignAd GP, LLC has “the sole and exclusive right to manage the business of” 

SignAd, Ltd. under the limited partnership agreement. And SignAd GP, LLC’s 

Board of Managers manages the business and affairs of SignAd, Ltd. and 

“develop[s] policies and procedures to be implemented and followed by the officers 

47 In McBeth v. Carpenter, 565 F.3d 171 (5th Cir. 2009), Carpenter served as the 

President of StoneLake Management, L.L.C., the general partner of StoneLake 

Ranch, L.P. Id. at 175.
106

and employees in their day-to-day operations.” Pursuant to SignAd GP, LLC’s 

regulations, Wes, Jr., as President of SignAd GP, LLC, controls SignAd GP, LLC’s 

“business and affairs,” but he does so subject to the Chairman of the Board and the 

Board of Managers. Specifically, Section 4.6 of SignAd GP, LLC’s regulations 

states: “Subject to the Chairman of the Board, if any, and the Board of Managers, 

itself, the President shall in general supervise and control all of the business and 

affairs of” SignAd GP, LLC and “in general shall perform all duties incident to the 

office of President.”

Unlike the passive minority owner in Allen and the other managing 

shareholder and chief executive officer of the general partner in In re Harwood who 

“was not able to exercise meaningful oversight because he had no particular banking 

expertise,” Lisa testified she had been actively involved in the family business for 

decades as an owner and board member, and that Brett, her ally on the board for 

many years, had been the company’s vice president of real estate. Also, unlike In re 

Harwood where the board “paid little attention to the day-to-day operations” of the 

company, Lisa, and the other members of SignAd GP, LLC’s Board of Managers, 

reviewed regular financial information and developed and implemented policies 

governing the running of SignAd GP, LLC and SignAd, Ltd., including the free 

billboard policy. Although Wes, Jr. decided which properties, if any, to purchase, 

the Board of Managers set the limit on his spending authority and any sales of real 
107

property had to be presented to and approved by the Board of Managers. Based on 

this evidence, we conclude that the degree of control Wes, Jr. exercised as an officer

of SignAd GP, LLC did not, under the circumstances presented here, create a 

fiduciary duty as a matter of law as to SignAd, Ltd.

We sustain Wes, Jr.’s challenge to the jury’s finding that he failed to “comply 

with his fiduciary duty to SignAd, Ltd. with regard to the transactions with ProIce 

Solutions, LLC.” We reverse the trial court’s judgment in favor of Lisa on her 

derivative claim for breach of fiduciary duty against Wes, Jr. based on his 

transactions with ProIce and we render judgment that Lisa take nothing on this 

claim.

48

F. Breach of Fiduciary Duty: Lee 

The jury found that an informal fiduciary relationship existed between Lee 

and Lisa (Jury Question 34) and that Lee failed to comply with his fiduciary duty to 

Lisa (Jury Question 37).49 Based in part on these findings, the trial court granted 

injunctive relief in favor of Lisa and appointed a rehabilitative receiver to oversee 

48 Wes, Jr. argues that if we reverse the breach of fiduciary duty claim against him as

it concerns ProIce, we must also reverse the award of attorney’s fees and expenses 

based on this claim. We address these issues later in our opinion.

49 The jury also found that Brett and Mark were in an informal fiduciary duty 

relationship with Lisa, but it also found that neither had breached their fiduciary 

duty to Lisa. 
108

an equitable buyout by the Company Appellants of Lisa’s interests in the Limited 

Partnerships and General Partners in which she holds an interest. 

On appeal, Lee argues that the jury’s finding that he failed to comply with an 

informal fiduciary duty to Lisa (Jury Question 37) is immaterial and that the portions 

of the Amended Final Judgment awarding equitable relief based on the alleged 

breach of his fiduciary duty to Lisa should be reversed because there is no evidence, 

and no finding, either that Lisa was damaged by the breach or Lee improperly 

benefited from the breach. Lisa responds that Lee does not have standing to 

complain about the equitable relief awarded against the Company Appellants

because no equitable relief was awarded against him. 

1. Standing

“Just as plaintiffs must have standing to bring suit, appellants must have 

standing to appeal trial court judgments.” Nephrology Leaders, 573 S.W.3d at 914 

(citing Tex. Quarter Horse Ass’n v. Am. Legion Dep’t of Tex., 496 S.W.3d 175, 181 

(Tex. App.—Austin 2016, no pet.)); see also Torrington Co. v. Stutzman, 46 S.W.3d 

829, 843 (Tex. 2000) (“[A]n appealing party may not complain of errors that do not 

injuriously affect it or that merely affect the rights of others.”). The “ultimate inquiry 

is whether the appellant possesses a justiciable interest in obtaining relief from the 

lower court’s judgment.” Nephrology Leaders, 573 S.W.3d at 91 (quoting Tex. 

Quarter Horse Ass’n, 496 S.W.3d at 184); see also Torrington, 46 S.W.3d at 843 
109

(holding appellate standing requires party’s own interests prejudiced by alleged 

error). 

The trial court issued injunctive relief based in part on Lee’s breach of his 

fiduciary duty to Lisa and, more importantly, it was issued against the “General 

Partners, the Limited Partnerships, [and] the Individual Defendants,” including Lee. 

We thus conclude that Lee has standing to challenge the materiality of the jury’s 

finding on appeal. 

2. Jury’s Finding of Breach 

Lee argues that the jury’s finding he breached his fiduciary duty to Lisa is 

immaterial because there is no finding or evidence Lisa suffered damages or that Lee 

received a benefit because of the breach. 

To establish her claim against Lee for breach of fiduciary duty, Lisa had to 

prove (1) the existence of a fiduciary duty between herself and Lee, (2) that Lee 

breached his duty to her, and (3) that Lee’s breach injured Lisa or benefited Lee. See

First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 

2017) (“Generally, the elements of a claim for breach of fiduciary duty are (1) the 

existence of a fiduciary duty, (2) breach of the duty, (3) causation, and (4) 

damages.”); Severs v. Mira Vista Homeowners Ass’n, Inc., 559 S.W.3d 684, 703 

(Tex. App.—Fort Worth 2018, pet. denied) (stating elements of claim for breach of

fiduciary duty are “(1) a fiduciary relationship between the plaintiff and defendant, 
110

(2) a breach by the defendant of his fiduciary duty to the plaintiff, and (3) an injury 

to the plaintiff or benefit to the defendant as a result of the defendant’s breach”). 

Jury Question 37 instructed the jury that to establish Lee failed to comply with 

his fiduciary duty to Lisa, Lisa had to establish one of five scenarios.50 Under the 

fourth scenario, Lisa had to prove that “[Lee] placed his own interests before Lisa 

Horan’s, used the advantage of his position to gain a benefit for himself at the 

expense of Lisa Horan or placed himself in a position where his self-interest might 

conflict with his obligations as a fiduciary.” (emphasis added). The elements of 

causation and damages were thus included in the charge and, by virtue of its 

affirmative finding that Lee failed to comply with his fiduciary duty to Lisa, the jury 

implicitly found that Lee personally benefited from his breach of his fiduciary duty 

to Lisa. See First United Pentecostal Church of Beaumont, 514 S.W.3d at 214 

(noting that under third element of breach of fiduciary claim, plaintiff must establish 

the breach injured the plaintiff or benefited defendant).

50 The instruction stated, “[t]o prove that Elliott L. Gilbreath failed to comply with his 

fiduciary duty, Lisa Horan must show: “(1) the transaction(s) in question were not 

fair and equitable to Lisa Horan; or (2) Elliott L. Gilbreath did not make reasonable 

use of the confidence that Lisa Horan placed in him; or (3) Elliott L. Gilbreath failed 

to act in the utmost good faith or exercise the most scrupulous honestly toward Lisa 

Horan; or (4) Elliott L. Gilbreath placed his own interest before Lisa Horan’s, used 

the advantage of his position to gain a benefit for himself at the expense of Lisa 

Horan or placed himself in a position where his self-interest might conflict with his 

obligations as a fiduciary; or (5) Elliott L. Gilbreath failed fully and fairly to disclose 

all important information to Lisa Horan concerning the transaction[s].”
111

Even if the jury had not made such implicit findings, we would deem the 

elements of causation and damages found in support of the Amended Final Judgment 

because no party requested their inclusion or objected to their exclusion, and the trial 

court did not make findings on either element. See Chon Tri v. J.T.T., 162 S.W.3d

552, 558 (Tex. 2005) (“If one or more elements of that cause of action was omitted 

from the charge, and there was no request to include the omitted element or objection 

to its exclusion, and no written findings were made by the trial court on the omitted 

element, then the omitted element must be deemed found by the trial court in a 

manner that supports its judgment.”).

The question that remains is whether there is evidence that Lee’s failure to 

comply with his fiduciary duty to Lisa either injured Lisa or benefited Lee. The jury 

found that SignAd GP, LLC breached its fiduciary duties to SignAd, Ltd. by causing 

SignAd, Ltd. to pay certain non-business-related legal fees for Wes, Jr., Lee, Stacey, 

and Mark. The jury awarded $375,000 in damages for that claim. In the Amended 

Final Judgment, the trial court awarded Lisa a share of the awarded damages in 

proportion to her one-sixth ownership interest in SignAd, Ltd.51 The jury found that 

Lee knowingly participated in the breach and it apportioned 25% of the 

responsibility for the breach to Lee. 

51 As discussed later in this opinion, we sustain the Company Appellants’ challenge to 

the Amended Final Judgment awarding Lisa a share of the damages in proportion 

to her one-sixth ownership interest in SignAd, Ltd. 
112

As discussed later in the opinion, the record also reflects that Wes, Jr., Lee, 

and Stacey voted to amend SignAd GP, LLC’s regulations to allow themselves, as 

the majority of the Board of Managers, to create SignAd GP, LLC’s Special 

Litigation Committee over Lisa’s objections, and they appointed themselves to the 

committee. There is also some evidence that SignAd, Ltd. paid the personal legal 

fees of Wes, Jr., Lee, Stacey, and Mark at Wes, Jr.’s direction and that the Special 

Litigation Committee gave Wes, Jr. the authority to make such decisions. Based on 

this evidence, the jury reasonably could have concluded that Lee breached his 

fiduciary duty to Lisa through his knowing participation in the Special Litigation 

Committee which authorized Wes, Jr. to cause SignAd, Ltd. to pay for Lee’s 

personal legal fees, constituting not only a benefit to Lee, but also injuring Lisa’s 

interest in SignAd, Ltd.

We overrule Lee’s challenge to the portions of the Amended Final Judgment 

based on the jury’s finding that he failed to comply with his informal fiduciary duty 

to Lisa.

Company Appellants’ Issues

A. Books and Records

Lisa pleaded for declaration of her rights to access the books and records of 

the General Partners and Limited Partnerships under various provisions of the TBOC
113

and the Partnership Agreements. She also sought declarations that the General 

Partners had failed to provide her with access to the relevant records in the past. 

In her eighth amended petition, Lisa pleaded for a “declaration that she is 

entitled to access the books and records of the Limited Partnership Defendants as 

per the Partnership Agreements” and for “costs and other damages caused by the 

Defendants’ breaches of the provisions providing her access to the books and 

records, which was denied under Tex. Civ. Prac. & Rem. Code § 37.009.”52 She 

also pleaded for “declaratory judgment under Tex. Civ. Prac. & Rem. Code 37.004 

that the General Partners of the Limited Partnerships have unlawfully denied her 

access to the books and records of the Limited Partnerships under [TBOC]

§ 153.552(a)” and “injunctive relief to enforce compliance in accordance with her

statutory rights and her reasonable fees and costs under Section 37.009.” Lisa further 

pleaded that the General Partners had “denied her access to the books and records as 

required by [TBOC] Section 101.502.” And last, she pleaded that the General 

Partners had violated TBOC Sections 3.151, 3.152, and 3.153 which required them 

to provide Lisa with “access to examine the books and records . . . for any purpose 

reasonably related to her service as a member of the board of managers.”

52 “In any proceeding under this chapter, the court may award costs and reasonable 

and necessary attorney’s fees as are equitable and just.” TEX. CIV. PRAC. & REM.

CODE § 37.009.
114

In the Amended Final Judgment, the trial court entered a declaratory judgment 

which states in part:

(a) The Court declares in accordance with the jury’s findings that the 

following General Partner entities breached the Limited Partnership 

Agreements as set forth below by failing to provide Lisa Horan, Trustee 

(1) just and true books of account and all other partnership records at 

any time during normal business hours; and (2) year-end balance 

sheets: Big Leasing LLC (General Partner of Big Signs & Leasing ## 

1–6, Ltd.) Culcreuch West, LLC (General Partner of Ben Nevis West, 

Ltd.), and Realty Acquisitions & Holdings, LLC (General Partner of 

Big Eastex #1, Ltd.). 

(b) The Court declares in accordance with the jury’s findings that the 

following General Partner entities as set forth below in violation of Tex. 

Bus. Org. Code § 153.552 failed to provide Lisa Horan, Trustee with 

the books and records of the Limited Partnerships: Big Leasing LLC 

(General Partner of Big Signs Leasing ##1–6, Ltd.); Culcreuch West, 

LLC (General Partner of Ben Nevis West, Ltd.), and Realty 

Acquisitions & Holdings, LLC (General Partner of Big Eastex #1, 

Ltd.).

(c) The Court declares in accordance with the jury’s findings that the 

following General Partner entities as set forth below in violation of Tex. 

Bus. Org. Code § 101.502 failed to provide Lisa Horan, Trustee with 

the books and records of the limited liability companies: Big Leasing 

LLC (General Partner of Big Signs & Leasing ## 1–6, Ltd.); and Realty 

Acquisitions & Holdings, LLC (General Partner of Big Eastex #1, 

Ltd.).

(d) The Court declares in accordance with the jury’s findings that the 

following General Partner entities, of which Lisa Horan was a 

governing person, as set forth below in violation of Tex. Bus. Org. Code 

§§ 3.151 and 3.152 failed to provide Lisa Horan, Trustee with the books 

and records of the General Partners: SignAd GP, LLC, Culcreueh West, 

LLC, Big Leasing [LLC], and Realty Acquisitions & Holdings, LLC. 

Accordingly, the Court declares that Lisa Gilbreath Horan is entitled to 

attorneys’ fees and other proper relief under Tex. Bus. Org. Code 

§ 3.152(c).
115

The trial court also granted Lisa injunctive relief based on Lisa’s contractual and 

statutory claims for access to the books and records. Specifically, the trial court 

enjoined:

the General Partners, the Limited Partnerships, the Individual 

Defendants, and their agents, servants, employees, representatives, and 

those acting in concert or participation with them, directly or indirectly, 

from. . . denying Plaintiff access to the books and records of the 

General Partners and Limited Partnerships as per the operative 

agreements and under Texas law until such time as an equitable buyout 

of Lisa Horan, Trustee’s interests are bought out and fully paid for or 

she no longer serves on the boards of managers of any entity, whichever 

comes later.

The Company Appellants argue that the issued declarations must be reversed 

because (1) the trial court lacked subject matter jurisdiction to enter them, (2) no 

evidence supported the findings on which they are predicated, (3) one finding omits 

essential elements (Jury Questions 8–9), (4) other findings are immaterial (Jury 

Questions 11–14), and (5) the limitation of liability provisions in the Limited 

Partnership Agreements preclude any finding of wrongdoing against the General 

Partners.

1. Lack of Subject Matter Jurisdiction

The Company Appellants argue the trial court lacked subject matter 

jurisdiction to enter the declaratory judgment because there was no justiciable 

controversy among the parties. They argue that because Lisa received the requested 
116

books and records before trial, there was no longer a dispute among the parties over 

that issue. 

The Uniform Declaratory Judgment Act (“UDJA”) is remedial in nature. Its 

“purpose is to settle and to afford relief from uncertainty and insecurity with respect 

to rights, status, and other legal relations.” TEX. CIV. PRAC. & REM. CODE

§ 37.002(b); see Gulshan Enters., Inc. v. Zafar, Inc., 530 S.W.3d 298, 305 (Tex. 

App.—Houston [14th Dist.] 2017, no pet.). “A declaratory judgment, by its nature, 

is forward looking; it is designed to resolve a controversy and prevent future 

damages. It affects a party’s behavior or alters the parties’ legal relationship on a 

going-forward basis.” Intercont’l Grp. P’ship v. KB Home Lone Star L.P., 295 

S.W.3d 650, 660 (Tex. 2009). A trial court may render a declaratory judgment if it 

serves a useful purpose or will terminate the controversy between the parties. 

Bonham State Bank v. Beadle, 907 S.W.2d 465, 468 (Tex. 1995); Gulshan Enters., 

Inc., 530 S.W.3d at 305.

Although Lisa received access to the books and records prior to trial, as noted 

below, the evidence reflects she was denied access repeatedly and had to file suit to 

obtain the information in the first place. Lisa requested a declaration that she has 

the right to access the books and records of the Limited Partnerships and General 

Partners both under the Partnership Agreements and Texas law, including her right 

to do so in the future. Her request for a declaration regarding her right to access the 
117

books and records was thus not moot. That the trial court did not expressly declare 

she has a right of access does not alter the fact that a live controversy on her right of 

access still existed at trial.53 We thus conclude that Lisa’s request for declaratory 

judgment was not moot and the trial court had jurisdiction to hear her claim.

2. No Evidence

The Company Appellants argue there is no evidence the General Partners 

failed to provide Lisa with the books and records to which she was entitled. The 

record reflects that Lisa’s attorney contacted the General Partners, SignAd GP, LLC, 

Culcreuch West, LLC, Realty Acquisitions & Holdings, LLC, and Big Leasing 

LLC’s predecessor, Buyers Investment Group, Inc., in March 2013 to obtain the 

books and records, both in writing and by phone. When Wes, Jr. spoke to Lisa’s 

lawyer on March 1, 2013, he told Lisa’s lawyer that he would never allow Lisa to 

access the books and records. SignAd Outdoor’s attorney later agreed to allow Lisa 

to come to his office and inspect the books and records, but SignAd Outdoor hired 

new counsel before Lisa was able to inspect the books. After several months of 

negotiations, the parties executed a confidentiality agreement. Although the General 

Partners provided some records, Lisa ultimately had to file suit to obtain the 

53 A claim for attorney’s fees can keep a declaratory judgment case alive despite 

substantive mootness because a party does not have to prevail to recover its 

attorney’s fees under the Uniform Declaratory Judgments Act. See Martin v. Cadle

Co., 133 S.W.3d 897, 906 (Tex. App.—Dallas 2004, pet. denied) (stating party to 

declaratory judgment action need not prevail to recover award of attorney’s fees).
118

remaining documents and information. She did not receive everything she requested 

until three years after making her initial request. 

