Opinion

Affirmed and Opinion filed September

30, 2010

In

The

Fourteenth

Court of Appeals

NO. 14-08-00263-CV

Victor M.

Zurita, D.D.S., MS, Individually and d/b/a Heights Medical and Dental Clinic

and Ana Zurita , Appellants

v.

Fernando

Lombana, M.D. and Houston Medical & Dental Center Corp., Appellees

On Appeal from

the 215th District Court

Harris County, Texas

Trial Court

Cause No. 2001-20157

OPINION

Victor

M. Zurita, individually and doing business as Heights Medical and Dental

Clinic, and his wife Ana Zurita, the plaintiffs below, appeal a take-nothing

judgment on their lawsuit against Fernando Lombana and Houston Medical &

Dental Center Corp., in which they asserted malicious prosecution, tortious

interference, business disparagement, and other claims. The Zuritas raise

eight issues: (1) the district court’s self-transfer of the case to the successor

judge was void or reversible error; (2) the court erred in granting summary

judgment on Ana Zurita’s claim of intentional infliction of emotional distress;

(3) the court erred in granting summary judgment on Dr. Zurita’s business-disparagement

and tortious-interference-with-prospective-business-relations claims; (4) the

evidence is legally and factually insufficient to support the jury’s failure to

find malicious civil prosecution; (5) the court erred in directing a verdict on

conspiracy; (6) the court erred in refusing to submit the Zuritas’ requested

jury questions; (7) the court erred in excluding certain evidence as

irrelevant; and (8) the judgment should be reversed and remanded based on

incurable jury argument. For the reasons stated below, we affirm.

I

The

proceedings below are extensive and complicated. The following briefly

summarizes the factual and procedural background between the parties.

Additional facts will be discussed as needed in the analysis of each issue.

Victor

Zurita, D.D.S., M.S., is a dentist and owner of a property in the Heights known

as the Yale Street Clinic. In 1996, Zurita leased a portion of the Yale Street

Clinic’s space to Fernando Lombana, M.D. In 1999, a dispute arose over the

terms of the lease agreement, and Zurita eventually evicted Lombana. On

September 30, 1999, Lombana sued Zurita, and Zurita answered and asserted

counterclaims. The Honorable Martha Hill Jamison of the 164th District Court

was the trial judge.

Judge

Jamison granted Lombana’s motion for partial summary judgment on liability and

his motion for summary judgment on Zurita’s breach-of-contract counterclaim. Judge

Jamison also struck as untimely Zurita’s self-described “compulsory

counterclaims” for defamation and tortious interference with business

relationships. A jury heard the issue of Lombana’s damages and awarded more

than $1.6 million. Zurita appealed. In the interim, Lombana took action to

enforce the judgment, including obtaining a temporary restraining order

prohibiting Zurita from transferring assets. Zurita, unable or unwilling to

file a supersedeas bond, filed for bankruptcy. According to the record, the

bankruptcy court entered an order allowing the appeal to go forward.

The

First Court of Appeals then reversed and rendered judgment in favor of Zurita.

See Zurita v. Lombana , No. 01-01-01040-CV, 2003 WL 21027140 (Tex.

App.—Houston [1st Dist.] May 8, 2003, pet. denied). The court’s review was

limited to Zurita’s and Lombana’s motions for summary judgment on liability.

In particular, the court considered whether Lombana had a right to exercise the

extension option in the lease or whether he had forfeited that right by

subleasing a portion of the premises. Id. at *3. Based on the lease’s

extension option, which expressly provided that “[Lombana’s] rights under this

option shall terminate if . . . [Lombana] assigns its interest in the lease or

sublets any portion of the premises,” the court held Lombana was not entitled

to exercise the option after he subleased a portion of the premises to a

pharmacist without Zurita’s written consent. Id . at *3–4. The court

reversed the judgment and rendered judgment that Lombana take nothing from

Zurita. Id. at *4. Zurita then had the bankruptcy dismissed.

In

2001, before the jury verdict in the original lawsuit, Zurita filed a separate

action against Lombana and others alleging tortious interference with business

relationships. This is the lawsuit before us. Like the first one, this

lawsuit was in Judge Jamison’s court. Zurita later amended his petition

several times, adding his wife Ana as a party and additional claims. In 2005, Judge

Jamison granted Lombana summary judgment on several of the Zuritas’ claims, but

denied summary judgment on Dr. Zurita’s malicious-prosecution claim. Shortly

after that, Judge Jamison recused herself, and in the same order, in her

capacity as administrative judge of the civil trial division, transferred the

lawsuit to another district court.

Now

before the Honorable Levi Benton in the 215th District Court, the parties filed

amended motions for summary judgment, and Judge Benton granted Lombana summary

judgment on several of the Zuritas’ claims. Dr. Zurita then went to trial

before a jury on his remaining claims of malicious prosecution, intentional

infliction of emotional distress, and conspiracy. The trial court granted a

directed verdict on the civil-conspiracy claim, and the jury answered “no” to

the remaining claims. Motions for new trial and for judgment n.o.v. were

overruled, and this appeal followed.

II

In

their first issue, the Zuritas contend Judge Jamison’s transfer of the lawsuit

to Judge Benton is void. The Zuritas argue that, because Judge Jamison recused

herself, her subsequent transfer of the case to Judge Benton was improper and

in violation of regional administrative rules and Harris County district court

rules. They contend Judge Jamison was prohibited from taking any further

action in the case, except for good cause, and she should have referred the

case for reassignment by the presiding administrative regional judge. See

Dunn v. County of Dallas , 794 S.W.2d 560, 563 (Tex. App.—Dallas 1990, no

writ). They also suggest Judge Jamison recused herself because of

impartiality, personal bias, or personal knowledge of disputed evidentiary

facts concerning the proceeding. Specifically, the Zuritas point out that she

had presided over the first case involving the lease dispute, which was the

subject of the malicious-prosecution claim in this case, and the Zuritas had

alleged that Lombana and his counsel had obtained the judgment in the first

case through fraud and improper practices. See Tex. R. Civ. P.

18(b)(2)(a), (b). They also point to an item in an order granting a motion in limine

prohibiting any “statements, comments, references or inferences that Judge

Jamison was in any way biased in favor of Dr. Lombana” or “that one of Dr.