Although the Limited Partnership Agreements state that the “General Partner 

shall keep at the principal place of business and make available to all Partners at any 

time during normal business hours, just and true books of account and all other 

Partnership records,” Lisa testified she was allowed to go to SignAd Outdoor’s 

office only twice and only outside of regular business hours. She also testified that 

she was only allowed to view a limited amount of information in a conference room 

and that there were two police officers there to observe her, her accountant, and 

attorney. This testimony alone is some evidence the General Partners failed to 

provide Lisa with the books and records she requested in violation of the Limited 

Partnership Agreements and the TBOC. 

The Company Appellants argue there is no evidence Lisa had a “proper 

purpose” for examining the companies’ books and records, or that her requests were 

“just and reasonable,” as required under Section 153 of the TBOC.

54

 The record 

reflects that Lisa began contacting the General Partners and making written requests 

54 Section 153.552(a) states: “On written request stating a proper purpose, a partner or 

an assignee of a partnership interest may examine and copy, in person or through a 

representative, records required to be kept under Section 153.551 and other 

information regarding the business, affairs, and financial condition of the limited 

partnership as is just and reasonable for the person to examine and copy.” TEX.

BUS. ORGS. CODE § 153.552(a).
119

for access to the books and records of the Limited Partnerships in March 2013. 

There is also evidence she requested the documents for the purpose of conducting a 

forensic audit to verify whether the Limited Partnerships’ business and finances 

were being managed properly. Lisa’s expert, Enriquez, conducted a forensic audit 

using the information requested. This is some evidence that Lisa requested the 

materials for a “proper purpose,” namely, to conduct a forensic audit, and that her 

requests for documents to conduct an audit were “just and reasonable.” The Limited 

Partnership Agreements do not have a similar “proper purpose” requirement. 

3. Immaterial Jury Findings

Jury Questions 8 and 9 asked whether SignAd GP, LLC, Big Leasing LLC, 

Culcreuch West, LLC, and Realty Acquisitions & Holdings, LLC breached the 

Limited Partnership Agreements by refusing to produce books and records 

voluntarily, and the jury answered “yes.”55 Jury Questions 11 through 14 asked 

whether SignAd GP, LLC, Big Leasing LLC, Culcreuch West, LLC, and Realty 

Acquisitions & Holdings, LLC violated statutory provisions requiring access to the 

books and records, and the jury answered “yes” to those questions as well.56

55 Although the jury found that all four General Partners breached the Limited 

Partnership Agreements by refusing to produce books and records voluntarily, the 

Amended Final Judgment only refers to Big Leasing LLC, Culcreuch West, LLC, 

and Realty Acquisitions & Holdings, LLC.

56 Jury Questions 11 through 13 asked the jury to determine whether the named parties 

violated TBOC Section 153.552 and Jury Question 14 asked the jury to determine 

whether the named parties violated TOBC Section 3.152.
120

The Company Appellants argue that these questions were submitted with 

respect to a breach of contract claim, and that the jury’s answers to the questions 

were “immaterial” because they were not tied to any damage question. The premise 

of the Company Appellants’ argument is that the jury questions related to a breach 

of contract claim. They did not. 

Lisa did not seek damages for a past breach of the Limited Partnership 

Agreements; she sought equitable relief based in part on the Company Appellants’ 

past violations of her contractual and statutory rights. See Gulshan Enters., Inc., 530 

S.W.3d at 307 (“Although such an action may resemble a breach-of-contract action

claim, the two actions are distinct: in a declaratory judgment action, a plaintiff seeks

a determination of liability without an award of damages, while a plaintiff in a

breach-of-contract action seeks both a determination of liability and an award of

damages.”). In the Amended Final Judgment, the trial court stated:

The jury rendered a verdict that the General Partners and Limited 

Partnerships denied Plaintiff her contractual and statutory right to 

access to the books and records of the entities. Resulting from the fact 

that the evidence presented showed the continuing nature of the denial 

of access well into the third year of litigation, the Court cannot be 

assured that the entities will not continue to deny Plaintiff access to the 

books and records pending the completion of a buyout of the interests 

of Lisa Horan, Trustee, without injunctive relief to protect her rights. 

A question is immaterial when it should not have been submitted to the jury, 

or when it was properly submitted but has been rendered immaterial by other 

findings. Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994). 
121

The jury questions regarding the parties’ past violations of the Limited Partnership 

Agreements and the TBOC provisions were material because the jury’s answers to 

those questions formed the basis of the injunctive relief the trial court granted, 

specifically the questions of imminent harm. We thus reject the Company 

Appellants’ arguments regarding the materiality of these questions. 

We address the Company Appellants’ challenges to the issuance of injunctive 

relief later in this opinion.

4. Declaratory Judgment

In their reply brief, the Company Appellants argue that Lisa was not entitled 

to declaratory relief because Lisa “couched her books and records claims, in part, in 

terms of a breach of the limited partnership agreements” and her claims for 

declaratory relief were based on the same theories. See BHP Petroleum Co., Inc. v.

Millard, 800 S.W.2d 838, 841 (Tex. 1990) (holding declaratory judgment is not 

available to settle issues already pending before court). Lisa’s claims that SignAd 

GP, LLC, Big Leasing LLC, Culcreuch West, LLC, and Realty Acquisitions & 

Holdings, LLC violated her statutory rights under the TBOC, however, are not the 

proper subject of a breach of contract claim and did not encompass issues already 

before the court. Moreover, Lisa did not seek damages for a breach of contract 

claim. She sought a declaration that she has a right of access to the books and records 

under the Limited Partnership Agreements and TBOC and provided evidence Big 
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Leasing LLC, Culcreuch West, LLC, and Realty Acquisitions & Holdings, LLC

violated the agreements in the past by refusing her access. See Gulshan Enters., Inc., 

530 S.W.3d at 307 (explaining difference between declaratory judgment and breach 

of contract claim).

5. Limitation on Liability

The Company Appellants also argue that the limitation-of-liability clauses in 

the Limited Partnership Agreements preclude any finding of wrongdoing against the 

General Partners, and further that Lisa never “properly pleaded any of those legal 

theories.”

Texas Rules of Civil Procedure require matters submitted to the jury to have 

been “raised by the written pleadings and the evidence.” TEX. R. CIV. P. 278. Lisa 

pleaded claims for declaratory relief and breach of fiduciary duty in connection with 

her claims for access to the books and records, asserting violations of the Limited 

Partnership Agreements and the TBOC. In response, the Company Appellants filed 

affirmative defenses to her claims based on the exculpatory clauses included in the 

Limited Partnership Agreements. 

Section 12.3 of the SignAd, Ltd. Partnership Agreement states:

The General Partner shall not be liable to the Partnership or any Partner 

for any claim, demand, liability, cost, damage, or cause of action arising 

out of the General Partner’s management of the Partnership’s affairs, 

except where the claim at issue is based upon gross negligence, bad 

faith, willful breach of any material provision of this Agreement, or 

willful misconduct of the General Partner.
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Section 8.02 of the Limited Partnership Agreements for Big Signs & Leasing (#1–

6), Big Eastex #1, Ltd., and Ben Nevis West, Ltd. states:

... Always, unless fraud, deceit, or a wrongful taking shall be involved, 

the General Partner shall not be liable or obligated to the Limited 

Partners for any mistake of fact or judgment made by the General 

Partner in operating the business of the Partnership, which results in 

any loss of the Partnership or its Partners. . . . Neither shall the General 

Partner be responsible to any Limited Partner because of a loss of his 

investment or a loss in operations, unless it shall have been occasioned 

by fraud, deceit, or a wrongful taking by the General Partner. 

Because the theories of “fraud, deceit, or a wrongful taking” and “gross negligence,

bad faith, [and] willful breach” were pleaded by the General Partners as part of their 

affirmative defenses and presented to the jury at their request, it was not necessary 

for Lisa to plead these affirmative defenses or any exceptions to the same.

To the extent the Company Appellants contend the limitation-of-liability 

clauses precluded Lisa’s declaratory judgment action, nothing in the clauses 

precludes such relief. The clauses preclude a finding of “liability” but not a 

declaration of rights. And to the extent the clauses applied, the jury was instructed 

on those limitations. The issues were thus specifically presented to the jury who 

found that SignAd GP, LLC, Big Leasing LLC, Culcreuch West, LLC, and Realty 

Acquisitions & Holdings, LLC breached their obligations under the Limited 

Partnership Agreements. 

While the Company Appellants argue there is no evidence of “fraud, deceit, 

or a wrongful taking” or “gross negligence, bad faith, or willful breach,” they offer 
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no elaboration. And as already discussed above, there was sufficient evidence that 

SignAd GP, LLC, Big Leasing LLC, Culcreuch West, LLC, and Realty Acquisitions 

& Holdings, LLC breached their obligations under the Limited Partnership 

Agreements to grant Lisa access to the books and records. Lisa’s attorney contacted 

SignAd GP, LLC, Culcreuch West, LLC, Realty Acquisitions & Holdings, LLC, and 

Big Leasing LLC’s predecessor, Buyers Investment Group, Inc., in March 2013 to 

obtain access to the General Partners’ and the Limited Partnerships’ books and 

records. Although Wes, Jr. initially told Lisa’s lawyer that he would never allow 

Lisa to access the books and records, SignAd GP, LLC, Culcreuch West, LLC, 

Realty Acquisitions & Holdings, LLC, and Big Leasing LLC produced some records 

in June 2013 and September 2013. Lisa, however, did not receive everything she 

requested until three years after making her initial request. 

We overrule the Company Appellants’ challenge to the books and records 

claims.

B. Derivative Claim for Breach of Fiduciary Duty: SignAd GP, LLC to 

SignAd, Ltd.

Lisa asserted a derivative claim against SignAd GP, LLC for breach of its 

fiduciary duty to SignAd, Ltd. The jury found that SignAd GP, LLC breached its 

fiduciary duties to SignAd, Ltd. by causing SignAd, Ltd. to pay $375,000 in 

non-business-related legal fees for Wes, Jr., Stacey, Lee, and Mark. The jury further 

found that Wes, Jr., Lee, Stacey, and Mark knowingly participated in SignAd GP, 
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LLC’s breach of fiduciary duty and assigned a percentage of responsibility to each. 

The Amended Final Judgment awarded Lisa a share of the awarded damages in 

proportion to her one-sixth ownership interest in SignAd, Ltd.57 

The Company Appellants argue that this award should be reversed because 

(1) insufficient evidence supports the finding that SignAd GP, LLC breached a 

fiduciary duty, (2) insufficient evidence supports the damages finding, and (3) Lisa 

cannot recover directly for damages to SignAd, Ltd. 

1. Evidence of Breach

The Company Appellants argue the jury’s breach of fiduciary duty finding 

was based solely on Enriquez’s testimony that payments of legal fees for Wes, Jr., 

Lee, Stacey, and Mark were personal expenses that SignAd, Ltd. improperly paid. 

Enriquez concluded that, in her opinion, the payments did not comport with SignAd, 

Ltd.’s governing documents and could potentially put SignAd, Ltd.’s S-Corporation 

status “at risk” which might present a tax problem for SignAd, Ltd. sometime in the 

future. The Company Appellants argue that Enriquez’s opinions cannot support the 

jury’s findings because they are unsupported personal opinions, improper legal 

conclusions, and rank speculation. They argue that Enriquez’s testimony is not 

evidence because (1) she relied solely on a line in SignAd, Ltd.’s accounts payable 

57 The Grandchildren’s Trust and Lisa, Wes, Jr., Stacey, Lee, and Brett, as trustees of 

their respective irrevocable trusts, are each limited partners in the Limited 

Partnerships, with each owning an equal one-sixth interest in the partnerships.
126

record describing the payments as “guardianship and trust issues,” (2) the Individual 

Appellants were entitled to indemnity, and (3) Enriquez speculated about a risk to 

SignAd, Ltd.’s S-Corporation status. 

Enriquez testified that in addition to relying on an accounts payable record, 

she also relied on the deposition testimony of Mike Phillips (“Phillips”) (SignAd, 

Ltd.’s controller), Wes, Jr., and Stacey in concluding that $384,366 in company 

funds were used improperly to pay for the personal legal fees of Wes, Jr., Lee, 

Stacey, and Mark to investigate a guardianship over Lisa, for serving as trustees, or 

defending against Lisa’s malicious prosecution claim (against Wes, Jr., Lee, and 

Stacey) and defamation claims (against Wes, Jr. and Mark), none of which are 

related to SignAd, Ltd.’s business. According to Enriquez, Phillips testified that for 

fees concerning those individuals in their capacity as individuals, “[SignAd, Ltd.] 

pays for those expenses because the litigation committee had provided Mr. Wes 

Gilbreath, Jr. the right to essentially make that call.” Lee, Stacey, and Wes, Jr. had 

voted to create the Special Litigation Committee over Lisa’s objection. 

Enriquez also testified that SignAd, Ltd.’s accounts payable records 

corroborated Wes, Jr.’s deposition testimony indicating that SignAd, Ltd. had been 

paying his, Stacey, Lee, and Mark’s legal fees with respect to claims asserted against 

them in their individual capacities. According to Enriquez, the records revealed that 

between April 2013 and December 2015, SignAd, Ltd. had paid $384,366 in 
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personal legal fees for Wes, Jr., Stacey, Lee, and Mark, with the description of 

“Guardianship and Trust issues.”58 Wes, Jr. also testified that after Lisa’s 

involuntarily commitment, he consulted with his attorney several times to seek a 

guardianship over Lisa.59 There is thus some evidence supporting the jury’s finding 

that SignAd, Ltd. paid $375,000 for personal legal fees unrelated to SignAd, Ltd.

2. Evidence of Damages

The Company Appellants argue that Enriquez “testified that the payment of 

attorneys’ fees is not allowed by SignAd’s governing documents” and that such 

testimony is an improper legal opinion based on assumed facts that vary materially 

from the actual facts. See United Way of San Antonio, Inc. v. Healing Hands Lifeline 

Found., Inc., 949 S.W.2d 707, 713 (Tex. App.—San Antonio 1997, no pet.) (“Under 

Texas law, a witness may not give legal conclusions or interpret the law to the 

jury.”); see also Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499–500 (Tex. 

1995) (stating expert’s opinion based on assumed facts that vary materially from 

actual facts has no probative value). Contrary to the Company Appellants’ 

characterization of Enriquez’s testimony, Enriquez agreed that the governing 

documents allowed for the payment of attorney’s fees incurred with respect to claims 

58 Although Enriquez testified that SignAd, Ltd. had improperly paid $384,366 for 

personal legal fees, the jury only awarded SignAd, Ltd. $375,000 in damages. 

Nothing in the record explains this discrepancy. 

59 These portions of Wes, Jr.’s deposition testimony were played for the jury.
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against SignAd GP, LLC, SignAd, Ltd., and managers, officers, employees, and 

agents of these companies when acting in their official capacity.

According to the Company Appellants, Wes, Jr., Lee, Stacey, and Mark are 

entitled to recover their legal fees under both an express provision in SignAd GP, 

LLC’s regulations allowing such expenditures and indemnity provisions in SignAd, 

Ltd.’s and SignAd GP, LLC’s governing documents allowing recovery against 

certain liability. They argue there was no “waste” of partnership resources because 

Wes, Jr., Lee, Stacey, and Mark were entitled to have their personal legal fees paid 

pursuant to SignAd GP, LLC’s governing documents. Specifically, they argue that 

SignAd, GP, LLC amended its regulations in early 2014 to establish a Litigation 

Committee and passed a resolution allowing Wes, Jr. and other officers to make legal 

expenditures considered necessary. The meeting minutes, however, state that 

SignAd GP, LLC’s Board of Managers authorized the creation of a Litigation 

Committee “to address the lawsuit filed by Lisa Horan against the company [SignAd 

GP, LLC].” The resolution also reflects that the Litigation Committee was created 

for the “purpose of addressing all matters on behalf of [SignAd GP, LLC] and 

[SignAd, Ltd.] with regard to” Lisa’s lawsuit. Nothing in the resolution suggests 

payment of personal legal fees is approved for legal fees incurred by Wes, Jr., Lee, 

Stacey, and Mark in their individual capacities.
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The Company Appellants’ arguments regarding indemnity fare no better. The 

indemnity provision in the SignAd, Ltd. Partnership Agreement states that the 

“General Partner shall be indemnified and held harmless by the Partnership . . . from 

and against any and all claims . . . arising out of the General Partner’s management 

of the Partnership affairs . . . .” including attorney’s fees “incurred in settling or 

defending any claims, threatened action, or finally adjudicated legal proceedings.” 

The term “General Partner” is defined as SignAd GP, LLC. Wes, Jr. testified that 

SignAd, Ltd. was paying his, Lee’s, Stacey’s and Mark’s legal fees with respect to 

Lisa’s claims against them in their individual capacities. Thus, the legal fees at issue 

were incurred by Wes, Jr., Lee, Stacey, and Mark personally, and not by SignAd GP, 

LLC, to settle or defend “any claims, threatened action, or finally adjudicated legal 

proceedings.”

Similarly, SignAd GP, LLC’s regulations permit indemnity for “[m]anagers, 

officers, employees, and agents” acting in their official capacities. Lee, Stacey, and 

Wes, Jr. were not acting in their official capacity as an officer or manager of SignAd 

GP, LLC when they had Lisa involuntarily committed or pursued the possibility of 

establishing a guardianship over Lisa. Similarly, neither Mark nor Wes, Jr. were 
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acting in their official capacity as a manager, officer, employee, or agent of SignAd 

GP, LLC when they allegedly defamed Lisa.60

In their reply brief, the Company Appellants also argue that pleading 

deficiencies precluded the submission of the questions associated with this claim 

because Lisa pled only that SignAd GP, LLC breached the duty of loyalty by 

“engaging in transactions solely for the benefit of certain limited partners to the 

detriment of others,” and never addressed fee payments. They further argue Lisa 

never alleged that the Individual Appellants “knowingly participated” in any alleged 

breach.

In her eighth amended petition Lisa alleged that

In addition to paying their individual attorneys’ fees not related to their 

agency for SignAd in this case, [Stacey], Lee and Wes. Jr. have 

approved and consented to SignAd’s payment of Individual legal fees 

related to [Mark] Ritter’s separate probate action to discharge himself 

as trustee of the Horan Trust and for the fees of the trustees of the 

Grandchildren’s Trust to sue to have each and every one of their acts 

60 The Company Appellants also argue that the “breach of fiduciary duty issue should 

never have been submitted to the jury” because the limitation-of-liability provision 

in the Limited Partnership Agreement precludes the claim. As we concluded, the 

issues set forth in Section 12.3 of the SignAd, Ltd. Partnership Agreement for gross 

negligence, bad faith, willful breach, and willful misconduct were properly pleaded 

and submitted to the jury who found in favor of Lisa in connection with her claim 

that Wes, Jr., Lee, and Stacey breached their duties to SignAd, Ltd. And while the 

Company Appellants also argue there is no evidence supporting these findings, they 

do so without further elaboration or analysis. It is not the role of this Court to search 

a twenty-four-volume reporter’s record from a four to five weeklong jury trial to 

support a party’s appellate argument and we decline to do so now. 
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related to The Grandchildren’s trust approved. These probate causes of 

action have no relationship whatsoever with this suit. . . .

Texas follows a “fair notice” standard for pleading, focusing on whether the 

opposing party can ascertain from the pleading the nature and basic issues of the 

controversy, and what type of evidence might be relevant. Low v. Henry, 221 

S.W.3d 609, 612 (Tex. 2007); see also TEX. R. CIV. P. 45, 47. Pleadings must give 

fair notice of the claim asserted and the relief sought to provide the opposing party 

with enough information to enable him to prepare a defense. In re Lipsky, 460 

S.W.3d 579, 590 (Tex. 2015). Although Lisa’s pleading does not use the phrase 

“knowing participation in breach of fiduciary duty,” the wrongful conduct she 

alleges with respect to Wes, Jr., Lee, and Stacey is apparent. See generally Boyles 

v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993) (stating pleadings must be liberally 

construed to include all causes of action that may reasonably be inferred).

3. Lisa’s Recovery of Damages 

The Company Appellants argue there is insufficient evidence of damages 

because Enriquez’s testimony that SignAd, Ltd. could be subject to potential tax 

penalties due to SignAd GP, LLC’s alleged breach of its fiduciary duty was 

speculative and therefore irrelevant. Enriquez explained she was concerned about 

the payment of personal legal fees from SignAd, Ltd.’s company funds because “it 

puts [SignAd, Ltd.’s] S Corp[oration] status at risk if this was found to be dividends, 

which then violates what the equal []distribution of dividends called for.” The 
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Company Appellants argue that any risk to SignAd, Ltd.’s S-Corporation status was 

only a “theoretical possibility” because the Internal Revenue Service had not made 

any inquiries and no penalties have been assessed or paid. 

Lisa counters that Enriquez’s testimony regarding the risk to SignAd, Ltd.’s 

S-Corporation status is immaterial to the damage award based on the breach-offiduciary-duty finding because the evidence shows that SignAd GP, LLC misapplied 

SignAd, Ltd.’s funds by paying for personal legal fees. She argues that it is a breach 

of fiduciary duty for a general partner to waste the partnership’s resources on 

unauthorized expenditures that do not advance the business. See Ritchie v. Rupe, 

443 S.W.3d 856, 887 (Tex. 2014) (stating that “the duty of loyalty that officers and 

directors owe to the corporation specifically prohibits them from misapplying 

corporate assets for their personal gain”). Lisa contends that SignAd GP, LLC 

misapplied SignAd, Ltd.’s company funds to enrich the individuals whose personal 

legal fees were paid by the limited partnership company. 

Whether or not SignAd GP, LLC’s breach of its fiduciary duty risked SignAd, 

Ltd.’s status as an S-Corporation, the evidence established SignAd GP, LLC 

damaged SignAd, Ltd. because SignAd GP, LLC authorized the payment of legal 
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fees incurred by Wes, Jr., Lee, Stacey, and Mark for matters unrelated to SignAd, 

Ltd. The jury’s finding on damages is thus supported by the evidence.61

The Company Appellants also argue that the Amended Final Judgment 

improperly awarded money damages directly to Lisa under Section 153.405 of the 

TBOC on her derivative claim filed on behalf of SignAd, Ltd.62 They argue that 

while a limited partner may bring an action on behalf of a limited partnership to 

61 The jury found in favor of Lisa on her derivative claim filed on behalf of SignAd 

GP, LLC, awarding damages for lack of internal controls regarding fringe benefits 

and the sale of certain company cars. The Company Appellants challenge 

Enriquez’s testimony regarding the fringe benefits and automobile’s fair market 

value. Because we are reversing the Final Amended Judgment awarding damages 

to Lisa on her derivative claim filed on behalf of SignAd GP, LLC for lack of 

standing, we need not address those points. 

The Company Appellants also challenge the admissibility of Enriquez’s opinion 

regarding the expenditure of legal fees based on improper methodology, improper 

legal conclusions, and unfair prejudice. With respect to her methodology, the 

Company Appellants argue that “Enriquez’s complete dependence on a single 

phrase in SignAd’s accounts payable records [“Guardianship and Trust issues”] is 

an inconsistent application of her stated methodology of requiring ‘documentation’ 

and an improper attempt to cherry-pick facts.” As discussed, Enriquez testified that 

her opinion was also based on deposition testimony from Phillips, Wes, Jr., and 

Stacey and her review of the claims alleged in the pleadings. The Company 

Appellants also argue without further elaboration or analysis of the relevant factors 

that “even if relevant, [Enriquez’s testimony] was unfairly prejudicial to SignAd 

and misleading to the jury.” This issue is waived. See TEX. R. APP. P. 38.1(i) 

(requiring appellant’s brief to contain clear and concise argument with appropriate 

citations to authorities and record); see also Marin Real Estate Partners v. Vogt, 

373 S.W.3d 57, 75 (Tex. App.—San Antonio 2011, no pet.) (“A failure to provide 

substantive analysis of an issue waives the complaint.”); San Saba Energy, L.P. v.

Crawford, 171 S.W.3d 323, 338 (Tex. App.—Houston [14th Dist.] 2005, no pet.) 

(“[P]arties asserting error on appeal still must put forth some specific argument and 

analysis showing that the record and the law supports their contentions.”). 

62 The judgment recites that the award to Lisa is “[i]n accordance with the court’s 

discretion under Tex. Bus. Org[s]. Code §153.405.” 
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recover a judgment in the limited partnership’s favor, an individual stakeholder in a 

legal entity does not have the right to recover personally for harms done to the legal 

entity. They argue that Section 153.405 does not authorize the direct distribution of 

damages recovered in a derivative claim brought on behalf of a limited partnership 

to a single limited partner. See TEX. BUS. ORGS. CODE § 153.405. 

The TBOC authorizes a limited partner to bring an action on behalf of a 

limited partnership to recover a judgment “in the limited partnership’s favor.” TEX.

BUS. ORGS. CODE § 153.401.63 When the trial court entered judgment, Section 

153.405 of the Business Organizations Code, entitled “Expenses of Plaintiff,” 

stated:64

If a derivative action is successful, wholly or partly, or if anything is 

received by the plaintiff because of a judgment, compromise, or 

settlement of the action or claim constituting a part of the action, the 

court may award the plaintiff reasonable expenses, including 

reasonable attorney’s fees, and shall direct the plaintiff to remit to a 

63 The Texas Legislature amended Section 153.401 of the TBOC in 2019. See Act of 

June 10, 2019, 86th Leg., R.S., ch. 899, § 25, sec. 153.401, 2019 Tex. Sess. Law 

Serv. 899 (current version at TEX. BUS. ORGS. CODE § 153.402). Because the 

amendment was not effective until September 1, 2019, the former version of Section

153.401 applies to this appeal. Thus, all references to Section 153.401 are to the 

former version of this section unless otherwise noted.

64 In 2019, the Texas Legislature amended Section 153.405 of the TBOC. See Act of 

June 10, 2019, 86th Leg., R.S., ch. 899, § 29, sec. 153.405, 2019 Tex. Sess. Law 

Serv. 899 (current version at TEX. BUS. ORGS. CODE § 153.411). Because the 

amendment was not effective until September 1, 2019, the former version of Section

153.405 applies to this appeal. Thus, all references to Section 153.405 are to the 

former version of this section unless otherwise noted.
135

party identified by the court the remainder of the proceeds received by 

the plaintiff.

TEX. BUS. ORGS. CODE § 153.405.65 Under the plain language of Section 153.405, 

Lisa can recover only her “reasonable expenses, including reasonable attorney’s 

fees” and the court shall direct Lisa “to remit to a party identified by the court the 

remainder of the proceeds received by [her].”66 Id. Lisa is thus not entitled to a 

direct distribution of the damages awarded for her derivative claim. 

Lisa argues that nonetheless a court has discretion under Section 153.405 to 

award a share of the recovered damages directly to a limited partner in proportion to 

her ownership interest in a derivative action brought on behalf of a closely held 

limited partnership. Lisa cites to this Court’s opinion in Beach Capital Partnership, 

L.P. v. DeepRock Venture Partners L.P., 442 S.W.3d 609 (Tex. App.—Houston [1st 

Dist.] 2014, no pet.), but her reliance on that case is misplaced. 

65 Under the current version of Section 153.405, now codified at Section 153.411, the 

court may order “the limited partnership to pay expenses the plaintiff incurred in the 

proceeding if the court finds the proceeding has resulted in a substantial benefit to 

the limited partnership.” TEX. BUS. ORGS. CODE § 153.411(b)(1). Expenses 

include attorney’s fees, costs, or expenses for which the limited partnership may be 

required to indemnify another person. Id. § 153.411(a).

66 In contrast, Section 101.463 of the TBOC expressly states that under certain 

circumstances, courts may treat a derivative proceeding brought by a member of a 

closely held limited liability company as a direct action brought by the member for 

the member’s own benefit and award any recovery on the claim directly to the 

member. TEX. BUS. ORGS. CODE § 101.463(c). In 2019, the Texas Legislature 

amended the TBOC and added a similar provision for closely held limited liability 

partnerships. See id. § 153.413(c). Section 153.413, however, only applies to a 

derivative suit filed on or after September 1, 2019. 
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In Beach Capital Partnership, the majority partner brought a derivative suit 

on behalf of the partnership, Playa. Id. at 613. The jury assessed the damages caused 

to Playa at $500,000, and because the trial court simultaneously awarded damages 

and ordered the dissolution of Playa, it awarded 80% of the jury’s award, or 

$375,000, directly to DeepRock as the majority partner. Id. at 616. This Court held 

the trial court had not erred in awarding a portion of a derivative damage award 

directly to a limited partner under Section 153.405, but it did so because “the 

judgment dissolved Playa and ordered Playa’s receiver to distribute all remaining 

assets to DeepRock.” Id. This part of the judgment was not challenged by the 

parties. This Court thus held that the direct award to DeepRock was “entirely 

consistent with a payment of $500,000 to Playa and its simultaneous distribution to 

Playa’s partners,” especially “in light of the unchallenged judgment that all of [the 

dissolved partnership’s] remaining assets be distributed immediately to [the limited 

partner].” Id. (“That the award was direct, rather than passing through the hands of 

the receiver, has no practical impact, nor was it improper.”). 

The holding in Beach Capital Partnership has no application here. SignAd, 

Ltd. has not been dissolved, nor did the trial court direct a receiver to distribute the 

remaining assets of the partnership to the limited partners. Lisa is thus not entitled 

to a direct distribution of damages for the derivative claim she filed on behalf of 

SignAd, Ltd.
137

We sustain the Company Appellants’ challenge to the award of direct 

damages to Lisa for this derivative claim and we reverse the portion of the Amended 

Final Judgment awarding Lisa direct damages for the derivative claim she asserted 

on behalf of SignAd, Ltd.67

C. Other Errors

The Company Appellants argue that there are “flagrant” errors throughout the 

jury charge that require reversal. They first argue that the erroneous intermingling 

of unpled legal theories included in the books and records and derivative claims

tainted many of the individual claims, if not the entire verdict. We have already 

concluded, however, that the legal theories at issue were sufficiently pleaded and 

were properly submitted to the jury.

The Company Appellants also assert that the category of damages submitted 

in Jury Question 29 did not include the proper legal measures of damages. They 

argue that Jury Question 29 improperly instructed the jury to consider a specific 

category of purported damages in the form of “legal fees paid on behalf of 

individuals,” as selected by Enriquez. According to the Company Appellants, this 

67 The Company Appellants also argue the trial court abused its discretion in awarding 

attorney’s fees to Lisa on this claim because the plain language of Section 153.405 

authorizes an award of fees and expenses to the derivative plaintiff out of any 

proceeds recovered by the plaintiff, and not a separate award of fees and expenses 

in addition to the damages awarded. We address these arguments later in our 

opinion under our discussion on attorney’s fees.
138

is an improper comment on the weight to be given Enriquez’s testimony. The 

Company Appellants argue the proper measure of damages in this case is “the loss 

suffered by the company.”68 This argument lacks merit. 

An improper comment on the weight of the evidence occurs when the judge 

(1) assumes the truth of a material controverted fact, (2) exaggerates, minimizes, or 

withdraws some pertinent evidence from the jury’s consideration, or (3) suggests to 

the jury the trial judge’s opinion concerning the matter about which the jury is asked. 

See Halmos v. Bombardier Aerospace Corp., 314 S.W.3d 606, 617 (Tex. App.—

Dallas 2010, no pet.). None of these occurred here. Moreover, Enriquez testified 

that SignAd, Ltd. improperly paid $384,366 in personal legal fees for Wes, Jr., Lee, 

Stacey, and Mark unrelated to the company. This was the loss suffered by SignAd, 

Ltd. and thus a proper measure of damages for SignAd GP, LLC’s breach of 

fiduciary duty. 

The Company Appellants also argue the trial court improperly charged the 

jury with six books and records liability questions that essentially asked the jury the 

same question multiple times. They claim the repetitive questioning was 

“prejudicial to SignAd, [Ltd.,] a comment on the evidence, and calculated to do 

68 The Company Appellants also argue the proper measure of damages was not 

included in Jury Question 33, involving the derivative claim Lisa filed on behalf of 

SignAd GP, LLC. Because we are reversing the Amended Final Judgment awarding 

damages for that derivative claim, we need not address this argument. 
139

nothing more than nudge the jury to answer the questions favorably for Lisa.” The 

questions, however, were not repetitive. They involved different parties alleged to 

have violated either an agreement or statute. 

The Company Appellants further complain the trial court did not instruct the 

jury to consider only pre-litigation requests for books and records, thus allowing the 

jury improperly to consider requests for production and resulting discovery disputes. 

We have found no authority supporting the assertion that a jury can consider only 

pre-litigation requests for books and records. And the Company Appellants’ reliance 

on Uvalde Rock Asphalt Company v. Loughridge, 425 S.W.2d 818 (Tex. 1968) (orig. 

proceeding) in support of their argument is misplaced. In that case, Uvalde Rock 

Asphalt Company’s shareholders, the Whites, made a written demand to inspect the 

company’s books and records. Id. at 819. When the company refused the demand, 

the Whites filed a petition for a writ of mandamus to compel the company to allow 

them immediate access to the books and records. Id. Thereafter, the Whites filed a 

“motion for discovery requesting the right to inspect fourteen named items, 

comprising virtually all of the books and records of the Company.” Id. at 820. The 

Texas Supreme Court held the company was entitled to a jury trial on the issue of 

whether the Whites were requesting access to the books and records for a proper 

purpose and the trial court abused its discretion in granting the Whites’ motion for 

discovery because otherwise the Whites would receive discovery of all the relief 
140

they sought in their lawsuit, effectively denying the company its right to a jury trial 

on the matter. Id. The Court’s opinion in Uvalde Rock Asphalt Company does not 

address the question presented here—charge error—and is therefore distinguishable.

Last, the Company Appellants argue the trial court improperly allowed 

Enriquez to testify “about the ‘difficulty’ in obtaining documents based, in part, on 

the parties’ discovery disputes.” They further contend that the “evidence was 

extremely prejudicial to SignAd and admitted over objection.” To preserve error 

with respect to the admission of evidence, the complaining party must timely and 

specifically object to the evidence and obtain a ruling. TEX. R. APP. P. 33.1(a); see

also TEX. R. EVID. 103(a). When Enriquez was asked if this case was any different 

from the other cases she had worked on as a forensic accountant, she replied that 

“the difficulty in getting the records” in this case was the most significant 

differentiating factor. No objection was raised.

69

 Because the Company Appellants 

69 It was not until the next day that during Enriquez’s testimony, the Company 

Appellants argued, “Your Honor, as you know, you have an earlier ruling that 

excludes all discussion of discovery and discovery orders in this case. I want to 

object to counsel and this witness’ continual references to documents that were 

requested, documents that were produced and when they were produced. . .” The 

Company Appellants’ counsel argued that the testimony was “opening this door to 

the discovery and the discovery disputes that you specifically excluded.” The trial 

court disagreed that the testimony violated its previous instructions, “I didn’t hear 

the Plaintiff mention that they had to file motions to compel and that the Court 

granted the motions to compel and that was only produced after an order compelling 

production.” 
141

did not object to Enriquez’s testimony, they have not preserved anything for our 

review. 

We overrule the Company Appellants’ challenges to the judgment based on 

these alleged errors.

D. Oppression

The Company Appellants argue there is no evidence supporting the jury’s 

finding of oppression. They argue “there is no evidence or factually insufficient 

evidence to support the finding, or that Wes, Jr., Lee, or Stacey ‘abuse[d] their 

authority’ with the ‘intent to harm anyone in a manner that does not comport with 

the honest exercise of their business judgment, and by doing so created a serious risk 

of harm to [the Company Appellants].’” They further contend there is no evidence 

that any alleged actions by Wes, Jr., Lee, or Stacey were severe and created exigent 

circumstances, were inconsistent with their duty to exercise their honest business 

judgment for the benefit of the Company Appellants, and involved an unjust exercise 

or abuse of power.70

The Company Appellants further contend that even more problematic is the 

fact that Jury Question 47 (on oppression) broadly inquired as to the conduct of the 

70 The Company Appellants do not cite to any testimony or evidence in the 

twenty-four-volume reporter’s record from a four to five weeklong jury trial in their 

opening brief to support their arguments. In their reply brief, they address the 

evidence identified in Lisa’s response. We limit our analysis to that evidence.
142

“governing persons” (those “who are entitled to manage and direct the affairs of an 

entity”) rather than any named individuals. Lisa was a member of the Board of 

Managers of each of the General Partners and therefore among those implicated in 

the alleged oppressive conduct. Consequently, they argue, it was error for the court 

to give any effect to the jury’s finding of oppression when the jury’s answer could 

have been based on Lisa’s behavior.

1. Standard of Review and Applicable Law

Section 11.404 of the Texas Business Organizations Code authorizes Texas 

courts to appoint a receiver to rehabilitate a domestic entity under certain 

circumstances. TEX. BUS. ORGS. CODE § 11.404. Relevant to this appeal, Section 

11.404(a)(1)(C) allows a trial court to appoint a receiver for the entity’s property and 

business if “in an action by an owner or member of the domestic entity, it is 

established that . . . the actions of the governing persons of the entity are illegal, 

oppressive, or fraudulent.” Id. § 11.404(a)(1)(C) (emphasis added). 