Lombana’s lawyers utilized a nickname for the judge during the course of the

proceedings” as evidence that “the judge had some sort of personal relationship

with original plaintiff’s counsel.” [1]

Rule

3.2.5 of the rules of the civil trial division of the Harris County district

courts provides that any case may be transferred from one court to another by

written order of the administrative judge of the division. Further, Rule 3.2.7

provides that the administrative judge may transfer cases between courts or may

assign cases from one court to another court for hearing due to illness, trial

schedule, “or other sufficient reason.” Here, Judge Jamison recused herself

and referred the case to “the Administrative Judge of the Civil Trial Division

for transfer to another court.” Then, in her capacity as administrative judge,

she transferred the case to Judge Benton. She took no further action in the

case.

We

conclude that Judge Jamison’s order assigning the case to another judge was not

void. In reaching this conclusion we are guided by the supreme court’s reasoning

in In re McKee , 248 S.W.3d 164 (Tex. 2007) (per curiam). As here, the

issue in McKee was the validity of a self-recused judge’s subsequent

assignment of the case as an administrative judge. Id. at 165 . The

court noted that “Texas Rule of Civil Procedure 18a(c) provides authority for

such an assignment but only if [the judge’s] order states ‘good cause’ for that

action.” Id. The court stated that “good cause” is ordinarily inherent

in such administrative assignments. Id. Further, the court went on to

determine that it would not issue mandamus absent “extraordinary circumstances”

otherwise requiring the judge’s recusal. Id. The court concluded that

the self-recused judge need only revise his order to state that his assignment

was a purely administrative act. Id.

Here,

Judge Jamison’s order specified that she was recusing herself and referring the

case to the administrative judge of the civil trial division for transfer to

another court, and the transfer order is signed by Judge Jamison in her

capacity as administrative judge of the civil trial division. Thus, it is

apparent on the face of the order that the transfer was a purely administrative

act. See id. Further, the record does not reflect any “extraordinary

circumstances” that would have called for Judge Jamison’s recusal. [2] We

therefore conclude that her order is not void.

III

In

their second and third issues, the Zuritas contend the trial court erred in

granting summary judgment on Ana’s intentional-infliction-of-emotional-distress

claim and Dr. Zurita’s business-tort claims. We address each in turn.

A

We

review the trial court’s summary judgment de novo. Valence Operating Co. v.

Dorsett , 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident

Ins. Co. v. Knott , 128 S.W.3d 211, 215 (Tex. 2003). Here, the appellees

moved for summary judgment on both traditional and no-evidence grounds, and the

Zuritas moved for summary judgment only on no-evidence grounds. See

Tex. R. App. P. 166a(c), 166a(i).

The

party moving for a traditional summary judgment has the burden to show that no

material fact exists and that it is entitled to summary judgment as a matter of

law. Tex. R. App. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v.

Willrich , 28 S.W.3d 22, 23 (Tex. 2000) (per curiam). To be entitled to traditional

summary judgment, a defendant must conclusively negate at least one essential

element of each of the plaintiff’s causes of action or conclusively establish

each element of an affirmative defense. Am. Tobacco Co. v. Grinnell ,

951 S.W.2d 420, 425 (Tex. 1997). Evidence is conclusive only if reasonable

people could not differ in their conclusions. City of Keller v. Wilson ,

168 S.W.3d 802, 816 (Tex. 2005). Once the defendant produces sufficient

evidence to establish the right to summary judgment, the burden shifts to the

plaintiff to come forward with competent controverting evidence raising a

genuine issue of material fact. Centeq Realty, Inc. v. Siegler , 899

S.W.2d 195, 197 (Tex. 1995).

In

a no-evidence summary judgment, the movant must specifically state the elements

as to which there is no evidence. Rivers v. Charlie Thomas Ford, Ltd. ,

289 S.W.3d 353 , 357–58 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Walker

v. Thomasson Lumber Co. , 203 S.W.3d 470 , 473–74 (Tex. App.—Houston [14th

Dist.] 2006, no pet.). The trial court must grant the motion unless the

non-movant can point out evidence that raises a fact issue on the challenged

elements. See Tex. R. Civ. P. 166a(i); Hamilton v. Wilson , 249

S.W.3d 425, 426 (Tex. 2008).

In

reviewing either a no-evidence or traditional summary-judgment motion, we must

take as true all evidence favorable to the non-movant and draw every reasonable

inference and resolve all doubts in favor of the non-movant. Mendoza v.

Fiesta Mart , 276 S.W.3d 653, 655 (Tex. App.—Houston [14th Dist.] 2008, pet.

denied). When both parties move for summary judgment, each party bears the

burden of establishing that it is entitled to judgment as a matter of law .

City of Garland v. Dallas Morning News , 22 S.W.3d 351, 356 (Tex. 2000).

When the trial court grants one motion and denies the other, we review the

summary judgment evidence presented by both parties and determine all questions

presented. Id. The reviewing court should render the judgment that the

trial court should have rendered or reverse and remand if neither party has met

its summary judgment burden. Id.

B

In

their second issue, the Zuritas contend the trial court erred in granting

summary judgment on Ana’s intentional-infliction-of-emotional-distress claim because

the appellees failed to conclusively prove their affirmative defense of

limitations. See Rhone-Poulenc, Inc. v. Steel , 997 S.W.2d 217, 223

(Tex. 1999) (stating that a defendant moving for summary judgment on the

affirmative defense of limitations has the burden to conclusively establish

that defense). Additionally, the Zuritas also claim the allegedly tortious

conduct was a continuing tort. See Twyman v. Twyman , 790 S.W.2d 819,

821 (Tex. App.—Austin 1990), rev’d on other grounds , 855 S.W.2d 619

(Tex. 1993) (stating that a continuing tort involves a course of conduct which

over a period of years causes injury). [3]

In its order, the trial court specifically found that “Dr. Lombana’s actions do

not constitute a continuing tort. Only acts occurring during the relevant

statute of limitations period maybe maintained.” Further, the court granted

summary judgment “as to all causes of action for which the statute of

limitations expired prior to their filing, including all claims asserted by Ana

Zurita.” [4]

1

To

prevail on a claim for intentional infliction of emotional distress, a

plaintiff must establish that (1) the defendant acted intentionally or

recklessly; (2) its conduct was extreme and outrageous; (3) its actions caused

her emotional distress; and (4) the emotional distress was severe. Kroger

Tex. Ltd. P’ship v. Suberu , 216 S.W.3d 788, 796 (Tex. 2006); Tiller v.

McLure , 121 S.W.3d 709, 713 (Tex. 2003) (per curiam). An action that is

intentional, malicious, or even criminal does not, standing alone, mean that it

is extreme or outrageous for purposes of intentional infliction of emotional

distress. Brewerton v. Dalrymple , 997 S.W.2d 212 , 215–16 (Tex. 1999).

The conduct must be “so outrageous in character, and so extreme in degree, as

to go beyond all possible bounds of decency, and to be regarded as atrocious,

and utterly intolerable in a civilized community.” Id. at 216 . It is

for the court to determine in the first instance whether the defendant’s

conduct may reasonably be regarded as so extreme and outrageous as to permit

recovery. Id.

Under

Texas law, an intentional-infliction-of-emotional-distress claim must be

brought within two years from the date the cause of action accrued. See

Tex. Civ. Prac. & Rem. Code Ann. § 16.003 ; Bhalli v. Methodist Hosp. ,

896 S.W.2d 207, 211 (Tex. App.—Houston [1st Dist.] 1995, writ denied). Generally,

a cause of action accrues when a wrongful act causes an injury. Childs v.

Haussecker , 974 S.W.2d 31, 36 (Tex. 1998). The continuing-tort doctrine is

an exception courts of appeals have used to toll limitations until the last act

of intentional infliction occurs. See Creditwatch, Inc. v. Jackson , 157

S.W.3d 814 , 816 n.8 (Tex. 2005) (noting that the supreme court has neither

endorsed nor addressed the continuing-tort doctrine). It applies to tortious

acts inflicted over a period of time and repeated until desisted, and each day

creates a separate cause of action. Two Pesos, Inc. v. Gulf Ins. Co .,

901 S.W.2d 495, 500 (Tex. App.—Houston [14th Dist.] 1995, no writ); W.W.

Laubach Trust/The Georgetown Corp ., 80 S.W.3d 149, 159 (Tex. App.—Austin

2002, pet. denied). The doctrine only applies, however, if the last tortious

act falls within the limitations period. Bhalli , 896 S.W.2d at 212 .

2

Ana

joined Dr. Zurita’s lawsuit in March 2004 asserting that the appellees’ actions

caused her to suffer a miscarriage. Ana testified that she miscarried in July

2001, more than two years before she asserted her claim. The Zuritas contend

Ana’s claim is not barred, however, because the appellees’ conduct constitutes

a continuing tort that tolls the statute of limitations. The Zuritas contend the

evidence showed “death threats to the Zurita family, trespass onto and

vandalism of their lake house, and oppressive extended litigation brought in

bad faith [and] continuing through issuance of mandate 12/8/03.”

On

this record, we decline to apply the continuing-tort doctrine to Ana’s claim. We

need not determine whether the alleged instances of death threats, trespass,

and vandalism constitute a continuing tort, because even if they did, there is

no evidence that any of these alleged acts occurred within two years of the

date Ana first asserted her claim. See Bhalli , 896 S.W.2d at 211–12.

Further,

the appellees’ prosecution of the original lawsuit does not constitute evidence

of a continuing tort that continued through the issuance of mandate as the

Zuritas contend. Conduct associated with asserting a legal right, such as

bringing a lawsuit, cannot be extreme and outrageous. See Klein &

Assocs. Political Relations v. Port Arthur Indep. Sch. Dist ., 92 S.W.3d

889, 898 (Tex. App.—Beaumont 2002, pet. denied) (holding that, as a matter of

law, school district’s lawsuit did not constitute extreme and outrageous

conduct sufficient to support a cause of action for intentional infliction of

emotional distress even though suit had no merit); cf. Wornick Co. v.

Casas , 856 S.W.2d 732, 735 (Tex. 1993) (defendant’s exercise of its legal

right to terminate at-will employee cannot constitute outrageous conduct as a

matter of law). Therefore, the appellees met their summary judgment burden to

demonstrate that Ana’s claim is barred by the statute of limitations as a

matter of law. [5]

We

overrule the Zuritas’ second issue.

C

In

their third issue, the Zuritas contend the court erred in granting summary

judgment on Dr. Zurita’s business-disparagement and tortious-interference-with-prospective-business-relations

claims (the “business torts”). The trial court granted the appellees’

traditional and no-evidence motions for summary judgment on all grounds

asserted with respect to the business torts. Because we conclude that the

trial court properly granted summary judgment on the ground of res judicata, we

do not reach the other asserted grounds.

1

Res

judicata is an affirmative defense. Tex. R. Civ. P. 94. The party claiming

the defense must prove: (1) the claims asserted in this case arise out of the

same subject matter of the previous suit; (2) the claims asserted in this suit

were litigated or could have been litigated through the exercise of due

diligence in the previous suit; and (3) there is a final judgment in the prior

lawsuit. Barr v. Resolution Trust Corp ., 837 S.W.2d 627, 631 (Tex.

1992). We apply a transactional approach to res judicata. Id. Under

that approach, the subject matter of a suit is based on the factual matters

that make up the gist of the complaint. Id. at 630 . Any claim that

arises out of those facts should be litigated in the same lawsuit. Id.

2

In

the original lawsuit, on October 30, 2000, Zurita filed a “First Amended

Original Answer and First Amended Compulsory Counterclaim” in which he sought

to add two defendants and to assert claims of tortious interference with a

business relationship and defamation in addition to a previously asserted

compulsory counterclaim for breach of contract. Both claims were based in part

on a September 25, 1999 letter Lombana sent to patients stating, “The new

Clinic offers better DENTAL services with very well qualified and specialized

certified dentists.” The appellees moved to strike this pleading, asserting among

other things that it was an untimely attempt to add new parties and claims

before the December 4, 2000 trial setting. The trial court granted the

appellees’ motion and struck the pleading. The case then proceeded to a jury

verdict and judgment for the appellees. As discussed above, the First Court of

Appeals reversed the judgment and rendered a take-nothing judgment in favor of

Zurita. In this lawsuit, the Zuritas alleged claims of business disparagement

and tortious interference with prospective business relations. Like the

compulsory counterclaims in the first lawsuit, both of these claims were based

on the appellees’ September 25, 1999 letter. The appellees moved for summary

judgment, arguing that these claims arose out of the same facts and

circumstances as the compulsory counterclaims asserted in the first lawsuit and

therefore were barred by res judicata.

On

appeal, the Zuritas contend that the underlying judgment should have no

preclusive effect because it was reversed. As support, the Zuritas rely on J.J.