The term “oppressive” is not defined in the statute. In Ritchie v. Rupe, 443 

S.W.3d 856 (Tex. 2014), the Texas Supreme Court held that an entity’s directors or 

managers engage in oppressive action “when they abuse their authority over the 

[entity] with the intent to harm the interests of one or more of the [partners or 

members], in a manner that does not comport with the honest exercise of their 

business judgment, and by doing so create a serious risk of harm to the [entity].” Id.
143

at 871; id. at 867 (holding “complained-of actions must create exigent circumstances 

for the corporation”). The Court held that by grouping the term “oppressive” with 

“illegal” and “fraudulent” under the relevant statute, the Legislature signaled that the 

term “oppressive” should be construed to include acts that are as serious as illegal 

or fraudulent acts. Id. at 869–70 (“We must construe the third of these terms—

‘oppressive’—in a manner consistent with the severity of these concepts”). “Courts 

must exercise caution in determining what actions constitute oppressive conduct.” 

See Argo Data Res. Corp. v. Shagrithaya, 380 S.W.3d 249, 265 (Tex. App.—Dallas 

2012, pet. denied) (citing Willis v. Bydalek, 997 S.W.2d 798, 801 (Tex. App.—

Houston [1st Dist.] 1999, pet. denied) disapproved of on other grounds by Ritchie,

443 S.W.3d at 870–71 n.17). 

“A corporation’s officers and directors are afforded broad latitude in 

conducting corporate affairs and the minority shareholder’s expectations must be 

balanced against the corporation’s need to exercise its business judgment and run its 

business efficiently.” Argo Data Res. Corp., 380 S.W.3d at 265. “Courts take a 

broader view, however, of what constitutes oppressive conduct in a closely held 

corporation where oppression may be found more easily.” Id. 

Although it is within the jury’s province as factfinders to determine whether 

certain acts occurred, whether such acts constitute oppression is a question of law 

for the court. Id. at 264; Willis, 997 S.W.2d at 801; Davis v. Sheerin, 754 S.W.2d 
144

375, 383 (Tex. App.—Houston [1st Dist.] 1988, writ denied), disapproved of on

other grounds by Ritchie, 443 S.W.3d at 876. We review questions of law de novo. 

See Argo Data Res. Corp., 380 S.W.3d at 264. We have the duty to evaluate legal 

conclusions independently and we are not obligated to give deference to the trial 

court’s legal conclusions. See id.

2. Analysis

The question of oppression was presented to the jury in Jury Question 47. The 

question states: “Do you find that the actions of the governing persons of the entities 

listed below were oppressive?” The jury had to respond separately as to nine 

Limited Partnerships (SignAd, Ltd., Ben Nevis, West., Ltd., Big Eastex #1, Ltd., Big 

Signs & Leasing #1, Ltd., Big Signs & Leasing #2, Ltd., Big Signs & Leasing #3, 

Ltd., Big Signs & Leasing #4, Ltd., Big Signs & Leasing #5, Ltd., and Big Signs & 

Leasing #6, Ltd.) and two General Partners (Realty Acquisitions & Holdings, LLC 

and Big Leasing, LLC).71 The jury was instructed that:

An entity’s directors or managers engage in oppressive actions 

when they abuse their authority over the entity with the intent to harm 

the interests of one or more of the partners or member[s], in a manner 

that does not comport with the honest exercise of their business 

judgment, and by doing so they create a serious risk of harm to the 

entity.

Oppressive actions include acts that have the following 

characteristics:

71 All of the listed General Partners and Limited Partnerships are closely held.
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• They are severe and create exigent circumstances;

• They involve an unjust exercise or abuse of power that harms 

the rights or interests of persons subject to the governing 

persons’ authority and disserves the purpose for which the 

power is authorized; and

• They are inconsistent with the governing person’s duty to 

exercise their honest business judgment for the benefit of the 

entities.

The jury answered “yes” to Jury Question 47 for all nine of the Limited Partnerships 

and “yes” for Realty Acquisitions & Holdings, LLC and Big Leasing, LLC.72 In the 

Amended Final Judgment, the trial court granted injunctive relief and appointed a 

rehabilitative receiver based in part on the jury’s findings of oppression. 

Jury Question 47 defined the term “governing person.” It stated that “[a] 

person is a governing person of an entity if he is the person or is among the group of 

persons who are entitled to manage and direct the affairs of an entity. An officer is 

not a governing person.” The question, however, did not identify any individual by 

name. It referred only generally to “governing persons.” Thus, the jury was not 

asked to respond as to any named individual. Given the definition of “governing 

persons,” we agree that, as a member of the Board of Managers, Lisa qualifies as a 

“governing person” and the jury’s finding of oppression arguably could have been 

based on Lisa’s own conduct. This would be consistent with the jury’s finding under 

72 Jury Question 47 did not ask the jury to make a determination as to SignAd GP, 

LLC or Culcreuch West, LLC. 
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Jury Question 46 that Lisa engaged in conduct relating to the partnership business 

of each of the nine Limited Partnerships that made “it not reasonably practicable to 

carry on the business in partnership with [her],” especially given that in response to 

Jury Question 44, the jury found that Wes, Jr., Lee, Stacey, SignAd GP, LLC, and 

the other General Partners had not engaged in such conduct. The fact that the 

oppression finding could have been based on Lisa’s own conduct, however, does not 

mean that Jury Question 47 and the jury’s findings of oppression should be 

disregarded. 

Lisa argues that Wes, Jr., Lee, and Stacey are a controlling majority of SignAd 

GP, LLC’s Board of Managers and the boards for the other Company Appellants. 

She argues they abused their power to marginalize her by withholding information, 

refusing her requests for more transparency, and effectively excluding her from the 

family business. After years of refusing Lisa’s requests for additional financial 

information, Lisa had to hire a lawyer and eventually file suit to obtain the Company 

Appellants’ books and records to conduct a forensic audit. Despite Lisa’s rights to 

access the books and records of the company, Wes, Jr. told Lisa’s attorney that he 

would never provide her with confidential company information. And when the 

requested information was finally provided, Lisa claims it revealed irregularities 

such as self-dealing transactions involving Wes, Jr., failure to maintain internal 
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controls, improper use of company funds, and accounting deficiencies that 

threatened the S-Corporation status of SignAd, Ltd. 

Lisa then points out that during the highly contentious March 2013 board 

meeting, Wes, Jr., Lee, and Stacey voted down Lisa’s requests for greater 

disclosures. They also voted to stop having regular board meetings (except for the 

annual meeting), they re-established an Executive Committee that included all of 

them but excluded Lisa, and appointed Stacey to serve on SignAd GP, LLC’s 

Executive Committee along with Lee and Wes, Jr. By doing do, Lisa argues, Wes, 

Jr., Lee, and Stacey effectively excluded Lisa from management or, at a minimum, 

Lisa’s role in the management of the Company Appellants was greatly diminished. 

Lisa also argues that days after the meeting, Wes, Jr., with Lee and Stacey in 

agreement, tried to have Lisa involuntarily committed to a mental hospital “in a 

depraved attempt to silence and intimidate” her and “remove her from the board.” 

Lisa argues that the sum of these actions is sufficient evidence to establish “abuse of 

power by Wes, Jr., Lee and Stacey as control persons of the SignAd entities that 

harmed both Lisa and the company, created exigent circumstances, and were 

completely inconsistent with the honest exercise of business judgment.” 

Lisa does not cite any authority to support her argument that the alleged 

conduct constitutes oppression as a matter of law. The Company Appellants reply 

that the alleged actions do not constitute oppression because as a limited partner, 
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Lisa was “prohibited from ‘tak[ing] part in the management’ of the partnership” and 

although “she serves on the Board, the Board acts by majority vote.” They argue 

that being outvoted on her “audit requests, appointment to the Executive Committee, 

or regarding the reduction of annual Board meetings” is not oppression. Finally, the 

Company Appellants argue that once Lisa received the financial information she 

requested, she did not find evidence of fraud, but only “hypothetical potential tax 

penalties unlikely to ever be assessed.” More to the point, they argue that none of 

the findings described any “act taken directly against Lisa, as is required for 

‘oppressive conduct.’” See Ritchie, 443 S.W.3d at 871 (holding that, among other 

things, oppression requires conduct taken “with the intent to harm the interests of 

one or more of the shareholders”).

We conclude that the conduct Lisa describes does not amount to oppression 

as a matter of law. See Argo Data Res. Corp., 380 S.W.3d at 264 (stating factfinders 

determine whether certain acts occurred, but whether such acts constitute oppression 

is question of law for court). While the sum of Lisa’s complained-of conduct 

certainly impacted Lisa negatively, and some of the conduct was found by the jury 

to be improper, such as the failure to provide Lisa with the financial records to which 

she was entitled, we cannot say that Wes, Jr., Lee, or Stacey abused their authority 

over any of the Company Appellants by engaging in such conduct in a manner that 

did not comport with the honest exercise of their business judgment thereby creating 
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a serious risk of harm to the business. See Ritchie, 443 S.W.3d at 871 (holding 

directors or managers engage in oppressive actions “when they abuse their authority 

over the [entity] with the intent to harm the interests of one or more of the [partners 

or members], in a manner that does not comport with the honest exercise of their 

business judgment, and by doing so create a serious risk of harm to the [entity]”).

Lisa points to the fact that once she received the Company Appellants’ 

financial information, her accountant, Enriquez, discovered evidence of self-dealing 

transactions by Wes, Jr., such as failures to maintain internal controls, improper use 

of company funds and assets, and accounting deficiencies Enriquez believed could 

result in substantial IRS penalties and the loss of SignAd, Ltd.’s S-Corporation 

status.73 The jury found that Wes, Jr. breached his fiduciary duties to SignAd, Ltd. 

in self-dealing transactions with ProIce which caused a loss of $750 for the fair 

market value of services provided to ProIce in the past, plus $300 per month for the 

value of services that, in reasonable probability, will be provided to ProIce in the 

73 Enriquez concluded that, in her opinion, the purported conduct did not comport with 

SignAd, Ltd.’s governing documents and could potentially put SignAd, Ltd.’s SCorporation status “at risk,” which might present a tax problem for SignAd, Ltd. 

sometime in the future. The Company Appellants argue that any risk to SignAd, 

Ltd.’s S-Corporation status was only a “theoretical possibility” because the Internal 

Revenue Service had not made any inquiries and no penalties had been assessed or 

paid. 
150

future.74 The jury also found that Wes, Jr., Lee, and Stacey breached their fiduciary

duties to SignAd GP, LLC, causing a loss of $461,193 for “lack of internal controls

regarding fringe benefits,” and $40,000 for selling company vehicles for less than 

fair market value.75 And the jury found that SignAd GP, LLC breached its fiduciary 

duties to SignAd, Ltd. by causing SignAd, Ltd. to pay $375,000 in non-businessrelated legal fees for Wes, Jr., Lee, Mark, and Stacey. The jury further found that 

Wes, Jr., Lee, Stacey, and Mark knowingly participated in SignAd GP, LLC’s breach 

of fiduciary duty and assigned a percentage of responsibility to each.76 

Even if wrongful and detrimental to Lisa, we cannot, on the record before us, 

conclude that the alleged actions “created a serious risk of harm” to the entities or 

were “severe and create[d] exigent circumstances” for the Company Appellants as 

to constitute oppression. See Ritchie, 443 S.W.3d at 867, 870–71 (defining what 

constitutes oppression and further holding that to qualify as type of “oppressive” 

conduct that justifies appointment of receiver, purported conduct must “create 

74 As to this claim, we have already held that Wes, Jr. did not owe a fiduciary duty to 

SignAd, Ltd., and we are reversing the jury’s finding on this cause of action.

75 We have already held that Lisa did not have standing to assert such a claim on behalf 

of SignAd GP, LLC, and we are reversing the jury’s finding with respect to such 

derivative claim brought on behalf of SignAd GP, LLC.

76 We are affirming the portion of the Amended Final Judgment rendering judgment 

in favor of Lisa on this derivative cause of action filed on behalf of SignAd, Ltd., 

but we are reversing the portion of the Amended Final Judgment awarding Lisa onesixth of the damages awarded for such claim. 
151

exigent circumstances for the corporation”). While there is some evidence to 

support the alleged conduct on which Lisa relies, the conduct itself does not 

constitute oppression as a matter of law. See id. at 870–71 (defining oppression and

holding that directors’ refusal to meet with minority shareholder’s potential buyers

did not constitute oppression); see also Argo Data Res. Corp., 380 S.W.3d at 265

(stating courts must exercise caution in determining what actions constitute 

oppressive conduct). 

We sustain the Company Appellants’ challenge to the sufficiency of the 

evidence supporting the jury’s affirmative finding of oppression.

E. Injunctive Relief

The Company Appellants argue the trial court abused its discretion by 

awarding injunctive relief to Lisa. They argue there is no evidence of imminent

harm or irreparable injury to Lisa. They also argue the issued injunction (1) grants 

relief Lisa did not request, (2) is not directed against any specific individual or entity, 

and (3) is impermissibly vague or prohibits otherwise lawful conduct. Finally, they 

argue there is no or insufficient evidence supporting the alleged wrongful acts upon 

which the injunctive relief was granted. 

The injunctive relief granted by the trial court is set forth under Section 6 of 

the Amended Final Judgment. The trial court granted the injunctive relief based on 

the jury’s findings that (1) Wes, Jr. breached his fiduciary duty to SignAd, Ltd. based 
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on transactions involving ProIce (Jury Question 15), (2) Wes, Jr., Stacey, Mark, and 

Lee knowingly participated in SignAd GP, LLC’s breach of its fiduciary duty to 

SignAd, Ltd. involving payment of non-business-related legal fees (Jury Questions

24 and 26), (3) Wes, Jr., Stacey, and Lee breached their fiduciary duties to SignAd 

GP, LLC by failing to maintain internal controls on employee fringe benefits and 

selling company vehicles for less than fair market value (Jury Question 30), (4) Lee 

breached his informal fiduciary duty to Lisa (Jury Question 37), (5) nine of the 

Limited Partnerships and two General Partners engaged in oppression (Jury 

Question 47), and (6) the General Partners failed to provide Lisa with certain books 

and records (Jury Questions 8 to 9, 11 to 14). 

As previously discussed, we are reversing the jury’s findings as to claims (1), 

(3), and (5) above. With those holdings in mind, we address the Company 

Appellants’ challenge to the trial court’s issuance of injunctive relief. 

1. Standard of Review and Applicable Law

We review a trial court’s decision to grant or deny a permanent injunction for 

an abuse of discretion. Operation Rescue–Nat’l v. Planned Parenthood of Hous. &

Se. Tex., Inc., 975 S.W.2d 546, 560 (Tex. 1998); Glattly v. Air Starter Components,

Inc., 332 S.W.3d 620, 642 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). A 

trial court abuses its discretion when its decision is arbitrary, unreasonable, or 

without reference to any guiding rules or principles. Downer v. Aquamarine
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Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985); Glattly, 332 S.W.3d at 642. 

A permanent injunction that is not supported by the pleadings or the evidence is an 

abuse of discretion. See Webb v. Glenbrook Owners Ass’n, 298 S.W.3d 374, 391 

(Tex. App.—Dallas 2009, no pet.). There is no abuse of discretion if the trial court 

heard conflicting evidence and evidence appears in the record that reasonably 

supports the trial court’s decision. Glattly, 332 S.W.3d at 642. We may not 

substitute our judgment for that of the trial court. Id. 

To be entitled to a permanent injunction, a party must prove (1) a wrongful 

act, (2) imminent harm, (3) an irreparable injury, and (4) the absence of an adequate 

remedy at law. Cypress Creek EMS v. Dolcefino, 548 S.W.3d 673, 690 (Tex. App.—

Houston [1st Dist.] 2018, pet. denied). To establish a probable, imminent, and 

irreparable injury, proof of an actual threatened injury, as opposed to a speculative 

or conjectural one, is required. Texas Dep’t of Public Safety v. Salazar, 304 S.W.3d

896, 908 (Tex. App.—Austin 2009, no pet.). Fear or apprehension of possible injury 

is insufficient. Id. at 909. The question of whether a probable, imminent, and 

irreparable injury exists to warrant injunctive relief is a legal question for the court. 

See Operation Rescue–Nat’l, 975 S.W.2d at 554. 

“Every order granting an injunction and every restraining order shall set forth 

the reasons for its issuance; shall be specific in terms; shall describe in reasonable 

detail and not by reference to the complaint or other document, the act or acts sought 
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to be restrained.” TEX. R. CIV. P. 683. Thus, an injunction must be as “definite, 

clear, and precise as possible and when practicable it should inform the defendant of 

the acts he is restrained from doing. . .” Computek Comput. & Office Supplies, Inc. 

v. Walton, 156 S.W.3d 217, 220–21 (Tex. App.—Dallas 2005, no pet.). An 

injunction must also be narrowly drawn and “must not be so broad that it would 

enjoin a defendant from acting within its lawful rights”). See TMRJ Holdings, Inc.

v. Inhance Techs., LLC, 540 S.W.3d 202, 212 (Tex. App.—Houston [1st Dist.] 2018, 

no pet.).

2. Sections 6(i)–(iii) — Acting Through Committees

Section 6(i) prohibits “the General Partners, the Limited Partnerships, the 

Individual Defendants, and their agents, servants, employees, representatives, and 

those acting in concert or participation with them, directly or indirectly” (“Enjoined 

Parties”) from “conducting the business of any of the General Partners and Limited 

Partnerships through any committee in derogation of the responsibility of their 

respective Boards of Managers to manage SignAd.” Section 6(ii) of the injunction 

prohibits the same parties from “conducting the business of any of the General 

Partners and Limited Partnerships through any committee without unanimous 

approval of all partners.” And Section 6(iii) prohibits the same parties from 

“conducting the business of any of the General Partners and Limited Partnerships 
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through any committee without keeping accurate records of all actions taken by any 

committee.” 

Without further elaboration and in a single sentence, the Company Appellants 

argue the trial court committed error in granting this injunctive relief because there 

is no evidence that “SignAd (or any individual) was about to conduct SignAd 

business ‘through any committee in derogation of responsibilities of their respective 

Boards’ or ‘without keeping accurate records.’” 

(a) Wes, Jr., Lee, Stacey, and SignAd GP, LLC

The record reflects that SignAd GP, LLC has two committees: a Special 

Litigation Committee and an Executive Committee. In February 2014, Wes, Jr., 

Lee, and Stacey, in their capacity as SignAd GP, LLC’s managers, passed a 

resolution creating a Special Litigation Committee to address Lisa’s lawsuit against 

SignAd, Ltd. and SignAd GP, LLC and they appointed themselves to serve on the 

committee. Lisa voted against the resolution. Among other things, the resolution 

states, “[T]he Board believes that because [Lisa] is suing Company and Partnership, 

she has an irreconcilable conflict of interest with Company and Partnership with 

respect to the matters relating to the Lawsuit.” 