Gregory Gourmet Services, Inc. v. Antone’s Import Co. , 927 S.W.2d 31 (Tex.

App.—Houston [1st Dist.] 1995, no writ). In J.J. Gregory Gourmet Services ,

the court stated that res judicata did not apply when the underlying summary

judgment granted in favor of the defendants was reversed on appeal. Id.

at 34 . In that case, however, the summary judgment was reversed and remanded,

and the court simply recognized that a summary judgment that is reversed and

remanded is not a final judgment. Id. In contrast, in the present case

the court of appeals reversed and rendered a final judgment in favor of

Zurita. Thus, a final judgment exists for purposes of res judicata.

The

Zuritas also invite us to decline to apply res judicata based on equity, citing

Citizens Ins. Co. v. Daccach , 217 S.W.3d 430 (Tex. 2007), and Finger

v. Southern Refrigeration Services, Inc ., 881 S.W.2d 890 , 895–96 (Tex.

App.—Houston [1st Dist.] 1994, writ denied) (op. on reh’g). The Zuritas cite Daccach

for the proposition that res judicata prevents relitigation of adjudicated

claims and related matters that with the use of diligence should have been

litigated. Daccach , 217 S.W.3d at 449 . But the Zuritas’ reliance on

this general language is misplaced. In Daccach , a class representative

argued res judicata should not apply to claims he abandoned because they were

procedurally barred from litigation in the class action and thus could not be

“litigated through diligence” in that action. Id. at 451 . The supreme

court, however, refused to create such an exception to the general principles

of res judicata. Id. at 455 . Daccach does not assist the

Zuritas because it simply reaffirms the supreme court’s adherence to the

pragmatic application of the transactional approach to res judicata.

Finger

v. Southern Refrigeration Services, Inc. is also distinguishable. In

that case, the court discussed the application of collateral estoppel, not res

judicata. See Finger, 881 S.W.2d at 895 . Noting that “[t]he doctrine

of collateral estoppel applies only to issues actually litigated in the earlier

proceeding,” the court held that collateral estoppel did not bar the claims of

a plaintiff against whom the trial court had erroneously granted a directed

verdict. Id. at 895–96. The court went on to state, “[e]ven if

collateral estoppel applied in this case, we have the discretion to refuse to

apply it if it would be unfair.” Id. at 896 (citing Scurlock Oil Co.

v. Smithwick , 724 S.W.2d 1, 7 (Tex. 1986)). We decline to extend Finger

to the broader doctrine of res judicata, which applies not only to claims that

were actually litigated, but to claims that could have been litigated though

the exercise of diligence in the earlier suit. See Barr , 837

S.W.2d at 631 .

Although

we have found no case directly on point, courts in analogous circumstances have

upheld the application of res judicata to bar claims a party failed to

diligently pursue. For example, in Weiman v. Addicks-Fairbanks Road Sand Co .,

846 S.W.2d 414 (Tex. App.—Houston [14th Dist.] 1992, writ denied), the

appellant contended res judicata did not bar her claims in a second lawsuit

because she was granted a non-suit without prejudice on similar claims in an

earlier lawsuit. Id. at 421 . This court disagreed, and held that the

rules of procedure nevertheless applied and her claims in the second suit were

barred by the compulsory-counterclaim rule. Id. Similarly, in Genecov

Group, Inc. v. Roosth Production Co. , 144 S.W.3d 546 (Tex. App.—Tyler 2003,

pet. denied), Genecov sought a declaration that certain oil and gas leases were

valid and that it, rather than Roosth, was the lawful operator of the gas

unit. Id. at 548 . The parties agreed to arbitrate the question of whether

the leases were valid, but the arbitrators were not asked to determine which

party was the lawful operator. Id. After the arbitration was

completed, Genecov filed a second lawsuit against Roosth, asking the court to

find Genecov to be the lawful operator of the gas unit and for other relief. Id.

at 550 . The trial court granted Roosth’s motion for summary judgment on

Genecov’s claims based on res judicata. Id. On appeal, the court rejected

Genecov’s contention that it should be able to have its operator issue

determined in the second suit because the arbitrators did not consider it in

the first suit. Id. at 553 . The court held that res judicata barred Genecov’s

operator issue in the second lawsuit because it was based on the same facts

contained in the first lawsuit. Id.

In

Williams v. National Mortgage Co. , 903 S.W.2d 398 (Tex. App.—Dallas

1995, writ denied), the borrowers filed a lawsuit against their lender for

wrongful foreclosure and the lender counterclaimed. Id. at 400–401.

The lender later filed a notice of nonsuit, but the trial court mistakenly

dismissed the borrowers’ claims instead of the lender’s counterclaims. Id.

at 401 . The lender then filed a second counterclaim in the first lawsuit and

was granted summary judgment. Id. The borrowers then filed a second

lawsuit against the lender, asserting claims of wrongful foreclosure, trespass

to try title, violations of the DTPA, and breach of the implied duty of good

faith and fair dealing. Id. In response, the lender contended the

borrower’s claims in the second suit arose out of the same transaction at issue

in the first suit and were compulsory counterclaims barred by res judicata. Id.

After determining that the trial court had subject matter jurisdiction to

render judgment in the first lawsuit, the court of appeals held that the

borrowers’ claims in the second suit were compulsory counterclaims they were

required to refile in the first lawsuit, either after their claims were

dismissed or in response to the lender’s second counterclaims. Id. at

403–04. Accordingly, the borrowers were precluded from asserting their

compulsory counterclaims in the second lawsuit. Id. at 404 .

Therefore,

we conclude that the trial court’s grant of summary judgment on Dr. Zurita’s

business tort claims may be affirmed based on res judicata.

Next,

the Zuritas contend that their claims in this lawsuit were immature claims that

only accrued post-judgment. But the Zuritas did not raise this argument in

response to the appellees’ summary-judgment briefing below. [6] Any issue

which the non-movant claims would justify denying summary judgment must be

included in the response. McConnell v. Southside Indep. Sch. Dist ., 858

S.W.2d 337, 341 (Tex. 1993). An appellate court cannot reverse a summary

judgment based on an issue not presented to the trial court. State Bd. of

Ins. v. Westland Film Indus. , 705 S.W.2d 695, 696 (Tex 1986). Moreover, this

argument ignores the fact that the letter forming the basis of the claims in

this lawsuit is the same September 25, 1999 letter Dr. Zurita alleged was the

basis of his nearly identical claims in the original lawsuit. Thus, even if

the issue had been raised below, we would disagree that the claims were not

mature during the pendency of the original case. See Weiman , 846 S.W.2d

at 420 (rejecting appellant’s contention that claims in second suit were not

mature at time of first suit when claims were almost identical to those raised

and non-suited in first suit); see also A&P Transp. Co., Inc ., No.

14-09-00729-CV, 2009 WL 3365841 , at *2 (Tex. App.—Houston [14th Dist.] Sept.

10, 2009, no pet.) (mem. op.) (“The only deadline imposed by Rule 97(a) for

filing a compulsory counterclaim is prior to final judgment in the initial

action between the parties involving the same transaction or occurrence.”).

In

their reply brief, the Zuritas further argue that their counterclaims in the

original lawsuit were not, in fact, compulsory counterclaims. [7] The

Zuritas have waived this issue by failing to raise it in their original

appellate brief. See Zammarron v. Shinko Wire Co., Ltd. , 125 S.W.3d

132, 139 (Tex. App.—Houston [14th Dist.] 2003 pet. denied) (stating that issues

not raised until a reply brief are waived). Therefore, we do not consider the

argument that the claims were not compulsory and thus not required to be

asserted in the original lawsuit.

We

therefore overrule the Zuritas’ third issue.

IV

In

their fourth and seventh issues, the Zuritas contend the evidence is legally

and factually insufficient to support the jury’s failure to find malicious

civil prosecution, and the trial court erred in excluding as irrelevant

evidence of the manner in which the underlying lease dispute was prosecuted. Because

the Zuritas address the exclusion of evidence within their sufficiency

argument, we will also address them together.

To

prevail in a suit alleging malicious prosecution of a civil claim, Zurita was

required to 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 his favor; and (6) special

damages. Tex. Beef Cattle Co. v. Green , 921 S.W.2d 203, 207 (Tex.

1996).

When

conducting a legal-sufficiency review, we must view the evidence in the light

most favorable to the jury’s findings, crediting favorable evidence if

reasonable jurors could, and disregarding contrary evidence unless reasonable

jurors could not. City of Keller v. Wilson , 168 S.W.3d 802, 807 (Tex.

2005). A party attacking the legal sufficiency of an adverse finding on an

issue on which he has 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). In reviewing a factual-sufficiency

challenge, we consider and weigh all the evidence in a neutral light and may

set aside the finding only if the evidence is so weak or the finding is so

against the great weight and preponderance of the evidence that it is clearly

wrong and unjust. Id . at 242.

We

review a trial court’s decision to admit or to exclude evidence for an abuse of

discretion. In re J.P.B ., 180 S.W.3d 570, 575 (Tex. 2005). A trial

court abuses its discretion in admitting or excluding evidence if it acts

without reference to any guiding rules and principles, or if the act complained

of is arbitrary and unreasonable. Carpenter v. Cimarron Hydrocarbons Corp. ,

98 S.W.3d 682, 687 (Tex. 2002). We must uphold a trial court’s evidentiary

ruling if there is any legitimate basis in the record to support it. Owens-Corning

Fiberglas Corp. v. Malone , 972 S.W.2d 35, 43 (Tex. 1998). We will not

reverse a trial court for an erroneous evidentiary ruling unless the error was

reasonably calculated to cause and probably did cause the rendition of an

improper judgment. See Tex. R. App. P. 44.1.

The

Zuritas contend the jury’s refusal to find Lombana maliciously prosecuted the

case is legally and factually insufficient because no reasonable person would

believe there could be a recovery given the facts as “honestly and reasonably

believed” before Lombana filed suit in 1999. See Kroger Tex. Ltd. P’ship v.

Suberu , 216 S.W.3d 788 , 792–73 (Tex. 2006) (stating in context of criminal

malicious prosecution that the probable cause element asks whether a reasonable

person would believe a crime had been committed given the facts as the

complainant honestly and reasonably believed them to be before the criminal

proceedings were instituted). Specifically, the Zuritas argue that Lombana

knew or reasonably should have known that the lease had terminated, and therefore

he lacked probable cause for his suit for breach of contract based on Zurita’s

refusal to honor the lease’s renewal option. The Zuritas maintain that

Lombana’s lawsuit was instead to retaliate for Zurita’s eviction of Lombana. To

support their contention that the evidence conclusively demonstrates Lombana

had no probable cause to prosecute the underlying lawsuit, the Zuritas rely on Masterson

v. Pig’N Whistle Corp. , 326 P.2d 918 (Cal. Dist. Ct. App. 1958). In that

case, the court affirmed a judgment in favor of the plaintiffs in a malicious-prosecution

suit, holding as a matter of law there was no probable cause for the underlying

breach of contract action when the undisputed evidence showed that the

defendants had no reasonable grounds to support their interpretation of an

option contained in the parties’ contract. Id. at 927 . We conclude,

however, that Masterson does not control the disposition of this issue.

In

Masterson , Pig’N Whistle sued Masterson and others for breach of

contract, arguing that their contract gave Pig’N Whistle an option to renew its

sponsorship of a television program indefinitely. See id. at 923 . The

trial court disagreed and found in favor of Masterson. Id. Masterson

and the others then brought a malicious-prosecution suit against Pig’N Whistle

and its officers and directors, and prevailed at trial. Id. at 924–26.

On appeal, the court determined that there were no disputed issues of fact on

the probable-cause element, and held that there was no probable cause as a

matter of law, noting “[i]t was an inescapable conclusion from the evidence

that the officers of Pig’N Whistle had no reasonable grounds for believing that

the corporation had an option to sponsor the program for a third cycle of

broadcasts” as the contract “expressly provide[d] for but a single option.” Id.

at 927 .

The

present case is distinguishable from Masterson because there was

considerable dispute about the facts and circumstances surrounding the parties’

interpretation of the lease, and Lombana initially prevailed and obtained a

judgment in his favor after the trial court rejected the Zuritas’

interpretation of the contract. When determining whether probable cause

exists, “the question is not what the facts actually were, but rather what the

defendant honestly and reasonably believed the facts to be.” Metzger v.

Sebek , 892 S.W.2d 20, 42 (Tex. App.—Houston [1st Dist.] 1994, pet. denied).