The resolution also amended Section 3.11 of SignAd GP, LLC’s Regulations 

to allow a majority of the board to approve a resolution to create a committee. 

Previously, Section 3.11 required a “unanimous vote of the full Board of Managers” 
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to create a committee. The resolution further provides that “the Special Litigation 

Committee may, but shall not be required to make such reports to the Board with 

respect to its deliberations and recommendations”77 and it indemnifies Wes, Jr., Lee, 

and Stacey “in the manner and to the fullest extent contemplated under the [Texas 

Business Organizations Code” and governing documents of Company and the 

applicable Partnership in effect as of the date of this meeting (collectively, the 

‘Current Documents’) regarding indemnification and advancement of expenses to 

members of the Board against permitted items (as set forth in the Current 

Documents) arising out of the fact the Committee Member is a member of the 

Special Litigation Committee, regardless of whether the Current Documents are 

amended or modified in the future.” 

Lisa’s expert, Enriquez, testified that in addition to relying on an accounts 

payable register, she also relied on the deposition testimony of Mike Phillips 

(SignAd, Ltd.’s controller) in concluding SignAd, Ltd. had used funds improperly 

to pay for the personal legal fees of Wes, Jr., Lee, Stacey, and Mark. According to 

Enriquez, Phillips testified that for fees concerning those individuals in their 

individual capacity, “[SignAd, Ltd.] pays for those expenses because the litigation 

committee had provided Mr. Wes Gilbreath, Jr. the right to essentially make that 

call.” The jury found that SignAd GP, LLC had breached its fiduciary duties to 

77 Lisa continues to serve on SignAd GP, LLC’s Board of Managers.
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SignAd, Ltd. by causing SignAd, Ltd. to pay $375,000 in non-business-related legal 

fees for Wes, Jr., Lee, Stacey, and we are affirming that finding on appeal. 

As concerns the SignAd GP, LLC’s Executive Committee, Wes, Jr., Lee, and 

Brett served on that committee the purpose of which was to “examine real estate 

values and transactions for marketing purposes.” According to the minutes from the 

March 2013 board meeting, the committee had not met since Brett resigned in 2011. 

During the March 2013 meeting, Wes, Jr., Lee, and Stacey, in their capacity as 

SignAd GP, LLC’s managers, voted to appoint Stacey to fill Brett’s former 

position.78 Lisa voted against Stacey’s appointment to the Executive Committee. 

We have not found, and Lisa has not identified, any evidence that Wes, Jr., 

Lee, Stacey, and SignAd GP, LLC acted through the Executive Committee in 

“derogation of the responsibility of their respective Boards of Managers to manage 

SignAd.” Nevertheless, the evidence demonstrates that Wes, Jr., Lee, and Stacey, 

as members of the SignAd GP, LLC Board of Managers and the Special Litigation 

Committee, authorized SignAd, Ltd. to pay for their personal legal fees because the 

Special Litigation Committee had given Wes, Jr. the right to authorize such 

payments. The jury’s finding that SignAd GP, LLC, which can only act through its 

Board of Managers, breached its fiduciary duties to SignAd, Ltd. by causing it to 

pay such non-business-related legal fees demonstrates that Wes, Jr., Lee, and Stacey 

78 Lisa characterizes their actions as reinstating a defunct committee. 
158

operated SignAd GP, LLC’s Special Litigation Committee “in derogation of the 

responsibility of their respective Boards of Managers to manage SignAd.” The trial 

court could have inferred that Wes, Jr., Lee, and Stacey would continue to operate 

the Special Litigation Committee “in derogation of the responsibility of their 

respective Boards of Managers to manage SignAd” in light of the parties’ ongoing 

disputes. Therefore, the trial court did not abuse its discretion by enjoining Wes, Jr., 

Lee, Stacey, and SignAd GP, LLC from engaging in the conduct prohibited by 

Section 6(i).

Although Section 3.11 of SignAd GP, LLC’s Regulations previously required 

a “unanimous vote of the full Board of Managers” to create a committee, Wes, Jr., 

Lee, and Stacey voted in 2014 to amend Section 3.11 to require a vote from only the 

majority of the board to create a committee. Thus, because it is lawful for SignAd 

GP, LLC’s Board of Managers to act “through any committee without unanimous 

approval of all partners” under the regulations, the trial court abused its discretion 

by enjoining Wes, Jr., Lee, Stacey, and SignAd GP, LLC from engaging in the 

conduct prohibited by Section 6(ii). See TMRJ Holdings, Inc., 540 S.W.3d at 212 

(holding injunction must be narrowly drawn and “must not be so broad that it would 

enjoin a defendant from acting within its lawful rights”). 

Unlike Section 6(ii), Section 6(iii) does not prohibit lawful conduct. SignAd 

GP, LLC’s Regulations provide that while committees “shall serve at the pleasure 
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of the Board of Managers, and shall establish [their] own administrative and 

operational rules and procedures,” they “shall be required to keep accurate records 

of all actions taken by [them].” Minutes from the March 2013 board meeting reflect 

that after Wes, Jr., Lee, and Stacey voted to appoint Stacey to the Executive 

Committee over Lisa’s objection, Lisa insisted that the Executive Committee keep 

accurate records of its meetings or be disbanded. Lisa testified she was concerned 

Wes, Jr., Lee, and Stacey would use the committee to “circumvent” her. On 

November 18, 2015, Lisa prepared an addendum to the Limited Partners’ meeting 

minutes in which she expressed her concerns about Wes, Jr., Lee, and Stacey’s 

conduct, including the operation of SignAd GP, LLC’s Executive Committee. 

Among her other grievances, Lisa asserted that “[n]o minutes or minimal minutes 

are kept from [the Executive Committee’s] meetings and no notice is sent out to the 

board informing the board of the meeting dates.” 

Minutes from the Executive Committee’s July 2013 meeting reflect the 

committee discussed “the real property assets to be sold and/or leased” and stated 

“[a] list of potential listings will be prepared for the committee.” The minutes 

indicate the Executive Committee would evaluate whether to sell or lease some of 

SignAd GP, LLC’s real property assets. Despite this anticipated action, the record 

does not contain minutes for any subsequent committee meeting or reflect any 

subsequent action taken by the Executive Committee. We further note that while 
160

Wes, Jr., Lee, and Stacey established the Special Litigation Committee in February 

2014, and conducted business through the committee, including authorizing Wes, Jr. 

to use SignAd, Ltd.’s funds to pay non-business-related legal fees, the record does 

not contain any meeting minutes for the committee. This is some evidence from 

which the trial court reasonably could have inferred that Wes, Jr., Lee, Stacey, and 

SignAd GP, LLC had conducted business through a committee in the past “without 

keeping accurate records of all actions taken by any committee” and they would 

continue to do so in the future unless enjoined. See Schmidt v. Richardson, 420 

S.W.3d 442, 447 (Tex. App.—Dallas 2014, no pet.) (stating imminent harm is 

established by showing that party will engage in activity sought to be enjoined). 

Thus, the trial court did not abuse its discretion by enjoining Wes, Jr., Lee, Stacey, 

and SignAd GP, LLC from “conducting the business of any of the General Partners 

and Limited Partnerships through any committee without keeping accurate records 

of all actions taken by any committee,” as set forth in Section 6(iii).

(b) Remaining Company Appellants

Except for SignAd GP, LLC, there is no evidence that the Board of Managers 

for any of the other Company Appellants conducted business through a committee, 

much less failed to keep accurate records. More importantly, there is no evidence 

from which the trial court could have inferred that any of the other Company 

Appellants will engage in such conduct in the future. We thus conclude there is no 
161

evidence that Lisa will suffer imminent harm if these Company Appellants are not 

enjoined from engaging in the conduct prohibited by Sections 6(i)–(iii). Because 

there is no evidence of imminent harm with respect to the conduct set forth in 

sections 6(i)–(iii) as to SignAd, Ltd., Culcreuch West, LLC, Realty Acquisitions & 

Holdings LLC, Big Leasing, LLC, Ben Nevis West, Ltd., Big Eastex #1, Ltd., Big 

Signs & Leasing #1, Ltd., Big Signs & Leasing #2, Ltd., Big Signs & Leasing #3, 

Ltd., Big Signs & Leasing #4, Ltd., Big Signs & Leasing #5, Ltd., and Big Signs & 

Leasing #6, Ltd., the trial court abused its discretion by awarding Lisa injunctive 

relief as to those Company Appellants. 

3. Section 6(iv) — Books and Records

Section 6(iv) of the Amended Final Judgment prohibits the Enjoined Parties 

from “denying [Lisa] access to the books and records of the General Partners and 

Limited Partnerships as per the operative agreements and under Texas law until such 

time as an equitable buyout of Lisa Horan, Trustee’s interests are bought out and 

fully paid for or she no longer serves on the boards of managers of any entity, 

whichever comes later.”

The jury found that the General Partners—SignAd GP, LLC, Culcreuch West, 

LLC, Realty Acquisitions & Holdings LLC, and Big Leasing, LLC—failed to 

provide Lisa with the books and records she requested in violation of the Limited 

Partnership Agreements and the TBOC. As previously discussed, there is sufficient 
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evidence supporting the jury’s findings. Among other things, the evidence 

demonstrates that Wes, Jr. told Lisa’s lawyer in March 2013 that he would never

allow Lisa to access the books and records, and it was ultimately necessary for Lisa 

to file suit to obtain the documents and information to which she was entitled, and 

even then, she did not receive everything she requested for another three years. The 

trial court could reasonably infer from this evidence that SignAd GP, LLC, 

Culcreuch West, LLC, Realty Acquisitions & Holdings LLC, and Big Leasing, LLC 

would continue to withhold the companies’ books and records from Lisa in the 

future. We thus hold the trial court did not abuse its discretion by enjoining SignAd 

GP, LLC, Culcreuch West, LLC, Realty Acquisitions & Holdings LLC, Big Leasing, 

LLC, and their managers, Wes, Jr., Lee, and Stacey, from engaging in the conduct 

prohibited by Section 6(iv).

Lisa did not assert a similar cause of action against any of the Limited 

Partnerships and there are no findings that any of the partnerships breached an 

agreement or violated any statutory provisions relating to books and records. A party 

is not entitled to injunctive relief unless liability is established under a cause of 

action. See Etan Indus., Inc. v. Lehmann, 359 S.W.3d 620, 625 n.2 (Tex. 2011); see 

also Valenzuela v. Aquino, 853 S.W.2d 512, 514 n.2 (Tex. 1993) (“No final relief, 

including a permanent injunction, can be granted in a contested case without a 

determination of legal liability. . . .”); Cooper v. Litton Loan Servicing, LP, 325 
163

S.W.3d 766, 769 (Tex. App.—Dallas 2010, pet. denied) (noting that “[a] permanent 

injunction is not a cause of action but an equitable remedy,” and that “[t]o obtain an 

injunction a party must first assert a cause of action”). Because liability for the 

Limited Partnerships was not established, the trial court abused its discretion by 

enjoining the Limited Partnerships from denying Lisa access to the books and 

records as set forth in Section 6(iv). 

4. Section 6(v) — Cash Reserves

Section 6(v) prohibits the Enjoined Parties from “retaining as cash reserves 

any more than 12% of each of the Limited Partnerships’ net cash whether from 

operations or from the proceeds of capital transactions, without unanimous approval 

of the Board of Managers of each General Partner.” 

The Limited Partnership Agreements allow the General Partner for each of 

the Limited Partnerships to retain cash for cash reserves at its discretion and do not 

cap the amount that may be retained. SignAd, Ltd.’s Partnership Agreement states, 

“Net cash of the Partnership, if any, whether from operations or from the proceeds 

of capital transactions, shall from time to time, but not less often than once annually, 

be distributed to the Partners in the ratio of their Partnership Interests; provided, 

however, the Partnership may, as determined by the General Partner in its sole 

discretion, retain cash for cash reserves to insure the availability of funds for 

conducting operations of the Partnership and for paying any and all appropriate 
164

expenses and obligations of the Partnership.” The regulations for the other Limited 

Partnerships similarly provide in part that their respective General Partner “shall 

determine when, if ever, cash distributions shall be made to the partners, pursuant to 

the provisions and the tenor of this Agreement.” 

None of the governing documents require “unanimous approval of the Board 

of Managers of each General Partner.” Thus, under the governing documents, it is 

permitted for the Enjoined Parties to retain “cash reserves [of] more than 12% of 

each of the Limited Partnerships’ net cash whether from operations or from the 

proceeds of capital transactions, without unanimous approval of the Board of 

Managers of each General Partner.” The trial court thus abused its discretion by 

awarding the injunctive relief set forth in Section 6(v). See TMRJ Holdings, Inc., 

540 S.W.3d at 212 (holding injunction must be narrowly drawn and “must not be so 

broad that it would enjoin a defendant from acting within its lawful rights”). 

5. Section 6(vi) — Modifying Governing Documents

Section 6(vi) of the injunction prohibits the Enjoined Parties from “attempting 

to further modify any of the governing documents of the Limited Partnership 

Defendants.” SignAd, Ltd.’s Partnership Agreement, however, expressly allows its 

General Partner, SignAd GP, LLC to “amend or otherwise change” the partnership 

agreement, as long as more than 51% of the partners agree. The Limited Partnership 

Agreements for Ben Nevis West, Ltd., Big Eastex #1, Ltd., Big Signs & Leasing 
165

##1–6, Ltd. also allow their respective General Partners to modify the partnership’s 

governing document. Thus, it is lawful to “amend or otherwise change” the Limited 

Partnership Agreements. See id. (holding injunction must be narrowly drawn and 

“must not be so broad that it would enjoin a defendant from acting within its lawful 

rights”). The trial court thus abused its discretion by awarding the injunctive relief 

set forth in Section 6(vi).

6. Section 6(vii) — “Devaluing” Assets

Section 6(vii) prohibits the Enjoined Parties from “devaluing the General 

Partners’ and Limited Partnership Defendants’ assets or interests.” The Company 

Appellants argue the permanent injunction is impermissibly vague because it does 

not define the term “devaluing,” provide a metric by which values should be 

determined, or otherwise specify the acts that would violate this particular 

injunction. 

An injunction must be as “definite, clear, and precise as possible and when 

practicable it should inform the defendant of the acts he is restrained from 

doing. . . .” Computek Comput. & Office Supplies, 156 S.W.3d at 220–21. The term 

“devaluing” does not provide enough information to the Enjoined Parties to allow 

them, or this Court, to determine what conduct is prohibited. We further note that 

this injunctive relief is based in part on the jury’s findings of breaches of fiduciary 

duties by Wes, Jr., Lee, Stacey, and SignAd GP, LLC and the jury’s finding of 
166

oppression. We are reversing the Amended Final Judgment awarding judgment in 

Lisa’s favor on two of the causes of action for breach of fiduciary duty and the 

finding of oppression.

We thus remand this portion of the injunction to the trial court to (1) determine 

whether the requested relief is supported in light of our opinion, and if so, (2) to 

clarify with “definite, clear, and precise” language the specific acts and persons or 

entities to be enjoined under Section 6(vii). 

7. Section 6(viii) — Payment of Personal Expenses

Section 6(viii) prohibits the Enjoined Parties from “using monies or assets 

from or generated by (or revenues generated by) any of the General Partners or 

Limited Partnership Defendants to pay personal expenses of or to unjustly enrich 

Wes, Jr., [Stacey] or Lee, including payment of individual legal fees not related to 

their agency for SignAd, Ltd. or its related entities.” The Company Appellants argue 

that Section 6(viii) awards Lisa relief that she did not expressly plead for, namely, 

“including payment of individual legal fees not related to their agency for SignAd, 

Ltd. or its related entities.”

“Persons seeking a permanent injunction must be specific in pleading the 

relief sought, and courts are without authority to grant relief beyond that so specified 

in the pleadings.” Livingston v. Livingston, 537 S.W.3d 578, 588 (Tex. App.—

Houston [1st Dist.] 2017, no pet.). “A pleading is sufficient if it gives the opposing 
167

party adequate information to enable him to prepare a defense.” Id. The “payment 

of individual legal fees not related to their agency for SignAd, Ltd. or its related 

entities” is one example of a personal expense the Enjoined Parties are prohibited 

from paying under this section of the injunction, and the improper payment of 

personal legal fees for Wes, Jr., Lee, Mark, and Stacey unrelated to their roles as 

managers of SignAd GP, LLC, is set forth in Lisa’s pleadings and forms the basis of 

one of her derivative claims. Lisa’s pleadings are sufficient to have put the parties 

on notice that she would be entitled to have such conduct enjoined. See id.; see also 

Mendleski v. Silvertooth, 798 S.W.2d 30, 33 (Tex. App.—Corpus Christi 1990, no 

writ) (holding trial court did not abuse its discretion in granting injunctive relief 

because “Appellant’s petition as a whole did, however, allege facts which would 

permit an injunction against advertising the sale of prohibited food items.”).

The Company Appellants further contend that the trial court abused its 

discretion by awarding Lisa the relief set forth in Section 6(viii) because there is no 

evidence of imminent harm. As previously discussed, there is evidence that SignAd 

GP, LLC breached its fiduciary duty to SignAd, Ltd. by causing SignAd, Ltd. to pay 

$375,000 in non-business-related legal fees for Wes, Jr., Lee, Mark, and Stacey. The 

trial court reasonably could have inferred that the Special Litigation Committee 

would continue to authorize SignAd, Ltd. to pay personal legal fees for Wes, Jr., 

Lee, Mark, and Stacey given the parties’ ongoing disputes. Thus, there is some 
168

evidence of imminent harm with respect to Wes, Jr., Lee, Stacey, SignAd GP, LLC, 

and SignAd, Ltd.

Except for SignAd, Ltd. and its General Partner, SignAd GP, LLC, there is no 

evidence that other limited partnerships ever used “monies or assets from or 

generated by (or revenues generated by) any of the General Partners or Limited 

Partnership Defendants to pay personal expenses of or to unjustly enrich Wes[,] Jr., 

[Stacey] or Lee,” or that any of their General Partners authorized them to do so. 

There is also no evidence from which the trial court could have inferred that those 

entities will engage in such conduct in the future. Thus, the trial court abused its 

discretion by awarding Lisa injunctive relief against all parties other than SignAd, 

Ltd., SignAd GP, LLC, Wes, Jr., Lee, and Stacey under Section 6(viii). See Schmidt, 

420 S.W.3d at 447 (stating imminent harm is established by showing that party will 

engage in activity sought to be enjoined). 