Therefore, we cannot say as a matter of law Lombana could not have reasonably

believed he could recover, as he did recover, at least at the trial level. [8]

Conversely,

Lombana contends the judgment in his favor below demonstrates probable cause as

a matter of law, even though the judgment was reversed on appeal. See Lancaster

& Love, Inc. v. Mueller Co., 310 S.W.2d 659, 663 (Tex. Civ. App.—Dallas

1958, writ ref’d) (stating that “[e]ven though the judgment is subsequently set

aside, and the final trial results in favor of the party now plaintiff, the

recovery in the first instance has been held conclusive on the question of the

presence of probable cause.”); see also Metzger , 892 S.W.2d at 43

(holding that appellees were entitled to directed verdict on appellant’s claim

for malicious prosecution when probable cause was shown even though criminal

charges were dismissed); Adcox v. Safeway Stores, Inc ., 512 F. Supp.

452 , 453–54 (N.D. Tex. 1980) (holding conviction in underlying criminal action

conclusively demonstrated probable cause even though it was dismissed on

appeal).

But

the Zuritas also contend that they alleged that Lombana engaged in improper and

fraudulent acts in prosecuting the underlying lease dispute which prejudiced

the Zuritas. See Lancaster & Love, Inc. , 310 S.W.2d at 663

(noting that some cases have held that the underlying favorable judgment may be

“impeached by proof that it was obtained by fraud or perjury”). Consequently,

they urge, their “manner of prosecution” evidence was relevant to rebut the

presumption of probable cause.

In

addition to the lease itself, the Zuritas point to (1) testimony by one of

Lombana’s lawyers in the underlying lease dispute that Lombana did not disclose

the existence of a pharmacy sublease and that the lawyer’s opinion concerning

the exercise of the option would have changed if he knew about the sublease as

he would have questioned whether the sublease caused the option to terminate, and

(2) testimony by Lombana that he told the lawyer he had not sublet any portion

of the premises without permission and could not recall if he gave the lawyer a

copy of the sublease. They also point to a defense exhibit consisting of

Lombana’s response to Zurita’s motion for summary judgment in the underlying

case and Lombana’s attached affidavit in which he states that he “never

received any notice of an alleged subleasing default” from Zurita. The Zuritas

claim this exhibit demonstrates that Zurita “may not have known of sublease and

would have to have given notice of default, in effect admitting sublet without

consent.”

Although

such evidence may raise a fact issue to rebut the presumption of probable cause

in other circumstances, on the facts of this case it is no evidence that the

judgment was procured by fraud, perjury, or other improper practices. In the

underlying lease dispute, the trial court determined Zurita’s liability on competing

motions for summary judgment on breach of contract, leaving for the jury only

the issue of damages. See Zurita v. Lombana , 2003 WL 21027140 , at *2.

Lombana argued that he had validly exercised the lease option and Zurita argued

that Lombana had no right to extend the term of the lease because his rights to

exercise the extension option had terminated when he subleased a portion of the

premises to a pharmacist. Id. Thus, issue of the existence of the

sublease was before the trial court as well as the argument that there was no

written consent for the sublease. The trial court considered the parties’

differing interpretations of the lease and determined the issue adversely to

Zurita. Id. The evidence the Zuritas point to would not have altered this

outcome in any way. Indeed, their supporting evidence includes a

summary-judgment response from that case, which the trial court presumably

would have considered. Therefore, Lombana has established the existence of

probable cause as a matter of law based on the favorable judgment in the

underlying lease dispute, even though it was reversed on appeal. See Lancaster

& Love, 310 S.W.2d at 663 ; Metzger , 892 S.W.2d at 43 ; Adcox

v. Safeway Stores, Inc ., 512 F. Supp. at 453–54.

The

Zuritas also contend that additional “manner of prosecution” evidence was

relevant to rebut the presumption that a favorable judgment below conclusively

establishes the existence of probable cause, but the trial court erroneously

excluded it. Specifically, they point to portions of the record in which their

counsel attempted to elicit testimony concerning whether Lombana’s damages

expert—an accountant who had worked for both Lombana and Zurita—was told by one

of Lombana’s attorneys that Zurita had waived any conflict of interest when he

had not. [9]

Presumably, the accountant would not have testified in the underlying lease

dispute concerning Lombana’s damages without a waiver from Zurita. The trial

court repeatedly sustained Lombana’s counsel’s objections that the testimony

sought was irrelevant. The Zuritas contend this evidence was not cumulative

and its admission probably would have resulted in a different verdict.

Here,

however, we cannot say that the trial court abused its discretion in excluding

testimony concerning whether Lombana’s lawyers mislead his damages expert to

obtain his testimony in the underlying case. This evidence, like much of the

other “manner of prosecution” evidence the Zuritas complain about, is directed

to sharp practices Lombana’s attorneys allegedly used in the underlying

lawsuit. Such evidence, if true, may support an action for sanctions in the underlying

case, but it is generally not evidence supporting a malicious prosecution

suit. Other than their cursory statements, the Zuritas make no argument and

cite no authorities to support their contention that this kind of evidence is

relevant in a malicious prosecution case. Even if we were to conclude that the

evidence was relevant and the trial court erred in excluding it, the Zuritas

have not shown that the error was harmful. See Tex. Dept. of Transp. v.

Able , 35 S.W.3d 608, 617 (Tex. 2000).

We

therefore overrule the Zuritas’ fourth and seventh issues. [10]

V

In

their fifth issue, the Zuritas contend the trial court erred in directing a

verdict on conspiracy. They cite Likover v. Sunflower Terrace, II, Ltd .,

696 S.W.2d 468 (Tex. App.—Houston [1st Dist.] 1985, no writ), for the

proposition that an attorney can be liable if he knowingly participates in a

conspiracy and contend that Dr. Lombana’s continuation of the underlying lease

dispute after Dr. Zurita filed “dispositive motions” asserting that the

sublease terminated the option constitutes more than a scintilla of evidence to

preclude a directed verdict.

A

trial court may instruct a verdict in favor of a defendant if no evidence of

probative force raises a fact issue on the material questions in the suit. See

Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc. , 29 S.W.3d 74, 77

(Tex. 2000). A directed verdict in favor of a defendant may be proper when (1)

a plaintiff fails to present evidence raising a fact issue essential to the

plaintiff’s right of recovery or (2) the plaintiff admits or the evidence

conclusively establishes a defense to the plaintiff’s cause of action. See

id . We review the trial court’s granting of a directed verdict by

following the same standard for assessing legal sufficiency of the evidence. Mathis

v. Restoration Builders, Inc. , 231 S.W.3d 47, 50 (Tex. App.—Houston [14th

Dist.] 2007, no pet.). We review the entire record in the light most favorable

to the nonmovant, indulging every reasonable inference and resolving any doubts

against the motion. City of Keller v. Wilson , 168 S.W.3d at 824 .