8. Section 6(ix) — Separate Business Endeavors 

Section 6(ix) prohibits the Enjoined Parties from “using any personal 

property, personnel, or inventory of the SignAd entities in connection with separate 

business endeavors of [Wes, Jr.], [Stacey], and/or [Lee] without full disclosure and 

only after a unanimous vote by the partners that the transaction is fair to SignAd, 

Ltd. or any of the other General Partners and/or Limited Partnerships.” This 

injunctive relief is based on the jury’s finding that Wes, Jr. failed to “comply with 
169

his fiduciary duty to SignAd, Ltd. with regard to the transactions with ProIce 

Solutions, LLC” and the jury’s finding of oppression.79 We are reversing the trial 

court’s Amended Final Judgment awarding judgment in Lisa’s favor on this breach 

of fiduciary duty cause of action and the finding of oppression. A party is not entitled 

to injunctive relief unless liability is established under a cause of action. See Etan 

Indus., Inc., 359 S.W.3d at 625 n.2; see also Valenzuela, 853 S.W.2d at 514 n.2 (“No 

final relief, including a permanent injunction, can be granted in a contested case 

without a determination of legal liability. . . .”); Cooper, 325 S.W.3d at 769 (noting 

that “[a] permanent injunction is not a cause of action but an equitable remedy,” and 

that “[t]o obtain an injunction a party must first assert a cause of action”). 

Because there is no finding of liability with respect to a cause of action that 

would support this injunctive relief, the trial court abused its discretion in awarding 

79 We note that the trial court also granted injunctive relief based on the jury’s findings 

that (1) Wes, Jr., Stacey, Mark, and Lee knowingly participated in SignAd GP, 

LLC’s breach of its fiduciary duty to SignAd, Ltd. by causing SignAd, Ltd. to pay 

non-business-related legal fees (Jury Question 24), (2) Wes, Jr., Stacey, and Lee 

breached their fiduciary duties to SignAd GP, LLC by failing to maintain internal 

controls on employee fringe benefits, and selling company vehicles for less than fair 

market value (Jury Question 30), (3) Lee breached his fiduciary duty to Lisa (Jury 

Question 37), and (4) the General Partners failed to provide Lisa with certain books 

and records (Jury Questions 8–9, 11–14). Unlike Wes, Jr., there is no evidence Lee 

or Stacey used SignAd Outdoor’s personal property, personnel, or inventory in 

connection with any separate business endeavors and the jury’s findings with 

respect to Lisa’s books and records causes of action are unrelated to the injunctive 

relief awarded under Section 6(ix).
170

the injunctive relief under 6(ix). See Etan Indus., Inc, 359 S.W.3d at 625 n.2; see 

also Valenzuela, 853 S.W.2d at 514 n.2.

9. Section 6(x) — Distributions

Section 6(x) prohibits the Enjoined Parties from “withholding from Lisa 

Horan, Trustee and [sic] distributions of earnings until such time as the buyout of 

her interest in the SignAd entities is completed and she has received full payment of 

fair value for her interest.” We have not found, and Lisa has not directed us to, any 

evidence that any of the Company Appellants have withheld any distributions of 

earnings from her in the past or would continue to do so in the future unless 

prohibited. Because there is no evidence of imminent harm with respect to the 

conduct prohibited in Section 6(x), the trial court abused its discretion by awarding 

Lisa injunctive relief on this basis. See Schmidt, 420 S.W.3d at 447 (stating 

imminent harm is established by showing that party will engage in activity sought 

to be enjoined).

80

10. Section 6(xi) — Payment of Attorney’s Fees and Damages

Section 6(xi) prohibits the Enjoined Parties from “paying any attorney’s fees 

or damages of any of the Individual Defendants from income or accounts belonging 

to any of the General Partners or Limited Partnerships that constitute any part of the 

SignAd enterprise.” Although Lisa did not expressly plead for an injunction 

80 We further note that Lisa did not plead for such relief.
171

precluding payment of attorney’s fees for the individuals, Lisa pleaded that SignAd, 

Ltd. had improperly paid personal legal fees for Wes, Jr., Lee, Mark, and Stacey for 

non-business matters. This is sufficient to have put the parties on notice that she 

would be entitled to have such conduct enjoined. See Livingston, 537 S.W.3d at 588 

(“A pleading is sufficient if it gives the opposing party adequate information to 

enable him to prepare a defense.”); see also Mendleski, 798 S.W.2d at 33 (holding 

trial court did not abuse its discretion in granting injunctive relief that was not 

specifically requested because plaintiff’s allegations and evidence otherwise 

supported propriety of relief). 

We hold, however, that Section 6(xi) is overly broad because it prohibits 

payment of all attorney’s fees and damages for Wes, Jr., Lee, and Stacey, even 

though they are entitled to indemnity under certain circumstances, such as when 

acting in their official capacities. See TMRJ Holdings, Inc., 540 S.W.3d at 212 

(holding injunction must be narrowly drawn and “must not be so broad that it would 

enjoin a defendant from acting within its lawful rights”). We remand this portion of 

the injunction with instructions to the trial court to modify the scope of the injunction 

under Section 6(xi) as to Wes, Jr., Lee, Stacey, SignAd, Ltd., and SignAd GP, LLC 

consistent with this opinion. 

There is also no evidence that any Company Appellant other than SignAd, 

Ltd., through the SignAd GP, LLC Board of Managers and Special Litigation 
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Committee, ever paid attorney’s fees or damages for any of the Individual 

Appellants or from which the trial court could have inferred that any of the other 

Company Appellants will engage in such conduct in the future. Because there is no 

evidence of imminent harm with respect to the conduct set forth in section 6(xi) for 

any parties other than SignAd GP, LLC, SignAd, Ltd., Wes, Jr., Lee, and Stacey the 

trial court abused its discretion by awarding Lisa injunctive relief against all other 

parties. See Schmidt, 420 S.W.3d at 447 (stating imminent harm is established by 

showing that party will engage in activity sought to be enjoined).

81

11. Other Arguments

The Company Appellants argue that the permanent injunction is 

impermissibly vague because it enjoins the actions of the “General Partners, the 

Limited Partnerships, the Individual Defendants, and their agents, etc.” but does not 

81 The Company Appellants contend there is no basis for enjoining SignAd GP, LLC’s 

and Culcreuch West, LLC’s activities because Lisa does not have any ownership 

interest in either entity. While that may be true, the argument is inconsequential. 

SignAd GP, LLC and Culcreuch West, LLC are the General Partners of two 

businesses that Lisa does have an ownership interest in—SignAd, Ltd. and Ben

Nevis West, Ltd.—and SignAd GP, LLC and Culcreuch West, LLC are responsible 

for conducting the business of their respective limited partnership entities. 

The Company Appellants also argue there is no evidence to support the trial court’s 

findings that Wes, Jr., Stacey, and Lee breached their fiduciary duties to SignAd, 

Ltd., that Lee breached his fiduciary duty Lisa, or that the Company Appellants 

engaged in oppressive conduct or violated Lisa’s rights to access the companies’ 

books and records. As previously discussed, there is evidence supporting some of 

these findings and we have reversed some of the causes of action upon which the 

injunctive relief is based. We have addressed the impact of these issues with respect 

to the awards of specific injunctive relief.
173

identify those parties by name. The Amended Final Judgment, however, identifies 

the Company Appellants subject to judgment, including the injunction, and it 

identifies them as either a general partner or a limited partnership. This is specific 

enough to identify the companies subject to the injunction. We further note that 

although the Amended Final Judgment states that “The Court incorporates the 

Definitions attached as Exhibit A to this judgment as if fully set forth herein,” no 

such document is attached to the final judgment. The Exhibit A, which is attached 

to the original judgment, expressly defines the terms “General Partners,” “Limited 

Partnerships,” and “Individual Defendants.” Because we are already remanding the 

cause to the trial court to modify the injunction, we further instruct the trial court to 

attach Exhibit A to the modified permanent injunction. The trial court may also 

modify Exhibit A as necessary to effectuate the purpose of the injunction consistent 

with our opinion.

The Company Appellants also argue that the injunction refers generally to 

“SignAd,” “the SignAd entities,” and the “SignAd enterprise,” but those terms are 

never defined. We agree that these statements are impermissibly vague, and we 

instruct the trial court to define or otherwise clarify the meaning of these terms, or 

delete or modify these terms, if appropriate, given the other modifications to be made 

to the permanent injunction on remand as identified in this opinion.
174

12. Conclusion

We hold that portions of the permanent injunction granted in the Amended 

Final Judgment are vague, overly broad, and prohibit lawful conduct. Lisa is also 

not entitled to other relief because there is no evidence of imminent harm or an 

absence of a finding of liability on an underlying cause of action that would support 

such relief. Finally, we are reversing two of the causes of action for breach of 

fiduciary duty and the finding of oppression that support the trial court’s injunctive 

relief. We thus reverse the permanent injunction in part and remand the cause to the 

trial court with instructions to modify the injunction order consistent with this 

opinion.

F. Appointment of a Receiver

The trial court appointed a rehabilitative receiver “to oversee the equitable 

buyout of Lisa Horan, Trustee’s interests in the Limited Partnerships and General 

Partners in which she holds an interest” finding that such appointment “would avoid 

further damage to Lisa . . . and conserve the property and business of the entities.” 

The Company Appellants argue that the trial court’s appointment of a rehabilitative 

receiver under Section 11.404 of the TBOC was improper because (1) no evidence 

supports the requirements of Section 11.404(a) or (b), (2) no evidence supports nonstatutory grounds for appointment of a receiver, such as the finding that Lee 

breached a fiduciary duty to Lisa, and (3) the scope of the appointment is overbroad.
175

The trial court appointed the rehabilitative receiver based on the jury’s finding 

that (1) Lee breached his fiduciary duty to Lisa (Jury Question 37), and (2) nine of 

the Limited Partnerships and two General Partners engaged in oppression (Jury 

Question 47). We are reversing the jury’s finding of oppression. With that holding 

in mind, we address the Company Appellants’ challenge to the trial court’s 

appointment of a receiver. 

1. Applicable Law

A receiver is an “officer of the court, the medium through which the court 

acts. He is a disinterested party, the representative and protector of the interests of 

all persons, including creditors, shareholders and others, in the property 

in receivership.” Akin, Gump, Strauss, Hauer and Feld, L.L.P. v. E-Court, Inc., No. 

03-02-00714-CV, 2003 WL 21025030, at *4 (Tex. App.—Austin May 8, 2003, no 

pet.) (mem. op.) (quoting Security Trust Co. of Austin v. Lipscomb Cnty., 180 S.W.2d 

151, 158 (Tex. 1944)). When a court appoints a receiver, the court has determined 

that property should no longer be under the control of the parties but instead within 

the custody of the court. Huffmeyer v. Mann, 49 S.W.3d 554, 560 (Tex. App.—

Corpus Christi 2001, no pet.) (quoting Riesner v. Gulf, C. & S.F. Ry. Co., 36 S.W. 

53, 54 (Tex. 1896)). The appointment of a receiver is thus a “harsh, drastic, and 

extraordinary remedy, to be used cautiously.” Benefield v. State, 266 S.W.3d 25, 31 

(Tex. App.—Houston [1st Dist.] 2008, no pet.). Whether authorized by a particular 
176

statute or by equity, a receiver may not be appointed if another lesser remedy exists, 

either legal or equitable. Id.

Subsection 11.404(a)(1)(c)–(d) of the TBOC provides that “[s]ubject to 

Subsection (b), a court that has jurisdiction over the property and business of a 

domestic entity under Section 11.402(b) may appoint a receiver for the entity’s 

property and business if: (1) in an action by an owner or member of the domestic 

entity, it is established that”

(A) the entity is insolvent or in imminent danger of insolvency; 

(B) the governing persons of the entity are deadlocked in the management 

of the entity’s affairs, the owners or members of the entity are unable 

to break the deadlock, and irreparable injury to the entity is being 

suffered or is threatened because of the deadlock; 

(C) the actions of the governing persons of the entity are illegal, oppressive, 

or fraudulent; [or] 

(D) the property of the entity is being misapplied or wasted.

TEX. BUS. ORGS. CODE § 11.404(a)(1)(c)–(d). Section 11.404(b) further states a 

court may appoint a receiver under Subsection (a) only if:

(1) circumstances exist that are considered by the court to necessitate 

the appointment of a receiver to conserve the property and 

business of the domestic entity and avoid damage to interested 

parties;

(2) all other requirements of law are complied with; and

(3) the court determines that all other available legal and equitable 

remedies, including the appointment of a receiver for specific 
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property of the domestic entity under Section 11.402(a), are 

inadequate.

Id. § 11.404(b).

2. Analysis

The Company Appellants argue the trial court erred in appointing a 

rehabilitative receiver based in part upon the jury’s finding of oppression because 

there is no evidence supporting the finding. Lisa counters that the appointment of 

the rehabilitative receiver was not erroneous because the relevant statute allows the 

trial court to appoint a receiver if there is a finding of oppression or the property of 

the entity is being misapplied or wasted. Lisa argues the jury found that “SignAd’s 

governing persons . . . engaged in oppressive conduct” and further that several 

breaches of fiduciary duty occurred involving the waste or misapplication of 

company property. 

Lisa’s arguments do not support the appointment of a receiver. While the jury 

found that the governing persons of the entities identified in Jury Question 47 

engaged in oppressive conduct, we have held there is no evidence to support the 

jury’s finding of oppression. This is particularly significant because the only remedy 

for oppression is the appointment of a rehabilitative receiver. See Ritchie, 443 

S.W.3d at 877. 

Lisa’s arguments regarding waste or misapplication of company property to 

support the appointment of a receiver also fail. Lisa contends waste is supported by 
178

the jury’s finding that (1) Wes, Jr. misused billboard space for his side busines ProIce 

(Jury Question 15), (2) SignAd GP, LLC misused SignAd, Ltd.’s funds to pay for 

personal legal fees (Jury Question 24), and (3) SignAd GP, LLC breached its 

fiduciary duty to SignAd, Ltd. because it failed to maintain internal controls on 

fringe benefits and sold company vehicles below market value (Jury Question 30). 

We are reversing the jury’s findings as to claims (1) and (3) above. But more 

importantly, the trial court’s appointment of a receiver was not based on any of the 

three causes of action listed above. 

The trial court appointed a receiver based on only two grounds (1) “the 

governing persons of the General Partners and the Limited Partnerships engaged in 

oppressive conduct,” and (2) Lee breached his informal fiduciary duty to Lisa. 

Because we are reversing the finding of oppression, the only remaining basis to 

support the trial court’s appointment of a rehabilitative receiver is the jury’s finding 

that Lee breached his informal fiduciary duty to Lisa (Jury Question 37). Lisa has 

not cited, nor have we found, any authority that such a breach of fiduciary duty 

authorizes a trial court, without more, to appoint a rehabilitative receiver, “one of 

the harshest remedies known to the law.” Jones v. Strayhorn, 321 S.W.2d 290, 294 

(Tex. 1959); see also Benefield, 266 S.W.3d at 31 (stating appointment of a receiver

is “harsh, drastic, and extraordinary remedy, to be used cautiously” and receiver may 

not be appointed if another lesser remedy exists, either legal or equitable). Unlike 
179

oppression, there are several remedies available for a breach of fiduciary duty claim. 

Indeed, Lisa already obtained injunctive relief based in part on Lee’s breach of 

fiduciary duty.82 

Because we are reversing the finding of oppression and Lee’s breach of 

fiduciary duty does not support the trial court’s appointment of a receiver under 

Section 11.404, we reverse the trial court’s appointment of a rehabilitative receiver.

G. Expulsion

The Company Appellants asserted claims against Lisa for her expulsion from 

the Limited Partnerships under Section 152.501(b)(5)(C) of the TBOC. Section 

152.501(b)(5)(C) states that a partner may be expelled from a partnership by judicial 

decree “on application by the partnership or another partner, if the judicial decree 

determines that the partner” has “engaged in conduct relating to the partnership 

business that made it not reasonably practicable to carry on the business in 

partnership with that partner.” TEX. BUS. ORGS. CODE § 152.501(b)(5)(C).

At trial, the Company Appellants argued that Lisa should be expelled from 

the Limited Partnerships based primarily on her repeated disruptive and hostile 

conduct at board meetings and in interactions with other board members and the 

Company Appellants’ management teams. At the Company Appellants’ request, 

82 Lisa did not seek damages in connection with Lee’s breach of fiduciary duty. 
180

and without objection from Lisa, the trial court submitted a question to the jury (Jury 

Question 46) on the standard articulated in Section 152.501(b)(5)(C).

In response to Jury Question 46, the jury found that Lisa engaged in conduct 

relating to the business of each of the nine Limited Partnerships that made it not 

reasonably practicable to carry on the business in partnership with her.83 The trial 

court, however, did not address this finding in the Amended Final Judgment or grant 

the Company Appellants’ request for a decree of expulsion. The Company 

Appellants argue the trial court was not at liberty to disregard the jury’s finding to 

Jury Question 46 and erred by failing to decree that Lisa should be expelled from 

the Limited Partnerships. 

Lisa argues that Jury Question 46 is immaterial because Section 152.501 of 

the TBOC does not apply to limited partnerships, but only general partnerships. We 

disagree. While Chapter 153 governs limited partnerships and does not include a 

provision similar to Section 152.501, Section 153.003(a) provides that issues not 

addressed in Chapter 153 are controlled by “the provisions of Chapter 152 governing 

partnerships that are not limited partnerships.” TEX. BUS. ORGS.CODE § 153.003(a). 

At least one court has determined that Section 152.501 applies to a limited 

partnership. See Faulkner v. Kornman, No. 10-301, 2012 WL 1066736, at *4 

83 Separately, under Jury Question 44, the jury found that Wes, Jr., Lee, Stacey, 

SignAd GP, LLC and the other General Partners had not engaged in such conduct. 
181

(Bankr. S.D. Tex. Mar. 28, 2012) (applying Section 152.501(b)(6)(B) to limited 

partnership because “there is not a provision [of Chapter 153] which deals with 

withdrawal of a limited partner as a matter of law”).

Lisa argues that the jury’s finding in response to Jury Question 46 that she 

satisfied the criteria for expulsion was immaterial because the jury found multiple 

grounds supporting the appointment of a receiver and an equitable buyout, including 

oppression and breach of a fiduciary duty to Lisa. Lisa further contends that these 

separate jury findings support the receivership and equitable buyout ordered by the 

court, and the court could not simultaneously order an equitable buyout and 

expulsion. Lisa argues the court was not “required” to grant expulsion because that 

relief is equitable in nature and the court has discretion to decide upon the proper 

remedy in this case.

A question is immaterial when it should not have been submitted to the jury, 

or when it was properly submitted but has been rendered immaterial by other 

findings. Spencer, 876 S.W.2d at 157. In other words, “[a] jury question is 

considered immaterial when its answer can be found elsewhere in the verdict or 

when its answer cannot alter the effect of the verdict.” City of Brownsville v.

Alvarado, 897 S.W.2d 750, 752 (Tex. 1995). A trial court is not at liberty to 

disregard a jury’s answers to material issues. See Harris Cnty. v. Garza, 971 S.W.2d 

733, 735 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (“The judge may not 
182

disregard answers to material issues, set aside findings and make contrary ones, hear 

additional evidence and make supplementary findings on material issues, or select

from conflicting findings those which he approves.”).

Given that the only remedy for oppression is the appointment of a 

rehabilitative receiver, the jury’s finding of oppression in response to Jury Question 

47 arguably rendered the jury’s answer to Jury Question 46 immaterial. See City of

Brownsville, 897 S.W.2d at 752 (holding jury question immaterial when its answer 

cannot alter verdict’s effect); see generally Ritchie, 443 S.W.3d at 877 (stating only 

remedy for oppression is appointment of rehabilitative receiver). But even if the 

jury’s finding that Lisa satisfied the criteria for expulsion under Jury Question 46 

was rendered immaterial by the oppression finding, we are reversing the jury’s 

finding of oppression and the trial court’s corresponding appointment of a 

rehabilitative receiver. Under the circumstances, we believe it appropriate to remand 

the cause to the trial court to consider the jury’s response to Jury Question 46 and 

the Company Appellants’ request for a decree of expulsion under Section 

152.501(b)(5)(C). 

H. Attorney’s Fees and Expenses

The Company Appellants argue the trial court abused its discretion by 

awarding Lisa $2,688,928.26 in attorney’s fees and expenses because there are no 

legal or factual grounds to support the award. They also argue the trial court abused 
183

its discretion in awarding attorney’s fees against the General Partners “jointly and 

severally,” because Lisa was required to segregate the fees owed by the different 

parties. The Company Appellants further contend the trial court abused its discretion 

by failing to award them their attorney’s fees pursuant to the UDJA and Sections 

153.404(e) and Section 101.461(b)(2) of the TBOC.

1. Amended Final Judgment: Attorney’s and Expenses

Section 9(a) of the Amended Final Judgment states:

(a) Derivative Claims: The Court determines that Plaintiff has met her 

burden to segregate fees pertaining to her derivative claims and that it 

is equitable and just that the sum of $1,162,318.49 as attorneys’ fees 

and expenses in the amount of $682,028.43 ([$]598,205.86 in auditor’s 

fees from Briggs & Veselka; $60,484.27 in fees from The Aguilar 

Group; $4,638.30 from Cornerstone Documents; and $18,700.00 for 

title searches) be awarded to Plaintiff under Tex. Bus. Com. Code [§] 

153.405, and that it is equitable and just that these be paid by SignAd, 

Ltd. The court finds that the proceedings resulted in substantial benefit 

to SignAd, Ltd. under Tex. Bus. Org. Code § 101.461(b)(1) and that 

Plaintiff Lisa Horan, trustee’s derivative action was successful in whole 

or in part, under Tex. Bus. Org. Code § 153.405.

(b) Books and Records: The Court finds that Lisa Gilbreath Horan has 

met her burden to segregate fees related to her claim under Tex. Bus. 

Org. Code §§ 3.151 and 3.152 and awards to Lisa Gilbreath Horan the 

amount of $162,755,00 in reasonable and necessary attorneys’ fees to 

be paid by the General Partners, jointly and severally.

(c) Non-segregable Fees and Expenses: The Court determines that the 

legal services provided to Plaintiff by counsel at trial advanced both 

recoverable and non-recoverable claims and can be considered so 

intertwined as to not require segregation and were reasonable and 

necessary. The Court also finds that certain expenses advanced both 

actions for which attorneys’ fees were recoverable and those that were 

not. The Court also finds that the paralegal services provided by third 
184

party contractor USLegal at the trial of this cause were of the type of 

work that would have necessarily have had to be performed by an 

attorney, performed under the supervision of an attorney, and were 

reasonable and necessary. The Court, therefore, orders that Plaintiff 

recover[] additional fees and expenses against the General Partners and 

SignAd, Ltd., jointly and severally, related to the pre-trial and trial of 

this matter as follow as:

Crain Caton & James $147,722.00

The Cain Law Firm a/k/a Cain & Colabianci [$]144,743.25

USLegal [$]28,780.00

Total Non-segregable Fees $321,242.25

Total Non-segregable Expenses $115,583.09

. . . .

(f) Summary of Fees and Expenses:

Fees after segregation related to derivative claims $1,162,318.49

Expenses related to derivative claims [$]682,028.43

Fees related to books and records [$]162,755.00

Non-segregable attorneys’ fees [$]321,243.25

Non-segregable expenses and costs of court [$]115,583.09

Post-Trial $35,000.00

Appellate $210,000.00

2. Award of Attorney’s Fees and Expenses to Lisa: TBOC

§§ 101.461(b)(1) and 153.405

The trial court awarded Lisa $1,844,346.92 in attorney’s fees and expenses in 
185

connection with her three derivative claims to be paid by SignAd, Ltd. pursuant to 

Sections 101.461(b)(1) and 153.405 of the TBOC. See TEX. BUS. ORGS. CODE §§ 

101.461(b)(1), 153.405. The Company Appellants argue the trial court abused its 

discretion because the plain language of Section 153.405 authorizes an award of fees 

and expenses to the derivative plaintiff out of any proceeds recovered by the 

plaintiff, and not as a separate award of fees and expenses in addition to the damages 

awarded. The Company Appellants also argue that Lisa cannot recover her fees and 

expenses under Section 101.461(b)(1) because this section applies only to derivative 

claims brought on behalf of a limited liability company. See id. § 101.461(b)(1) 

(stating “[o]n termination of a derivative proceeding, the court may order . . . the 

limited liability company to pay expenses the plaintiff incurred in the proceeding if 

the court finds the proceeding has resulted in a substantial benefit to the limited 

liability company”). “Whether a party is entitled to attorney’s fees is a question of 

law.” Sunchase IV Homeowners Ass’n, Inc. v. Atkinson, 643 S.W.3d 420, 422 (Tex. 

2022).

The jury found for Lisa on three derivative claims: (1) one filed on behalf of 

SignAd GP, LLC against Wes, Jr., Lee, and Stacey (Jury Question 30), (2) one filed 

on behalf of SignAd, Ltd. against Wes, Jr. involving ProIce (Jury Question 15), and 

(3) one filed on behalf of SignAd, Ltd. against SignAd GP, LLC, Wes, Jr., Lee, 

Stacey, and Mark (Jury Questions 24 and 26) involving the payment of personal
186

legal fees. We are reversing the jury’s finding with respect to derivative claims (1) 

and (2). The only remaining derivative claim is Lisa’s claim filed on behalf of 

SignAd, Ltd. for payment of personal legal fees. We thus reverse the portion of the 

judgment awarding Lisa attorney’s fees on derivative claims (1) and (2) above, 

leaving only Lisa’s derivative claim stemming from the improper payment of 

personal legal fees for Wes, Jr, Stacey, Lee, and Mark. (Jury Questions 24 and 26). 

The Company Appellants argue that Lisa cannot recover her fees and 

expenses under Section 101.461(b)(1) for her derivative claim because this section 

applies only to derivative claims brought on behalf of a limited liability company. 

See TEX.BUS. ORGS.CODE § 101.461(b)(1) (stating “[o]n termination of a derivative 

proceeding, the court may order. . . the limited liability company to pay expenses the 

plaintiff incurred in the proceeding if the court finds the proceeding has resulted in 

a substantial benefit to the limited liability company”). We agree that Section 

101.461 applies only to derivative proceedings initiated on behalf of limited liability 

companies and because we are reversing the Amended Final Judgment on the 

derivative claim Lisa asserted on behalf of SignAd GP, LLC, Lisa is not entitled to 

recover her attorney’s fees under Section 101.461(b)(1). Lisa can only recover 

attorney’s fees for her remaining derivative claim under Section 153.405.

The Company Appellants argue the trial court abused its discretion because 

the plain language of Section 153.405, entitled “Expenses of Plaintiff,” authorizes 
187

an award of fees and expenses to the derivative plaintiff out of any proceeds 

recovered by the plaintiff, not as a separate award of fees and expenses in addition 

to the damages awarded. Lisa responds that Section 153.405 allows the trial court 

to award attorney’s fees and expenses in addition to damages because it authorizes 

the award of attorney’s fees and expenses even if there is no monetary recovery on 

the claim. She argues there is at least an open question as to whether attorney’s fees 

and expenses in addition to damages are recoverable under the statute. 

The version of Section 153.405 then in effect states:

If a derivative action is successful, wholly or partly, or if anything is 

received by the plaintiff because of a judgment, compromise, or 

settlement of the action or claim constituting a part of the action, the 

court may award the plaintiff reasonable expenses, including 

reasonable attorney’s fees, and shall direct the plaintiff to remit to a 

party identified by the court the remainder of the proceeds received by 

the plaintiff.

TEX. BUS. ORGS. CODE § 153.405.84 

In CBIF Limited Partnership v. TGI Friday’s Inc., No. 05-15-00157-CV, 

2017 WL 1455407 (Tex. App.—Dallas Apr. 21, 2017, pet. denied) (mem. op.), the 

Dallas Court of Appeals addressed whether Section 153.405 provides an 

independent basis for the award of attorney’s fees. The court stated:

Section 153.405 of the business organizations code does not provide an 

independent basis for an award of attorney’s fees to the [plaintiff] as 

against [the defendants]. TEX. BUS. ORGS.CODE ANN. § 153.405 (West 

84 Section 153.405 was amended and recodified as Section 153.411 of the Texas 

Business Organizations Code, effective September 1, 2019.
188

2012). Section 153.405 provides, “[i]f a derivative action is successful, 

wholly or partly, or if anything is received by the plaintiff because of a 

judgment, compromise, or settlement of the action or a claim 

constituting part of the action, the court may award the plaintiff 

reasonable expenses, including reasonable attorney’s fees, and shall 

direct the plaintiff to remit to a party identified by the court the 

remainder of the proceeds received by the plaintiff. Id. This statutory 

allocation of attorney’s fees in derivative actions is analogous to the

common-fund doctrine. See, e.g., Dallas v. Arnett, 762 S.W.2d 942, 

954 (Tex. App.—Dallas 1988, writ denied) (the common fund doctrine 

is based on the principle that those receiving the benefits of the suit 

should bear their fair share of the expenses); see also Bayoud v. Bayoud, 

797 S.W.2d 304, 315 (Tex. App.—Dallas 1990, writ denied) 

(attorney’s fees are allowed in shareholder derivative suits where it is 

shown the suit has conferred substantial benefits on the corporation and 

its shareholders).

Id. at *6 n.7. We have not found any other Texas cases directly addressing this 

issue.85 

Courts in other jurisdictions have addressed the issue with respect to similar 

statutes and reached differing conclusions. In Little v. Cooke, 652 S.E.2d 129 (Va. 

2007), the Supreme Court of Virginia determined that the proceeds referred to in 

Section 50-73.65 of the Virginia Code were analogous to a “common fund.” Id. at 

85

 Cf. Shannon Med. Ctr. v. Triad Holdings III, L.L.C., 601 S.W.3d 904, 918 (Tex. 

App.—Houston [14th Dist.] 2019, no pet.) (trial court ordered defendant to pay 

plaintiff’s and partnership’s fees, expenses, and court costs, but defendant 

challenged only award of appellate attorney’s fees on appeal); DPRS 15th St., Inc.

v. Tex. Skyline, Ltd., No. 03-11-00101-CV, 2014 WL 4058796, at *9–10 (Tex. 

App.—Austin Aug. 13, 2014, no pet.) (mem. op.) (trial court ordered defendant to 

pay attorney’s fees to limited partnership under Section 153.405, but defendant 

argued on appeal only that limited partnership was not entitled to recover attorney’s 

fees because fees had been paid by limited partner).
189

143. It held that attorney’s fees and expenses are not recoverable in addition to the 

damages awarded to the partnership under the statute. See id. (interpreting similar 

statute and holding “circuit court erred by awarding reasonable attorneys’ fees and 

expenses in addition to the other damages awarded to the Partnership” because 

statute, Section 50-73.65 of the Virginia Code, states “award of attorneys’ fees and 

expenses must be paid from the ‘common fund’ received by the Limited Partners on 

behalf of the Partnership and the remainder remitted to the Partnership”) (emphasis 

in original).86 The court concluded that this view “is consistent with what is known

as the ‘common fund’ exception to the ‘American Rule’ prohibiting the shifting of

attorneys’ fees to the losing party.” Id. (citations omitted). “Instead, in accordance

with the requirements of Code § 50–73.65, the award of attorneys’ fees and expenses

must be paid from the ‘common fund’ received by the Limited Partners on behalf of

the Partnership and the remainder remitted to the Partnership.” Id.

86 Section 50-73.65 of the Virginia Code states:

If a derivative action is successful, in whole or in part, or if anything is 

received by the plaintiff as a result of a judgment, compromise or settlement 

of an action or claim, except as hereinafter provided, the court may award 

the plaintiff reasonable expenses, including reasonable attorney’s fees, and 

shall direct him to remit to the limited partnership the remainder of those 

proceeds received by him. On termination of the derivative action, the court 

may require the plaintiff to pay any defendant’s reasonable expenses, 

including reasonable attorney’s fees, incurred in defending the action if it 

finds that the action was commenced without reasonable cause or the plaintiff 

did not fairly and adequately represent the interests of the limited partners 

and the partnership in enforcing the right of the partnership.

VA. CODE ANN. § 50-73.65.
190

In Fitzgerald v. Community Redevelopment Corporation, 811 N.W.2d 178 

(Neb. 2012), the trial court awarded attorney’s fees to the plaintiffs in a derivative 

action and required the fees to be paid out of the general partner’s and limited 

partner’s own funds rather than out of the judgment. Id. at 202. The Nebraska 

Supreme Court affirmed holding that under the relevant statute, a derivative plaintiff 

can recover “expenses, including attorney[’s] fees, as a separate component of the 

judgment.” Id. Relying on the plain language of the statute, the court held that “the 

statute then requires that in a derivative action, the plaintiff may retain the portion 

of the judgment awarded as expenses, but any additional proceeds of the judgment 

that the plaintiff receives must be remitted to the partnership.” Id. (citing NEB.

REV. STAT. § 67-291) (“[W]e agree with the district court’s determination that the 

attorney fees should be awarded in addition to the judgment rather than being taken 

out of the judgment.”).87

We consider Little and CBIF Limited Partnership to be more persuasive and

consistent with Texas jurisprudence. The Texas Supreme Court has adopted the 

87 Section 67-291 of the Revised Nebraska Statutes states:

If a derivative action is successful, in whole or in part, or if anything is 

received by the plaintiff as a result of a judgment, compromise, or settlement 

of an action or claim, the court may award the plaintiff reasonable expenses, 

including reasonable attorney’s fees, and shall direct him or her to remit to 

the limited partnership the remainder of those proceeds received by him or 

her.

NEB. REV. STAT. § 67-291.
191

common fund doctrine, an equitable exception to the American Rule which provides 

that each litigant must bear his own attorney’s fees, absent a statutory or contractual 

basis for an award of attorney’s fees. See Knebel v. Capital Nat’l Bank, 518 S.W.2d 

795, 799 (Tex. 1974); see also Martin–Simon v. Womack, 68 S.W.3d 793, 798 n.3

(Tex. App.—Houston [14th Dist.] 2001, pet. denied) (“The Texas Supreme Court 

has adopted a ‘common fund’ equitable exception to the general rule prohibiting 

recovery of attorney’s fees absent contractual agreement or statute.”). Under the 

common fund doctrine, a trial court may award reasonable attorney’s fees to a 

plaintiff “who at his own expense has maintained a suit which creates a fund 

benefitting other parties as well as himself.” City of Dallas v. Arnett, 762 S.W.2d 

942, 954 (Tex. App.—Dallas 1988, writ denied) (citing Trustees v. Greenough, 105 

U.S. 527 (1881); Knebel, 518 S.W.2d at 799–801). Any attorney’s fees or expenses 

awarded must be paid from the common fund. City of Dallas, 762 S.W.2d at 954

(citing Greenough, 105 U.S. at 532–37; Knebel, 518 S.W.2d at 799). This is 

consistent with the common fund doctrine’s underlying principle namely “that those 

receiving the benefits of the suit should bear their fair share of the expenses.” City

of Dallas, 762 S.W.2d at 954 (citing Greenough, 105 U.S. at 532–37; Knebel, 518 

S.W.2d at 799). Although the common fund doctrine is often applied in class 

actions, Texas courts have also analyzed the equitable doctrine in derivative claims 

brought on behalf of corporations. See Bayliss v. Cernock, 773 S.W.2d 384, 386–
192

87 (Tex. App.—Houston [14th Dist.] 1989, writ denied) (discussing requirements 

for application of common fund doctrine for derivative claim on behalf of 

corporation).

Our holding is also consistent with the express language of Section 153.405 

providing that “the court may award the plaintiff reasonable expenses, including 

reasonable attorney’s fees, and shall direct the plaintiff to remit to a party identified 

by the court the remainder of the proceeds received by the plaintiff.” TEX. BUS.

ORGS. CODE § 153.405 (emphasis added). This suggests that an award of expenses 

under Section 153.405 must be paid out of recovered proceeds. Had the Legislature 

intended for a derivative plaintiff to recover expenses as a separate award under 

Section 153.405 it could have stated so. It did not.88 

We thus hold that expenses and attorney’s fees are not recoverable in addition 

to the damages awarded to the partnership under Section 153.405. Any award of 

88 In 2019, the Legislature amended Section 153.405. Unlike former Section 153.405,

the new Section 153.411, also entitled “Payment of Expenses,” now provides that 

on termination of a derivative proceeding, the court may order “the limited 

partnership to pay expenses the plaintiff incurred in the proceeding if the court finds 

the proceeding has resulted in a substantial benefit to the limited partnership.” TEX.

BUS. ORGS. CODE § 153.411(b)(1). We express no opinion as to the recovery of 

expenses under Section 153.411. We note, however, that unlike former Section 

153.405, there is no provision under Section 153.411 providing that the “remainder 

of the proceeds received by the plaintiff” be remitted to a party identified by the 

court. 
193

“reasonable expenses, including reasonable attorney’s fees” to Lisa under Section 

153.405 must be paid out of the proceeds she recovered on behalf of SignAd, Ltd. 

We reverse the award of attorney’s fees for Lisa’s derivative claim stemming 

from the improper payment of personal legal feesfor Wes, Jr., Stacey, Lee, and Mark 

(Jury Questions 24 and 26), and we remand for a new trial on the issue of attorney’s 

fees and expenses with respect to this claim consistent with Section 153.405 and our 

opinion. See TEX. BUS. ORGS. CODE § 153.405.