To

establish civil conspiracy, the Zuritas were required to establish the

following elements: (1) two or more persons; (2) an object to be accomplished;

(3) a meeting of the minds on the object or course of action; (4) one or more

unlawful overt acts; and (5) damages as a proximate result. See Tri v.

J.T.T ., 162 S.W.3d 552, 556 (Tex. 2005). Because conspiracy is a

derivative tort, the Zuritas must show that Dr. Lombana was also liable for

some underlying tort to prevail. See Rodarte v. Investeco Group, L.L.C. ,

299 S.W.3d 400, 413 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Baty v.

ProTech Ins. Agency , 63 S.W.3d 841, 864 (Tex. App.—Houston [14th Dist.]

2001, pet. denied).

The

evidence the Zuritas point to consists of Dr. Lombana’s testimony concerning

his instructions to and reliance on his lawyers in the underlying lease

dispute. The Zuritas do not explain how this testimony raises a fact issue on

any of the required elements of conspiracy, much less all of them. Further,

the Zuritas argued below that the underlying tort supporting the conspiracy

claim was malicious prosecution. We have already held that the Zuritas cannot

prevail on their malicious-prosecution claim as a matter of law.

We

therefore overrule the Zuritas’ fifth issue.

VI

In

their eighth issue, the Zuritas contend the judgment should be reversed and

remanded based on incurable jury argument. Specifically, they complain that during

closing argument, Dr. Lombana’s attorney repeatedly called Dr. Zurita a liar. The

offending argument includes references to an originally privileged letter Dr.

Zurita wrote to the medical board that appears to contradict his position in

the underlying lease dispute and the Zuritas’ wealth. [11]

Incurable

jury argument is rare. Living Ctrs. of Tex., Inc. v. Penalver , 256

S.W.3d 678, 681 (Tex. 2008). For an argument to be considered incurable, the

complaining party must not have invited or provoked the improper argument. Id.

at 680 . Incurable jury argument exists when the argument is so prejudicial or

inflammatory that an instruction to the jury to disregard cannot eliminate the

harm. Clark v. Bres , 217 S.W.3d 501, 509 (Tex. App.—Houston [14th

Dist.] 2006, pet. denied). The party claiming incurable harm must persuade the

court that, based on the record as a whole, the offensive argument was so

extreme that a “juror of ordinary intelligence could have been persuaded by

that argument to agree to a verdict contrary to that to which he would have

agreed but for such argument.” Phillips v. Bramlett , 288 S.W.3d 876, 883

(Tex. 2009).

Instances

of incurable jury argument include appeals to racial prejudice; the use of

inflammatory epithets such as “liar,” “fraud,” “faker” “cheat,” and “imposter”;

and unsupported charges of perjury. See Standard Fire Ins. Co. v. Reese ,

584 S.W.2d 835, 840 (Tex. 1979). But a litigant is entitled to have his

counsel argue the facts of the case to the jury. Clark , 271 S.W.3d at

510. Trial counsel may properly discuss the reasonableness of the evidence as

well as the probative effect or lack thereof, of the evidence. Id.

Trial counsel should be allowed wide latitude in arguing the evidence and the reasonable

inferences from the evidence to the jury. Id.

Here,

Lombana’s attorney argued that Zurita lied when discussing the evidence before

the jury. Arguing based on evidence in the record is proper and is the purpose

of closing argument. Id. (citing Tex. Sand Co. v. Shield , 381

S.W.2d 48, 58 (Tex. 1964). As noted above, much of the argument was directed

to a letter, which Lombana’s attorney deemed “the smoking gun,” that was

admitted into evidence as a prior inconsistent statement. This letter arguably

reflected that Zurita knew of and approved Lombana’s sublease to the

pharmacist, Mobli, contrary to the position Zurita took in the underlying lease

dispute and in the present case. Although the Zuritas complain that Lombana’s

counsel mischaracterized the letter and used it to confuse the jury, the jury

was entitled to consider both parties’ positions concerning the meaning and

import of the letter’s contents, and Lombana’s attorney was likewise entitled

to discuss this and other matters in evidence. See id.

The

Zuritas also complain that Lombana’s attorney improperly injected wealth into

his argument, citing Reliance Steel & Aluminum Co. v. Sevcik , 267

S.W.3d 867 (Tex. 2008). In Reliance Steel , the supreme court held that

it was improper for the plaintiffs in a negligence case to tender evidence of

the defendant’s wealth when punitive damages were not at issue. Id. at

869–70. Reliance Steel is distinguishable because the present case does

not involve the improper admission of a defendant’s relative wealth; instead,

Lombana’s attorney discussed evidence of the Zuritas’ wealth in the context of

their voluntary bankruptcy, which was directly relevant to their claims and

damages. The argument was not improper because it was based matters in evidence.

See Clark , 271 S.W.3d at 510.

Thus,

based on the record as a whole, the argument by Lombana’s attorney was not so

extreme that a juror might have been persuaded to agree with a verdict contrary

to that which the juror would have adopted but for the argument. See

Bramlett , 288 S.W.3d at 883 . Nor did these comments strike at the very

core of the judicial process. See id. Therefore, we hold that the

argument was not incurable.

We

overrule the Zuritas’ eighth issue.

*

* *

We

overrule the Zuritas’ issues and affirm the trial court’s judgment.

/s/ Jeffrey

V. Brown

Justice

Panel

consists of Chief Justice Hedges and Justices Seymore and Brown

[1]

In their reply brief, the Zuritas make an additional argument that Judge

Jamison should have been disqualified under the Texas Constitution and Due

Process Clause of the Fourteenth Amendment. See U.S. Const. amend. XIV; Tex.

Const . art. V, §§ 7, 11; see also Tex. R. Civ. P. 18b(1).

Constitutional disqualification can be raised at any point in the proceeding. Buckholts

Indep. Sch. Dist. v. Glaser , 632 S.W.2d 146, 148 (Tex. 1982). The Zuritas

contend Judge Jamison’s participation in the earlier case, which became the

subject of the Zuritas’ malicious prosecution claim, evinced “the probability

of actual bias . . . [that] is too high to be constitutionally tolerable.” Caperton

v. A.T. Massey Coal Co., Inc ., 129 S. Ct. 2252, 2259 (2009). We conclude,

however, that the record does not reflect an unconstitutional potential for

bias of the type that concerned the court in Caperton , s ee id . at

2262–64, or that the requirements for constitutional disqualification were

met. See McElwee v. McElwee , 911 S.W.2d 182, 186 (Tex. App.—Houston

[1st Dist.] 1995, pet. denied) (identifying sole grounds for constitutional

disqualification which cannot be waived).

[2]

Moreover, recusal may be waived if it is not raised by a proper motion. McElwee ,

911 S.W.2d at 186 . The Zuritas complain they had no notice that Judge Jamison

selected Judge Benton, but the complained-of order was in the court’s file, and

the Zuritas certainly were aware that Judge Jamison had served as the judge in

the earlier case upon which their malicious-prosecution claim was based. The

Zuritas never moved to recuse Judge Jamison for any perceived bias,

impartiality, or other reason until after the case had been tried to an adverse

result before Judge Benton. Therefore, the Zuritas have waived any complaint

that Judge Jamison should have been recused, and have likewise waived any

complaint regarding her assignment of the case to Judge Benton.

[3]

The Zuritas also appear to request that the summary judgment be reversed and

remanded because the “record is in disarray.” But the Zuritas make no argument

and cite no authority to support this request. Instead, they refer this court

to a motion incorporated by reference. A party may not simply incorporate by

reference its arguments at the trial level into its brief; a party must argue

each claim of error on appeal. Allen v. United of Omaha Life Ins. Co .,

236 S.W.3d 315, 325 (Tex. App.—Fort Worth 2007, pet. denied); Guerrero v.

Tarrant County Mortician Servs. Co ., 977 S.W.2d 829 , 832–33 (“Were we to

approve of this tactic, appellate briefs would be reduced to a simple appellate

record reference to a party’s trial court arguments. Additionally, this would

be an open door for parties to circumvent the appellate brief page

limitations.”). Therefore, the Zuritas have waived this request.

[4]

The summary-judgment order disposing of Ana’s intentional-infliction-of

emotional-distress claim was signed December 20, 2005, by Judge Jamison. After

the case was transferred to Judge Benton, the parties amended their motions for

summary judgment and Judge Benton ruled on them on February 2, 2007. Judge

Benton’s order included the following in a footnote: “The December 20, 2005

order issued by the 164 th District Court unequivocally disposes of

all claims asserted by Mrs. Ana Zurita.”

[5]

Even if we were to accept the allegation that the original lawsuit constituted

malicious prosecution, Lombana’s prosecution of that lawsuit and the alleged

threat, trespass, and vandalism are distinct and unrelated acts that do not

constitute a continuing course of conduct. Compare Upjohn Co. v. Freeman ,

885 S.W.2d 538, 542 (Tex. App.—Dallas 1994, writ denied) (continued use of an

injury-producing medication may be a continuing tort); Twyman v. Twyman ,

790 S.W.2d 819, 821 (Tex. App.—Austin 1990), rev’d on other grounds ,

855, S.W.2d 619 (Tex. 1993) (husband repeatedly coerced wife over extended

period to engage in sexual bondage activities); with Tex. Disposal

Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc ., 219 S.W.3d 563 , 587–88

(Tex. App.—Austin 2007, pet. denied) (communications that were intermittent and

irregular in nature did not represent a constant, continuous pattern of

tortious conduct); Cooper-Day v. RME Petroleum Co ., 121 S.W.3d 78 , 86–87

(Tex. App.—Fort Worth 2003, pet. denied) (holding discrete acts of alleged

discrimination did not constitute a continuing tort). Thus, the Zuritas

presented no summary-judgment evidence raising a genuine issue of material fact

concerning their continuing-tort theory.

[6]

In their reply brief, the Zuritas contend they argued below that their

counterclaims in the earlier lawsuit were not compulsory counterclaims. But

that argument was made in a response to a motion to dismiss which the appellees

filed shortly after the Zuritas filed this lawsuit, not in response to the

appellees’ summary-judgment motions.

[7]

In relevant part, Rule 97(a) of the Texas Rules of Civil Procedure provides

that a compulsory counterclaim is “any claim within the jurisdiction of the

court, not the subject of a pending action, which at the time of filing the

pleading the pleader has against any opposing party, if it arises out of the

transaction or occurrence that is the subject matter of the opposing party's

claim and does not require for its adjudication the presence of third parties

of whom the court cannot acquire jurisdiction.” Tex. R. Civ. P. 97(a).

[8]

We also note that in Zurita v. Lombana , the First Court of Appeals

explained it did not consider Lombana’s argument that Zurita was aware of and

ratified the sublease, because Lombana did not plead or urge ratification as a

ground for summary judgment. 2003 WL 21027140 , at *3 n.5. Instead, the court

decided only whether, based on the express terms of the lease, Lombana had a

right to extend the lease. Id . In the present action, the parties

presented conflicting evidence to the jury on the issue of whether Zurita was

aware of the sublease. The jury was entitled to consider this in concluding

Lombana did not maliciously prosecute the underlying lease dispute.

[9]

The Zuritas also appear to contend that the trial court erred in excluding some

deposition testimony from one of Lombana’s original lawyers that Lombana had

said his practice had been unprofitable. Similar evidence was elicited from

Inez Romero, who had worked for Lombana as a nurse’s assistant for eleven

years. Romero testified that Lombana would say that the clinic was “dead” and

he was not interested in maintaining it. She also testified that Lombana did

not have a reasonable number of patients, and he almost “never showed up” at

the clinic. She also stated that Lombana “wanted to sue Dr. Zurita because the

clinic where he was at there were no patients.” The Zuritas contend Lombana’s

lawyer’s “confirming” testimony “with regard to unprofitable practice” was

relevant to both probable cause and malice. Even if we assume the trial court

erred, however, we will not reverse a judgment for an erroneous ruling if the

evidence in question is cumulative. Interstate Northborough P’ship v. State ,

66 S.W.3d 213, 220 (Tex. 2001).

[10]

Because of our disposition of these issues, we do not reach the Zuritas’ sixth

issue concerning the trial court’s refusal to submit requested jury

instructions for the malicious-prosecution charge.

[11]

Dr. Zurita waived the attorney-client privilege to enable his former lawyer to

testify concerning the contents of his file.