The Company Appellants also contend that the award of attorney’s fees for 

Lisa’s derivative claims is excessive and that Lisa failed to segregate the attorney’s 

fees relating to the derivative claims. Because we are reversing the trial court’s 

Amended Final Judgment granting judgment in favor of Lisa on two of her 

derivative claims and remanding to the trial court for a new trial on the issue of 

attorney’s fees, we need not address the Company Appellants’ challenges to the 

attorney’s fee award based on excessiveness or failure to segregate. 

3. Award of Attorney’s Fees and Expenses to Lisa: TBOC §§ 3.151 

and 3.152

The trial court awarded Lisa $162,755.00 in attorney’s fees and expenses in 

connection with her books and records claims to be paid by the General Partners, 

jointly and severally, pursuant to Sections 3.151 and 3.152 of the TBOC. See TEX.

BUS. ORGS. CODE §§ 3.151, 3.152. The Company Appellants argue that the award 

of $162,755.00 in attorney’s fees should be reversed because (1) Section 3.151 does 
194

not authorize the recovery of fees, (2) Section 3.152 authorizes fees only in an action 

to compel access to books and records and Lisa did not file any such action, (3) Crain 

Caton & James’ fees are not recoverable under Section 3.152 because the law firm 

did not represent Lisa in her capacity as a governing person, and (4) it was improper 

to award the fees against the General Partners jointly and severally. 

Section 3.152 states:

(a) A governing person of a filing entity may examine the entity’s 

books and records maintained under Section 3.151 and other 

books and records of the entity for a purpose reasonably related 

to the governing person’s service as a governing person.

(b) A court may require a filing entity to open the books and records 

of the filing entity, including the books and records maintained 

under Section 3.151, to permit a governing person to inspect, 

make copies of, or take extracts from the books and records on a 

showing by the governing person that:

(1) the person is a governing person of the entity;

(2) the person demanded to inspect the entity’s books and 

records;

(3) the person’s purpose for inspecting the entity’s books and 

records is reasonably related to the person’s service as a 

governing person; and

(4) the entity refused the person’s good faith demand to 

inspect the books and records.

(c) A court may award a governing person attorney’s fees and any 

other proper relief in a suit to require a filing entity to open its 

books and records under Subsection (b).

(d) This section does not apply to limited partnerships. Section 

153.552 applies to limited partnerships.

TEX. BUS. ORGS. CODE § 3.152. Section 3.151 sets forth the businesses’ 
195

record- keeping requirements. See id. § 3.151.

(a) Sufficiency of the Evidence

Although Section 3.151 does not authorize an award of attorney’s fees, 

Section 3.152 does. Section 3.152(c) states that a “court may award a governing 

person attorney’s fees and any other proper relief in a suit to require a filing entity 

to open its books and records under Subsection (b).” See id. § 3.152(c). The 

Company Appellants argue that Section 3.152 is inapplicable because Lisa did not 

bring a claim in this lawsuit in her capacity as a governing person to require a 

Company Appellant to “open its books and records” under Section 3.152(b). They 

further argue there is “no evidence or factually insufficient evidence that Lisa 

satisfied the statutory conditions.” 

The Company Defendants do not dispute that Lisa is a governing person. 

With respect to the remaining requirements under Section 3.152(b), there is evidence 

Lisa demanded to inspect the books and records of the General Partners. Lisa 

testified that she began making requests for copies of some of SignAd Outdoor’s 

records in February 2013, and when her efforts were not fruitful, she hired an 

attorney, Reiner, to help her get access to the books and records. The record also 

reflects that when Reiner called Wes, Jr. in March 2013 to demand access to the 

books and records, Wes, Jr. told him he would never provide Lisa with access to the 

requested documents. As previously discussed, there is also sufficient evidence that 
196

the General Partners failed to provide Lisa with the books and records to which she 

was entitled, and that Lisa had a proper purpose for demanding access to such books 

and records. There is also evidence that the General Partners did not provide Lisa 

access to all of the books and records to which she was entitled until well after she 

filed her lawsuit. 

The Company Appellants argue that by the time Lisa asserted a claim under 

Section 3.152 she had already received the “complete books and records” and,

therefore, she could not have sued to “open” their books and records, as required by 

Section 3.152(b) and (c). The only evidence they cite in support of their argument 

is the opening statement by Lisa’s attorney indicating that Lisa had received all of 

the requested books and records before trial. Opening statements are not evidence. 

Moreover, whether Lisa had received all of the requested books and records by the 

time of trial does not discount the fact she filed suit to obtain such records, and that 

she filed a claim under Section 3.152. The trial court submitted a question to the 

jury on Lisa’s claim against the General Partners under the statute. Jury Question 

14 stated:

Did the General Partners of which Lisa Horan was a governing person 

fail to provide:

(1) books and records of accounts;

(2) a current record of the name and mailing address of each owner 

or member of the filing entity;
197

(3) the General Partners’ federal, state, and local information or 

income tax returns for each of the General Partners’ six most 

recent tax years;

(4) the General Partners agreement and certificate of formation and 

all amendments or restatements; or

(5) other information regarding the business, affairs, and financial 

condition of the company that is reasonable for the person to 

examine and copy.

And the instructions under Jury Question 14 tracked the requirements of Section 

3.152(b). The jury was instructed that in order “to find a General Partner failed to 

provide documents, you must find” that:

(1) [Lisa] is a governing person of the entity;

(2) [Lisa] demanded to inspect the entity’s books and records;

(3) [Lisa’s] purpose for inspecting the entity’s books and records is 

reasonably related to [Lisa’s] service as a governing person; and

(4) the entity refused [Lisa’s] good faith demand to inspect the books 

and records.

The jury found that General Partners SignAd GP, LLC, Culcreuch West, LLC, 

Realty Acquisitions & Holdings, LLC, and Big Leasing LLC each failed to provide 

Lisa access to the books and records and the trial court entered judgment in Lisa’s 

favor in accordance with the jury’s findings.

Viewing the evidence and inferences in the light most favorable to the trial 

court’s finding, we conclude there is more than a scintilla of evidence that (1) Lisa 

is a governing person who demanded to inspect the books and records of the General 
198

Partners, (2) she had a proper purpose for doing so, (3) the General Partners refused 

her demand, and (4) Lisa sued the General Partners to force them to open their books 

and records. See Kroger Texas Ltd., 216 S.W.3d at 793; City of Keller, 168 S.W.3d 

at 827 (stating appellate courts review evidence and inferences in light most 

favorable to jury’s finding). Viewing all the evidence in a neutral light, we cannot 

say that the trial court’s finding is “so contrary to the overwhelming weight of the 

evidence that the verdict is clearly wrong and unjust.” Mar. Overseas Corp., 971 

S.W.2d at 406; see generally Horner v. Heather, 397 S.W.3d 321, 324 (Tex. App.—

Tyler 2013, no pet.) (stating trial court’s findings after bench trial may be reviewed 

for legal and factual sufficiency under same standards that are applied in reviewing 

evidence to support jury’s answers).

(b) Joint and Several Liability for Attorney’s Fees

The Company Appellants argue that the trial court abused its discretion by 

awarding attorney’s fees against the General Partners “jointly and severally” because 

Lisa was required to segregate the fees owed by the different parties. “A party 

seeking attorney fees has a duty to segregate nonrecoverable fees from recoverable 

fees, and to segregate the fees owed by different parties.” French v. Moore, 169

S.W.3d 1, 17 (Tex. App.—Houston [1st Dist.] 2004, no pet.); see also DMC Valley 

Ranch L.L.C. v. HPSC, Inc., 315 S.W.3d 898, 906 (Tex. App.—Dallas 2010, no pet.) 
199

(stating segregation of attorney’s fees between parties is required when different 

facts establish liability against different defendants). 

Lisa contends that the requirement that fees be segregated between parties 

does not apply here because her books and records claims against the General 

Partners were essentially the same claim, based on the same course of conduct by 

the same decision-makers. See French, 169 S.W.3d at 17 (stating party is not 

required to segregate fees incurred “in connection with claims arising out of the same 

transaction, and are so interrelated that their prosecution or defense entails proof or 

denial of essentially the same facts”). Yet, in a separate portion of her brief, in 

response to the challenge to the appropriateness of the various questions on her 

books and records claims, Lisa argues that “[e]ach question was different because it 

involved different parties or different duties.” 

The General Partners are separate and distinct legal entities, each with their 

own respective books and records and corresponding obligations to provide or grant 

access to such records. As Lisa notes, each books and records question involved 

different entities and obligations under contractual or statutory grounds. Thus, Lisa 

was required to segregate the fees owed by the various entities.

We remand for a new trial on attorney’s fees with respect to Lisa’s books and 

records claims. Because we are remanding for a new trial on attorney’s fees with 
200

respect to these claims, we need not consider the Company Appellants’ additional 

argument that Lisa did not properly segregate her attorney’s fees.

4. Award of Attorney’s Fees and Expenses to Lisa: Non-segregable 

Attorney’s Fees and Expenses

The Amended Final Judgment awarded Lisa $436,826.34 in “non-segregable 

fees and expenses” to be paid by SignAd, Ltd. and the General Partners, jointly and 

severally. The trial court found that such amounts were based on “both recoverable 

and non-recoverable claims” and that certain expenses “advanced both actions for 

which attorneys’ fees were recoverable and those that were not.” The Company 

Appellants argue the trial court erred in awarding Lisa these fees and expenses 

because (1) the awards of attorney’s fees and expenses on the derivative claims and 

books and records claims are improper, (2) the award is supported by insufficient 

evidence, (3) the amount of the fee award is disproportionate to the results Lisa 

sought and the results she obtained, and (4) there is no factual or legal basis for 

imposing the awards against SignAd, Ltd. and the General Partners “jointly and 

severally.” Because we are reversing the award of attorney’s fees for Lisa’s books 

and records claims and her derivative claims, we reverse the award of nonsegregable fees as well. We remand the cause to the trial court for a new trial on 

attorney’s fees. 
201

5. Award of Attorney’s Fees and Expenses to the Company 

Appellants: TBOC § 101.461(b)(2) 

The Company Appellants argue they are entitled to recover their attorney’s 

fees under Section 101.461(b)(2) of the TBOC. See TEX. BUS. ORGS. CODE

§ 101.461(b)(2). The version of Section 101.461(b)(2) then in effect stated that on 

termination of a derivative proceeding brought on behalf of a limited liability 

company, “the court may order . . . the plaintiff to pay the expenses the domestic or 

foreign limited liability company or other defendant incurred in investigating and 

defending the proceeding if the court finds the proceeding has been instituted or 

maintained without reasonable cause or for an improper purpose.” Id. “Whether a 

party is entitled to attorney’s fees is a question of law.” Sunchase IV Homeowners

Ass’n, Inc., 643 S.W.3d at 422.

The jury found for Lisa with respect to the sole derivative claim she asserted 

on behalf of a limited liability company, SignAd GP, LLC, and the trial court 

rendered judgment in her favor based on the jury’s verdict (Jury Question 30). We 

are reversing the trial court’s judgment on this claim finding that Lisa did not have 

standing to assert the derivative claim on behalf of SignAd GP, LLC and we are 

remanding to the trial court for a new trial on the issue of attorney’s fees for the 

derivative claim Lisa asserted on behalf of SignAd, Ltd. (Jury Questions 24 and 26). 

On remand, the trial court is directed to determine whether SignAd GP, LLC is 

entitled to recover its expenses incurred in investigating and defending against Lisa’s 
202

derivative claim under Section 101.461(b)(1) of the TBOC. TEX. BUS. ORGS. CODE

§ 101.461(b)(2). 

6. Award of Attorney’s Fees and Expenses to the Company 

Appellants: TBOC § 153.404(e) and Texas Civil Practice and 

Remedies Code § 37.009

The Company Appellants further contend they are entitled to recover their 

attorney’s fees under Section 153.404(e) of the TBOC because Lisa’s derivative 

claims are not supportable. Under the version then in effect, Section 153.404(e)

states: “The court, on final judgment for a defendant and on a finding that [a 

derivative suit] was brought [on behalf of a limited partnership] without reasonable 

cause against the defendant, may require the plaintiff to pay reasonable expenses, 

including reasonable attorney’s fees, to the defendant, regardless of whether security 

has been required.” TEX. BUS. ORGS. CODE § 153.404(e). 

Lisa filed a derivative claim on behalf of SignAd, Ltd. asserting SignAd GP, 

LLC improperly directed SignAd, Ltd. to pay for the personal legal fees of Wes, Jr., 

Lee, Stacey, and Mark (Jury Questions 24 and 26). The jury found for Lisa on this 

claim and the trial court rendered judgment in her favor based on the jury’s verdict. 

Because we are affirming the trial court’s judgment with respect to this derivative 

claim, SignAd GP, LLC is not entitled to attorney’s fees under Section 153.404(e).89 

89 Lisa also asserted a derivative claim on behalf of SignAd, Ltd. against Wes, Jr. 

involving certain transactions with ProIce. We are reversing the Amended Final 
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See TEX. BUS. ORGS.CODE § 153.404(e) (authorizing award of reasonable expenses, 

including reasonable attorney’s fees to defendant “on final judgment for a 

defendant”).90 

The Company Appellants further argue that because Lisa cannot prevail under 

her claims for declaratory relief, they are entitled to fees under Section 37.009 of the 

Texas Civil Practice and Remedies Code for “defending the baseless action.” Under 

the UDJA, a court “may award . . . reasonable and necessary attorney’s fees as are 

equitable and just.” TEX. CIV. PRAC. & REM. CODE § 37.009. Because we are 

affirming the trial court’s judgment with respect to the award of declaratory relief in 

favor of Lisa, the Company Appellants argument for recovery of fees under the 

UDJA fails. We overrule the Company Appellants’ challenge to the trial court’s 

failure to award them attorney’s fees under Section 37.009.

Conclusion

We reverse the portions of the Amended Final Judgment rendered in favor of 

Lisa with respect to her (1) defamation claims against Wes, Jr. and Mark, (2) 

Judgment in favor of Lisa on that claim. Wes, Jr. did not raise any issue on appeal 

claiming he is entitled to fees under Section 153.404(e).

90 In one sentence and without further elaboration or citation to the record or legal 

authority, the Company Appellants argue in the alternative that they “established 

[their] right to the recovery of attorneys’ fees as a matter of law when Lisa either 

non-suited or failed to submit claims on behalf of the other multiple SignAd entities 

named in her pleadings.” This argument is waived due to inadequate briefing. See

TEX. R. APP. P. 38.1(i) (requiring appellant’s brief to contain clear and concise 

argument with appropriate citations to authorities and record).
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derivative claim for breach of fiduciary duty filed on behalf of SignAd GP, LLC 

against Wes, Jr., Lee, and Stacey (Jury Question 30), and (3) derivative claim for 

breach of fiduciary duty filed on behalf of SignAd, Ltd. against Wes, Jr. (Jury 

Question 15). We render judgment that Lisa take nothing on these claims. 

We also reverse the portions of the Amended Final Judgment appointing a 

rehabilitative receiver to oversee an “equitable buyout of Lisa Horan, Trustee’s 

interests in the Limited Partnerships and General Partners in which she holds an 

interest” and the finding of oppression upon which the appointment of a receiver 

was based. In light of our opinion and the jury’s response to Jury Questions 44 and 

46, we remand to the trial court with instructions to consider the Company 

Appellants’ request for a decree of expulsion under Section 152.501(b)(5)(C) of the 

TBOC.

We affirm the portion of the Amended Final Judgment rendering judgment in 

favor of Lisa on her derivative claim for breach of fiduciary duty filed on behalf of 

SignAd, Ltd. against SignAd GP, LLC, Wes, Jr., Lee, Stacey, and Mark stemming 

from the payment of individual legal expenses (Jury Questions 24 and 26), but we 

reverse the direct award of damages to Lisa on that claim. 

We reverse the award of (1) attorney’s fees to Lisa in connection with her 

books and records claims, (2) attorney’s fees and expenses to Lisa in connection 

with her derivative claim for breach of fiduciary duty filed on behalf of SignAd, Ltd. 
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against Wes, Jr. (Jury Question 15), (3) attorney’s fees and expenses to Lisa in 

connection with her derivative claim for breach of fiduciary duty filed on behalf of 

SignAd GP, LLC against Wes, Jr., Lee, and Stacey (Jury Question 30), (4) attorney’s 

fees and expenses to Lisa in connection with her derivative claim for breach of 

fiduciary duty filed on behalf of SignAd, Ltd. against SignAd GP, LLC, Wes, Jr., 

Lee, Stacey, and Mark (Jury Questions 24 and 26), and (5) non-segregable attorney’s 

fees and expenses to Lisa against SignAd GP, LLC, Culcreuch West, LLC, Realty 

Acquisitions & Holdings LLC, Big Leasing, LLC, and SignAd, Ltd., jointly and 

severally, and we remand to the trial court for a new trial on attorney’s fees 

consistent with this opinion.

As part of the new trial on attorney’s fees, the trial court is instructed to 

determine the amount, if any, of (1) reasonable attorney’s fees Lisa is entitled to 

recover for her books and records claims, (2) reasonable expenses, including 

reasonable attorney’s fees, Lisa is entitled to recover under Section 153.405 of the 

TBOC for her derivative claim filed on behalf of SignAd, Ltd. against SignAd GP, 

LLC, Wes, Jr., Lee, Stacey, and Mark stemming from the improper payment of 

personal legal fees for Wes, Jr., Stacey, Lee, and Mark (Jury Questions 24 and 26), 

(3) reasonable expenses, including reasonable attorney’s fees, SignAd GP, LLC is 

entitled to recover under Section 101.461(b)(1) of the TBOC for Lisa’s derivative 

claim for breach of fiduciary duty filed on behalf of SignAd GP, LLC against Wes, 
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Jr., Lee, and Stacey stemming from the failure to maintain internal controls on 

employee fringe benefits and selling of company vehicles for less than fair market 

value (Jury Question 30), and (4) non-segregable fees and expenses Lisa may 

recover. 

We further hold that portions of the permanent injunction issued in favor of 

Lisa and against the Individual Appellants and the Company Appellants are overly 

broad, vague, and prohibit lawful conduct. Lisa is also not entitled to a portion of 

the issued injunctive relief because there is no evidence of imminent harm or there 

is an absence of a finding of liability on an underlying cause of action supporting 

such relief. Thus, we reverse the trial court’s permanent injunction in part and 

remand the cause to the trial court with instructions to modify the injunction 

consistent with this opinion. We affirm the judgment in all other respects.

Veronica Rivas-Molloy

Justice

Panel consists of Justices Countiss, Rivas-Molloy, and Guerra.